IIA. Editorial Control Test
American public television, comprised of free and independent noncommercial broadcasters, is committed to providing programming that is produced in accordance with the very highest ethical, journalistic and professional standards. Therefore, PBS will always hold the producer fully accountable for the program and will not allow editorial control to be exercised by anyone else, including program funders.
Public television is an independent participant in the American system of a free and independent press. So long as public television continues to hold itself out as a major independent broadcast enterprise, it must guard assiduously against abusing the trust placed in its programming by the public. The audience has a right to feel secure in its assumption that program judgments are being made by professional journalists and by the broadcast licensees who are held accountable as trustees of the public airwaves. To allow program judgments to be controlled by program funders would be to breach the public's trust. Therefore, PBS will not accept a program if the program funder has asserted, or has the right to assert, editorial control over a program.
PBS's consideration of issues of actual editorial control also includes arrangements with third parties regarding control of program copyright, ancillary rights, and/or the provision of in-kind goods or services made prior to PBS distribution of the program. To the extent that, through such arrangements, a third party exercises or attempts to exercise editorial control over a program's content, the program will not be acceptable for PBS distribution.
PBS recognizes that the key to the application of this principle is the definition of inappropriate editorial participation or program control by a program funder (or other third party), and that the definition of "inappropriate participation or control" may vary depending upon the general nature of the program or the stage at which the participation occurs.
In general, a program funder's participation in the development of broad program concepts or proposals it might wish to fund is not considered an aspect of editorial control unless the facts and circumstances warrant a different conclusion. Thus, a program would be acceptable where the potential program funder were to make it known that it would be interested in funding, for example, a series on the performing arts or, more narrowly, modern dance.*
Though program ideas will, in most cases, be generated by program producers, public television does not prevent funders that have conceived ideas for new programs from acting as a catalyst to see their ideas realized on television. On the other hand, PBS will not accept a program where the potential funder has removed control and discretion from the producer by specifying in detail what the resulting program or series should be, or by pre-ordaining the conclusion the viewer should draw from the materials presented. What constitutes such control will depend on the circumstances, although the strictest standard will be applied to current affairs programs.
A program funder's actual participation (or right to participate) in the program production process after the initial idea stages are complete and after a producer has been engaged will be considered to be the assertion (or the right to assert) editorial control over the program or program series, and the proposed program funding will be unacceptable for PBS distribution. The right to, or the actual assertion of, such control can take many forms. For example:
- The program funder's insistence, by contract or otherwise, on choosing, for example, individual dramas within a drama series, or holding or exercising veto power over a producer's selection of dramas.
- The program funder's insistence, by contract or otherwise, on reviewing scripts, outlines or treatments after the initial funding decision is made, whether or not such review could result in termination of the grant. The same would be true where the funder retains the right to bar delivery of the programs to PBS. The ability to withhold or control distribution will be treated in the same manner as the ability to control content.
- The program funder's insistence, by contract or otherwise, on appointing or approving the appointment of experts to an editorial advisory panel when content decisions are expected to be a primary function of that panel.
- The program funder's insistence, by contract or otherwise, on being present in the editing room, or approving or even reviewing rough cuts, fine cuts or the final program prior to broadcast. The potential for influence is so palpable in these situations that, even if nothing were changed as a result of such participation, the resulting program would not be acceptable.
- The program funder's insistence, by contract or otherwise, on owning or controlling the copyright or other program rights to the production it funds. Ownership of copyright establishes actual editorial control in terms of both program content and the right to control program distribution. Therefore, program funders may not hold or control copyright to a program. A program funder may, however, participate in the distribution of revenue derived from the exploitation of ancillary rights by the producer, so long as the funder does not hold or exercise such rights itself.**
- The deliberate avoidance or alteration of certain material topics within a program or treatment in order that a particular underwriter be deemed acceptable by PBS.
- The program funder's insistence, by contract or otherwise, on participating in or attempting to control the program scheduling process. Funding arrangements which call for such participation would be unacceptable.
- The program funder's insistence, by contract or otherwise, on a "stepped" or contingent funding arrangement that enables the funder to become involved with program content.
* This assumes, of course, that the proposed series has not been created to serve the business or other interests of the funder, which would be unacceptable.
** An exception to this rule has been granted from time to time for underwriters that are engaged in the manufacturing and marketing of educational software that is based on or derived from the program, provided that the producer holds final editorial approval over the software.