| According to the statistics of the International Television Program Pattern Protection Association,the commercial production value of the TV program model has reached 9.3 billion euros.In the past 10 years,there have been 445 television programs internationally and transactions have been completed in 57 different countries and regions.However,there is still considerable controversy over whether national laws should protect television programs.As a result,the plagiarism of TV program patterns is very serious.When we hold a remote control and switch to a TV channel,it is not difficult to find that the most popular TV programs,such as singing talent shows and live-action shows,are not similar in many ways.They are the shadows of famous foreign TV programs.When a sharp-eyed competitor or audience member discovers such a phenomenon,he or she will occasionally generate heated discussions or criticisms,and even criticize this phenomenon as “plagiarism.“ Most counterfeiters are purely coincidental,or they have been tampered with for reference.Returning to the legal principles of intellectual property rights,does the form,content,material used,and arrangement of television programs constitute the so-called “works“ in copyright law? Or is it simply a kind of idea or idea? Will the imitation between programs constitute a violation of copyright? Or does it constitute unfair competition in competition law? Does the originator of the show have a way to stop malicious plagiarism? This is a problem that has plagued TV show creators,TV production companies,TV stations,and many television viewers.This article takes this as an opportunity and hopes to draw on the foreign countries' literature and relevant jurisprudence,draws on countries' handling models and experiences in this issue,and under the current legal system in China,explores the legal protection of the “TV program model” and attempts to develop personal property interests and industrial development.Between interests,seek solutions to the above disputes.In addition to the introduction,this article consists of five parts.In the first part,the disputes of TV program models in some countries around the world were collected.In the framework of civil law system and Anglo-American law system,these disputes were divided into pre-phase type and post-phase type.Obligations,unfair competition,and the conclusions of the plaintiff winning or losing,etc.,lead to problems.The second part mainly discusses what is the TV program model.The concept,characteristics,nature,and composition of the TV program patterns are described by four numbers.First of all,for the concept of TV program mode,there is a dispute between framework theory and element theory in the academic circle.This article thinks that the framework theory and the element theory have their own advantages and disadvantages.Although the framework theory acknowledges the overall construction of the TV program model,it ignores the protection of the details.The highly abstract expression largely inhibits the possibility of independent legal protection between different TV program modes.Although the definition of the elemental statement emphasizes the protection of details,it breaks the connection between each TV program and ignores the integrity.Therefore,this article puts forward the idea of hybrid theory.The mixed language means that the program template is an integrated system that is a combination of the elements in the template and the program framework composed of the combination and arrangement of the elements.Not only the protection of the details of the model but also the overall framework of the model is emphasized.Secondly,academic circles have unclear understanding of the characteristics of television program models,leading to confusion when dealing with disputes.This paper proposes two methods for differentiating between the previous and the next phases.The former types mainly target the improper use of information on programming,such as creative ideas or plans;The type is mainly aimed at the unauthorized use of its program template after the original program is broadcast publicly.This distinction helps to clarify the specific stage of the dispute and suits the different claims.The claims for infringement of commercial secrets mainly exist in the previous stage;the appeals for acts of unfair competition mainly exist in the later stage types;the appeals for copyright infringement are all involved in the before and after stage types.Again,there is always a struggle between ideas and expressions for the nature of television programming.Scholars of “Thinking“ believe that TV program model is a concept and framework and cannot be protected by copyright law.Scholars of the“Expression Theory“ believe that the television program model is not a simple idea,but an expression of the idea of creative ideas.This article argues that it is necessary to distinguish between “TV program model creativity“ and “TV program model“.“TV program model creativity“ belongs to the category of ideas and should not be protected by copyright law.This is not a question.However,the “TV program model“ is a concrete expression formed after the combination of various elements.Finally,for the constituent elements of the TV program model,there are three parts,four parts,and five parts in the academic world.This article believes that a complete television program model can be abstractly stripped into four parts.The four parts are arranged in descending order of abstraction level: shooting plan and production arrangement,plate design,process arrangement,and general idea.Among them,the general idea includes the positioning of the program,target audience,program type,program duration,etc.;process arrangement refers to the frame structure of the program,including the connection between the various sections of the program and the plates;the plate design can be divided into specific processes within the plate.Arrangements and stage designs;shooting plans and production arrangements refer to technical guidance such as camera placement and angle design,subtitling,sound effects,etc.to achieve the aforementioned design.The third part mainly discusses whether the TV program model should be protected.After analyzing the advantages and disadvantages of “protecting“ and“not protecting“ respectively,this article puts forward the viewpoint of balancing interests.First of all,the view that the TV program model needs protection is based on the following two aspects.First,incentive theory.The television program model is the intellectual achievement of the program makers.Without sufficient protection,the society will not have enough innovation activities.Therefore,in order to launch valuable new creations and new works,inventors and authors need to attract and award limited monopoly rights..Second,the theory of intellectual property object expansion.With the development of science and technology,new things emerge in endlessly,and the marginal cost of making copies decreases.The expansion of intellectual property rights is a legal remedy and benefit compensation mechanism that brings loss of profits to the rights holders as a result of technological development.Second,the view that TV program mode does not require protection is based on the following aspects.First,the television program model is ideological and cannot be protected.From the perspective of freedom of speech and freedom of expression,the public hopes to freely express and disseminate various fresh ideas that they have received and realized.This is part of basic human rights.From the perspective of economics,protecting the ideas of the earlier authors will increase their income,but it will also increase the cost of subsequent authors' expressions,thus reducing the number of new works and,overall,may reduce social welfare.Second,income is not a real motivation for authors to create,because most of the author's work income is acquired by publishers,copyright can bring income to artists,this argument is untenable;at the same time,we must rationally view the free rider.Problems,economic analysis of property rights,externalities are negative.In the economic analysis of intellectual property rights,externalities are positive.Intellectual property rights cannot be viewed from the perspective of property rights.Finally,this article's attitude toward the protection of television programs adopts the viewpoint of balancing interests.First,the balance between the incentive of the creator and the dissemination of the creation;second,the balance between the incentive of the creator and the needs of the user;and third,the balance between the private interest and the public interest in intellectual property.The fourth part mainly discusses how to protect the TV program mode.This article demonstrates the protection path of TV program mode from content orientation,market orientation and technology orientation.First of all,at the content level,taking the content that should be protected as a starting point,we discuss what elements of the TV program model can be protected and how it should be protected under the vision of intellectual property rights.Generally talking about the protection of television program mode will start from the perspective of copyright law.This article believes that the overall framework of television program model belongs to intellectual achievement;it also belongs to the category of literature,art,and science;meanwhile,it is original and reproducible.It is in conformity with the“work“ components.However,if the plagiarism of the TV program model constitutes a substantial similarity,there is room for discussion.Substantive similarity judgments follow the first part and the latter part as a whole,and then look at the standard of the proportion.Because the TV program model is easily tampered with,the plagiarism of the program will not be copied and copied.It will be modified on the original program model,and it is often difficult to determine the materiality of the program.Therefore,the key to the difficulty of plagiarizing TV program models is not whether they constitute “works,” but they do not constitute substantive similarities.As for the elements in the television program model,for example,the pattern script of the television program model constitutes a text work,the music of the television program model constitutes a music work,the performance of the television program model constitutes a dramatic work,the dance of the television program model constitutes a dance work,and the television program model The stage constitutes an artwork that can be protected by the copyright law.As for whether or not the television program model can constitute a trademark,this paper holds a negative view,because the television program model is relatively abstract and usually not distinctive,and it is difficult to satisfy the constituent elements of the trademark.Second,when the television program model enters the market of other countries,in order to localize it,the corresponding well-known logos will be translated or amended,and it is feared that the recognition will be weakened.Third,no one will use exactly the same program name,so it is difficult to identify trademark infringement.However,the names of TV program models and the logos of TV program models can constitute word marks and three-dimensional marks and are protected by trademark laws.Secondly,at the market level,whether the plagiarism of the television program model constitutes an unfair competition behavior as a starting point to discuss the unfair market competition behavior in the TV program disputes under the unfair competition law.Whether the program format broadcast before the plagiarism of the post-sequence broadcasting program was copied constitutes a problem of confusion.The cloning of the former program mode by the post-programme mode may seem misleading,but it is not satisfied with specificity and intentionality.At the same time whether the TV program model can be considered as a commercial appearance is also worth exploring.Although China has a precedent for identifying the decoration style of a store as a commercial appearance,the television program model has insufficient physicality after meeting the integrity and independence of the commercial appearance and cannot be recognized as a commercial appearance.In the case of special clauses that do not meet confusing behavior,whether it can be adjusted using the general terms of anti-unfair competition behavior does not apply.There will be deficiencies associated with violating business ethics with no effort,and the first improperly compresses the space in the public domain;the second does not meet the requirements of doctrine;and the third does not follow the consistency of protection standards.Then whether the plagiarism of the TV program model can not be adjusted with anti-illegal behavior,this article believes that it can be adjusted with the trade secret protection law in the anti-unfair competition law.The development of the television program mode has consumed the painstaking efforts of the production staff and has brought together a wealth of labor.In particular,some of the special production processes and production techniques are in line with the originality,value,and confidentiality of trade secrets.In the production and transaction of TV program mode,a confidentiality contract is signed and confidentiality clauses are agreed upon,which can effectively protect the television program mode.Finally,at the technical level,it supplements with infringement warning letters,FRAPA format registration,alternative dispute resolution mechanisms and industry self-regulation.Most TV program makers do not want to resolve legal disputes to resolve disputes.In the face of pattern plagiarism,issuing infringement warning letters is a good choice.Resolving disputes through the law is often time-consuming and laborious,and negotiation and reconciliation in alternative dispute resolution mechanisms can help producers and television stations solve disputes outside the court in a more flexible,confidential,and effective manner,and thus maintain their business relationships.The World Intellectual Property Organization(WIPO)began providing alternative dispute resolution services in 2010 to address the issue of model theft or unauthorized copying of television models.Registering in the International Television Programme Model Protection Association for model registration,although it cannot expand the protection of copyright laws,the registration model can be used as evidence in court.The television industry sets corresponding industry self-discipline standards,and from the professional point of view of the industry,the bottom line of the minimum tolerance for the model is determined,and the homogenization of the program mode can be further avoided.The fifth part mainly discusses the path selection of China's TV program model.The plagiarism of TV program mode is a global problem,but the disputes in China's TV program mode have shown its particularity.First of all,pre-conditions,and a re-understanding of the nature of the “copyright“ program model.Every major TV station purchases so many programs each year.What is the purchase? This article argues that the reference to the purchase of “copyright” is not correct.One of our purchases is the brand effect;the second is production experience;and the third is risk avoidance.Second,the core path,competition law is supplemented by the main intellectual property law.For the TV station's independently developed program model.The first is to register the name of the program model in the corresponding category and protect the model through the trademark level.The second is to sort out the program models,to make the program ideas as concrete as possible,form a script or make a book,and protect it as a commercial secret.Third,copyright registration of program model names,collections,and designs can be used as a preliminary proof of rights protection.The fourth is to sign a confidentiality agreement with a partner company or a program company to avoid disclosure of related information.Fifth,it is found that unauthorized use of the model can collect evidence and prosecute it from the perspective of trademark infringement and unfair competition.If the finished product constitutes a substantial similarity,after the lawyer's argumentation,the rights can be protected from the perspective of copyright infringement.For the introduction of external program modes.First,we must pay attention to the negotiation,drafting,and signing of model contracts.Contracts are the most important document that clarifies the relationship between rights and obligations.The source of most of the disputes comes from unclear contracts.The model contract is rather special.It requires a detailed agreement on the type of rights involved in the various types of elements involved,and the signing of a complete model introduction agreement with the participation of professionals.The second is to pay special attention to trademark right after the model is landed.Foreign models need to be Chineseized when they enter China.For example,“voice of china” lands as “China's good voice”.There are distinctive names that can be applied for trademarks.The ownership and use of trademark rights should be negotiated as the focus of the contract to avoid the dispute over trademark rights mentioned in the previous article.The third is to make arrangements for follow-up cooperation.Variety shows are basically seasonal broadcasts.Model agreements are generally signed on a quarterly basis.To avoid significant increases in prices when the broadcast results are better,it is best to make arrangements for follow-up cooperation when signing up for the first time.The price was renewed.The fourth is to abide by the principle of good faith.Although the program model is generally not protected by the copyright law,it also belongs to the intellectual labor achievement.Some units have acquired relevant skills after working together for a period of time,and they no longer renew their contract with the model,or pass the reconciliation if negotiation fails.In order to study and “cash” other people's programs,such acts will not be pursued even if the gray areas of the law are violated. |
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