BY MARIA DOLORES KRALJ, MANAGING INTELLECTUAL PROPERTY, INTERNATIONAL BRIEFINGS, JUNE 2009.
One of the cornerstones of the copyright system is the idea/expression dichotomy, which sets forth that only the original expression of ideas is to be protected, rather than the ideas themselves. This principle poses important challenges for the creative industries, since the distinction between an idea and the expression of that idea is sometimes unclear.
For example, once an entertainment company has come up with a good idea, it then needs to sell it. To do so, it has to communicate the idea to others – either orally or in writing – and therein lies the legal challenge. If ideas (as opposed to their expression) are not protected by copyright law, how can these creative companies make sure that people having access to their ideas will not use them without their authorisation? What kind of protection can they find in a situation like this? Is copyright law an efficient mechanism?
The judiciary has been answering these questions in varying ways, which implies that we cannot count on copyright law protection as an effective tool for avoiding the potential unauthorised use of ideas. Instead, entertainment companies selling ideas for TV formats can supersede the grey area posed by the idea/expression dichotomy by making sure that, before releasing their original ideas, they execute with the company or person gaining access to those ideas a confidentiality agreement, by which the other party expressly agrees not to use those ideas without the creator’s authorisation.
Moreover, the confidentiality agreement should have, among other relevant characteristics – such as adequate information management provisions and an efficient dispute resolution clause – a penalty clause to persuade the other party not to breach the confidentiality agreement and, in case of dispute, to avoid a long trial to determine damages.
Lastly, it is highly important to bear in mind that each individual case may have particular nuances. As legal advice must be tailored to the specific circumstances of each case, competent legal counsel should be consulted.