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Published online by Cambridge University Press: 02 January 2018
Following a century of legislation about film and the film industry in the UK, and the latest in a series of reports on ‘film policy’, this paper investigates the relationship between law, policy and film. Case studies on the definition of ‘film’ in a time of technological and cultural change consider the privileged position of the cinema in terms of censorship and tax, including the new phenomenon of ‘alternative content’; that is, live relays of theatrical performances. Institutional change is assessed and criticised, particularly the abolition of the UK Film Council and the steady move from statute to executive action. The paper sets out a case for the role of the state to be set out in legislation and the cultural consequences of legal definitions to be taken more seriously.
I offer thanks to Dr Keith Johnston, Professor Michael Harker, Professor David Mead, Claudina Richards and Professor Martin Barker (all former colleagues at the University of East Anglia), and to Ruth Ní Eidhin and Chris Hope, for comments on a draft of this paper. I am also grateful to the anonymous reviewers for their careful suggestions, and to Professor Mark Jancovich (UEA) and Dr Lance Rickman (OU) for their encouragement. This contribution is based on three papers, presented at the annual conferences of the Society of Legal Scholars (2010) and the Media, Communication and Cultural Studies Association (2011), and at the ECREA Film Studies Workshop (Norwich, 2011).
1. For a review of twentieth-century film policy proposals and reports, see Hill, J ‘British film policy’ in Moran, A (ed) Film Policy: International, National and Regional Perspectives (London: Routledge, 1996).Google Scholar
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3. House of Lords Select Committee on Communications ‘The British film and television industries – decline or opportunity?’ (2010) HL Paper 37-I [‘Communications Committee'] at 6.
4. For example, the chair of the UK Film Council told a House of Lords Committee that there were three factors affecting the willingness of Hollywood studios to work outside the USA, namely tax relief, the quality of the workforce and the exchange rate: Communications Committee, above n 3, at [35].
5. Stubbs, J ‘The Eady Levy: a runaway bribe? Hollywood production and British subsidy in the early 1960s’ (2009) 6 J Br Cinema & Television 1 at 11–13.Google Scholar
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10. Harris Interactive ‘Portrayal v Betrayal: an investigation of diverse and mainstream Uk film audiences’ (report for UK Film Council, April 2011).
11. The history of this campaign is set out in Hanson, S From Silent Screen to Multi-Screen: A History of Cinema Exhibition in Britain since 1896 (Manchester: Manchester University Press, 2007) p 123.Google Scholar
12. And subject to limited judicial oversight: it is not for nothing that the key decision of the twentieth century on unreasonableness in English administrative law is about admission to cinemas (Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223), and that it was itself based on a series of cases also about cinema licensing (eg Theatre de Luxe v Gledhill [1915] 2 KB 49).
13. Discussed in section 2.
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16. E Guider and I Mohr ‘Pop goes the opera: Met brings classics to the masses at plexes’ Variety 2 April 2007 at 5.
17. ‘Digital cinema over the tipping point’ Screen Digest April 2011 at 109; D Lodderhouse ‘Live feeds fatten exhibs’ Variety 8 August 2011 at 5.
18. Tryon, C Reinventing Cinema: Movies in the Age of Media Convergence (Piscataway, NJ: Rutgers University Press, 2009) p 74.Google Scholar
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20. V Thorpe ‘Cinemas open screens to opera and ballet’ Observer 4 March 2012 at 22. See also praise in Film Policy Review Panel, above n 9, p 29.
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23. Schedule 1, Pt 2. Programme services are exempted in para 8.
24. Through s 201(1)(aa).
25. Section 201(1)(c)(ii).
26. Public Order Act 1986, s 22. The need to maintain this wider definition is mentioned in the explanatory notes to the Communications Act.
27. Theatres Act 1968 s 1(2); Licensing Act 2003 s 22(1). The limits of this provision are discussed by Jongh, N Politics, Prudery and Perversions: The Censoring of the English Stage 1901–1968 (London: Methuen, 2011) pp 250–252.Google Scholar
28. BBFC ‘As live’, available at http://www.bbfc.co.uk/industry-services/theatrical-ratings/as-live (accessed 6 March 2013).
29. Ibid.
30. BBFC ‘Guidance for distributors’, available at http://www.bbfc.co.uk/sites/default/files/attachments/As%20Live%20-%20Guidance%20for%20Distributors.pdf (accessed 6 March 2013).
31. Classified at 15 (the only one of the 44 as of 31 March 2013): reference AFF277625. On the theatrical production, see also C Bennett ‘Teenagers won't be shocked by a naked man on the stage’ Observer 27 February 2011, available at http://www.guardian.co.uk/commentisfree/2011/feb/27/catherine-bennett-frankenstein-children (accessed 6 March 2013).
32. Such as the wide definition (which will include terrestrial broadcast, cable, satellite, mobile and Internet services) in Directive 2010/13 Art 1(1)(a)(i) of an ‘audiovisual media service’ as inter alia ‘the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC’.
33. Section 42 of the Finance (No 2) Act 1992, primarily supporting major productions, and the more extensive s 48 of the Finance (No 2) Act 1997. The latter also addressed the recommendation of the Select Committee on National Heritage to allow full write-off of production expenses (House of Commons Select Committee on National Heritage ‘The British film industry’ (1994) Paper 57-I, p 44) (note criticism by Walker, A Icons in the Fire: The Rise and Fall of Practically Everyone in the British Film Industry 1984–2000 (London: Orion, 2004) p 260), as compared with the 1992 Act's permitting of such over 3 years. In a further indication of how film history repeats itself, an earlier tax scheme for capital allowances ran between 1979 and 1984, a subject of great interest and indeed criticism at the time (Google Scholar Dickinson, M and Street, S Cinema and State: The Film Industry and the Government 1927–1984 (London: BFI, 1985) p 247;Google Scholar Walker, Icons in the Fire, p 14) that was particularly popular with the film industry (Google Scholar Street, above n 6, p 24).
34. Figures from Communications Committee, above n 3 at [68], and UK Film Council Statistical Yearbook 2010, table 17.1.
35. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain legal aspects relating to cinematographic and other audiovisual works, COM(2001) 534; providing guidance on how the Commission will carry out its functions in relation to Art 107 TFEU, which makes it possible for state aid to promote culture (where it does not ‘affect trading conditions and competition in the Union to an extent that is contrary to the common interest’). The criteria are set out in the Films Act 1985, Sch 1, as amended by the Films (Definition of ‘British Film’) (No. 2) Order 2006, SI 2006/3430.
36. See, for example, the Regulatory Impact Assessment for SI 2006/3430: ‘In this regard culturally British films can be regarded as merit goods that the market often fails to provide at the optimum level … the aim of support is to address the market failure in the supply of culturally British films by way of an incentive for specific behaviour – the production of culturally British films’.
37. The two institutions are discussed in section 2.
38. Finance Act 2002, s 99. The problem with the open-ended application appears to have been its use for a range of television productions and short video clips (the latter also being an issue in the Peakviewing case, discussed below), meaning greater relief being granted than anticipated. See eg A Davis ‘A kick in the fiscals’ Financial times 30 April 2002 at 16.
39. Barlow, A The DVD Revolution: Movies, Culture and Technology (New York: Praeger, 2005).Google Scholar
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41. Walters, J ‘A taste for leeches: DVDs, cultural hierarchies and queer consumption’ in Bennett, J and Brown, T (eds) Film & Television after DVD (London: Routledge, 2008).Google Scholar
42. [2002] EWHC 1531 (Admin).
43. Peakviewing (Interactive) v Secretary of State for Culture, Media & Sport [2002] EWCA Civ 1864.
44. BBC News ‘Film-maker jailed for £4m fraud’, Bbc News 15 June 2007, available athttp://news.bbc.co.uk/1/hi/england/gloucestershire/6757675.stm (accessed 6 March 2013).
45. [2002] EWHC 1531 (Admin) [62].
46. [2002] EWHC 1531 (Admin) [87].
47. HM Treasury ‘Consultation on creative sector tax reliefs’ (June 2012), available at http://www.hm-treasury.gov.uk/d/consult_creative_sector_tax_reliefs_180612.pdf (accessed 6 March 2013); HM Treasury ‘Creative sector tax reliefs: response to consultation’ (December 2012) http://www.hm-treasury.gov.uk/d/creative_sector_tax_reliefs_response111212.pdf (accessed 6 March 2013). See also Darnley, A ‘Treasury consults on creative sector tax reliefs’ (2012) 23 Ent L Rev 214;Google Scholar Darnley, A ‘Treasury proposals elicit detailed responses as Dcms consults on cultural tests’ (2013) 24 Ent L Rev 6.Google Scholar
48. See discussion in HM Treasury (December 2012), above n 47, at [2.18] and [2.21]. The response has included a quixotic provision that ‘television includes the Internet’: Corporation Tax Act 2009, s 1216AA(3) inserted by Finance Act 2013, Sch 16.
49. Corporation Tax Act 2009, s 1216CA(1) inserted by Finance Act 2013, Sch 16.
50. Tryon presents Steven Soderberg's Bubble as an example; the film was released on DVD and cable VOD on the same day as it was released in cinema; above n 18, pp 105–107.
51. A Dawtrey ‘An Alice in Wonderland nightmare as Disney battles the cinemas’ The Guardian 24 February 2010 at 22. A cinema chain threatened to boycott the release of Alice in Wonderland as an objection to Disney's intentions to shorten the 4-month window between cinema and DVD to 3 months. However, all major UK exhibition chains ultimately agreed to show the film and accept Disney's actions.
52. C Gant ‘Video on demand: kill or cure for arthouse cinemas’ The Guardian 5 April 2012 at 14, available at http://www.guardian.co.uk/film/2012/apr/05/video-on-demand-arthouse-cinemas (accessed 6 March 2013).
53. Shipwright, A ‘Finance Act notes: films and sound recordings’ (2006) 5 Br Tax Rev 517 at 523.Google Scholar
54. Kompare, D ‘Publishing flow: Dvd box sets and the reconception of television’ (2006) 7 Television & New Media 335 at 338.Google Scholar
55. Klinger, B Beyond the Multiplex (Berkeley, CA: University of California Press, 2006) p 57.Google Scholar
56. Kiwitt, P ‘What is cinema in a digital age? Divergent definitions from a production perspective’ (2012) 64 J Film & Video 3.Google Scholar
57. For discussion of the various stages in technological and presentational change, see Gunter, B Television versus the Internet (Witney: Chandos, 2010) pp 40–46.CrossRefGoogle Scholar
58. Rombes, N Cinema in the Digital Age (London: Wallflower, 2010) p 24.Google Scholar
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60. Film Policy Review Panel, above n 9, p 12.
61. Ibid, p 27.
62. Ibid, p 30.
63. UK Film Council ‘Definition of specialised film’ (April 2008), available at http://industry.bfi.org.uk/media/pdf/r/2/Defining_Specialsied_Film_Update_20_04_08_.pdf (accessed 6 March 2013). The funding programme in question was found to be compatible with Art 107 (then 87) TFEU: Uk Film Council Distribution and Exhibition Initiatives Case N-477/04.
64. Cinema is grouped for VAT purposes alongside theatres, zoos and even museums. The Court of Justice of the EU referred to this category as having a common feature of being ‘available to the public on prior payment of an admission fee giving all those who pay it the right collectively to enjoy the cultural and entertainment services characteristic of those events and facilities’ in finding that a coin-operated ‘cubicle’ for private viewing of adult films was not covered by a reduced rate under EU law: C-3/09, Erotic Center v Belgium [17], interpreting Directive 77/388/EC as amended by 2001/4/EC, Annex H, Category 7.
65. Klinger, above n 59, p 284.
66. Higson, A Film England (London: IB Tauris, 2011) p 23.Google Scholar
67. Oxford Economics ‘More than a support act: the true value of video entertainment in the Uk’ (June 2011), available at http://www.bva.org.uk/files/u1/Oxford-Economics-Value-of-video.pdf (accessed 6 March 2013).
68. The issue of the distinction between DVD and video-on-demand is discussed in Mac Síthigh, D ‘Co-regulation, video-on-demand, and the legal status of audio-visual media’ (2011) 2 Int'l J Digital Television 51.Google Scholar
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70. For example, the 1936 Moyne Committee had proposed a ‘body responsible specifically for film matters’; this was addressed in part (for other reasons) during the Second World War, but not in full, and was ultimately not pursued (Dickinson and Street, above n 33, pp 107–108) and a British Film Authority was proposed in 1979 (ibid, p 245).
71. Higson, above n 66, p 41.
72. Magor, M and Schlesinger, P ‘ “for this relief much thanks”: taxation, film policy and the Uk government’ (2009) 50 Screen 299 at 305.Google Scholar
73. Established by the Cinematograph Film Production (Special Loans) Act 1949, dissolved by the Films Act 1985.
74. Established by the Cinematograph Films Act 1957 and dissolved by the British Film Fund Agency (Dissolution) Order 1988 as provided for in the Films Act 1985.
75. Registration no. 3815052.
76. See http://www.bfi.org.uk/about-bfi (accessed 6 March 2013).
77. The British Film Institute had lobbied (without success) for to be responsible for Lottery spending on film: Walker, above n 33, pp 164–165.
78. The British Film Commission was established in 1991, with a mission to attract non-British producers to film in the UK (eg Walker, above n 33, p 129). Its later role continued in that vein, with a particular responsibility for promoting Britain as a destination in non-UK locations (especially the USA) and in assisting potential producers with the various steps necessary to do so.
79. National Lottery etc Act 1993 (Amendment of Section 23) (No 2) Order 1999, SI 1999/2090, amending the National Lottery etc Act 1993. Subsequently varied by National Lottery etc Act 1993 (Amendment of Section 23) Order 2007, SI 2007/743, amending the name of the Film Council to the UK Film Council, and latterly the National Lottery etc Act 1993 (Amendment of Section 23) Order 2011, SI 2011/685 (replacing the UKFC with the British Film Institute).
80. As revised in 2007, and available by way of the National Archives at http://webarchive.nationalarchives.gov.uk/20110118191652/http://www.culture.gov.uk/images/publications/UKFCFinancialDirections.pdf (accessed 6 March 2013).
81. Available by way of the National Archives at http://webarchive.nationalarchives.gov.uk/+/http://www.culture.gov.uk/images/consultations/ukfilmcouncil.pdf (accessed 6 March 2013).
82. Communications Committee, above n 3, at [98] (policy development role highlighted); M Mansfield ‘Report on the British film industry for shadow Dcms’ (November 2009) p 18 (priority of funding role according to industry), available at http://www.mansfieldwb.com/filmreportnov09.pdf (accessed 6 March 2013).
83. Department of Natural Heritage The British Film Industry Cm 2884, 1994, p 9.
84. House of Commons Select Committee on Culture, Media & Sport The British Film Industry HC 667, 2003, pp 41–42.
85. Hill, J ‘British television and film: the making of a relationship’ in Hill, J and McLoore, M (eds) Big Picture, Small Screen: The Relations between Film and Television (Bedford: University of Luton Press, 1994) pp 153, 171.Google Scholar Higson, above n 66, p 52 (importance of Channel 4 as a significant source of funding for film in the UK).
86. Digital Economy Act 2010, s 22.
87. Film Policy Review Panel, above n 9, pp 52–55.
88. King, B ‘The New Zealand Film Commission as a government-sponsored film producer’ (2010) 40 J Arts Management, Law & Soc'y 157 at 158–159.Google Scholar
89. The Committee found that ‘[the] abolition of the UK Film Council was handled very badly by the Government. We would not expect a decision with such significant implications for the film industry to be sprung on the UK Film Council with little discussion or consultation’: Funding of the Arts and Heritage (2010–2011) HC 464, at [126].
90. E Vaizey ‘The future of the Uk film industry’, speech, BAFTA, 29 November 2010, available at https://www.gov.uk/government/speeches/the-future-of-the-uk-film-industry (accessed 6 March 2013).
91. Department for Culture, Media & Sport ‘Merger proposed for flagship film bodies’ (press release 117/09, 20 August 2009). The view of the present government (not to merge the two bodies) is found in Hansard HC Deb, vol 512, col 15W, 21 June 2010.
92. Film Policy Review Panel, above n 9, p 3.
93. Street, above n 6, p 26.
94. C Higgins ‘Bfi and Uk Film Council plan merger’ The Guardian 27 January 2010.
95. Walker, above n 33, p 231.
96. G MacDonald ‘Harper scraps censorship clause in Bill C-10’ Globe and Mail 7 October 2008, available at http://www.theglobeandmail.com/news/politics/harper-scraps-censorship-clause-in-bill-c-10/article1057937/ (accessed 6 March 2013).
97. Hansard HC Deb, vol 511, col 313, 9 June 2010, discussed and criticised in Public Administration Select Committee Smaller Government: Shrinking the Quango State (2010–2012) HC 537, 7 January 2011, at [11]–[19].
98. Originally proposed in HM Treasury (June 2012), above n 47, at [5.17] in respect of games and [3.11] in respect of animation (not at all in respect of television); determined as unnecessary in HM Treasury (December 2012), above n 47, at [2.22] in respect of animation and unworkable [2.60] in respect of games.
99. HM Treasury (December 2012), above n 47, at 2.63.
100. DCMS ‘Creative sectors tax reliefs: cultural test for British video games: consultation’ (October 2012), available at https://www.gov.uk/government/consultations/creative-sectors-tax-reliefs-cultural-test-for-british-video-games-consultation (accessed 6 March 2013).
101. Mathews, T Censored: The Story of Film Censorship in Britain (London: Chatto & Windus, 1994) pp 21–25.Google Scholar
102. On the fire safety powers and facilitating other conditions, see Hanson, above n 11, pp 17–19, 36.
103. London CC v Bermondsey Bioscope [1911] 1 KB 445.
104. On the relationship between the Home Office and the BBFC, see Richards, J and Robertson, J ‘British film censorship’ in Murphy, R The British Cinema Book (London: BFI, 3rd edn, 2009) pp 68–69;Google Scholar Robertson, J The Hidden Cinema: British Film Censorship in Action, 1913–1975 (London: Routledge, 1993).Google Scholar
105. BBFC ‘Classification guidelines 2009’, available at http://www.bbfc.co.uk/sites/default/files/attachments/BBFC%20Classification%20Guidelines%202009_6.pdf (accessed 6 March 2013).
106. Amendments made in the Criminal Justice & Public Order Act 1994; these provisions have discussed by a number of authors in both law and film studies. See eg C Manchester ‘Criminal Justice and Public Order Act 1994’ [1995] Crim L Rev 123; Robertson, G and Nicol, A Media Law (London: Penguin, 5th edn, 2008);Google Scholar McDonald, P Video & DVD Industries (London: BFI, 2007) p 90; and various contributions inGoogle Scholar Barker, M and Petley, J (eds) Ill Effects: The Media/Violence Debate (London: Routledge, 2nd edn, 2001).Google Scholar
107. R (BBFC) v Video Appeals Committee [2008] EWHC 203 (Admin); R v Video Appeals Committee ex parte BBFC [2000] EMLR 850.
108. Cinematograph Films (Animals) Act 1937 protects animals in the production process, by creating a criminal offence of exhibiting a film (produced anywhere in the world) where a scene in its production was ‘organised or directed in such a way as to involve the cruel infliction of pain or terror on any animal’. Section 8(3) of the Animal Welfare Act 2006 also creates a new offence of supplying, publishing, showing or possessing for supply a video recording of an animal fight – although in this case, where the fight has taken place outside of the UK, no offence is committed.
109. ‘Video Appeals Committee Provisions’, available at http://www.bbfc.co.uk/sites/default/files/attachments/VAC%20Provisions%202012_1.pdf (accessed 6 March 2013).
110. See eg R v Video Appeals Committee ex parte BBFC [2000] EMLR 850.
111. The one emerging exception to this principle – environmental information, where duties apply to certain undesignated bodies as a consequence of the Directive on which the environmental information regulations are based – is of little relevance to a body such as the BBFC, as compared with other non-designated bodies such as Network Rail.
112. ‘Freedom of Information Act 2000: Designation of additional public authorities’ Consultation Paper 27/07 (25 October 2007).
113. See, for example, the Kent County Council (Filming on Highways) Act 2010 (amending the application of the Road Traffic Regulation Act 1984), following the earlier example of the London Local Authorities and Transport for London Act 1998 in addressing this matter. One point noted by Irish authorities as part of the success of its industry in the 1990s was what the responsible department termed ‘proactive flexibility’ by agencies and local authorities in facilitating access for the purposes of filming (Select Committee on National Heritage, above n 33, at 87).
114. See eg Redfern, N ‘Connecting the regional and the global in the Uk film industry’ (2010) 1 Transnat'l Cinemas 145.Google Scholar
115. Resulting from a failure to notify the VRA to the European Commission under the Technical Standards Directive (then 83/189/EEC; now replaced by 98/34/EC). The result was the (properly notified) Video Recordings Act 2010. For a brief period, no prosecutions for VRA offences could be brought, although a wide level of voluntary cooperation was noted by the BBFC. However, an attempt to challenge earlier convictions as unsafe, on the basis that the 1984 Act was not in compliance with EU law and thus invalid, was unsuccessful: R v Budimir & Rainbird [2010] EWCA Crim 1486, joined with Interfact v Liverpool City Council (no 2) [2010] EWHC 1604 (Admin).
116. Mac Síthigh, D ‘The regulation of video games: past, present and future’ (2010) 21 Ent L Rev 298.Google Scholar
117. Video Recordings (Exemption from Classification) Bill: Hansard HC Deb, vol 503, cols 560–562, 12 January 2010.
118. Digital Economy Act 2010, s 40(3A), adding new s 2(4) to the Video Recordings Act.
119. Department for Culture, Media & Sport ‘Consultation on exemptions to the Video Recordings Act and on advertising in cinemas’ (9 May 2012) [2.14–2.15], available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/73028/VRACinemaads_consultation_May2012.pdf (accessed 6 March 2013); see also Department for Culture, Media & Sport ‘Consultation on exemptions to the Video Recordings Act and on advertising in cinemas: Government response’ (May 2013), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/202904/Government_response_VRA_and_Cinema_Ads__FINAL_approved_version.docx (noting the Government's intention to exercise the power granted by the Digital Economy Act).
120. See, for example, s 368B Communications Act (inserted by Audiovisual Media Services Regulations, SI 2979/2009), under which the Authority for Television on Demand (ATVOD) has been designated as the regulatory authority for on-demand audiovisual media services.
121. Film Policy Review Panel, above n 9, p 89.
122. Mathews, above n 101, pp 17–19 (1909), pp 241–246 (1984).