This agreement relates to a one-off agreement between the Author and Production Company for the Programme to allow the producer to make a radio programme based on the Authors underlying Works.
These explanatory notes have been produced in conjunction with and with reference to the BBC’s General Terms For The Production of Radio Programmes By Independent Producers (dates).
The notes are for use with the Underlying Source Material (Author) Contract v8.0.
The numbering below relates to the clauses in the Contract.
Producers are advised to consult the Publishers Association Complete Works Agreement with the BBC last updated on 8TH August 2006 for further guidance on situations not covered within the basic standard template contract. The figures referred to in this Agreement are from the Publishers Association Complete Works Agreement with the BBC. These are the industry standard agreed fees, however, you are free to negotiate your own contractual terms and fees as required.
This Agreement may be amended as required between the Parties and any further clauses may be inserted accordingly to meet those requirements.
Producers are, however, free to negotiate their own contractual terms as required. Further sources of information are available from the BBC Business Affairs website (http://www.bbc.co.uk/commissioning/radio/network/busaffairs.shtml) and the RIG website (http://www.radioindependentsgroup.org) in particular specific terms for contracts to be used by the Production Company.
Date: Insert the date the Agreement is signed by both you and the Author. This is normally hand written.
1.1 Insert the name and address of the Author, or the Author’s agent or Publisher if you are contracting with them. . It is strongly recommended that the Author signs in his/her real name or name used in Agreements relating to the Works in an attempt to prevent the Author at a later date changing his/her pseudonym and avoiding the obligations under the Agreement.
1.2 Insert your name, your registered office or trading address and company number if applicable.
1.3 Insert the name of the programme to be broadcast on the radio.
1.4 Insert the title of the literary or dramatic Works of the Author that will be used in Programme.
1.5 Insert the name of the Broadcaster, (e.g. the BBC.)
1.6 The definition of “Broadcast” is taken from the Publishers Association Complete Works Agreement with the BBC.
1.7 The Initial Fee is made up of the rates specified in Schedule 1, which illustrate the current standard broadcast rates per minute agreed between the BBC, the Publisher’s Association and the Society of Authors.
1.8 The Second TX Rate is currently 80% of the Initial Fee and if you wish to buy a second transmission upfront must be paid upon the First Broadcast of the Programme. If you only wish to purchase one transmission you do not need to pay the Second TX Fee and this amount can be removed from the Agreement. For BBC Radio Four’s Book at Bedtime and the Afternoon Reading the BBC will not require the right to repeat the Programme so this will not need to be pre-purchased and can be removed. Clause 3.4 of the Special terms of the agreement between you and the BBC will outline which rights must be pre-paid.
1.9 The Total Fee includes the Initial Fee and Second TX Fee.
1.10 The New Public Service Fee is currently 10% of the Initial Fee. This figure replaces the 3% fee for audio on demand and streaming and pre-buys BBC 7 repeats, which no longer require clearing each repeat individually.
1.11 Insert details of who the payments should be made payable to.
1.12 Insert how long the Programme will last, in minutes.
1.13 Insert details of where the Programme is to be broadcast, (e.g.) United Kingdom, Europe or the World.
1.14 Include details of what you and/or the BBC consider a radio broadcast. The standard provision is broadcast on the domestic radio services for the British Isles comprising Radio 1, 2, 3, 4, Five Live and BBC National Regions Radio and Local Radio and the World Service.
1.15 Insert the name of which radio channel the Programme will be broadcast on (e.g. BBC Radio 4).
1.16 If the Programme is a series enter the number of episodes. If only one episode enter the number one.
1.17 Insert the date of the first broadcast on the radio channel.
1.18 The Intellectual Property Rights are the rights the BBC needs to be cleared for them to use the Programme on further broadcasts and on different media.
1.19 The definition of Gross Receipts is only required when dealing with complete Works of literary or dramatic Works. The commercial exploitation of the Works for extracts and poems are based upon a percentage of the Initial Fee. Please see comments in 2.4.1. In the case of a co-production where there is a licence-fee agreed with a co-producer other than the BBC for transmission on that co-producer's services, it may be appropriate to agree that the writer receives a share, as is normal on in-house BBC productions, such share to be negotiated as per the circumstances.
2. RIGHTS GRANTED
Clause 2.1.1. The Author will only grant you a non-exclusive licence to reproduce the Works as they will want to licence such a right to other third parties. The BBC request that such licence is granted for the duration of the copyright usually the life of the author plus 70 years. The right granted in this Agreement is perpetual therefore you can reproduce the Works forever, subject to the Agreement being terminated. Should the Author resist this please ensure that the right is granted for the duration of the copyright in the Works.
You may be required to use the Intellectual Property Rights in the Works to advertise the Programme therefore it is beneficial to have a licence to use such material.
Clause 126.96.36.199 is an additional requirement of the BBC following a period of consultation and its purpose is to reflect the amendments to the BBC’s General and Special Terms in respect of editorial standards and compliance. The purpose of clause 188.8.131.52 is to ensure that the Author will not do anything which could bring the Programme, the Production Company or the BBC into disrepute. This new clause now cross-refers to the termination provisions contained in clause 8.1.
Clause 2.1.2. The BBC requests that moral rights be waived. The Publishers Association Complete Works Agreement with the BBC includes the provision that the Author shall have the right to be credit but will waive his/her rights to object to derogatory treatment. Moral rights exist whenever copyright is created and relate to the rights of the author (if asserted) to be identified as the author, to object to derogatory treatment of the Works or false attribution of the Works and privacy in certain films and photographs. Moral rights cannot be assigned but they can be waived by the author of the Works.
Clause 2.1.3. You must inform the Broadcaster of its requirement to add the credit to the Author at the end and/or beginning of the Programme. Should you be unable to ensure the Broadcaster gives a credit to the Author it shall not be a breach.
Clause 2.1.4. If the Broadcaster does not broadcast a credit for the Author you must try to rectify this.
2.2 First Broadcast and Second Transmission
2.2.1 Clause 2.2.1 sets out that you have purchased two transmissions of the Programme. If you only wish to purchase one transmission please remove references to the second transmission from this clause. Clause 2 of Publishers Association Complete Works Agreement sets out how else you may also wish to use the transmissions including the distribution to non-paying audiences and educational establishments to play and to license the recording of the Programme to be played throughout the World for non-theatric distribution and to make and distribute recordings of educational programmes to schools and educational establishments on a cost recovery basis. Also the right to include the Work in teacher’s educational support materials as publication to accompany the Programme throughout the world and the right to either copy or licence to copy the Work for an initial period of tem years from the date of first distribution subject to payment of the amounts set out below or for a further period of ten years upon payment of a further amount as set out below.
2.3 New Public Service Fee
2.3.1 Clause 2.3.1. The BBC requests that you pre-purchase the BBC’s Public Service Rights. This clause broadens the definition of the new services available for use by the Production Company and gives the BBC the opportunity to develop its technology services, whilst still using the Programme.
Clause 2.3.2. US literary agents may be resistant to some or all of this. You may need to delete all or parts of this clause. If you do so, you MUST notify the BBC as to the reduction in rights granted.
2.4 Commercial Distribution
2.4.1 Clause 2.4.1. The terms for exploitation of the commercial rights are specific to each production company. The BBC is concerned with obtaining the British Forces Broadcasting Service rights and the right to sell the Programme as part of the sale of an entire radio network. These points are covered in clause 6.2.2. The terms in this clause obtain the international radio distribution rights for a royalty of 1.5% of the Gross Receipt for complete works or 5% of the Gross Receipts for undramatised straight reading and are taken from the BBC’s standard agreement for literary and dramatic works. If there is a joint Author of the Works the royalties referred to shall be jointly shared between the joint Authors. If there is more than one Works used in the Programme the royalties should be shared in the same proportion as the respective Initial Fees.
2.4.2 Clause 2.4.2. Payment of the 1.5% or 5% of Gross Receipts shall entitle you to relay the Programme to the British Forces Broadcasting Service.
Alternative Wording If this Agreement relates to extracts of a literary or dramatic Works or poems the fees for the commercial exploitation are slightly different and the clauses 2.4.1 and 2.4.2 should be replaced as below;
“2.4.1The Production Company shall be entitled to exploit or authorise the exploitation of the Programme incorporating the Works through, including but not limited to all forms of commercial radio distribution of a sound recording howsoever transmitted or delivered, all forms of terrestrial broadcast, cable (including on-line, audio-on-demand, streaming or webcast distribution) and/or satellite distribution, the sale, rental or hiring of electronic copies via the internet or other on-line means to members of the public for transmission to a physical carrier, throughout the World subject to the payment to the Author of the amounts equal to the percentages of the Initial Fee highlighted below payable upon date of sale;
Percentage of Initial Fee
World excluding USA
British Isles and Eire
2.4.2 Such payments include the right to relay the Programme to the British Forces Broadcasting Service worldwide. Relay to the British Forces Broadcasting Service can be bought separately for 8% of the Initial Fee.”
Clause 3.1. The BBC requires that you obtain form the Author, as a minimum, 2 analogue transmissions and the 5 year Public Service licence. This means paying up front the Initial Fee, Second TX Fee (the Total Fee) and New Public Service Fee. These fees are payable upon the first broadcast of the Programme. Before you make payment of these fees to the Author or Author’s agent you should obtain it from the Broadcaster.
3.2 Clause 3.2. You must calculate the Total Fee (Initial Fee and Second TX Fee) based upon the figures in Schedule 1 due to the Author and prepare a statement setting this out within 14 days of the First Broadcast.
3.3 Clause 3.3. Upon receipt of a valid VAT invoice from the Author or the Author’s agent you must settle the invoice within 14 days.
3.4 Clause 3.4. Should you wish to repeat the Programme beyond the two transmissions you must pay the Author a further repeat fee based upon the figures set out in Schedule 1 which should be equal to the Initial Fee. This payment should be made upon the broadcast of the repeat Programme.
3.5 Clause 3.5. This clause clarifies that apart from the payments set out in this Agreement you should not have to make any other payments to broadcast the Works.
4.1 Clause 4.1. This may be required if you wish to advertise the Programme using the Author. If the Author does not wish this clause to be included please feel free to remove it.
5.1 Clause 5.1 is to ensure there will be no further fees payable to the Author for further broadcasts of the programme other than the standard agreed fees between the Publisher’s Association or Society of Author’s and the BBC. This is required in accordance with the terms of the agreement between the BBC and yourselves. For the avoidance of doubt such broadcast shall include podcasting of the Programme.
5.2 Clause 5.2 allows the BBC to broadcast the Programme on a number of different media. In the agreement between the BBC and yourselves, the BBC has the right to show the Programme on this media in the period of 7 days from the date of relevant BBC transmission of the Programme. The BBC is seeking to increase this period to 14 days. This clause may be subject to change.
5.3. Clause 5.3. The BBC has the final editorial control in connection to the production of the Programme (and production of any publicity and promotional materials that the BBC is entitled to produce).
5.4. Clause 5.4. The Second TX Fee is the standard repeat fee for repeats of the Programme. If it is pre-purchased it is only 80% of the Initial Fee. However, other repeats will cost 100% of the Initial Fee. Please see notes on clause 1.8 relating to the required pre-paid fees. If the commission if for BBC Radio Fours’ Book at Bedtime or Afternoon Reading the first sentence in this clause should be removed.
Clause 5.5. The BBC has a minimum 10 year licence agreement with you. Therefore you will need to be able to use the Works and the Programme in the Territory for a minimum of 10 years.
The BBC will acquire a 10 year licence to use the Programme. After 5 years you are entitled to approach the BBC for early release of the licence to enable you to fully exploit the rights. The BBC does have the right to refuse to grant the early release of the licence. The BBC licence covers new media rights, thus covering the possibility to exploit new technology over the licence period.
Clause 5.6. This clause is added for your benefit to ensure that you are not obliged to ensure the Programme is broadcast and if the Programme is not broadcast you do not owe the Author anything.
6. Undertakings and Warranties
6.1 This is confirmation from the Author that he/she shall comply with the Agreement.
6.2.1. Clause 6.2.1 ensures that the Author is entitled to enter into this Agreement. The concern is that the Author may have separate agreements in place whereby it has already assigned its intellectual property rights or rights to broadcast the Works in different territories or languages. If this is the case the Agreement will have to be amended to incorporate this and allow you to broadcast without the Author breaching its other agreements.
6.2.2. Clause 6.2.2 acts as consent of the Author for you to use the Works in repeats and to include the intellectual property rights of the Author in the Programme in a sale of the radio network.
6.2.3. Clause 6.2.3 acts as a further consent from the Author for you to commercially exploit the Works subject to the terms of the Agreement.
6.2.4. Clause 6.2.4 is to protect you should a third party bring a claim against you for infringement of their intellectual property rights in the Works or the Programme as a result of the Works. If you do not contract with the author of the Works, i.e. the publisher or the author’s agent, it may only be able to warrant that “the Intellectual Property Rights do not infringe a third party’s rights to the best of the Author’s knowledge and belief”.
6.2.5. Clause 6.2.5. Again this clause is to protect you should a third party bring a claim against you for defamation in the Works or the Programme as a result of the Works. If you do not contract with the author of the Works, i.e. the publisher or the author’s agent, it may only be able to warrant that “the Works does not contain defamatory material to the best of the Author’s knowledge and belief”.
Clause 6.3.1. You must ensure that if you do adapt the Works you do not infringe any third party’s intellectual property rights.
Clause 8.2.2. You must ensure that if you do adapt the Works you do not defame any third party.
7. Clause 7 outlines some of the specific rights the BBC has through their agreement with you.
8.1. Clause 8.1 is a requirement of the BBC. It allows you to end the Agreement should you or the Broadcaster (BBC) consider that the Author has brought them into disrepute or damaged the prospects of the exploitation of the Programme by its acts or failure to act.
Clause 8.2 is from the Publishers Association Complete Works Agreement with the BBC and grants the Author the right to terminate the rights granted to you under clause 2 after 10 years of the date of this Agreement. The Author may only terminate this Agreement under these terms by written notice to you and not by email.
Clause 8.3. Termination under clause 8.2 shall not be effective in relation to the right for you to obtain a 5 year extension to broadcast the Programme in any medium now known or known in the future; one repeat of the Programme; and the right to sub licence the rights to exploit the Works granted under clause 2.4.
The remaining clauses of 8.4 are standard termination provisions that will enable you or the Author to end the Agreement if either party breaches the Agreement and does not rectify the breach within 14 days or becomes insolvent or bankrupt.
8.5. If the agreement between the Broadcaster and the Production Company is terminated prior to completion of the Programme this clause operates to cancel all outstanding payments due to the Author. The wording below can be added to the end of clause 8.5 and would cancel all outstanding payments due from you to the Artist if the agreement was terminated. Some agents may not want this wording in the agreement and it can be removed. Without the wording should you owe the Artist any fees when the agreement with the Artist is terminated you would still be liable to the Artist for those fees.
Additional Wording “In which event any outstanding sums due to the Author from the Production Company will cease to be payable.”
9. Under clause 9 should you wish to end the Agreement you must do so by giving a written notice to the Author. This clause outlines the requirements necessary to deliver the notice and when it will be considered delivered. If you post the notice it will be considered delivered 48 hours after the date of posting. It is possible to end the agreement by sending an email to the email address used by both parties. Email notification will only be effective if the email is sent using return receipt so as to satisfy yourself that the email has been received by the intended recipient and you have properly complied with this clause so that it is effective. If sending a Notice by email wherever possible it is advisable to send a letter or fax confirming the same.
9.3 Termination under clause 8.2 will only be effective if the Author give notice to you under the terms in clause 9.1 within three months before the termination Date.
10. Clause 10. If any part of this Agreement is considered illegal or unfair these clauses acts so that only the part that is considered illegal or unfair is removed and the rest of the agreement remains effective. This clause allows you to amend the contract if required rather than have to redraft a new contract excluding the invalid clause and is a standard contract clause.
11.1 Clause 11. The Broadcaster may require you to indemnify it against any possible liabilities, losses, damages or claims it receives as a result of broadcasting the Programme. In order to prevent or limit the costs you would have to pay the Broadcaster you should have in place an indemnity from the Author who will cover you should you be faced with any similar claims from the Broadcaster or third parties.
The indemnity is not a comprehensive cover or insurance. Should the Author become bankrupt or unable to pay you for the costs you will have to pay it.
12. Clause 12 prevents the Author handing over the obligations (performance) and benefits (receipt of payment) of this Agreement to a different person. However, should you wish to you could transfer the benefits and obligations of this Agreement to a different person or company.
The rates outlined are the current agreed fees with the Publisher’s Association and the Society of Author’s which may be subject to change. If they are changed the Schedule will need to be replaced in the Agreement with the correct fees. The figures can be found in the Publishers Association Complete Works Agreement with the BBC last update on 8TH August 2006 which can be found in the Resources section of the RIG website www.radioindependentsgroup.org. Please be aware that these fees may be subject to change.