Finding the way on lost journey of film and television works protection

At the beginning of March, Wuhan Huaqi Film & TV Production, the producer of the motion picture Ren Zai Jiongtu (Lost on the Journey), announced that it was launching suit against Beijing Enlight Media, the producer of Ren Zai Jiongtu Zhi Taijiong (Lost on the Journey in Thailand) and others in the Beijing Municipal Higher People’s Court claiming “unfair competition and copyright infringement”.

One of the claims the producer of Lost on the Journey identified in this suit was that Lost on the Journey in Thailand was substantively identical or similar to Lost on the Journey in terms of “conception, plot, story, theme and dialogue in numerous places”, constituting an infringement on its copyright.

In recent years, the phenomenon of “following the latest trend” has been prevalent in the mainland film and television market. The duplication, to varying degrees, of subjects, backgrounds, themes, characters and plot structure – the “settings” – has triggered an increase in disputes.

Basic principles

The basic principle of the Copyright Law is that regardless of whether an idea shows “creativity”, protection is afforded only to the “expression” of such an idea, and not to the idea itself. Accordingly, if film and television settings remain at the level of an “idea”, they cannot be protected under the law.

The “expression” that is protected by the Copyright Law is a “work”, defined as follows. First, the intellectual achievement is required to have been incorporated into literature, art or a scientific field, and must be considered “original”. Generally speaking, “originality” means that the creator expended creative effort, rather than merely copying or doing something similar. To be deemed “original”, a work must also to a certain extent show individuality, e.g. it must manifest a certain expression in terms of wording and phrasing, structure and action.

The Copyright Law is not overly strict in its requirement of originality. Provided that there is no direct copying, it does not automatically proscribe similarity in expression. However, simple public domain elements should not be deemed as being original, and they will usually need to be stripped away. Second, intellectual achievements that are original must fall within the statutory category of works specified by article 3 of the Copyright Law. If not, they are not afforded protection under the law, regardless of how great the creative value may be. Creators of artistic works should place great emphasis on this.

Accordingly, film and television drama settings securing protection under the Copyright Law are not only required to satisfy the substantive requirements of originality, but also the formal conditions, meaning they must fall into one or more of the statutory categories of works as stipulated under the law. Elements in film and television drama settings that fall within the public domain, as well as those portions that, although original, are not expressed in the statutory format of a work, are not afforded protection under the law.

However, innovative settings are the source of the creativity of film and television works, and the commercial value that they embody may be converted into economic benefits. Once film and television drama settings that do not fulfil the requirements in respect of a work as defined under the Copyright Law are leaked or used without authorisation, not only will it cause direct economic losses, but also the objective difficulties in adducing evidence will make it hard to secure ideal relief after the fact.

Furthermore, in practice, the lead time in the preparation of, investment in and production of film and television dramas is relatively long, with numerous entities involved. This increases the real risk of the settings being leaked or used illegally. Therefore, it is imperative to adopt intellectual property law protections for film and television drama settings that fall into the category of intellectual activity achievements.

Protection practice

Film and television drama settings often take form during the early period of preparation. They are often manifested as a multi-level outline, concept draft or other such written work or art. A copyright holder may obtain copyright registration for a work that exemplifies film and television drama settings, publicises its rights and gives rise to initial proof of title in case of infringement. There are now precedents for copyright registration of multi-level outlines.

With respect to numerous film and television drama settings that are not considered works by the Copyright Law – particularly those that remain at the “idea” level – they may be protected as trade secrets prior to public disclosure. Creators must raise their awareness in respect to confidentiality, adopt a selective disclosure method at the negotiation and preparation stage, and where possible enter into a written confidentiality agreement prior to disclosure. Such agreement with the accessing party should convey to the receiving party obligations such as maintaining strict confidentiality as well as the prohibition of use without authorisation and liability for breach of contract.

Where necessary, the receiving party may also be required to ensure that its working personnel or affiliates bear an equally strict obligation of confidentiality. Once settings have been publicly disclosed, continued adherence to the confidentiality of the relevant details that have not been publicly disclosed may also be required. Should the receiving party use, without authorisation, the film and television drama settings that were meant to be kept confidential, the confidentiality agreement can become the primary foundation for its breach of contract and bearing of legal liability.

Where a film or television drama possesses a distinctive title, tagline or mark, consideration can also be given to applying for a registered trademark in the classes of goods and services that may be pertinent. This is of even greater practical significance for series of film and television drama works.

In the event of unfair use, one may also opt to go the route of litigation through charges of unfair competition to obtain relief, claiming that the other party breached the good faith principle.

Blind following of the latest thing is without a doubt the ill that threatens the development of China’s film and television drama market. With a view to preventing excessive déja vu and encouraging creativity and originality, comprehensive legal protection should be afforded to film and television drama settings under the existing intellectual property law environment.

The film and television industry should also promote and call for the lawful creation of a self-regulation code for the industry to reduce the mess of identical film and television settings and works.

Wang Yadong is the executive partner and Zhang Jing is a senior lawyer at Run Ming Law Office