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8 January 2019

There are very good reasons why the BBC can’t just load iPlayer with archive content

From the BBC’s point of view, that free content would not be free at all.

By James Cooray Smith

The BBC’s online portal, iPlayer, cannot be considered anything other than a success. During its development, the corporation was criticised for developing a bespoke site, rather than buying one off the shelf – but this criticism went strangely quiet after the site launched, as its superiority to its commercial equivalents soon became obvious.  Internally, the BBC had hoped for 500,000 users within the site’s first six months; iPlayer received nearly four million requests for downloads or streams in its first three weeks.

11 years on, usage numbers continue to grow, so reliably that them doing so has simply stopped being noted; while research by YouGov repeatedly shows the service to be considered easier to use and more reliable than commercial or public sector equivalent.

iPlayer has also enabled the BBC to experiment, by “boxsetting” whole series of programmes online during or before their linear TV broadcast, allowing direct, and useful, comparisons between different methods of consumption. And BBC iii, the online-only incarnation of the former BBC Three that’s now available more or less exclusively through iPlayer, garnered the Broadcast Award for Television Channel of the Year in early 2018, while its programming has won a raft of awards, nationally and internationally, and as recently as this week.

Despite all that, however, most online reaction to the consultation on the future of the portal, launched this week, boils down to three words: “More archive content”. On the face of it, that makes sense. The BBC has one of the largest libraries of content in the world, and most of it remains unavailable to a public who, as some are always keen to point out, paid for its creation through the licence fee. That fee doesn’t constitute a contract to supply, and indeed never has; but there is logic in the idea of marrying that vast library to a successful viewing portal. It’s clearly in the interests of viewers.

Unfortunately, and this is counterintuitive given its size and history, the BBC owns little intellectual property. It owns – both in the legal and physical senses – millions of finished programmes, but most these have secondary rights attached to them: huge numbers of the people who created them are owed payments if any use is made of it. From the BBC’s point of view, that free content would not be free at all.

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Responsibility for this lies, ironically, with the Conservative Party. The pre- and immediate post-war BBC had largely relied on staff producers, directors, and writers to create programmes. They were salaried employees, with offices and pension schemes, and the BBC owned their work.

But the Tory government of the late 1950s didn’t want the BBC to accrete enormous of copyright over time, and encouraged it to change its practices to avoid this. By the end of that decade, the corporation preferred working with freelancers and contractors; it also favoured contracts that gave ownership of programme concepts to their originators if they weren’t on BBC staff, and sometimes even if they were. 

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There was another reason for all these rules: both government and the various entertainment unions wanted it to be as hard as possible for the BBC to reshow and reuse old programmes. Repeats, in an era of three television channels, literally meant putting members out of work, so making showing a repeat almost as expensive as making a new programme was considered a wise move across both the industry and the political spectrum. (Later, most contracts had a clause allowing for a single repeat of the material without payment, as long as it was made within two years of the programme’s original transmission. The result, predictably, was tabloid anger about the TV schedules most summers during the late 1970s.)

How does all this work in practice? Let’s take an example. Dad’s Army was a BBC series, and the corporation owns the finished programmes of its 80 episodes – even, in theory, of the three that are not known to exist. Yet the programme concept belongs to its writer/creators, Jimmy Perry and David Croft, as do the scripts, even though Croft was a BBC producer: that means copyright payments are due whenever the programmes are exploited in any way by the BBC. In addition, several cast members and/or their estates will be due payments – often a percentage of their original performance fee – when the programme is shown. So will some crew who were not BBC staff.

This is why, when older programmes are reshown on BBC television, they do not always go onto iPlayer in the way new programmes do. This is because this additional use, and any remuneration for it, was not covered by contracts made at the time of the programme’s production, for the obvious reason that no one had yet invented iPlayer.

And so, putting such programmes online, even when they’ve been repeated, requires new negotiations. Dad’s Army itself was notably absent from iPlayer for several years, even when repeated on BBC Two: presumably someone was either refusing permission or holding out for more than the BBC could offer.

On the other side of the dial, most ITV companies did not behave in this way. More cash rich than the BBC, thanks to booming advertising revenue, they would offer freelancers a larger up-front fee, but would often retain all rights in any work in exactly the way the BBC was prevented from doing, enabling limitless future exploitation of the material created.

The result of this disparity is that Nicholas Parsons still receives small, infrequent cheques relating to repeats of decades-old episodes of Radio 4’s Just a Minute; yet the DVDs of The Arthur Haynes Show (1956-66) in which he co-starred for ATV, happened without him even being informed. He only discovered they existed when he noticed one on in the Edinburgh branch of HMV.

All this explains why the BBC would struggle to include more archive content on iPlayer. And given that residuals and copyright payments are often the only income that people who have worked in the arts have in later life, asking for these to be disregarded just to enable a mass dump of archive content onto iPlayer would effectively be demanding people sign away their pension.

This is a problem that is unlikely to get any simpler, even as we begin to expect online libraries of archive material to become the norm. As the situation currently stands, licencing a BBC-produced archive series to Netflix or Amazon Prime will bring in money in fees – albeit fees which are then largely redistributed to people who made the programme in the first place. But placing such a series on the iPlayer in perpetuity would require the corporation to stump up for any secondary rights payments itself, to the detriment of programme making and commissioning budgets. It would mean damaging current productions at the price of enabling access to old. 

That’s something that no one with the interests of the UK television industry at heart would want to see.