TV production companies try to accrue a mass of IP protections to fend off competition.
The news that Channel 4 has outbid the BBC for the continuing rights to the successful TV show, The Great British Bake Off (GBBO), was met with much furore. Why would anyone want to pay £25m per year for the right to broadcast a baking competition?
The obvious answer is: because the programme has a large audience, and a large audience means large revenues, particularly for TV channels that show adverts.
But how certain can Channel 4 be that the large audience will not dissolve, like a sheet of gelatine in a bowl of warm water? TV shows sometimes lose their sparkle when they move from the BBC to ITV. A further risk factor in this case is that three of the show’s four presenters are not moving to Channel 4. What is to stop the BBC from launching a new programme featuring the three remaining presenters?
The answer lies in considering the intellectual property (IP) rights that the producers of GBBO, Love Productions, have in the show. Readers of the Gazette will be familiar with wise legal sayings, such as ‘he who comes to equity must come with clean hands’. In the IP world, a common saying is ‘there is no copyright in an idea’. The idea of having a baking competition is not protected by IP.
Older readers may recall Hughie Green, and his TV talent show, Opportunity Knocks, which ran for many years in the UK. The leading case on IP in TV game shows is still Green v Broadcasting Corporation of New Zealand, which reached the Privy Council on appeal in 1989. Their lordships declined the opportunity to give copyright protection to Green’s show, despite blatant copying of the format on New Zealand television.
Instead of overall protection for a format, individual elements of TV shows may benefit from IP protection. A quick, online search of the UK trademarks register reveals that Love Productions has registered four UK trademarks for the words ‘The Great British Bake Off’, one of them in a special format. If the BBC wishes to produce a rival show, it would be well advised to avoid similar names.
What other elements of the show might be considered unique? Probably not the use of kitchen workstations, which are commonplace. Perhaps the use of a tent? Any competition is going to need a large working space. If the BBC is ultra-cautious on this point, perhaps it should hire a cathedral?
Nowadays, TV production companies try to build up a mass of small elements of IP protection and hope that the combination will be sufficient to prevent competition.
Scripts, set designs and repeated catchphrases help to build up a package of IP. Not that this helped Hughie Green much. It seems he didn’t use a script, but he had plenty of catchphrases, some of which have entered the English language in the way words from Shakespeare's plays did.
So, BBC, are you going to produce a rival show? It’s make your mind up time, and I mean that most sincerely, folks.
Mark Anderson is chairman of the Intellectual Property Law Committee of the Law Society, and a visiting professor at the UCL Faculty of Laws. He is writing in a personal capacity