British Music Rights (BMR) is an umbrella organisation that represents the interests of nearly 50,000 composers, songwriters and music publishers and their collection societies, the MCPS and PRS, and is a leading industry voice in raising awareness of the value of music to the British economy, culture and society

We are taking the opportunity of Ofcom’s consultation on revised guidance for broadcasters on Codes of Practice to propose that revised codes should be extended to include the commissioning music from freelance composers and songwriters.

We acknowledge that Section 285 of the Communications Act 2003 provides that the regulatory regime for licensed public service channels should include conditions, to be set by Ofcom, to ensure that providers of such channels draw up, maintain and comply with Codes of Practice governing the commissioning of independent productions for broadcast on their networks.  Clause 61 of the BBC Agreement regulates the activity of the BBC in the commissioning of independent productions in the same way as Section 285.

We acknowledge that Ofcom’s view is that the Codes of Practice were generally regarded as working well and described as “instrumental in shaping a more mature industry and in introducing more constructive and professional relationships between broadcasters and producers”; and further, that the new environment made production companies more attractive to investors.  As such, the “Codes of Practice had helped to underpin the growth in the sector.”

There is an even greater need for Codes of Practice to apply to the negotiations between broadcasters and individual composers and songwriters.  According to the Status Quo (see note 1)  report jointly commissioned by the British Academy of Composers & Songwriters and the Musicians’ Union and published in October 2006:

Despite the current explosion of the demand for and supply of music…our music stock is being undervalued as never before.  One such instance of this undervaluation is the current practice in the broadcast industry which is driving down the fees paid to music composers.  Broadcasters have consistently defended low fees on the basis that the media composers’ principal income stream is likely to be through the attendant broadcast royalty receipts.  However, composers are increasingly being coerced into both parting with their rights, and accepting even lower fees.

We urge Ofcom to help draw up a voluntary Code of Conduct with broadcasters for commissioning music from composers, songwriters, and performers, taking account of new media, in partnership with the British Academy of Composers and Songwriters, the Musicians Union and the Music Publishers Association.  This Code of Conduct should be included with all commissioning contracts.

Please see the Annexe for an example of a set of voluntary guidelines for the commissioning of music for BBC programmes, which has been recently (see note 2) agreed between the BBC, the British Academy of Composers and Songwriters, and the Musicians Union. 

This submission has the support of the following organisations:

British Music Rights
British Academy of Composers & Songwriters
MCPS-PRS - The Music Alliance
Music Publishers Association
AIM (Association of Independent Music)
Associated Board of the Royal Schools of Music
BPI (British Phonographic Industry)
MIA (Music Industries Association)
MPG (Music Producers Guild)
Musicians Union

Notes
1. Status Quo…? An exploration of the status of composers, performers and songwriters in the UK’s creative economy.  A consultancy report commissioned by the Musicians Union & The British Academy of Composers and Songwriters, October 2006.

2. Voluntary agreement reached between the BBC, the British Academy of Composers and Songwriters, and the Musicians Union in February 2007.

ANNEX

Agreed BBC/British Academy of Composers & Songwriters/Musicians Union guidelines for the commissioning of music for BBC programmes

1. The Music Copyright section of the BBC’s Talent Rights Group is responsible for negotiating terms and issuing contracts for all music commissioned by the BBC.
2. BBC departments requiring specially commissioned music are encouraged to contact Music Copyright at the earliest opportunity in order that negotiations can be concluded and a contract issued/signed prior to the composer commencing work. 
3. Payment schedules may vary from contract to contract, but full payment for commissioned work should be made at the point at which the work is completed, i.e. once Music Copyright receive appropriate notification to this effect from the area concerned.
4. The decision regarding which composer to contract is entirely the responsibility of individual BBC programme makers.
5. Music Copyright offer advice regarding the choice of composer when required, given its extensive knowledge of composers working in television, radio and film. A number of composers may be suggested, the selection being determined solely by the needs of an individual production.
6. Music Copyright will usually negotiate a package deal fee with a composer or their agent. This is a fully inclusive deal that encompasses all the relevant elements associated with the making of a sound master. A package deal may typically include the composition fee, scoring, copying, studio/tape costs, electronic realisation, musician/vocalist fees, fixing, porterage and doubling.
7. Musicians and vocalists will be contracted separately via the BBC Talent Rights Group. This is to ensure that the appropriate contracts are used. *
8. The offer of a commission from the BBC is not dependent on publishing rights being assigned to BBC Music Publishing. It is recognised that publishing is in the gift of the composer and that the composer is under no obligation to assign publishing to BBC Music Publishing or any other publisher.
9. An exception to Clause 8 is music for idents commissioned by the BBC, in which cases BBC Music Publishing would expect assignment of publishing rights on the commission of the music.
10. The contracts issued by Music Copyright are separate from any publishing agreements used by BBC Music Publishing and separate negotiations will take place on each.
11. This document and the operating practices described herein shall be reviewed annually from the date of its first publication.