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).
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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).
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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
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(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
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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.
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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
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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.
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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.
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