Big Brother watches out: Endemol tackles infringers

John Logie Baird, a Scottish electrical engineer, demonstrated the first working television in 1926. The ‘Televisor’ transmitted a faint and blurred image using revolving discs made of wood, revolving shutters and light-sensitive cells. It proved that it was possible to transmit and reproduce movement. Soon after the demonstration, The Guardian likened the invention to “seeing by wireless” and reported that expert observers were satisfied that the “wonder” of transmitting images had been accomplished.

As the television’s popularity soared, so did the value of content and the importance of intellectual property to those involved with the technology. Production companies needed to protect the creative efforts that went into their TV programmes.

Endemol bills itself as the largest independent television and digital production company in the world. Formed in 1994, the production company is responsible for hit programmes such as Big Brother, Deal or No Deal, The Money Drop and Wipeout. It produces these shows for broadcasters around the world, using Endemol Worldwide Distribution to distribute finished programmes and Endemol Worldwide Brands to exploit its formats beyond their primary TV platforms in each territory.

Sebastian van Barneveld is the IP rights manager at Endemol. An important feature of the company’s success has been its ability to identify and respond to the ways in which its content is consumed. “[Audiences] are starting to move away from the traditional ways of watching television,” he says. “There are some threats due to the ‘wild west’ nature of the Internet, but it’s becoming more and more clear that there are mechanisms to deal with this.”

The opportunities offered by the Internet and other technologies enable Endemol to fully exploit its content. Van Barneveld says: “We make videogames and mobile phone games of our programmes. We can make our finished programmes available through mechanisms such as file-sharing under a subscription, and we see a lot of opportunities when it comes to watching television on your mobile phone.

"These are all extra means of exploiting our IP. In the end, Endemol is a producer and although the way content is viewed may change, the more ways to view there are, the better.”

He adds: “It is very important that big production companies are completely aware of what is going on and they are watching out with great scrutiny. They need to be on the forefront of developing new ways to exploit their materials.”

With more than 2,300 formats in its library, Endemol annually produces more than 10,000 hours of content and partners with more than 400 channels and cross-media platforms worldwide. The production company’s IP portfolio is vast and such a large amount of content needs all sorts of protection. Its formats must be protected as both stand-alone programmes and exploitable brands.

Types of protection range from copyrightable formats to trademarks, whether they are words or images, as well as domain names and the protections required for music, software, games and scripts. “You name it, we have it,” says van Barneveld. “It’s very diverse—it’s a huge amount of intellectual property. The whole company mainly consists of it.”

The team responsible for IP protection at Endemol is made up of six people, who work centrally at Endemol International. In all the countries where Endemol has operating companies, there are also legal counsels charged with protecting the group’s IP locally. “Our main focus is infringements, trademarks, domain names and the Format Registration Procedure (FRP), which is an internal system to register formats,” says van Barneveld.

Endemol has internal procedures in place that organise protection for its IP. “We want to register our ideas as well as we can and as clearly as we can,” says van Barneveld. “This is so we can optimally protect them when necessary.”

FRP requires all new formats to be submitted to an internal team that checks their originality against Endemol’s IP and that of third parties. He says: “Formats are always checked for originality and registered with the company, as well as in every possible way with local and international authorities.”

He adds: “We are fortunate to have sufficient scale and global spread to be able to operate a procedure to check the originality of our new formats against what is out there in the market. Few producers are big enough to have the knowledge of third-party formats that is required to do this.”

Externally, Endemol does not waste the work it puts into its IP portfolio. He says: “Of course, in the outside world, we have a very assertive and quite aggressive policy. We are very tough on crime, as we like to say.”

Aggressively enforcing its IP rights is not a tactic Endemol takes lightly.

He says: “As a big corporation, it absolutely helps to have an image of being ‘tough on crime’, because when you write a letter, people know that you can actually act on it, so they know you’re not bluffing. That’s very important. It’s also aimed towards our clients. It’s very important that they know that if they buy something from us, they are going to get the protection of our big corporation to go after possible infringers of the format.”

The production company is happy to take on online infringers that regularly damage its brands or exploit its programmes and materials. “We really have to act on this,” says van Barneveld. “We use [ICANN’s] UDRP, our trademarks or litigation, if necessary.”

The most sellable and so most valuable items in Endemol’s portfolio are its hit TV formats. Programmes such as The Money Drop and Wipeout are currently popular, says van Barneveld, but programmes such as Big Brother and Deal or No Deal continue to be among the company’s biggest global hits.

He says: “Our main money-makers are still the most extensively travelling formats. The diversity of these formats is highlighted by the many ways they can be commercialised. There are interactive services, consumer goods, the finished programmes, event organising, or Internet applications. The bigger the programmes are the more they can be exploited.”

“We are fortunate to have sufficient scale and global spread to be able to operate a procedure to check the originality of our new formats against what is out there in the market. Few producers are big enough to have the knowledge of third-party formats that is required to do this.”

Ways and means of protecting TV formats, despite the progress made by many jurisdictions to embrace intellectual property law, remain in short supply in certain areas of the world. “It differs from market to market,” says van Barneveld. “Of course, we are very much of the opinion that formats should be protected by copyright law as long as they are written down very clearly and extensively, and they are unique and original. Usually what happens is the bible of the format is considered a copyrightable work.”

One jurisdiction that does give copyright protection to TV formats is Brazil. Endemol received firm confirmation of this in a recent case. “We recently won a second instance infringement case in Brazil,” says van Barneveld. “In the actual case, it was mentioned that formats are protectable. We have been in court for 10 years in Brazil to achieve this result. This is how far we will go to protect our rights and those of our licensees.”

In jurisdictions where TV formats enjoy no general copyright protection, it may be up to production companies such as Endemol to take charge of developing case law. “What Endemol does a lot is try to develop case law in a country in order to stimulate that country into recognising TV formats as copyrightable works,” says van Barneveld. “The whole industry is dependent on its ability to protect the formats that it sells.”

Stimulating a country’s legal system can be a risky business. Judges are free to make up their own minds on a specific subject.

He says: “Of course, most cases do end up being settled. However, you always have to be careful that you do not take on weak cases that may lead to bad precedents being set. We don’t begin proceedings unless we are confident that we will win in court if it goes all the way. We do our research well, we take advice from top firms, and we make sure that our case is solid before we begin.”

As a global business, Endemol must sometimes seek the advice of outside counsel to ensure its case is as watertight as it can be. It often picks the best firms in the relevant territory depending on the specific needs of the case. “This could be the huge firms or it could be a niche firm that is specialised and has an excellent reputation, or it may be a combination of both,” says van Barneveld.

“In multi-territorial cases, we sometimes partner a niche firm that enjoys an excellent reputation in its market with a larger firm with offices in the other relevant territories not served by the niche firm.”

The legal uncertainty surrounding TV formats does not necessarily affect their value. Production companies, according to van Barneveld, do not on the whole steal each other’s formats. There are also other means of seeking format protection, such as unfair competition.

Copycat shows have a practical effect on Endemol’s business. Each format will have a level of popularity that will make it appealing to broadcasters—popular TV programmes are judged by the audiences they attract—so Endemol’s licensing ventures rely on the rights it has over its formats.

“Copycats diminish the value of our IP, which is the reason why we are so adamant in chasing them,” says van Barneveld. “First of all, it becomes very difficult to sell your format when someone pops up with a rip-off. We generally chase them down to the bone.”

Infringing shows have tested Endemol for years. “I would even say that, during the economic meltdown since 2008, we’ve had more infringements than in the preceding years,” he says.

He adds: “In the end, you have to pay a licence fee for a format, and if people are willing to take the risk and go to court, then they are going to have to test themselves against Endemol.”

According to van Barneveld, no two licence agreements are ever the same.

He says: “Licence agreements tend to be based on fixed format fees and revenue models for ancillary and interactive exploitation, but there are differences. For example, you may have a pan-African Big Brother dealing with almost all of Africa. In other territories, such as Brazil, Israel or England, a local Big Brother is more likely. So the exploitation can differ a lot per territory, or it can be cross-territorial. All the other forms of exploitation can also be different types of deals.”

Generally, Endemol will license a specific programme to a broadcaster and then produce it for them. This allows the production company to maintain a level of quality control over the IP that it licenses.

He says: “We also have consultants that watch over the quality of the format once we sell it. That’s very important. The lawyers also do that. We need the programmes to have the absolute Endemol quality.”

Television viewing is changing. What is traditional now was a technological wonder less than a century ago. Television can still be broadcast, but now it can be streamed and downloaded too. Content is as portable as the mobile phone that carries it.

Endemol has identified this as an opportunity while remaining aware of the threat it poses. The more its programmes are viewed, the more they can be stolen. Endemol is committed to protecting its formats in many jurisdictions.

It aggressively protects the brands that these formats create and defends its customers who legitimately deal in this creative commerce, but the potential for infringement is rife as Endemol continues to go global. To maintain its business, Endemol must continue to effectively balance the opportunities with the threats.