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HOW SAFE IS YOUR FORMAT?

FRAPA initiates report into global format protection

FRAPA is seeing in 2010 with a range of new initiatives, chief among which is a new report — thought to be a first — into the current state of format protection around the world. Joanna Stephens reports.

JONATHAN Coad, head of the Swan Turton’s litigation group, is described on the UK law firm’s website as “a tenacious litigator” who does a “splendid job in providing the right answers”.

This will come as particularly good news to FRAPA, which has entrusted Coad with providing an answer to a question that has been vexing the TV industry since the BBC paid CBS $50 for What’s My Line back in 1951. “And that question is, to what extent are TV formats protected around the world,” says Coad, who is aiming to complete the FRAPA-commissioned survey into the global state of intellectual-property (IP) protection by next summer. The new report will be presented at MIPCOM in October 2010.


Johnathan Coad:
“I have something of the feeling of a frontiersman”

It is an ambitious deadline. Coad jokes that his decision to take on such a challenging task on top of his already heavy caseload was “a moment of abject insanity”. But he is being entirely serious when he adds: “Most legal practice is intellectually dull, but this area is fascinating because the law is dealing with an entirely new set of circumstances, which is something it doesn’t often have to do. As a result, I have something of the feeling of a frontiersman, which is great fun. And it’s also a privilege that is given to very few lawyers.”

Fortunately for Coad — and the legal trainee he will bring in to help him with the research — he has already done much of the report’s spadework, having done extensive work in the field of format protection. Not only has he written several expert reports for international litigation, but he is also director of the International Format Lawyers Association (IFLA), which he founded in 2005 to provide the burgeoning formats industry with an international network of specialist TV and IP lawyers. Add this to his role as a legal advisor to many of the UK’s top broadcasters and producers, his busy international seminar schedule, his regular appearances on radio and television as an expert commentator on format rights — and wrongs — and it becomes clear why FRAPA decided that Coad was the right man to produce a new global roadmap of format protection.

The daunting workload aside, Coad is embarking on the FRAPA survey in an optimistic frame of mind. He believes that, with certain exceptions, formats are now “substantially protected” in most territories around the world. “At the last count, there have been roughly 70 cases worldwide involving formats, of which approximately 50% have been successful,” he says. “That tells you, (a), that a respectable percentage of cases are succeeding and, (b), that people wouldn’t be bringing those claims if they didn’t think it was possible to protect formats under their own legal systems.”

He adds: “Every year that goes by, the canon of law in this area increases. There is now a broad international consensus on format protection, based on expert evidence from IP lawyers like myself. And if the industry recognises this new species of IP, then so, too, should the law.”

The new FRAPA study comes on the heels of The FRAPA Report 2009: TV Formats to the World, which launched at MIPCOM in October. Among the latter’s key findings was that the production volume generated by traded formats has increased to approximately €9.3bn — proof positive that the formats industry has graduated from a bit player to a major performer. This surge in value underscores the commercial imperative of adequate protection, especially given the huge amounts of money now commanded by the A-list formats. American Idol, for example, was recently valued by Forbes at an eye-popping $2.5bn, made up of revenue from sponsors, merchandising, telephone, music sales, broadcast and advertising.

“I know, as a commercial litigator, that a cocktail of very valuable IP with uncertainty about the relevant law results in litigation,” Coad says, adding wryly that “buying and selling formats without confidence that they have a legal existence is like buying and selling cars without locks on the doors”.

In the meantime, the best way to protect your format is to cultivate a reputation for zero tolerance: “When I was starting out as an IP lawyer, everybody knew that Disney would cut off your legs if you went anywhere near their intellectual property. So guess what? Nobody risked it. In reality, people won’t stop nicking formats, but it is possible to stop them nicking yours. If, like Disney, you are known to have zero tolerance of format thieves, your next-door neighbour may get burgled, but you probably won’t.”


Coad’s report is not the only FRAPA initiative aimed at helping its members to avoid losing money: it has also launched a new international debt-collection service with Amsterdam-headquartered Atradius Collections.

The current financial crisis has had a deleterious effect on payment behaviour across the business spectrum. But for the formats industry, with its border-breaking products and global remit, the problem of chasing debt can be particularly complex. “And it’s very often a double whammy,” says Eva Stein, FRAPA’s Cologne-based managing director. “On the one hand, overdue invoices and bad debts can quickly drain a company of its financial lifeblood. But on the other hand, if you chase outstanding accounts too aggressively, you run the risk of endangering long-standing business relationships. In many cases, the answer is to take the ‘personal’ out of the problem, and pass it over to a professional collection service.”


Observing that the global trade in formats has experienced exponential growth in recent years, Atradius Germany’s senior sales manager, Sascha Glaesser, adds: “Our strength lies in our ability to integrate our local knowledge and expertise into a single seamless process to provide our customers with efficient and prompt debt recovery — regardless of where in the world that customer or their debt is. Considering the nature of the TV formats industry, this combination of local and global capabilities should be extremely valuable to FRAPA’s members, many of whom trade in an increasingly borderless environment.”

FRAPA is also set to launch a new Hotline service in the New Year, designed to provide its members with expert advice on a range of format issues, from licensing and contracts through format protection to commercial tactics. “The idea is that you contact us with your question and, within 24 hours, the most qualified FRAPA board member will get back to you with advice or solutions,” Stein adds.

For Ute Biernat, FRAPA chair and CEO of Grundy Light Entertainment, this latest round of FRAPA initiatives underline the association’s determination to provide its membership with targeted and tangible services. “We want our members to realise that joining FRAPA means joining a vibrant community of like-minded professionals,” she says. “Our aim is to transform FRAPA into an interactive experience, not a passive one. With the new Hotline, we are offering access to some of the most respected format professionals in the world. Our Board members have real experience and knowledge of creating and monetising formats — and they are prepared to share their insights for the greater good of our industry.”

 

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