WITH THE REVIEW OF the Broadcasting Act (Telecom and Radiocom, too) now under way, as was announced Tuesday, we’re all very anxious to hear what Heritage Minister Mélanie Joly will have to say about it this weekend when she addresses the Banff International Media Fest (Cartt.ca will have a reporter in the room, of course).
Now, since we’re looking at at least another year of discussion and debate, the best course of action to solve such tricky and complex policy challenges is to ask (and answer) the right questions in the right order – and right now. I’ve thought of five extremely important questions which should be answered first, ahead of anything else. I would argue much of the discussion around proposals such as combining the two Acts should come well down the road and after we address these more fundamental issues. I outlined question number one earlier this week, and here’s the second important one.
2. What are the “Elements” of The System?
Let’s start by considering what today’s system has as elements. Keep in mind the Broadcasting Act requires each element to contribute to the creation and presentation of Canadian programming, so I’m going to look at this question broadly and what I say may surprise you.
It is quite obvious all of the licensed public and private, English and French conventional broadcasters, pay and specialty services and the cable and satellite distribution services are elements, and it is fairly clear what their respective contributions are, along with the regulatory history that generated these contributions.
Moving to the independent production community, the Act requires that it make a “significant” contribution and it has done so by producing the vast majority of the long form programming that the system is designed to deliver. Clearly therefore, an element.
The Canada Media Fund is supported by contributions made by cable and satellite distributors, required by CRTC regulation. It’s also supported by a contribution from the Department of Canadian Heritage. To my mind the Fund is a definite element.
The various Certified Independent Production Funds (such as the Shaw Rocket Fund and the Bell Fund) were not only established as a result of the regulatory “benefits test” on transactions, but they are structured and operate under a regulatory policy designed to ensure that they make a robust contribution to the production of Canadian programming. All are contributing elements.
The unions and guilds contribute the creative talent to make all this production possible. Elements all.
What about the American border stations? This is trickier. I’d argue they are an element and that their contribution is the hit they take under the simultaneous substitution regime, and the Canadian tax rules on advertising on these services where any Canadian companies who choose to advertise there can not claim is as tax deductible. What about foreign specialty services? Their contribution lies in the requirement applied to Canadian BDUs to use the two minutes of local avail ad time per hour to instead promote first run original Canadian programming, in barriers to competitive genre entry, and the continuing “preponderance” rules about packaging them with Canadian services.
We could go even more broadly and add all the Provincial development agencies such as the OMDC, Creative BC, SODEC, the Federal Department of Finance and the Provincial Ministries of Finance supporting programming tax credits. Each of these has a claim as an element of the broadcasting system envisaged by the Act.
Who does that leave out? Well, the elephants in the room of course are the foreign owned streaming powerhouses, principally Netflix, and the Canadian ISPs which deliver that online content. What to do about all that is the topic du jour.
Watch this space next week when I tackle question number three: What do we do with the Digital Media Exemption Order?
Doug Barrett is a veteran of over 30 years in the Canadian media and entertainment industries and since 2008 a professor in Media Management Schulich School of Business of York University. He is also the Principal of Barcode SDG, a strategic advisory firm. He was also president and CEO of PS Production Services from 2006 to 2013 and prior to that spent 20 years as one of Canada’s most successful entertainment lawyers, serving as senior partner at McMillan LLP. From 2004 to 2008, he served as chair of the board of directors of the Canadian Television Fund. He has also served on several additional industry boards, including the Banff Television Festival, the Feature Film Project of the Canadian Film Centre and the Canadian Film and Television Production Association. He was also a key founder of the Alliance Atlantis Banff Television Executive Program.
(Ed note: Doug knows what he’s talking about and has spent a long time thinking about this industry. His next three questions are important and enlightening.)
Original artwork by Paul Lachine, Chatham, Ont.
