Kallakis & Co

As a follow-up to comment earlier this week regarding the Kallakis trial I note the assessment by Goymer J -

AIB and BoS have undoubtedly acted carelessly and imprudently by failing to make full inquiries before advancing the money. Indeed the latter bank was given clear and precise warnings by its lawyers about the risks of accepting assurances in a letter from an alleged co-conspirator, a Swiss lawyer. It almost beggars belief senior management chose to disregard that warning and rushed to complete the deal at all costs. It is apparent from the evidence both the defendants took full advantage of the prevailing banking culture in which corners are cut, and checks on them superficial and cursory ...

While I do not equate the position of the banks with that of car owner or householder who forgets to secure his house or car and becomes the victim of theft, the banks do bear some degree of responsibility for what happened.

I'm reminded  that it is 120 years since the 'Liberator' corporate collapse in the UK, another high profile incident involving large amounts of money, credulous people, real estate and claims of forgery.

A contemporary newspaper account of the aftermath reported that

A cable message published last week stated that Jabez Balfour had been released. The circumstance revives the memory of the Liberator frauds. The failure of the Liberator Permanent Building Society and its allied companies was one of the most calamitous events of the year 1893, involving, it was estimated, a total loss to the investing public of about seven millions sterling. The society was systematically brought under the notice of thrifty middle and working class people who had small sums to provide against a rainy day, and the collapse of the society brought ruin to a large number of homes, the income of many thousands of people of advanced age entirely disappearing. The title "Liberator" seems to have been chosen with a view to captivate Nonconformists; many ministers not only invested in it themselves, but also advised members of their flocks to place their savings in an institution which had regularly paid a dividend of 5 per cent. How this was done was explained at the public examination of the directors and officers, when it was explained that in 1887, when £101,000 was paid in the shape or dividends, there was a nominal balance at the bank of only £22,500, the society actually owing the bank £58,000. At this time a million and three-quarters of the members' money was advanced to the Lands Allotment Company, the Real Estates Company, and other concerns promoted by Balfour, the greater part of the money which went as dividends consisting of deposits from new members. In this way the society was kept going for a long time, and the public confidence remained unshaken. Mr Jabez Balfour, M.P. for Burnley, was chairman of the society, and the other directors stated that they had implicit confidence in him, and accepted his statements as to the position of the society without troubling to verify them. On the collapse of the companies and the disclosures at the public enquiry Balfour fled to the Argentine, but three prosecutions for forgery and fraud in connection 'with the society were brought, and the offenders were found guilty and sentenced to long terms of imprisonment. On Balfour's retreat being found in the course of 1894 the courts of the Argentine Republic were moved for his extradition, which was secured after many months' delay, and on October 28th, 1895, he was placed on trial with three other directors, convicted, and sentenced to fourteen years' penal servitude.

Balfour is profiled in David McKie's Jabez: The Rise and Fall of a Victorian Rogue (Atlantic, 2004).

The Serious Fraud Office media release regarding Kallakis and Williams states that -

The defendants, who operated out of a Mayfair office as the Pacific Group of Companies, conspired over a five-year period (2003-2008) to defraud Allied Irish Banks ("AIB") by using forged or false documents or claims in order to obtain substantial loans to finance the purchase of what was mostly a commercial property portfolio. The loans to enable Kallakis acquire the 16-property portfolio amounted to £740 million.

The transactions were structured in a way that the bank loans exceeded the purchase price of the properties. This was achieved by providing the bank with a guarantee from a Hong Kong company, Sun Hung Kai Properties Limited ("SHKP"), of long term payment of rents at top market rates, , to the landlord of the commercial properties. SHKP are a large, well established Hong Kong property company with a high credit rating and the guarantees therefore had the effect of increasing the value of the properties substantially. The rationale provided to the banks for SHKP's involvement was that a subsidiary company of SHKP would receive large cash payments called a reverse premium, which was factored into the value of the loans, and a share of the profits on the sale of the properties. However, the reality was that SHKP had not entered into any guarantees and had no knowledge of the transactions or the purported subsidiary companies that had entered into them. The SHKP documents provided by Kallakis and Williams to AIB were forgeries and the reverse premiums were channelled into the pockets of the fraudsters.

Kallakis and Williams were able to maintain the deception over five years through skilful forgeries and manipulation of the bank. When in 2007 the bank requested a meeting with a representative of SHKP, Kallakis and Williams set up a meeting at their Mayfair offices with an individual who presented himself as being from the SHKP Treasury Department. SHKP have no knowledge of this meeting or the individual who purported to represent them.

A similar false arrangement to mislead the bank were guarantees provided by Oregon Finance Corporation, represented by Kallakis to be a billion dollar ship-owning company belonging to the Kallakis family trust. This claim was based upon forged and/or false letters regarding the company's assets, bogus financial statements of the company and evidence of its shipping assets taken from the internet. Oregon Finance was later found in reality to have no assets but liabilities of millions of pounds.

The loans advanced by AIB represented £60 million in excess of the cost of the properties and was designed to feed into the bogus reverse premiums. However by August 2008, alarm bells rang at AIB when they learnt that Kallakis had a previous fraud conviction in the name of Stefanos Michalis Kollakis and had subsequently changed his name, and they contacted SHKP to discover that they knew nothing about the guarantees. ....

During 2007 and 2008, in another fraud following similar lines to the property loans fraud the Bank of Scotland agreed a loan of €29 million which was wanted, claimed Kallakis, for the conversion of a former passenger ferry into a super-yacht for his personal use. He provided the bank with a worthless guarantee from Oregon Finance Corporation, using accounting documents that were false and bearing forged attribution certificates. Kallakis and Williams also provided a number of forged documents to the bank as it sought to carry out checks on the family trust, including a death certificate of Kallakis's mother in which her surname had been altered to hide Kallakis's name change. The ferry upon which the loan had been secured turned out not only to have no value but instead was a significant net liability as a result of work that had been carried out which had now ceased leaving the vessel contaminated with asbestos and no longer water tight.

Fictions and Forgery

Recent identity incidents in court and VCAT.

In the UK the Guardian reports that "Britain's most successful serial confidence trickster" Achilleas Kallakis has been found guilty of tricking bankers into believing he was "a super-rich Mayfair property baron" as the basis for loans of £750m for property deals.

Kallakis (formerly Stephan Kollakis) and associate Alex Williams (formerly Martin Lewis) had moved on from business selling dodgy manorial titles to gullible people in Australians and the US (deals for which they pleaded guilty 18 years ago).

In 2009 the Guardian commented that Kallakis/Kollakis addmitted

selling "lordships" to Americans, Australians and Arabs for £85,000. Kollakis, who at the time worked for a travel company in Croydon, bought the titles from the Manorial Society of Great Britain, sub-divided them into districts and then offered them for sale via newspaper adverts. The scam claimed to be taking advantage an ancient process known as subinfeudation - splitting and increasing the number of titles. But the practice had in fact been banned in 1290.

A jury had heard how Kollakis and a co-conspirator used false names and passports as well as bogus companies, including a fake firm of solicitors, to set up the Institution of Heraldic Affairs. One of the phoney companies used a Latin motto which translates as "virtue is the way".

Various sources report that forgery in the 'lord of the manor' scam included forgery of Lord Denning's signature and that Kollakis was investigated over allegations he was selling fake Hong Kong passports for $50,000 each.

Having reinvented themselves, with the help of some forgery, they acquired prominent bank-finance real estate and rewarded themselves with the usual private yacht - apparently the vessel featured in Top Layers Interior Ltd v Azure Maritime Holdings SA [2007] EWHC 2844 (QB) - helicopter, jet and overseas holidays.

With loan financing often higher than the value of properties he targeted, Kallakis snapped up some of the most sought-after houses in Mayfair and Knightsbridge as well as landmark commercial properties such as Home Office buildings in Croydon and the Telegraph Media Group's headquarters in Victoria, acquired from the Barclay brothers.

But to keep up the sham, Kallakis and his inner circle had to work tirelessly, deploying actors, secretive offshore trusts, fictional backing from an overseas shipping empire and string of bogus references, to stay one step ahead of suspicion. 

Cursory checks would have guided the curious to entries in Debrett's or Marquis Who's Who, where readers can still see Kallakis listed as an "ambassador for the Republic of San Marino", author of The Wonders of Italy (1996) and a member of the development board of the National Portrait Gallery – all bogus claims. 

Kallakis and his helpers were able to conceal the truth for more than five years, wining and dining gullible bankers. The biggest victim of Kallakis had been AIB, which had advanced in excess of £700m and ultimately reported a £56m loss on the deals. A second count was tied to a loan from Bank of Scotland, now part of Lloyds Banking Group.

Other lenders who were taken in included Barclays, Bristol & West and GE Capital. HMRC was also duped. Tax officials conducted an inquiry into Kallakis's affairs in 2005, but was eventually satisfied that all the paperwork relating to his complex offshore empire appeared to be in order.

The Guardian reports that

At the heart of the Kallakis confidence trick were purported financial guarantees from a large Hong Kong investor. The only catch, banks were told, was that the guarantees would fall apart if the investor – Sun Hung Kai Properties (SHKP) – was contacted directly. 

This explanation was accepted by the bankers who were desperate to lend to Mayfair tycoons such as Kallakis. Years later, however, they were to learn the SHKP paperwork had been forged by Williams. Those who had sought to question the rationale for SHKP's guarantees were subjected to angry tirades of abuse.

It is unclear from the Guardian report why the 'don't contact us' paperwork was convincing. However, as they say in movies about preposterous scams, it just keeps getting better.

[T]here were some within AIB who had their doubts and it was not until the bankers started making arrangements to fly to Hong Kong and seek a meeting directly with SHKP that Kallakis agreed he would broker some contact. 

Jonathan Lee cut an impressive figure to the two men from AIB's property team in March 2007. A director in the treasury department from an Asian property giant – SHKP – he had agreed to stop off, on his way to Hong Kong from New York, for the brief meeting at Kallakis's Mayfair offices.

Lee impressed the two bankers although, in retrospect, they found it strange that he had no business cards. The SHKP man appeared to have a good knowledge of Kallakis's loans and asked informed questions. It was the comfort they craved. Any doubts about the financial guarantee's underpinning Kallakis's property empire had been well and truly put to bed.

As they later discovered, however, SHKP never employed a "Jonathan Lee". It did not even have a treasury department. It had never been involved in rental guarantees. And SHKP bosses AIB believed had signed the paperwork had never heard of Achilleas Kallakis. ….

AIB felt they had little reason to doubt Kallakis. They had been overwhelmed with bogus references from sources ranging from Credit Suisse to the economist Lord Harris of High Cross, all purporting to confirm the credentials of Kallakis. But in evidence Harris's widow said she knew nothing of the family friendship Kallakis claimed. 

In his defence, Kallakis expressed incredulity at evidence of forgery and clung desperately to claims that his connections to establishment figures were genuine. ... The undoing of Kallakis's scam came in 2008 when AIB had sought to sell on some of its loans to other banks to spread the risk. One of those it approached, the German bank Helaba, conducted some checks into the property tycoon's background and hired a private investigator who quickly began to peel back the fraudulent facade. They took their findings to horrified counterparts at AIB just as they were invited by Kallakis to his lavish 40th birthday party in Mykonos.

Less dramatically, the Canberra Times reports that Matthew Rixon has pleaded guilty in the ACT Magistrates Court to representing himself as a police officer and to public mischief. He had reportedly pretended to be an officer in an attempt to have his ex-girlfriend evicted from her home.

 According to a statement of facts tendered in court, the charges relate to a string of phone calls Rixon made to his ex-girlfriend’s rental property manager and police after their six-month relationship turned sour in June last year. 

The 28-year-old, pretending to be a NSW detective even though he had never been a sworn officer, rang the real estate agent and told him the residents of the southside property were under surveillance for cooking drugs. 

Rixon told the agent that a raid was imminent. 

Later that day, the defendant called the property manager a second time and said he wanted the tenants evicted so they would be “flushed” to NSW and arrested. The real estate agent became suspicious and played along with Rixon’s demands in subsequent phone conversations. 

Police investigations found there was no NSW officer by the name given by Rixon. Rixon also admitted to public mischief when he called police to the women’s home by [falsely] reporting a domestic disturbance.

In tying up loose ends territory Psychology Board of Australia v Milosevic (Occupational and Business Regulation) [2013] VCAT 12 - a referral by the Psychology Board of Australia pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (Vic) Act 2009 - has seen cancellation of Dusan Milosevic's registration as a psychologist.

VCAT notes that Milosevic, whose conviction for criminal offences was noted in 2011 here, had been charged with 2 counts of using a false document (Graduate Diploma and Masters Degree) in order to obtain registration on 15 April 1998 as a psychologist in Victoria.

A criminal trial was conducted in the period of 15 August 2011 to 22 August 2011 in the County Court of Victoria. 

Mr Milosevic was convicted on each count. 

On 24 August 2011, the Board was notified of these convictions (and 29 other convictions arising from the same proceedings for “Obtain Property by Deception” and a further for “Obtain Financial Advantage by Deception”). 

On 29 September 2011 Mr Milosevic was sentenced to a lengthy period of imprisonment and ordered to pay compensation to Worksafe Victoria and to the Transport Accident Commission.

That's Entertainment?

That's entertainment, folks, and not commerce?

The Federal Trade Commission has announced that a enterprise compiling and selling criminal record reports - accessed on mobile devices - has agreed to settle charges that it operated as a consumer reporting agency without taking consumer protection measures required by the Fair Credit Reporting Act (FCRA).

 The FTC’s settlement order, which prohibits the respondents from future FCRA violations, resolves the agency’s first FCRA case involving mobile apps. 

According to an administrative complaint filed by the FTC, Filiquarian Publishing LLC, Choice Level LLC, and their CEO, Joshua Linsk, failed to ensure that the information they sold was accurate and would be used only for legally permissible purposes. The FTC also alleged that they failed to tell users of their criminal record reports about their obligations under the FCRA, including the requirement to notify consumers if an adverse action was taken against them based on a report. 

According to the FTC, Filiquarian claimed consumers could use its mobile apps to access hundreds of thousands of criminal records and conduct searches on potential employees. One app stated, “Are you hiring somebody and wanting to quickly find out if they have a record? Then Texas Criminal Record Search is the perfect application for you.” Consumers who paid 99 cents to download one of its apps from iTunes or the Google Android store (now GooglePlay) could conduct an unlimited number of searches for criminal records within a particular state or county. Choice Level provided the criminal records to Filiquarian that were accessed via Filiquarian’s mobile apps. 

As alleged in the complaint, both companies used disclaimers stating that they were not FCRA compliant; that their products were not to be considered screening products for employment, insurance, and credit screening; and that anyone who used their reports for such purposes assumed sole responsibility for FCRA compliance. According to the FTC’s complaint, these disclaimers are not enough to avoid liability under the FCRA because the company advertised and expected that its reports could be used for employment purposes. 

The settlement order bars the respondents from furnishing a consumer report to anyone they do not have reason to believe has a “permissible purpose” to use the report, failing to take reasonable steps to ensure the maximum possible accuracy of the information conveyed in its reports, and failing to provide users of its reports with information about their obligations under the FCRA.

Perpetual Motion again

Micheal (aka Michael) Peter Nugent and Cycclone Magnetic Engines - his now deregistered company - have reportedly been served with a court order to pay around $300,000 costs to the Australian Securities and Investments Commission (ASIC) over action by the corporate regulator in the Queensland Supreme Court regarding a "fuel-free" magnetic engine.

The court found that Cycclone falsely claimed shares in the company were an investment in proven technology, and that Nugent and Cycclone had presented a misleading business plan. ASIC gained injunctions stopping Cycclone from engaging in misleading or deceptive conduct by claiming the engine worked. Cycclone was also stopped from claiming that its shares would be an investment in proven technology. The Queensland Court of Appeal confirmed in 2010 that Nugent was guilty of misleading and deceptive conduct over the Cycclone Magnetic Engine, holding that the magnetic engine did not and could not work.

Nugent is apparently unabashed and is reportedly promoting another company with similarly 'innovative' technology. He's had issues with unhappy investors and regulators prior to claims about the engine.

In Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc & Ors [2009] QSC 58 ASIC argued that the defendants in seeking funds had referred to an invention centred on "using permanent magnets in a configuration that supplies mechanical power on demand". The defendants made representations that the invention works. ASIC argued that the representations were misleading or deceptive (or likely to mislead or deceive) because neither the Invention nor the Prototype (a) is scientifically feasible,(b) can move under its own power, or (c) can be a source of power. No great surprises there, either for people with a basic understanding of mechanics or an interest in the history of people promoting perpetual motion devices. ASIC further argued that the representations were likely to mislead a reasonable person into the assumption that, by acquiring shares in Cycclone, the person was investing in a proven technology, that shares in Cycclone were of a particular quality (ie an investment in a proven technology).

The court noted that Cycclone "has no (and has not applied for any) patents relating to the engine", which supposedly

works wholly and solely with the attraction repulsion of permanent magnets. The objective of it is to produce an engine that doesn't require external input, either electrical or fuel. It's so that the engine runs purely on the attraction and repulsion of permanent magnets. In its geometric configuration that does not try to challenge perpetual motion but to use mechanical advantage.

The court endorsed an expert's assessment that creation of an engine based on permanent magnets to supply mechanical power on demand, without the need of external fuel input, "could not be supported scientifically and that the development of an engine of this type was not scientifically feasible".

The Court placed that in context with the comment that

For hundreds of years people have been investing time, money and effort in attempts to create a perpetual motion machine. Even though such a machine would violate either or both of the first and second laws of thermodynamics, there has been a continual stream of these “inventions” since at least the twelfth century. Coincident with that has been the quest by the “inventors” for funding to support their creations. There are many examples of funds being raised to sustain these endeavours. There have also been many who have been willing to point out the impossibility of these attempts, sometimes with scathing condescension. On other occasions the would-be inventor is met with bureaucratic intolerance.

One of the ways in which it has been claimed that a machine can be created, which will require no external fuel input, is through the applied use of very strong magnets. That is the case here. In England the subject was studied during the reign of Queen Elizabeth, with a text on the properties of magnets being published in 1600. Bishop John Wilkins, in his book Mathematical Magick,[5] discusses the ”difficulty” of achieving perpetual motion, and considers in detail a device consisting of two tilted ramps, an iron ball, and a magnetic lodestone fastened at the top. He determined that the device could not work but concluded: “So that none of all these magnetical experiments which have been as yet discovered, are sufficient for the effecting of a perpetual motion, though these kind of qualities seem most conducible unto it; and perhaps, hereafter, it may be contrived from them.” The interaction among magnets, electricity and the generation of power has been investigated by giants of the field: Coulomb, Ampere, Faraday and Tesla.

In this case, the applicant (‘ASIC’) says that the respondents have, in promoting a machine said to run solely on the power of magnets, engaged in misleading and deceptive conduct and have otherwise breached legislative provisions regulating fund raising by corporations. That simple description might lead one to the quick conclusion that the promotion of a “perpetual motion” machine must fall into the ‘misleading and deceptive’ basket, but looks can be deceptive in more than one way and the statutory remedies are not to be employed without careful scrutiny of what a promoter actually says and does.

The provisions of the Corporations Act 2001  which deal with misleading and deceptive conduct are not designed as a complete shield to protect individuals against their own avarice or cupidity. Just as people will continue to play games of chance in casinos (knowing that the odds are in favour of the house) or buy tickets in lotteries (knowing that the chance of winning is one in many millions) so people will continue to chance their money in investments which, to others, appear far too risky. They sometimes adopt the attitude of one of the deponents whose affidavit was relied upon by ASIC – they see the investment as a bit of a gamble.

 The Court of Appeal in Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc & Ors [2010] QCA 71 agreed that there was a difference between risk and misrepresentation, dismissing the appeal by Nugent and Cycclone.

Norway

'The Norwegian Data Inspectorate: Between Governance and Resistance' by Kjersti Lohne in 10(2) Surveillance & Society (2012) 182-197 argues that

 The growing impact of information and communication technologies has resulted in the establishment of data protection authorities across Europe. Despite the role of these bodies as enforcers of privacy and data protection legislation, Surveillance Studies has so far offered little attention to their role in resistance. Based on a critical socio-legal examination of the Norwegian Data Inspectorate, the focus of this article is on the role of data protection authorities in resisting surveillance and threats to privacy and data protection. More specifically, the article asks what power the Norwegian Data Inspectorate has to achieve genuine resistance, and how its institutional structure affects this capability. Through a three-pronged analysis consisting of (i) institutional mapping, (ii) a typology of resistance strategies, and (iii) a review of its role in the Norwegian public debate on the EU Data Retention Directive, the article addresses the fundamental tension inherent in the Norwegian Data Inspectorate as a privacy-advocating ombudsman and an administrative body. As such, the research shows how, and to what extent, its institutional structure both strengthens and limits its possibilities for resistance. 

Lohne comments that

Taking a predominantly normative stance, scholars in Surveillance Studies direct their attention towards the legitimate need to resist surveillance, while less academic scrutiny focuses on describing how contemporary resistance is enacted. Important exceptions include Bennett (2008), Martin et al. (2009), Marx (2009), and Introna and Gibbons (2009). While their work makes a substantial contribution to a conceptualization of resistance within Surveillance Studies, in particular by drawing attention to the significance of privacy advocates, the way administrative bodies such as data protection authorities resist surveillance has remained strangely exempt from analysis, with the exception of David H. Flaherty’s seminal study from 1989. It may be, as suggested by Introna and Gibbons (2009, 238), that such bodies are ‘often seen as too close to government to be an effective mechanism of resistance’, or, that their presence causes ‘a false sense of security’ and in consequence legitimates the development of surveillance societies (Flaherty 1989, 11). Another explanation may be found in a particular methodological bias: in the case of scholars inclined to think ‘critically’ about state power, especially with regard to surveillance issues, a generally positive attitude towards the work of data protection authorities may lead to a preference for objects of study more readily––and justifiably––subject to criticism. However, while these suggestions help explain the lack of attention towards the role of data protection authorities, they also express the inherent duality of these bodies: although independent, data protection authorities are state actors yet at the same time, critics of state practices (Flaherty 1989).

Since its establishment in 1980, the NDI has played a significant role in the Norwegian discourses on privacy, data protection and surveillance. Alongside its supervisory responsibilities as a state administrative body, the NDI’s mandate is to act as an ombudsman for the interests of privacy and data protection. Although there has been some dissatisfaction with such a broad mandate, this particular institutional arrangement also provides the NDI with considerable access to the public discourse. Besides numerous consultative statements requested by state authorities on issues of privacy and data protection, its expertise and opinion is called for and disseminated through various public appearances by its representatives in the media, seminars and debates. Throughout the past decades, there has been a steady increase of administrative supervision in Norway as elsewhere. Whether the growth represents an increase in de facto supervisory activities, or results from general developments in government administration such as the expansion of administrative law in tandem with the prevailing juridification of society, remains questionable (Stub 2010).4 Through a mapping of the NDI’s development from 2000 – 2010, this article sheds light on some additional aspects of this discussion by inquiring into the nature of the NDI’s growth. How data protection authorities interpret and perform their tasks and responsibilities necessitates critical reflection. Does the NDI’s institutional development mirror its role as a privacy-advocating ombudsman, or that of an administrative supervisory body? The research strategy has involved a review of core regulatory and official reports, consultative statements and annual reports from the NDI in the years 2000 – 2010. As official sources, these documents possess methodological credibility and validity; but they are also normative and performative remnants, requiring a critical distance in their analysis (Kjeldstadli 1999). To this end, the research has included an analysis of  a semi-structured interview with the NDI’s former director Georg Apenes, as well as of seminars, debates and media reports on privacy issues, particularly concerning the EU Data Retention Directive.

The article proceeds in three parts. The first section presents the NDI as an institution and a state administrative body, addressing the parameters of its mandate, size and responsibilities. Providing the empirical background for the succeeding analysis, the mapping is also a reflection of how the trajectory of security thinking and ICT has altered the landscape of privacy and data protection since the beginning of the 21st century. Part two probes into the NDI’s practices of governance and resistance. It builds on a fourfold typology developed by Keck and Sikkink (1998) to describe the tactics employed by transnational advocacy networks: information politics, leverage politics, accountability politics and symbolic politics, which Bennett (2008) has adapted and applied to the study of privacy advocates. This juxtaposition will shed light on whether, and to what extent, the NDI’s practices resemble those of privacy advocates, and hence, how the NDI manages its twofold role in resisting surveillance and threats to privacy and data protection. The latter is also the subject of the third and final part, where a delineation of the NDI’s role in the high-profile debate on the EU Data Retention Directive illustrates the inherent tension stemming from the NDI’s institutional twofold role.

Indigenous Legal Needs, Death and Traditional Law

Reading the sobering 188 page Indigenous Legal Needs Project: Northern Territory Report (2012) by Fiona Allison, Chris Cunneen, Melanie Schwartz and Larissa Behrendt. The report [PDF] presents key findings and recommendations based on research conducted in 2011 by the Indigenous Legal Needs Project (ILNP) in the Northern Territory (NT).

The ILNP involves identification and analysis the legal needs of Indigenous communities in non-criminal areas of law (including discrimination, housing and tenancy, child protection, employment, credit and debt, wills and estates, and consumer-related matters) and an understanding of how legal service delivery might work more effectively to address identified civil and family law needs of Indigenous communities.

The report is based on focus groups (149 Indigenous community members in Darwin, Wadeye, Katherine, Bulman, Tennant Creek, Alice Springs, Papunya and Alpurrurulam) and 60 interviews with legal and related stakeholders.

The authors comment that

identified issues generally followed those used in other large scale legal needs projects ... with additional questions relating to specific Indigenous concerns (for example, stolen generations, stolen wages, Basics Card). Some matters such as police complaints, native title or intellectual property were omitted from the questionnaire for practical reasons, in particular due to the size of the document and the time it takes to complete. Consistent with other civil law needs analyses, family and domestic violence was treated as a criminal matter rather than civil law. Some civil law issues not identified in the questionnaire arose in focus group discussions and in stakeholder interviews.

They go on to state that

In determining the priority areas for non-criminal law matters for Indigenous people in the NT, we have considered the responses of focus group participants in both questionnaires and discussion and the views of stakeholders and organisations delivering services to the focus sites. We also note that some areas of legal need such as child protection have such serious consequences (loss of children) that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem, the associated consequences and the views of stakeholders also influence our determination of priority areas. We also note some areas of legal need are influenced by gender. It should be noted that we do not assess whether there is an effective legal remedy available for the areas of legal need which have been identified.

There were two areas of law raised in the focus group questionnaire in which more than 25% of all participants indicated that they had experienced a legal problem in the last two years. These were:

• housing (54.1%)

• neighbourhood disputes (27%).

On the basis of focus group participant responses, we identify housing as a priority area. Issues involving neighbourhood disputes were particularly seen as a priority area of concern by Indigenous women.

There were a further four areas of law that were identified by more than 18% of respondents has having caused them some problem in the same time frame. They were:

• discrimination (22.6%)

• accident and injury (22.3%)

• employment (19.6%)

• credit and debt issues (18.4%).

We note further below the importance of discrimination and credit and debt as priority areas from the above list.

In relation to social security, 73.2% of all focus group participants were in receipt of Centrelink payments and of these 29.1% identified a potential legal problem. We identify social security as a priority area because of the significant proportion of people who are dependent on Centrelink payments, the majority of whom are also subject to Income Management.

In relation to family matters between 6.8% and 12.2% of participants identified problems with child contact etc., or child protection matters. We view child protection in particular as a priority area: legal needs relating to child protection have such serious consequences that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem and consequences also influence our view that it is a priority area, particularly, also because of the identified lack of legal assistance to parents. We also note that focus group participants identified this area as a priority in discussion, even though they may not have identified family law as an issue that they personally were dealing with.

Credit and debt, and consumer issues are also considered a priority. Overall, 18.4% of focus group participants said that they had had legal action threatened against them in the last two years for failure to pay a bill or repay a loan. Difficulty in repaying loans was the most prevalent credit and debt issue identified by focus group participants. Consumer issues were identified by stakeholders in particular as an area of unmet legal need. It is difficult to distinguish consumer issues from credit and debt because of the intertwined nature of these areas in the experiences recounted. On the basis of both participant responses to issues relating to debt and loan repayments as well as the stakeholder information relating to consumer issues we identify these areas as a priority.

Discrimination emerged as a priority issue in both focus groups and stakeholder interviews conducted in the NT. Overall, nearly a quarter of all focus group participants (22.6%) identified having experienced discrimination. There is a level of acceptance in relation to discrimination, a lack of knowledge about rights, and difficulties in ‘naming’ an incident as discrimination, potentially leading to under-reporting of this issue. Because discrimination impacts on all areas of social life from health services, to housing, to employment, to education, and because there appears to be a large unmet legal need in this area, we regard it as a priority legal need.

We raise the potential for considering wills and estates as a possible priority area because of unmet legal need: very few Aboriginal people have wills and many people indicate a desire to have assistance to complete a will.

Another way of considering priority legal areas in civil and family law is by gender. In many of the legal issues discussed in this Report there were pronounced gender differences both in the identification of issues and in the likelihood of seeking legal advice or assistance. In relation to housing, neighbourhood disputes and social security, Aboriginal women were more likely to identify an issue or problem but much less likely than men to seek assistance. The issue was particularly pronounced in relation to neighbourhood disputes and social security (women were half as likely as men to seek advice in relation to neighbourhood disputes, and four times less likely than men in relation to social security).

In relation to victim’s compensation, employment, family law and child protection, and credit and debt, Aboriginal men were less likely than women to seek assistance. The issue was particularly pronounced in relation to victim’s compensation and credit and debt (men were four times less likely as women to seek victim’s compensation, and nearly five times less likely than women to seek advice in relation to credit and debt).

Last year's NZ Supreme Court judgment in Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 deals with traditional law and disposal of a body. 

Tipping, McGrath and Blanchard JJ state 

[165] In the present case Ms Clarke is the executrix of the late Mr Takamore. She had power under the common law rule to determine how and where he was to be buried which she was required to exercise once she was apprised of the views of the deceased’s sister and Bay of Plenty family. She discussed with them their preferences and the tikanga underlying them. Ms Clarke did not acquiesce in the wishes of whanau who took the body to Kutarere. In believing there was such acquiescence, the whanau were mistaken. Accordingly, what the whanau did was in accordance with tikanga but the act of taking and interring the body was not authorised by Ms Clarke, who at all times had legal power to determine how and where the body was to go. 

[166] It is the Court’s responsibility now to consider all the circumstances in light of the applicable common law. They include, first, the fact that Mr Takamore made his life in Christchurch with his partner and their children, living there with them for over 20 years until his death in 2007 at the age of 55 years. Their urban life means that, following Mr Takamore’s death, his partner and now adult children have little relationship with Kutarere. Secondly, Kutarere is the place of central importance to Mr Takamore’s Māori family and their custom. Thirdly, different views were expressed in the High Court as to Mr Takamore’s own wishes. The evidence was that burial in Christchurch was in accord with what Mr Takamore told friends there but not what he gave his mother to believe his intention was. Fourthly, and importantly, burial in Christchurch is in accord with the wishes of Ms Clarke and the children of Mr Takamore, who are adult. Finally, Mr Takamore is now buried in Kutarere but that factor carries little weight in this case because Ms Clarke, as the person with power to decide at law, did not agree or acquiesce in that course that led to his burial there. 

[167] Where two families from separate localities are in dispute over the appropriate place for interment of a deceased, and the issue is brought before the Court, the common law requires the Court to examine the nature and closeness of the relationship of the deceased with each family and each location at the time of death. The sensitivities of family and others close to the deceased are relevant along with the familial feelings of cultural, religious or other circumstances that underlie them. 

[168] Consideration must also be given to the wishes expressed by the deceased as the law has moved on from its early rejection of the significance of this factor. Often, however, as here, the true wishes of a deceased may be debatable, particularly if the deceased has said different things at different times to different people. A court may of course need to consider the possibility that something was said out of a desire to please the person to whom the deceased was speaking. In this case, however, we do not find it necessary to resolve the question of Mr Takamore’s wishes as to where he was buried. 

[169] This is a case where there are deeply held views that are in conflict. But when all relevant matters are assessed, it is Mr Takamore’s life choices, in relation to living in Christchurch with his partner and now adult children, that carry greatest weight and, ultimately, are determinative. The decision taken by Ms Clarke that Mr Takamore should be buried in Christchurch reflects her own views and those of her children. For these reasons, it was an appropriate decision. We would uphold it. It goes without saying that if Ms Clarke adheres to her decision and Mr Takamore’s body is to be disinterred, this should be done in a manner which, as far as possible, respects the sensitivities of his Kutarere family and relevant Tūhoe custom. 

Elias CJ in dissent states 

[1] There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency (considerations which underlie the provisions of the Burial and Cremation Act 1964). The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family. 

[2] In most cases, decisions as to interment or other disposal of human remains are taken by the immediate family of the deceased. Any disagreements between family members are either resolved or overtaken by the disposal achieved in result by those who carry the day. Those who prevail in fact may do so for a number of reasons: perhaps because they are deferred to on the basis of social or cultural ideas as to what is fitting (as is common in respect of the wishes of the spouse); perhaps because of their personal standing or the strength of their personalities; perhaps because they can invoke the deceased’s own wishes in support of their position; or perhaps because they can invoke the authority of cultural or religious tradition to which the deceased or the family belongs. Such outcome may entail the wishes of some family members being overborne. They may remain deeply unhappy and unreconciled to the result. Although in the present case cross-cultural issues have exacerbated the differences between family members of the deceased, it should be recognised that deep differences as to the disposal of the dead arise without any such cross-cultural dimension. 

[3] The appeal concerns a claim to the High Court by Denise Clarke for orders for the recovery by her of the body of her long-term partner, James Takamore. He was buried without her consent by members of his Whakatohea and Tuhoe family in a family urupa at Kutarere in the Bay of Plenty in accordance with the tikanga observed by their hapu. Ms Clarke and the two adult children of her relationship with Mr Takamore wish to have his body buried in Christchurch, where the family has lived for the last 20 years. Ms Clarke, who was appointed executor by Mr Takamore in his will, was successful in the High Court and on appeal to the Court of Appeal in her claim to be entitled as executor to determine where Mr Takamore is buried, although questions of remedy remain reserved in the High Court. Josephine Takamore, the sister of the deceased, appeals to this Court. 

[4] It is accepted by the parties that entitlement to bury someone who has died is not prescribed by any enactment and that the claims fall to be decided according to the common law of New Zealand. The appellant and two other family members who do not appeal (Mr Takamore’s mother and brother) opposed Ms Clarke’s application to the High Court on the basis that New Zealand law does not recognise an exclusive right of an executor to determine disposition of the body when the deceased is Tuhoe. In such circumstances, it is said that the common law gives effect to Tuhoe custom or tikanga. By it, the question of disposal is determined by the whanau pani (the wider bereaved family) according to cultural values and practices. Those values and practices take into account the views of the wife and children (who participate as members of the whanau pani) but have a strong preference, based on the importance of whakapapa, for the return of a deceased to the hapu to be buried with those linked to him by whakapapa. 

[5] Since Mr Takamore was buried in the urupa in accordance with the Tuhoe tikanga observed by his hapu, the appellant contends that the executor has no possessory right to his body for reburial, although she acknowledges the executor has standing to make application to the Court for reinterment of the deceased if proper grounds are made out. She says there is no proper basis in the present case to interfere with the burial of Mr Takamore. 

[6] Ms Clarke, for her part, maintains that under New Zealand law she has the right as executor to possession and disposal of Mr Takamore’s body, as was recognised in the lower Courts. She acknowledges that her discretion as executor is in the nature of a trust and subject to the supervisory jurisdiction of the High Court for abuse of power or unreasonableness, conditions which she says are not made out here. 

[7] For the reasons that follow, I am of the view that neither opposing position taken by the parties is correct in law. In circumstances where there is dispute as to burial, either party has standing to bring the dispute to the High Court for resolution. Their claims are of competing right which fall to be resolved according to law by the High Court in its inherent jurisdiction. 

[8] The executor does not have the exclusive discretion to determine how the body is to be reburied or otherwise disposed of. Rather, Ms Clarke both as executor and as Mr Takamore’s partner has standing to seek from the Court the right to disinter his body for reburial. On such application, her views as executor will be highly influential and may well be accepted by the Court in result. [9] Nor is it correct, as the appellant maintains, that because of the deceased’s whakapapa the decision as to his burial lies with the whanau pani or the hapu to which it belongs, if their claims are challenged by others with standing to seek the determination of the Court (as Ms Clarke has both as executor and as Mr Takamore’s partner). As is the case with the executor, those representing the whanau pani and seeking to maintain the burial already undertaken have standing to oppose Ms Clarke’s application for exhumation and reinterment. Claims based on whakapapa and the tikanga observed by the hapu of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case. But the claim itself, like the claim of the executor, does not give rise to a possessory right in law against competing interests without Court resolution. 

[10] Claims in relation to burial have been extremely rare in New Zealand. In other common law jurisdictions there are reported decisions concerning disputed claims to the right to bury, including some with cross-cultural dimensions comparable to those arising in the present case. Although, as is discussed in what follows, there are statements in some cases that executors (or, in the absence of an executor, those entitled on intestacy to administration) have the right in law to determine questions of burial or other disposal, I conclude that there is no hierarchy of rights to possession of the body and its disposition. The responsibility to decide as to the disposal of the body where there is dispute is inescapably that of the Court on application made to it. In discharging its responsibility, the Court may choose to defer to one of the claimants. Alternatively, it may give specific directions. 

[11] When the jurisdiction of the Court is invoked in such disputes, the cases are uncomfortable not only because they usually involve deeply held differences between close family members, all of whom may sincerely believe that they are fulfilling a duty or otherwise doing the right thing by the deceased or the wider family. As importantly, the values behind the different positions may be very difficult for the Court to balance in reaching a fair and just result if they are taken from registers which are not commensurable. That will often be the case if the differences of view arise out of distinct religious or cultural value systems. A courtimposed result in such circumstances may not convince the disappointed party or indeed be universally convincing in its own terms. Although the position of a court asked to resolve such differences is not a comfortable one, there is nothing particularly unusual in that. Courts not infrequently have to decide between positions that are not readily comparable. 

[12] For the reasons given below, I have come to the conclusion that the claim for reinterment put forward by Ms Clarke and her children is to be preferred in all the circumstances. This is not because, as executor, Ms Clarke has the right to decide and her views must prevail as a matter of law except where shown to be unreasonable or improper, as was argued on her behalf. It is not because the tikanga by which Mr Takamore has been buried cannot be recognised in law because inconsistent with fundamental values of the common law (as Fogarty J in the High Court[ and the majority in the Court of Appeal[ thought to be the case, although on different grounds). Cultural identification is an aspect of human dignity and always an important consideration where it is raised, as are the preferences and practices which come with such identification, as s 20 of the New Zealand Bill of Rights Act 1990 affirms. In the case of indigenous people, the preference for repatriation of the dead is recognised by the Declaration of the Rights of Indigenous Peoples as a matter of great moment. Nor is the result I reach because the wishes of the deceased are clear and to be preferred over interment in accordance with his Tuhoe heritage (as Fogarty J in the High Court and Chambers J in the Court of Appeal thought to be the case but, as I think in agreement with the majority in the Court of Appeal, wrongly). Rather, weighing up the different and valid claims of the parties as best I can, I have concluded that Ms Clarke and her children should in the circumstances of the case be left to decide where Mr Takamore is to be buried. 

IP and TV Show Formats

'The Fashion of TV Show Formats' by Stefan Bechtold argues that

 Over the last years, a vibrant global market for TV show formats has developed. New game show, casting, soap, telenovela, documentary and other formats are sold to broadcasting stations in dozens of countries, leading to a worldwide multi-billion dollar industry. As an analysis of U.S. and European intellectual property law demonstrates, TV show formats are difficult to protect by intellectual property rights. Standard theory would predict that in the absence of intellectual property protection, the TV show format industry has insufficient incentives to invest in creative innovation. This article presents a novel theory to explain why the TV show format market is thriving despite a low level of format protection. On the supply side of the industry, demand for TV formats is hard to predict, return on them is highly skewed, and market participants are both developing original formats and imitating others’ formats. On the demand side, TV formats are experience goods, and TV viewers sometimes prefer familiar products. As a result, the TV show format market is subject to herding effects on both sides of the market. The interaction of supply-side and demand-side herding leads to fashion cycles in TV show formats. The TV show format industry uses the limited protection against format imitation, but has adapted to the fashion cycle. This article tells the story of how an industry has developed institutions enabling it to cope with uncertain demand and unpredictable profitability, while benefiting from limited appropriability of innovation and from the fashion cycles which underlie the innovative process.

After noting that neither trade dress nor patent law protects against imitating published TV formats, Bechtold considers copyright and unfair competition law.

In the United States, copyright law grants protection to “original works of authorship fixed in any tangible medium of expression.” While the potential media of expression are very broad, it is a guiding principle of U.S. – and, in fact, international – copyright law that copyright cannot subsist in ideas, facts, procedures, or concepts. As a result, and in contrast to patent law, copyright grants exclusive rights in the expression of a protected work, while its theme, plot, and ideas may be freely borrowed. As a result of the idea/expression dichotomy, the idea of running a cooking show is not copyrightable, while the expression of that idea in a particular show may be subject to copyright protection.

The idea/expression dichotomy is at the heart of the debate on whether TV show formats are copyrightable. And it is at this stage that many copyright claims against TV format imitation fail. A copyright infringement occurs if the plaintiff can prove that he owns a valid copyright in a work and that the alleged infringer copied protected elements of that work, making the plaintiff’s and the infringer’s works “substantially similar.” This requires that the infringer has misappropriated protectable expression. If the infringer has only built upon the idea of the plaintiff’s work, the copyright in that work has not been infringed. Even if a court finds that a TV format has copied copyrightable elements from another format, it also has to find both formats to be “substantially similar.”

In addition to the idea/expression dichotomy, other copyright doctrines contribute to the difficulty of protecting TV show formats. Under the scènes à faire doctrine, courts will withhold copyright protection if an expression embodied in a work necessarily flows from a commonplace idea, so that the unprotectable idea preordains the expression. Under the related  merger doctrine, courts will not hold that a work’s original expression is copyrightable if the underlying idea can effectively be expressed in only one way.78 In such cases, the expression and its underlying idea are indistinguishable, and the merged item is not eligible for copyright protection.

Even though the scènes à faire and merger doctrines severely limit the possibility of protecting TV show formats by copyright law,  they can still be protected as a compilation under Section 103 of the Copyright Act.  In fact, the value of a TV format often stems from an interesting combination and symbiosis of various elements.  A collection of preexisting materials or data arranged in a particular way can be copyrightable.  Although facts or ideas cannot be protected by copyright, their compilation may be if the selection, coordination, and arrangement process exhibits a sufficient level of originality.  While it is not unthinkable that a TV format might contain an arrangement of elements that can be protected as a compilation, a typical format which includes the plot, theme, characters, and similar items will simply be a collection of unprotectable ideas.

In general, copyright law is not very sympathetic to granting protection to TV show formats. This becomes apparent when analyzing the case law on published TV formats. In general, courts have been unwilling to grant copyright protection to TV formats. Most claims are dismissed, or settled out of court. When Fox Family, producer of Race Around the World, filed a copyright infringement suit against CBS’s production of The Amazing Race in 2000, the injunction was denied without discussing the copyright claim, and the case was voluntarily dismissed. When, shortly thereafter, CBS sued Fox over an alleged similarity between Survivor (CBS) and Boot Camp (Fox), the case was also dismissed and settled in a confidential settlement agreement.

But even when litigation continues, courts are leaning away from copyright protection of TV formats. In 2003, CBS sought a preliminary injunction against the broadcasting of I’m a Celebrity … Get Me Out of Here! by rival station ABC because of alleged similarities to Survivor, which had been a big success for CBS. Judge Loretta Preska of the U.S. District Court for the Southern District of New York declined to grant the injunction. In an opinion delivered from the bench, Judge Preska found no substantial similarity between copyrightable elements of both formats. She noted that both shows “combined standard, unprotectable elements of reality shows, game shows and other television genres, and used them separately to create the programs.”

She also declined to grant protection to the Survivor format as a compilation, holding that the format consisted of a combination of unprotectable generic ideas. Recognizing that it is very hard to protect TV formats by copyright law, format developers and producers in the U.S. have turned their attention to unfair competition law. Setting aside confusion-based doctrines, which seldom prove helpful, common-law misappropriation torts are of only limited assistance, as they are severely limited by the preemption doctrine and by federal copyright law. Things look more favorable for plaintiffs if the case involves alleged breach of confidence. The litigation over Wipeout and The Glass House included, in each case, allegations that the format imitator hired productions staff from the original format developer in order to benefit from their experience and, potentially, confidential information. Such allegations can be very effective, even if they are only used as a threat in settlement negotiations.

Breach of confidence claims do not help the original format developer in a pure case of published TV format imitation. In practice, in many disputes over published TV format imitation, format imitators do not only observe the format characteristics on TV, but also lure away former staff from the original format developer. The industry has increasingly realized that, given the low protection U.S. intellectual property law affords published TV show formats, breach of confidence claims can be an important weapon against TV format imitation. Apart from employment relationships giving rise to breach of confidence theories, however, U.S. intellectual property law provides TV formats with very limited protection against imitation.

Under European intellectual property law, the situation is somewhat similar, although slightly more heterogeneous. As in the United States, whether European copyright law protects a TV format against imitation depends on whether the format is a copyrightable subject matter and whether substantial copying of copyrightable elements occurred between two formats. While the European Union has increasingly harmonized copyright laws across EU member states over the last 25 years, the European acquis communitaire does not cover all areas of copyright law. One of the areas of European copyright law which has not been harmonized by the legislator  is the required standard of originality. While some European copyright directives have created standards of originality for particular work categories, outside their reach European copyright law fluctuates between an originality standard based on the “author’s own intellectual creation” (originally stemming from Continental European copyright systems) and a weakened “sweat of the brow” approach (originally stemming from the United Kingdom).

In recent years, the Court of Justice of the European Union has initiated an increasing harmonization of the standard of originality. Starting with a decision in 2009, the court has held on several occasions that a work must express “the author’s own intellectual creation” in order to be eligible for copyright protection.

The next few years will show what the relationship between this standard and the British approach really is. As no case law on TV show formats at the EU level exists and as, according to the Court of Justice of the European Union, it is still up to the national courts to determine whether a particular work fulfills the standard of originality, the article will now turn to the TV show format case law of the EU member states.

Germany has developed the most elaborate case law in Europe in this regard. In Germany, a rich academic literature on television-show formats has been developing over the last 20 years, and at least 15 court decisions have dealt with the protection of TV show formats. German courts usually decline to grant copyright protection against TV format imitation. The leading case involved an alleged imitation of a French TV show by a German TV station and was decided by the highest German court in civil matters (the Bundesgerichtshof) in 2003. In the French weekly show L’école des fans, which was initially broadcast from 1977 to 2002, children aged between four and six sang a song by a featured celebrity singer and received a grade for their performance. The celebrity was present in the show and sometimes sang the song along with the child.

In 1993, the German TV station broadcast a German version of the show which continued until 2006. The French company sued for copyright violation, arguing that the German show had copied the sequence of the show, the camera work, the dramaturgy, and the positioning of the candidates from the French version. The German court ruled in favor of the defendant. It held that the French show format was not a copyrightable work protected under German copyright law. While the court acknowledged that putting together the elements of the show format might represent some creative achievement, it held that a mere set of instructions on arranging elements was not subject to copyright protection even if the elements themselves might be copyrightable. As a result, format developers have not been successful in using German copyright law to prevent TV format imitation.

In France, similarly, copyright infringement actions against TV format imitation have often failed either because of the idea/expression dichotomy or because only non-copyrightable features were copied between similar formats.

In the United Kingdom, copyright protection of TV formats against format imitation likewise stands on shaky grounds. Various attempts to include formal format protection in U.K. copyright law failed in the 1990’s. In a TV format case from New Zealand, the Privy Council – New Zealand’s highest court of appeal at that time – held that the subject matter of a particular TV format broadcast in the U.K. (Opportunity Knocks) lacked sufficient certainty and unity to be copyrightable. This has become a landmark case on copyright protection of TV formats in the common-law world: In 2005, the High Court of the United Kingdom restated key principles of that decision in a case concerning magazine format copying, and drew an analogy with TV formats. Also in 2005, the Federal Court of Australia dismissed copyright claims against an alleged copy of a home renovation TV show on similar grounds. As a result of this case law, TV formats are hard to protect under U.K. copyright law.

While many European copyright systems are reluctant to grant protection against TV format imitation, TV format creators have sometimes been more successful by using unfair competition doctrines. Unlike the situation in the United States, in many European countries both intellectual property and unfair competition law are federal in nature. As a result, no preemption doctrine exists to assist courts in delineating either body of law.

The relationship between misappropriation doctrines and intellectual property protection is a complex one in Europe, but misappropriation doctrines frequently play a larger role than in the United States. Despite some harmonization of unfair competition law on the European level, apart from confusion-based claims  the unfair competition laws of various European countries vary greatly in the level of protection they grant against unfair appropriation of a competitor’s product or service. At one end of the spectrum, France has an elaborate system of protection against “parasitic behavior” (concurrence parasitaire). In Germany, it is not unusual to take action against product imitation not only on copyright grounds, but also concurrently on the basis of unfair-competition-based doctrines of unfair copying or slavish imitation. At the other end of the spectrum, U.K. common law has no special provisions prohibiting imitation beyond intellectual-property- or confusion-based claims,  and U.K. judges have upheld the freedom to imitate on many occasions. This heterogeneity in approaches is also reflected in the way national unfair competition laws treat TV format imitation. Under French unfair competition law, TV format copying may be considered either as ordinary “disloyal” competition (concurrence déloyale) or as parasitic behavior (concurrence parasitaire).  Parasitic behavior requires neither confusion on part of the public nor a direct competitive relationship between both companies; but it does require extra elements that are not required for a copyright claim. It is similar to the misappropriation doctrine under U.S. common law, but much more expansive in scope and application.

Given the expansiveness of French unfair competition law, it is not surprising that French courts are comparatively open to applying such doctrines to TV format cases. One case of slavish imitation involves the U.S. format Rescue 911. A leading French public TV channel (Antenne 2) broadcast a reality show called La Nuit des Héros (Heroes’ Night) based on the U.S. format, which Antenne 2 had licensed from CBS. Two months after the show’s host had resigned from the show and from Antenne 2, a private TV channel competitor (TF1) broadcast a similar show entitled Les Marches de la Gloire (Steps of Glory), featuring the same host and using the same staff. Antenne 2 sued TF 1 for unfair competition, including commercial parasitism. In 1993, the Versailles Court of Appeal found TF1 guilty of both disloyal competition and parasitic behavior. The court cited the substantial similarities between the competing shows (same concept, construction, rhythm, cutting pattern, presentation style, illustration of moral values of daily life and sport, etc.) as well as the fact that TF1 had hired not only the same show host but the entire former team from Antenne 2, effectively disrupting Antenne 2’s activities.  In the end, the court ordered TF1 to pay damages of 55 million French Francs, at that time the largest fine ever imposed in France for unauthorized copying of audio-visual content.

In Germany, several courts have had to decide whether TV format imitation violates unfair competition laws, but have usually denied such violation on a variety of grounds. While it may be theoretically possible for TV format copying to violate German unfair competition law in exceptional circumstances, no German court thus far has come to that conclusion. Finally, owing to the limited scope of unfair competition torts in the United Kingdom, in particular the lack of a broad misappropriation tort, the possibility of protecting TV formats by using unfair competition law is rather limited in the U.K.

As this analysis has shown, it is hard to protect TV formats against imitation under U.S. copyright law. In Europe, despite the harmonization of intellectual property laws over the last few decades, TV format imitation disputes are still subject to national laws. As far as pure cases of published TV format imitation are concerned, in Germany and the United Kingdom, TV formats are hard to protect by either copyright or unfair competition laws. While the situation looks similar in France with regard to copyright law, French unfair competition law is slightly more open to format protection, due to its broad “parasitic behavior” misappropriation doctrine, which is not necessarily preempted by French copyright law. When the format imitation also involves hiring staff from the original format developer, breach-of-confidence claims based on unfair competition doctrines may prove effective. This may explain why original format developers in Europe, as in the United States, are increasingly raising unfair competition or breach of confidence allegations, rather than copyright-based claims, against format imitators. In general, however, in all the countries analyzed, protecting TV formats against imitation is a complicated, uncertain, and cumbersome process.