The Broadcasting (Independent Productions) Order 1991

Meaning of “independent productions”

3.—(1) In section 16(2)(h) of the 1990 Act the expression “independent productions” means any programme which–

(a) falls within the definition of “qualifying programmes” specified in article 2 above;

(b) in the case of a programme to which sub-paragraph (a) or (b) of article 2(1) above applies, has been made by an independent producer (as defined by paragraph (4) below) or, in the case of a programme to which sub-paragraph (c) of that provision applies, has been made, as respects that part of the programme referred to in paragraph (iii) of that sub-paragraph by an independent producer;

(c) has been made in pursuance of a contract which complies, where appropriate, with the condition specified in paragraph (2) below, and

(d) has not been made in the circumstances specified in paragraph (3) below.

(2) The condition referred to in paragraph (1)(c) above is that any contractual obligations between a broadcaster and a producer which concern, directly or indirectly, the making of programmes (but not in respect of the use made of them) and which are capable of remaining in force for a period in excess of five years shall provide either side with the right to terminate those obligations at intervals of not more than five years (but without prejudice to any rights in respect of obligations that had not been discharged at the date of termination).

(3) The circumstances referred to in paragraph (1)(d) above are those where a broadcaster has required, otherwise than in pursuance of any contractual obligation arising from an earlier agreement that remains in force, the person to whom the contract to make the programme has been granted to agree, as a condition on which that contract is granted, to use the production facilities of that broadcaster or not to use the production facilities of some other broadcaster.

In this paragraph the reference to the production facilities of a broadcaster means–

(a) any premises or equipment which may be used to make a programme and which are owned or leased by that broadcaster or are otherwise under his control; and

(b) any person who is employed by, or has contractual obligations with, that broadcaster in connection with the making of programmes except any person who is employed, or has contractual obligations, to be seen or heard (or both) on programmes.

(4) In this article “independent producer” means a producer–

(a) who is not an employee (whether or not on temporary leave of absence) of a broadcaster;

(b) who does not have a shareholding greater than 15 per cent in a broadcaster; and

(c) which is not a body corporate in which a broadcaster has a shareholding greater than 15 per cent.

(5) In paragraph (4) above, any reference to a broadcaster or producer includes a reference to a person connected with, respectively, a broadcaster or producer.

For these purposes the following persons shall be treated as connected with, respectively, a broadcaster or producer, namely–

(a) a person who controls the broadcaster or, as the case may be, producer;

(b) an associate of the broadcaster or, as the case may be, producer or of a person falling within sub-paragraph (a) above; and

(c) a body which is controlled by the broadcaster or, as the case may be, producer or by an associate of the broadcaster or, as the case may be, producer.

In this paragraph “associate” has the same meaning as in Schedule 2 to the 1990 Act, except that paragraph 1(2) of Part I of that Schedule shall not apply so as to construe the meaning of that word in relation to a producer (but not a broadcaster) in the context of sub-paragraph (a) of paragraph (4) above only.

(6) In paragraph (4) above, any reference however expressed to a person having a shareholding greater than 15 per cent in a body corporate is a reference to a person who–

(a) holds or is beneficially entitled to more than 15 per cent of the shares in that body, or

(b) possesses more than 15 per cent of the voting power in that body.

Any reference in this paragraph to a person holding or being entitled to a percentage of shares in a body corporate or possessing a percentage of the voting power in a body corporate is a reference to his doing so, or being so entitled, whether alone or jointly with one or more other persons and whether directly or through one or more nominees.

(7) In this article–

“broadcaster” means, subject to paragraph (5) above, a person who provides a television service (that is to say a service providing to members of the public images or images and sounds for reception on television receiving apparatus, whether provided by broadcasting or by other means) whether in the United Kingdom or elsewhere;

“control” has the same meaning as in Schedule 2 to the 1990 Act; and

“producer” means, subject to paragraph (5) above, a person by whom the arrangements necessary for–

(i)

the making of a programme, or

(ii)

in the case of a programme to which article 2(1)(c) above applies, part of a programme,

are undertaken.