Category Archives: Funding

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

Advertisements

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.

Prime Time in Ottawa 2019

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.

 

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.

New CIPF Regulatory Framework – But What Does It Mean?

Yesterday, August 25, 2016, the CRTC released its new Broadcasting Regulatory Policy (2016-343) – a Policy Framework for Certified Independent Production Funds (“CIPFs”).  There are some minor and major changes to how CIPFs will be managed and the kinds of productions they will be able to fund going forward.

First, the framework sets the rules for how a CIPF has to be set up in order to be certified by the CRTC.  A fund needs to be certified to allow BDUs to allocate some of their mandated contribution to it.  A fund does not need to be certified if it does not need or want those contributions.  For example, while the Independent Production Fund is certified as a CIPF, its funding is based on an endowment so its management is outside of this framework.  However, most of the CIPFs do rely on BDU contributions so will need to abide by the new framework.

There are two types of changes to the framework:  1) new requirements in order to be certified and 2) new permissions which a CIPF may wish to take advantage of.  With that in mind, let’s look at each of the changes in turn.

Requirement: Eliminate Licensed Broadcaster Commitment

Going forward, CIPFs must no longer require a broadcast licence or development commitment from a licensed broadcaster as a condition of funding.  This is to allow greater flexibility in funding by producers as they can access OTT services provided that those services are accessible to Canadians (so yes to Netflix Canada but no to Hulu).  However, tax credits still require a licensed broadcaster so there will not be many productions that will be able to take advantage of this new flexibility at the moment.  It may provide more opportunities for web series, however.  Additionally, CIPF funding is awarded as part of a subjective assessment and each one may decide that in its assessment it will reward a licensed broadcaster commitment with more points as evidence of greater potential audience.  It may be difficult, though not impossible, for a project with a non-traditional broadcaster to be competitive with projects with traditional broadcasters.

Requirement:  Redefining “new media project”

I find this one odd.  “New Media Project” has now been re-categorized as “non-programming digital content” by removing programming content such as webisodes from the definition.  While the Notice of Consultation asked intervenors to consider whether the current definition of “new media project” needed to be updated and many said that it did (mobisode anyone?), the CRTC makes no reference to any intervenor asking for “new media project” to be redefined in that way.

It is more troubling because those who work in interactive digital media (“IDM”) know that most IDM associated with television includes video content either as clips or even within the IDM.  Walls between forms of content are breaking down and this redefinition feels like a belated attempt to put up a wall that the industry does not need or want.  Those in Ontario are currently experiencing a similar challenge with changes to the Ontario Interactive Digital Media Tax Credit draft regulations which attempt to remove streaming sites from eligibility but went too far and remove digital media with any form of video from eligibility.  Standalone web series may still be financed through the change to the broadcaster requirement (and because IPF is outside this framework) but as the new definition (‘innovative projects such as story-driven videogames, interactive or customizable web content, apps and all other similar types of non-programming content’) is very brief it is not clear whether the inclusion of video within ‘non-programming digital content’ will exclude it from eligibility.

Requirement: Maintain cap of 10% on non-programming digital content

CIPFs were limited to spending no more than 10% of their fund on ‘new media projects’ or now ‘non-programming digital content’.  A number of the CIPFs wanted greater flexibility to allocate more or less of their funds to digital media while on the other side the broadcasters wanted to keep the cap to ensure that most of the funds stayed within the licensed system.  The cap is being maintained, though for the more restricted definition of non-programming content.

Permission:  Canadian content certification points

Sigh.  How many times do we have to talk about this?  OK, so the CIPFs can now fund projects with a minimum of 6 CAVCO points.  But will they?  The decision says, without evidence, that the current limit of 8 points ‘excludes many productions that could otherwise be of high quality and qualify as Canadian’.  What exactly isn’t getting funded?   Bueller?

For those of you who were around during the Canada Media Fund review in 2008 (which excludes all of this current Commission), you will recall that when parties argued that CMF needed to lower its point count because lower point count shows would sell better, lots of evidence was presented to show that in fact 10/10 point Canadian programs sell better than 6 point (what we used to call ‘industrial’) programming.  It is hard to get more Canadian these days than “Murdoch Mysteries” and it sells all around the world.  When we used to produce a lot of 6 point productions there was a market internationally for “Andromeda” and “Mutant X” but it has pretty much dried up as international markets focus more on domestic production.  A high quality production that reflects a distinct domestic voice such as “Murdoch Mysteries” or “Motive” but also “Doctor Who” or “The Bridge” or “Wentworth” sells better internationally. It just does.

On a more practical note, how will these 6 point projects get financed?  For one, CMF still requires 8 points. Will the 6 point projects be competitive in the selection process with 8 and 10 point projects with greater sales potential?  A key sentence in the decision is “CIPFs will continue to have the discretion to finance the productions of their choice, based on their expertise and measurements of success”.  So only time will tell as to whether this change will have any real impact.

Permission:  Eligibility of Co-Ventures and Co-Productions

While the discussion in the decision is about treaty co-productions and co-ventures, the actual decision is only about co-ventures, this current Commission’s pet project.  This is probably because treaty co-productions are not actually ineligible for CIPF funding, though the CIPFs have rules to ensure that only majority Canadian co-productions benefit from Canadian funding.  Co-ventures have not been eligible.  Few productions use co-ventures (a system that allows Canadian producers to partner with non-treaty producers, i.e. from the U.S.) because they are too hard to finance. As well, the control that is then given over to the U.S. partner is not that attractive.  The Canadian partner must have 50% of creative control and profits but realistically co-ventures are U.S.-driven projects.

Time will tell whether CIPFs will actually allocate more funds to co-ventures or whether this is flexibility they really did not want or need.

Permission: Script and Concept Development

Previously, the requirement for a broadcast licence prevented CIPFs from funding early stage development except through non-BDU funds (i.e. endowments).  The removal of the requirement for a broadcast licence automatically frees up CIPFs to allocate more funds to early stage development, or even slate development, if they so wish.

Permission:  Promotion Funding

CIPFs have not been able to specifically fund promotion, an increasingly important part of any production in the crowded marketplace.  However, the CIPFs have limited funds and many stakeholders are concerned about money being reallocated from production to promotion.  It is therefore up to each CIPF as to whether it wants to reallocate any of its limited resources specifically to promotion.

Requirement:  Measurement of Audience Success

CIPFs each make subjective assessments of projects and decide to fund the ones that meet their criteria, including the greatest potential for success.  CIPFs were concerned that any formalization of that process would impede the subjective analysis but also attempt to standardize what are inherently non-standard funds which cover many different niches of programming and audience.  The CIPFs are likely relieved that the decision is instead to require the CIPFs to report on the audience success criteria used rather than to change them in any way.

Requirement:  Accessibility

CIPFs will now have to ensure that all programming that they fund is closed captioned and includes described video.  They are not required to fund it but to disclose it.  While broadcasters require closed captioning and described video, by requiring CIPFs to ensure that a project has it before it is funded, the theory is that this rule will ensure that productions are developed with accessibility guidelines in place rather than dealt with after the fact in post-production.  This will have little effect on CIPFs except as a check box on their application form but may have a positive effect on production planning for accessibility.

Requirement:  Reflection of OLMCs

There are no requirements currently to reflect in any way Official Language Minority Communities (OLMCs).  The new framework will require that one person on the selection committee for a CIPF will be responsible for ensuring that OLMCs are properly reflected in decision making.  Annual reports will now have to track OLMC projects.  There is no quota system so it is not clear how the Commission will define ‘properly reflect’ and what penalty there might be.  Many CIPFs already fund OLMC projects on a regular basis so this may only be an added reporting requirement.

Requirement:  Governance

The Notice of Consultation hinted at possible major changes to the governance of the CIPFs, which worried many intervenors who could not see any problems that needed to be fixed.  However, with vertical integration there were some concerns about how the Boards of the CIPFs were constituted in order to ensure that they remain independent of their contributors.  Two thirds of Board members must now be independent, rather than previously no more than one-third could be members representing BDUs.  The definition of independent excludes employees, officers, directors etc. of a contributor or its affiliates.  For example, an employee of CTV would be independent of Bell under the old rules but not under the new rules.

Additional wording was also added to the conflict of interest language to require that decisions are made ‘absent of actual or perceived conflicts of interest’ but without setting any specific criteria to abide by.

Requirement:  Reporting

While most CIPFs publish annual reports there was no requirement to do so nor any criteria for those reports.  This is now standardized with few additional criteria beyond what most CIPFs already report on.  They will also have to submit audited financial statements.  The Commission understands that this could be an administrative burden for smaller funds which might not be able to cover the cost of an audit, particularly with the cap of 5% on administration costs.  These smaller funds can apply for an exemption from the audit if they can prove it would be unduly burdensome.

 

This revised policy framework will go into effect September 1, 2016 however it will take time for the funds to review and implement the changes into their guidelines, and have those changes approved by their boards.  There are no transition rules so it is not clear how quickly the CIPFs will have to change those parts of their guidelines that must change, before the Commission declares them offside of the new policy framework.  The only real penalty is being de-certified so hopefully the Commission will give the CIPFs at least one fiscal year to implement all the necessary guideline changes and possibly even board changes.

Dueling Industry Conferences

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.

CMF Consultations – Should You Care? Yes.

The CMF Consultation Tour for 2015 launched yesterday with the ‘focus group’ in Toronto.  There will be a road show across Canada as well as topic-specific Working Groups for representatives of industry stakeholder groups. You can see the tour schedule and a copy of the presentation deck here.   As well as in person feedback you can send in your thoughts in a letter or more formal submission or you can tweet feedback using the hashtag #cmfconsults.

Why should you care?

Every two years CMF has a major consultation to inform any necessary changes to their two-year guidelines.  The consultation tour and the Working Groups are a great opportunity for the various stakeholders to get into a room, air their issues and hear the perspectives and explanations of both other stakeholders and CMF staff.  It is also the best opportunity for CMF staff to hear about how their programs are working or might need to be tweaked.

This year though, the CMF is taking on an additional task.  We all know change is coming to how Canadian programming will be funded brought about by changing audience behaviour, technology, business models and regulation (i.e. Talk TV), which will likely all lead to reduced revenues to Canada Media Fund and possibly to broadcasters as well.  Rather than wait for these changes to have a major impact (they have already started) CMF has started thinking about what changes they need to make to stay relevant.  This started with an internal visioning exercise which has resulted in a few new concepts which they would like feedback on from the industry.  Word of warning though – major changes cannot be implemented without the agreement of Heritage because of the limitations contained in the Contribution Agreement between Heritage and CMF, limitations such as requiring broadcast triggers for funding.  It is unlikely that Heritage will agree to major changes in CMF during an election year or during what we all expect to be a minority government.

If little can be done now, then why have this process?  It is actually rare in our world for a funder to look ahead, think about how they need to adapt, and ask for stakeholder input on their ideas.  Even if CMF might only be able to make minor changes this year, if they have a strategy they can make those changes consistent with that strategy.  What a concept! [Oh, for a National Digital Strategy!]

I encourage you therefore to check out the presentation deck and either through your organization or individually share your thoughts with the CMF.  To get you started, here are a few of the highlights from yesterday’s consultation.

The top goals that the CMF sees for this exercise are that the CMF should:

  • support a wider array of linear and interactive content;
  • increase the focus on supporting landmark content; and
  • implement an approach based on supporting content along a continuum, from emergence to growth to sustainability.

Right away I know you are reacting to some of those words but hang on.  The next step in the exercise is to look at those outcomes through the CMF’s three activities:  foster and develop, finance and promote.  The result is a very dense slide (slide 35) of program verticals, targets, project types and objectives.  I’ll try to summarize it.

Going forward, expecting less revenue, the CMF would like to focus on ‘landmark content’ to maximize their resources where they will have the greatest impact now with audiences and with ongoing revenues.  They want to support production companies through the three stages of emergence, growth and sustainability so move beyond just project-specific financing to help the industry reach sustainability.  Project-specific funding should eventually be regardless of platform.  CMF has a role to play in promoting Canadian programming and financing the increased need for promotion in the crowded media landscape.

A lot of time during the consultation was spent on this new concept of ‘landmark content’ and how it differed from what CMF currently funds (i.e. who is going to lose out) and how the definition might need to be adapted depending on genre (i.e. kids or documentary) or platform (i.e. television or videogames).  It wasn’t clear to anyone there who would determine what is ‘landmark’, particularly since ‘high potential for success’ is a rather subjective concept.  Someone in the audience suggested that ‘landmark’ should mean popular like “Big Bang Theory” but the CMF seems to be going in the direction that it means much more than just audience size but also critical acclaim, international sales, longevity and as well popularity within a niche audience.   Feature film, documentary and interactive producers in the room were particularly concerned about what this definition might mean for their sectors.  Even the drama producers, who probably have a better idea of how ‘landmark’ might be defined for them, were concerned that there would be enough development money to ensure the creation of ‘landmark’ content.

A platform-agnostic approach would mean the ability to fund digital-only (or first) linear video content or web series.  Currently only IPF and Cogeco fund web series and they have limited funds and support only some genres.  The CMF can see a role for itself here but needs input on what it should fund and how, if it were to be able to fund web series.  Remember – there’s that pesky Contribution Agreement requiring broadcast triggers.

I found the discussion about potentially moving beyond project-based financing to be very interesting.  The CMF is exploring the idea of slate development or production financing, corporate financing based on a business plan, more financing for marketing and promotion and export development.  Last winter I did some research on different forms of ‘enterprise financing’ in different jurisdictions so I know that this is definitely a timely consideration as funding agencies around the world are trying to supplement traditional project financing with targeted financing that will build the businesses and help create stable and sustainable sectors.  There are many different ways that this could be done with different measurements of success (i.e. revenue generated, jobs, exports, production growth etc.).  If revenues to CMF are going to dwindle with no replacement regime in sight*, then it makes a lot of sense to help businesses need less (not no) government support.

There are no quick fixes to these issues and lots of potential for damage if the wrong decisions are made or impact is not fully thought out.  This is a great opportunity to be part of the planning.  I encourage you to read the materials, attend consultation sessions, ask questions and of course, tweet.  I’ll be following along with great interest.

*In a timely tweet an FCC Commissioner shared a blog post about New Zealand considering imposing a sales tax regime on Netflix, which would be a first step towards confirming that the CRTC had jurisdiction to impose a contribution regime on Netflix and similar non-Canadian OTT services.