By Ahmad Hathout
The Canadian Media Producers Association (CMPA) is asking the Federal Court of Appeal to review the 20 per cent minimum copyright ownership threshold set by the CRTC that the creative group argues fails to give Canadians effective control to exploit their works as required by the law.
The trade group, which represents over 600 creative companies, argues in a leave application filed late last week that the regulator, in its November 18 decision defining “Canadian” programming, did not explain how that minimum 20 per cent Canadian control over the intellectual property translates to Canadians controlling and benefiting “from the exploitation of their programs in a significant and equitable manner,” as required by section 10 (1.1)(a) of the Online Streaming Act.
Subsection 10 (1.1)(a) stipulates that the CRTC “shall consider … whether Canadians, including independent producers, have a right or interest in relation to a program, including copyright, that allows them to control and benefit in a significant and equitable manner from the exploitation of the program.”
By only setting a minimum ownership threshold, the CMPA argues that the CRTC failed to satisfy this part of the law.
“By failing to undertake the full assessment, the Commission adopted a definition that allows copyright in name only to satisfy subsection 10(1.1)(a), even where the copyright owner lacks any practical ability to exploit a program through revenues, markets, profits, or associated rights,” the CMPA argues.
“Nowhere else in the federal policy framework does mere copyright ownership suffice or satisfy Canadian programming requirements,” it continued. “Exploitation is not incidental; it is the means by which Canadians build sustainable businesses, generate cultural and economic value, and which helps to advance the cultural, industrial, economic and competition policy objectives of the Act.”
The CMPA said the CRTC’s definition of Canadian programming interacts with federal funding systems, including Telefilm Canada, the Canadian Audio-Visual Certification Office (CAVCO), and the Canada Media Fund (CMF), which form an interconnected policy that serves to assist the industry.
But while these systems lay out mandatory Canadian copyright ownership and the ability to exploit the works through comparable shares of revenues and profits, the CMPA argues the CRTC only put in place a minimum threshold for ownership.
“Taken together, and informed by the legislation history of section 10(1.1), these instruments reflect a coherent federal policy: Canadian intellectual property ownership in a program must be paired with the ability to control and exploit those rights and interests in a ‘significant and equitable manner,’” the CMPA argues.
The CMPA said it, and others, also argued during the consultation period that the commission needed to impose a copyright retention period in order to properly “exploit” the programs, but it did not do that. Intervenors in the consultation phase argued for a 25-year retention period to align with CAVCO.
“The term of copyright retention by Canadians matters,” the CMPA argues in the leave application. “It ensures that Canadians maintain meaningful control over their programs. Contrary to the Commission’s conclusions, without a retention period, Canadians have no practical or lasting ability to exploit a program. This consequence does not satisfy the statutory requirements in subsection 10(1.1)(a).”
The organization said it had presented the regulator with evidence during the proceeding that emphasized that copyright ownership was important to meet the objectives of the Online Streaming Act, and that “Canadian producers face a significant bargaining-power imbalance with broadcasting undertakings, an imbalance that is amplified when dealing with foreign online undertakings.”
The CMPA said the CRTC allegedly failed to fulfill the mandate imposed on it by the Online Streaming Act and the cabinet direction.
The filing came on the 30-day deadline to file challenges to the CRTC’s November decision, which was also challenged by foreign streamers on the basis that it is forcing disclosure of certain financial information they deem competitively sensitive.
Screenshot via CMPA
