Time to reform NZ's censorship laws?

BY JAMES CROOT
Last updated 08:50 30/03/2010

Censorship conjecture

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The first steps are being taken towards a possible overhaul of New Zealand's ageing censorship legislation.

Ministry of Justice and Internal Affairs officials have been meeting key stakeholders and industry and government body officials during the past fortnight to gather submissions for a "tightly targeted review" of the current laws.

However, that scope may widen, given that the present act has been described as "unwieldy and expensive" and badly out of step with technology.

The Film, Video and Publications Classification Act 1993 evolved from the Video Recordings Act 1987, which was passed as an urgent response to the video format that emerged in the early to mid-1980s, but was outside the reach of the existing film censorship law, the Films Act 1983.

In the last 17 years, we have seen the rise of the internet, Sky TV, DVDs, podcasts, on-demand television and films and computer games. Legislation to regulate them is patchy at best.

One person keen to see reform is Wellington's Aro Video owner, Andrew Armitage. Last year, he launched an online campaign (lumiere.net.nz/censorship-reform), seeking to end what his store and others like Christchurch's Alice in Videoland saw as "economic censorship" and laws that unfairly disadvantaged the medium of DVD.

"We are grossly over-regulated, while the competitive streams are vastly under-regulated. It's an uneven playing field at the moment, and it means many films and television programmes are not available on DVD because the distributor cannot justify the classification costs."

Getting some DVDs past the censor can cost as much as $1100 a disc. DVDs that New Zealanders cannot rent include Roger Corman's cult classic The Trip, Christopher Nolan's debut film Following and television series box sets of Freaks and Geeks and seasons two to five of The L Word.

"It is incredibly frustrating that we can't supply customers with some of the titles that they want, especially when they are able to freely import (them) for themselves from overseas. However, what many people don't realise that they can't (legally) onsell, trade or even lend them within New Zealand, either by Trade Me, or any other means, unless it carries a New Zealand classification label, which is impractical and cost-prohibitive."

Armitage and his allies are particularly concerned about the double standard between the Film and Video Act and the Broadcasting Act.

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Censorship for television broadcasts is self-regulated, with a complaints process through the Broadcasting Standards Authority.

"That means channels like Sky have free rein to show feature films, trailers and extra material, irrespective of whether it has received a New Zealand classification," but to get the same film and other features on DVD requires a rating approval from New Zealand's censor.

Armitage believes the anomalies are only going to get worse. "Twenty years ago, film-making was an elite sport that required a Paniflex camera and a crew of eight. Now you can pick up a (cell)phone and make a movie. All this needs to be held accountable to the same censorship regime. How can our current system and its infrastructure cope with the proliferation of filmed images, especially when there is now this huge, grey area called the internet and no- one knows exactly what constitutes an actual file or broadcast?"

Armitage says he has been delighted with the support and sympathy the campaign has elicited. "We thought it would be just Alice in Videoland, Arovideo, our customers, a few libraries and a few pointy heads that actually give a damn, but we've had a great response."

New Zealand's chief censor, Bill Hastings, says he is sympathetic to Arovideo and Alice's plight.

"It is kind of a perfect storm - new ways of downloading entertainment content and the recession. I can understand people feeling a lot of pain because some people are getting a free ride, while they feel they are paying too much.

"Both improvements in the law and how it is administered are required and I'm happy to own all the responsibility that's my due. We want as many video stores to remain as possible and DVDs to be available for as low a compliance cost as possible," Hastings says.

"Our fees haven't changed for 13 years. I don't know what other government agency can claim that.

"I think some of the answers to their concerns aren't always from the law. My experiences are that a lot of people aren't hiring DVDs any more. They are downloading content instead. So maybe the video stores that are feeling the crunch have to work out a new business model and adapt to the new ways people entertain themselves."

However, Hastings says there are several ways his office could assist within the current legislation.

"They should all get together and submit a list of titles each month, because the classification costs cover an infinite number of units of a particular title.

"We also routinely group discs in a box set and treat them as one publication, depending on the overall running time, for fees purposes and they could also apply for a fee waiver of 75 per cent. We've done it for film festivals since time began."

An application for the discretionary waiver requires evidence that the DVD is old, has artistic or cultural value or importance, is relatively unavailable and that the supply of the DVD is unlikely to produce commercial gain.

Despite being told his office won't be receiving any additional Crown funding for the next five years (it hasn't for the last 12), Hastings says: "Fees will eventually get reviewed because they need to be brought up to date with technology, but that doesn't mean they will go up. Rather, we will offer a wider menu that is targeted to reflect (costs)."

Hastings, who has also been involved in the "tightly targeted review" of the legislation, believes the targets may not be that tight any more. "We have to take into account the bigger picture. We have to try to futureproof the Classification Act, preserve its integrity and bring it into the digital age."

Digital technology is the biggest challenge facing censorship in New Zealand. "At the moment, we have a lot of different agencies - the Broadcasting Standards Authority (BSA), the Ministry of Culture and Heritage, my office and the Film Video Labelling Body, all doing their own thing.

"Take the BSA, for example. Broadcasting is going to become increasingly irrelevant in the sense of there being one broadcast for many (people), which is how their governing legislation (the Broadcasting Act) works. Once we get broadband of a decent speed, people are going to get (television) entertainment downloaded onto their computer screen.

"That means they and the Ministry of Culture and Heritage are going to be scrambling and seeking changes to their acts to expand their jurisdiction possibly into areas where my office already has jurisdiction.

"That is one of the major issues that needs to be sorted out at ministerial level - how they want content administered."

Hastings says he has three ideas that could "fix things pretty well". The first is to include digital content in the definition of film.

"Second, we need to incorporate free into the definition of supply, so that everything can be consistently labelled. Right now, the legislation is triggered only when something is offered for trade, exchange or hire.

"Third, we need the ability to print digital labels. This should substantially reduce industry compliance costs, increase ease of enforcement and provide more information to the consumer.

"Preliminary indications are that our labels will be more technologically advanced than similar labels offered by the Australian Classification Board and the British Board of Film Classification."

The current sticker system infuriates DVD distributors in New Zealand, who find they have to place a sticker over their Australian-rated slick, unlike their game-distributing partners, who aren't subject to the act, but that may all be about to change, if Hastings has his way.

"I want a repeal of the section of my act which exempts video games, unless they are restricted. That is a crazy advantage that one segment of the industry enjoys. Surveys show consumers are confused when they go into a shop with weird foreign labels all over the place. We want consistency and we don't believe the compliance costs will be huge.

"Some in the gaming industry want Australian labels because we are part of the same great carve-up of the world, but they need to look at how the Australians apply the ratings and the integrity of the Australian rating system. They don't have R ratings at all. Games either get pushed down, sometimes quite inappropriately to an MA 15, or get refused classification.

Hastings has the same response for those who want to raise the threshold for trans-Tasman cross- rating of films and DVDs. Currently, if a film gets an M rating in Australia, it automatically gets an M rating in New Zealand, but complaints have been aired. Happy Feet, an animated film about penguins for example, was initially given Australia's G rating.

"But then our phones rang red with complaints from parents about how their toddler begged them to leave the cinema because of the leopard seal (that attacked the cute penguins), so in the end we raised it to PG.

"We are doing a survey on this now, but anecdotally, it appears Australians have a greater tolerance for violence - some of their Ms, I think, are R16 - and a greater intolerance of sex. As far as we are concerned, if it is sex between two loving people under the covers, it's not that big a deal. They seem to get squeamish about that."

As for the flood of objectionable material available online, Hastings would prefer to do something rather than nothing. "Specific targeting and definitions will work better than trying to cover the field, but like money laundering and narcotics, there will always be loopholes.

"You can't have every country in the world subject to overseas servers sending them things without them doing something about it."

Hastings says ministry officials have high hopes of having censorship reforms in place by next year, but he is sceptical. "There's no way that will happen. It is too complicated."

THE LABELS

Film and DVD labels are colour- coded, much the same as traffic lights:

Green means anyone can view a film.

Yellow means that anyone can view the film, but the film may contain material, such as violence or sexual themes, which may offend or upset some people. Parental guidance is advised before children view the film.

Red means that the film is legally restricted and can only be viewed by the audience specified. There are no exceptions to this restriction.

All labels have a rating or classification symbol and usually a note briefly explaining the nature of the film that may be of concern to viewers - for example, whether the film contains violence or sex.

REGION CODES

Most DVDs released in New Zealand are coded Region 4.

Created by studios and distributors to control aspects of a release, including content, release date and price, regional coding divides the world into a series of zones or regions.

While commercial DVD players are supposed to play only discs encoded for the region they are sold in, region-free players are available and many others can be modified to be region-free or multi-zoned.

For those who aren't sure if their existing DVD player is capable of playing more than one region's discs and how to enable it to do so, suggestions include contacting the original retailer, checking out dvd- region-codes.com or taking it to a local electronic service agent.

Don't worry, it's not illegal.

Under New Zealand Copyright Law (section 226 of the Copyright Act 1994), DVD region codes and the mechanisms in DVD players to enforce them have no legal protection.

THE FEES

The Film, Video and Publications Classification Act 1993 requires any person who wishes to sell, hire, exchange or loan, in the course of any business, any film, video or DVD, to obtain a label for that film, video or DVD from the Film and Video Labelling Body.

Failure to do so is an offence which carries a maximum fine of $3000 for an individual or $10,000 for a company.

The Labelling Body is a private organisation representative of producers, distributors and exhibitors that exercises statutory functions independently of the Classification Office.

Before issuing a label, the Labelling Body will cross-rate, rate, or refer the DVD to the Classification Office. The Labelling Body will cross-rate any DVD rated G, PG or M in Australia, or Uc, U, PG or 12A in the United Kingdom.

The Labelling Body will rate any DVD title not previously rated in Australia or the United Kingdom. Once a DVD title has been rated or classified, a person may supply an unlimited number of identical copies to the public provided each is labelled.

The Labelling Body will refer a DVD to the Classification Office if it has been classified MA15+ or higher in Australia, or 15 or higher in the United Kingdom, or if the Labelling Body is of the view that the DVD has content that would be restricted under New Zealand law.

* $30.38: The fee for any DVD rated G, PG or M in NZ, G, PG or M in Australia, and Uc, U, PG, 12 or 12A in the UK.

* $236.25: The fee for any DVD over two hours to be rated G, PG, or M.

* $275: The fee for any DVD to be classified by the OFLC waived by 75 per cent.

* $1100: The fee for any DVD to be classified by the OFLC.

* $647: The base fee for any DVD to be rated or classified in Australia.

* $1282: The fee for a three-hour DVD to be rated or classified in Australia.

* $221.67: The base fee for any DVD to be rated or classified in the UK.

* $3945: The fee for a three-hour DVD to be rated or classified in the UK. 

Source: censorship.govt.nz/industry-cost-of-censorship.html

- The Press

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