Assessing the act

Canadian Media Producers Association

(CMPA) PRESIDENT AND CEO Reynolds Mastin has had “many conversations over many months” with Heritage Minister Pablo Rodriguez, his political staff and officials in his department about the urgent need to update Canada’s Broadcasting Act, which was introduced more than 30 years ago – long before “Netflix” entered the lexicon.

Those conversations paid off when Bill C-11, also known as the Online Streaming Act, received royal assent in April after some back-and-forth amendments between the House of Commons and the Senate.

Mastin says he believes the amendments to the Broadcasting Act – which include recognizing the online transmission or retransmission of programs as “a distinct class of broadcasting undertakings” – will provide the CMPA’s 600 film-and-television producer members with more of a level playing field with such foreign streaming giants as Netflix, Disney+ and Prime Video.

“The bill provides a legal framework that will facilitate investment in Canadian content’s production, which is a very positive development,” says Mastin, a lawyer who previously served as the CMPA’s chief negotiator and chief legal officer. “What remains to be seen is the level of that investment and what the terms of that investment will look like.”

Bill C-11, as outlined, will require digital streaming platforms to “contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming,” akin to how domestic broadcasters are currently regulated.

Mastin expects that guidance on how that money is to be disbursed will be addressed in the policy direction Canadian Heritage will send to the Canadian Radio-television and Telecommunications Commission (CRTC), which will then implement a regulatory framework following public consultations.

Those consultations will cover topics including what should qualify as Canadian content. Brad Danks, CEO of Vancouver-headquartered OUTtv Media Global, expects that Cancon will become the “battleground” that emerges from the Online Streaming Act.

“Some streamers have already said they’ll make Canadian shows here, but they want to own them,” he says. “However, the core value of Canadian content has been the ownership that has built Canadian companies.”

The CMPA is preparing a proposal to the CRTC on what it sees as the appropriate distribution mechanisms for the new investment from foreign streamers.

“The two key criteria we’re using are: which mechanisms are going to ensure the greatest level of investment and the most impactful terms of the investment so Canadian production companies are able to work with Canadian talent, broadcasters and foreign streaming services to create great IP [intellectual property] and that production companies are able to meaningfully control and monetize that IP,” Mastin explains.

Canadian producers, he says, “will do everything they can to leverage that investment to create the most compelling Canadian content out there.”

“The Broadcasting Act is there in part to serve policy objectives that the market all by itself doesn’t achieve,” says Mastin.

“That’s why the focus in the policy direction has to be on requirements to fill the gaps that the market cannot or does not fill by itself, rather than incentives, such as tax credits,” he says, adding that CBC’s Heartland (Dynamo Films, SEVEN24 Films) is “a great example of a series that benefited from Cancon rules and has gone on to huge global success as the 13th-most-streamed show in the U.S. last year, according to Nielsen, beating out The Simpsons and Friends with over 18 billion minutes streamed.”

The CMPA applauded the government for including one provision – subsection 10.1.1(a) – in C-11 “that will go a long way to ensuring that Canadian independent producers have meaningful ownership and control over their own IP when they partner with Canadian broadcasters or foreign streaming services,” explains Mastin.

He says the CMPA is also working with Canadian Heritage officials to ensure that the government’s instructions to the CRTC “mitigate any potential unintended consequences from the two-tier framework in the bill.”

Subsections 3(1) (f) and (f.1) of Bill C-11 will hold foreign streamers to a “lower standard” than Canadian broadcasters and “result in foreign streamers using fewer Canadian creators in the production of Canadian programming,” according to the CMPA.

The two subsections would require “each Canadian broadcasting undertaking” to “employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources in the creation, production and presentation of programming,” while “each foreign online undertaking” would only be asked to “make the greatest practicable use.”

Neal McDougall, assistant executive director at the Toronto-based Writers Guild of Canada (WGC), says there remains concern that “those subsections could be misinterpreted to allow foreign streamers to make so-called Canadian content without using a meaningful level of Canadian creators, including screenwriters.”

“The streamers can be expected to look for as much flexibility in the definition of what Canadian content is as possible,” he says. “If that were to be granted, it would be a complete gutting of the purpose of C-11.”

However, John M. Lewis, director of Canadian affairs at the International Alliance of Theatrical Stage Employees (IATSE), says C-11 must contain flexibility in order to recognize the unique business models and content strategies of foreign and domestic players. “Section 3(1) (f.1) deals with how foreign and domestic entities are different and this must be considered when determining how each is treated,” he says.

It’s also “simply not realistic” to require foreign entities shooting in Canada to meet the same bar as domestic companies for the use of Canadian talent, says Lewis, whose union represents members employed by both domestic and global entities in Canada.

“Whenever foreign entities can use Canadian talent, they do. From a purely financial standpoint, it makes far more sense to use local talent whenever possible,” says Lewis, who also posits that “global studios and streamers are expanding the availability of Canadian-owned content, generating new audiences, revenues and discoverability for Canadian creators and producers of that content.”

Lewis also points to the high number of jobs that foreign service work provides in Canada’s film and TV industry (in the CMPA’s Profile 2022 report, it accounted for more than 141,000 jobs out of a total of nearly 241,000). “Making changes to the status quo will endanger the industry that we’ve worked very hard to build,” he says.

WGC president and screenwriter Alex Levine says that notwithstanding the “problematic language” under section 3(1) in C-11, he is optimistic that the federal government will, in its policy direction to the CRTC, “continue to recognize the primary place of Canadian creators in the making of Canadian content” to facilitate “a robust Canadian production sector.”

“That can’t happen in the new playing field with the streamers dominating eyeballs unless this bill does what it’s intended to do, which is to continue to place Canadian creatives at the centre of Canadian content,” says Levine, a writer and co-executive producer of the Emmy Award-winning, Toronto-shot sci-fi series Orphan Black, produced by Temple Street Productions (now folded into Boat Rocker Studios).

“[Orphan Black] was made by a Canadian production company that benefited from the success of that show and is continuing to invest in the Canadian production sector with new Canadian programming. The money isn’t just flowing out of the country,” he says, noting that Boat Rocker’s latest TV series, Global’s upcoming Robyn Hood, includes Orphan Black’s Chris Roberts as lead writer and showrunner.

“That’s the way this business is supposed to work. You’re supposed to grow your talent, and keep the money and the opportunities and the jobs in the country.”

While foreign streamers, such as Netflix, Amazon’s Prime Video, Paramount+ and Disney+, have set up shop in Canada “because they recognize there’s opportunity here,” says Levine, “I also think they know regulation is coming and they’re putting their best foot forward to say, ‘Hey, we’ll do business here.’”

“What they really are saying is, ‘We don’t want to be regulated or forced into any decision.’ However, that is not a sustainable plan. We can’t rely on the goodwill of these behemoths from the south to come up here and keep our industry afloat. We have to have regulations that protect our production sector from the whims of the executives in Hollywood,” he says, noting that Canadian screenwriters only work on Canadian productions, unlike the other guilds that continue to work on service productions, the scripts of which “are all written in Hollywood.”

“For Canadian screenwriters, this is an existential issue – and the government has to do something to ensure that Canadians can grow up to be screenwriters and the future

Sara Polleys of the world can receive Academy Awards,” says Levine of Polley’s Best Adapted Screenplay Oscar win this year for U.S. feature Women Talking, which she also directed.

The two-tiered “existential crisis” is one some creators have felt for as long as the Broadcasting Act has been enacted. “Indigenous creators have been living in a twotiered system since colonization,” Indigenous Screen Office (ISO) CEO Kerry Swanson said at the CMPA’s Prime Time conference in February. “The current Act deems special status to Indigenous peoples ‘as resources become available,’ which sounds very much like ‘as best as practicable,’ doesn’t it?”

Some of those impacts are expected to be amended, as Bill C-11 includes language that supports the creation of programming by and for Indigenous, Black and other racialized communities.

“The new bill has the potential to transform the Canadian screen industry by requiring adequate support for Indigenous content creation, and for us at the ISO that means Indigenous-owned content,” said Swanson.

McDougall says the WGC will appear before the CRTC when it holds public hearings on C-11.

“We hope that the CRTC will create clear, black-andwhite regulations and rules requiring a certain amount of investment in Canadian content, which is defined in such a way as to include, to a maximum degree, Canadian screenwriters and other creators,” he says.

“Defining Canadian content is not an exercise in the abstract. It has a function, which is to determine eligibility for tax credits, funding and regulatory obligations, all of which have public-policy objectives to support Canadian creators, Canadian jobs and Canadian culture.”

Danks says it will be up to the CRTC to determine whether it’s time to update the definition of Canadian content. The Canada Media Fund is exploring that very subject matter with an industry-facing survey on how the current definition of Cancon should evolve with the passage of C-11.

“You’ve got two camps. There are Canadian producers and broadcasters who believe that Cancon mostly works since it’s been responsible for building the industry in many ways, especially with the implementation of the taxcredit system,” says Danks, referring to the Canadian Film or Video Production Tax Credit introduced in 1995.

“Then there are people who believe that any show with a Canadian theme should qualify as Canadian content. Does that mean we should give a 30% tax advantage to foreign entities if they’re doing that? We already have a productionservices tax credit for those programs,” says Danks.

He says he would like to see Cancon defined as “a program made with a significant amount of Canadian elements controlled and owned by Canadians,” the latter of which encompasses both copyright and distribution rights.

The Canadian Audio-Visual Certification Office has used the 6/10 points system based on the key creative functions that are performed by Canadians to determine the tax credit. Under that system, at least one of either the director or screenwriter positions (two points each), and at least one of the two lead performers (one point each) must be Canadian.

Of the six, out of 26, Senate amendments the federal government rejected was one that would have added flexibility to the definition of Cancon in CRTC regulation, reducing the prominence of such factors as to whether the content is owned by a Canadian independent producer or has key Canadian creatives involved.

“The principle that Canadian programs are first and foremost content made by Canadians is, and has been, at the centre of the definition of Canadian programs for decades, and this amendment would remove the ability for the CRTC to ensure that that remains the case,” the government said in response to amendments made by the Standing Senate Committee on Transport and Communications, which passed the upper house in February.

Lewis says the current definition of Cancon provides “no possible path to having these streamers show Canadian programming, because even if everything about a show is Canadian – the performers, writers, the directors, crew, storyline, shooting location – the program will still not qualify as Canadian if the IP is held by a non-Canadian entity.”

There are also gaps in C-11 regarding distribution, says Danks.

The bill will not enable the CRTC to set terms of carriage for an “online undertaking,” which will have to be negotiated in “good faith” with the likes of Prime Video and Apple TV+, both of which carry OUTtv programming.

However, the Online Streaming Act will require those aggregators to include Canadian services, the network head adds.

“This is a great start. Any Canadian service that’s going to survive needs to be on the platforms,” says Danks, who notes that it has allowed OUTtv to use its distribution revenue to create original programming.

“This bill, if the proper guidance is provided through the policy direction and then implemented by the CRTC, has the potential to serve the industry as well as the Broadcasting Act did when it was brought in back in 1991,” says Mastin.

“I am optimistic that the bill provides the tools that are necessary to ensure a great, bright future for Canadian content and enable the industry to best serve Canadian and global audiences.”

Congratulations to this year’s nominees, chosen by a prestigious international jury from entries representing 45+ countries.

See the full list & screen clips from all nominated shows:

Awards show at BANFF: June 12 @ 5:30 PM MT

Watch the live stream: @BanffWorldMediaFestival

June 11-14, 2023 banffmediafestival.com

BY MARK DILLON

ALTHOUGH ACTRA (THE ALLIANCE OF CANADIAN CINEMA, TELEVISION AND RADIO ARTISTS) HAS BEEN ENTRENCHED in the Canadian recorded media industries for 80 years, it must remain constantly vigilant on behalf of its performer members.

Even longtime deals are vulnerable, as with the collective National Commercial Agreement (NCA), which has existed in various forms for more than 60 years but is in need of re-upping. Last year, negotiations broke down with signatory advertising, marketing, media and PR firms represented by the Institute of Canadian Agencies (ICA).

“We are continuing this battle and we will persevere and come out on top,” ACTRA National president Eleanor Noble tells Playback. “As we love to say, ‘We’re easy to work with but we’re hard to fight.’”

Although the media landscape has dramatically evolved since ACTRA’s inception, such disputes have played a role in shaping the performers’ union into the organization it is today.

Such was the case back in 1961, when it was known as the Canadian Council of Authors and Artists (CCAA) and included radio and TV writers. A disagreement between the CCAA’s Toronto branch and other centres over commercial work led to an organizational overhaul and the emergence of ACTRA two years later, then known as the Association of Canadian Television and Radio Artists.

The country’s fledgling movie industry was soon addressed through collective agreements with the National Film Board of Canada and independent prodcos. (ACTRA incorporated the cinema sector in its name in 1984, also changing “Association” to “Alliance.”) A new deal was also reached around this time with CBC, which had been the nation’s dominant media player starting with its locally written, acted and produced radio entertainment programs dating back to 1936.

Performers in those days worked long hours and wore many hats, yet might only be paid around $15 (about $300 in today’s dollars) per show, according to ACTRA estimates. They could record a block of radio commercials and be compensated only $0.50 (worth $10 today) apiece, even if the spots ran for years.

Seeking improved pay and working conditions, performers in Toronto banded together in 1941 to form the union-like Radio Artists of Toronto Society (RATS), which was followed by the Radio Artists of Montreal Society (RAMS).

In 1943 a national coalition was formed when RATS and RAMS joined with like-minded groups in Vancouver and Winnipeg. The name was changed to the Association of Canadian Radio Artists (ACRA), an affiliation was forged with the American Federation of Labour (AFL) and the first collective agreement covering radio work was reached within a couple of years.

When CBC launched its TV network in 1952, ACRA talent was front and centre. Performers believed a new approach was needed for this new era, and so ACRA left the AFL, merged with the francophone Union des Artistes (UDA) and took on the CCAA moniker.

Conflict arose later in the decade when the French contingent supported a producers’ strike against CBC/Radio-Canada while the English did not, leading to the UDA’s departure from the CCAA in 1959.

Today, the union’s bargaining partners for film, television and digital media are the Canadian Media Producers Association (CMPA) and Association Québécoise de la Production Médiatique, which negotiate jointly. The Independent Production Agreement (IPA) establishes the terms, conditions and rates for Canadian performers, excluding B.C. and Yukon.

The current IPA is good through the end of 2024. With cameras rolling nationwide – CMPA’s Profile 2022 said Canada’s production volume was a record $11.7 billion –Noble says, “the state of the industry is pretty good.”

So while ACTRA will pursue the best possible terms for its members in the next round of IPA talks, she adds, “We are also always after safety protections on set. We’re looking for respect and dignity [for all performers].”

The union has made significant gains in this area, particularly regarding child performers. Ontario’s Protecting Child Performers Act became law in 2016 after years of lobbying by ACTRA Toronto and the Canadian Actors’ Equity Association, which represents live performers. The act ensures minors have some of their income put in trust, that their education is maintained, and that they have parental supervision.

“It regulates not just unionized performers, but all children working in the performing arts in Ontario,” says ACTRA National treasurer and past ACTRA Toronto president Theresa Tova, who had been working towards this goal since the 1990s. “The government has used our language. We created the template and they ran with it.”

In its negotiations over the NCA, ACTRA has accused the ICA of trying to cut rates and end retirement contributions and a benefit plan for its members who perform in TV, radio and digital advertising. It has also said the ICA is seeking the freedom to use union or non-union talent as it desires. For its part, the ICA says ACTRA has rejected or not responded to proposed scenarios including one that would see a pay raise for its members and another in which unionized talent would get all the work.

ACTRA called for a boycott of brands it says have commissioned non-union ads, including McDonald’s and Walmart, and its efforts seem to be paying off. Marketing and communications giant Cossette –which counts McDonald’s and Walmart among its clientele – subsequently signed a letter of continuance this past April, honouring the agreement that was in place for the rest of 2023.

Another hot-button issue has been the lack of proper training and materials for hair and makeup artists working with Black, Indigenous and people of colour performers. ACTRA filed a grievance against the producer groups and arbitration was to begin in May. The union’s efforts to level the playing field for visible minorities can be traced back to the 1990 launch of its catalogue promoting diverse talent, Into the Mainstream. (The database for all ACTRA members has since migrated to ACTRAonline.ca, with a special section for diverse performers.)

The initiative was led by the late Sandi Ross, ACTRA Toronto’s first woman and person of colour to serve as president. Jean Yoon, an ACTRA Toronto Award winner for her role as family matriarch Umma on CBC’s Kim’s Convenience, regards Ross’ work as impactful. Yoon has long been involved in helping foster opportunity for people of colour, starting in theatre.

“I avoided film and television out of anxiety of having to deal with systemic racism,” she recalls. “But with Sandi’s advocacy, I felt confident to move forward. That was my first contact with ACTRA, and as I became more successful in film and television, I became more involved through their professional development workshops, which are important in deepening our membership’s skill level and building cohesion in the union.”

Yoon later sat on the ACTRA Toronto Council and in 2020 was given the branch’s Award of Excellence, recognizing both her body of work and union activity.

Union branches can also be found in Vancouver, Calgary, Regina, Winnipeg, Ottawa, Montreal, Dartmouth, N.S., (representing the Maritimes) and St. John’s.

ACTRA National’s relationship with B.C. has a particularly rocky history. In the early 1990s, when powerhouse Hollywood creator Stephen J. Cannell was turning Vancouver into a hotbed of U.S. TV production with the likes of 21 Jump Street, local performers voted to establish the Union of B.C. Performers (UBCP) apart from ACTRA.

“We were frustrated as we didn’t feel listened to,” recalls Keith Martin Gordey, who back then sat on the ACTRA BC council and is current ACTRA National VP.

“Cannell coincidentally realized the IPA wasn’t enforceable in B.C., because labour law is a provincial matter and ACTRA was not a union in the province,” Gordey continues. “He said, ‘I’m not signing it,’ concurrent with our dissatisfaction. Things got political and a bunch of us got together and created our own union and the British Columbia Master Production Agreement.”

In 1994, UBCP joined the U.S.-based trade union Teamsters, which used its foothold in Canada to try to muscle in on ACTRA’s turf elsewhere. After a couple of years of conflict, B.C. lawyer Stephen Kelleher mediated a settlement that saw UBCP become ACTRA’s B.C. branch.

“It makes a lot of sense to have a national organization that functions well, because you’re better off with greater numbers of people working together,” says Gordey, who also served as UBCP/ACTRA president. “ACTRA’s structure had to change and it became an assembly of autonomous branches.”

Also seeking autonomy were ACTRA’s screenwriting members, who formed the Writers Guild of Canada (WGC) as a separate organization within the alliance in 1991, finally becoming independent four years later.

They both partake in the ACTRA Fraternal Benefit Society (AFBS), incorporated in 1975. A Canadian artist’s career is a fraught one. ACTRA says its 28,000 nationwide members earn on average less than $6,000 per year from performing, and so the AFBS looks to help with insurance and ever-important health-care benefits and retirement plan programs for ACTRA and WGC members.

ACTRA has learned over the years to use its members’ skill sets to its lobbying advantage. A watershed moment came in 2003 when notable actors including Paul Gross, Sonja Smits, Rick Mercer and Wendy Crewson travelled to Parliament Hill to ask the feds to reinstate money cut from the Canadian Television Fund.

“It’s so much more effective when you have an organization behind you,” Crewson says. “You’re all on message and you get the meetings with MPs. We did lobby work for a couple of years and that’s when I really saw the strength of the union.”

Crewson had been living in California and appeared in Hollywood blockbusters such as Air Force One (1997), but moved back to Toronto, where she has had an awardwinning run in Canadian series and TV movies. She received the ACTRA Award of Excellence in 2007.

At that moment, she recalls, “I decided that while I was at home most of the time, I could run for ACTRA council and really be part of it day to day.”

She remains active, and just last year was on a picket line on behalf of commercial performers in the NCA dispute. “For many of those performers, that work is a stepping stone into other things in the industry,” she notes. “They need to know the entire union is behind them.”

That’s the kind of unity Noble is proud to see. The national president is also pleased with ACTRA’s efforts on Bill C-11 – which gets international streamers to contribute to the Canadian system as local broadcasters do, and which became law in April – and how it has navigated the challenging past few years.

“We overcame COVID-19 and kept work going across the country,” Noble says. “We lobbied at the government level to make sure that performers who were not working were compensated for that time, when the government wanted a clawback on it. We fought again and we won that again.”

So while there is always a new obstacle to overcome, she says, “our members are in a secure place.”