DATED day of (1) THE BRITISH BROADCASTING CORPORATION

Transcription

1 DATED day of BBC IP COMMISSIONING AGREEMENT BETWEEN (1) THE BRITISH BROADCASTING CORPORATION (2). LIMITED [PROGRAMME TITLE]

2 THIS PROGRAMME PRODUCTION AGREEMENT FOR A BBC-OWNED FORMAT/PROGRAMME Dated... day of IS MADE BETWEEN: (1) THE BRITISH BROADCASTING CORPORATION of Broadcasting House, London W1A 1AA (the BBC ) and (2) [THE PRODUCER] of [ ] with company number [ ] (the Producer ) AGREEMENT BETWEEN THE PARTIES: 1. The Producer shall produce and deliver to the BBC a radio programme or series of programmes, the detail of which is set out in Schedule 2 (the Programme ) and the BBC shall pay the Licence Fee, in accordance with (i) the terms contained in the Special Terms set out in Schedule 1 to this Agreement (the Special Terms ), (ii) the BBC s General Terms for the Production of Radio Programmes by Independent Producers (2015), a copy of which has been provided to the Producer and which is also published on (the General Terms ) and (iii) the other Schedules to this Agreement. 2. Words and expressions defined in General Term 1 of the General Terms shall have the same meanings where used elsewhere in this Agreement. 3. This Agreement shall take effect from the date of commencement of production on the Programme by the Producer or the date of execution of this Agreement whichever is the earlier. 4. In the event of any conflict or inconsistency between the Special Terms and the General Terms, the former shall prevail. This Agreement is entered into on the date written above. Signed:. for and on behalf of the British Broadcasting Corporation Name:. Position:. Signed:. for and on behalf of the Producer Name:. Position:. BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 2

3 SCHEDULE 1 SPECIAL TERMS 1. BBC Representatives: BBC Editorial Representative BBC Finance Representative BBC Business Affairs Manager Name Telephone 2. Licence Fee: 2.1. It is agreed that the total Licence Fee shall be [ ] (excluding VAT) (this is based on a per episode fee of [ ]). On the invoice the following must be stated: Programme Purchase Order number [ ] BBC Reference: [ ] The invoice should be sent to: BBC ACCOUNTS PAYABLE, PO BOX 747, REDHILL RH1 9GE or directly through the BBC s electronic invoicing portal Payable: In accordance with the following Stage Payments: [ ] 3. Contributor rights - pre-paid uses 3.1. The Producer shall contract contributors to the Programme within the Licence Fee on the minimum basis as set out in General Term 6 save only as may be varied in Special Term 3.2 or as otherwise agreed in writing by the BBC The minimum pre-payment required to be made within the Licence Fee in relation to the following contributors is as set out below: Artists Presenters/ Interviewees/ Narrators/ Voiceovers Writers Archive and Stills (if applicable) Other 4. Agreed Recoupments (as referred to in the definition of Net Revenue) None. 5. Variations to General Terms 5.1. The Producer agrees that the words Merchandise Rights and Commercial New Media Rights shall be removed from the definition of Distribution Rights. BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 3

4 5.2. The definition of Net Revenue shall be deleted and replaced with the following: Net Revenue means gross revenue arising in relation to the exercise of the Distribution Rights (less any element withheld from the relevant distributor by way of withholding tax duty or levy) less the following deductions in the following order of priority where applicable and in the case of (d) (e) and (f) applied only to the revenue to which the advance or direct costs relates: (a) reasonable and customary distribution commission in line with standard industry practice (which shall be inclusive of any sub-distributors and/or sub-licensees and/or agents commission and which shall be approved by the BBC or Producer as appropriate where the relevant distributor is, or is connected to, the other party, such approval not to be unreasonably withheld or delayed); (b) all direct costs and expenses of and relating solely and directly to the exploitation of the Distribution Rights in line with standard industry practice (including but not limited to any actual costs incurred in respect of prints and master materials, publicity, advertising, shipping, freight and insurance, reversioning, editing, dubbing and subtitling the Programme, stock, duplication, physical distribution, artwork, sleeve duplication and certification); (c) (d) any payments of residuals or royalties or use fees or repeat fees payable in relation to the exercise of the Distribution Rights in accordance with normal practice in the independent radio production sector (but not including those relating to exploitation by the BBC of the BBC Public Service Rights during the Licence Period which have been prepaid); any advances (including distribution advances) which are: 1. paid by a third party to the BBC or Producer as appropriate in respect of the Programme; 2. actually applied by the BBC or Producer as appropriate towards the direct cost of production of the Programme; 3. recoupable by such third party; and 4. agreed by the BBC and specified in the Special Terms. And such advances shall be deducted only from revenue from the Programme and not Audio Visual Content; (d) any advance made by the Producer (in excess of the Licence Fee) and actually applied towards the direct cost of production of the Programme(s) which has been agreed with the BBC and is specified in the Special Terms (and such advances shall be deducted only from revenue from the Programme and not Audio Visual Content); (e) in the case of gross revenue from exploitation of Audio-Visual Content only, the direct costs of production of the Audio-visual Content as pre-agreed with the BBC; (f) any other amounts agreed with the BBC and specified in the Special Terms (or otherwise subsequently agreed with the BBC in writing) to be recoupable or deductible from gross revenue; except where the BBC or Producer as appropriate is entitled to a share of gross revenue arising in connection with the exercise of the relevant Distribution Rights where none of the deductions listed in (a)-(g) above are applicable in which case Net Revenue shall mean the share of gross revenue arising in relation to the exercise of the Distribution Rights payable to the BBC or Producer as appropriate by the distributor Provided That and without prejudice to the generality of the foregoing, in respect of exploitation of Audio-Visual Content only and where the direct costs of production are met by the BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 4

5 Producer, the share of gross revenue for which the BBC or Producer is entitled to and arising in connection with the exercise of the applicable Distribution Rights for such Audio-Visual Content shall be applied first to the direct costs of production of Audio- Visual Content as pre-agreed with the BBC Clause 12.1 shall be deleted and replaced with the following: 12.1 Assignment Subject to any underlying rights clearances as specified in the Special Terms and subject to General Term the Producer as legal owner with full title guarantee assigns to the BBC absolutely the entire copyright whether vested contingent or future and all right title and interest of whatever nature (including without limitation the Format, the BBC Public Service Rights and Distribution Rights in the full Programme (save as expressly permitted in General Term 16 and notwithstanding General Term ), any rental and lending rights, any domain names, design rights, rights in trade marks or other similar rights and the benefit of all production contracts relating to the Programme) in and to the Programme in all languages and in all the materials used or created and in the products of the services provided in connection with the Programme including without limitation the publicity stills and title of the Programme whether now known or in the future created to which the Producer is now or may at any time after the date of this Agreement be entitled by virtue of or pursuant to any of the laws in force in any part of the world TO HOLD the same to the BBC its successors licensees and assignees absolutely for the full duration of such rights (including all renewals reversions and extension thereof and thereafter (to the extent possible) in perpetuity) throughout the world Notwithstanding General Term the Producer may set out in writing at the time of tendering and/or during the course of the Agreement as applicable (but at the latest at the time of inclusion in the Programme) any new format elements or creative elements in the Programme that it has itself created or will create, on the following basis: such elements must be sufficiently distinctive, outside of the Programme specification contained in the tender document and/or beyond the reasonable expectation of creative renewal in making the Programme; any proposed new format elements or creative elements set out will be defined and agreed in writing with the BBC ( Agreed New Creative Elements ); the BBC will have the perpetual right to use the Agreed New Creative Elements as contained within any Programme made under this Agreement in any service or activity now existing or developed in the future which is provided or carried out for the purpose of promoting the Public Purposes of the BBC as set out in the BBC s Royal Charter and that fall within the definition of UK Public Services set out in the BBC Agreement with the Secretary of State for Culture, Media and Sport and any successor to or variation of that definition or the Charter or Agreement; and BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 5

6 the BBC will have an option to buy out the rights in the Agreed New Creative Elements at the time of either re- tender of the Programme or if the Programme becomes an in-house produced programme by the BBC for a fee to be discussed and agreed in good faith If the BBC re-tenders the Programme the BBC will omit any Agreed New Creative Elements from all future tenders of the Programme unless the BBC and the Producer have agreed terms for the buy-out of the Producer s rights in such elements in accordance with General Term Sub clauses 12.2, 12.3, 12.4, 12.5, 12.7, 12.8 and 12.9 shall be deleted in their entirety Clauses 14 and 15 shall be deleted in their entirety Clause 16.1 shall be deleted in its entirety and replaced by the following: 16. Distribution Rights 16.1 The BBC and the Producer jointly own the Distribution Rights in the Programme in accordance with the following guidelines: At the time of signing this Agreement the BBC and the Producer will discuss and agree in good faith in each instance who is best placed to exploit the relevant Distribution Rights in the Programme, and the Parties shall in any event agree in good faith upon any exploitation to take place save that the Producer acknowledges that the BBC shall have the sole right to exercise the Distribution Rights or other exploitation rights as follows: as part of the BBC Network Rights; inclusion of the Programme in any BBC commercial service; inclusion of the Programme or part of the Programme in any direct to consumer BBC online store, including the venture currently known as BBC Store; inclusion of any music performances (to be available nonexclusively) as part of any BBC online store or in a BBC branded music offer, or as part of a grant of commercial rights to any record label as part of its agreement with the BBC; and where exploitation takes the form of exploitation of brand/title/format of the Programme as a historic asset as opposed to the audio Programme itself The Producer will be entitled to receive or retain 30% of Net Revenue from exploitation of the Programme and/or any related audio-visual content: the Producer generates a particular commercial idea in respect of the audio Programme itself (as opposed to the brand/title/format of the Programme as an historic asset) and undertakes the commercial exploitation, in which case BBC and Producer will agree in good faith a higher BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 6

7 share of Net Revenue to the Producer up to a maximum of 50%; or exploitation is of the brand/title/format of the Programme as a historic asset (as opposed to the audio Programme itself) by the BBC or in exceptional cases by the Producer notwithstanding that the Distribution Rights excludes exploitation of the brand/title/format of the Programme as a historic asset, in which case the BBC and the Producer shall discuss in good faith the percentage share of Net Revenue due to the Producer ranging from 0% to 50% dependent upon the nature of the exploitation proposed, which party has proposed/carried out the exploitation and the relationship between the exploitation proposed and the engagement of the Producer in the Programme in question both over time and in terms of the elements of the Programme being exploited In the event that the BBC carries out commercial exploitation in the Programme it will make payments to the Producer resulting therefrom every six months provided that no statement will be sent if no Net Revenue was received in the applicable period, and if the sum due to the Producer is less than 100, such sum shall be carried forward to the next accounting period. The BBC will use reasonable endeavours to include in its contracts with its sub-licensees terms granting substantially similar rights to the BBC and obligations upon its sub-licensees as those contained in General Terms and General Term (i) shall be deleted in its entirety and replaced by the following: in relation to the UK or Eire radio or television market (including Library Sales or any reversion of the Programme) or the Audio-on-Demand Rights or Video-on-Demand Rights in the UK or Eire without the BBC s consent General Terms (iv), (vi) and (ii) shall be deleted in their entirety General Term shall be deleted in its entirety and replaced by the following: it shall be entitled (but not obliged) to create Audio-visual Content (whether as part of the Commercial New Media Rights or otherwise) if the BBC at its sole and absolute discretion grants express written approval to the Producer to do so and under terms for any uses and exploitation by both the BBC and the Producer to be agreed by the Parties, and all other references to Audio-visual Content in the General Terms shall be deleted save the definition of Audio-visual Content in General Term General Term shall be deleted in its entirety and replaced by the following: The Producer and the BBC (save that in the case of the BBC it will be subject also to the BBC s Fair Trading and Editorial Policy Guidelines) shall use its reasonable endeavours to promote and ensure the exploitation of the Programme and shall use all reasonable endeavours to procure that offers from third parties for the exploitation of the Programme and/or Format are upon the best commercial terms reasonably obtainable on an arm s length basis, and shall ensure that the BBC or Producer (as appropriate) actual share of revenues (at the relevant percentage under General Term ) remains at what would be expected as the market BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 7

8 rate for exploitation of the Distribution Rights taking into account the definition of Net Revenue General Terms 16.4 and shall be deleted in their entirety. 6. Special Provisions 6.1. The Producer shall ensure that all production staff directly employed by the Producer, or a company within the same group, working on the production and delivery of the Programme to the BBC are paid the appropriate National Living Wage, London Living Wage or Scottish Living Wage, as applicable, with regard to the location of their employment. The definition of the Living Wage that the BBC is taking as a benchmark is that set out by the Living Wage Foundation: [Additional special provisions as applicable] [End of Schedule 1] BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 8

9 SCHEDULE 2 COMMISSIONING SPECIFICATION 1. Editorial Specification Independent Producer Programme Title Programme Number Commissioning Network Genre Co production partners (if any) No of Episodes and Required Duration Tape Delivery Date (inc. episodic delivery and all paperwork) Transmission Date Production Credit (this will not be given on air for Radio 1 or 1Xtra) [ ] is a [ ] production for BBC Radio Editorial Brief / Specification (please replicate the offer in Proteus together with any agreed modifications) Scripts Approved at Commissioning Stage (date of accepted scripts): if applicable Live Music/sessions of recording artists/music documentary. Please supply details Editorial compliance considerations Potential editorial compliance issues that either will or may forseeably arise in connection with the Programme, and how these will be addressed, following discussions between the Producer and the BBC Editorial Representative (or the BBC Editorial Representative s authorised compliance representative as notified to the Producer): Editorially Responsible Person for the Independent Producer Child Licensing (where applicable to the Programme) Please confirm that the person who signs this Commissioning Specification is also the person within the company who is responsible for ensuring compliance with the Children (Performances) Regulations 1968 (as amended), and if not, please provide the name of the person who is taking such responsibility. Yes / No Yes/ No Yes/ No Programme on BBC Managed Risk Programme List Is the On-Air Talent / Presenter (or their agent) a director, shareholder or senior manager of the Independent Producer? BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 9

10 2. Production Brief Recording Type Secret Recording Hidden Microphones Pre-production consultation (please indicate treatment approval or any requirement for advance approval of script if required) Other specific production elements (if any) Any additional insurance required pursuant to General Term Key Approvals: The BBC requires approval of the following or relevant agreements and written approval of any change to the persons named below: Format owner On-Air Talent/ Presenter(s) Writer(s) Producer Executive Producer Key Advisor(s)/ Consultant(s) Director(s) Composer(s) Narrator(s)/ Voiceover(s) Script (if yes, please insert date) Name Key Agreement (the terms of which must be approved by the BBC in accordance with General Term 6.4) Other 4. Underlying Rights Source Material BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 10

11 Commissioned Material Third Party Material 5. Banking Bank Account Details Bank Branch Name of Account Production Account Details (only if required and agreed) Bank Branch Name of Account 6. Delivery and technical Requirements 6.1 Please refer to the BBC Delivery Website. The site has everything you need to know about delivering paperwork and data as well as the physical tape delivery itself. The site can be found at: Please refer to the following website for the technical standards on delivering quality (specific Network requirements can also be found within the Style Guidelines): Tape Delivery Full Delivery As above No later than 2 (two) weeks after transmission Delivery Format Support Materials Paperwork In respect of each episode of the Programme: Listening copies for Press, Commissioning Editor and Compliance Editor (if required) In respect of each episode of the Programme: 1. Music Reporting Form BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 11

12 2. Programme as Broadcast Form (also known as Running Order) 3. Compliance submitted via Proteus signed by the Editorially Responsible Person specified in clause 1 of the Commissioning Specification or, in the event of a Proteus failure, via 4. Presentation Details 5. Promotion Notes 6. Production Details Form for Radio Times billings and other publicity 7. Programme Risk Assessment (if required) 8. All paperwork ordinarily required for all broadcasts of the Programme acquired by the BBC under the terms of this agreement. Interactive Requirements In respect of each episode of the Programme: 1. Description of the Programme, the issues it covers, an outline of who it features, details of any music and metadata associated with the Programme (short, medium and long form text) 2. Contact details of any relevant organisations featured in the Programme (including relevant web links) 3. Text (if agreed) 4. One photograph (unless such other number is agreed) per Programme or episode of the Programme for online and/or interactive publicity such photograph to be of sufficient quality for such use 5. Interview clips if the Programme is produced for Radio 1/1Xtra, Radio 2, Radio 3, 6Music or Asian Network 6. Creation and publishing of podcast (where applicable and subject to BBC providing appropriate tools and training to do so) 7. For music series: Playlists/Now Playing data and Now Playing/VCS Genealogy (including Live Text) 8. Other (if agreed), please specify BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 12

13 7. Insurance Errors & Omissions Artist Weather Other (please specify) 8. Training Requirements Required BBC training course modules Pre-trained Production Personnel (For the purpose of these training requirements this shall not include any personnel the Producer is required to engage who shall be engaged after the date of signature of this Agreement) BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 13

14 Commissioning SCHEDULE 3 RELEVANT BBC WEBSITES Info/Policies Editorial Guidelines Delivering Quality (including technical requirements) and Health and Safety (Foreign Office site) BBC Radio Independent Producer BBC IP COMMISSIONING AGREEMENT SPECIAL TERMS - June 2017.dot 14