Category Archives: Film

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

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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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Prime Time in Ottawa 2019

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For an ‘in the moment’ feel for this year’s Prime Time in Ottawa conference hosted by the Canadian Media Producers Association (CMPA), look up my twitter feed for Jan 29 – Feb 1, 2019 and/or check out the hashtag #PTiO to get other perspectives as well.  I used to Storify my tweets but sadly that’s no longer an option.

I have to say that this was a pretty good conference.  Attendance felt up (I don’t know the actual numbers). The opening cocktail was packed and that means interest from local Ottawa media, politicians and bureaucrats as well as delegates.

I like to pick a theme for the conference after the fact, often an unintended theme that comes out of what people are thinking and talking about, regardless of what is actually programmed.  I have to say, I am pleasantly surprised to declare that this year’s theme was diversity. I need your help sharing my blog post on terminology widely as the misuse of the term diversity as a synonym for people of colour was pretty widespread but more and more people are getting it and talking about what needs to happen, how to improve it and why.  It came up in a variety of panels that technically were not about diversity. The fact that we’re still talking about why is a little depressing but at least more people accept the fact that better reflecting our own audience and reaching a global audience is a pretty good why. Netflix was pretty clear. They target a global audience so need a diversity of stories and storytellers. The panel on working with Netflix therefore veered off at one point to talking about how to improve the diversity of talent in Canadian production with producer Noreen Halpern calling for more training programs and showrunner Dennis Heaton telling the audience it was everyone’s responsibility to mentor emerging talent who aren’t otherwise getting opportunities.

I do object to a call from talent agent Glenn Cockburn (on the Scarcity of Talent panel) for more programs that target kids in high school since I know that many colleges and universities are already graduating pretty diverse classes but everyone who isn’t white and male are having a harder time getting hired.  I tweeted out the story of my daughter who graduated from Centennial’s Broadcasting and Film program, one of a very diverse class, and did her work placement where she was the only non-white face. How can you hire an all white crew in the city of Toronto?? Two of her female non-white friends are DGC trainees and they are getting great support from that union so it’s not all bad news.  I am in the camp of mentoring and financial support to give emerging talent work opportunities. Hold the door open everyone.

Now was the conference itself diverse?  Only if you measure gender balance. Conference producer Marguerite Pigott was pleased to announce that 50% of the speakers were male (I did enjoy the stat being flipped like that).  But by my rough calculation (and this is not scientific as ethnicity and identity are the choice of the speaker, not the person counting) only nine of 56 speakers were people of colour. Yeah, we’ve got some work to do.

The marketing pitch session (Prime Time Throwdown) was a glimpse into that future.  All three projects were pitched by women. One was an LGBTQ team and one was a half-POC team.  Two of the projects are web series that will likely earn good audiences but are the kinds of shows that are unlikely to find a home on traditional broadcast.  Barbelles is targeting ‘queer women 18-34’ and as we have seen with Carmilla that audience segment is very hungry for content. Tokens on Call won the pitch and I’m looking forward to its launch later in the spring as it takes a very funny look at attempts to subvert traditional casting to create more diversity (see that theme again).  In general though, it was an entertaining and informative session as the audience learned about the marketing strategies, and potential pitfalls, from producers who will be undertaking an aspect of marketing themselves.  Two out of the three had received Bell Fund funding for a Discoverability Plan so it was also interesting to see how that new program can impact producers.

What else went on?  The talk of the conference was the opening panel of broadcasters.  Every year Prime Time starts with this panel and it’s usually pretty tame as the broadcasters say the same thing year after year – the CRTC needs to deregulate as life is just so hard, they love producers, the broadcasters have great CanCon (that they’re doing because they love it, not because they have to) etc etc.  Well, not this year (and not just because of a controversial statement from the head of CBC – see here). There was a feisty dispute between Stéphane Cardin of Netflix Canada and Catherine Tait of CBC (which was a little strange since Netflix buys a lot of CBC comedy and dramas) and between Stéphane and Mike Cosentino of Bell Media (which made more sense since Bell is calling for Netflix to make a contribution to Canadian programming of 20% of their annual revenues).  Reynolds Mastin tried to squeeze Terms of Trade into the conversation by calling it Code of Practice – not sure that worked. Stéphane suggested that more people in the room wanted to work with Netflix than would likely admit it and judging by the packed room for the Working With Netflix panel later that morning and the very positive experiences of the panelists, I’d say he’s right.

There were a few panels on the latest info on a topic and they provided up to the minute insights and that was refreshing.  Too often we’re lucky to learn one thing new in a panel but I enjoyed the insights from the Kids panel (don’t think tv first automatically, might be better to build a game first to get their attention), the Distribution panel (distributors are increasingly getting involved at development because of increased competition) and the last minute (due to keynote cancellation – a conference producer’s worst nightmare) Future of Features panel (producers have to use digital platforms and interactivity to find audiences where they are and not leave it to distributors). 

While it is discouraging that we still have to have conversations about the need for diversity and exploiting digital platforms, it did feel like the dial had moved a bit in the right direction so there was cause for optimism.

 

Dueling Industry Conferences

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It’s hard not to compare industry forums when they are back to back.  Thursday the Banff Media Festival held its “Content Industries Connect” conference at the Ritz Carlton.  Swanky.  It was a paid event.  In the past it had been part of the Academy’s Screen Week but this year while during Screen Week it wasn’t affiliated with the Academy (there’s a story there somewhere but I don’t know it).  Friday the official Industry Forum took place, hosted by the Academy, CMPA and DGC.  It was free for members of those three associations and took place at the TIFF Lightbox.  Not quite as swanky but the seats were more comfortable.

I don’t know if anyone went to all of both.  I was signed up for both but came late to Banff and skipped out of one of the Industry Forum panels.  It’s just too much of a time commitment to do both.  Most people seemed to pick one or the other.  The topics were quite similar but Banff was the only one with a Media Leaders panel so my impression is that the senior executives chose to pop in to the end of the Banff day to attend the Media Leaders panel and bypassed the Industry Forum.  The Industry Forum was more grassroots given the free admission for members of those organizations.  The speakers seemed to be aware of that and targeted the production community rather than the executives with their discussion.    So while the topics were the same, they ended up being quite different days (I’m not going to compare the cocktail parties though for me the food at the Industry Forum won – quinoa battered shrimp and lamb chops!).

As someone who attends a lot of conferences I didn’t think I’d miss much by skipping the Banff panel on The Future of Content in a Multiplatform World and based on the tweets and what I heard, it was the same talk we’ve been hearing for the past year from Vice, Shomi, Blue Ant and CBC. I don’t know anyone who attended the panel on brand engagement with speakers from Hyundai, Microsoft and Kraft and the tweets don’t tell me much either.  Honestly, it seemed an odd choice for the content crowd.  I finally made it to the conference in time for the “Letterkenny” panel.  Full disclosure – I haven’t seen it all (I don’t have CraveTV) but every second of “Letterkenny” that I’ve seen makes me laugh.  I enjoyed the clips, hearing about the process, learning about its success (more views on CraveTV than any other show in its catalogue including Seinfeld and South Park) and its renewal announced during the panel.

Then there was the Media Leaders panel.  Banff has it every year that they have done this event.  This year there were only two leaders after consolidation (and CBC cancelled) – Mary Ann Turcke from Bell Media and Doug Murphy from Corus.  Talking to people afterwards there was one word that seemed to sum up the panel and it’s not a polite word.  It starts with a b.  There was a very negative reaction to Doug Murphy’s discussion of the CRTC’s decision to not require Terms of Trade as part of broadcast licences – they’re now free to treat every deal like a snowflake.  Yes, a snowflake.  Which ignores the very real imbalance in bargaining power between the mega-broadcasters and most independent producers.  There was a marked contrast between this Media Leaders panel and the one last month at Prime Time – this one was channeling ‘sunny ways’.  Everything is going to be great.  Netflix isn’t a threat as they’re now starting to partner with it, get high profile casting because of its involvement and negotiate windows.  It’ll be interesting to see if they go back to ‘Netflix is heralding the end of the world as we know it if you don’t deregulate us’ mantra next time they’re in front of the CRTC.    They were also pretty positive about pick and pay.  Sure a few of their services will die but producers shouldn’t worry because the remaining ones will only be bigger and better.  Since the jury is still out on this big shift in consumer behaviour due to pick and pay that has been predicted by some, this could mean that pick and pay is going to be used as an excuse to close up some of the underperformers. Again – we’ll have to wait and see what happens in front of the CRTC.

Now off to the Industry Forum.  The first panel was on discoverability.  I’m still not sure we’re all talking about the same thing (push vs. pull) but this panel was a lot more about new techniques to find audiences and provide them with what they want than the discoverability panel at Prime Time which talked more about traditional marketing using digital platforms (and I believe that it was also programmed by the CMPA since it was branded Prime Time Any Time).  In particular, it was useful to hear about Richard Kanee (CBC) and Ramona Pringle (interactive digital media producer) experimenting in finding and engaging audiences.  I appreciated Kanee’s admission that the CBC had missed social media engagement opportunities in promoting “Strange Empire” (you can’t expect him to take responsibility for the whole marketing mess) and his admonition that producers and broadcasters shouldn’t always chase the latest new thing.  Some of the tried and true engagement methods, like email newsletters, still work and should remain part of your strategy instead of running after all the riskier new methods.  Final favourite bit of wisdom from the panel was that the studios (and broadcasters and producers) should be learning audience engagement from the YouTubers who have learned how to find, support and grow their audiences.  Casting them in a mainstream television show isn’t enough to migrate their audience, but if the YouTubers develop their own television show their audience will recognize the authenticity and watch.

The next panel was on co-production featuring three Canadian majority copros:  “Book of Negroes”, “Born to be Blue” and “Room”.  There was a good discussion of why go copro – the added money allowed them all to afford higher profile talent which generated more sales.  It also allowed them to access government funding rather than distributor advances which meant casting the best person for the part rather than for international sales.  Unfortunately, that government funding helped those stars become international hits and now it’s unlikely that anyone in Canada can afford them so for me there is a flaw in that system.

I have to admit that I stepped out and missed the “Orphan Black” panel not because I don’t love the show (I do!) but because I’ve seen a few “Orphan Black” panels over the years.  I ran into a few others doing the same thing so we did our own networking.  We went back in for the keynote speech from Colin Brown, who among other things is a professor of film and economics at NYU.  He gave a very insightful presentation on the international markets for feature films and how they differ between markets and between films and the business case for investing in a mid-size studio producing a slate of mid-range budget films.  His add-on bit about Canada was less insightful as the audience did not need to be told who are the Canadians in Hollywood or that we should be prouder of all the great talent who have left.  As someone who has spent their entire career in the domestic film and television industry I was not impressed.   But I am thinking about what Canadian stories might be naturals for the Chinese and Egyptian markets.  Hmm.

So did we need two such conferences in two days?  Nope.  They could have been merged and been one great day – as long as they kept the quinoa-battered shrimp.

Heritage Committee Report on the Canadian Feature Film Industry

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The Standing Committee on Canadian Heritage recently released its report on its study on the Canadian Feature Film Industry. Over the spring a number of feature film stakeholders had appeared before the Committee or sent in submissions and this report is the result.
First a little context. Standing Committee reviews can be useful to study a sector within their jurisdiction, raise issues and make recommendations to the government. There is no obligation for the government to act on these recommendations or to even comment on them. These are the dying days of this Parliament and it is unlikely that the government will even notice this Report. However, it can also educate and inform Department of Canadian Heritage staff and help them to develop policies that could be implemented in the future.   As well, given that we are leading up to an election, this kind of a study could inform party platforms or future government proposals.

I recommend reading this report for a couple of reasons. If you are new to Canadian feature film policy it is a fairly accurate (not always the case) overview of the current state of the industry.   A wide selection of stakeholders appeared before the Committee and many topical issues and proposed solutions were presented. If this is your field then it is also interesting to see which issues the Committee as a whole, and the Opposition parties in supplementary proposals, felt worth recommending.

I found a couple of the recommendations of particular interest. A few of their recommendations went beyond government to other bodies, which technically speaking are outside the Committee and the government’s jurisdiction. In Recommendation 5 and 6 the Committee recommended that the CRTC include feature films as a separate category within PNI and that it review its PNI policy to specifically support feature film. As the CRTC is an arm’s length body this recommendation is like the Canadian government making a recommendation to the U.S. State Department on foreign policy. Further, there is a policy development process at the CRTC that is a great deal more rigorous than a Parliamentary Committee review. We might not like the current result of the process but the government cannot step in and make specific changes (there is a policy direction process but that’s more general).

Recommendation 10 is a recommendation asking the CBC to enhance its support of Canadian feature films, including on digital platforms but without a recommendation to increase the CBC’s budget to enable it to do so (which is in the government’s jurisdiction). The NDP expressed in their supplement the belief that the CBC should have sufficient resources to fulfill its mandate without a specific recommendation about what was needed to do that.

There were a couple of very specific recommendations related to the tax credits which could make a huge difference to feature film producers. For years the CMPA has been lobbying to eliminate the ‘grind’, where tax credits are reduced by the amount of assistance received from other levels of government (e.g. provincial tax credits). The Committee did not go so far as to recommend its elimination but that the problem should be studied. The Liberals in their supplement also supported the recommendation from witnesses that 75 – 85% of tax credit payments should be moved up to reduce the interim financing costs. This would be a great measure that would not cost the government anything but would create significant budget savings. I would only add that it should not be limited to feature film tax credits.

The final recommendation that interests me comes from both the NDP and Liberal supplements and was ignored by the main recommendations. Both parties recommended that OTT services should provide data to Heritage (or Heritage and the CRTC in the case of the Liberals) on consumer habits, Canadian films available, revenues and costs in order to assist policy development.  So this is a recommendation that the government MAKE Netflix and Google do what the CRTC was unable to make them do during the CRTC hearing. Nice thought but given that they deny that the CRTC has jurisdiction, I doubt that they would agree that the Canadian government has jurisdiction. I think it’s a lovely idea and yes it is data that the policy makers absolutely need to have for accurate policy development but it isn’t terribly realistic.

CRTC S.9(1)(h) Hearing (Mandatory Carriage) Decision

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For background, last March I wrote a post that explained what mandatory carriage means and talked about the applications that I was most interested in.  The hearing took place the week of April 23, 2013 and the decision was released today.  13 of the 22 applications for mandatory carriage were denied as the CRTC reiterated that mandatory carriage was reserved for services that ‘make exceptional contributions to meeting the objectives of the (Broadcasting) Act’.  See Fagstein’s blog for a good chart form summary.

Most of the mainstream media and social media focus has been on the Sun TV application for mandatory carriage (which was denied) – see Simon Houpt and Steve Ladurantaye of the Globe and Mail for excellent coverage of the topic) but I have always been much more interested in the other applications which had the potential to impact the Canadian content part of the broadcasting sector – APTN, VisionTV, Starlight.  There were also several licence renewal applications of interest, particularly Superchannel and Blue Ant, but those have not been released.  There was however, one aspect of the Sun TV decision that I think is worth noting (in addition to the upcoming policy hearing on Canadian news services which will address the bigger picture of whether all Canadian news services need regulatory assistance).  The Commission noted that not only did Sun TV not demonstrate how its service would make an ‘exceptional’ contribution to the objectives of the Act – it never referenced the Act in its application.  #duh (sorry – couldn’t resist).  Further, the service didn’t make ‘exceptional’ expenditure and exhibition commitments to Canadian programming beyond what other Canadian news services, which do not have mandatory carriage, make.

But enough about Sun TV.  APTN received a renewal of their mandatory distribution order on the basis that its service was consistent with the objectives of the Act, it was important that the service be widely available across the country and that APTN is ‘exceptional in its contribution to Canadian expression and reflects attitudes, opinions, ideas, values and artistic creativity that would not otherwise be seen on television’.  As well, should the BDUs only carry the service where concentrations of aboriginal populations warranted it, then many who were spread out around the country would not have access.  This is a good description of the bar required for a service to be entitled to mandatory distribution – exceptional contribution to the objectives of the Act, and anticipation that the market would not provide the service consistently across the country.

However, APTN also asked for an increase in their subscriber rate from $0.25 per sub to $0.40.  It requested the increase to keep up with inflation, improve programming and make more programming available on multiple platforms.  The Commission accepted that an increase was warranted but given that an increase in the subscriber rate will mean an increase in the cost of the basic package, decided that a $0.06 increase would be a good balance between APTN’s need and the consumer’s reluctance to pay more for basic cable.

The Commission used the same balance language when it agreed to an increase for CPAC.  The $0.01 increase ‘represents a good balance between the impact on the price of the basic service for Canadian consumers and the ability of CPAC to improve its programming’.  This is the consumer filter that we have been told will be applied to all decisions clearly at work.

There were two proposed youth-focused services that applied for mandatory distribution – Fusion and Dolobox.  It was interesting that both had significant user-generated content and online components and both were denied at least in part on the basis that there were enough existing alternatives in the online world that the Commission did not see a need to issue mandatory distribution and broadcasting licences.  I heard both presentations and I could not understand why they were at the CRTC as it seemed like a backwards looking business model for forward-looking services.

Speaking of which, then there’s Starlight.  While I strongly support the idea of finding a way to make it easier for Canadians to find and watch Canadian feature films, I was part of the camp who thought that Starlight for all of its good intentions, was not the solution because of its reliance on mandatory carriage in its business model (See also Denis McGrath’s Facebook post on the subject –- sometimes a former blogger has a relapse).  As you can see from those services that received or maintained mandatory carriage, the Commission looked very closely at whether a service was exceptional enough to warrant increasing the cost of basic.

The Commission did not feel that the proposed service was exceptional enough because Canadian VOD and pay services are required to licence all Canadian services that are available so Canadian films are not unavailable.  [Now, as Mario Mota pointed out in a tweet, pay is about $20/month on top of basic, which is not very accessible to Canadians so there is a flaw in that argument.]  Starlight would to some extent duplicate the offering on pay and VOD so would not provide additional diversity to the system.  I would agree except to the extent that Starlight was planning to reach into the back catalogue to films not currently or rarely available (some rightly so of course).

Part of Starlight’s strategy was to show general support for the service and it conducted a survey to demonstrate a high level of interest.  Unfortunately that strategy seems to have backfired as the Commission felt that the high level of interest demonstrated that Starlight could be successful as a discretionary service.   However, Starlight applied for mandatory distribution because it not only wanted to be sure that it was available in every home but also it needed the revenue to fund its original feature film financing plan.  This plan could not be financed without a mandatory distribution order.  The Commission felt that Starlight had not demonstrated that the existing funding for feature films was insufficient.  I think that another way of putting that is ‘don’t force consumers to solve the problem of insufficient feature film financing’.

Over the years Vision has applied for mandatory carriage several times on the basis that its multifaith programming and its focus on its 55+ audience offers needed diversity in the broadcasting system.  Vision expressed concern that as an independent service it runs the risk of vertically integrated companies moving it from a basic package to a discretionary package in order to make room for their own services.  A move like that would draw fewer subscribers and therefore reduce Vision’s revenue.  The Commission accepted the arguments of BDUs that the BDUs would not want to risk the wrath of Vision’s audience if they moved Vision out of basic (and warned the BDUs that the Commission would need to see good reasons if they ever did so).  Vision also has recourse to the Commission should the BDUs treat Vision unfairly.  The Commission also pointed out that Vision is no longer the only other faith programming service so there is no extraordinary need for Vision’s particular service.  Or in other words – it’s all good so there’s no need to regulate.

One of the few new mandatory orders granted is worth mentioning.  It went to The Legislative Assemblies of Nunavut and the Northwest Territories for a geographically limited broadcast of recorded and live coverage of proceedings in their Assemblies in aboriginal languages, English and French.  The service clearly supports the objectives of the Act, there was a demonstrated demand and a demonstrated market failure.  Bell ExpressVu stated no plans to carry the service and Shaw agreed to but without any time commitment.  And possibly most importantly, the service did not ask for a subscriber fee.

The general feeling about this hearing was that the Commission would not grant many or possibly any new mandatory orders but would maintain the existing ones in order to keep a lid on the cost of basic cable and this is pretty much what they have done.  The decisions were clear so if any service seeks to apply for a mandatory order in the future they will definitely know what issues to address in their application.  There will be an increase to the basic cable rate but it should not be significant (Fagstein came up with wholesale increases of $0.31 per subscriber per month in English and $0.63 in French, which Mario suggests may be used by the BDUs to justify $1 increases in your bill).

In many ways those of us who watched the hearing felt that it was a throw back to an earlier era when broadcast television was the only way that you could reach an audience.  That is so not the case any more.  Now the question is whether the rejected applicants, and those contemplating new services in the future, turn to digital platforms to reach audiences and whether the CRTC needs to be there to ensure that the objectives of the Broadcasting Act aren’t being undercut by these new platforms.  Yeah, I went there.

Bell-AstralFinal

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Mirko Bibic must be heaving a huge sigh of relief that the transaction has finally been approved.  Bell won’t be happy with all of the details but it’s at least done and from my perspective, the additional conditions are things that they can live with.   They might have to hire a new body to manage the new reporting requirements but that won’t cost much.

As always, my perspective on this transaction (which is my own alone) is focused on the English television side of the deal (Steve Faguy does a great job on the radio market with an emphasis on Montreal, which was so hotly contested).  There are some parts of the decision though that are noteworthy in that they signal the Commission’s thinking in the upcoming rationalization of the benefits policy (part of the Three Year Plan).

The big clear message from the top was that this transaction was still carefully reviewed for the public interest and was only approved as being in the public interest with the addition of a few new safeguards.  The revised application wasn’t a slam dunk.  “The Commission finds that but for these safeguards, it would not have been persuaded that the present transaction is in the public interest, and would not have approved it.” (para 28).

Aspects of the Vertical Integration code will now be enforceable conditions of licence, there are conditions around negotiation of non-linear programming rights, access to advertising availabilities by competitors and affiliation agreements have to be filed shortly after they are signed.  These all relate to a number of allegations that were made during both Bell-Astral1 and Bell-Astral2 that Bell was already treating smaller BDUs and independent programming services unfairly due to its size and would only get worse if it got bigger.  Rather than make any determination on the validity of these allegations (many of which were not supported at the hearing by evidence of the unfair activity) the Commission has taken the position that the new bigger Bell will have more opportunities to be anti-competitive so there’s a greater potential (whether or not they are anti-competitive now) and that potential has to be protected against.  The final piece to this is the warning that the Commission will not hesitate to act if they are presented with evidence that Bell is acting anti-competitively.

A lot of the decision was dedicated to a revised valuation.  This section will be of value to valuators of future transactions.  One of the parts that I liked was the valuation of leases related to the out-of-home business (billboards).  As those leases relate to an unregulated side of Astral, the Commission had asked for an auditor’s report of how they came to the valuation.  This is one of the ways that broadcasters artificially reduce benefits payable by increasing the value of unregulated assets that can be deducted from the calculation.  Instead of an auditor’s report, Bell filed an accountant’s report explaining how the valuation was made.  As they didn’t get an independent verification as requested, the Commission did not deduct the value of the leases related to the out-of-home business from the valuation.  Lesson – provide the Commission exactly what they ask for or it will cost you (Note – the same thing happened to Shaw when it acquired Global so they had warning).

So the value of the transaction was increased from $4.017 billion to $4.154 billion.  The Commission then changed the allocations between TV, radio and unregulated assets.  It is also worth noting that Bell tried to argue that SVOD  (i.e. TMN on Demand) services were unregulated but the Commission added them back in as extensions of regulated assets. They did not do the same for the value of digital assets such as websites related to broadcasters, which is something that I had argued for in Bell-Astral1.  The bottom line for benefits then is $175.4 for television and $71.5 for radio.  Note that radio was increased from the usual 6% to 7% of the value of the assets because of the size of the transaction.  An increase for size for radio has been done recently (Corus) but that argument hasn’t worked for the television side for years.  It is likely that the television transactions are just so large that the transactions could not support an increase in the benefits formula.

Unlike previous transactions, the Commission has not decided for Bell how they will allocate the increased benefits but instead require them to file a proposal on how they will be spent by July 29th.  I hope that the result and the final approved benefits are public.  In the past when the Commission has left the final package to later determination there have been letters that you had to know to ask for to be able to find out what exactly was agreed to.  Not good for the process.

Most of the television benefits were approved as proposed but there were some exceptions.  The proposal to allocate $3million to CAFDE for a fund for the promotion of feature film was not approved.  Bell is to come back with a new proposal for the promotion of feature film.  What is odd is that there really isn’t any direction as to what needs to be fixed.  What is clear is that the Commission didn’t buy the argument of feature film producers such as the Producers Roundtable of Ontario that the funds should go to feature film production before promotion.

OLMC’s (Official Language Minority Communities) have been a major concern of the Commission this past year at this hearing and at CBC.  After many years of making presentations about the need for specific allocations they earned an allocation as part of the CBC licence renewal and an allocation of 10% of each of the English and French envelopes of the benefits package.

An important wonky determination is that 100% of PNI not only has to be independently produced but also original.  If a program airs on TMN and then on CTV (or airs on Citytv and then TMN) it only is original for the first broadcaster unless both broadcasters participated in the financing of the production.  This is similar to the Canada Media Fund’s definition of original.

Bell proposed an allocation of $2.73 million to Consumer Education as part of the social benefits.  The Commission has found this to be too vague and is requiring more detail with a direction that it would be appropriate to fund The Broadcasting Accessibility Fund, MediaSmarts and the Centre d’études sur les medias.  Lesson – if you don’t provide detail then the Commission just might decide for you.

Social benefits will have to be reallocated on a language basis as well.  They were majority English but have to be consistent with onscreen benefits, which were allocated along the lines of the value of the services in each language – 69% French and 31% English.

Bell had proposed that a significant portion of the television benefits in English would be spent over three years starting in 2017 because of the large amount of benefits for English television currently in the system.  A number of the creator groups objected to this.  The Commission did not agree to this proposal because some of the communities (OLMCs) and some genres of programming (documentaries) are not participating in the current benefits bulge and need the funds now.  Benefits will be paid in equal installments over the next seven years.

As part of the application, Bell made a number of ‘intangible’ benefits proposals that in some ways the Commission is treating as tangible.  In particular they are asking for more detail on the new position of ‘Canadian Programming Champion’ to ensure that it’s not just BS and Bell will have to file annual reports to demonstrate what the champion did, what their budget was, who they met with and what projects were funded.  This report will be public.  As well, the commitment to regional offices has been expanded from Vancouver and Halifax to include Winnipeg and detail as to their mandate has to be filed and then reported on annually.  The regional communities have experience with regional offices that have no authority and exist only to fulfill benefits requirements (*cough* CHUM-Craig *cough*) and the Commission wants to ensure that doesn’t happen again.

I was surprised to see the Commission re-evaluate Astral’s group CPE and PNI because that issue hadn’t been aired much but it does make sense.  Bell will have to sell off a number of the Astral specialty services and several of them are low CPE and PNI services which reduced the overall historical average CPE and PNI for the group.  The Commission is asking Bell to make a proposal but their preliminary view is that CPE should increase from 30% to 32% and PNI from 16% to 18%.  Remember that Astral’s group CPE and PNI will still be calculated separately from Bell so this is important to ensure that services like TMN and Family Channel maintain their level of investment in Canadian programming.

There are quite a few details still to be worked out and proposals to be made by Bell by July 29th, so the dollars at play in each envelope are not yet certain.  Again I hope that that part of the process will also be public and we will have a clear, public decision on the final makeup of the benefits package that we don’t have to go hunt for.  Please.

Women in TV – The Stats Please

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We have had two research reports released recently that try to shed some light on aspects of gender representation, and as well diversity, behind and in front of the camera in our television industry.  There was the Ryerson study of Canadian Screenwriters and the Women in View on TV Report.  Both reports left me wanting more – more detail, more explanation, more context.   The Ryerson report was a survey of 266 of the over 2100 Writers Guild of Canada members.  That’s just over 12% of the membership who chose to answer the survey.   It isn’t a large sample.  That being said it highlighted facts which are known to those who work in the industry – it takes time to become a successful screenwriter, they are highly educated, about a third are women and few make a full time living out of screenwriting.  It attempts to draw the connection between few women making a lot of money by screenwriting and systemic discrimination.  That may be true but I couldn’t follow the logic from the available data.

As for the Women in View on TV Report, it was more statistically significant as it researched staffing in key creative positions on 21 live action drama series with CMF funding.  It is a snapshot of a particular time and will not be able to identify trends until this study has been done year after year – which I understand is their hope.  We can see that women are not well represented behind the cameras but we cannot tell if this is a long standing problem, one that is getting better or perhaps even worse.  Also, by focusing on the statistics it again makes it difficult to extrapolate causes and therefore solutions.   It is a very good start but I would like to see the study grow in the future.

Yesterday I attended a panel discussion that Women in View had arranged as part of TIFF’s Higher Learning program to present their research and put it in context and I found what I had been looking for –  Dr. Stacy Smith of the USC Annenburg School of Communications.  Now, this is not to slight the other panelists (John Doyle, Globe and Mail columnist, Ferne Downey, ACTRA  National President, Laura Michalchyshyn Head of Sundance Productions) who had some great things to say (more on that in a minute) but just to say that Dr. Smith’s research on gender representation in the Hollywood film industry had the detail and the context that I was looking for.  She has conducted two studies that she presented to us.  One was a study of women onscreen and behind the camera in big blockbuster Hollywood films between 2007 and 2012  and the other was of Sundance Festival applicants and accepted films over the last ten years.  In addition to the statistics, they also interviewed key creators to ask them the ‘why’ questions.  The results were fascinating.   You can find more information in the links but the key for me was the reasons given for the low representation of women.  It is all about what Hollywood thinks that they need to do to make money.   It is ‘common wisdom’ that women will watch a male driven movie but men won’t watch a female driven movie.  According to Dr. Smith the statistics that she has gathered from a film distribution study proves that is not true.  Men tend to resist writing female-centric stories while vice versa is not true.  Female writers tend to write more female characters but Dr. Smith admits that she does not yet know if that is because they are advocates for women or if there is a ‘pink ghetto’.

The Sundance data showed a much higher representation of women in indie film than in the Hollywood blockbusters.  For example, 20% of the drama screenwriters are women while only 13.5% of the blockbusters were written by women.  There was a definite skew in the doc format as 32% of the docs were written by women.  The same trend is visible in the producer category where 29% of the indie dramas were produced by women, 45% of the docs were produced by women but only 20% of the blockbusters were produced by women.  Here though the reasons given were different as indie film isn’t as influenced by myths of the distribution world.  Reasons included lack of financial resources for women, male dominated networks, stereotyping on set, work/life balance and exclusionary hiring decisions.  More research needs to be done to try and identify why there are more women in documentaries (self-selected or funnelled?) and to determine if the size of the budget and risk is the only reason why there are more women in indie film than blockbusters.

I really love that Dr. Smith has done many studies and will continue to do more.  As our world in Canadian media is different than Hollywood we need to have our own studies like these.  If we can truly identify the causes for lack of representation, then we can try to come up with effective solutions.  Yes – evidence-based policies.

The rest of the panel discussion was interesting as it tried to give context and causation to the Women in View research.  Laura Michalchyshyn thinks that women have been socialized to be quieter and that does not get us the jobs – we need to grow a pair.  We need to encourage women to enter these careers in school and then mentor them along the way.  Ferne Downey offered that it isn’t enough to look at numbers but also to look at portrayal – too many female characters are stereotypes.  More women writing, producing and directing will mean more realistic portrayals of women.  “Orphan Black” was identified as a television show that is proving that men will watch a female-driven show, disproving that myth.  More successes like that (i.e. “Continuum”, “Lost Girl”, “Motive”) will breed more opportunities.  Finally, John Doyle was as provocative as he can be.  He thinks that part of the problem in Canada is that our big broadcasters are all owned by cable companies and as a result their senior executives have less creative vision than traditional broadcast executives.  They are less comfortable with risk and stick to formats that work (ahem – cop shows!).  I took down the following statement as close to verbatim as I could:

“There is a cabal of guys who look after each other, who won’t admit to blocking women from jobs.  They are mostly hacks though some are talented.  They get jobs because they are the loudest voices in the room.  They network, sit on juries, write blogs, promote themselves and their friends.  They hold grudges, organize campaigns against shows they don’t like.  You can’t ask women to say they have to also be the loud voices, that’s not fair.  Though it is incumbent on women in power to promote the work of other women.”

Personally, I don’t think that there’s a cabal with secret handshakes etc.  That sounds way too organized.  But what Mr. Doyle is talking about here is the existing network and it is hard for newcomers to break into it or to move up within it.  We each have to find our own way – whether it’s growing a pair and getting loud or just figuring out how to network better.  I have enjoyed the mentoring and support from some terrific women and I think I’ve turned around and done the same for those who have followed after me.  But I’ve been in this business for 25 years and while there has been progress (oh, the stories I sometimes tell to the younger ones), we clearly need to do something more concrete to speed up the pace of change.  Until we can say that those who create our stories are representative of our society, we need to keep shining a light on the problem and talking about solutions.

Don’t even get me started on diversity!  [actually – I will tackle that but it’ll be the subject of a later post].

The last word today goes to the brilliant (yes – I’m a fan) Joss Whedon, interviewed about his “Much Ado About Nothing”:

Why do you think there’s a lack of female superheroes in film?

Toymakers will tell you they won’t sell enough, and movie people will point to the two terrible superheroine movies that were made and say, ‘You see? It can’t be done’. It’s stupid, and I’m hoping The Hunger Games will lead to a paradigm shift. It’s frustrating to me that I don’t see anybody developing one of these movies. It actually pisses me off. My daughter watched The Avengers and was like, “My favorite characters were the Black Widow and Maria Hill,” and I thought, Yeah, of course they were. I read a beautiful thing Junot Diaz wrote: “If you want to make a human being into a monster, deny them, at the cultural level, any reflection of themselves.”

 

A New Co-Production Policy – What Do We Know?

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On March 7, 2013, during a speech by Parliamentary Secretary Paul Calandra to the CMPA Prime Time audience, the government announced that it would now be implementing its new film and television co-production policy.  Most of the audience went ‘huh?’ and a few directed the ‘huh?’ at me.

I don’t have all the answers but I’ve been able to dig up a few – sorry but it took me a while.

Here’s the context.  A new co-production policy framework  was released February 2011.   It basically said that after declining treaty co-production volume, the policy framework would set the big picture goal of making Canada a more desirable co-production partner.  Co-productions bring more foreign investment to Canada and make it easier for Canadian productions to get access to foreign markets.  The industry was asked to consult on the implementation of that new policy framework – the details of how it would be accomplished.  There were questions and possible solutions that we were asked to address such as lowering the minimum participation from Canada, a new set of minimum key creatives and frequency of review (I’m going on memory as none of the materials are on the Heritage site any more).   These details would inform the specifics of each treaty as it gets renegotiated or for the negotiation of new ones.   That was another question – should Heritage start implementing the new policy with new negotiations or by updating the existing treaties.

So when I heard that the new policy would now be implemented I went to look for the details of the implementation.  Perhaps there would be a report that said how the industry consultation had been considered, or not.   There is not.  Heritage staff advised me that details on the provisions of the proposed treaties (one of the more significant aspects of implementation) cannot be released as they could jeopardize or confuse negotiations.  Heritage did release today a document entitled:  “Selection Criteria for entering into negotiations or renegotiations for an audiovisual coproduction treaty with Canada” and it provides a little more insight.

A treaty agreement governs how the two countries which are party to the agreement will treat a co-production and what the minimum requirements are for a co-production to be eligible.  The primary benefit is that the co-production can be treated in each country as a domestic production, qualifying for support and meeting quotas.

The new treaty agreements will be more conceptual and less detailed than the existing agreements so that they can be more easily amended to adapt to changing production realities and to allow for more negotiation flexibility between co-production partners.  I honestly do not know what this means in reality.  In theory it makes sense because amending a treaty agreement between two governments is very time-consuming and complex but there is still a risk that too much has been left outside the agreement.  We just don’t know yet.

The new rules will not come into play until new treaty agreements are negotiated.  The Selection Criteria document says that the government will prioritize countries with a strong track record of co-production, with government support for co-productions, are good trading partners for Canada, are in a position to offer opportunities to Canadian productions and a variety of other factors.  In reality I think that means UK, France, Germany, Australia and Ireland to start but there are so many factors including ‘have a significant demographic presence in the Canadian population’ that they could throw India or China into the top list as well, even though there hasn’t been the same volume of co-production with those countries.

All we appear to be able do at this point is wait for new treaties and revised treaties to be announced and compare them to the old treaties.  Most (but not all) treaties follow the same format and terms and conditions.   If you are considering a co-production right now I would suggest checking in now and then with Telefilm (who administers the treaties on behalf of the government) to see if there is a new governing treaty that might change the rules that govern your project.   But it won’t happen any time soon – treaty agreements are notoriously slow to negotiate and ratify because they are agreements between two governments.

And for those of you who are wondering if this new policy or its implementation will have any impact on the number of minority co-productions on the CBC?  Wrong venue – that’s an issue for the CRTC which may end up being part of their upcoming licence renewal decision.