Copycat and copyright

According to the MediaGuardian report today, BBC and ITV were immersed in a war of words again. They accused each other of "copycating" in terms of programmings. (see link http://media.guardian.co.uk/broadcast/story/0,,2117447,00.html)
such things are not particular to the UK television. the American broadcaster Fox had been also accused of stealing the intellectual property of other networks such as NBC and ABC. (see link at http://www.mediavillage.com/jmr/2004/07/21/jmr-7-21-04/)
Not only broadcasters in a country could "copy" each other,foreign braodcasters could do it as well. for example, Chinese broadcasters have modeled some of their programs on the UK or American programming, but, of course, they need to localise them or put a "spin" on it to tailor to local taste.
One interesting issue surrounding the programming copycatting is whether it breaches the copyright law and related rights. As we know, copyright only protects the expression, not the ideas, however original the ideas could be.

In one article "Format Fortunes – Is There Now a Copyright for the Television Format?", Ben Challis(2004) cited the case between US broadcasters CBS and ABC ((2003) www.musicjournal.org/lawupdates.html) in the US District Court NY. In this case Judge Loretta Preska reaffirmed the principle that there was no copyright in an idea and that on the facts of that case that there were no format rights in a television programme. CBS had claimed that the programme I'm A Celebrity Get Me Out of Here was a copy of their programme Survivor and sought injunctive relief against ABC to prevent the programme going to air. ABC successfully argued that their show was an original format and that injunctive relief was not an appropriate remedy.

According to Ben, the World Intellectual Property Organisation (WIPO) state that Broadcast content … can also be protected by copyright and related rights, depending on the national legislation. Television formats, however, have not been discussed at WIPO as subject of a separate international protection.

The television format rights or programming copyright is really a hard nut to crack. However, having goen through some previous cases, I think that most judges will decide by evaluating how substantial the copycatting is. In a Dutch case(Ben, 2004), the judge explained that
"A format consists of a combination of unprotected elements... An infringement can only be involved if a similar selection of several of these elements have been copied in an identifiable way. If all the elements have been copied, there is no doubt. In that case copyright infringement is involved. If only one (unprotected) element has been copied, the situation is also clear: in that case no infringement is involved. A general answer to the question of how many elements must have been copied for infringement to be involved cannot be given; this depends on the circumstances of the case."
In a Brazilian case, the judge also ruled that there is "whopping similarity" between the two programs, so that there is a breach of the copyright.

So broadcasters could grasp the subtle side of television format rights. You coudl borrow a little, but not go too far, otherwise, you are pressing the button of self-destruction.