Statutory Instruments

2004 No. 1652

BROADCASTING

Broadcasting (Original Productions) Order 2004

Made

28th June 2004

Coming into force

1st July 2004

^M1^,^M2^,^M3The Secretary of State, in exercise of the powers conferred upon her by section 278(6) and (7) of the Communications Act 2003 , and paragraph 8(6) and (7) of Schedule 12 to that Act, having consulted the Office of Communications, the British Broadcasting Corporation and the Welsh Authority , hereby makes the following Order, a draft of which has been laid before Parliament in accordance with section 278(9) of and paragraph 8(9) of Schedule 12 to that Act and approved by a resolution of each House of Parliament:

Citation and commencement

1.—(1) This Order may be cited as the Broadcasting (Original Productions) Order 2004.

(2) This Order comes into force on 1st July 2004.

Interpretation

2. In this Order, “ programme ” does not include an advertisement.

Meaning of “original productions” for licensed public service channels

3. In section 278 of the Communications Act 2003 (programming quotas for original productions) , references, in relation to a licensed public service channel, to “ original productions ” are references to programmes of the following description, namely, programmes which—

[^F1 (a)are commissioned by or for the provider of a licensed public service channel with a view to their first being made available in the United Kingdom on a service that is a qualifying audiovisual service;^F1] and

(b)are European programmes.

[^F2Original productions quota conditions (licensed public service channels) - functions conferred on OFCOM

3A.—(1) OFCOM must determine whether qualifying audiovisual content that is made available by a person in the circumstances described in paragraph (2) may be counted towards meeting an original productions quota condition.

(2) Those circumstances are that the person has previously made available audiovisual content consisting of the same or substantially the same material (whether in the same year or a previous year).

(3) OFCOM may provide in an original productions quota condition that original productions of a description specified in the licence may not be counted towards meeting an original productions quota condition.

(4) OFCOM must prepare and publish guidance about the determination of whether an original production falls within a description specified in a licence by virtue of paragraph (3).

(5) OFCOM may provide in an original productions quota condition that the holder of the licence must have regard to that guidance.

(6) In this article, an “ original productions quota condition ” means a condition that forms part of the regulatory regime of a licensed public service channel by virtue of section 278(1) of the Communications Act 2003 (programming quotas for original productions) . ^F2]

Meaning of “original productions” for [^F3S4C^F3]

^F4 4. In paragraph 8 of Schedule 12 to the Communications Act 2003 (programming quotas for original productions) , references ... to “ original productions ” are references to programmes of the following description, namely, programmes which—

[^F5 (a)are commissioned by or for S4C with a view to their first being made available in the United Kingdom on a service that is a qualifying audiovisual service;^F5] and

(b)are European programmes.

[^F6Original productions duties (S4C) - functions conferred on OFCOM

4A.—(1) OFCOM must determine whether qualifying audiovisual content that is made available by S4C in the circumstances described in paragraph (2) may be counted towards meeting any S4C original productions duty.

(2) Those circumstances are that S4C has previously made available audiovisual content consisting of the same, or substantially the same, material (whether in the same year or a previous year).

(3) OFCOM may give a direction to S4C that original productions of a description specified in the direction may not be counted towards meeting a S4C original productions duty.

(4) Before giving such a direction, OFCOM must consult S4C.

(5) OFCOM must prepare and publish guidance about the determination of whether an original production falls within a description specified in a direction given by virtue of paragraph (3).

(6) S4C must have regard to that guidance.

(7) In this article, a “ S4C original productions duty ” means a duty of S4C under or by virtue of paragraph 8(1) of Schedule 12 to the Communications Act 2003 . ^F6]

Meaning of “European programmes”

5. —(1) For the purposes of articles 3 and 4, “ European programmes ” are programmes which are European works.

(2) To the extent specified in paragraph (4), programmes which are not European works may also be treated as “ European programmes ” by OFCOM for the purposes of articles 3 and 4, provided they are part-qualifying works.

(3) A part-qualifying work is a programme of the following description, namely a programme in the case of which a [^F7European^F7] producer has, or [^F7European^F7] producers have, contributed to its total production costs and either—

(a)a [^F7European^F7] producer has, or [^F7European^F7] producers have, made what appears to OFCOM to be a significant contribution to the production of the programme, having regard in particular to—

(i)the contribution of that producer or those producers to the total production costs; and

(ii)the degree of editorial control that producer has, or those producers have, exercised over the programme; or

(b)the programme has been made mainly with authors and workers residing in one or more member States.

(4) The proportion of a part-qualifying work which can be treated as a European programme by OFCOM shall be calculated by reference to the duration of the work, being the same proportion as the proportion of the contribution of a [^F8European^F8] producer or the combined contribution of [^F8European^F8] producers (as the case may be) in relation to the total production costs of the part-qualifying work.

(5) In this article—

[^F9 “ European producer ” means a producer—

(a)

who is an individual who is a national of a qualifying State; or

(b)

which is a body corporate formed under the law of a qualifying State and having its registered or head office in a qualifying State and in the case of which the central management and control of the business is exercised in a qualifying State;^F9]

[^F10 “European work” means a European work within the meaning of paragraphs 1(n), 2, 3 and 4 of Article 1 of Directive 2010 /13/ EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services ^F10]

[^F11 (6) In paragraph (5) “ qualifying State ” means—

(a)the United Kingdom;

(b)any other CTT State, as defined by section 211B(3) of the Communications Act 2003; or

(c)an EEA State that is not a CTT State, as so defined.^F11]

Andrew McIntosh

Parliamentary Under Secretary of State

Department for Culture, Media and Sport

Article 5(5)

^F12SCHEDULE Article 6(1) to (4) of Council Directive 89/552/EEC as amended by Directive 97/36/EC

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

in force	Provision is in force
in force*	In force only for specified purposes (for detail about the purposes see/hover footnote)
not in force	Not in force in England (may be in force in other geographies, see footnotes)
italics	Defined term
_dfn	Defined term (alternative style)
gry bckgrd	the in-force status of the provision is complex, check the footnotes

in force

Provision is in force

in force*

In force only for specified purposes (for detail about the purposes see/hover footnote)

not in force

Not in force in England (may be in force in other geographies, see footnotes)

italics

Defined term

_dfn

Defined term (alternative style)

gry bckgrd

the in-force status of the provision is complex, check the footnotes

footnote	commentary	related provisions	insert/omit
F1	Art. 3(a) substituted (1.1.2026) by The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(2)		substituted
F2	Art. 3A inserted (1.1.2026) by The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(3)		inserted
F3	Word in art. 4 heading substituted (1.1.2026) by The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(4)(a)		substituted
F4	Words in art. 4 omitted (1.1.2026) by virtue of The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(4)(b)		omitted
F5	Art. 4(a) substituted (1.1.2026) by The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(4)(c)		substituted
F6	Art. 4A inserted (1.1.2026) by The Broadcasting (Regional Programme-making and Original Productions) (Amendment) Regulations 2025 (S.I. 2025/1228), regs. 1(1), 3(5)		inserted
F7	Word in art. 5(3) substituted (31.12.2020) by The Broadcasting (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/224), reg. 1(2), Sch. 2 para. 1(2)(a) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)	this amendment (text substituted) should be read in conjunction with other related provisions, see the commentary.	substituted
F8	Word in art. 5(4) substituted (31.12.2020) by The Broadcasting (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/224), reg. 1(2), Sch. 2 para. 1(2)(a) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)	this amendment (text substituted) should be read in conjunction with other related provisions, see the commentary.	substituted
F9	Words in art. 5(5) substituted (31.12.2020) by The Broadcasting (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/224), reg. 1(2), Sch. 2 para. 1(2)(b) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)	this amendment (text substituted) should be read in conjunction with other related provisions, see the commentary.	substituted
F10	Words in art. 5(5) substituted (1.10.2013) by The Broadcasting and Communications (Amendment) Regulations 2013 (S.I. 2013/2217), regs. 1, 6(2)		substituted
F11	Art. 5(6) inserted (31.12.2020) by The Broadcasting (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/224), reg. 1(2), Sch. 2 para. 1(2)(c) (with reg. 6) (as amended by S.I. 2020/1536, reg. 5(2)(3)); 2020 c. 1, Sch. 5 para. 1(1)	this amendment (text inserted) should be read in conjunction with other related provisions, see the commentary.	inserted
F12	Sch. omitted (1.10.2013) by virtue of The Broadcasting and Communications (Amendment) Regulations 2013 (S.I. 2013/2217), regs. 1, 6(3)		omitted
M1	2003 c. 21.
M2	Schedule 12 to the Communications Act 2003 has effect by virtue of section 338 of that Act.
M3	Such consultation is required by section 278(8) of the Communications Act 2003 in relation to the powers conferred by section 278(6) and (7); and paragraph 8(8) of Schedule 12 to that Act in relation to the powers conferred by paragraph 8(6) and (7) of that Schedule.

Defined Term	Section/Article	ID
European producer	art. 5.	def_3c1705cb06
European programmes	art. 5.	def_5439e5114c
European programmes	art. 5.	def_f07d610dc5
European work	art. 5.	def_5bb494d5b4
original productions	art. 3.	def_6f3c6dbda4
original productions	art. 4.	def_01aa4f5e39
original productions quota condition	art. 3A.	def_ef22d59fd5
programme	art. 2.	def_5ba809d8b6
qualifying State	art. 5.	def_5e3e281fb1
S4C original productions duty	art. 4A.	def_1a44921297

Defined Term

Section/Article

Scope of Application

European producer

art. 5.

def_3c1705cb06

European programmes

art. 5.

def_5439e5114c

European programmes

art. 5.

def_f07d610dc5