25 July 2012 - The Media Development Authority (MDA) funds the production of original, locally produced Public Service Broadcast (“PSB”) programmes through grants... Read more
The Media Development Authority (MDA) funds the production of original, locally produced Public Service Broadcast (“PSB”) programmes through grants provided to designated broadcasters1 . Such programmes are generally created as well as produced by production companies (either independent production companies or the broadcaster’s in-house production units) through these designated broadcasters.
Moving forward, this existing PSB scheme will continue to apply, but the MDA will implement a revised Copyright ownership framework for original, locally produced Public Service Broadcast (PSB) programmes it funds (“Revised PSB Rights Framework”).
The Revised PSB Rights Framework is developed with the aim to recognise and accord a greater share of copyright ownership of PSB programme to their creators while safeguarding the fundamental public interest objectives of PSB programming.
This document highlights the main conceptual changes for general guidance -- there may be variations in relation to specific projects to take into account the particular circumstances of each production, for example, where there are multiple financiers of a project, hence Production Companies should continue to carefully review their agreements with the designated broadcaster.
The key changes are:
a. As a general principle, MDA will no longer own or co-own the copyright to original, locally produced PSB programmes it funds. Instead, for productions funded by MDA, what would otherwise have been MDA’s share of the copyright by virtue of its funding would vest as follows:
i. In respect of original underlying literary, dramatic, musical or artistic works comprised in the programme (“Underlying Works”), in the party or parties that created2 such copyright (the “Creator”);and
ii. in respect of the completed programme (“the Completed Programme”), in the production companies (each a “Production Company”);and
b. All owners of copyright in the Completed Programme and Underlying Works (collectively, “Copyright Owners”) must grant MDA and MDA-appointed parties the licence and right to use such programmes for stipulated public service broadcast and non-commercial purposes (see Section III(c) on “Conditions of Revised PSB Copyright Ownership Arrangement”).
Consistent with the current PSB framework, the designated broadcaster will continue to retain or be licensed certain rights primarily relating to the communication of the PSB programme in Singapore for a defined period.
Please refer to Section III(b) below on copyright ownership arrangements in the event that Creator and the Production Company are different entities.
(II) Definition of PSB Programme Copyright
By retaining copyright to the PSB programmes, Creators will have greater control over the commercial exploitation of the Underlying Works, including broadcast rights, communication rights, adaptation rights, exploitation rights, reproduction rights, publishing rights and performing rights.
Likewise, Production Companies can control the reproduction, communication and exhibition of the Completed Programme.
These rights will provide Creators and Production Companies more options in exploiting their respective rights in their creations, which may include:
• Distribution of PSB programme to other TV or cable networks in other countries;
• Releasing DVDs of PSB programmes;
• Producing merchandise relating to the PSB programme;comics, books, clothes, toys etc
To the extent exploitation of these rights will involve the use of another party’s rights (eg. where Production Companies and Creators are not the same entity) or third party rights3 , then appropriate licences should still be secured.
(III) Key Aspects of Revised PSB Copyright Ownership
a. Previous PSB Copyright Ownership Arrangement
The previous PSB Copyright ownership arrangement (in force since 1 April 2006) for MDA-funded PSB programmes observed the general principle that financiers of programme own copyright4 in accordance with their proportion of their funding contribution.
For instance, if MDA fully funded the production cost of a PSB programme, MDA fully owned 100% of the production’s copyright. If MDA and a Production Company each funded 50% of the production cost of a PSB programme, each party owned 50% of the programme’s copyright.
In the event that the Production Company did not own the copyright, they could obtain a licence from the Copyright owner to exploit the copyright e.g. distribute the Completed Programme, reproduce and sell DVDs etc.
b. Revised PSB IP Rights Ownership Arrangement
MDA will no longer retain ownership of its share of copyright in the Underlying Works and Completed Programme comprised in original, locally produced PSB programmes it funds.
As would be the general case under the PSB framework, the Creator and the Production Company is the same party, and hence these rights will vest in the Production Company.
The following illustrates this general case of revised copyright ownership in this scenario (to the extent they would have vested in MDA under the existing framework):
i. Scenario I –MDA fully funds the production cost of a PSB programme. It is created and produced by Production Company A.
• Previous copyright ownership arrangement
MDA provides 100% funding and therefore owned 100% of the copyright
• Revised copyright arrangement
MDA provides 100% funding. If Production Company A is the Creator and also the Production Company, it will own 100% of the copyright in the Underlying Works and the Completed Programme.
In the event that the Creator is not also the Production Company, the following rights ownership principles shall generally apply (to the extent they would have vested in MDA under the existing framework):
(1) The Production Company shall have the copyright to the Completed Programme comprised in the PSB programme (“Programme Rights”), specifically:
• Right to reproduce the Completed Programme or part thereof;
• Right to cause the Completed Programme to be seen in public
• Right to communicate the Completed Programme5
(2) The Creator shall own all of the copyrights to the Underlying Works comprised in the PSB programme.
ii. Scenario II –MDA and the commissioning broadcaster (e.g. MediaCorp) each funds 50% of the PSB programme production cost;
• Previous copyright ownership arrangement
MDA and MediaCorp each own 50% of the copyright in accordance to their share of funding
• Revised copyright arrangement
If MediaCorp created the Underlying Works in the Programme, it would also own the 50% share of the copyright which MDA would have previously retained as the “Creator”, and hence will own 100% of the copyright in the Underlying Works.
If MediaCorp engages a Production Company to co-produce the Completed Programme, the Production Company would have 50% share of the copyright in the Completed Programme. This 50% would otherwise have been MDA’s share. The balance 50% will be owned by MediaCorp. Exploitation rights to the Completed Programme (e.g. the right to sell and distribute the Completed Programme and DVD) will be co-shared with MediaCorp.
Copyright Owners remain subject to the conditions of ownership for MDA-funded PSB programmes stated in Section (c) below.
The designated broadcaster will also retain certain licences in relation to the Completed Programme as is currently the case under the existing framework, such as the right to exclusively broadcast the Completed Programme within its broadcast footprint for a defined period of time. This is detailed in the next section.
c. Conditions of Revised PSB Copyright Ownership Arrangement
The underlying principles that guide the provision of PSB programmes are that they address gaps in commercial programme offering and mix, and should be widely accessible to the Singapore public.
To safeguard these fundamental principles in PSB delivery, and to recognise the rights of the broadcaster when it commissions and in some instances co-funds PSB programmes, the key conditions that generally apply to Copyright Owner(s) under the revised PSB Copyright ownership arrangement include:
• Non-commercial and archival activities - Copyright Owner(s) must grant MDA and the Government of Singapore a perpetual, non-exclusive and royalty-free and paid up licence to do all activities comprised in the Copyright for any archival and non-commercial/ non-profit purposes (including promotional activities)6 .
• Broadcast and communication - Copyright Owner(s) must grant the designated broadcaster and/or any other MDA appointed platform owner a royalty-free and paid up licence to broadcast and communicate PSB programmes on their TV networks and defined Internet and new media platforms (including mobile and non-linear).
• Other rights of broadcaster -Copyright Owner(s) must grant the designated broadcaster through whom MDA has provided funding for the PSB programme (i) the first right of refusal to commission the production of the prequel and sequel of the PSB programme;(ii) co-ownership7 of the rights in the Completed Programme in the event it co-funds the production cost.
The following points should also be noted:
• Where there are two or more Creators, they shall own the copyright in proportion they mutually agree on and in accordance to MDA’s rights ownership guidelines.
• Pre-existing third party material incorporated in programmes shall be excluded from the Revised PSB Rights Framework.
• Production Companies hired by the broadcaster commissioning the production as additional resource will not own copyright.
(IV) Other Matters
a. Effective Date of Revised PSB Rights Framework
The Revised PSB Rights Framework will apply with immediate effect (from 25 July 2012) to MDA-funded PSB productions.
The Revised PSB Rights Framework will generally also apply to all MDA-funded PSB productions that are owned by MDA commissioned between the period of April 2006 to 24 July 2012 where and to the extent the rights have been vested in MDA8 .
Approximately 2000 hours of MDA-funded local PSB content have been produced each year by PSB Production Companies. The Revised PSB Copyright Framework should benefit more than 50 PSB Production Companies.
b. Notification of PSB Copyright Ownership Transfer to Creators/Production Companies Qualifying Creators/Production Companies of MDA-funded PSB programmes that were commissioned between the period of April 2006 to 24 July 2012 who will benefit from the Revised PSB Rights Framework will be notified by MDA via email from August 2012 onwards on details of the rights transfer process.
Information on the Revised PSB Rights Framework for MDA-funded PSB programmes is also available online at www.mda.gov.sg/Public/PublicService
For queries on the PSB Revised Rights Framework, please contact us here
Click here for FAQ:
IMPORTANT NOTE: This document is a general statement of policy and is not intended to constitute nor be a substitute for legal advice nor shall it constitute a binding agreement or create other legally binding arrangements or representations between MDA or Creators and/or Production Companies. The specific rights granted in connection with any PSB programme shall be as set forth in the production and other agreements entered into between the Creators/Production Companies and the relevant broadcaster and/or MDA as the case maybe. Creators and Production Companies should obtain independent legal advice on their dealings with broadcasters and third party licensors and licensees.
1Such as, MediaCorp Pte Ltd (“MediaCorp”)
2Generally this refers to creation of the outline or idea for a PSB programme that is sufficiently developed and reduced into a tangible form, such that it is capable of being produced into a programme.
3Pre-existing third party rights are excluded from changes to the new PSB Rights framework. Hence, for example, where music belonging to a third party or archival footage owned by a third party is used in an original PSB production, relevant licences from these third parties must still be obtained.
4Pre-existing third party rights excluded.
5The right of communication extends to over the air broadcasts, inclusion in a cable programme service or online, and making available on an interactive platform.
6To minimise infringement or conflicted use, the broadcast that has commissioned the PSB programme shall have the oversight and certain rights of approval of such licences
7Ownership of the Programme Rights being in accordance to the proportion of the broadcaster’s funding amount of the PSB programme’s production cost.
8MDA can only transfer those rights which are vested in MDA and consistent with the principles set forth under the revised PSB IP framework. As MDA’s rights may vary from production to production, the specific rights transferred will be dependent on the production.