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The DTI recently announced that it will not seek to extend copyright protection to television programme formats. This was welcomed by the advertising industry trade press.
The effect of the DTI statement is to retain the status quo which, legally, is not particularly favourable to advertisers.
Neither parody nor satire is a defence to an action for copyright infringement or libel. The fact that a film, book, television programme or personality has been parodied or satirised for the purposes of amusement, or to sell a product, is usually irrelevant.
Any change in the law sponsored by the DTI would have been a significant departure from the principle that an idea in itself is not subject to copyright protection until it has been expressed in a sufficiently creative way.
Granting copyright protection to programme formats may have come dangerously close to granting a monopoly on certain types of idea.
In any event, the Independent Television Commission has amended its Code of Advertising Standards and Practice in order to emphasise the distinction between advertisements and programmes.
New rules prevent advertisements from imitating or parodying a particular programme in advertisement breaks in, or adjacent to, that programme. The use of titles, logos, sets and theme music from programme material is now prohibited in most cases.
The recent dispute between BT and the BBC in relation to the use in an advertisement of actors formerly appearing as cast members of EastEnders also emphasises the continuing importance of passing-off when using or making allusions to any fictional character or programme.
In the recent Harrodian School case, Lord Justice Millett confirmed that there is no requirement for a defendant to a passing off action to be carrying on a competing business or one which would compete with any natural extension of the plaintiff's business. This point is particularly useful when protecting the right to derive income from product endorsement.
Advertisers should welcome the fact that the DTI does not propose another restraint on their creative freedom, but they should remember that the law will still protect programmes through copyright protection and the law relating to passing off.