Sound Or Vision: The BBFC’s Audio Commentary Scam

Should optional soundtracks on DVDs and Blu-rays be classified as separate video recordings? The censors claim they should – but they are wrong.

Sometimes, I wonder if we bash the British Board of Film Classification too much here on The Reprobate. I mean, it’s only just over a week since we last mocked their ‘making it up as we go along’ rulings. But then they’ll do something so disgraceful that I remember you can’t condemn the indefensible often enough.

Let me ask you something? Do you think of an audio commentary on a DVD or Blu-ray as a separate video recording? I ask this because it would seem to me that by every sensible definition, it is not. I mean, the clue is in the name. These audio tracks, an optional extra for movie fans who want to know more about a movie either from the people who made it or experts of one sort or another*, exist solely as a stand-alone soundtrack file that is laid over the film in question. Yet according to the BBFC, the addition of a commentary track laid over the original soundtrack turns the film into a distinctly different video work, one that has to be certificated in addition to the actual feature. To quote their recent advice to distributors:

Please note that for the purposes of the VRA, audio commentaries are considered a different work to the main feature. Audio commentaries therefore require a separate VRA classification certificate. You should therefore submit audio commentaries for classification, in accordance with our long-standing advice.

This is followed by the ‘suggestion’ that any label not submitting a commentary track for certification is breaking the law and might be pulled up by trading standards. There is no record of this actually happening, of course, but I guess it’s possible.

Obviously, the BBFC are keen on such submissions – after all, they currently charge £6.68 plus VAT a minute for ‘examining’ a film, along with a ‘client order fee’ of £83.66. Doubling or even tripling that is a nice little earner, you might think, but seems a bit dubious and unnecessary, especially on films that are already 18 rated – there is nothing that anyone can say on a commentary track that would either raise the rating or be cut, because I can’t imagine that the BBFC would be keen to become involved in issues like libel or such**. You might be able to make an argument that things are different on U or PG-rated discs – but unless we are to start age rating records and audiobooks (and let’s not open up that can of worms), then I still believe that they shouldn’t require certification. After all, US PG-rated discs have commentary tracks and haven’t caused outrage over kids being exposed to foul and salacious language – it’s not in the interests of any video label to include that sort of content on family-rated movies and risk parental outrage, is it? And then there is the question of the BBFC’s own Exempt rules, which currently allow music, documentary, sports etc to be released unrated as long as the content does not stray into the 12 or above categories. A subjective concept at the best of times, but with audio even more so – presumably, as long as no one swears vigorously or tells overly ribald tales, a commentary would be Exempt anyway – unless, of course, you try to claim that it is part of a different version of the film.

Notably, the 1984 Video Recordings Act does not mention audio commentaries – why would it? Such things did not exist at the time. Certainly, it covers alternative soundtracks, but that is to do with VHS prints where the sound is hard-coded in and released as a separate tape – foreign language tapes and so on. Blu-ray and DVD, with their different audio tracks that exist as files that are distinct from the film itself, are a rather different beast. A commentary is essentially an additional and optional audio track that is floated over the existing movie – something rather different than a new soundtrack. And it’s odd how this particular extra has been singled out, while discs from major labels that are pan-European releases and so often have multiple language soundtracks to choose from are conspicuously not mentioned. I suspect that even the most complaint distributor might baulk at paying for ten or so submissions of the same film just because it has French, German, Spanish etc soundtracks included. Also not mentioned are subtitles – yet surely these also create a ‘different’ version of the film. Even alternative surround sound, Dolby 5.1 or original mono soundtracks must also be considered different versions but I very much doubt that the BBFC – much as their accounts department might like the idea – would dare push that as an idea.

If it does nothing else, this whole debacle shows just how unfit for purpose the Video Recordings Act is, almost forty years after being enacted. It’s analogue legislation for a digital world and those responsible for enforcing it now have to somehow second-guess what it might mean for video formats unimaginable at the time. Obviously, they are going to make those interpretations based on what is to their advantage – but they perhaps ought to be careful about any land grabs because someone might just challenge them in court – and that might show up just how redundant this law now is.

In any case, demanding money – with menaces – for recordings that only exist as audio files without any solid legal status to confirm that they actually require certification is pretty damned outrageous if you ask me. Notably, many labels routinely ignore this, and good for them. Whether the new guidance being sent out is part of a move to clamp down on this or simply the BBFC putting the frighteners on the more submissive labels is something that remains to be seen. Perhaps we are about to see the conflicting opinions about just what an audio commentary is tested in court – something that I suspect both the BBFC and the video industry would rather not get into. But one thing is certain – if they do manage to get audio commentaries legally considered as new video recordings and create a clampdown on those labels who currently ignore the advice, that won’t be to the benefit of Blu-ray enthusiasts, who will probably find their special editions becoming rather less special as a consequence.

DAVID FLINT

* As one of those ‘experts’ who sometimes waffles over movies, I clearly have a vested interest in this subject, here duly declared.

** There is a legal grey area surrounding the Board’s responsibility for BBFC-approved films that are found to have broken the law. As the organisation that has approved the film, is the BBFC a de facto ‘publisher’? They have been very cautious about this in the past and we might argue that if they then start certifying commentary tracks, then become responsible for any libel, defamation or other speech-related law that might be broken. This is not an area that they have expertise in – indeed, libel often depends on just who takes offence to a comment that may or may not be true – and I might suggest that it is an area that they should want to steer clear of.

Audio commentary photos: top to bottom – James Machin And Matthew Harle, Jake West and Paul McAvoy, David Flint and Allan Bryce. Photos by Sarah Appleton.

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