Radio / Television News

COMMENTARY (part three): C-11 must ensure Canadian screenwriters aren’t left behind

This is the final installment of a three-part series. For part one, please click here and for part two, please click here.

By Neal McDougall

IN THE FIRST part of this series, I described the foundationally important role of screenwriters in the creation of serialized scripted television, and how Canadian screenwriters must be central to the definition of Canadian content. In the second part, I explored three common arguments on the definition of Canadian content that miss the mark. In this third and final part, I will describe how all of this links to Bill C-11 and the broadcasting system we’ll need going forward if we truly want to support Canadian creators.

The six-point system

The current definition of Canadian content, both for the purposes of broadcasting regulation and for eligibility for the federal Canadian Film or Video Production Tax Credit, includes obtaining a minimum of six out of a possible 10 points for key creative positions on the “CAVCO Scale.”

Under the CAVCO Scale, a Canadian director earns two points, Canadian screenwriters another two points, the top two highest-paid performers get one point each, and then one point each is allocated for a Canadian director of photography, editor, music composer, and so on. Currently, to be certified Canadian, a production must obtain at least six points, and at least two of those points must come from the director or the screenwriter position. The scale works the same for feature film and television.

This means that it’s possible for a television series to be written entirely by non-Canadians and still count as Canadian. Importantly, it also means that all Canadian television programs could be written by non-Canadians and still count as Canadian. There is no requirement for system-wide “balance” in which roles are going to Canadians or non-Canadians.

As I argued in part one, in serialized television, the creative driver of the production is the showrunner and the screenwriters working with them. Yet under a six-point definition of Canadian content, this role could be replaced with non-Canadians system-wide. Theoretically, the six-out-of-10-point system allows a variety of different combinations of Canadian and non-Canadian key creative talent.

In reality, however, certain roles are more vulnerable to being replaced with non-Canadians than others. It is common knowledge in our industry that when financing Canadian productions, amongst the first creative roles that international financiers and content commissioners will look to fill with “international talent” are the screenwriter(s) – that and the lead performer(s). Financiers seek to determine creative control, and they seek marquee name recognition of global, usually American, stars.

After that, streamers and broadcasters are often quite happy to fill other roles with Canadians, because they simply do not drive the creative vision of the show like the showrunner and the writing room do. And there is nothing to prevent this from becoming a system-wide issue for virtually every show.

Up to now, policy makers may have comforted themselves with the fact that, by some metrics at least, this potential imbalance has not actually become a reality. According to Profile 2021, 77% of Canadian television production received 10 out of 10 Canadian content points in 2020-2021, English and French combined. Some may feel that this is not a bad outcome overall.

The problem is that we cannot rely upon past performance here – not when we’re changing the very system under which that performance occurred. This situation very likely will change going forward because of how the incentivizing power of the Canada Media Fund (CMF) will change.

Currently, only traditional Canadian broadcasters are subject to Canadian content regulation under the Broadcasting Act, and they make significant use of the CMF to support their Canadian production. The CMF requires productions to achieve the full, 10 out of 10 points in order to be eligible for funding. As such, this has become the de facto standard for the genres the CMF funds in the broadcasting system, and it is a near-certainty that the current level of support for Canadian screenwriters comes from this fact. Canadian broadcasters effectively need that money to produce content. They cannot leave CMF money on the table in exchange for not playing by the CMF’s rules and still expect to commission high-cost Canadian dramas, kids’ programming, and documentaries economically. The influence of the CMF in the current system is setting a de facto 10-point standard for the entire industry.

This situation will not survive a post-C-11 world, however, because foreign streaming services can afford to leave money on the table. Foreign online undertakings are many, many times larger than Canadian broadcasters. They have much deeper financial pockets. That means that they can happily walk away from funding if it gives them more control over the production, including the ability to place non-Canadians in creatively vital writing positions.

It boils down to the relative power of incentives versus regulatory requirements. Effective incentives must be big enough to actually incentivize the behaviour they seek, so the size of the entities you’re trying to incentivize matters. Canadian broadcasters are small enough, in the context of a global market, for the CMF’s funding to be an effective incentive. Foreign streamers are too big to have the same effect. And this isn’t just my opinion. It was also recognized in the 2020 final report of the Broadcasting and Telecommunications Legislative Review Panel, in its rationale for Recommendation #67.

If large foreign streamers can leave CMF money on the table in exchange for more “flexibility” on key creative roles, they will, and then we will have completely undercut the entire purpose of the Broadcasting Act. Much “Canadian content” will not be Canadian-written, and then Canadian screenwriters will have to do what they increasingly already must: Leave Canada for Los Angeles, where their talent is recognized, where the streamers who are operating in Canada want to do the hiring already, and where they will be employed to tell American stories to an American and global audience, whose work will be sold back into Canada as “global content,” all while paying American taxes and benefitting the American economy. The talent drain will continue, and Canadian stories and the Canadian broadcasting system will be poorer for it.

Section 3(1)(f)

The risks that Canadian screenwriters face in a post-C-11 world mean that Bill C-11 itself must ensure they are not left behind. One of the key ways to do this is through section 3(1)(f) of the amended Broadcasting Act.

Section 3(1)(f) of the existing act currently requires each broadcasting undertaking to, “make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming.” There is an exception to this for broadcasters that provide “specialized content” or languages other than French and English.

Section 3(1)(f) is not specifically about the definition of Canadian content per se, but “Canadian creative resources” must undoubtedly include, if not refer exclusively to, Canadian creative talent. And since these resources must be used “in the creation and presentation of programming,” there is no reason to think that the section refers to non-programming matters, be it products on a shopping channel or otherwise.

Given the major structural changes contemplated by Bill C-11, section 3(1)(f) does have to change from how it reads in the current Act. The 1991 Broadcasting Act contemplates what is effectively a “closed system,” which is Canadian owned-and-controlled under section 3(1)(a), and in which all “broadcasting undertakings” can therefore be presumed to be Canadian. In a system wholly made up of Canadian broadcasters, when those broadcasters engage in the creation and presentation of programming, that can be presumed to be Canadian programming.

While Canadian broadcasters have long acquired and aired foreign, mostly American programming, they do not participate in creating and presenting that programming. C-11 necessarily “opens up” the Canadian broadcasting system to non-Canadian undertakings, most notably major streamers like Netflix, Amazon Prime Video, and Disney+. Nobody reasonably expects those entities to become Canadian, nor do they expect them to create and present only Canadian programming in Canada. And shunting them to the “exception” clause of 3(1)(f) effectively defeats the entire purpose of the legislative language, not to mention the fact that they are clearly not offering “specialized content” and are operating in English and/or French.

So, the section must change from its current form, and both Bills C-10 and C-11 attempted to do this. Unfortunately, however, Parliament’s “fix” thus far has been deeply flawed. Bill C-10 simply eliminated the maximum-but-not-less-than-predominant language entirely, requiring only that broadcasting undertakings merely “make use” of Canadian creative resources, “to the extent that is appropriate for the nature of the undertaking”. This represented a significant demotion for Canadian creatives.

Bill C-11, following amendments made to C-10 at the Standing Committee on Canadian Heritage (CHPC), did little better, retaining the maximum-but-not-less-than-predominant language for Canadian broadcasters only, while setting a lower bar for foreign online undertakings. Foreign streamers would only have to “make the greatest practicable use” of Canadian creative resources, and “contribute in an equitable manner to strongly support” Canadian programming.

Despite some of this additional language, the fact remains that C-11 sets two different standards for Canadian and foreign online undertakings. And given the possibility, if not the likelihood, that the Canadian broadcasting system will be dominated by foreign players in the near future, especially when it comes to serial dramatic and documentary programming, this effectively sets a lower bar for much of the system as a whole.

Happily, a solution exists that virtually the entire domestic production sector supports. As proposed by the Writers Guild of Canada, and supported across the industry, including the Coalition for the Diversity of Cultural Expressions, section 3(1)(f) can be amended to refer to Canadian programming only – something that was always implicit under the existing Act. At the same time, the section can incorporate language modeled on the current section 3(1)(s), applicable to private networks, requiring that all broadcasting undertakings, “contribute significantly to the creation, production and presentation of Canadian programming to the greatest extent that is appropriate for the nature of the undertaking.”

This amendment would take into account the structural changes that “open up” the broadcasting system to foreign players. It would apply only to Canadian programming, meaning that foreign streamers would only have to meet it when they commission Canadian programming. And the amendment would eliminate any need for a two-tiered approach, as both foreign online undertakings and Canadian broadcasters could meet it. Such an amendment would ensure significant contributions from all players in an equitable way.

Sadly, however, this amendment has not made headway in Parliament to date. Such an amendment was supported at CHPC by both the NDP and the Bloc Quebecois during the Committee’s study of Bill C-11. But when it came up for debate, Liberal MP Michael Coteau asked the department if such an amendment would “even be possible.”

The response of Owen Ripley, associate assistant deputy minister, cultural affairs, at Canadian Heritage, suggested, strangely, that it was somehow not possible. Ripley explained precisely the system-wide changes I’ve just described – i.e. that a formerly Canadian broadcasting system was being opened up to foreign players with various business models and this had to be taken into account. Yet the above proposal does take that into account, as it applies only to Canadian programming. Is it somehow not possible for foreign streamers to make maximum use of Canadian creative resources when they make Canadian programming? This seems like simply a flatly incorrect assessment.

If it is truly the position of the government that foreign online undertakings need to be able to make Canadian content that makes use of Canadian creators to a lesser standard, then that is deeply concerning. It suggests that the major non-Canadian streaming services could be allowed to make “Canadian content” that is less Canadian, and engages less Canadian talent, than Canadian broadcasters.

It suggests that foreign streamers could, in fact, accomplish what they almost certainly want to achieve in this legislation overall, short of avoiding regulation completely, which is having the foreign location service production that they are already doing in Canada for the international market count towards their “Canadian content” obligations under a revised Broadcasting Act. This outcome would completely undermine the very core of the objectives of passing C-11 in the first place. And that would be an unmitigated disaster both for Canadian screenwriters and other creators, and the Canadian stories that they are uniquely positioned to tell.

It is vital for C-11, and the regulatory and Canadian content support systems that surround it, to strengthen, not weaken, the support for Canadian creative talent, and in particular screenwriters. Section 3(1)(f) cannot create a two-tiered approach for foreign streamers. We cannot rely on incentives for entities that are amongst the largest on the planet, and who can therefore walk away from even the biggest, juiciest carrots we can offer.

Bill C-11 must put Canadian creators – and especially the Canadian screenwriters working in a “writer’s medium” – at its very core.

Neal McDougall is the acting co-executive director of the Writers Guild of Canada.