Broadcasting (Original Productions) Order 2004

Made: 28th June 2004

Coming into force: 1st July 2004

The 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—

• (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; and

• (b) are European programmes.

Meaning of “original productions” for designated public services of the Welsh Authority

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—

• (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; and

• (b) are European programmes.

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 European producer has, or European producers have, contributed to its total production costs and either—

• (a) a European producer has, or European 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 European producer or the combined contribution of European producers (as the case may be) in relation to the total production costs of the part-qualifying work.

• (5) In this article—

• “European producer” means a producer—who is an individual who is a national of a qualifying State; orwhich 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;

• “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

• (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.

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

Signed

Andrew McIntosh — Parliamentary Under Secretary of State — Department for Culture, Media and Sport — 2004-06-28

Explanatory note

(This note is not part of the Order)

Footnotes

[^f00001]: 2003 c. 21.

[^f00002]: Schedule 12 to the Communications Act 2003 has effect by virtue of section 338 of that Act.

[^f00003]: 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.

[^f00004]: O.J. No. L298 p. 23, 17.10.89.

[^f00005]: O.J. No. L202 p. 60, 30.7.97.

Editorial notes

[^c5245051]: 2003 c. 21.

[^c5245061]: Schedule 12 to the Communications Act 2003 has effect by virtue of section 338 of that Act.

[^c5245071]: 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.

[^key-a60a7719dc29c48b4cf76ede71c6e323]: 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)

[^key-84b2c0b021e0f5e6e61a64841ded5f65]: 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)

[^key-d3e7bf715553c0d08d7d4211ab24c640]: 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)

[^key-cbe2c1983eb2868bf14670fb083daa98]: 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)

[^key-1a04cbb2e564c3e6a4425719b4b88c8e]: 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)

[^key-b686d97d5c4ca35237f9585028cbf013]: 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)

[^key-2f4dd0419fd0857aa9199523f1ecf542]: 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)

[^key-f904f151422323a7758154373c20a341]: 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)

[^key-ff8dccf5852eb6119510ff40da82f675]: 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)

[^key-f11f76acf3a3c839e0dfa6478e0ee5e8]: 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)

[^key-1f421b85963ef8a946ec727acbb63fd0]: 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)

Original 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).

Meaning of “original productions” for S4C

Original 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.

Meaning of “European programmes”