DVD Commentary at the BBFC

Back in October 2007 the BBFC issued the following press release:

The BBFC has recently received legal advice on the issue of audio commentaries. Our advice is that audio commentaries will almost always constitute new video works and consequently require classification.

The only exceptions are audio descriptive tracks which involve very simple and short descriptions of the action on screen (eg for the visually impaired).

A distributor on the Criterion forum noted:

The BBFC are more and more redundant and reviled in this modern age. Far from thinking that they do a "great and necessary" job, I believe that the job they do is completely without purpose (thanks to the internet) and that the restrictive and costly BBFC practices to which all UK distributors are forced to comply can now be challenged in the European courts. At the very least, by government decree their work should be carried out for free.

I'm not a fan, and even less so since they decided that all commentary tracks had to be certificated due to being "further video content". This is at a cost of around £1,000 GBP for a 95 minute film, and again, another £1,000 GBP for a commentary track -- and the delays involved in the production process while they certificate prevent us from getting things out more quickly.

Audio books, radio shows, and other audio content released on CD in the UK is not certificated by the BBFC, and a DVD audio commentary does not constitute "further video content" in our book because it is audio content, so I am strongly against this inane ruling.

It's fair to say we could release films more quickly for less money if the BBFC was "opt-in" like in other progressive countries.

So how many films remain unavailable to Brits because the censorship fee makes it commercially unviable? And how many small distribution films are bought from abroad to get the best value on extras?

Back in October 2007 the BBFC issued the following press release:

The BBFC has recently received legal advice on the issue of audio commentaries. Our advice is that audio commentaries will almost always constitute new video works and consequently require classification.

The only exceptions are audio descriptive tracks which involve very simple and short descriptions of the action on screen (eg for the visually impaired).

James explains some of the commercial effects that this BBFC decision has on the availability of commentary soundtracks.

I conjured up the idea of producing cost effective audio commentaries for classic British feature films for DVD companies around the world with original cast and crew members. Technology has had a hand at least in making this possible. Getting my foot in the door in the DVD industry took some time but I eventually succeeded in persuading Network DVD to allow me to produce commentaries for some of their releases prior to them going in house. I offer to produce commentaries for feature films between a cost of £1,000 and £1,500. This covers everything including payments made to participants. I even offer to make to produce commentaries which I would then license out for as little as £500. I can offer to produce an audio commentary for a 114 minute video for £1,250 but if the company had to pay for a BBFC certificate to use it, it would cost them another £759 + VAT to use it. A 95 minute film would only cost £645 + VAT to certify and I used to promote my commentary proposals as costing less than the price of the certificate when a license payment is suggested. This ruling would, on occasion, double the cost of the use of an audio commentary and would clearly prohibit the use of them.

It is significant that Paul Sutton posted on the Criterion forum, in that thread you quoted from, that The audio commentary can make or break a release (to say nothing of its educational richness) with emphasis on 'its educational richness'. I do not debate the initial part of the statement that audio commentaries will almost always constitute new video works. It is the following part of the statement that I have issue with that, as new video works, they would consequently require classification. This part of the statement is entirely false. New video works being offered commercially in the United Kingdom do not automatically require classification. They only require classification under the Video Recordings Act if they do not fall into one of the exempted categories (providing they do not fall foul of the exceptions to the exceptions). One of the key exemptions, which was put in place to ensure that people could use the video format to distribute information freely, applies to work that if taken as a whole, ... is designed to inform, instruct or educate. The forum post made by Paul Sutton evidences my perception of the function of an audio commentary that, even when considered as a video work, it is purely 'designed to inform and educate' and often instructs.

I first heard about the statement in November 2007 when trying to persuade Odeon Entertainment to commission some audio commentaries for their forthcoming releases. They wrote back to me an informed me of this recent statement. I subsequently emailed the BBFC and pointed out that the claim that new video works will require classification as a consequence of being 'new video works' is false and even offered an alternative and accurate suggestion of stating that audio commentaries will almost always constitute new video works and consequently require consideration for classification but this step was not taken. I also explained that, in addition to this error, it is most likely that most audio commentary video works would not require classification. Not wanting to show a lack of understanding that there may be some issues related to unclassified audio commentaries, I pointed out that an audio commentary performed in character can not be taken as whole intended for informative purposes and therefore would require classification and that this point may be worth raising with the video industry and the public. Having not heard back after a couple of days, I contacted the BBFC by telephone and explained the predicament the statement had presented me and pointed out again that I was not disputing the notion that an audio commentary playing back over images of a filmed drama constituted a video work of its own but that I was disputing that it can be said that it consequently requires classification when it should be stated that it consequently may require classification. Informally (and verbally) it was agreed that the statement needed revision and that the BBFC would wait for further feedback from others in case further revision was needed. I was told that they were unable to reply to my email due to 'technical difficulties'. At the time I felt that they might have been unwilling to admit in writing a mistake. As the change never occurred (the statement reads exactly how it read back in October) my suspicion was only raised.

I did not waste time in contacting various DVD companies who I sought work from of the issues related to this statement and presented the arguments set out here as to why the statement does not hold water and strongly suggested it could be ignored. I suspect some of the companies have quietly ignored my advice and have declined to take up my suggestions largely due to concerns of having to certify the audio commentaries I suggest producing. This week I finally received confirmation that one company at least are holding back from production of audio commentaries as a result of the issue of this. After making several offers to produce audio commentaries for Optimum Releasing, I received a reply stating we couldn'
t afford to buy them from you, especially as despite your previous email on the subject, we would have to pay for them to be certificated by the BBFC.

The concerns the BBFC have in terms of audio commentaries comes from such as the adult nature of the discussion that takes place on the audio commentaries for archive children's programmes which have been released with U certificates. The prime example of this would be the DVD releases of The Tomorrow People which, ironically, Paul Sutton praises in the aforementioned post on the Criterion forum. Language may dictate which category a video work may be given but it does not dictate whether a video work requires classification. The issue the public may have is that they might not reasonably expect such content on a video which has been certified as a 'U'. The remedy, in my opinion, is not to illegally claim that the commentaries must also be classified but that the packaging of such materials should (or perhaps must) supply a warning that some (and perhaps which) content has been included that has not been classified and may contain material that would not meet the requirements of the certificate issued if classified. That would seem the common sense to approach.

A quick look around the shelves of my local Blockbuster (which, as a chain, has its own problems), reveals that very nearly all the straight-to-DVD horror on their shelves is put out by Sony or Lionsgate (oh, those tiny independents). Two years ago, when TrashHouse hit those shelves, there were at least a dozen distribution companies regularly putting out indie horror and getting decent distribution for it. Nowadays, they all seem to have either gone out of business or, at very best, gone into a kind of suspended animation whilst hoping to weather the storm. Companies are folding left and right; some of them, like Tartan, make headlines. Countless others have just quietly stopped putting out product and expired.

So we're in a kind of limbo at the moment. The day a movie hits the shelves in a single territory it also hits the torrents worldwide, which can be fatal for an indie with no simultaneous worldwide release. There seems to be no way of making money on smaller movies. Obviously, the BBFC have done their very best to turn the knife by tightening their restrictions on things like commentaries, (which now have to be rated as a whole new work, thus adding vast amounts of money to the BBFC costs) and Behind The Scenes materials. Thus when an indie flick does manage to get out onto DVD in the current climate, it can't even afford to have the full extras on the UK disc which might actually persuade people to buy it. And without economies of scale working in it's favour, it's gonna end up costing the consumer twice as much as a 2-disc set of a blockbuster. For a vanilla disc. And the consumer, understandably, will vote with their wallet.

I've seen awesome movies that would have been snapped up two years ago fail to find even basic distribution. There are, of course, other options to be explored. There's a terrific blog over at Zen Films about their decision to self-distribute the movie Mindflesh which is a really interesting read.. Tragically, though, the BBFC requirements as they currently stand would make a UK version of the Amazon Unbox scheme mentioned in the article completely non-viable. Thus driving yet more of our independent film business out of the country.

The whole thing's a total bummer for those who make and those who enjoy watching independent cinema.