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The Code of Practice has been drawn up in compliance with section 5K of the BBC Agreement and sets out the principles which are to be applied when the BBC is, for a purpose connected with the provision of Public Television services, agreeing terms for the commissioning of independent productions.
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The Code sets out how the provisions laid out in clause 5K.3 of the BBC Agreement will be met. The Code is agreed between the BBC and OFCOM as provided for in Clauses 5K.5 and 13C of the BBC Agreement.
The Code recognises that:
(a) It is in the interest of the UK television audience that there is a competitive and thriving independent production supply market
(b) The BBC has a role as the nation's principal public service broadcaster to help stimulate and support the development of the independent production sector.
The intention of the Code is to ensure that relations between the BBC and independent producers are conducted on a fair and transparent basis.
In line with the provisions of the BBC Agreement it includes details of how the following issues will be dealt with:
(a) The timetable for the negotiations of the commissioning agreement;
(b) The rights that are acquired together with the payment for, duration and exclusivity of those rights;
(c) The arrangements for reviewing, monitoring and ensuring compliance with the Code under the auspices of OFCOM;
(d) The provisions for resolving any disputes arising in respect of the Code.
The effective operation of this Code depends upon both the BBC and independent producers which it commissions being reasonable in their dealings with one another, with both parties abiding by the principles contained in the Code and undertaking to operate them in good faith.
1. Commissioning Guidelines
1.1 The responsibility for commissioning the majority of independent network television programmes rests with the BBC Television Division. This division is totally separate from BBC in-house production departments and operates independently from it. It commissions programmes both from in-house producers and from independents.
There are four other divisions which commission network television programmes from independents. These are BBC Sport, Children's, BBC News and 'opt out' programming for the Nations & Regions. Sport and News commission independents principally by means of limited tender. This process is managed by executives in those divisions. The Creative Directors of CBeebies and CBBC commission all output for their respective channels and multi-platform activities. Independents should offer their proposals directly to the Creative Directors. There are also commissioning personnel based in each of the BBC's national Centres (Scotland, Wales and Northern Ireland) with responsibility for commissioning independents to make regional (opt out) programmes.
1.2 The BBC's objectives throughout the commissioning process are to specify its requirements in a transparent manner, to provide independent producers with access to clear information about its commissioning requirements, and to commission independents openly and fairly taking into account the quality and price of their proposals
1.3 The BBC will publish commissioning guidelines that will set out the procedure by which the BBC will commission programmes from independent producers. These guidelines will be reviewed periodically and in consultation with PACT.
1.4 The commissioning guidelines will detail the editorial commissioning process for the offer and acceptance of programme ideas for all the BBC's public television services and any associated on-line and interactive applications.
1.5 The commissioning guidelines will be supported by this web-site www.bbc.co.uk/commissioning which will give very detailed information about the commissioning process for each individual genre and channel together with names and contact details for the key editorial and business executives.
1.6 The BBC will ensure that the commissioning process is as straightforward and streamlined as possible taking into account the scale and complexity of the BBC's television operation. In particular the commissioning guidelines and the Commissioning website will cover:
(a) Communication of the BBC Television's programme strategy and major commissioning objectives to the independent production sector will take place at least on a four-monthly basis for Entertainment and Factual. Other genres, whose programme information changes less frequently will update their commissioning information every 6 months.
(b) Clear, up-to-date information on the management/ organisational structure of BBC Television - the site will explain the programme genres, and will list named individuals who have special responsibility for commissioning independents as well as those executives responsible for contractual negotiations.
(c) Timetables, which the BBC and the Producer will follow, during the commissioning process as follows:
the interval between submission and acknowledgement
the interval between submission and initial response
the interval between submission and commissioning decision
the interval between the commissioning decision and the completion of the contractual negotiations which will enable the commission to be confirmed
response time to requests from an independent producer for a progress report
The timescales identified commissioning guidelines.
These timescales may need to be varied from time to time on individual projects by agreement with the independent producer. In particular where development is involved a timetable for such development and the subsequent commissioning decision will have to be agreed with the producer.
The key principle is that both the BBC and the independent producer are committed to the stated timescales and any necessary variations are openly identified and discussed.
2. Editorial Control
2.1 The BBC will have final editorial control over all BBC versions of programmes including all associated online and interactive elements commissioned from independent producers.
2.2 All programmes including online and interactive elements commissioned by the BBC from independent producers will be subject to all relevant BBC guidelines including without limitation the BBC's Producer's Guidelines and Commercial Policy Guidelines.
3. Rights - Public Service Use and Commercial Exploitation
3.1 The BBC's objective is to secure the rights it needs for its licence fee funded services, currently BBC ONE, BBC TWO, BBC THREE, BBC FOUR, CBeebies, CBBC, News 24, Parliament and New Media services (as defined in Section 4) and to secure its exclusivity in the domestic UK Television market for the licence period.
3.2 The BBC will expect to acquire the following licence under its deal with the independent:
An exclusive licence in the UK Television market, and the right to use the programme on its licence fee funded services, for a period of 5 years.
An option to renew this exclusive licence for a further period of two years on an agreed basis. To exercise the option a payment would be made to the independent - calculated as a percentage of the licence fee as an advance against further repeats.
The licence period will run from the full delivery of the programme. In the case of returning series, the BBC will have the option to renew the exclusive licence for all previous series while the programme is still being commissioned.
The BBC will have the right to exercise a holdback for the licence period. This holdback may be released by mutual consent in circumstances where there BBC considers further exploitation of the programme in the UK Television Market would not conflict with the exclusive rights it has acquired.
The initial fee to the producer would cover a specific number of uses - depending on which services the programme is being used. These uses are set out in Appendix 1 and, in the case of New Media Rights, section 4.2. Beyond these uses, there would be no limitation on the amount of use that could be made of the programme on the BBC's licence fee funded services during the exclusive licence period. In respect of these further uses, the producer would receive repeat or use fees as appropriate.
The detail of the above arrangements including the basis and payment terms on which options would be exercised, the number of transmissions covered by the initial fee (depending on channel and platform) and the level of repeat fees and use fees will be agreed in the Terms of Trade.
3.3 All commercial exploitation rights will be retained by the independent producer.
3.4 The BBC expects to share in the net revenue arising from this exploitation on an agreed basis through individual negotiation in order to deliver value back to the licence fee payer and as an acknowledgement of the added value that the BBC makes to the programme.
3.5 Negotiations in respect of any third party investment or distribution terms will be entirely a matter for the independent producer and the third party (including BBC Worldwide where they are involved) and will be completely separate from the negotiations held between the BBC and the independent producer.
3.6 The BBC would normally expect that BBC Worldwide will be given the opportunity to bid for any commercial distribution rights on an equal footing with other distributors.
3.7 The BBC should have approval which would not normally be withheld over any distribution/co production terms.
3.8 This code applies to opt-out programmes made by the BBC Nations and regions for broadcast in the local transmission area.
The only special provision is that during the BBC's exclusive licence period the BBC would retain the rights to reversion Welsh and Gaelic language programming into English and to reversion any suitable English language programming into Welsh or Gaelic.
3.9 The above arrangements will not apply to commissions of programmes where;
Rights are purchased by the BBC from a different entity than the independent who is contracted to produce the programme. (e.g. Sports programming, certain live event shows etc.)
An independent is given a commission by the BBC based on a BBC created format/programme/idea. (e.g. Question Time)
Where a programme is commissioned from an independent to be a part of a 'strand' of programming, and that strand is co-produced/distributed by the BBC as a package deal (eg. Horizon)
4. New Media Rights
4.1 New Media Rights that the BBC will expect to acquire under Section 3.1 and 3.2 in respect of its licence fee funded services will be defined as those
On-line, on-demand and interactive rights, (including SMS), which are linked to the broadcast, including:-
The rights to simulcast the programme
The right to make the programme available on demand
The use of extracts of the programme on any web-sites associated with the programme and the use of extracts of the programme on any generic sites.
4.2 Payment for the above rights would fall under the following categories:
(a) Uses covered by the initial primary licence fee: i.e.
Uses linked directly to the broadcast of the programme interactive uses; simulcasting; SMS texting; use of extracts on associated and generic web-sites.
(b) Uses for which further payment would be made: i.e.
Direct production costs associated with the building of any on-line application listed above.
Subsequent use of the programme during the BBC's exclusive licence period i.e. making the programme available on-demand as part of a licence fee funded catch-up service.
(c) Should the exercise of the above new media rights by the BBC generate any commercial revenue then the producer would receive a share of this net revenue.
4.3 In line with the other principles in this code, any other commercial new media rights would be owned and exploited by the independent - consideration would have to be given on a case-by-case basis to any rights that might have to be held-back if the exercise of them impacted on the BBC's exclusive licence in the UK Television Market.
5. Programme Prices
The price the BBC is prepared to pay for a programme will be determined by reference to a number of key factors including:
The expected budget of the programme.
The value of the programme to the schedule.
The level of up-front third party investment, if any, that the programme could reasonably expect to attract in the marketplace.
The price will include a production fee paid to the producer in line with the Terms of Trade.
The price will be inclusive of any development funding paid by the BBC on a programme.
6. Indicative Tariffs
6.1 The BBC will publish a tariff of indicative prices for a particular programme genre or category within that genre.
6.2 The tariff will set out the range within which the BBC would expect the individual prices, described in paragraph 5 above, for specific programmes within that genre or category within that genre to fall.
6.3 The programme genre and categories within the genre will be carefully identified and clearly described so that it will be clear what types of programme fall within what genre or category within the genre.
6.4 The initial indicative tariff ranges will be based on 2002/03 data.
6.5 It is not the intention to reduce the prices paid by the BBC for similar programming through the introduction of this Code, subject to any technological advancements which lead to production efficiencies.
6.6 The indicative tariff ranges will be reviewed every two years and will take into account such factors as movements in the retail prices index, the changes in technology or production techniques referred to above and any other changes which might impact on the prices paid for programmes.
6.7 Publication of the indicative tariff ranges within which BBC prices will fall is intended to enable independent producers to be clear about the BBC's funding commitment for each genre and category within that genre of programmes.
6.8 Setting the tariff prices will be the final responsibility of the Director of Television and the Finance Director of Television and their equivalent persons in the Nations & Regions.
7. Payment for Programmes
7.1 Where appropriate, the BBC will either be prepared to finance its contribution to the programme by a method of staged payments made at defined points in the production process or to provide a bankable letter where practicable.
7.2 Details of the defined points and payment process will be set out in the Terms of Trade.
8. Development
Where the BBC receives a programme proposal which it is agreed requires further development and if the producer requires such finance from the BBC then the BBC will:
Have an exclusive period within which to decide on whether or not to commission the programme.
The BBC will have an exclusive option to develop the programme during this period.
Agree the budget for such development.
Treat the development costs paid are included in the tariff price of a programme and are an advance against such tariff.
Have any development costs repaid in full to the BBC on the first day of principal photography if the BBC declines to commission a programme after providing development finance and that programme is commissioned by another broadcaster.
9. Business Affairs
The BBC will conduct all negotiations with independent producers in a timely and professional manner and will expect the independent producer to do the same.
The BBC will state the tariff it is prepared to pay for a programme at any point during the development process if practical. If there has been no development stage the BBC will request a package of information, the "Editorial Specification", to enable it to state what price it is prepared to pay.
The BBC will respond with this tariff declaration within 4 weeks of receipt of the Editorial Specification.
Once all funding is in place, the Editorial Specification has been approved and deal terms have been agreed in principle the BBC will issue the contract within 3 weeks.
Where applicable the BBC will pay the agreed staged payment contribution in accordance with the contract terms within 10 working days of receipt of a compliant invoice from the independent producer.
10. Terms of Trade
10.1 The BBC will publish Terms of Trade for Independent Productions which will set out the standard terms of business offered to all independent producers from whom the BBC commissions programmes.
10.2 The BBC's Terms of Trade will be agreed with the Independent Producer's Alliance for Cinema and Television ("PACT") and TAC prior to publication and provide for a rolling three year review.
11. Dispute Resolution
11.1 In the event of a dispute the independent producer shall refer the dispute to the Director of the relevant department in which the dispute arises. Both parties shall negotiate in good faith to resolve any dispute arising under the terms of this Code.
11.2 If bi-lateral negotiations under 11.1 above cannot resolve a dispute within 28 days and the dispute is about the operation of this Code then both parties will agree to put the dispute to mediation through the Centre for Effective Disputes Resolution.
11.3 Both parties will pay their own costs.
12. Equal Opportunities/Ethical Standards
12.1 The BBC is an equal opportunity employer and seeks to ensure that all the independents we work with take seriously their responsibilities with regard to Equal Opportunities and in addition Health and Safety during the course of commissions. The BBC therefore requires that all independents comply with all current anti-discrimination legislation, and Health and Safety legislation and the respective Codes of Practice related to such legislation. The BBC may request a written statement of the independents own equal opportunities and Health and Safety policies and relevant details of how the policy is implemented in practice.
12.2 We expect independents to apply the highest professional and ethical standards in their dealings with the BBC staff. In return, BBC staff will apply the same ethical standards of objectivity, integrity, confidentiality, fairness and honesty in dealing with independents.
12.3Alliance for the Protection of Copyright Code - The BBC is a signatory to the APC Code and all independent producers commissioned to make programmes for the BBC need to abide by the principles set out in that code for as long as the BBC remains a signatory.
12.4 The BBC supports comprehensive training across the industry in collaboration with PACT's training scheme.
13. Annual Review
13.1 The BBC will provide OFCOM with an annual report which will review the operation of the Code and will include;
The number and value of programme commissions from independent producers by the licence fee deal and genre.
The average length of the licence period for licence fee deals and the number of transmissions covered in the licence fee deals.
The number of occasions on which the tariff for a licence fee commission has been outside the indicative tariff range.
The number of instances in which options to renew have been exercised.
The number of complaints, the nature of those complaints (in broad categories), and how they have been resolved.
This will be in addition to the BBC's obligations on independent quota reporting.
13.2 An annual meeting will take place with OFCOM to review the report and any other issues associated with the operation of the Code.
Appendix 1: Uses covered by the Initial Fee
The initial fee would cover two of the following "packages" of uses.
1 transmission on BBC ONE
2 transmissions on BBC TWO
3 transmissions on daytime BBC ONE and BBC TWO (for daytime commissions)
4 transmissions on daytime BBC ONE and BBC TWO (for peak time commissions)
9 transmission days on BBC THREE
Unlimited transmissions on BBC FOUR
Childrens
3 transmissions on BBC ONE / BBC TWO
20 transmission days on CBBC
Education / Signing
The initial fee would cover all uses of programming in the following categories:
Primary School programming
Programmes transmitted in the Learning Zone
Programmes transmitted in the Sign Zone
The number of uses for which contributors and underlying rights holders need to be pre-paid may vary from the above. These will be specified at the time of commission and the payments will be included in the initial fee.
Page Last Updated 23 Jul 2004
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