Italian Supreme Court confirms availability of copyright protection to TV formats

The TV format at the centre of the case
decided by the Supreme Court

TV formats may be incredibly valuable, and be sold in franchise in several countries. As a result, also disputes relating to TV formats may be complex, lengthy and with uncertain outcomes, as the current litigation relating to The Voice, for example, demonstrates [here and here].

In addition to the complexities of individual cases, a further difficulty is defining what kind of legal treatment TV formats are subject to in the first place. Discussion of the type of protection available has been, in fact, rather contentious in a number of countries. 

On the one hand, there are jurisdictions (like the UK), in which subject-matter like TV formats may not to be really suitable for inclusion in the scope of protection of an IP right like copyright (also for difficulties related to the closed subject-matter categorisation envisaged by the Copyright, Designs and Patents Act). On the other hand, there are countries which have managed to accommodate protection of TV formats within their own copyright regimes. 

An instance of the latter approach is Italy [see here]. 

As reported by DIMT - Diritto Mercato Tecnologia, in its 2017 decision in RTI Reti Televisive Italiane Spa v Ruvido Produzioni Srl, decision 18633/17 (27 July 2017), the Italian Supreme Court (Corte di Cassazione) confirmed that TV formats can be protected under the Italian Copyright Act (Legge 633/1941), and clarified at what conditions such protection is available.   

The Court recalled that the Italian Copyright Act does not contain a notion of 'format'. However the definition provided in Bulletin 66/1994 of SIAE, which also allows authors of formats to deposit them, should be taken into account. 

The Italian Supreme Court

According to SIAE's document, a work can qualify as a format if it displays - as relevant elements - logical and thematic connections composed of a title, a basic narrative structure, a scenography and fixed characters, which result in a structure that can be repeated. This means that, for instance, a TV programme that mainly consists of improvisations lacks such repetitiveness and cannot be considered a format (Supreme Court, decision 3817/2010).

Other requirements are that the format possesses a programmatic structure that displays a modicum of creativity. This requires the identification of, at least, the structural elements of the story, as well as its space and time collocation, the main characters and their personalities, and the main thread of the plot. Lacking these elements, copyright protection shall not be available, because what one would try to protect is still so vague that it can be regarded as an idea, rather than an expression thereof.

In light of earlier case law, [translation is mine]:

"this Court intends as a format for a TV programme, protectable as an original work under copyright law, a sketch for a programme, a plot outline defined in its essential elements, generally intended for a serial TV production, as resulting from a brief description."

In conclusion, under Italian law a TV format may be protected by copyright if it has both a structure that can be repeated and certain fixed elements, as well displaying a modicum of creativity. With regard to the latter, case law seems consistent in requiring that the TV format is not novel, but rather the personal and individual expression of its author.