중국의 TV방송 프로그램 포맷 보호에 관한 고찰

Abstract

A broadcast format can be thought of as the framework, containing elements that distinguish it from other programs with fixity and identifiability, such as the program name, stage setting, and background music. There is some debate as to whether program formats can be legally protected under traditional copyright principles based on the idea-expression dichotomy. According to China's copyright law, for an intellectual product to be legally protected as a work, the following three conditions must be met: (1) the work must be an intellectual achievement in the field of literature, art, and science; (2) it must have originality; and (3) it must be expressible in a certain form. Given these principles, there are practical limitations to how broadcast program formats can be included in the category of copyrighted works to provide protection under the existing legal order. One way to overcome these limitations is to consider the approach method, which focuses on the substantial similarity of the two broadcast programs at issue. On the other hand, in the broadcast program market, subsequent programs created by copying and plagiarizing an existing successful broadcast format may constitute unfair imitation under the Unfair Competition Law and should be sanctioned under the law. If a format creator trades in format rights or attracts investment based on a format, it is an obvious commercial activity. Therefore, if a broadcast program format is in competition, it is reasonable for the format creator's behavior to be regulated by the Anti-Unfair Competition Law. However, there are certain limitations to the ability of the Unfair Competition Act to regulate infringement of broadcasting formats. In the future, as trade between Korea and China in the cultural content industry expands, it is expected that the number of broadcast program formats produced in China will increase as in the past. In light of this, the discussion on broadcast program formats in China and the study on how to legally protect the rights of authors is also relevant to Korea.