The issue of whether a TV program format can attract copyright protection has been a dubious field in the area of Copyright law. There are different solutions to the problem in different legislations and various points of views. In most of the countries TV formats are considered to be an intellectual creation, however the issue of being counted as a work in the meaning of copyright law, thus accepting and proving that a program format in particular meets with all the conditions that the national legislations propound to be deemed as a copyright protected work is unsolved yet. The recent situation seems to be that this problem can not be solved by regular and stable rules, but shall be discussed case by case.

According to the last reports, the number of traded formats has substantially increased in the past 6 years. The FRAPA study shows that from 2004 to 2009 a total of 445 original formats found their way to foreign screens. Turkey is in a double sided position in this matter, since the amount of imported TV formats is considerable, but on the other hand the export ratios are significant as well. Especially Arabic countries show great interest to Turkish TV formats in the recent years. This cause an increase in the infringement claims as well from both sides which bring us to the main question of; how can TV formats be protected within Turkish legislations. When such big numbers are in consideration, it is very essential to determine the legal status of the formats.

Starting from the very beginning, it is important to comprehend what a television program is. Although the Turkish Supreme Court recognizes in some cases that the TV formats shall enjoy from the copyright protection if the criteria has met, it is hard to find any kind of definition of a TV format or any settled execution on the criteria of protection.

As mostly accepted by the doctrine; a TV format can be defined as all the characteristics of a television show that can be easily recognized by the audiences, depending on the static main structure, the style and the broadcast stream, although the contents may vary at every turn. When these descriptions are adapted to IP law, it occurs that main point that has to be discussed in the scope of copyrights is the individuality of the elements that are fixed and stable.

According to the art. 1/b of the Turkish Copyright Code, a product of intellectual creation that has the individuality of its creator and fall in the scope of either a work of literature and science, music, fine arts or cinema shall be considered as “work” in the meaning of copyright law. Therefore to be able to consider a creation as a work, it must reflect the individuality of its creator, be in the scope of one of the referred type of works and be a creation of an artistic and intellectual endeavor. Therefore the matter that has to be discussed is not whether a format constitutes an intellectual creation; it is whether the format shows the individuality of its creator, falls within one category referred in Copyright Code and it is fixed perceptibly. Since the expression of an idea is protected by copyright rather than the idea itself, it is hard to ensure this criterion in relation to formats. Formats are mostly very abstract and in the texts of a format there is only an explanation regarding to the general stream of the program. Actually this is accepted very normal for a format, since the detail explanation of the elements generally turns into a script, which is already protected as literary work. Therefore to draw the line in this sense becomes generally impossible according to the Turkish copyright law. The formats stay superficial and thus abstract compared with the level of fixation. On the other hand the condition of being in the scope of one category of the works creates another problem, since the categories in the Copyright Code are regulated according to numerous clauses principal that restricts a new addition to the categories.

As to formats it has to be examined if they can be qualified as literary works. According to the Turkish doctrine this question is also has a negative answer. It is mostly stated that the intension of the artistic and intellectual endeavor does not retrieve the formats from being abstract. To be fixed like a literary work does not mean that it has become perceptible the content of a format is still undefined and thus abstract. Every single producer or even a contestant can provide different content. Thus still for every single case the individuality has to be examined, which the degree is quite high since the Copyright Code has mainly adopted from former German Copyright Code dated 1901.

The issue came to the attraction of the Turkish IP community by some cases from the beginning of 2000. In 2000, where a famous TV program Televole was subjected to an infringement case, the Supreme Court directly expressed that this TV program shall be protected by copyright law according to the art.5 of the Copyright Code, which regulates the protection of cinematographic works. However there was no particular concentration to the description of formats or any other detailed explanation concerning TV formats and its protection issues.

In another case, the copyright character of a quiz show, namely 2008 SMS was in question in 2004; where the plaintiff was the licensee of the original program format and the defendants who were claiming that formats cannot enjoy copyright protection were the producer and the broadcaster of the Turkish version. In this format case the first instance court ruled that the program formats can be qualified as a work in the meaning of copyright law and thus there is a copyright infringement to the plaintiff’s rights since his format was copied by the defendant. When the file was heard before the Supreme Court, the Supreme Court stated that the issue whether the formats shall enjoy copyright protection or not must be examined by an expert and since there were no consensus in the numerous expert reports in the case file, the Supreme Court decided in favor of the necessity of another expert report. In this particular case the Supreme Court explicitly crack the door open for the formats to be examined in the sense of attraction copyright protection. However the Supreme Court did not stated exactly that the formats should enjoy copyright protection like the previous decision dated to 2000. Briefly, the final expert report, prepared in a very detailed way according to Supreme Court’s decision revealed that the TV formats are not qualified to attract copyright protection, since they are not perceptible enough and they do not fit into one of the restrictively enumerated work types mentioned in the Copyright Code.

However in the past years the issue has become more important since the format licensing in Turkey began to posses a great value in the market and the volume and the speed of format exchange gets higher. In a recent case in 2007 the IP Court expressed “that if a format is original in a sense that it is more than barely an idea, if it includes original details, possess an individuality and have a certain philosophy and an atmosphere then it will protected as a copyrighted work; if it is not original, in the presence of the conditions rules of unfair competition might be applied”. It is obvious that these facts have an effect on the change of mind of the IP Courts, nevertheless as explained above the decisions have serious variations from each other. However even more recently the Supreme Court finalized the mentioned case and hopefully this will be a solid guide to the solution of the issue. The Supreme Court rejected the defendant’s claim in this action by stating that “since the format in dispute is original, reflects the creativity of its creators; possess the characteristics of a visual and an audio product and carry the name of the plaintiff, the claims of the defendant, where there is no work in the meaning of copyright law to be protected shall be declined.” This brings us to the conclusion that as long as a format qualifies with the above-mentioned criteria, it is possible that they can be protected under the laws of copyright.   

Although the copyright side of the issue is very arguable and hard to prove that there is enough artistic and intellectual creation that reflects the individuality of the creator in TV formats, there are still other forms of protection that a format might benefit. According to the cumulative protection principal both the courts and the doctrine are willing to protect the TV formats by either contract law or trademark law. However even then the protection level would be too low; thus these solutions does not counted as applicable. Nevertheless the rules of law of unfair competition seem to be the strongest and most appropriate protection for the cases of TV formats that are not able to attract copyright protection, if the conditions are met. The recent decision of IP Courts cited above clarifies this issue as well by declaring that the protection emerging from the unfair competition law may be applicable to the TV formats. 

Consequently, similar to the rest of the world the execution of the laws in Turkey differs according to the context of the situation; in some cases the formats are deemed simply as an idea that can not be qualified as a copyright protected work. On the other hand theoretically it is accepted by the lawyers and the experts that formats can attract copyright protection. This clearly shows that the confusion on the subject matter is still present. But it can be absolutely stated that the judicial opinion of the Turkish Supreme Court is in the direction to the protection of TV formats by copyright law as long as they comply with the requirements of Turkish Copyright Code.