Section 285: Code relating to programme commissioning, Communications Act 2003

The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that the provider of the channel draws up and from time to time revises a code of practice setting out the principles that the provider will apply—

when agreeing terms for the commissioning of independent productions that will be included in television broadcasting services;

when agreeing terms for the commissioning of independent productions that will be included in other qualifying audiovisual services but which the provider wishes to count towards meeting the conditions included in the provider's licence by virtue of section 277(1) or (4) (programming quotas for independent productions).

That regime also includes the conditions that OFCOM consider appropriate for securing that the provider of every licensed public service channel—

at all times complies with a code of practice which has been drawn up by him by virtue of this section and is for the time being in force; and

exercises his power to revise his code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this section.

The conditions imposed under this section must ensure that the code for the time being in force in the case of every licensed public service channel secures, in the manner described in guidance issued by OFCOM—

that a reasonable timetable is applied to negotiations for the commissioning of an independent production and for the conclusion of a binding agreement;

that there is what appears to OFCOM to be sufficient clarity, when an independent production is commissioned, about the different categories of rights to broadcast or otherwise to make use of or exploit the commissioned production that are being disposed of;

that there is what appears to OFCOM to be sufficient transparency about the amounts to be paid in respect of each category of rights;

that what appear to OFCOM to be satisfactory arrangements are made about the duration and exclusivity of those rights;

that procedures exist for reviewing the arrangements adopted in accordance with the code and for demonstrating compliance with it;

that those procedures include requirements for the monitoring of the application of the code and for the making of reports to OFCOM;

that provision is made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise) in a manner that appears to OFCOM to be appropriate.

that such information about the application of the code as OFCOM consider appropriate is given to persons who make independent productions that are to be commissioned in accordance with the code.

The conditions imposed under this section must also ensure that the drawing up or revision of a code by virtue of this section is in accordance with guidance issued by OFCOM as to—

the times when the code is to be drawn up or reviewed with a view to revision;

the consultation to be undertaken before a code is drawn up or revised; and

the publication of every code or revised code.

The provision that may be included in a condition imposed under this section includes—

provision requiring a draft of a code or of any revision of a code to be submitted to OFCOM for approval;

provision for the code or revision to have effect only if approved by OFCOM; and

provision for a code or revision that is approved by OFCOM subject to modifications to have effect with those modifications.

OFCOM—

must issue and may from time to time revise guidance for the purposes of this section;

must ensure that there is always guidance for those purposes in force;

must, before issuing their guidance or revised guidance, consult the providers of licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and S4C; and

must publish their guidance or revised guidance in such manner as they think appropriate.

Guidance issued by OFCOM for the purposes of this section must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates.

Conditions imposed under this section requiring a code to be drawn up or approved may include transitional provision for treating a code drawn up before the imposition of the condition —

as satisfying the requirements of that condition; and

as a code approved by OFCOM for the purposes of conditions so imposed.

In this section "independent production" has the same meaning as in section 277.

See also section 278B (which makes further provision for the interpretation of this section).

Section 285: Code relating to programme commissioning

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