The Code of Practice has been drawn up in compliance with clause 61(1) of the Agreement Between Her Majesty's Secretary of State for Culture, Media and Sport and the British Broadcasting Corporation (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.
The Code sets out how the provisions laid out in clause 61(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.
1. It is in the interest of the UK television audience that there is a competitive and thriving independent production supply market.
2. 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.
1.1 The responsibility for commissioning the majority of independent network television programmes rests with BBC Television. It commissions programmes both from in-house producers and from independent producers. The operation of commissioning and production within BBC Television are separate functions with geographical and line management separation. Both functions report into the overall Director of BBC Television.
There are three other divisions which commission network television programmes from independent producers. These are BBC Sport, BBC News and 'opt out' programming for the Nations & Regions. Sport and News commission independent producers principally by means of limited tender. This process is managed by executives in those divisions. There are also commissioning personnel based in each of the BBC's national Centres (Scotland, Wales and Northern Ireland) with responsibility for commissioning independent producers 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 independent producers openly and fairly taking into account the quality and price of their proposals, submitted through the BBC's online proposals system.
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 the Producer's Alliance for Cinema and Television ("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 a comprehensive 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's television 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 six 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 independent producers 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 timescales will be identified in the 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.
2.1 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 and published compliance procedures including without limitation the BBC's Editorial Guidelines and Fair Trading Guidelines.
3.1 The BBC's objective is to secure the rights it needs for its licence fee funded services, currently BBC One, Two, Three, Four, CBeebies, CBBC, News 24, Parliament, BBC iPlayer, and its associated multiplatform propositions (as outlined in Section 4) and to secure its exclusivity in the domestic UK programme market for the licence period.
3.2 The BBC will acquire a licence including the following primary rights and associated provisions under its deal with the independent producer:
a. An exclusive licence in the UK programme market, and the right to exercise the primary rights in the programme on its licence fee funded services, for a period of five years.
b. The primary rights shall cover the following:
c. 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 producer - calculated as a percentage of the primary rights licence fee as an advance against further repeats.
d.The five year 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.
e. Independent producers will have to secure the BBC's consent to any exploitation of the programming in the television and/or on-demand market in the UK during the BBC's licence period
f. The principles which the BBC will apply when considering requests for the BBC's consent to allow such early exploitation shall be published by the BBC in a programme release policy which may be updated from time to time. This programme release policy shall reflect that exploitation will only be permitted in circumstances where the BBC considers further exploitation of the programme in the UK programme market would not conflict with the exclusive rights it has acquired.
g. The initial primary rights licence fee to the independent producer would cover a specific number of uses on the BBC's linear television services, depending on which services the programme is being used. These uses are set out in Appendix 1. In respect of further uses on these linear broadcast services, the independent producer would receive repeat or use fees as appropriate. Beyond these specific further 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 BBC's exclusive licence period.
h. The detail of the above arrangements including the basis and payment terms on which options would be exercised, and the level of repeat fees and use fees will be agreed in the Terms of Trade as referred to in paragraph 10 below ('Terms of Trade').
i. The above arrangements shall include the BBC's requirements for the independent producer to produce and deliver programming in compliance with the BBC's relevant policies and guidelines.
j. The above arrangements do not preclude the BBC and an individual independent producer from concluding an agreement covering a broader or different range of provisions to those outlined above, should they both wish to do so.
k. The BBC shall be entitled to review the scope of primary rights as outlined above as new distribution platforms and technologies emerge, subject always to any amendments to the Code being approved by Ofcom.
3.3 All commercial exploitation rights will be retained by the independent producer (subject always to the provisos set out in this Code in paragraphs 3.2 (e), (f)& (j); 3.4; 3.6; 3.7; 3.9; and 4.3).
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 During its licence period, 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;
4.1 Multiplatform rights that the BBC will acquire for its multiplatform propositions in connection with its licence fee funded services will be defined as:
a. On-line, on-demand and interactive rights which are linked to use of the programme on the BBC's linear television services, including:
b. the first option to licence additional material relating to (but not featured in) the programme, for use in the BBC's online services.
4.2 Payment for the above rights would fall under the following categories:
1. Uses covered by the initial primary rights licence fee are the uses referred to under paragraph 4.1(a) above;
2. Uses for which further payment would be made are the direct additional production costs associated with the exercise of the option under paragraph 4.1(b) above to create additional material.
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 producer subject to the following provisos in order not to impact adversely on the BBC's primary rights:
a. exploitation of permanent download-to-own rights in the programme would be permitted after a specified period of time (as set out in the Terms of Trade) following broadcast of the programme;
b. the independent producer will need to secure the BBC's consent to the exercise of other commercial new media rights in the UK on-demand market, and the principles which the BBC will apply when considering requests for the BBC's consent to allow such early exploitation shall be included in the BBC's programme release policy as referred to in paragraph 3.2(f) above;
c. any other required restrictions on the exploitation of any commercial new media rights in the UK (including in extracts and additional material) shall be set out in the Terms of Trade.
4.4 In relation to any telephony or other services required to facilitate audience interaction in connection with any programme covered by this Code, the arrangements for the provision of such services shall be agreed between the BBC and the independent producer on a case by case basis in such manner as to reflect:
The price the BBC is prepared to pay for a programme will be determined by reference to a number of key factors including:
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 and/or market developments which lead to efficiencies.
6.6 The indicative tariff ranges will be reviewed from time to time as required, 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 Director of BBC Television Operations and their equivalent persons in the Nations and Regions.
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.
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:
9.1 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.
9.2 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.
9.3 The BBC will respond with this tariff declaration within four weeks of receipt of the Editorial Specification.
9.4 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 three weeks.
9.5 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.
10.1 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 PACT prior to publication and provide for a rolling three year review.
In the event of a dispute arising between the BBC and the independent producer, about the application of the Code itself, rather than the terms of a specific negotiation, the independent producer shall refer the dispute to a Director of the relevant Division in which the dispute arises. Both parties shall negotiate in good faith to resolve any such dispute.
11.2 If bi-lateral negotiations under 11.1 above cannot resolve the dispute within 28 days 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.
12.1 The BBC is an equal opportunity employer and seeks to ensure that all the independent producers 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 independent producers 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 independent producers own equal opportunities and Health and Safety policies and relevant details of how the policy is implemented in practice.
12.2 We expect independent producers to apply the highest professional and ethical standards in their dealings with BBC staff. In return, BBC staff will apply the same ethical standards of objectivity, integrity, confidentiality, fairness and honesty in dealing with independent producers.
12.3 Alliance 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.
13.1 The BBC will provide Ofcom with an annual report which will review the operation of the Code and will include;
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.
13.3 The BBC acknowledges that Ofcom expects to receive each such annual report by the end of the first quarter of the following calendar year
Uses covered by the Initial Fee
The initial fee would cover two of the following "packages" of uses.
Education / Signing
The initial fee would cover all uses of programming in the following categories:
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.
The BBC's objectives throughout the commissioning process are to specify its requirements in a transparent manner, to provide external suppliers with clear information about commissioning requirements and to commission independents openly and fairly, taking into account the quality and price of their proposals.
A comprehensive and detailed description of the BBC's commissioning process and structure is available on the BBC's commissioning website: www.bbc.co.uk/commissioning Information on the website is listed by programme genre and channel, and is regularly updated and includes names, photographs, and contact details for the commissioning teams. The site also contains information about how to submit a proposal and summaries of current editorial strategies.
Briefings to the independent sector that outline the BBC's programme strategy and commissioning requirements will take place regularly.
This Code outlines the BBC's current commissioning process and structure for television. The BBC constantly monitors its processes and structures and looks always to find ways of refining and improving the management of its programme commissioning. The BBC's television output is managed through different BBC divisions. The largest division is BBC Television.
Programme genres which fall into BBC Television are Fiction (Drama, Comedy) Entertainment, Knowledge (including Learning), Daytime and Children's. Programmes in these areas, whether produced in-house or externally, are commissioned by the Genre Controllers or Commissioning Editors in Knowledge together with the Controllers of the relevant channels. Daytime programmes, whether produced in-house or externally, are commissioned by the genre Controllers together with the Controller of Daytime. In the Children's area commissioning is the responsibility of the Controllers of CBBC and CBeebies.
The BBC's commissioning management and process operates independently from its inhouse production management and activities (except where external suppliers contribute programmes to existing in-house programme strands.) All programme genres have named commissioning executives working to the genre Controllers, who have special responsibility for working with external suppliers.
There are two further Divisions which manage and commission network television programmes. These are Sport, and News.
The majority of Sports programmes are self-commissioning; their commissioning process is different for reasons of rights procurement and is described separately below. News is also self-commissioning, which has relatively few qualifying hours for external suppliers. All these divisions have measures in place to ensure fair access and protection of external suppliers.
The BBC has an Independent Executive working across all television output in the BBC whose role and remit is to ensure that external suppliers are dealt with fairly and transparently. The Independent Executive also sits on the Television Leadership Network together with the Channel and genre Controllers.
The BBC's commissioning process for external suppliers is exactly the same, whether the supplier qualifies for the statutory Independent quota, or not. The BBC monitors its own performance in terms of response rates to proposals and this information is regularly assessed by BBC senior management.
Timetables for the commissioning process apply across all genres, any genres with exceptions are noted below. Although in each case the general, most likely, process is described, the BBC also operates fast-track commissioning for topical and other urgent commissions.
Network television programmes are commissioned on a rolling basis and proposals may be submitted at any time, with exceptions where noted below. Proposals sent in to the BBC by external suppliers must be submitted through the BBC's online proposals system (e-commissioning) and be directed to the appropriate Commissioner. External suppliers will receive an initial acknowledgement of their proposal within one week from receipt, or sometimes an immediate rejection.
Five weeks after acknowledgement (six weeks after receipt) external suppliers will receive a further response from a commissioning executive about the content of their proposal. This will either be a rejection or an expression of interest in discussing the idea further. If the proposal is offered development funding, then the timetable to commission will be subject to negotiation between the Independent and the BBC and determined by the development contract. Where the Independent chooses to fund their own development, the timetable will be mutually agreed.
Proposals in play which have not received paid development will be taken forward for further consideration and the strongest ideas will be discussed with the relevant Channel Controller and a decision communicated no later than 20 weeks from receipt of the initial proposal. Projects may be held longer but only with formal agreement from the supplier. Proposals will then either be commissioned (subject to finalising business terms), rejected or offered further development. In-house proposals are subject to the same process and timetable.
At any point an external supplier may write to the Genre Commissioner asking for a production report and will receive a written response within 10 working days.
Any exceptions to this process description are noted within the following genres:
The Controller of Knowledge oversees a number of Commissioners who have devolved commissioning responsibility for areas of Knowledge output: for example, Arts, Music & Events Documentaries, Features & Formats, History & Business, Science & Natural History and Religion. These sub-genres of Knowledge are all clearly described and detailed on the BBC commissioning website: www.bbc.co.uk/commissioning
The Knowledge Commissioners are responsible for the commissioning of all output in their programme areas, whether supplied in-house or by external suppliers. In each case, the process and timetables are the same. In each Knowledge sub-genre there are named Executive Producers who have special responsibility for external suppliers.
External suppliers wishing to submit a proposal to an existing Knowledge strand should do so through the strand editor through the BBC's online proposals system.
The Controller of Entertainment oversees a number of Executive Editors who have devolved development responsibility for areas of Entertainment output. Named individual Executives have responsibilities for specific areas of the output (eg Comedy Ent, Saturday Night Formats, Events and BBC Three, Factual Entertainment, Lottery/Quiz Shows and Switch). Contact names and specific roles and remits are described on the website: www.bbc.co.uk/commissioning
The Controller of Comedy oversees a number of Executive Editors who have devolved development responsibility for areas of Comedy output. Contact names and specific roles and remits are described on the website www.bbc.co.uk/commissioning
There are four potential responses to a Comedy proposal: the project may be put into paid development; it may be put into unpaid development; it may be rejected; or it may be 'withdrawn', i.e. "pending further discussion", but only with the agreement of the Indie.
Where there is an expression of interest, the negotiation for paid development must commence within four weeks of interest being expressed.
In paid development the timetable to commission will be subject to negotiation and contract between the supplier and the BBC and will be specific to the characteristics of the proposal - i.e. writer and talent timetables.
The Controller of Drama oversees a number of Commissioning Editors who have devolved development responsibility for areas of Drama output. There are Commissioning Editors in BBC Drama with special responsibility for Independents and their contact details can be found on the commissioning website: www.bbc.co.uk/commissioning
There are four potential responses to a drama proposal: the project may be put into paid development; it may be put into unpaid development; it may be rejected; or it may be 'withdrawn', i.e. "pending further discussion", but only with the agreement of the Indie.
In all cases, the supplier will be notified within six weeks from receipt of proposal. Where there is an expression of interest, the negotiation for paid development must commence within six weeks of interest being expressed. The timetable to commission will then be subject to negotiation and contract agreement between the supplier and the BBC and will be specific to the characteristics of the proposal - i.e. writer and talent timetables. External suppliers will be notified two weeks to deadlines becoming due.
BBC Daytime and Early Peak
The Controller of Daytime and Early Peak oversees all Daytime and Early Peak output and commissioning, whether supplied in-house or by external suppliers. Daytime commissioning covers Daytime Drama, Entertainment and Factual Entertainment and the Controller commissions all Daytime output. Detailed description of the process and structure, including a definition of daytime hours together with named individuals and contacts, is available on the BBC website: www.bbc.co.uk/commissioning
CBBC and Cbeebies
CBBC and CBeebies are self-commissioning, self-scheduling channels and as such have a different structure to the other BBC Television genres. The Controllers of CBBC and CBeebies commission all output but have no responsibility for in-house production, but the controller of BBC Children's is responsible for both commissioning and inhouse production. CBBC operates a number of commissioning rounds a year; the main commissioning round incorporates CBBC Drama. CBeebies operates a rolling commissioning process and proposals can be submitted online throughout the year.
BBC Nations and Regions
External suppliers working in the Nations (Scotland, Northern Ireland and Wales) who wish to submit programme proposals to network television have a choice: they may either submit through appropriate Heads of Department in the relevant BBC National Centres (for example, the Head of Drama in the Nation for drama proposals, or the Head of Comedy for comedy proposals) - or they may submit their proposals directly to commissioning executives in the Network commissioning management structure, some of whom have specific responsibilities for independents in the Nations and Regions. All of these named individuals, some of whom are based in the Nations, and their contacts can be found on the BBC genre commissioning sites.
BBC Television's sport output is dependent on the procurement of Sports rights. BBC Sport buys its own sports rights and then either produces the programming around those sports rights in-house, or through an external supplier. The output for individual sport rights (e.g. Snooker or Bowls) is usually looked at as a production package, often across several years. It is therefore necessary for Producers to build up expertise in individual sports production. It is also important that there is a strong relationship between the Independent, BBC Sport and the Rights Holder.
The contracts offered to external suppliers are therefore significant - both in terms of hours and length of contract. Selection of an external supplier is dependent on the relevant skill base and ability to enhance the output both for the BBC and the Rights Holder. The commissioning of external suppliers is more often than not likely to be via limited tender. The tender process is managed by the Director, Rights and Finance for Sport.
The vast majority of 'News' programming does not qualify for external commissions as it is daily-news related. Current Affairs commissioning is handled through Television which is described under BBC Knowledge. The qualifying hours commissioned directly by News are made up of some built programmes for BBC News 24 and some long-form political output. As with Sport, external suppliers for these programmes usually require specialised skills, so when new commissions arise they are likely to be put out to limited tender. Any tender process is supervised by the Chief Operating Officer, News.
BBC Regional (opt-out) Commissioning
The BBC is committed to commissioning a proportion of its regional opt-out programmes from external suppliers.
In Scotland, external suppliers submit their proposals to the Commissioning Editor, Television who commissions programmes only (in-house proposals are sent via the Heads of genre). Gaelic commissioning is commissioned by the Gaelic department. Commissioning is on a rolling basis. Contact details, and information about programme strategy are available on the website: http://www.bbc.co.uk/aboutthebbc/scotland/commissioning/. Proposals for existing strands should be sent direct to the strand editors. Proposals will be acknowledged within two weeks.
In Northern Ireland, regional programmes from external suppliers are submitted online by means of the RAP database, which provides immediate acknowledgement. The first point of contact and manager of the process for Independent Producers is the Development Executive, Broadcasting, who has no direct in-house production responsibilities. All programmes are commissioned by the Head of Programmes and the Head of Multimedia Commissioning. Commissioning rounds usually occur twice a year. Evaluation, development and commissioning follow the same procedure as in-house proposals and responses to content are usually given within three weeks. Commissioning opportunities during the year are outlined on the website: http://www.bbc.co.uk/aboutthebbc/cymruwales/commissioning/ and at regular briefing meetings with independent suppliers.
In Wales, there is a genre-focussed structure which operates across both in-house and external commissioning. Two Commissioning Executives manage the Factual and Arts & Entertainment genres, and all suppliers submit their proposals to them, whether external or in-house. The Head of English Language Programmes takes overall responsibility for all genres including Drama. Contact details and programme information is available on the website: www.bbc.co.uk/wales/commissioning
Commissioning is on a rolling basis, with specific commissioning opportunities during the year which are outlined on the website and at briefing meetings with independent suppliers. External proposals receive an acknowledgement within seven working days.
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