On 27 January 2025, Ofcom published a consultation document outlining proposed revisions to its Guidance for Public Service Broadcasters (PSBs) on commissioning independent productions. Independent productions are crucial to public service media as they contribute significantly to the diversity, creativity, and quality of content available to UK audiences. The consultation document highlights the importance of independent productions in public service media and the need for transparency and flexibility in commissioning practices to meet evolving audience needs.
The proposed revisions in the draft guidance are driven by the need to reflect the changes introduced by the Media Act 2024 which grants PSBs greater flexibility in delivering their quotas for independent productions. For the first time, PSBs can count independent productions commissioned in accordance with Ofcom's guidance and made available on their on-demand players towards their quotas. Additionally, the Media Act introduces a new transparency measure requiring PSBs to provide information to independent producers about the application of their Codes.
The revised Guidance aims to ensure that PSBs' Codes address several key issues to support the commissioning of independent productions. These include:
- Timetable for negotiations: The Codes must ensure a reasonable timetable is applied to negotiations for commissioning independent productions and concluding binding agreements.
- Clarity on rights: There must be sufficient clarity about the different categories of rights being disposed of when an independent production is commissioned.
- Transparency on payments: The Codes should ensure transparency about the amounts to be paid for each category of rights.
- Duration and exclusivity of rights: Satisfactory arrangements must be made regarding the duration and exclusivity of the rights acquired by the PSB.
- Review and compliance procedures: The Codes should include procedures for reviewing the arrangements adopted and demonstrating compliance with it. This includes monitoring the application of the Code and making reports to Ofcom.
- Dispute resolution: Provision must be made for resolving disputes arising from the provisions of the Code, potentially through independent arbitration.
- Information for independent producers: The Codes must ensure that independent producers are given appropriate information about the application of the Code.
Ofcom's proposed changes are expected to benefit both PSBs and independent producers by supporting effective commercial relationships and serving the interests of audiences. By addressing key issues such as transparency, flexibility, and market developments, the proposed changes aim to ensure that PSBs can continue to deliver high-quality, diverse content that meets the evolving needs of UK audiences.
However, Ofcom acknowledges that not everyone might be happy; for example, in relation to its proposal to remove the absolute prohibition on linked or conditional offers for primary and secondary rights, Ofcom recognises that "some producers may be concerned that this change to our Guidance would weaken their ability to retain and exploit secondary rights". Indeed, the UK TV and film body, Pact, has raised concerns on this very point, stating that "[t]he removal of these prohibitions represents a fundamental change from the previous guidance and will impact the balance of negotiating power between the producer and the PSB, impacting on production financing and ultimately stifling competition and the growth of the sector". Of course, Ofcom disagrees, noting that both PSBs and producers may benefit from greater flexibility and reduced costs due to fewer rounds of negotiations. Time will tell...
The consultation period is open until 10 March 2025, with the final Guidance expected to be published in summer 2025.
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