COMMENTARY: Rethinking Canadian Content in the Post-C-11 World

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By Howard Law

HERITAGE MINISTER PABLO RODRIGUEZ has promised a CRTC policy directive to implement Bill C-11’s broad mandate to integrate foreign streaming platforms into our national agenda for creating, funding and promoting Canadian content.

C-11 has now passed second reading in the House of Commons and is on its way to the Heritage Committee for amendments and further debate. It is time for the minister to table a draft directive.

What should be in it?

The minister said he is open to strengthening the definition of Canadian content, currently codified by the CRTC, the Canada Media Fund and the Heritage Tax Credit Office (CAVCO) as being entirely dependent on hiring Canadians in key creative roles and, most importantly, keeping copyright in the hands of Canadian producers.

A number of industry commentators, as diverse as Friends of Canadian Broadcasting and former CRTC Chairman Konrad Von Finckenstein expressed support for the UK approach which sees genuine national themes as important as hired ones.

The next question is money. The Liberals have suggested that including foreign web giants in the act could inject $800 million a year into our broadcasting system. That money would more than offset the $400 million decrease over the past six years resulting from former CRTC Chairman Jean Pierre Blais’ refusal to end the Commission’s regulatory exemption for Netflix and its fellow broadcasters. continuously.

This amount of money can do much more than just “save” Canadian content. It boasts of the promise to make it that much better by funding shows with multimillion-dollar episode budgets and global distribution.

But there is a catch. Should Netflix (and Disney+, Apple, Amazon, etc.) just write checks to Canadian production funds to fund shows made by independent Canadian producers? Or should we rather give free rein to Netflix to create its own “Canadian content”?

Think about what that last option would look like: outsourcing the creation of Canadian content to major American studios that monetize their shows for global audiences. Is Netflix likely to create Canadian programming so authentic and so tailored to the Canadian experience that it might not appeal to global audiences? Or would one expect minimal compliance with Canadian content rules?

The purpose of the Broadcasting Act is not to imitate American content, even if that makes it more easily monetizable outside our borders: it is to make Canadian programs that will satisfy Canadians.

The “Netflix contribution” cannot be a result. Foreign web giants will have to participate in our system by doing both: writing checks to guarantee Canadian content created by Canadians while producing their own big-budget Canadian shows that travel well beyond our borders.

Not only is this a defensible cultural policy, but it should also respect international trade commitments that might otherwise be violated if Netflix were prevented from tapping into a Canadian film fund to make its own films while being forced to write checks to this same fund.

It should be noted that Canadian media companies already have this dual obligation: as cable operators, writing checks to the Canada Media Fund, community television and the Independent Local News Fund, while as broadcasters , making Canadian news, sports and entertainment either in-house or purchased from independent Canadian producers.

Crafting what that looks like in a post-C-11 world should be enabled by broad language in Rodriguez’s policy directive, but fine details are best left to public consultation led by the CRTC.

Here are some possible outcomes, however.

There is no way that Netflix and the other American studios will tolerate, in addition to writing a check to the film production funds, being prevented from owning the copyrights and the worldwide distribution rights to the very expensive Canadian films that They will do. They probably have commercial law on their side, so dictating terms to them is risky.

On the other hand, giving Netflix exclusive copyright to the Canadian shows they make is nothing less than outsourcing our cultural policy to Hollywood.

There may be a pragmatic solution: allow Netflix to split the copyright up to 50/50 with Canadian producers. This is not a completely new concept: our treaty-based co-production rules already allow Canadian producers to share worldwide copyright and exploitation rights with foreign (non-US) producers to make shows that are eligible for Canadian content funding, but are often unrecognizable as Canadian culture. .

Finally, the strategic direction should give the CRTC the mandate to shape a stronger local news fund using the extra money. Canadian media companies are already doing this: directly through CRTC regulations on local news spending or indirectly by contributing to the Independent Local News Fund. It would also be Netflix’s fair share to write a check.

Howard Law was director of local media unions for Unifor from 2013-2021. He now blogs at mediapolicy.ca.

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