DMB0055

Written evidence submitted by the
Authors’ Licensing and Collecting Society

ALCS submission to Pre-legislative scrutiny of the Draft Media Bill

Introduction to ALCS and purpose of our submission

The Authors’ Licensing and Collecting Society (ALCS) has over 120,000 members and distributes payments for secondary use of writers’ works under copyright licences, with over £650m paid out since our establishment in 1977. At Westminster, we are proud to support the work of the All-Party Writers Group in recognising talent across our nations and regions.

Our members work across broadcasting and have been responsible for shows the UK have loved, both on linear television and streaming platforms. This inquiry submission suggests proposals to the Committee for the Draft Media Bill to allow British writers to flourish in an increasingly digital age.

State of the broadcasting industry

One of the central concerns of our country’s creative talent, the majority of whom are freelance, is to be rewarded fairly for the contribution they make, so that they can sustain a career in a sector which is vital to the UK economy. The negotiating playing field, however, has always been uneven and the entry of online streaming services has had a major effect on contracts and the income which our creators can earn.

On paper, our creative industries have gone from strength to strength. Yet, during the past two decades of the digital age, successive studies have identified a sustained downward trend in writers’ earnings[1]. The same is true across the wider sector, as the Committee has already found with musicians, for example, where the ‘winner (that is, the producer and online platform) takes all’, with few rights enshrined in law for creators to share equitably in their work’s success.

While some writers are able to sustain a career on relatively low earnings, for many this creates barriers. In particular, for newer entrants this raises issues regarding the diversity of voices finding expression within our creative and cultural sectors. Writers play a central role in supporting the dynamism of the UK’s creative industries and it is vital for our continued success that opportunity is open to all. To sustain their contribution in the long-term, the reasons behind the trend for writers’ falling incomes need to be clearly recognised. A key part of this is understanding the impact of changes that have happened in the market, in the digital streaming age, for scripted works.

In the 21st century, the TV and film sector has undergone a huge upheaval with the move towards digital forms of delivery. Some of the changes have been managed through adaptations of the existing commissioning framework, such as the formation of Writers Digital Payments[2] to deal with amounts rightly due for works used on broadcasters’ freely available on-demand platforms, such as BBC iPlayer.

The market for subscription video-on-demand (SVOD) platforms, however, presages more fundamental changes to the way in which writers and all creators are remunerated both in the short- and long-term.

In recent years, the UK SVOD market has grown swiftly. OFCOM’s Media Nations report (2021), for example, identified a consistent increase in the take-up of SVOD services to an overall subscriber base in excess of 17 million. This was accelerated during lockdowns over the course of the Covid pandemic, with SVOD services assuming an increasingly significant market position, compared with traditional broadcasters

In Q1 of 2021 Netflix, the UK’s largest SVOD service in terms of content, reported 1.8 billion streams compared to 652 million on BBC iPlayer in the same period. This content boom is, in theory, good for writers, offering further opportunities for work; however, concerns persist within the whole creative community that the approach to commissioning being adopted by the SVODs will have a detrimental effect on their livelihoods in the long-term. 

Under the established UK commissioning model, a scriptwriter assigns or licenses the copyright in their script to a broadcaster or producer on contractual terms that provide for a script fee followed by a ‘subsequent use advance’ to cover payments from various further exploitations of the work.

In this way the writer’s payments follow the success of the work, such as through sub-licensing to overseas markets. These terms also provide for the writer to receive a share of collective licensing revenues from uses such as retransmission and copying levies. Although these contracts are negotiated on an individual basis, usually by the writer’s agent, their terms are underpinned by minimum standards agreed between broadcasters, producers’ associations and representatives such as the Writers’ Guild of Great Britain.  

The emerging model for SVOD commissions (reflecting US norms) involves a script fee and slightly higher ‘subsequent use advance payment’ (approximately 125%, compared with the UK broadcasters/producers’ usual 100%) for the writer for unlimited transmissions on the SVOD platform worldwide in perpetuity, and a 10-year all-media rights buy-out.

Under this model, however, the writer of a successful programme is still not equitably rewarded for success, as noted by Hwang Dong-hyuk, the South Korean creator of Squid Game, Netflix’s most-watched show in 2021[3].  A second or further series might follow, as a result, of course. But rewards for the original episode creators will generally be limited to their contractual buy-out payments.

Another way in which the SVOD model deviates from established practices is in relation to distribution of the work. Ordinarily, a production will be licensed and sub-licensed as widely as possible to maximise the commercial return, with the writer (or music composer, by way of further example) contractually entitled to share in the resulting revenue streams. Often, indeed, they will accept reduced up-front fees, for that entitlement.

Increasingly, however, the power wielded by subscription streaming platforms often results in programmes being bought-out on an exclusive basis, resulting in no such income from wider distribution. And, in this current market - without inalienable rights to equitable remuneration in law - the writer or musician has little sway in contract negotiation.

While the emergence of SVOD platforms, like Netflix, is a source of opportunity through the boost to content - often with huge budgets – that they also commission, the prevalent rights buy-out model leaves writers and other creators in a less fortunate position than in the historic broadcasting landscape.

Inquiry Questions

Public Service Broadcasting

• Are proposals allowing a Public Service Broadcaster to meet its remit by online programming as well as linear appropriate?

Public Service Broadcasters (PSBs) are not only an important part of the creative industries but are integral to the writing community. It is welcome, therefore, to see the Draft Bill’s focus on the public service remit for television includes provisions around the inclusion of quality content for children.

The culture sector, including animation studios, producers and writers, have been disappointed by the steady decline in commissioning for children’s television. In 2022, the DCMS Department axed the BFI’s Young Audience Content Fund (YAC). The BBC has also significantly reduced its children’s television remit, relegating CBBC to online provision only.

In light of this context, ALCS’S would ask the Committee to explore what kind of content the Ofcom quotas will include. It is welcome that the Draft Media Bill asks broadcasters to provide ‘an appropriate range and quantity of audiovisual content’ as long as the content is new original commissions. In ALCS’s view, if the proposed quota allowed for re-runs of already commissioned work to be included, this would be counter intuitive to incentivising PSB’s to provide relevant UK-originated children’s and young people’s content.

• Are the proposals in the draft Bill adequate for securing the future of Channel 4 and supporting independent content producers?

It is encouraging that the draft Bill has given Channel 4 more scope for producing its own content as the broadcaster forms an important part to the overall audiovisual ecology. ALCS would like to see that commissioned works go to writers across the UK and that Channel 4 demonstrates through its contract terms principles of fair remuneration.

General Issues

• Are there any issues missing from the draft Bill within the scope of public service broadcasting, video-on-demand or radio?

As writers pay has steadily decreased despite the boom in SVoD services, ALCS believe the Bill has missed out on an important element in ensuring the survival and continued flourishing of the British writing market. To guarantee that writers are fairly remunerated for their work, further analysis is required to understand the impact a growing SVOD market has had on writers and their remuneration in the changing landscape of the audiovisual industry.

ALCS are commissioning research that would look at the growing volume of buyout contracts in the industry. Allowing us to see the extent to which commissioning contracts are moving from a royalty based model to a buyout model in the video streaming age.

During this scrutiny of the Draft Media Bill, therefore, we would urge the Committee to ask the Government to extend its analysis of market changes beyond music to the whole of our creative sector - including the impact of streaming services on writers and their incomes – and to seek views on legislating for an unwaivable right to equitable remuneration for the long-term benefit of all creators across the UK.