Category Archives: Digital

Indigenous Protocols and Pathways – Rights and Permissions in Screen-based Media

Earlier this spring imagineNATIVE launched On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories (the “Guide”).  The Guide “is for use by screen-story tellers and production companies wishing to feature First Nations, Métis or Inuit people, content or concepts (traditional or contemporary cultures, knowledge or intellectual property) in their films, television programs and digital media content”.  I was looking forward to reading it from a Diversity and Inclusion perspective but at a recent Ontario Creates Discussion Series to promote the Guide, I had an eye-opening realization that the Guide was also an essential tool for entertainment lawyers, funders, broadcasters and distributors.

However, there is a lot more to the Guide than a discussion of rights and permissions and I strongly encourage everyone to read it.  At the Ontario Creates discussion it was recommended that organizations break down the fairly large document amongst staff, each one reads a section and then come together in a sharing circle to discuss what they have read.  Or if you have no co-workers, like myself, you read it all and blog about an aspect where you think that you might have something to contribute.

Four key principles of the protocols are Respect, Responsibility, Reciprocity and Consent. I’m going to focus on Consent because that relates directly to chain of title. Full disclosure – I used to be a film, tv and digital media entertainment lawyer.  I am pretty familiar with the various rights that are needed to show chain of title for a film or television or interactive digital media production.  Under traditional ‘western’ ideas of chain of title, the producer must show that they have contracts that demonstrate ownership of the underlying rights or a licence to use the underlying rights and licences or permissions to use any and all copyright works that are contained in the final production (i.e. music rights, image rights, personality rights etc.).  This is an essential step for funders, broadcasters and distributors before they advance any money or make any distribution deals.

Copyright

While there are many Indigenous peoples, nations and communities within Canada, they share an approach to stories that is very different from western legal tradition. Stories are often communal and based on oral traditions. Some stories are sacred and have greater meaning than just as story.  In western legal tradition a communal story would be considered public domain under copyright (they are more than 75 years old) and therefore available to anyone to tell in any form. However, an Indigenous communal story is ‘owned’ by the community. Knowledge is created and owned collectively, and responsibility for its use and transfer is guided by traditional laws and customs.”[1]

Here is an example from Duane Gastan Aucoin, Filmmaker:

 “We need to make sure that the rightful owners give the permission. For example, I used the Raven stealing sun story. I met with a Raven clan leader and he wanted to hear the story; and after I told him the story, as I know it, he gave his blessings because the telling of the stories was the same he heard as a child. I had to get permission from the Raven clan, who approved both the story and the final product. The Teslen have a traditional knowledge policy for stories, medicines or teachings, so I also met with heritage department who to ensure all the conditions are met.” [2]

As the copyright laws of Canada and global intellectual property laws are unlikely to change any time soon to take into consideration Indigenous concepts of intellectual property creation and ownership, a producer (or other participant in the project) may wish to add additional permissions to their standard checklist for Indigenous projects.  The Guide suggests that a producer may want to consider co-creation or co-authorship with members of the community but it may also be as simple as permission from the community and any other bodies who the community feels are relevant.  However, co-authorship will confirm rights of collaboration and approval which the Guide recommends in other parts of the document.

Story Rights

In the case of a life experience, western legal practice is to obtain the rights to tell the story from those who were central to the story.  The guide advises that there are events where the individual is not the sole ‘owner’ of the story as it happened to the community as much as to the individual.  Dr. Jenny Kay Dupuis, author of ‘I Am Not A Number’, a book about the author’s grandmother’s experiences at residential school, shared at the Ontario Creates Discussion that she had to obtain the consent of the community to tell the story as well as family members.  This again flows from the concept that rights are communal rather than personal.

Archival Footage

The Guide also offered a different perspective on archival footage.  Legal practice is to gain rights to the footage from the owner of the footage (e.g. NFB or CBC) however the Guide points out that there were situations where the appropriate permissions were not obtained in the first place when the footage was shot so any licensee would have to go to the community in question (even if the original individuals are no longer available) for permission as well as the owner.  Situations also existed where filming should not have taken place (e.g. sacred ceremonies) so the community should have the final say on whether the footage can even be licensed.  The NFB is currently undertaking a research project on global best practices on Indigenous archival footage so it is expected that the protocols in this area will be further developed shortly but in the meantime producers should ensure at a minimum that the necessary permissions were originally obtained and that the community in question consents to the reuse of the material.

Releases

There is a lot of advice in the Guide on rewriting releases to be easier to understand as well as culturally appropriate.  One suggestion is to create audio or video releases to account for differences in language or writing skills.  But a fundamental cultural difference is to consider that a producer is making a commitment to the individual rather than the individual is granting rights to the producer:

‘It was amazing to shift my idea around release form and look at it as a commitment that I am making to the person versus the other way around. It is vital to discuss the vision for project and then make that commitment to them. I do not own what they have done in perpetuity; the family owns it and it will go to children and grandchildren so it is important to spend time with that family getting permissions based on vision and determine how they would like to have influence.[3] Helen Haig-Brown (Filmmaker)

One of the principles of the UN’s Declaration on the Rights of Indigenous Peoples is the right to Free, Prior and Informed Consent.  That means taking the time to discuss releases, understanding that there are many factors that must be considered before giving consent and many parties involved.  The process of obtaining releases will necessarily be more time-consuming than in a traditional film or television program.

It will be helpful if in time the industry could share examples of these new forms of releases, particularly as they need to balance the needs or expectations of funders and distributors regarding rights and chain of title.

As an intellectual exercise this community-based way of considering rights is fascinating to me but I recognize that it is more than that.  Understanding the Indigenous concepts of intellectual property rights is an important step in reconciliation. The bottom line is that if you are a Producer, Funder, Broadcaster or Distributor looking at a film, television or digital media project with Indigenous elements such as story or location, even if only ‘inspired by’, do not rely on your tried and true checklists for rights but dig deeper, using the Guide, to ensure that you have the necessary rights not just in accordance with the laws of Canada but in also accordance with the On-Screen Protocols.

[1]On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories, pg. 57

[2]ibid, pg. 25

[3]Ibid, pg. 41

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A Few Thoughts on Web Series Budgets

Web Series are not the same as television programs.

Sounds like a reasonable statement, right? Not everyone gets that.

A few times a year I review web series applications for different funds. Increasingly we see people with tv backgrounds producing web series. Web series can be a way to explore stories and topics that broadcasters won’t greenlight, companion series to broadcast, a way for both producer and broadcaster to incubate new talent or a new revenue stream for the tv producer.

Evaluators can always tell when the budget and production plan have been prepared by tv people rather than those who come out of web series production. Why does it matter? TV-based budgets are usually bigger and they will need more money to finance the budget. There are limited funds so funders will question whether that much should go to a tv-based production. There is the issue of recoupment as it will take longer for that production to recoup its budget and pay profits. Finally, does the budget need to be that big to meet the needs of the audience or is it big out of habit.

To help you avoid these questions (and potential loss of evaluation points), here are clues evaluators look for:

  • What are the rates? Even with union cast and crew there are usually discounts for web series. Frequently web series are non-union and give training opportunities to emerging talent.  Can you justify higher rates?
  • What is the size of the crew? Web series have smaller crews. The productions are smaller so the need isn’t there and often, because of budget size, crew fill multiple roles. The cast and crew are also usually smaller because of the size of the storytelling for a web series – smaller cast, fewer locations, little in the way of special effects or stunts.
  • With a smaller budget there is less room to allocate a share of admin costs that the production company is already spending such as computers, rent, photocopying etc.
  • Sadly, one of the ways I can tell the difference between web and tv producers is that the tv producer will always charge maximum allowable producer fees, corporate overhead and contingency to the budget but a web series producer will allocate what they think can they can finance and take the risk that they will be able to pay themselves from revenue. Web producers may be more optimistic (or naive) than tv producers.
  • Web producers have a better handle on the promotion that needs to be done to get their web series in front of their audience and will be allocating budget to paid social media ads, social media content creation, paid influencers etc. TV producers sometimes just replicate their standard tv promotion and allocate money to attend festivals, international markets and creating press kits. However, if there is the opportunity to look for funding of a discoverability budget or a marketing budget then these costs will not be in the production budget.

So, if you are a tv producer exploring the opportunities for web series I suggest that you take a second look at your budget with the above in mind. You might even want to bring an experienced web creator onto your team (and get credit in evaluation for that experience). If you are a web producer – allocate maximum producer fees and corporate overhead in your budget. Funders are ok with you paying yourself.  Really.

Creative Canada – Sounds Good So Far

You can see my summary of the relevant (to primarily tv) parts of the Creative Canada strategy at TV, Eh here.

For my interactive digital media people there are a couple of other interesting points to make.

If the s. 15 report from the CRTC triggers a public consultation, the terms of reference give producers the opportunity to explain how affiliated digital media are essential for discoverability of television programs.  That could potentially lead to changes in the Certified Independent Production Fund framework.  It’s a long shot but if the door is open you might as well try.  [more to follow in a future blog post about the new Bell Fund programs]

Heritage created a Creative Industries Council to be run jointly by Heritage and ISED, which will advise both departments on how to enhance collaboration between industries and allow the creative industries to grow.  IDM is all about collaboration and often straddles culture and innovation so there are opportunities there to influence policy to support IDM industries, depending on who is appointed to the Creative Industries Council and what it’s specific mandate is.

Creative Hubs will receive funding to support creative startups to help them create, collaborate and innovate.  There’s a lot of potential here for hubs that will support IDM startups.

As IDM could not access the old PromArts and Trade Routes programs, IDM producers should be eagerly waiting to see the details of the new Creative Export Strategy Fund to ensure that it covers IDM and the kinds of export activities that will enhance their success.

I guess we’ll just have to stay tuned.

P.S. Oh and a rant is required.  Phrases like ‘many of Canada’s federal cultural institutions and funding programs will have implemented concrete measures to make our creative industries more inclusive, by increasing opportunities for women’ drive me mental.  Diversity and inclusion is not synonymous with gender parity.  Could the government please get working on programs that encourage a wider diversity of talent, stories and decision makers so that our media is more reflective of our audience?

The CIPFs and Digital Media

In my last post I went over the ‘permissions’ and ‘requirements’ of the CRTC’s new regulatory framework for Certified Independent Production Funds (“CIPFs”).  Since then you have heard a lot about the decision to reduce eligibility for Canadian productions from 8 points to 6 points. However, there is another issue that has been quietly bubbling away and now is generating a great deal of concern.

First, a little context.  In CRTC 2010-833, the CRTC amended the existing regulatory framework for CIPFs to formally allow CIPFs to fund digital media associated with television programming and to allow funding of standalone digital media provided that it was limited by a cap of 10% of the revenues received by a CIPF from a BDU.

“the Commission is of the view that there is little cause for concern over permitting the funding of new media projects linked to television programs as any new media content created as a result of such funding would still serve to support traditional television production. The Commission also concludes that the existence of a link to a television program will create a self-limiting process in that the producers and broadcasters will want to ensure that sufficient amounts remain for television production and development and will therefore make decisions in their own best interest. It will also be at the discretion of the funds whether they choose to fund program-related new media projects. As such, the Commission considers that a cap on such new media projects is not necessary.” [para 17]

So it was very confusing to read the new framework and see the phrase “the Commission will maintain a 10% limit on funding that can be allocated to non-programming digital content” [para 45] when there had been no cap on associated ‘new media’ to maintain.  Now, the definitions have been updated so that digital no longer includes digital-first linear video, but the result of the new wording is that all other digital media associated with a television program is now limited to 10% of BDU revenues.

Given the seriousness of this change, various organizations have been in touch with the CRTC to confirm that indeed this interpretation is correct. The potential consequence is significant as it would mean that most of the CIPF funding for digital media that both digital media and television producers have relied on will have to be re-allocated to  only television programming.  At a time when digital media is an essential element in discoverability this is a puzzling development.  Affiliated digital media drives audiences to the television, extends their experience with the television program and the broadcaster, builds both brands, and helps to sell the television show internationally.  Digital media can help documentaries extend their reach and their impact.  In some genres, most notably children’s, international buyers rarely license the television program unless there is associated digital media.

A few years ago I authored a study on co-production opportunities in digital media and in that study I learned that few countries around the world have any funding for digital media associated with television programming.  With the funding that we have, Canadians have become leaders in the field and are sought after for co-productions not just for their potential access to funding but also for the expertise that they have now developed.  Companies like Shaftesbury, Breakthrough, Secret Location, DEEP, DHX Media and Xenophile have developed international reputations as talented television and digital media producers and been able to compete in international markets because of the early and consistent support of the Bell Fund.  Is this not what the CRTC said it wanted?

Moreover, at a time when Minister Mélanie Joly is in the middle of the #digicancon consultation, the timing of limiting the ability of the Canadian broadcast system to leverage digital media to drive audiences to the broadcast platforms and to make foreign sales is hard to understand.  The CRTC seems to be taking two steps back while Heritage is trying to take one step forward.

The Bell Fund has asked for a transition period to be able to react to the new rules, as the decision was effective September 1, 2016.  They have also asked for an increase to the 10% cap, given the significant potential damage of such a small cap.  The CRTC has said that it cannot make amendments to an existing decision but instead it turned the request into a Part 1 application which is now a public consultation.  If you wish to comment on the Bell Fund’s request you can do so through the link on that page.  The deadline is November 28, 2016.   There is no guarantee that any changes will be made but at least there is a forum for industry feedback.

Full disclosure – I have a working relationship with both the Bell Fund and Interactive Ontario, the trade association representing interactive digital media producers in Ontario.  I am not speaking for either of them with this post but trying to explain for you guys what is going on – as I do.  If you would like more information you can reach out to either of those organizations.

The CRTC’s Wireline Wholesale Decision and the ISP Levy

I bet you didn’t think those two were related. If you’re primarily interested in broadcast policy (as I am) you probably didn’t even read the CRTC’s Wireline Wholesale Decision. I will freely admit that telecomm feels like another world and another language to me so I don’t tend to read the decisions and rely instead on the summaries in the news. Then Sasha Boersma pointed out to me Mark Goldberg’s tweet about Commissioner Raj Shoan’s dissent to the decision and I got excited and I just need to share that.

First, the decision. Wholesale wireline services are the part of their network that major telecommunications companies (e.g. Rogers, Bell) have to make available to small independent services (e.g. TekSavvy, VMedia) at a regulated fee to allow the independents to provide competitive voice, broadcast and internet services to their customers. The hearing was to review the policy framework to ensure that it contributed to competition and choice. You can read the press release here for a brief summary – the major issues are expanding the network that must be made available to include fibre and disaggregating the services so that an independent doesn’t have to take all services if they only want, for example, Internet.

Commissioner Shoan’s dissent wasn’t about those two main points but about the decision’s narrow focus on the Internet as a provider of alpha-numeric data and the missed opportunity to revamp policy, or take a first step towards revamping policy in recognition that broadcasting and telecommunications are no longer separate silos. Shoan’s position is that so much evidence was provided by intervenors that broadcasting is now part of the services that the independent providers offer to customers that the Broadcasting Act should have also applied. The world is rapidly evolving to one where there is only one pipe to the home providing all of our communications services and that is not reflected in the policy framework:

“In essence, under the current legislative framework, the Internet, through market forces, consumer use, and industry development, is evolving from a telecommunications service into a broadcasting service. The implications of this evolution are profound for not only the Commission’s regulatory frameworks, but all Canadians and the public interest.”

Commissioner Shoan breaks down Internet services into really three types of services:

  • licensed or exempt IPTV broadcasting (television channels delivered over the Internet by companies like VMedia and Zazeen)
  • exempt broadcasting delivered over the Internet (OTT services like Netflix)
  • non-broadcast Internet (websites, email etc.)

IPTV was a hot topic at the hearing with many independents looking for access to fibre to be able to provide customers with an IPTV offering. They need the bandwidth and speed. IPTV is broadcasting. Shoan’s analysis is that the Commission cannot use the Telecommunications Act to provide access to broadcasting. The Broadcasting Act must apply, specifically s. 9(1)(f):

s.9(1) Subject to this Part, the Commission may, in furtherance of its objects,

(f) require any licensee to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier for the distribution of programming directly to the public using the facilities of that common carrier;

The exempt broadcasting services are exempted by the Broadcasting Act under the Digital Media Exemption Order. S. 28 of the Telecommunications Act provides an obligation on the Commission to regulate the transmission of programming over telecommunications services to guard against undue preference or unjust discrimination (i.e. incumbents favouring their services over the independents). Shoan sees a missed opportunity here to identify what would be undue preference or unjust discrimination “as high-speed networks rapidly transition to becoming predominantly video distribution platforms”. This was an opportunity to create a framework to address problems before they occur rather than after.

Now back to the ISP levy. When the CRTC reviewed the New Media Exemption Order (as it was then called) in 2009 there was a call from creator groups for the CRTC to impose an ‘ISP levy’ on ISPs who were increasingly providing consumers with access to programming without making any contribution to the creation of that programming. The levy would go to fund more programming and replace lost BDU revenues to the CMF and the other independent production funds as consumers increasingly cut or shave the cord. During the hearing the BDUs challenged the CRTC’s jurisdiction to impose such a levy and the CRTC referred the question of jurisdiction to the Federal Court of Appeal.

The Federal Court of Appeal decided in 2010 that ISPs were not broadcasters and therefore the CRTC did not have jurisdiction under the Broadcasting Act over the ISPs (and could therefore not impose a levy under that Act). The decision was appealed by the creator groups (ACTRA, CMPA, DGC, and WGC) to the Supreme Court of Canada, who agreed in 2012 based on their interpretation of the facts that ISPs were not broadcast distribution undertakings [EDIT: earlier version said ‘broadcasting’ but it is more accurate to say broadcast distribution undertakings – sorry for any confusion]. They are merely passive conduits that ‘take no part in the selection, origination, or packaging of content’.  You can find the history of the Digital Media Exemption Order and the Federal Court of Appeal decision here and the Supreme Court decision here.

Now we have a CRTC hearing where independent ISPs looked for access to fibre so that they could provide BROADCASTING services. Shoan’s dissent makes a very good case for applying the Broadcasting Act to ISPs.  [EDIT:  It has also been pointed out to me that there have been some changes in how ISPs operate including how they promote the video content they carry that could justify a re-examination of the case and to what extent they really are only passive conduits.  As well, the growth of IPTV renders the question of whether ISPs are broadcast distribution undertakings moot at least for those services.]  I’m not a telecomm lawyer so there could be flaws in the argument that I can’t see. Perhaps telecomm and broadcast people should have a conversation because Shoan’s analysis undermines the factual underpinning of the Supreme Court’s decision. If anyone is up to the cost of another reference, it could be time to challenge the Supreme Court decision or (and this is less expensive) encourage the CRTC to take a bold step toward creating a regulatory framework that better reflects the services being offered to Canadians and ensures that Canadians will continue to have the choice to watch Canadian programming on those services.

Digital Canada 150 2.0 – Have They Gotten It Right Yet? Not so much.

I was going to break down the differences between Digital Canada 150 (released April 4, 2014) and Digital Canada 150 2.0 (released today) but it’s kind of ridiculous. Very little has changed in the past year. It is still more of a ‘look what we did including a bunch of stuff that has nothing to do with a national digital strategy but sounds good’ than a plan for ensuring that Canada and all Canadians are digitally literate, part of the digital economy, using the tools and enjoying the content.

Yay – the government connected more rural Canadians to broadband but still no mention of ensuring affordable access to broadband for Canadians regardless of where they live. Increasingly, digital literacy and access are essential elements to exercise of Canadian citizenship and this continued omission supports the digital divide between those who can exercise their citizenship and those who cannot.  [Note – contrast that with the Digital Argentina law of 2014 that, among other things, is aimed at ensuring fair access of all citizens to telecommunications including the Internet.  Under that law the government of Argentina can set the rates for Internet access to ensure affordable access for all.  Just saying.]

Yay – the CRTC (which is an arm’s length tribunal so can’t really be part of the government’s strategy unless it isn’t that arm’s length) has instituted unbundling like the government said it would. No mention of the fact that we really won’t know the consequences of that decision for consumers and for broadcasters until it is implemented in 2016 or explanation of how that relates to a digital strategy.

Yay – the @Canada twitter handle exercises digital diplomacy. I dare you – go check out that twitter handle.

Screenshot 2015-07-15 14.22.22

Yay – the government created digital content through the NFB, funding the Canada Book Fund and the Canada Music Fund and digitizing publications for Library and Archives Canada. They actually have funded a great deal of digital content through the Canada Media Fund and their budget cuts have forced the CBC to be more innovative in using digital platforms but for some reason these are accomplishments the government does not want to brag about. I get the CBC point (it’s hard to brag about what someone has had to do when you slashed their budget) but CMF?? [They do describe Telefilm Canada as an audio-visual industry success story so I do wonder if someone at Industry Canada got confused and thinks Telefilm and the CMF are the same thing and doesn’t realize that Telefilm only funds features.]

The report does cover a number of other issues (I’m not going to even touch the reference to Bill C-51 as an example of Internet Safety) but those are of greatest relevance to an audio-visual industry. BUT. What the audio-visual industry called for in the 2010 consultations was vision and a plan to ensure that all Canadians had access to digital platforms and the choice to enjoy Canadian content when they got there. It asked for an overhaul of the various silo’d funding programs to have a coordinated strategy to fund single platform and multi-platform content in a digital world. It asked for funding mechanisms to ensure that Canadian content continued to be created even as business models and technology evolved.  It asked for training programs that ensured that emerging and more established talent had the skills needed to create and exploit content.

For a quick refresher on the agonizing pace of waiting for a National Digital Strategy that included content, see my post on the release of Digital Canada 150 on April 4, 2014 in response to the Industry Canada consultation in 2010.

So, we’re still waiting for some vision.

International Digital Media Co-Production: A Guide for Canadian Companies

Today Interactive Ontario launched the International Digital Media Co-Production Guide for Canadian Companies.  I’m rather proud of it since IO hired me to research and write this report and it consumed a great deal of my Winter 2014.  I’ve given you the link to the report on the IO website but you can also find it on CMF, OMDC and Bell Fund’s websites (as funders of the study) and CMF also has a French version.

You should check it out if you’re interested in digital media co-production.  I spoke with a number of producers and stakeholders in Canada and outside to identify the advantages and disadvantages to this kind of business structure as well as the different business models that producers are experimenting with.  The report also has tips for how to get started in the international marketplace and a section that provides specific resources for UK, France, Germany, Australia and New Zealand.    It’s both a big picture report and a handy tool for producers.