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.
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.
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.
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.