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commonly required to assign all their post-broadcast program rights to the commissioning broadcasters and negotiated a share, then typically 20-30 percent, of exploitation (e.g. international sales, DVDs, etc) on a case by case basis. The result was a sector wholly dependent on a few broadcaster relationships for their annual revenue and a set of companies with very little in terms of diversified revenue streams, ability to raise capital or strong incentives to develop program ideas and IP for export. It also meant that IP went under-exploited. The broadcaster owned all the rights but exploiting those rights in international markets was of secondary importance to them and, if they did nothing, the production company had no power to exploit the opportunities themselves.
The Communications Act of 2003 introduced new “Terms of Trade” between the broadcasters and independent producers and a Code of Practice overseen by the media regulator OFCOM. The “Terms of Trade” are the financial and business conditions that broadcasters apply to the contracts they sign with independent producers in relation to broadcast rights and the exploitation of the properties. The Terms of Trade were negotiated by PACT, a trade body representing the U.K. independent production sector, and the individual broadcasters.
There are technically separate Terms of Trade with each broadcaster and they vary according to the actual channel holdings of the particular broadcaster and on issues like new media rights. However, the fundamental commercial position is now the same across the broadcasters and the industry standard is now set.
Under the Terms of Trade, broadcasters who commission new programs get the primary broadcast rights (usually for a fixed period) in return for paying a license fee. The production company retains all distribution and other rights. However, the commissioning broadcaster gets 15 percent of revenues from exploitation (or 20 percent if they fund the pilot).
The broadcaster will usually pay the licence fee in stages based on an agreed budget so it provides cash flow for the production. Since the production company knows it can exploit the property in international markets, it can often pre-sell the international distribution rights and use this money to partially fund production, thus reducing the net cost to the broadcaster, which may make their commissioning decision much easier. This is known as “gap funding”. It has played a big role in the rise of the U.K.’s independent TV production sector.
According to a June 2011 report commissioned by PACT, the U.K. independent production sector had grown into a £2bn industry in 2009/2010 with the U.K. program supply market ranked as the leading net exporter of television formats in the world.
From 1998 to 2003 (immediately prior to the introduction of U.K. terms of trade) the reported revenue derived from U.K. TV exports, according to PACT, grew by 12.6 percent on compound annual growth rate. Following the introduction of terms of trade in 2004, export trade growth increased markedly, expanding by 22.2 percent on this same measure between 2004 and 2008.
In addition to the basic Terms of Trade, broadcasters or major distributors often negotiate “first-look” deals, rights-of-first-refusal or even stronger “off-take” agreements for whole slates. This provides the independent production companies with additional cash flow and allows for effective partnerships where they, as suppliers, can develop a clearer understanding of what broadcasters want and what they are prepared to pay.
The model has worked very well in the U.K. production sector and created a vibrant industry that is seen as world leading in terms of innovation. TV people think of the U.K. as the laboratory of the world – ideas that work well in the U.K. are often taken up by U.S. broadcasters who refine the propositions and take them global. Indies are better at developing new ideas than the broadcasters and it has led to a significant improvement in the quality of output. Clearly, the idea is that independent producers get to keep rights so they have a share in future success and build an asset base. This means they can re-invest in new ideas and not just have to do whatever is necessary to live hand-to-mouth.
I wonder if something similar could be helpful in the world of biotech where Big Pharma would be like the broadcasters (distribution, marketing, regulatory) and biotech the independent producers doing the innovative, creative work.
Oli Rayner was diagnosed with cystic fibrosis in 1978 at the age of 3. After graduating from University College London with a law degree in 1998, he spent 12 years working in investment banking and private equity in New York and London. More recently, he has had to step back from full-time work in order to meet the increasing demands of his disease.
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