Terms of Trade (PDF)
Téarmaí Trádála (PDF)
These Radio Terms of Trade are applicable to independent radio programmes commissioned by RTÉ with effect from _____________ 2010.
These Radio Terms of Trade apply to radio programmes commissioned by RTÉ Radio where RTÉ Radio is providing 100% of the cost of production of the programme.
In the case of radio programmes where RTÉ is not providing 100% of the cost of production, the terms relating to RTÉ’s editorial and financial involvement will be negotiated between RTÉ and the relevant programme producer on a case by case basis recognising that significant parts of these Terms of Trade will influence the final arrangements in those cases. Producers will not use the name of RTÉ in attempting to secure funding for a programme without RTÉ’s prior written consent.
Examples of situations where a programme will not be regarded as 100% funded by RTÉ are where funding/resources used for the production of the radio programme are provided by the producer (including contribution by way of an agreed deferment) and/or by other broadcaster(s) and/or by distributor(s) and/or by financier(s) and/or funders and/or by bodies such as the BCI and/or by way of programme sponsorship where such sponsorship is sourced by the producer prior to the commissioning of the radio programme by RTÉ and the sponsorship funding is used by the producer for the production of the radio programme.
3. Commissioning Procedure
3.1 The commissioning rounds for RTÉ Independent Radio Productions (“IRP”) will take place bi-annually. Genre-based commissioning specifications will be drawn up by each radio channel and published one month ahead of the close of the round. At the same time, independent producers will be invited to register as suppliers to RTÉ Radio. The status of registered supplier will be a pre-requisite for the acceptance of all submissions for a commissioning round and registered suppliers may submit no more than ten applications in any one commissioning round. Where RTÉ Radio deems that it is appropriate having regard to the criteria of a given commissioning round, a limited number of registered suppliers only may be invited to submit an application for such round. If the status of registered supplier has not been activated by a commission from RTÉ Radio during a period of two years after initial registration, the status will lapse and the independent producer will be required to reapply in a subsequent commissioning round.
Once a specific round has closed, a screening process will be undertaken to ensure that submissions conform to the standard and specific criteria of the round. Programme proposals/submission submitted by independent producers must contain all information requested by RTÉ in respect of the relevant commissioning round for which they are applying (for illustrative purposes, information requested by RTÉ may include, without limitation, details of proposed programme content, duration, key personnel (including on-air talent), estimated production budget and a production and finance plan). All submissions will be allocated a round number which will identify them throughout the commissioning process. If the resulting shortlist for any channel exceeds 200 submissions and/or the resulting shortlist for a single genre in any channel exceeds thirty submissions, a pre-selection process based on an adjudication of the editorial brief may take place. The final shortlist will be published on www.rte.ie/irp and registered suppliers will be sent the relevant link by email.
Following publication of the shortlist, each channel head will form genre-based selection panels consisting of a minimum of three people to adjudicated the shortlisted programmes on the basis of pre-determined editorial criteria while reserving the right to consider other possible criteria of selection. The final selection will be presented by the diverse panels to the IRP administration and to the Managing Director of Radio for approval and sign off. Rejection letters will be issued to unsuccessful submissions and registered suppliers that have been selected will be issued a letter of expression of interest (which shall be “subject to contract”) by RTÉ. Such a letter will not constitute a binding commitment on the part of RTÉ and the producer should not commence production or incur production costs in reliance on such a letter.
The final editorial treatment will be agreed with selected producers by the RTÉ channel head and/or RTÉ editor and a RTÉ executive producer will be assigned to each commission. Deliverables will be agreed as required and will be specified in a programme production and distribution contract that will be issued to the producer by RTÉ. RTÉ reserves the right to withdraw a letter of expression of interest subject to contract where there is a failure to agree or accept contract terms.
3.2 The commissioning procedure for independent radio programmes shall be conducted in accordance with the following procedure:
3.2.1 Following issue by RTÉ of a “subject to contract” letter expressing interest in a proposal, RTÉ and the producer will commence negotiations on editorial, financing and contractual matters relating to the programme with a view to concluding a radio programme commissioning agreement (“Agreement”) under which the producer will be commissioned by RTÉ to produce and deliver the radio programme to RTÉ.
3.2.2 RTÉ will have no liability for any costs or obligations incurred by the producer should the producer commence production or incur production costs prior to signature by RTÉ and the producer of the Agreement.
In the case of some submissions the proposal might not be ready to enter into production and may require development. In such cases RTÉ may agree to provide development funding. Such development funding is normally provided by RTÉ on the following terms:
(i) the purpose and timescale of the development will be agreed, and
(ii) a development budget and cashflow will be prepared by the producer and approved by RTÉ.
(iii) RTÉ will take co-ownership of the copyright in the development work subject to paragraphs (iv) and (v) below.
(iv) RTÉ will decide within an agreed length of time, not to exceed 12 months unless otherwise agreed by the parties, after the completion of the development phase whether or not to commission or participate in the production.
(v) Should RTÉ decide not to commission or participate in the further development or production of the project within the time limit set out in (iv) above, the project will then go into turnaround and the producer will have the right to seek other sources of development and/or production finance. The development finance provided by RTÉ will be repayable to RTÉ by the producer if production of the radio programme commences without RTÉ involvement within 3 years of the date the project went into turnaround and RTÉ’s rights in the development work will revert to the producer on such repayment. If the production of the radio programme does not commence within such 3 year period then the development finance provided by RTÉ will be written off and cease to be repayable by the producer and RTÉ’s rights in the development work will revert to the producer but RTÉ will have an ongoing right to an end credit in the form “developed in association with Raidió Teilifís Eireann”.
3.4 Completion funding
RTÉ may on occasion be willing to provide funding for the completion of a radio programme that has not been commissioned by RTÉ, the terms relating to the provision of such completion funding to be agreed between RTÉ and the applicable producer on a case by case basis.
4. Production Issues
4.1 Production Fees
The production budget shall include:
(i) All agreed development costs
(ii) All approved direct costs of production including reasonable overhead costs of not less than 4%
(iii) A production fee negotiated as set out below
(iv) Insurance costs, legal and accounting fees, and contingency where appropriate. However, the production fee will not be calculated on any contingency element of the budget.
Production fees will be negotiated on a project by project basis and will be determined by consideration of the following relevant factors:
(i) The complexity of the production
(ii) Duration and scale of the production
(iii) The originator of the programme concept
(iv) The total volume of work commissioned by RTÉ from an individual producer
(v) The programme budget
The production fee in the case of radio programmes other than output or slate deals will be in accordance with the following scale:
Minimum Production Fee
Up to €32,000
€32,001 - €63,000
€63,001 - €106,000
€106,001 - €169,000
€169,001 - €296,000
€296,001 – upwards
For budgets over €296,000 – the first €296,000 will be at 10% with the % fee in respect of the excess to be negotiated.
It is recognised that in the case of output or slate deals production fees will be negotiated on a case-by-case basis.
4.2 Production Budget, cash flow and payments
Prior to negotiating the Agreement, the producer will notify RTÉ of any changes the producer proposes to make to the draft detailed production budget and cash flow submitted by the producer with the programme proposal as described in paragraph 3.1 above. Such changes, if any, will be submitted by the producer for discussion and approval by RTÉ. Once RTÉ has approved a final detailed production budget and cash flow the producer will be responsible for producing and delivering the programme in accordance therewith. RTÉ will have no liability for any unauthorised overspend by the producer or for any extra costs incurred by the producer if the agreed budget turns out to be insufficient. RTÉ will pay the production funding in accordance with the agreed cash flow. No payments will be made by RTÉ prior to signature of the Agreement. Payments will only be made on foot of a proper invoice. The production budget shall include all agreed development costs, all approved direct costs of production, insurance costs and may include legal and accounting fees, and contingency where appropriate. Cost reports, together with copies of the production bank account statements and bank reconciliation, must accompany each payment request other than the signature payment if requested by RTÉ and shall in any case accompany the final payment request. Cost reports should detail expenditure to date, creditors outstanding, and a detailed estimate of the costs to complete the production. Payments will only be made on foot of a proper invoice.
A contingency is an agreed calculated sum to cover potential costs that are not provided for in the agreed production budget. Any contingency is subject to the agreement of RTÉ when negotiating the production budget. The contingency should not be included in the producer’s cash flow, and will be retained by RTÉ until required. If it is not required then it will be retained by RTÉ.
4.4 Production bank account
The producer shall, on request by RTÉ if RTÉ deems it necessary for any particular radio programme, open a production bank account specifically for each project commissioned. In any event payments will be made by RTÉ into business accounts only and in no event into a personal bank account. The following arrangements will apply to the operation of the production bank account:
(a) All payments made by RTÉ will be lodged directly into the designated production account by RTÉ
(b) Any third party production funds for the project must be lodged directly into the designated production account
(c) the account may be operated on the producer’s signature only unless RTÉ requires otherwise and notifies the producer in writing of this
(d) RTÉ will be entitled to full access to all account information, whether from the producer and/or from the bank as RTÉ may elect
(e) RTÉ’s nominee may at any stage by notice in writing to the producer require that no further cheques be written on the account and advise the bank accordingly. In individual cases RTÉ may require that the producer and the bank sign a bank mandate letter with RTÉ in respect of the operation of the account and bank compliance with the instructions of RTÉ in respect thereof
(f) The production account will be operated in isolation from any other account held by the independent producer/production company
(g) Funds may only be used for the production of the programme commissioned by RTÉ and not for any other projects. Funds shall not be transferred from this account to any other account held by the independent producer except where such payments are made in accordance with provisions in the approved budget which are due to the independent producer
(h) The account will not be available as an asset of the independent producer in the event of the producer’s ceasing to trade, liquidation, etc.
RTÉ requires producers to effect standard production insurance (the level to be approved by RTÉ in each case) to be in place on all productions. RTÉ requires that producers provide proof that approved production insurance cover has been obtained as soon as such cover is obtained by the producer but in any event not later than 14 days prior to commencement of research/recording.
The producer will be responsible for overspend. Where RTÉ agrees that an overspend in excess of an agreed contingency (if any) is, nevertheless, arising for reasons outside the direct control of the producer, then RTÉ may agree to contribute towards the cost of the overspend.
4.7 Tax Clearance Certificates
A pre-condition to any of RTÉ’s obligations under an Agreement with a producer (including any payment on contract signature) is that the producer must submit in advance to RTÉ a current Tax Clearance Certificate (ref. TC2) in accordance with regulations governing the awarding of contracts for provision of goods and services to public service organisations.
In the case of independent production companies, RTÉ may also require confirmation that the company has been registered and is up to date in its filings at the relevant Company Registration Office. The company may also be requested to provide a copy of the last annual accounts filed by the company at the relevant Company Registration Office.
4.8 Producer’s obligations
The producer must either engage a professionally competent crew or demonstrate personal technical proficiency for the production of the radio programme and ensure normal industry arrangements are complied with. Producers will also comply with all applicable legislation, regulations and codes relating to the engagement and employment of staff including compliance with working time and health and safety requirements. The producer will, if required by the production insurer or RTÉ, provide a copy of a health and safety policy statement to the production insurer.
The producer will undertake that the radio programme will be original and that nothing in the production of the radio programme or in the radio programme (including where the producer delivers promotional materials, in any such promotional materials) will be obscene or defamatory or infringe the copyright or right of privacy or any other personal or proprietary right of any person or be unlawful or breach any applicable laws and codes of standards, practice and prohibitions in broadcasting standards, advertising, sponsorship, product placement and other forms of commercial promotion in broadcasting services or bring RTÉ into any disrepute. This is provided that if the radio programme is in any way altered or re-edited by RTÉ and a claim is made solely as a result of such re-editing or alteration, RTÉ acknowledges that the producer will not be liable to RTÉ for such claim provided however that the producer will be liable if in the course of such re-editing or alteration RTÉ relies on information given by the producer.
RTÉ expects to rely on all the contractual provisions and warranties given by the producer in relation to a commissioned programme.
The producer will keep records of all agreements and clearances relating to the production of the radio programme and will provide copies of all these documents on delivery of the radio programme to RTÉ. RTÉ may on occasion require a right of prior approval over certain production agreements and clearances. Where legal difficulties arise as a result of the failure by the producer to secure all necessary agreements and clearances, and where such difficulties require the engagement of professional legal advice either from legal advisers based in RTÉ or from external professionals, the costs of such services shall be borne by the producer.
Where RTÉ, as publisher/broadcaster becomes party to any legal action, or threat of action or Broadcasting Complaints Commission submission, as a result of matters relating to a radio programme, the producer of that programme shall co-operate fully and in every way with RTÉ in responding and dealing with such matters.
It is in the interests of both RTÉ and the producer that any such problems are anticipated and dealt with prior to transmission. The producer, therefore, must ensure that RTÉ is advised of any possible legal problems well in advance of transmission in order that steps may be taken to avoid subsequent difficulties.
The producer will warrant that required rights are cleared to enable RTÉ to exploit RTÉ’s broadcasting and distribution rights in the radio programme save where it is specifically agreed to the contrary. In relation to music rights, RTÉ will secure the public performance rights in any musical works contained in the radio programme from IMRO, and will also allow the producer to avail of the blanket licence arrangements for musical works and production music (library music) from MCPS Ireland. Commercial sound recordings may be synchronised to a radio programme where the radio programme is for broadcast in Ireland. Any music clearance costs over and above those covered by the IMRO, MCPS Ireland and PPI blanket licences with RTÉ will not be provided for in the budget unless otherwise agreed with RTÉ. RTÉ may agree, on a case by case basis, and on such terms as may be agreed between RTÉ and the applicable producer, to include provision in the production budget for the commissioning of specifically composed music for the radio programme.
4.9 Production monitoring – Editorial
In negotiating the Agreement, the producer will submit a draft detailed editorial specification for discussion and approval by RTÉ. The producer will be responsible for producing and delivering the radio programme in accordance with the editorial specification agreed with RTÉ which will be included as a schedule to the Agreement. While respecting the creative integrity of the independent producer, RTÉ will seek to ensure that the radio programme is produced and delivered in accordance with the agreed editorial specification. For this reason, RTÉ may require the producer to provide progress reports (and if requested access to recordings) during production. In addition RTÉ will require access to and approval over rough and fine cuts. The approval of RTÉ will be required for any significant departure from the agreed radio programme editorial specification. Changes required by RTÉ Radio in order that the radio programme is made to the agreed editorial specification will be carried out by the producer, and at no extra charge to RTÉ.
In the event that the radio programme is delivered in accordance with the agreed editorial specification and RTÉ Radio seeks further changes and these further changes involve a substantial cost which was not foreseen in the original agreed budget, RTÉ and the independent producer shall agree additional funding to cover that cost, any such agreement to be subject to confirmation in writing from RTÉ.
4.10 Production monitoring - Financial
Producers will report the progress of productions at agreed intervals by submitting progress and cost reports in a form to be agreed with RTÉ.
4.11 Takeover / abandonment
There may be occasions where a producer will materially default on the producer’s obligations under the Agreement. Should such a situation arise, RTÉ, in addition to any other rights it may have in respect of the default, will normally have the option, by written notice after reasonable and meaningful consultation with the producer, of either taking over or abandoning the production of the radio programme.
The radio programme will be delivered in accordance with the RTÉ Radio delivery schedule set out in the Agreement and RTÉ Radio standard guidelines for delivery of independent commissioned radio programmes. The producer should be familiar with these requirements and should provide for them in all production and budgetary planning. It is recognised that in the case of radio drama productions the producer may be required by RTÉ to deliver the radio programme both in project form and as a single track and the production budget will include provision for the related cost.
All credits must comply with RTÉ Radio credit guidelines and the producer will submit the proposed credits for prior written approval by RTÉ. A producer should ensure that no commitments are made to third parties in relation to credits that may contravene RTÉ’s Radio credit guidelines.
4.14 Settlement of final accounts/audits
A percentage (not exceeding 20%) of the RTÉ production funding contribution will not be payable until reconciliation of the final cost report which will be submitted to RTÉ by the producer not later than 2 months after accepted delivery of the radio programme. The final cost report will be in a format to be agreed with RTÉ and will be certified by the producer (or an authorised officer thereof) as being a true and accurate reflection of the costs of the production of the radio programme. RTÉ's review of the final cost report will be completed within 2 months of RTÉ's receipt thereof unless the final cost report is incomplete and RTÉ requires additional information or documentation from the producer in which case such 2 month period will run from the date when all requested information and documentation has been supplied to the satisfaction of RTÉ provided however that RTÉ must request such additional information and documentation by written notice not later than 1 month of RTÉ's receipt of the final cost report. In the event that the producer fails to submit the final cost report within 6 months after accepted delivery of the radio programme or if the final cost report is submitted in time but is incomplete and the producer is subsequently unable to provide such information and documentation as may be requested by RTÉ within 6 months of RTÉ's request for same then the producer may at RTÉ's reasonable discretion be deemed to have forfeited its right to receive all or part of the final instalment. It is acknowledged that RTÉ is subject to the terms of the Prompt Payment of Accounts Act 1997.
In cases where production and accepted delivery is completed for a cost less than the agreed production budget, 50 per cent of the saving shall be applied to the independent producer, and the balance to RTÉ. It is recognised and accepted that an under-spend in one area may be set against an over-spend in another area, provided however that the amounts involved are not substantial and that the approved programme specification is adhered to and delivered. Transfers of a substantial nature from one area to another must be approved by RTÉ in advance, after notification in writing by the producer of any proposed adjustments.
In addition to submitting the final radio programme cost report, the producer will maintain and retain for at least 3 years after accepted delivery of the radio programme, complete records (including without limitation all invoices, receipts and contracts) relating to the production of the radio programme. These records will be made available to RTÉ for audit inspection and copying upon RTÉ request at any time during the 3 year period.
The Producer shall co-operate with RTÉ in the preparation of statistics regarding independent productions under the Broadcasting Act 2009 (or otherwise as required by any current or future national or European law or regulation, subject to notification thereof by RTÉ in advance).
Following final acceptance of delivery of the radio programme, RTÉ will give the producer reasonable notice of the proposed first transmission date. However, there shall be no obligation on RTÉ to broadcast the radio programme and should RTÉ decide not to broadcast the radio programme, then the producer shall be fully advised of such decision.
4.16 Final editorial control
Having regard to RTÉ’s obligations under the Broadcasting Act 2009, RTÉ will have final editorial control over the radio programme. Subsequent to accepted delivery of a radio programme by RTÉ’s nominated representative, RTÉ shall be entitled, at its sole discretion and cost, to make such changes, deletions or additions to the radio programme as may reasonably be required by RTÉ, following consultation with the producer. The producer may require the producer’s credit to be withdrawn in such circumstances.
RTÉ will meet agreed additional costs consequent upon a producer being required to undertake additional work as a result of RTÉ’s editorial decisions communicated to the producer after approval of the final edit provided that the radio programme, as made, has been accepted by RTÉ as meeting the agreed radio programme specification.
4.17 Programme publicity and promotion
Any publicity and promotion relating to the production, broadcast and commercial exploitation by RTÉ of the radio programme will be co-ordinated by RTÉ in consultation with the producer and the producer will not issue publicity or promotional material related to the radio programme without the prior written agreement of RTÉ.
The radio programme must be produced in accordance with RTÉ Radio’s sponsorship guidelines and all applicable codes of standards, practice and prohibitions in respect of advertising, sponsorship, product placement and other forms of commercial promotion in broadcasting services.
Independent producers may approach potential sponsors provided that any such approach is agreed in advance with RTÉ and is made on the basis that the producer makes it clear that the producer is not in a position to commit to the broadcast of a radio programme by RTÉ.
If a sponsorship agreement is signed by RTÉ and a sponsor, and such agreement arises directly from the relationship between the independent producer and the sponsor (i.e. provided that there is no third party agency involved or agency fee payable), then up to a maximum of 15% of the value of the sponsorship can be paid to the independent producer as a finders fee, (it being agreed that where a finders fee is payable hereunder the independent producer will be entitled to 15% of the first €190,000 in sponsorship monies raised with the percentage of any sponsorship monies in excess of €190,000 to be negotiated), but provided that such finders fee is inclusive of any fee paid to any party and in particular to an advertising agency. It should be noted by the independent producer that only RTÉ is entitled to enter into and sign sponsorship agreements with sponsors.
Sponsorship revenues for RTÉ Radio broadcast programmes, whether arising out of commercial involvement with the sponsor by the independent producer or otherwise, will be lodged to RTÉ central accounts. However, RTÉ reserves the right in certain limited circumstances to allocate sponsorship revenues directly to the production of a radio programme. In such event no finders fee is payable. These limited circumstances are where the radio programme would not otherwise be made, and the sponsorship impacts on the arrangements for the radio programme or series, and RTÉ sponsorship revenue expectations are not thereby diminished and the arrangement is consistent with RTÉ’s other sponsorship arrangements and RTÉ’s sponsorship guidelines.
4.19 Disclosure and confidentiality
Producers are expected to make full and timely disclosure to RTÉ of all matters that may be relevant to the production and exploitation of the radio programme including any problems or issues that may arise during production.
RTÉ and the producer will not disclose the terms of their Agreement except to professional advisers or as may be required by law.
5. Programme rights
5.1 Copyright and secondary rights
The copyright in the radio programme shall be assigned to RTÉ together with the ownership of all radio programme materials. This assignment will include without limitation all radio rights, web rights, mobile phone rights, interactive rights and secondary rights such as radio sales rights, cd/dvd (or other formats now known or hereinafter invented) and podcast rights, tie-in magazine/book publishing rights, tie-in event rights, tie-in merchandising rights, music soundtrack rights, and music publishing rights (where there is specially commissioned music).
The producer will liaise with the RTÉ Library in respect of delivery to RTÉ of all outtakes and similar material/data relating to the radio programme, it being acknowledged that new digital technologies will greatly increase RTÉ’s capacity to take delivery of such material/data.
5.2 Exploitation of the programme on RTÉ services
RTÉ will have the right to unlimited transmissions of the radio programme on any analogue and/or digital (including interactive) radio services provided by RTÉ for a term starting on the date of signature of an Agreement and ending 5 years from the date of first RTÉ broadcast of the radio programme (or the last episode thereof if a series) (the “Initial Payment Period”). Any RTÉ radio broadcasts after that period will be subject to payment to the producer of an additional fee to be agreed between RTÉ and the producer, it being recognised that any such fees negotiated in respect of radio broadcasts after the 5 years on any RTÉ digital radio services will be nominal.
In addition to the above, RTÉ may, without any further payment to the producer:
(a) stream the radio programme on the RTÉ website via the internet simultaneous with the RTÉ radio broadcast of the radio programme and on demand at any time during the Initial Payment Period (with or without accompanying visual material)
(b) stream clips (not to exceed 30% of the programme) from the radio programme on the RTÉ website for promotional purposes at any time during the Initial Payment Period (with or without accompanying visual material)
(c) stream the radio programme on mobile phones simultaneous with the RTÉ radio broadcast of the radio programme and on demand at any time during the Initial Payment Period (with or without accompanying visual material)
(d) stream clips (not to exceed 30% of the programme) from the radio programme on mobile phones for promotional purposes during the Initial Payment Period (with or without accompanying visual material)
In addition to the above, RTÉ may make radio programmes or programme content available for download (with or without accompanying visual material) by end-users to devices including but not limited to PCs/Macs/laptops/mobile phones or other hand held digital devices/i-pod/MP3 players (i) via the RTE Website or (ii) via any third party website by arrangement between such third party service and RTE (provided that the download file is served from RTÉ’s servers or RTÉ’s designated content delivery network), (in each case with or without geo-blocking) at any time during the Initial Payment Period. No further payment shall be made to the producer provided that such such-end users are entitled to listen to such downloads without any fee or payment being payable by such end-users to RTÉ in respect thereof.
In addition to the above, RTÉ may make the radio programme available to third party public service broadcasters worldwide for transmission on their radio services as part of any content exchange programme in which RTÉ participates from time to time. No further payment shall be made to the producer provided that RTÉ does not receive a fee or payment or other consideration (save any content provided in exchange for the radio programme) from such third party public service broadcaster.
5.3 Other exploitation
Any arrangement(s) in respect of the commercial exploitation of the radio programme on services other than RTÉ services and the exploitation of radio sales rights, dvd/cd (or other formats now known or hereinafter invented) rights, pay-podcasts, tie-in magazine/book publishing rights, tie-in event rights, tie-in merchandising rights, music soundtrack rights, and music publishing rights (where there is specially commissioned music) shall be agreed between RTÉ and the producer, it being acknowledged that RTÉ will not be required to agree to any exploitation of a nature that may bring the programme or RTÉ into disrepute or conflict with RTÉ’s reasonable commercial interests. If RTÉ wishes to exploit the foregoing rights the exploitation arrangement offering the best commercial deal for RTÉ and the producer will be the one that will be implemented and the revenues from such exploitation remaining after deduction of any applicable costs and distribution fees will be divided 50% to RTÉ and 50% to the producer. If RTÉ Radio seeks to handle the exploitation of some or all of these rights and the exploitation terms offered by RTÉ Radio are better than those offered by any third party then RTÉ Radio will be appointed to handle the exploitation of those rights.
In the case of a radio programme involving premium line IVR/SMS competitions or voting, and subject to any applicable legislation, regulations and codes relating thereto, the arrangements in respect of such competitions/voting will be made by RTÉ and the producer will receive a share of up to 30% of net profits (if any) from this activity (i.e. the revenues (if any) received by RTÉ remaining after deduction of RTÉ Radio overhead fee of 15% and any related costs). It is recognised that a number of IVR/SMS competitions on RTÉ Radio are run at a standard rate text charge which does not yield any net profits.
5.4 New media rights
It is recognised that RTÉ needs to take account of developing technologies and new media and for that purpose RTÉ may use radio programmes and radio programme material on a trial and non-profit basis in testing such new technologies and new media. No payment will be payable to producers for use of radio programmes and programme materials in such tests unless RTÉ requests the producer to carry out reversioning of the radio programme or radio programme material for such purpose in which case RTÉ will pay the producer agreed reversioning costs.
5.5 Radio programme websites
RTÉ will have the exclusive right world wide to create and maintain websites in respect of commissioned radio programmes. RTÉ may be willing to pay the independent producer a small fee for any additional work and delivery items specifically requested by RTÉ for the purposes of the radio programme website(s). In addition, the independent producer will be entitled to exploit short clips of the radio programmes on the producer’s own corporate promotional website for corporate promotional purposes only. In the event that RTÉ decides not to establish website(s) for the radio programme, RTÉ may in its discretion and on the independent producer’s request permit the independent producer to establish and maintain a programme website on such terms as may be agreed between RTÉ and the independent producer, keeping in mind that RTÉ needs to be satisfied that programme websites do not contain material of a nature that will bring the programme or RTÉ into disrepute and that RTÉ policy is to promote the RTÉ portal as the on-line interface for RTÉ viewers.
5.6 Option to recommission the radio programme; reversioning of programmes into the Irish or English language
Subject to the comments in clause 5.7 below in respect of formats, RTÉ will be granted the option to recommission the radio programme (including any spin-offs from that radio programme). If RTÉ does not exercise such option within 12 months after the first RTÉ broadcast of the radio programme (or of the last episode thereof if a series the producer shall be entitled to make alternative arrangements for the production of further programmes.
RTÉ shall have the right to reversion any radio programme from the Irish language to the English language and vice versa. Subject to the producer having the requisite skills, the original programme producer shall have the first right to produce the reversioned programme. RTÉ will notify the producer in the event that RTÉ intends to reversion the radio programme from the Irish language to the English language or vice versa. If the producer does not accept RTÉ’s offer to produce such reversioned programme within 1 month of such notice, RTÉ may negotiate and enter into arrangements for the production of such reversioned programme with a third party or parties.
Where an original programme format is exclusively created by the independent producer then the format rights will remain vested in the producer, subject always to the rights granted to RTÉ in connection with the production and exploitation of the RTÉ radio programme based on the format and RTÉ’s right of prior approval over any exploitation of the format to ensure the format is not licensed to any competitor of RTÉ whose signal is receivable in Ireland and may conflict with RTÉ’s rights. This right of prior approval will lapse 6 months after completion by RTÉ of the first RTÉ broadcast of the first RTÉ radio programme or radio series based on the format (with the proviso that the producer will procure that the presenter of the RTÉ radio programme/series will not present any other version prior to such time as RTÉ elects not to commission the RTÉ version any more. The producer and RTÉ (and RTÉ if RTÉ is appointed to exploit the radio distribution rights in the RTÉ programme/series) will agree an exploitation strategy to co-ordinate the sale of the RTÉ radio programme so that the sale of the RTÉ radio programme internationally will not adversely affect the sale of the format rights by the producer or its agent internationally. RTÉ will have an ongoing right to commission further episodes or series of the radio programme, such right to be exercised by RTÉ not later than 12 months after first RTÉ broadcast of the radio programme (or of the last episode thereof if a series). RTÉ agrees that in the event that RTÉ does not indicate its in principle decision to commission a subsequent radio series (or spin-off if applicable) within 12 months of first RTÉ broadcast of the radio programme (or the last episode thereof if a series), the independent producer will then be entitled to produce and exploit a subsequent radio programme with/for third parties (subject to any rights RTÉ may have in the format). RTÉ will be entitled on RTÉ request to receive a development credit in the form “Developed in association with RTÉ” in the credits (customary size and position for a development credit) of all such subsequent radio programmes produced without RTÉ involvement.
In the case of radio formats originated by producers where RTÉ is the first broadcaster to commission and broadcast the format, RTÉ shall be entitled to receive up to 15% of all consideration received by the producer from the exploitation of the format rights in all media throughout the world in perpetuity excluding for the avoidance of doubt (i) any revenues paid to the producer by RTÉ arising from the exploitation of the radio programme commissioned by RTÉ, (ii) production fees paid to the producer where the producer is commissioned to produce programmes based on the format and (iii) fees and expenses paid by a third party licensee of the format rights to the producer in respect of individual consulting producer fees PROVIDED that such production fees and consultancy fees and expenses are in line with custom and practice in the international format licensing industry.
Where the radio programme format is jointly created by RTÉ and the independent producer then RTÉ and the independent producer will jointly own and control the format and there will be no exploitation of the format rights by either RTÉ (subject to the rights granted to RTÉ in connection with the RTÉ radio programme) or the independent producer except in accordance with a separate agreement to be negotiated in good faith.
Where the radio programme format is exclusively created by RTÉ then subject always to the rights granted by RTÉ to the independent producer for the purpose of the production of the programme, the format rights will remain vested in RTÉ absolutely.
These Terms of Trade are issued to illustrate RTÉ’s procedures for the commissioning of programmes from the independent production sector. Nothing in these Terms of Trade may be used in interpreting the provisions of any specific agreement signed by a producer and RTÉ and the terms of any such agreement will supersede any of the contents of these Terms of Trade.