Evidence of meeting #126 for Canadian Heritage in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Liberal
The Chair Liberal Julie Dabrusin
We're starting meeting 126 of the Standing Committee on Canadian Heritage. We're continuing our study today on the remuneration models for artists and creative industries.
I apologize for the late start, but we had a vote that we all had to attend. We do have this room available to us for a bit of time afterwards. We don't have a committee coming in here right after us.
Liberal
The Chair Liberal Julie Dabrusin
I was hoping to get a feel from the members as to whether you have any time, if you have availability.
Liberal
The Chair Liberal Julie Dabrusin
Let's get started right away with the presentations.
We have with us the Writers Guild of Canada. I see only one person via video conference, and that's Neal McDougall.
Liberal
The Chair Liberal Julie Dabrusin
We also have with us the Canadian Media Producers Association, with Erin Finlay and Stephen Stohn here.
We will begin with the video conference with the Writers Guild of Canada, please.
Director of Policy, Writers Guild of Canada
Thank you.
Good morning, Madam Chair, vice-chairs, and members of the committee. My name is Neal McDougall, and I'm the Director of Policy at the Writers Guild of Canada. Maureen Parker, WGC's Executive Director, cannot be here today due to illness. She sends her regrets. We would like to thank the committee for the invitation to appear before you today to discuss the Copyright Act.
The Writers Guild of Canada is the national association representing over 2,200 professional screenwriters working in English-language film, television, radio, and digital media productions all across Canada. These WGC members are the creative force behind Canada's successful TV shows, movies, and web series.
First, I would like to tell you a bit about how Canadian screenwriters under our jurisdiction work and get paid. Screenwriters in our jurisdiction work under our collective agreement, which is called the independent production agreement, or IPA. They enter into a contract with a producer for screenwriting services. This can involve various types of work, typically corresponding to various stages of writing and script development, from outlines and pitch documents to so-called bibles, which are reference documents that lay out a television series' characters, settings and other elements, to drafts of a completed script.
Under the IPA, screenwriters are paid what we call a script fee for any and all of these stages of work. If a script moves into production, the screenwriter is additionally paid what we call a production fee. Finally, the IPA provides for royalty payments to the screenwriter based on a percentage of profits from the distribution and exhibition of the production.
In addition, the WGC has established the Canadian Screenwriters Collection Society, or CSCS. The mandate of CSCS is to claim, collect, administer and distribute, on a collective basis, foreign authors' levies to which film and television writers are entitled under the national copyright legislation of certain countries.
A script and a production produced from that script are separate works under copyright, and as such, they each have their own copyright protection. Under the IPA, screenwriters retain copyright as the author of their script, and they license the producer the right to produce a cinematographic work based on that script. Producers aggregate that licence with whatever other intellectual property rights they may require to produce the cinematographic work. Producers then commercially exploit the finished production in the marketplace and remit a royalty to the screenwriter on profits, based on the terms of our collective agreement.
This leads to our primary request today. As we said in the summer to your colleagues at the Standing Committee on Industry, Science and Technology, we would like to ask for a simple amendment to the act to clarify that screenwriters and directors are jointly the authors of the cinematographic work.
Authorship is a central concept in the Canadian Copyright Act. The act acknowledges that authors generally create copyrightable works and states the general rule that “the author of a work shall be the first owner of the copyright therein”. The authors of cinematographic works are jointly the screenwriter and the producer.
Screenwriters and directors are the individuals who exercise the skill and judgment that result in the expression of cinematographic works in material form. They start with a world of possibilities from which they make countless creative choices. Screenwriters create a world, choose the specific place and time in that world to begin and end the story, set the mood and themes, create characters with histories and personalities, write dialogue and map out a plot. Directors direct actors, choose shots and camera positions, and make choices that determine the tone, style, rhythm, and meaning as rendered in moving pictures.
Producers are not authors. Producers are the people with the financial and administrative responsibility for a production, which is defined in the current act as makers. While raising financing and arranging for distribution are important aspects of filmmaking, neither activity is creative in the artistic sense, and it is not authorship.
Moreover, copyright protects the expression of ideas, not the ideas themselves, so while producers may, on occasion, provide screenwriters and directors with ideas and concepts, it is screenwriters and directors who in turn express those ideas and concepts in copyrightable form.
A painter is the author of a painting. A writer is the author of a novel, and screenwriters and directors are jointly the authors of a film or television production. Art is made by artists, no matter what the medium.
A Canadian court has already decided that the joint screenwriter/director is the author of a film and not the producer. The court held that the individual producer could not be considered to be the author of the film since his role was not creative. As such, our proposal does not change the law or the reality in Canada; it simply clarifies it and does so consistently with international norms such as those of the EU.
Why is this important? For one thing, the act defines the term of copyright based on the life of the author. If the identity of the author is uncertain, then the term of copyright may be uncertain; therefore, there can be uncertainty about whether a given work is still under copyright or is in the public domain. For another thing, recognizing screenwriters and directors as joint authors provides support for creators and the role they play in Canada's creative economy. It gives them a strong position in which to bargain and enter into contracts with others in the content value chain. It puts them on a more level playing field.
Since this clarification would not alter the legal reality in Canada, it poses no threat to existing business models. Producers and others seeking to engage creators for their work would simply contract for the rights in that work, the same as they always have. Nobody argues that novelists aren't authors of their novels or composers aren't authors of their music, and certainly nobody argues that publishers somehow can't sell books or recording companies can't sell music just because these authors are the first owners of their works. Indeed, screenwriters are already clearly the authors of their screenplays, and producers already contract for the rights to adapt those screenplays as a matter of course.
It is the same for sequels or series television, which are simply multiple works based on the same characters or other elements. Any number of films or TV shows have been based on Bible stories, Jane Austen or Batman, but each new production is a new and separate copyrighted work, and each has its own authors who wrote and directed that particular production. Each film or episode is a new and different story that drives the characters forward. This is how it has always worked.
Finally, in this fast-changing environment, in which disruption is the rule and not the exception, clarifying screenwriters' and directors' positions as authors provides the potential for further tools, such as equitable remuneration for authors—as is available in other jurisdictions, such as Europe—if and when that policy option needs to be considered. Clear authorship is an essential step toward getting there.
Thank you for your time, and we look forward to your questions.
Liberal
The Chair Liberal Julie Dabrusin
Thank you.
We will now go to the Canadian Media Producers Association, please.
Erin Finlay Chief Legal Officer, Canadian Media Producers Association
Thank you.
Madam Chair, my name is Erin Finlay, and I'm the Chief Legal Officer of the Canadian Media Producers Association.
With me today is Stephen Stohn, President of SkyStone Media and executive producer of the hit televison series Degrassi: Next Class and all previous versions of that great show.
The CMPA represents hundreds of Canadian independent producers engaged in the development, production and distribution of English-language content made for television, cinema and digital media. The CMPA works on behalf of its members to ensure a bright future for media production and for Canadian content.
Do you have a favourite Canadian TV show? Those Canadian films that are getting all the hype on the festival circuit, chances are one of our members produced them.
From Degrassi, which Stephen will talk about shortly, to the Oscar-nominated feature film The Breadwinner, the adaptation of Margaret Atwood's Alias Grace, Letterkenny, and Murdoch Mysteries, we have a lot to be proud of.
Last year, $3.3 billion in Canadian independent film and television production volume generated work for over 67,000 full-time-equivalent jobs across all regions of the country. The directors, writers, actors, crew and producers who work in these high-value creative jobs make the programs that provide audiences with a Canadian perspective on our country, our world and our place in it.
Our successes are the direct result of a highly effective regulated system. From cable company contributions and the Canada Media Fund to Canadian programming requirements and intellectual property laws that protect and incentivize Canadian creation, our communications and copyright legislative framework is the backbone of our current, vibrant domestic market.
But we are now at a crossroads, a pivotal point in the digital economy. It's no secret that we have a cultural behemoth just over the border. Over-the-top foreign platforms like Netflix and Amazon are drawing Canadian audiences and subscribers away from our domestic broadcasters and cable companies. These foreign players are delivering U.S. content straight into our homes with complete immunity from the regulations that help build our strong creative industry. This not only has created an unfair competitive advantage, but is putting immense stress on our funding system for Canadian content.
Failure to regulate these foreign entities and how content now reaches audiences is an existential threat to Canadian artists and creative industries. We must level the playing field and give the CRTC the tools it needs to do so. Put simply, our system must be modernized to require foreign over-the-top services and the new distribution channels operating in our market to contribute to the production of Canadian content, or there will be no more Canadian copyright to review.
The CMPA would like to highlight three issues with the current Copyright Act that are negatively impacting remuneration for artists in the creative industries.
First, these new ways of delivering content will eventually make the retransmission regime in the Copyright Act obsolete. Since inception, this regime has generated approximately $600 million for the Canadian creative industries. The retransmission regime must be modernized and made technologically neutral to account for online and mobile uses of copyright-protected works.
Second, the current tools available under the Copyright Act are ineffective against large-scale commercial piracy. We ask that the act be amended to expressly allow rights holders to obtain injunctive relief against intermediaries, including by site-blocking and de-indexing orders.
Finally, we strenuously oppose the writers' and directors' efforts to be made joint authors of copyright in a cinematographic work. The market has long ago worked out this question, and no change is required to the Copyright Act regarding the authorship or ownership of a cinematographic work.
Stephen Stohn President, SkyStone Media, Canadian Media Producers Association
Canada fought hard to exempt the cultural industries in the recent renegotiation of NAFTA, now the USMCA. Prime Minister Trudeau said that waiving the exemption for cultural industries would be tantamount to giving up Canadian sovereignty and identity.
The exemption preserves and supports Canada's diverse cultural voices. It is key to the continued health of our creative industry, but we are in significant danger of a backdoor gutting of the cultural exemption in the film and television industry. If global digital behemoths like Apple, Google, Netflix and others are allowed to continue to broadcast in Canada in a totally unregulated manner, then our fight to maintain the cultural exemption and the jobs of creators and broadcasters of cultural content will have been for naught.
As Erin noted, we are now at a crossroads, a time when legislation and regulation either matter, or they don't. If we follow one fork in the road, we can continue to be part of the upward momentum of the domestic industry, and digital platforms and distribution channels, both foreign and domestic, can contribute to building a healthy domestic industry. If we follow the other fork in the road and fail to act, we essentially throw up our hands to foreign content and foreign platforms and capitulate to the behemoths lurking just over the border.
I'd like to turn back to an issue that was raised by our friend Neal just now, namely their quest to have the screenwriter and/or the director named as the author of a television show or film. For practical purposes, there is no question. For decades, the producer has been treated as the author throughout the Canadian and, importantly, United States industries. Fair rights and equitable remuneration for writers and directors have been successfully settled over those same decades through the extensive negotiation of industry-wide union and guild agreements by all industry participants.
Television and filmmaking are collaborate endeavours. Producers bring together all the creative elements to get a project from concept to screen. We hire and work closely with all the key creative roles. We work with the screenwriters—we love the screenwriters—to turn ideas into scripts. We hire directors, whom we equally love, to help turn scripts into projects. We also love and work with the actors. Who can imagine a show without the actors and their creative input? We hire the production designers who make the sets, the wardrobe designers, the composers and the musicians. Who can imagine a show without music? It's vital. We work with editors and crews, among many others, to shape the project and bring our collective vision to the screen.
Screenwriters, directors, and all the other contributors are important partners of producers, and we value all those relationships tremendously. After all, television programs and feature films are the ultimate collective works.
I'll put this in context. As you know, I produce Degrassi. We have now delivered 525 episodes over nearly 40 years. The most recent four seasons have been licensed originally to Netflix, where they're seen in 237 territories, in 17 different languages. It has been a success story.
To suggest that, for example, a screenwriter we hired to write episode 487, long after the characters, settings, formats, scenes, plot, storylines and music have already been in place for years and years, ought to be considered the author of that episode is simply wrong. However talented that screenwriter may be, she is working off a foundation—an ongoing foundation—and creative expression that has been built up over many years by many different contributors.
A producer's copyright is the foundation for all private and public funding sources for film and television projects in this country and in the United States. Authorship and ownership of copyright in the cinematographic work is what allows the producer to commercialize the intellectual property. Ultimately, we cannot do our jobs as producers if we are not considered, as we are today, authors of the cinematographic work.
Thank you, all, for this opportunity to discuss these issues with the committee.
Erin and I would be very pleased to answer any questions you may have.
Liberal
The Chair Liberal Julie Dabrusin
Thank you, both, for your presentations.
Because of our late start, we're at the end of our hour for the witnesses. Because we can't extend our time, I'm going to suggest that each of the groups at our table submit some questions in writing. I expect the witnesses will also have some extra comments they may want to write in response to each other's presentations.
Mr. Nantel, go ahead.
NDP
Pierre Nantel NDP Longueuil—Saint-Hubert, QC
Madam Chair, I understand the situation. There is no doubt that these two witnesses have a lot to say. It is very interesting to see that they agree on some points, but not on another. That's life, and it is up to us to pay attention to it all. I would add that it is very important for us to be able to ask them questions.
Furthermore, I fully agree with you on how important it is to follow the agenda. We are actually late and we still have two bills to consider. In that respect, I think it is particularly important to discuss the bill proposed by Mr. Casey, because reconciliation with indigenous peoples is paramount. Romeo Saganash, whom several of our witnesses have mentioned, was sick over the weekend and I couldn't talk to him about it. He is certainly a key person in this process.
Since time is of the essence, I propose that we devote ourselves today solely to the consideration of the bill to designate the month of April as Sikh Heritage Month. If the committee agrees, I would like us to postpone the clause-by-clause consideration of Mr. Casey's proposed bill.
Thank you.
Liberal
The Chair Liberal Julie Dabrusin
Does anyone want to comment on Mr. Nantel's proposal? I have to ask whether everyone agrees to follow up on his suggestion.
Randy Boissonnault Edmonton Centre, Lib.
Madam Chair, I would like to take a five-minute break.
Liberal
Liberal
The Chair Liberal Julie Dabrusin
Since we don't have a lot of time, I'll ask everyone to come back to the table.
Mr. Boissonnault, you have the floor.
Edmonton Centre, Lib.
Thank you, Madam Chair.
By the way, colleagues, I would like to say that Mr. Saganash delivered what was perhaps one of the best speeches I have ever heard from a parliamentarian on Friday evening to members of the Association canadienne-française de l'Alberta (ACFA).
Given our very tight agenda, we would like to support the chair's proposal to present our questions in writing. We also support further consideration of both bills. It is not out of disrespect for our colleague, it is just that we want to follow the agenda.
Bellechasse—Les Etchemins—Lévis, CPC
Yes, Madam Chair.
I support Mr. Nantel's proposal. Witnesses have nevertheless travelled here, which costs money. Other witnesses have also joined us by videoconference. The committee has the opportunity to gather a lot of information, and if we are short of time, it is always possible to ask them additional questions. I would find it a little disgraceful on the committee's part to turn away the representatives who have travelled here. I am also thinking of taxpayers' interests.
I have some questions for the witnesses, as does my colleague. We think this is an important issue and it would be a shame to overlook it. The Liberals talk a lot about cultural exemptions, and for goodness' sake, that does not necessarily mean revenue for our artists. That is why we have important questions to ask and we support Mr. Nantel's proposal on the issue.
I would also add that the repatriation of Aboriginal cultural property is important; many amendments have been proposed and we are already running out of time. Instead, we could take the time to look at the bill on this issue with a clear head—there are people who have not necessarily had time to review the entire bill—and to study it at a subsequent meeting.
We therefore have no objection to focusing on the proposed legislation to designate April as Sikh Heritage Month. We could certainly study it very quickly.
Liberal
NDP
Pierre Nantel NDP Longueuil—Saint-Hubert, QC
I very much appreciate the support of my Conservative colleagues on this issue.
When we studied the issue of the repatriation of Aboriginal cultural property, I repeatedly said how surprised I was—well, not really surprised—to see the sacred dimension of those artifacts. I had not actually considered the magnitude or the importance of indigenous peoples' rights at the United Nations. So I think it is imperative that I be able to have this validated properly by Mr. Saganash. I've said that before and I don't want to waste any more time, but I clearly think our witnesses are interesting and they have things to say. Their views are particularly opposed on some points, which I would like to clarify. That is why I think we should continue along those lines.
Thank you.
