kNOw Future Inc.

law, technology and cinema, washed down with wine

Who Fears To Quote the Studio System?

Earlier this year TV3 broadcast a two-part series tiled “Banned in Ireland“. The first episode contained a basic survey of the structure and practice of censorship in film, video-games, music-videos and literature.

Whilst pretty untaxing in the main there were some interesting factoids – 2000 films were banned and 11,000 more cut under the regime established by the state in 1923. These works seem tame and tepid to us who have lived in a different period, so it is bizarrely fascinating to learn that Gone With the Wind was cut in no less than eleven different sections. Film historian Kevin Rockett then goes on to relay how the State’s first censor, James Montgomery:

“…eliminated the childbirth scene, because films that depicted childbirth, even the word ‘maternity’ being put on a hospital ward was actually cut. So the whole broad policy of Montgomery was to ensure that any expression of the physical body was denied to the Irish audience.”

And I thought to myself: this moment is crying out for an extract excised from the movie, some steaminess or childbirth on the screen quick sharp. But the was nothing. Likewise when they got around to discussing Natural Born Killers – banned in 1994 – there wasn’t a frame of the opening Diner scene which according to the then censor was the reason for his decision (the film was subsequently unbanned).

So in the entire fifteen minute sequence there wasn’t a single frame from any of the films referenced. Instead what were viewers served up? A parade of talking heads, irrelevant shots of people walking on nondescript Dublin streets, closeups of the Censor’s office Nameplate, and a small portion of Pathé newsreel from undefined days gone by. That TV3 is cheap does not come as unexpected, what bothers me is something else.

Ignoring the Censorship of the Present

It troubles me that this segment on film censorship was in itself a scandalous example of censorship. In its form.  What mean is the refusal to use film clips without authorisation, out of fear of being sued for copyright infringement by the studios.

Both the video-games section and that on music videos used ample images from the subjects under discussion (we were shown almost the full video for ‘Girls on Film’, Frankie’s ‘Relax’ , and Prodigy’s ‘Smack Your Bitch Up’). There were thanks in the credits to the games companies for their images, and there is probably a blanket licensing agreement for the music videos. The film section was thus exceptional in its blandness.

Worse still the producers have apparently naturalised this constraint to such a degree that the fact that censorship  is exercised today via copyright and trademark law  is not deemed worthy of discussion (or alternatively there is an editorial decision not to discuss it). This gives me an Orwellian shudder.

Channel 4, TV3s, RTE and the Copyright Consultation Review

The interim report of a committee investigating copyright reform was published in the spring. Since then additional submissions have also been published on the Consultation’s website, including contributions from broadcasters RTE, TV3 and  Channel 4 et al. Interestingly they are silent as regards the use of film extracts in the creation of new works. This is a problem for the public, because these TV stations are of course the principal avenue through which audio-visual works reach the public.

In the UK Channel 4 have nurtured an organizational policy of robustly defending the reuse of copyright works under fair dealing provisions. This boldness was demonstrated as long ago as 1993 in the ‘A Clockwork Orange’ litigation, where they repelled an attempt by the copyright owners of the film to suppress a work comparing the changing standards of violence on television. Following the refusal of Stanley Kubrick and representatives to be interviewed for the program they used extensive extracts, amounting to 12 minutes of a total program duration of 30 minutes.

In addition Channel 4 has produced and broadcast other programs which rely on extensive excerpting, such as Sophie Fiennes’ The Pervert’s Guide to the Cinema and Mark Cousins more recent The Story of Film: An Odyssey. One can only suppose that their interest in fair dealing extends only to the jurisdiction out of which they operate – the UK.
No works in the vein of Fiennes and Cousins have been produced in Ireland to my knowledge, although it would be interesting to know more about the copyright issues with a program like Reeling in the Years. According to its FAQ the series’ incomplete release is due to copyright complexities and costs but its composing elements are principally newsreel and music, which anyway places it in a different category to the works mentioned above. In addition the form is essentially historical and chronological without voice-over or meaningful montage, rendering it peripheral as criticism and commentary.

Meanwhile the only subject in TV3s submission is its interest in being able to license materials from providers anywhere in the EU. Not a word about fair dealing, innovation or anything else, bar a little self-promotion.

In their submission to the CCR, RTE took the opportunity to bang the anti-piracy drum, complaining at the lack of effective deterrent to internet piracy.  Given that RTE is largely a publicly funded organization financed by the television license fee, it is telling that they do not feel that this might imply that their financiers should have any rights over the material produced with their money.

Some Users More Equal than Others?

RTE also consider themselves, rightly, to be users, and have commented on the both their reliance upon fair dealing and the desirability of extending the exceptions contained in the copyright act to the extent thought permissible under EU law.

However they do not grasp that the distinctions between different classes of users, nor accept that RTE is a unique user in an Irish context. When convenient it presents itself as custodian of the public interest. But its advocacy position is determined by skin it has in the game as dominant broadcaster and possessor of the most important moving image archive in the state. This archival position allows it to dictate terms, for example, to independent documentary producers with expensive rates for archival research and licensing.

They opposed the introduction of a ‘fair use’ clause on the grounds that it would introduce uncertainty.

Given that the broadcasters did not push the issue it is not surprising that the CCR did not take the issue on its report (understandably given the degree of detail under which they are buried), so when fair dealing with images does arise it is limited to  user generated material. In their report the CRC summarise the current conflict between reality and statute:

“Notwithstanding these exceptions, the law is increasingly out of step with users’ expectations, relating to matters such as format-shifting, parody, satire, pastiche, caricature, fan-fiction, and so on, and with the realities of user innovation.”

I am curious to see if and how they will analyse the situation as regards commercial broadcasters, where in many cases the argument is just as strong. Furthermore these broadcasters function as gatekeepers and as long as they follow a restrictive policy, challenging critical work will be kept off the channels to the mass public.

November 30, 2012 - Posted by | /

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