When is a TV programme not a TV programme? That is the big question troubling Ofcom, which last week was forced to postpone its long-awaited Television Production Sector Review as it struggled to work it out.
When is a TV programme not a TV programme? That is the big question troubling Ofcom, which last week was forced to postpone its long-awaited Television Production Sector Review as it struggled to work it out.

As reported by Broadcast, Ofcom was forced to put the brakes on the report, admitting it needed to do more work on the thorny issue of new media rights - an issue that has bitterly divided broadcasters and producers.

Taking its lead from the programme supply review, Ofcom had suggested to broadcasters that it was minded to view new media rights - mobile, broadband and video-on-demand - as secondary rights and therefore controlled by the producers. For example, it floated the idea of a VoD broadcast being similar to a DVD sale - ie, a consumer electing to "purchase" a product.

The commercial broadcasters, though, have cried foul - very loudly. New media platforms may not be traditional broadcast models but in no time at all, they argued, they could be competing for the same eyeballs and eventually the same advertising cash. Allowing a producer to sell on a programme that it had paid for to a broadband TV service shortly after transmission would be commercial suicide, they warned.

Five's chief executive, Jane Lighting, last week told the House of Commons media select committee; "Putting up the costs for a programme in a new media environment that is not owned by us, and then watching as advertising is lured into that environment, would leave us looking suddenly old and staid." She said it was a critical issue to the future health of Five.

Channel 4's chief executive, Andy Duncan, has gone even further, telling Broadcast last month that the publisher-broadcaster would have to consider going into production itself - if it doesn't get a fair settlement on new media rights.

He says the question isn't about when - but where. Where will viewers be finding their TV content in the future, that the broadcasters have paid for?

ITV has also reached an impasse in negotiations with Pact over new media rights, so much so that all talks have been cancelled and the producers' association now believes it will take action from Ofcom to sort the issue out.

All in all, new media rights seem to have taken both broadcasters and producers back to the barricades to re-fight the war over rights.

For broadcasters it's simply a question of "future-proofing" their businesses against the changes taking place in the market.

Their fears have been exacerbated by the better-than-expected take-up of broadband services. In its Communications Market report in July, Ofcom reported that over 70,000 homes were signing up a month. By the end of this year, 99.6% of UK homes will be able to get broadband.

Numerous companies are lining up to exploit this by offering broadcast-quality content over phone lines. BT's new service - stacked with programmes bought from BBC Worldwide and US movies - has set many a traditional broadcaster's heart a-flutter. Homechoice's impending national

rollout of its VoD service could also have a major impact on the viewing landscape.

Broadcasters argue that their primary rights, which would ordinarily give them exclusive rights to screen a programme several times in a four or five year timeframe, should be enhanced to include a substantial online "window". If viewers choose to watch their shows by non-traditional means, then they should be given some space to make money from that. They note that US broadcasters CBS and NBC have already begun offering hit shows on VoD for 99 cents an episode.

How long the British broadcasters want to hold onto the new media rights is unclear. C4's Duncan has said 30 days, some industry sources suggest ITV and Five might be calling for even longer.

The BBC has an agreement with Pact that as a public service broadcaster it has a seven-day window on new media rights, but again there is some suggestion that the BBC would like this to be longer.

The broadcasters' approach on the issue has angered producers' alliance Pact, which is adamant that the new terms of trade introduced after the programme supply review should remain intact. They argue that broadcasters have no evidence to support their argument that their primary rights deal will be damaged by new media platforms.

So far, Pact has been keeping its powder dry on what it believes is an acceptable window for commercial broadcasters to retain new media rights. But Lorraine Heggessey, chief executive of Talkback Thames, writing in Broadcast last week, said that the new media rights for broadcasters should be restricted to those which "genuinely enhance and support the broadcast of the programme (interactive services, catch-up viewing, mobile voting) and should be restricted to three days".

Three days or 30 days? There appears to be a lot of ground between what the broadcasters want and what indies want. The issue increasingly looks like one that Ofcom will have to resolve - and all sides now await its report, to be published in January.