1 BBC Governors Radio Archive Consultation British Broadcasting Corporation The Governance Unit, Room 211, 35 Marylebone High Street, London W1U 4AA www.bbcgovernors.co.uk 2 Radio Archive Consultation A. Foreword BBC Radio holds a vast archive of programmes and is considering making these more widely available to licence-fee-payers in a number of different ways, including making programmes available for broadcast by UK commercial radio companies. The BBC Governors are currently considering these proposals from the management of the BBC as detailed in this consultation document. Before coming to a final decision, they want to be informed by as wide as possible range of views via this public consultation. The Governors will consider consultation responses carefully before coming to their final conclusions based on what is in the best interests of licence-fee-payers. The BBC Governors believe the focus of the Radio Archive strategy must be to deliver the greatest possible value to licence-fee-payers from the archive. This is likely to be achieved through some combination of BBC public service and commercial exploitation (potentially by both the BBC and third parties). Before coming to a conclusion, the BBC Governors would welcome views on this approach and the appropriate balance between the public service and commercial elements. 3 B. Introduction/Background There are approximately 750,000 hours of programming in the BBC radio archive, the majority of which is not readily useable, being uncatalogued or held on fragile and perishable media. From this total archive, which is growing all the time, BBC Worldwide currently holds a catalogued archive of over 20,000 hours for selling BBC Radio output overseas. Subject to ensuring all relevant rights clearances and in accordance with the proposed Guidelines for Licensing (see page 4), the BBC is proposing that this catalogue should now be made available for licensing to other radio broadcasters in the UK. In addition, further BBC Radio programmes not included in the BBC Worldwide catalogue could also be made available in the UK. Potential access to programmes beyond what is already catalogued and digitised will depend on demand and the commercial viability of locating and preparing that material for broadcast. This consultation is therefore an important step in helping the BBC to understand likely demand and how much of this archive might in practice be licensed to UK broadcasters. UK listeners have a broader range of radio services available to them than ever before – partly due to the release of new analogue commercial licences in recent years, but also significantly through the launch of digital radio services. In this developing environment, the BBC’s strategy to make its radio archive more readily available to licence-fee-payers in recent years has been to: · Broadcast selected archive content on analogue radio networks (see annex 1); · Launch the 6 Music and BBC 7 channels, with specific remits to make more archive programming available (see annex 1); · Launch the BBC Radio Player, giving audiences on demand access to most BBC Radio programmes for up to seven days after broadcast and selected older archive material, on a public service basis. The BBC aims to build on the Radio Player’s success by increasing the archive content available on demand, and plans are currently being developed in this area. Clearly this activity depends upon obtaining the necessary rights clearances. · Make physical products – e.g. audio books and music CDs – available for consumer purchase and license some content for commercial on-demand access; · Sell the radio archive overseas through BBC Worldwide · Forge commercial collaborations with key rights holders to unlock rights in material, enabling sales and further uses to be made. · Enable independent production companies to exploit their programming in the UK, following an exclusive BBC licence period. · In addition, a separate scheme known as the Creative Archive is currently being piloted which would allow the public to access some archive content (TV and radio) and use it to create new content and/or share that content. 4 C. Consultation - the strategy going forward This consultation focuses on additional elements to the strategy to increase access to the radio archive: 1. Joint Venture BBC management propose to give consideration to third parties who approach the BBC with specific Joint Venture proposals using BBC archive programming. BBC management has an open mind about joint venture proposals and will consider approaches from the commercial sector. Many of the considerations which apply to the Guidelines for Licensing would also apply to a Joint Venture in order to protect the integrity of BBC programming. A Joint Venture proposal must be a viable business and, to justify BBC participation, a distinctive proposition. 2. Licensing for UK broadcasters BBC management propose to make archive radio programmes available for licensing on a commercial basis by UK commercial radio networks for linear broadcast on a non-exclusive basis and at no extra cost to the BBC, subject to the Guidelines for Licensing detailed below and all necessary clearances. This proposal is aimed at ensuring increased value for the licence fee payer – both by making the material available for listening via non-BBC networks and delivering revenue back to the BBC by licensing its assets. Linear broadcast means that the programmes could be aired on a radio station as part of its schedule. The station could be accessed on different platforms (eg FM, DAB digital radio or digital television) but the station could not make a BBC archive programme available on-demand after broadcast. Non-exclusive means that the BBC would still have the freedom to use its own archive on its own networks. It is also important that licence-payers do not end up subsidising commercial operations – therefore, not only will revenue be derived from such sales but the BBC must ensure that making the archive available does not result in the BBC’s public service operations bearing costs of doing so (or any costs borne must be fully reimbursed). Note that this is intended to be a commercial proposition, and any deals are subject to the agreement and appropriate remuneration of rights holders. The following Guidelines have been designed by BBC management to increase the public value of BBC Radio programmes in the archive. They strike what it considers to be an appropriate balance between giving access to as much material as possible whilst ensuring that the BBC and rights holders are not disadvantaged, that the BBC is credited for its programmes and that programmes are presented in a context that is not damaging to the reputation of the BBC or rights holders. This strategy potentially increases the reach of BBC programming to more listeners (BBC Radio reaches 67% of the population at present), and showcases more of the archive than the BBC can broadcast alone. I t should be noted here that these Guidelines will only apply to complete programmes for linear broadcast on UK commercial radio; the BBC already offers the potential for third parties to license clips of many of its programmes via its library sales arm, BBC Motion Gallery. 5 BBC Management’s Proposed Guidelines for Licensing of Programmes from the BBC Radio Archive for broadcast on UK commercial radio · At least five years have passed since the programme’s first transmission on a BBC public service analogue or digital network (10 years for drama, comedy, music documentaries and programmes of which live popular music forms a substantial element) and at least three years have passed since the programme’s last transmission on a BBC public service analogue or digital network. · There is no clearly committed plan to repeat the programme on a BBC public service network within three years. · Programmes featuring talent currently exclusively contracted (in radio) to BBC Radio or which are part of an exclusive radio rights deal with a third party are excluded. · A reserved list of brand-defining landmark brands / programmes is excluded. The list will be reviewed on an ongoing basis. · No more than 10% of a commercial station’s schedule in a seven day period can be content which was originally broadcast by the BBC. Content licensed from the BBC must also not exceed 1.5 hours between 7am and 6pm any day without the prior consent of the BBC. · Where the programme is part of a returning series or continuing strand, the licensee must acquire the BBC’s consent to the scheduling of the programme. · The originating network must be credited before and after the programme and in any on- or off-air promotion/advertising including informal on-air mentions, and in any text or visual enhancements such as DAB text. The wording would be “Originally broadcast on BBC [Network Name]”. · Licensees are not allowed to edit programmes or packages provided by the BBC, other than what is permitted to insert ad breaks and legal regulatory requirements etc, subject to agreement · Sales will be on a non-exclusive basis, for linear broadcasting only. Further details on BBC management’s rationale for each of these guidelines are provided in annex 2. Furthermore, BBC management will keep this strategy under review, and will reconsider its position in 2008. This reflects the continuing development of a hybrid world of linear and non-linear audio consumption, and minimises the risk that their strategy will be eclipsed by technological change. The parties which could potentially be affected by this consultation are: • Licence-fee-payers/listeners • Commercial radio companies • Independent producers • Record companies • Composers and music publishers • Writers and performers • Talent, agents, other rights holders and arts groups 6 • Other businesses seeking to derive revenue from content D. Consultation Questions Based on all elements of the proposal detailed above, the BBC Governors are inviting responses to the following questions: Overall strategy Q1. Do you believe that this overall strategy to increase access to and availability of the BBC radio archive is in the best interests of licence-payers? Q2. Are these the most appropriate ways of making the archived programmes more widely available? Joint Ventures Q3. Do you have any comments on joint ventures? Specifically, a. Should the BBC consider joint ventures for using BBC Radio programming? b. Do you have any suggestions as to how they should work? Proposed guidelines for licensing to UK broadcasters Q4. Do you believe these guidelines meet the calls to make the radio archive available to UK commercial broadcasters at no cost to the BBC and best serve the interests of licence-fee-payers? Q5. Are there particular guidelines that you would like to comment on? Please give specific reasons for any comments, and, where appropriate, proposed alternatives. Likely demand for the radio archive As this is an unprecedented service in the UK, there is no information as to the extent of the levels of interest or potential take-up by UK broadcasters. Responses to the following questions will assist the BBC Governors in their assessment of the proposals in light of likely demand. In the interest of commercial privacy, all responses will be treated in confidence if requested. Q6. If you are a radio broadcaster, do you have any interest in licensing programmes from the BBC? If so, which types of programmes might you be interested in? Would you see this as an occasional or a regular activity, subject to price etc.? 7 Q7. Do you feel that the Radio Archive proposal as detailed in this document would affect any particular segments of the radio or other industries? If so, please provide details. Prior to this consultation, the BBC Governors have taken steps to assess the likely market impact of making the BBC radio archive available in this way. Overall, the proposal is not expected to have a significant impact on the market. The BBC Governors are not therefore proposing to undertake a fuller assessment. The actual impact is expected to be small, and potentially positive. This analysis is based on the BBC’s position as a major purchaser of new radio material in a number of areas. As the BBC’s demand for such material would be unaffected by the proposal, the impact on these sectors is not expected to be significant. It is also possible that the proposal could stimulate demand in the independent radio production sector, for instance through the commissioning of new programmes to complement material acquired from the BBC. Q8. Do you agree with the initial assessment of the BBC Governors that the Radio Archive proposal is unlikely to have a significant impact on the radio market, and that a fuller assessment is not necessary? If not, please give reasons. Q9. Is there anything else you would like to comment on regarding this proposal? 8 E. Next steps The BBC Governors are inviting response to this consultation between 3rd October and 25th November 2005. I f you wish to respond to the proposals raised within this consultation, you can use the forms available on this website or you can send your response to:- Clare Luke Advisor, BBC Governance Unit Room 211, 35 Marylebone High Street London, W1U 4AA Or by email to radio.archive@bbc.co.uk Closing date for receiving responses is 5pm, Friday 25th November, 2005 Audio and Braille translations are available upon request by calling BBC Information on 08000 566 787 All responses will be published on the BBC Governors website (www.bbcgovernors.co.uk) once the consultation has closed. The BBC Governors will consider consultation responses carefully and take them into account before coming to their final conclusions, which will be based on what is in the best interests of licence-fee payers. These will also be published on their website in due course. I f you would prefer that all or part of your response is treated as confidential, please complete the confidentiality section within the response form accordingly. What do you want the BBC Governors to keep confidential? Nothing Name/address/contact details/job title Whole response Organisation Part of the response Which part?___________ Please note that we may still refer to the contents of responses in general terms, without disclosing specific information that is confidential. We will exercise due regard to the confidentiality of information supplied. DECLARATION I confirm that the information I have submitted is a formal consultation response. It can be published in full on the BBC Governors’ website, unless otherwise specified, and I authorise the BBC Governors to make use of the information in this response to meet its legal requirements. If I have sent my response by email, the BBC can disregard any standard e-mail text about not disclosing email contents and attachments. 9 Name Signed (if hard copy) 10 F. Annexes Annex 1. Current archive usage on BBC Network Radio services Radio 1 Very little use of archive material Radio 2 Use of archive material in constructing programmes such as music documentaries, but little use of whole archive programmes. Radio 3 Some archive programming used for Through the Night and Afternoon Performance. Radio 4 At present, Radio 4 broadcasts around 1,400 hours of repeats each year. Around two-thirds of those are narrative repeats, and around a third are from the archive – an average of around 9 hours per week. Five Live, Five Live Sports Extra, 1Xtra, Asian Network No significant use of archive programming. 6 Music 15%-20% of music is from BBC archive sessions and concerts. BBC 7 Extensive use of comedy and drama archive. 11 Annex 2. BBC Management’s Rationale for its Proposed Guidelines for Licensing of Programmes from the BBC Radio Archive for broadcast on UK commercial radio · At least five years have passed since the programme’s first transmission on a BBC public service analogue or digital network (10 years for drama, comedy, music documentaries and programmes of which live popular music forms a substantial element) and at least three years have passed since the programme’s last transmission on a BBC public service analogue or digital network. A period of exclusivity recognises the investment made by the BBC, minimises the risk of brand confusion and allows BBC networks the opportunity to reuse material. Five years is consistent with the minimum period of exclusivity provided by the new radio terms of trade for independent producers (the terms give ten years’ exclusivity but there is a review point at five years when the BBC may surrender its exclusivity where it has no intention of making any further exercise of its rights under the licence). (See annex 3 for full terms of trade) A longer period is necessary for drama, comedy, music documentaries and live popular music as the BBC has created digital networks specifically to exploit these archives. Ten years represents the period of exclusivity provided by the independent terms of trade for radio (there is no five year review point for these genres). A window of three years following any repeat would allow a reasonable window between public service and commercial broadcasts, minimising confusion. · There is no clearly committed plan to repeat the programme on a BBC public service network within three years. This gives BBC Radio the first opportunity to reuse programming, ensuring that listeners are not confused by the same programmes appearing on different networks in a short time period. In particular, this allows the BBC’s digital radio services that have a specific archive remit, BBC 7 and 6 Music, to rebroadcast programmes. A three year outlook allows sufficient time for anticipating special events, but still provides a degree of certainty for licensees by giving a cut-off point. · Programmes featuring talent currently exclusively contracted (in radio) to BBC Radio or which are part of an exclusive radio rights deal with a third party are excluded. Where a programme features talent with whom BBC Radio has an ongoing exclusive arrangement or the programme is part of an ongoing exclusive rights deal between the BBC and a third party, the BBC’s investment should be protected and the breaching of contractual obligations avoided by excluding such programmes from release to commercial radio. · A reserved list of brand-defining landmark brands / programmes is excluded. The list will be reviewed on an ongoing basis. Some programmes and events, such as The Proms and Desert Island Discs, are so closely identified with BBC Radio or an individual network that they contribute to the definition of that brand. A network brand is a very powerful concept in radio, with listeners often choosing to listen to a particular station rather than a particular programme. 12 · No more than 10% of a commercial station’s schedule in a seven day period can be content which was originally broadcast by the BBC. Content licensed from the BBC must also not exceed 1.5 hours between 7am and 6pm any day without the prior consent of the BBC. In contrast to television, radio audiences peak during daytime – in particular during breakfast and afternoon “drive-time”. Therefore a commercial radio station which only broadcast BBC archive content in those prime slots could acquire the vast majority of its listening hours and advertising revenue from BBC programming. We believe a limit of 10% (16.8 hours) over a week and 1.5 hours in peak daytime output is sufficient to prevent significant brand confusion, and would avoid the creation of a “BBC archive network” by the back door. · Where the programme is part of a returning series or continuing strand, the licensee must acquire the BBC’s consent to the scheduling of the programme. This condition is necessary to prevent a scenario where a commercial station goes head-tohead with a BBC station, broadcasting an archive programme in the same slot as the BBC station is airing a new edition of the programme. This would be a disservice to the audience and increase the risk of brand confusion. · The originating network must be credited before and after the programme and in any on- or off-air promotion/advertising including informal on-air mentions, and in any text or visual enhancements such as DAB text. The wording would be “Originally broadcast on BBC [Network Name]”. This ensures that the relevant BBC Radio is credited adequately for its programming. · Licensees are not allowed to edit programmes or packages provided by the BBC, other than what is permitted to insert ad breaks and satisfy legal or regulatory requirements etc, subject to agreement. This ensures our programmes retain their integrity and there is no diminution of the quality of our programmes which could be detrimental to our brands. · Sales will be on a non-exclusive basis, for linear broadcasting only. This maintains the freedom of our public service portfolio to use its licence fee-funded archive content on our analogue and digital networks, and online. Online streams of live radio would be allowed, but no on-demand access. BBC Radio & Music’s on-demand strategy for archive programming is in development. 13 Annex 2. Terms of Trade for Independent Radio Productions Commissioned by the BBC 1. Introduction The BBC have set out below a summary of the minimum terms proposed to apply to the vast majority of radio programmes commissioned by the BBC from Independent Producers. The full terms are contained in the documents detailed in section 2 below. The new terms will apply to all programmes contracted from 7th December 2004, except commissions based upon BBC owned programme ideas that are tendered out to Independent Producers or any other BBC tenders and BBC commissions where rights are purchased by the BBC from a third party (including by way of example BBC acquired sports and events rights). 2. Standard Programme Production Agreement The BBC have published a new standard Programme Production Agreement to be used by the BBC when commissioning programmes from Independent Producers. This Agreement is made up of the following sections: · the General Terms that will apply to the commissions that cover the majority of detailed deal points; · the Special Terms that will have been agreed between the BBC and Independent Producer in relation to the specific programme, in particular the BBC’s clearance requirements in relation to underlying contributors to the programme (eg. presenters, composers, artists and writers) and the Primary Rights Licence Fee that has been agreed; and · the Commissioning Specification which will set out the detailed requirements of the programme. 3. Finance The finance and pricing structure under the previous Terms of Trade will remain. The agreed Primary Rights Licence Fee (previously the Total Programme Budget) will be the fixed price the BBC will pay for the programme after good faith negotiations between the parties. As currently, the BBC will cash-flow the agreed licence fee on the basis of 50% on signature of agreement and 50% on full delivery and acceptance of the programme as defined in the Commissioning Specification, unless otherwise agreed. For example, the phasing of payments for a drama serial or a long running series will be considered on a case by case basis. 14 4. Licence Period The BBC will acquire a 10 year licence to use the programme on its licence fee funded services on payment of the Primary Rights Licence Fee. For all programming except drama, comedy, music documentaries with the potential for further broadcast on 6Music and commissions including a significant proportion of live music performances specially commissioned for the BBC, there will be a provision for a “break” in the licence after 5 years from first transmission of the programme (or the transmission of the last episode of the programme in the case of a series). After 5 years have expired, Independent Producers will be able to approach the BBC and request early release of the BBC’s programme licence to enable the Independent Producer to fully exploit its rights. The BBC will not unreasonably refuse or delay a response to the request. If the BBC has the intention to continue to exploit its primary rights licence for the duration of the 10 year licence, this will be reasonable grounds for the BBC to refuse to grant an early release of rights. As part of the BBC Public Service Rights, the BBC will have the exclusive right to broadcast/transmit the programme (see paragraph 6 below), exhibit/publicise/promote the programme), exercise new media rights (see paragraph 10 below), and use clips, including in weekly review programmes, for example ‘Pick of the Week’ (5 minutes per 30 minutes of programming during the Licence Period – consent is only required if the clip is being used in a new compilation, send up or “best of” programme). 5. Extension of Licence Period The BBC has the right to renew its licence for a further period of five years. If the BBC wishes to exercise this option it will make a payment of 15% of the Primary Rights Licence Fee as an advance against the further use payments set out in paragraph 6 below. Further extensions to the Licence Period can be mutually agreed on individually negotiated terms if this is acceptable to both parties. In the case of returning series, the BBC will have the opportunity to renew the exclusive licence for all previous series contracted under the Terms of Trade via further 5 year licence periods while the programme is still being commissioned. The extension fee shall operate as an advance against future use fee payments and shall be as follows: Licence Period Extension Fee (% of original licence fee) Extension 1 Year 10 – 15 15% Extension 2 Year 15 – 20 20% Extension 3 Year 20 – 25 25% Extension 4 Year 25 – 30 30% The extension fee will increase by a further 5% in the same way every 5 years. In respect of any renewals beyond the first licence renewal, the holdback relating to radio sales by the Independent Producer in the UK shall be limited to free-to-air broadcasters (see paragraph 9 below). The option to recommission a series lapses after 9 months from transmission of the last episode. 15 6. Pre-paid broadcasts of the programme and payment for further broadcasts This paragraph relates to payments to be made to Independent Producers in relation to their rights in programming. Please see paragraph 8 below concerning clearances required in underlying contributions or material. (a) Network Radio Payment of the Primary Rights Licence Fee entitles the BBC to exercise two “packages” of uses during the Licence Period, one from Tier A and one from Tier B. · Tier A – 2 transmissions on the analogue networks or 6 Transmission Days on the digital networks · Tier B – 1 transmission on the analogue networks or 4 Transmission Days on the digital networks The BBC may elect at any time during its Licence Period which package it intends to use from Tier A and which from Tier B as part of the Primary Rights Licence Fee. If, within its Licence Period, the BBC has exhausted the rights it has acquired in Tier A and Tier B, it may purchase further packages of rights from Tier C (below), upon payment to the Independent Producer of 10% of the Primary Rights Licence Fee, in respect of one “package” of uses from Tier C. For the avoidance of doubt, the payment to extend the licence described in paragraph 5 operates as an advance against the purchase of any further packages, if needed during the extension period. · Tier C – 1 transmission on the analogue networks or 10 transmission days on the digital networks (b) Nations Radio Where a programme is originally commissioned for Nations Radio the Primary Rights Licence Fee covers unlimited transmissions on Nations Radio during the Licence Period. Should the Licence Period be extended as per paragraph 5, the right to unlimited transmissions shall continue for that period. (c) Programmes commissioned for Network Radio, broadcast on Nations Radio The BBC shall be entitled on payment of 10% of the Primary Rights Licence Fee to acquire the right to unlimited transmissions on Nations Radio during the Licence Period of a programme originally commissioned for Network Radio. (d) Programmes commissioned for Nations Radio, broadcast on Network Radio The BBC shall be entitled on payment of 10% of the Primary Rights Licence Fee to acquire the right to 1 transmission on the analogue networks or 10 transmission days on the digital networks during the Licence Period of a programme originally commissioned for Nations Radio. 16 Welsh or Gaelic Language Programming In exercising the transmission rights above the BBC shall also have the right to reversion any programme from the Welsh or Gaelic languages to the English language and vice versa. Subject to Independent Producers having the requisite skills, the original programme producer shall have the first right to produce the reversioned programme. 7. Creative Archive The BBC will hold further good faith discussions with Independent Producers about the Creative Archive – with a view to agreeing how the Creative Archive could be covered under these Terms of Trade and the standard Programme Production Agreement. 8. Contracting Talent Subject to the general principles set out below, the BBC’s clearance requirements in relation to underlying contributions in particular programmes will be discussed and agreed with Independent Producers as part of the negotiations leading up to agreement of the Primary Rights Licence Fee. The BBC will make it clear what rights the BBC expects to be cleared and paid for as part of the Primary Rights Licence Fee, and what rights the BBC expects to be “clearable” i.e. the rights are cleared for use subject to a pre-agreed payment which would subsequently be made by the BBC, on exploitation of the relevant right. The requirements will vary according to the nature of the contribution and the prevailing working practices and standards of the radio production sector and will depend upon the nature of the programme, the contribution in question, the Primary Rights Licence Fee and the planned transmission packages. Notwithstanding the more limited rights that the BBC will be entitled to exploit under these Terms of Trade, where reasonable and in conformity with industry practice, the BBC would expect certain contributors to be contracted on an “all rights” basis. Network Radio As a general rule, for a commission for Network Radio, the Primary Rights Licence Fee will normally cover the cost of the clearance by the Independent Producer of the rights in any underlying material for 2 analogue network transmissions or 6 digital network transmission days unless otherwise agreed with the Independent Producer. Nations Radio As a general rule, for Nations Radio, the Primary Rights Licence Fee will cover the cost of 2 Nations transmissions, unless otherwise agreed with the Independent Producer. For particular programmes, certain contributors may be contracted by the BBC direct, often as part of a long term, possibly exclusive, deal. Where the BBC will be contracting contributors direct for the project that the Independent Producer has been commissioned to produce, this will be explained to the Independent Producer by the BBC upfront, as part of the pre-contract discussions. Unless this has been highlighted to the Independent Producer, the Independent Producer will be responsible for contracting underlying contributors to its programme. 17 The BBC has a number of collective agreements for the engagement of contributors negotiated with trade unions and industry bodies. Currently, the independent radio sector does not have a similar set of collective agreements. The BBC recognises that it needs to work with the independent sector to provide assistance and support in ensuring that its rights expectations can be met by producers and will be rolling out a strategy to support Independent Producers in the contracting of contributors as part of the implementation of these Terms of Trade. In the meantime, contracts should not be entered into with contributors on terms significantly different to the BBC’s standard agreements with the relevant bodies and unions applicable to the radio production sector, without BBC prior consent. The BBC will be entitled to approve certain ‘key agreements’ before they are signed by the Independent Producer. These will be raised with the Independent Producer as part of the pre-contract discussions and will be listed in the Commissioning Specification in the Programme Production Agreement. The BBC may request that the Independent Producer include certain provisions in the agreements as part of the approval process (for example a requirement for the relevant ‘key individual’ to cooperate with various publicity initiatives relating to the programme). 9. Distribution Arrangements The Independent Producer will retain distribution rights in the programme in the following manner: 9.1. Programme Sales (a) The programme cannot be sold to the UK radio or television market (including library sales or any reversion of the programme) during the Licence Period without the BBC’s consent (this restriction to be limited to free-to-air broadcasters after the first licence renewal). On expiry of the Licence Period the Independent Producer can sell the programme to any radio or television network. (b) The programme can be sold to the international market from 1st transmission or 6 months from delivery whichever is the earlier. The BBC is to retain a limited right to sell the programme as part of a sale of the network as a whole – please see paragraphs 9.2 (a) and (b) below. (c) Any sale of the programme shall be subject to the limitation that should the programme contain frequent references to the network brand (Radio 1, Radio 2 etc.) throughout the content of the programme, such sale shall require the consent of the BBC unless the references are removed. 9.2. Programme Sales by the BBC as part of a Network Sale (a) The BBC will retain the right to sell the programme internationally where the programme is part of a sale of an entire radio network for live or approximating live distribution (whether broadcast, transmitted or streamed over any platform). For example, BBCWW may enter into an agreement to sell a stream for transmission as a network overseas, but time-shifted to reflect the difference in time zones between the UK and the country where the stream will be rebroadcast. 18 The Independent Producer will receive fair and equitable payment on the basis of a formula that BBCWW can devise and agree with the Radio Independents Group always taking into account the administrative effort required to support such mechanism. (b) For the avoidance of doubt, as part of the proposition of sale of the network, BBCWW shall retain the right to licence the programme to the British Forces Broadcasting Service on terms to be agreed. 9.3. Format Rights The format rights are retained by the Independent Producer subject to the following: (a) The BBC shall have the exclusive option to re-commission the series for radio which will lapse after 9 months from transmission of the last episode. (b) Format rights cannot be exercised in the UK whilst the BBC still has a recommissioning right in the programme, except in relation to the potential for the programme to be commissioned for television broadcast (subject to the BBC’s right to commission the format for its television services, set out in (d) below); (c) When format rights are exercised outside the UK, any resulting programme etc. cannot be exploited back into the UK without the consent of the BBC during its Licence Period; (d) The BBC has the exclusive first option to commission for its television services within 9 months of first transmission of the programme. Subject to the Independent Producer having the requisite skills, it is intended that the producer shall be commissioned to produce any TV programming based on the format. If the producer has not previously been commissioned for television by the BBC, the parties will discuss in good faith who should produce the programme and in the event that the Independent Producer does not produce the programme, the payment of an appropriate format fee. (e) On exercise of the format rights in relation to television commissioning, the BBC shall have the option to re-commission one further programme or series of the programme for its radio services. Any pre-existing agreements (for example as a result of offers to other networks) that might preclude the exercise of these rights and consents by the BBC should be indicated to BBC Radio & Music Business Affairs as part of the pre-contract discussions. 9.4. Exploitation of Merchandising and Release of Products relating to the Programme Commercial exploitation of the programme through products can take place after the earlier of either transmission of the first episode of the programme or 6 months from delivery provided that: 19 (a) Books that are tied into the programme, CDs and audio cassettes of the programme and any other products containing programme material released within the UK during the Licence Period will be required to carry BBC branding and comply with the BBC’s trademark licence and guidelines (including quality control and sample approval), unless the BBC decides that BBC branding would not be appropriate. (b) Any other commercial merchandise such as food stuffs, t-shirts, soft toys etc. will require BBC approval, such approval not to be unreasonably withheld and subject to good faith discussions. Approval is to be deemed to have been given if due consideration followed by a decision and a response has not been given to the Independent Producer within one month of a request. 10. New Media 10.1 Public Service New Media Rights The primary licence fee covers the BBC’s public service new media rights. These include: (a) The exclusive right to make use of the programme or any associated additional new media material in any public service on-line, interactive or other new media service for a period of 7 days from first transmission including live or near-live streaming, downloads (where a technological means exists to limit availability for that period eg. DRM timed-out downloads) and audio-on-demand (AOD). (b) Where the programme is a series, the above rights shall apply to each individual episode for 7 days. In the case of AOD, the BBC will be able to offer each episode of the series by AOD for the duration of the series plus 7 days, unless the Independent Producer is commercially exploiting the programme through the release of CDs or audio cassettes as per paragraph 9.4(a) above. In these circumstances the BBC will only be able to offer a limited catch-up window of AOD for 7 days per episode’s transmission which will also include the preceding 4 episodes. (c) If the BBC repeats the programme or series, it shall be entitled to exercise the above rights during the Licence Period from each repeat transmission for further 7 day periods or longer (as applicable) but on a non-exclusive basis. (d) The ability to use without limitation of time, up to 5 minutes of extracts per 30 minutes of programme in any on-line or interactive service that is part of the BBC’s public services, such use being exclusive for the Licence Period and non-exclusive thereafter (consent being required from the Independent Producer if for the purposes of a new compilation, send up, or “best of” feature). (e) The exclusive right for there to be a programme related website on bbc.co.uk throughout the Licence Period, subject only to the producer’s Commercial Website Rights 20 Where an Independent Producer proposes a website or other interactive proposition as part of the programme proposal, and the BBC agrees that such a proposition should form part of the programme commission, the BBC and the Independent Producer will discuss in good faith who shall undertake this work. The Independent Producer shall have first option to produce these aspects of the commission provided that their proposal is editorially and technically acceptable, meets BBC guidelines and represents value for money. 10.2 Commercial New Media Rights The Independent Producer will retain the commercial new media rights in the programme in the following manner: (a) A commercial website based on the format of the programme which is editorially acceptable to the BBC and does not conflict with the BBC’s public service new media rights can be set up 7 days post transmission of the programme. (b) Up to 5 minutes per 30 minutes of programming can be featured on the Independent Producer’s website for promotional purposes for up to 6 months. (c) Following expiry of the BBC’s initial 7 day public service window, set out in paragraph 10.1 (a) above, the commercial download and audio-on-demand rights shall be exercisable by the Independent Producer subject to the BBC's prior consent. The BBC’s consent shall not be unreasonably withheld or delayed and shall be provided within one month of receipt of the request by the BBC. By way of example of the BBC's criteria in granting or withholding approval, where the proposition is offered in an environment substitutional for a retail CD sale, this should normally be acceptable. However, where the proposition is offered in an environment which resembles a broadcast schedule rather than a retail sale, this is less likely to be acceptable to the BBC. (d) In accordance with paragraphs 9.2(a) and 10.1(a) above, the BBC shall retain the right to stream the programme itself as part of its public service rights or as part of a sale of an entire radio network for live or approximately live distribution internationally. Where sold, the Independent Producer will receive fair and equitable payment on the basis of a formula the BBC can devise and agree with the Radio Independents Group always taking into account the administrative effort required to support such mechanism. (e) Any other new media rights (falling outside of the BBC’s public service new media rights above) cannot be exercised by the Independent Producer until 7 days after programme transmission (or the last episode of the series – where applicable) and without the BBC’s consent during the Licence Period. The BBC will not unreasonably withhold or delay its consent. 11. Interactive Requirements Certain additional materials for interactive radio services to be offered in conjunction with the programme will need to be delivered as part of the commissioning brief. These will be discussed and agreed with the Independent Producer upfront and will be set out in the Commissioning Specification, together with a timetable for delivery of these elements, but typically, these may include: 21 (a) A requirement for the Independent Producer to supply and enter a description of the programme, the issues it covers, an outline of who features in it and metadata associated with the programme into BBC nominated computer systems and content productions systems as requested. (b) A similar requirement for the Independent Producer to enter track-listings for any music based programme and contact details of any relevant organisations featured in a programme. (c) A requirement to supply pictures or images to illustrate the programme where in the BBC’s view it is appropriate. (d) A requirement to supply full length original interviews for use on-line where the audio file is available. 12. World Service The BBC can acquire the non-exclusive right to broadcast the programme (or any part of it) on the BBC World Service on payment of 5% of the Primary Rights Licence Fee and the cost of clearing the rights in any underlying material. This option must be exercised within 2 years of the first transmission of the programme on the BBC’s national radio networks. The right to broadcast the programme in the World Service will consist of the right to broadcast the programme in cycles of 7 broadcasts in each World Service region provided those cycles of broadcasts take place within a period of 8 days. It will also consist of the right to make use of the programme through an audio-on-demand service for a period of 7 days from each transmission on the World Service. The Independent Producer will be responsible for ensuring that the above rights are clearable, i.e. subject to payment by BBC World Service of a pre-agreed fee (where appropriate), underlying rights and contributions in the programmes may be exercised. The mechanism for this will be discussed as part of the pre-contract negotiations. 13. Disputes Resolution Process The General Terms to the Programme Production Agreement will include a clear process by which Independent Producers may raise individual disputes that may arise in connection with these Terms of Trade. Additionally, should the Independent Producer have any particular issues that they wish to raise informally with BBC Business Affairs, they should feel free to contact the Head of Business Affairs for Radio & Music or the BBC Director of Business Affairs.