Public Service Broadcasters (PSBs) are obliged to draw up Codes of Practice (Codes) to apply when they commission programmes from independent producers. These Codes must reflect guidance issued by Ofcom (Guidance). Ofcom has published its first new draft Guidance since 2007, which has been updated to reflect changes made by the Media Act, as well as market developments.

Ofcom is consulting on the draft Guidance and has invited responses from stakeholders by 5pm on 10 March.

Ofcom’s principal reason for updating the Guidance is to reflect the following updates made by the Media Act:

• extension of the application of the Codes to cover programming commissioned for use on PSBs’ on-demand players as well as for broadcast on their main linear channels, where the PSB intends that content to count towards its independent productions quota; and
• introduction of a new transparency requirement obliging PSBs to include an obligation within their Codes to provide information to independent producers about the application of the Code.

In addition, Ofcom has recognised the following market developments that have taken place since the last iteration of the Code, which it also intends to reflect in the updated Guidance:

• more extensive primary rights (e.g. on-demand distribution rights) are being negotiated by PSBs than in the past;
• PSBs are now much more likely to enter into co-commissioning arrangements with, e.g. SVOD service providers than they were previously;
• competing SVOD service providers (which are not subject to equivalent commissioning requirements) have increased significantly in number, bargaining power and financial might; and
• on-demand and ‘catch-up’ viewing has proliferated rapidly amongst audiences.

In response to these statutory requirements and market developments, Ofcom has made the following key updates to the Guidance:

• taken out references to removing barriers to the development of new markets (given that the market is now sufficiently developed);
• stated that the Guidance and the Codes also apply to PSBs’ on-demand players where the PSB intends that content to count towards its independent productions quota;
• included an obligation on PSBs to make independent producers aware of their Code prior to commencing negotiations;
• loosened the prohibition on linking the acquisition of primary rights to secondary rights, allowing it to be waived by the producer (to enable PSBs to have access to a sufficiently broad set of rights to enable them to meet statutory requirements to satisfy audience needs in competition with SVOD providers which are not subject to such restrictions);
• removed the prohibition on PSBs requiring matching rights (given the increased bargaining power and financial resources of competing providers); and
• replaced the obligation on PSBs to report annually on the matters covered by their Codes with an information retention provision obliging them to retain relevant information for 3 years.

Ofcom’s expectation is that the amendments to the Guidance will benefit both PSBs and independent producers, allowing them to respond to market developments and engage in more streamlined negotiations with grants of rights that reflect audience needs, acknowledging that the PSBs’ position within the overall UK audiovisual distribution market has changed significantly. There is less need to ‘protect’ new market entrants as many have grown to be distribution powerhouses themselves.

Once Ofcom has reviewed consultation responses, it will finalise the Guidance in summer 2025, following which the PSBs will need to update their Codes to reflect the new Guidance. Ofcom will review and approve the Codes and make any necessary changes to licences in autumn 2025, with the final Guidance (and Codes) to take effect on 1 January 2026.