The Media Show (BBC R4) this week featured an item on copyright. Presenter Steve Hewlett is normally excellent at untangling complicated issues such as the hacking enquiry or media regulation, but he seems to have a blind spot about copyright. Even a minute’s research could have shed light on the matter for his audience, whereas they were probably left more confused than enlightened.
Steve started by outlining an allegation that ITV stole the idea for The Only Way is Essex (TOWIE) from a taster tape for Totally Essex, which was offered to ITV and rejected, 9 months before they commissioned TOWIE from another company.
For the record, Lion Pictures and ITV say TOWIE is an original concept and reject any suggestion that the whole thing is anything other than their own.
The producers of the taster are suing ITV and Lion Pictures for breach of copyright and Rebecca Swindells, an expert on intellectual property law, was invited to explain.
Steve said: “This looks like an open and shut case. You have a taster tape with the same idea, the same people, the same concept, the same ‘dramality’ [hybrid drama/reality] format.”
Rebecca replied: “It has to be more developed … to be protected by copyright.” She explained that the taster tape itself had not been copied.
Steve clearly didn’t get the point: “If ITV says [the show] was offered to one department, but the left hand doesn’t know what the right hand is doing and another department commissioned it, would that be a defence?”
Rebecca: “That’s not the issue.”
“So, whether or not ITV knew it was happening, they would still be potentially liable?”
To which our expert replied “Correct.”
This left a misleading impression. Anybody who works in the creative industries, or designs or invents anything should understand the simple principle that:
“You cannot copyright or patent an idea”
This is why people like me, who have ever tried to sell ideas to businesses, have such a hard time. You need to develop your idea into a full-blown script, artwork, design or composition in order to have something tangible, which can be protected. Very often, the person with the good idea lacks the resources to execute it.
I have previously tried to approach publishers with business concepts, but the minute you tell them your idea, you have effectively given it away. You can only ask them to sign a non-disclosure agreement (NDA) beforehand and hope they are honourable. If they are not, you would probably stand little chance of satisfaction through the courts. I have mentioned this predicament in an earlier post: “Where do bright ideas go to die?”
Would it be better if you could copyright an idea? No. This would give carte blanche to speculators to blanket an entire field with legal protection in order to frustrate the threat of competition. In other words, Hoover could have claimed the idea for the bagless vacuum cleaner to stop James Dyson or anyone else from developing it.
So ideas alone are worthless, despite the best ones being worth a fortune, potentially. It is realising the potential that is the hard part.