BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS
BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS 1. Introduction The information contained in this document covers new programming commissioned from independent production companies for the BBC from 7 July 2014. BBC Store rights in each underlying contributor area need to be granted and cleared in accordance with the detail in this document. The new Terms of Trade framework and standard contract documents provide for the grant of rights for BBC Store from independent producers to BBC Store Limited at the point of commission, in order to deliver the ambition of BBC Store. The new Terms of Trade framework is being implemented from 7 July 2014. This grant of BBC Store rights is solely for the purposes of direct-to-consumer exploitation through BBC Store; it does not allow the BBC to exploit or wholesale those rights through any other retailer. It does not include any other programme rights, such as subscription, rental, secondary TV, DVD or ex-UK DPO/ DTO/ EST. As stated in this document, contributor deal information is needed from independent producers by BBC Store in order for payments to be accurately administered. The BBC (via BBC Worldwide Talent Accounting) can only guarantee to make timely and accurate payments to contributors as provided for in this document as long as complete and accurate information is delivered to the BBC Worldwide Rights management team in a standard template that will be supplied. 2. Clearance of BBC Store Rights The BBC Store will enable programmes to be available digitally via Digital Permanent Ownership (see 4(i) below). For all new independently produced programme commissions, contributor and underlying rights are to be cleared to enable programming to be available in the BBC Store at the same time as they are available in the BBC iPlayer, soon after broadcast. Distribution investment by BBC Worldwide or a third party distributor Clearances: Those programmes with investment from BBC Worldwide or a third party for DVD and DPO/DTO rights as part of the package should proceed as ‘business as usual’ and follow all the established processes associated with ensuring the underlying rights are cleared for exploitation. In these underlying arrangements, rights for BBC Store will be covered as a subset of the wider clearances and no further action in relation to the underlying clearances should be needed. Details regarding the payment mechanisms are set out in this document. Grant of rights to distributor: BBC Store rights will need to be retained by the independent nonexclusively, with the grant of rights to the distributor being expressed as subject to the BBC Store Rights which are retained for the purposes of the independent producers’ agreement with the BBC. 3. BBC STORE – Editorial, Legal and Compliance risks If you foresee any editorial, legal or compliance risks in your Programme being included in BBC Store, please flag this as soon as possible in your commissioning negotiations with your Business Affairs Manager. Any necessary limitations as a result of legal, editorial, or compliance issues will need to be reflected in your agreement with BBC Store (if necessary by way of amendment prior to programme delivery). BBC Store Clearance Manual for Independent Producers [July 2014] Page 1 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS 4. (i) BBC Store Rights Definitions The ‘BBC Store’ and ‘BBC Store Rights’ definitions should only be used in underlying arrangements where existing definitions (e.g. wider definitions of digital rights) are not already in place. Most of the contributor agreements in use have appropriate definitions already and these should not be superseded by these definitions as this could result in a diminution of the overall rights position. If you are unsure please consult your BBC Business Affairs Manager in the first instance. The following definitions should be used whenever specific BBC Store definitions are required. It is important that there is consistency of use. BBC Store and BBC Store Rights definitions: “BBC Store” means the BBC’s digital retail platform [approved by the BBC Trust (or any successor entity)] “BBC Store Rights” means the [non-exclusive] right for the BBC (which, for the purpose of this definition, means the BBC and/or any entity within the group of companies of which the BBC is the ultimate owner) to exploit [the content/contribution/Programme] by way of Digital [Permanent] Ownership on BBC Store and to use extracts from [the content/contribution/Programme] to promote BBC Store and/or the availability of the [the content/contribution/Programme] on BBC Store. “Digital [Permanent] Ownership [(DPO)]” means the license of an electronic, non-tangible copy of [the content/contribution/Programme] which may be made available for repeated private viewing by an authorised user over an indefinite period of time in accordance with the relevant user permissions. Note: These words – to be used where it would benefit the context Any proposal to specify limitations on duration or territory in underlying agreements must be flagged as soon as possible in your commissioning negotiations with your BBC Business Affairs contact and these will need to be reflected in your agreement with BBC Store (if necessary by way of amendment prior to programme delivery). BBC Store Clearance Manual for Independent Producers [July 2014] Page 2 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS 4. (ii) CONTRIBUTOR RIGHTS FRAMEWORKS – REQUIRED APPROACH Where the relevant DPO rights are not covered upfront in the commission via investment deals the underlying contributor rights should be cleared as follows: BLANKET & COLLECTIVE ARRANGEMENTS Contributor Group Rights Action Directors UK Directors Covered under blanket D UK licence No action required by independent producer other than to observe the usual reporting requirements. MCPS/ PRS - Mechanical Copyright Protection Society/ Performing Rights Society PPL - Phonographic Performance Limited Mechanical reproduction (‘notes on the page’) & performance rights - Use of music Collective licence held by BBC Worldwide. compositions & song lyrics PLEASE NOTE that songs written by The Doors, Bonnie Raitt, Journey, Neil Young & Jackson Browne cannot be used in BBC content Use of recorded music Collective licence held by BBC Worldwide. No action required by independent producer other than to observe the usual restrictions, reporting and clearance requirements. No action required by independent producer other than to observe the usual restrictions, reporting and clearance requirements. PLEASE NOTE that recordings by the Beatles, John Lennon, The Doors, Bonnie Raitt, Journey, Neil Young, Jackson Browne & Original Film Soundtracks cannot be cleared for BBC Store Writers’ Guild / PMA Script writers (i) Invested Programmes: Where DPO/ DTO rights (excluding Store rights) have been acquired up-front against distribution investment & so triggering the 5.6% royalty payment, this will be administered as follows: for BBC Worldwide invested content: in line with the applicable terms agreed for talent reporting; for content invested by another 3rd party distributor (or the Producer): the responsibility for administering BBC Store talent accounting will be agreed by the BBC and the Producer on a case by case basis and set out in the BBC Store Schedule N.B. For exploitation on BBC Store, the WGGB/PMA has agreed with the BBC that a the gross receipts shall be defined as all nonphysical programme sales revenue received by BBC Worldwide minus (a) sales tax (b) a 30% platform retention and (c) customer refunds BBC Store Clearance Manual for Independent Producers [July 2014] Page 3 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS (ii) Non-Invested Programmes: Where DPO/DTO rights are not invested in, Payment will be made to writers via the Writers Digital Payment Scheme (WDP). The WGGB/ PMA have agreed to provide for this mechanism in their PACT/ WGGB Agreement. This collective arrangement with the WDP will be facilitated by the BBC and BBCW, and it is envisaged that the WDP shall not be able to administer any recoupment of the Writer’s SUA (if applicable). NB: Writers details, sales figures & other data will be reported by the BBC/ BBCW to WDP. Details of all deal terms agreed for writers by the independent producer need to be delivered to BBC Worldwide Rights management team. Accurate paperwork from the independent to BBCW will be essential to the smooth running of this process. Film Clips; Film Libraries: Film clips ITN Associated Press PATHE BFI Imperial War Museum BBC Archive footage distributed by Motion Gallery included in a BBC-commissioned programme under standard arrangements is available for BBC Store. No further action is required by independent producers for BBC Store, and there are no reporting requirements for BBC Store other than the usual PasC requirements (independent producers may see a cost recovery against the blanket in the distribution statement from BBC Store provided the mechanism has been approved by the BBC Store Advisory group). NB: (i) Underlying rights costs may still be payable upfront for Store on some clips from these libraries; please discuss with your BAM before any costs are incurred. For use of footage from all other film libraries please see ‘Individual negotiation’ box below Music Performance - BBC Singers BBC Concert Orchestra BBC National Orchestra of Wales BBC Philharmonic Orchestra BBC Scottish Symphony Orchestra BBC Symphony Orchestra Inclusion of footage from these libraries in Independent Productions for the BBC is covered by the BBC’s blanket arrangements negotiated for BBC Store (in perpetuity). (ii) All BBC Public Service rights and other commercial exploitation rights need to be negotiated with the relevant film archive (business as usual). BBC Performing Groups No additional action required by independent producers for BBC Store BBC Store Clearance Manual for Independent Producers [July 2014] Page 4 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS ROYALTY PROVISIONS Contributor Group Rights Action Writers’ Guild/ PMA Script Writers See details set out above Equity Artists in programmes excluding those detailed below Where rights have not been pre-purchased, royalties are payable in line with the relevant PACT Equity Agreement (unless varied in the individual talent agreement with the prior written approval of BBC Store Ltd and/or the BBC, such approval not to be unreasonably withheld or delayed). UPFRONT BUYOUTS Contributor Group Rights Action Equity Actors – dramatic insert in a Factual programme Equity Extracts Presenters On-air presenters Terms of the PACT Equity TV Agreement Clause T (23) 17 can be applied as applicable. Terms of the PACT Equity TV (Clause 24) to be used to acquire all sales. (N.B. where consent is required it will be sought from the artist for use of the extract at the point of incorporating the extract in the programme). BBC Store rights to be included in upfront engagement fees paid. (NB presenters usually contracted on All Rights agreements however in some cases it is recognised that bespoke key talent deals will apply – details must be raised with your usual BBC Business Affairs Manager at the earliest opportunity and set out in the BBC Store Schedule, if necessary by way of amendment prior to programme delivery). Musicians’ Union Session Musicians: Where buyout payable: BBC Store rights covered by either: (i) when the ‘combined use’ buyout fee has been applied, or (ii) 10% UK residual buyout payable by Independent Producer in line with PACT/ MU Agreement NB: Royalty payments can be made for secondary uses by the independent producer (except for repeats & commercial audio) as an alternative to the Residual Buyout of 10%, particularly in the case of music programming where residual costs are deemed prohibitive following discussion with your BBC Business Affairs Manager. See below for details. But note that once the royalty is invoked for one type of exploitation, you cannot later revert to the buyout for other uses. BBC Store Clearance Manual for Independent Producers [July 2014] Page 5 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS Musicians’ Union Session Musicians: Where royalty payable: Buyouts should be used where possible for BBC Store exploitation of MU contributions in non-invested programmes. For invested titles either a royalty or a residual can be chosen (but see caveat above): Music programmes: 17/21% royalty on gross receipts payable on a pro-rata basis based upon their Residual Basic Fee N.B. For exploitation on BBC Store, the MU has agreed with the BBC that gross income shall be defined as all nonphysical programme sales revenue received by BBC Store minus (a) sales tax (b) a 30% platform retention and (c) customer refunds Non-Music programmes: Home video 2005 onwards: 4% royalty on gross receipts payable on a pro-rata basis based upon their Residual Basic Fee N.B. For exploitation on BBC Store, the MU has agreed with the BBC that gross income shall be defined as all nonphysical programme sales revenue received by BBC Store minus (a) sales tax (b) a 30% platform retention and (c) customer refunds Royalties to be administered as follows: for BBC Worldwide invested content: in line with the applicable terms agreed for talent reporting; for content invested by another 3rd party distributor (or the Producer) the responsibility for administration will be agreed by the BBC and the Producer on a case by case basis and set out in the BBC Store Schedule. Use of ‘still’ pictures/ photographs Terms agreed with BAPLA (British Association of Picture Libraries and Agencies) for all BBC and independent producers for worldwide DPO clearance If not already acquired under commercial rights purchased, ensure that DPO Rights are included at point of contract. New BBC/BAPLA-agreed terms (available to independent producers commissioned by BBC) are: - Where all commercial rights required, pay 650% of current initial fee for commercial buyout. Where DPO rights only are required apply 35% current initial fee for all DPO rights (not just BBC Store) Artworks Terms agreed with DACS (Design and Artists Copyright Society) for all BBC and independent If not already acquired under commercial rights purchased, ensure that DPO Rights are included at point of contract. New BBC/DACS-agreed terms (available to BBC Store Clearance Manual for Independent Producers [July 2014] Page 6 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS producers for worldwide DPO clearance independent producers commissioned by BBC) are: - Where all commercial rights required, pay 600% of current initial fee for commercial buyout. - Where DPO rights only are required apply 100% current initial fee for all DPO rights (not just BBC Store) INDIVIDUAL NEGOTIATION Where bespoke deals are negotiated with a contributor please ensure your BBC BAM is aware to ensure contributors are paid accurately. Contributor Group Rights Action Film clips from libraries not included in BBC blanket arrangements listed in ‘Blanket and Collective Arrangements’ section above Source Works (books for adaptation) Film Clips Individual negotiation should seek to include BBC Store rights for the UK in the fee paid. Source works for adaptation No standard agreements are in place for the use of source material within independently produced programmes. Deals negotiated on a case by case basis – please discuss with your usual BBC Business Affairs Manager before finalising terms for BBC Store. Formats Programme formats No standard agreements are in place for the use of format material within independently produced programmes. Deals are negotiated on a case by case basis – please discuss with your usual BBC Business Affairs Manager before finalising terms for BBC Store. Music Performance - Artists with exclusive recording contracts Artists performance in non-music programme Independent may be able to benefit from existing BBC/ BBC Worldwide/ Label agreements, or from BBC’s current discussions with music labels to agree BBC Store terms for all new in house and independent programmes. Talk to your usual BBC Business Affairs Manager, or Daniel Miller, BBC Radio & Music Business Affairs (BBC ext. 07317363, or mobile 07711348752) for further advice. Music Performance - Artists with exclusive recording contracts Artists in Music programmes Independent may be able to benefit from existing BBC/ BBC Worldwide/ Label agreements, or from BBC’s current discussions with music labels to agree BBC Store terms for all new in house and independent programmes.Talk to your usual BBC Business Affairs Manager, or Daniel Miller, BBC Radio & Music Business Affairs (BBC ext. 07317363, or mobile 07711348752) for further advice. Talk to your usual BBC Business Affairs Manager for further advice. BBC Store Clearance Manual for Independent Producers [July 2014] Page 7 BBC STORE – CLEARANCE MANUAL FOR INDEPENDENT PRODUCERS Music Docs Music Documentaries Independent may be able to benefit from existing BBC/ BBC Worldwide/ Label agreements, or from BBC’s current discussions with music labels to agree BBC Store terms for all new in house and independent programmes. Talk to your usual BBC Business Affairs Manager, or Daniel Miller, BBC Radio & Music Business Affairs (BBC ext. 07317363, or mobile 07711348752) for further advice. VPL (Video Performance Limited) Use of music videos Negotiated on individual basis with relevant 3rd party Contact Catherine Grimes in BBC Music Copyright for advice. PLEASE NOTE that music videos by the Beatles, John Lennon, The Doors, Bonnie Raitt, Journey, Neil Young & Jackson Browne cannot be cleared for BBC Store Sports Clips Individual negotiation should seek to include BBC Store rights in the fee paid. Please discuss with your usual BBC Business Affairs Manager before finalising terms for BBC Store, or for further advice. Other (eg Non DACS / MU represented content etc) It is recognised that in some cases bespoke arrangements will need to be agreed with contributors by independent producers which fall outside the standard approaches set out above. In these cases please discuss proposed arrangements with your BAM before incurring any additional costs in respect of BBC Store. BBC Store Clearance Manual for Independent Producers [July 2014] Page 8
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