The Great British Bake Off wins Best Feature at the BAFTAS. Ian West PA Wire/Press Association Images. All rights reserved.One of the most significant differences between the recently published draft BBC Charter and the current one is a new requirement for the BBC to be “distinctive”. The most recent development in the Bake Off story served up by Damian Collins MP, Acting Chair of the Select Committee for Culture Media and Sport, is a timely reminder that this “distinctiveness” requirement has the potential for long-term damage to the BBC.

According to The Times Collins has warned that if the BBC should choose to retaliate to the loss of its biggest hit show by scheduling a new cookery series against the refried Channel 4 version, Ofcom might have to investigate. Then, he suggested: “I think it would be fair to say that it wouldn’t be a distinctive programme.”

Under the new Charter it’s proposed that all BBC programming and services on TV, radio and online must be “substantially different” from those available from “other providers…both in prime time and overall”. This is new. Search the current BBC Charter for the word” distinctive” and you will draw a blank. Distinctive is set out in terms of” “the mix of different genres, programmes and content; quality; proportion of original UK output; level of risk-taking, innovation, challenge and creative ambition; and the range of audiences it serves.” 

On the face of it, this must be right. The criterion appears unexceptional and perhaps even overdue. Why have a BBC, and why pay for it with a form of hypothecated tax if it doesn’t offer something distinctively different from the commercial alternative? We want to taste the difference. If the market can provide then who needs public service media?

Yet Damian Collins’ remarks on Bake Off illustrate, and as LSE’s Damien Tambini has argued, the concept of distinctiveness can be used in an attempt to “constrain and diminish the BBC”.

The thorny question is how to measure and implement the new “distinctiveness” criteria.  From next April that task will fall to the media regulator Ofcom. In the first instance, the BBC itself will make a judgement, and then in the event of further challenge it will be up to Ofcom to decide.  Its Chief Executive Sharon White has indicated that true to the regulator’s consumerist remit she will look to the audience to guide Ofcom’s interpretation of “distinctiveness”.

What this may mean in practice is not entirely clear. And Damian Collins’ intervention makes it less so. The devil lies in the detail. So Damian Collins may have been speaking prematurely; but the charm of “distinctiveness” from the point of view of the BBC’s rivals is how convenient the term may prove if you’re looking for a BBC-bashing weapon.

Is the BBC which has been in the business of making successful cookery shows since time immemorial to get out of the business altogether, in prime time, or only at a point in the schedule when it will/might directly compete with a commercial rival’s programme? And what about other hit shows which have been poached, or cloned? ITV, always the worst offender when it comes to copycat shows and scheduling complaints, has announced a Strictly-alike celebrity talent show, to be called Dance, Dance, Dance. Under the new Charter will the BBC be obliged to get out of the way, and demote Strictly to some backwater of the schedules to protect ITV’s sovereign right to prime time? What of the new Clarkson vehicle? When that comes on stream on Amazon later this year, will the BBC be asked to pull Top Gear?

This is what happens when you start to measure public service output by market criteria, and the more you do so the worse it gets. The problem arises because for the past twenty to thirty years the BBC has increasingly been called upon to retreat from areas the market would like to exploit. The once common and taken-for-granted understanding of what we mean by “public service” has become problematic, under assault from proponents of marketisation. And the familiar Catch-22 has begun to operate: if the BBC has a hit it is accused of duplicating the market and dumbing down; if its programming is unpopular, usually because too highbrow- arts, current affairs, education – the public and the critics ask how it can justify the Licence Fee.  But as  Patrick Barwise has argued the chief risk of the distinctiveness criterion is that it smuggles in a market failure definition of public service that could in time reduce the BBC to a marginal role.  He makes the case that the BBC should be able to compete on quality, at the very least to keep its commercial competitors up to the mark. Or as Lord Grade says he put it when he was Chief Executive at Channel 4: “It’s the BBC that keeps us honest.”

 The very vagueness of the term is a potential bear-trap for the BBC. How can we be sure? Because we have been here before. As I pointed out on the publication of the May White Paper, the last time the BBC had to face a test of “distinctiveness” was when it launched its ambitious Digital Curriculum service in 2006. Within months competitors had complained, and the very ambiguity of the term made the BBC output impossible to defend. The result was that the BBC abandoned its flagship schools project and became far more risk averse when launching new projects, with a chilling effect on new service and new media innovation, in particular its capacity to offer audience participation; an issue as Becky Hogge has argued that remains as relevant as ever.

 If anything could inhibit the BBC from engaging in “risk-taking, innovation, challenge and creative ambition” as it is bound to do under the disinctiveness provisions of the new Charter, it is the liberal use of the same distinctiveness criterion to put the squeeze on the BBC every time it creates a hit. Innovation is risky. The BBC has nurtured these hit shows in the face of fierce competition, the usual stumbles and failures and some industry scepticism. This illustrates Mazzucato’s point that we have a long tradition of the public sector taking the risk and the private sector (in this case Love Productions) reaping the reward. 

But as the recent Bake Off example highlights the BBC Is now on a hiding to nothing: if it takes a risk and fails, then that’s an example of a waste of public money. Nurture and create a hit show, create a valuable property, and it will only be a matter of time before someone poaches it. At which point the private sector cleans up, and the BBC is prohibited from launching another.

 Damned if you do….