It depends – still

Posted: March 3, 2010

If we were to create an episode of 8 Out of 10 Cats, the first question – What Are You Talking About? – would be obvious this month. The Large Cause vs Ann Summers case has been on many people’s minds since last year. We’ve heard of marketing campaigns, expansion plans and even shop openings that had been shelved until after the case came to court. Overreacting? Not really, not when there was the possibility that the whole definition of what a sex shop actually is could have been decided and a precedent set.

The ETO office gets many calls from retailers and people looking to move into the adult sector, and one of the most common questions we get asked is: “Will I need a licence?” The only answer we have ever been able to give is ‘it depends’, and proof of that came when ETO conducted extensive research among the UK’s councils last year. While we expected the licence fee to fluctuate, we were astonished to discover how varied the criteria for requiring a licence were between different local authorities. The legislation states that an establishment must be licensed if it trades in sex-related articles to a ‘significant degree’ but some councils set that figure at 10% while others put it at 33%. A number of other councils said they did not work to a fixed percentage, and that each case was considered on its own merits, with other factors being taken into consideration such as location and trading style.

If we were expecting District Judge Michael Snow to decide whether the Ann Summers branch in Brewer Street, Soho, should be classed as a sex shop – and, almost by definition, whether the whole Ann Summers chain, plus goodness knows how many other unlicensed shops and boutiques, should be too – then we were disappointed. The case against Ann Summers wasn’t heard and the judge’s comments seemed to suggest that only local authorities or, at a push, non-commercial entities had any business in even bringing such a case to court.

So, it seems ‘it depends’ will be the answer to “Will I need a licence?” questions for many a year to come.

One of the main reasons to apply for a licence is so a store can sell R18 DVDs, and
the article on Marc Dorcel in this issue should make interesting reading for anyone with an interest in the adult movie sector. The company has grown at a considerable rate over the last few years, largely through expansion into other platforms, but its DVD sales are not only holding up, they are increasing.

An isolated example? Maybe. Maybe not.

The UK handicaps porn DVDs with one of the most restrictive and inhospitable trading environments it is possible to conceive of. Films have to go through the BBFC process, at a considerable cost, and they can only be sold in certain outlets, which have to be located off the beaten track, and some towns won’t even allow any such outlets to open anywhere, and in those towns that do those outlets have to pay their local authority a fee ranging from £500 to £29,000 every year just for the privilege of being able to sell such DVDs, which results in an artificially inflated price for the end user…

The DVDs then have to compete with the plethora of tube sites and who-knows-how-many people selling pirated gold discs from rucksacks, but even allowing for all that there are one or two signs that the UK R18 DVD market is proving more resilient than some people expected.

Unfortunately we can’t prove this by citing sales figures, because there are none readily available, but one indicator of the health of the sector is the number of R18 DVDs the BBFC classifies. If UK DVD sales are on the floor then porn producers will not bother to submit their works – they can save a significant amount of money by just offering their new titles to VOD sites and selling their DVDs overseas.

Yet by mid-February the BBFC had already processed 419 R18 titles – compared to just 861 for the whole of 2009 and 897 for the whole of 2008. Sure, some of those titles were being re-submitted following the VRA fiasco of the last quarter, but even allowing for that, it still augers well for the sector.