Evidence of meeting #139 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 system.
A recording is available from Parliament.
Liberal
The Chair Liberal Julie Dabrusin
We're going to begin our 139th meeting of the Standing Committee on Canadian Heritage. Today we're continuing our study of remuneration models for artists and creative industries.
We have with us Scott Garvie, Executive Producer, Shaftesbury Films; and from the Indigenous Performing Arts Alliance, we have with us Lori Marchand, Managing Director, Indigenous Theatre, National Arts Centre.
We'll begin with you, Mr. Garvie, because you're the first on the list.
Scott Garvie Executive Producer, Shaftesbury Films Inc.
Thank you very much, Madam Chair.
My name is Scott Garvie, and I am the Senior Vice-President, Business and Legal Affairs, at Shaftesbury Films in Toronto. I am also the current Chair of the Board of Directors of the Canadian Media Producers Association. Thank you very much for inviting me today to speak to you about the importance of copyright to producers. It directly impacts our ability to make great Canadian shows. To fairly remunerate both producers and talent, we must continue to recognize the producer as the author and first owner of copyright in an audiovisual work. I'd like to talk about what producers do to help explain why that's important.
You may already be familiar with Shaftesbury's hit TV shows Murdoch Mysteries and Frankie Drake Mysteries on CBC. I'm proud to tell you that Murdoch Mysteries and Frankie Drake Mysteries are two of the top three highest-rated shows on CBC currently. Some of our other projects include the YouTube series and movie Carmilla, which enjoys a cult-like popularity with the LGBTQ community; the thriller series Slasher on Netflix; and Emerald Code, an empowering web series for girls about science and technology. We are currently producing two new prime-time drama series, which will be released later this year, one with Rogers called Hudson and Rex and another with Corus called Departure.
The producer has many roles. How do we make great content? Frankly, there is a little bit of alchemy in every show we create. Sometimes a show that seems destined for success on its technical merits ends up missing the mark with the target audience while another show will achieve success beyond our original hopes. Murdoch Mysteries is a great example of this. Who would have thought that a period drama set in 1890s Toronto would find such a large global audience? Thanks to the superb storytelling, production values and casting decisions, it's a hit show watched in more than 110 countries, and we're happily going on to our 13th season on CBC.
To make great TV shows and films, we need to wear many hats. We often call ourselves treasure-hunters. We search for an idea, a concept or an original story from a writer. We develop those ideas into the content that you see by engaging and working with creative talent.
In the case of Murdoch Mysteries, we optioned a series of novels by little-known Toronto-based author Maureen Jennings. We then spent time developing it, and over the years, we've worked with many writers and directors. In fact, we've had three different sets of head writers or show runners over the 13 years, and have hired over 75 different directors to work on that show. Our in-house creative team played a major role in shaping the series. All this is done under the direction of our in-house team of producers, which includes myself, Christina Jennings—who was just awarded an Order of Canada for her work on Murdoch Mysteries—and Julie Lacey.
We're also risk-takers. We invest revenues from our past successes into the R and D that's necessary to create a slate of new shows. For example, we spent 10 years developing our new show Hudson and Rex because we believed strongly in the concept—it's a cop-and-dog show—and wanted to get it right. We invested around $300,000 in development money of our own funds, paying writers and others to get the show to the stage where we could finally get a broadcaster to commission it.
We are also HR managers. We are the key touchpoint for all creative and financial elements and partnerships that make a project successful. Whether we are debating creative notes with directors, negotiating with a writer's agent or convincing our lead actor—in the case of Rex, a dog—to come out of his trailer, we are the connection point for talent. In addition, we have our fingers on the pulse of the market.
In the case of Murdoch Mysteries, we have a deal with a U.K. broadcaster; a French broadcaster, France Télévisions; CBC; and a foreign sales agent in ITV. We are in constant dialogue with them about how we can best serve their specific audience bases and ensure that the show is as successful and long-running as possible throughout the world.
We are also accountants. The Canadian tax credit system is premised on the producer's ownership of copyright. We juggle a variety of budgets, tax credit calculations, cash flow and investments to get the show made. At the same time, we ensure that our talent and crew are fairly remunerated for their work. That includes being responsible for administering the waterfall of revenues that flow to investors and creative participants after the show is made.
We are sales people. We are always selling, whether it's selling our idea to a writer or a broadcaster or pitching our vision of a new TV series to the multiple partners that we need to come on board. Shaftesbury has a team of 35 people in Toronto and London who work hard to support our shows like Murdoch Mysteries and Frankie Drake Mysteries.
There are a couple of things that we're doing to spin off to keep on increasing the audience engagement for the show. We have a Murdoch Mysteries-inspired escape room at Casa Loma in Toronto. We've done a behind-the-scenes web series with CBC, featuring the actors in Murdoch Mysteries and Frankie Drake Mysteries talking about the episodes.
We also have a cross-country tour of the Frankie period costumes going across Canada so people can see and touch the clothing. We're currently developing a theatrical play that will run across Canada based on the Murdoch brand.
Producers are—and must be—the authors and first owners of an audiovisual work. However, during this process you've heard from the Directors Guild of Canada and the Writers Guild of Canada that the Copyright Act should be amended so the screenwriter and the director are jointly named as the author of an episode of a television show or a film. That change, in my view, is not only unnecessary but would severely damage a producer's ability to monetize, license and otherwise exploit an audiovisual work.
Any suggestion that such an amendment would not disrupt the business of making films is wrong; it would completely upend the work we need to do to make a show. Producers and the guilds long ago worked out these issues in our labour agreements, and there is no need to implement a workaround to those agreements now. Infusing the banking and orderly marketplace with a multiplicity of copyright owners who cannot be tracked or are unwilling to grant the necessary exploitation rights would be a disaster. The collaboration required to produce a television series makes it completely different from dealing with the sole author of a novel or the composer of a song.
Producers hire and work closely with all key creative roles. As I just described, we work with screenwriters to turn ideas into scripts; we hire directors to help turn scripts into projects; we hire performers, production designers, composers, musicians, editors and crews to help us shape the project and bring our collective vision to the screen. Everyone has an important role to play, and we deeply value their creative efforts, but it is the producer who brings all these individual creative elements together and takes a project from an idea or concept to the screen and then takes it into the marketplace.
When it comes to TV, rights ownership and exploitation are the foundation of our business models. We are constantly developing new IP by using company resources as that important seed money. In order to have a company of size and scale—one that is able to compete on the international market and get our shows seen—producers must own the copyright in these shows.
It is impossible to be a viable production company without having a robust development slate of potential new projects. Frankie Drake provides a very good example of this. We were approached by CBC to develop a companion show they could run after Murdoch. Thankfully, we had already been developing the concept of Frankie in-house, so we were able to pivot very quickly to react to that request by the marketplace.
Ownership of copyright by producers is the foundation for remuneration models for artists in creative industries. We invest in development; we bring creative and financial partners together; and we pay artists and creators fairly, both from the budget and from the back-end participation we allow them under our guild agreements.
When it comes to authorship or ownership of an audiovisual work, there is no need to make any changes to the Copyright Act. Producers are—and must continue to be—authors and first owners of the copyright in their TV projects.
Thank you for the opportunity to appear before you today. I'd be pleased to answer any questions you may have.
Liberal
The Chair Liberal Julie Dabrusin
Thank you.
We will now hear from Ms. Marchand from the Indigenous Performing Arts Alliance.
Go ahead, please.
Lori Marchand Managing Director, Indigenous Theatre, National Arts Centre, Indigenous Performing Arts Alliance
Weykt, hello, bonjour.
I am Lori Marchand. I am of the Syilx, or Okanagan Nation. I am here as a representative of the Indigenous Performing Arts Alliance. I am currently the Managing Director of the brand new indigenous theatre at the National Arts Centre, where I have been for the past nine months. Prior to that, I was the Executive Director of Western Canada Theatre, a small regional theatre in the traditional and unceded territory of Tk’emlúps te Secwepemc in the city known as Kamloops, B.C.
Working with four different artistic directors over the span of 19 seasons, WCT gained a national reputation for commissioning, developing, presenting and producing indigenous work in a collaborative and respectful way. Of particular interest to this committee may be two specific examples that have gone on to impact other processes, including those at other companies.
In 2000, WCT and the Secwepemc Cultural Education Society, SCES, co-commissioned Cree playwright Tomson Highway to write a play based on a historical document called “the Laurier Memorial”, a document presented to Sir Wilfrid Laurier in the city of Kamloops in August 1910. The document was presented jointly by the chiefs of the Secwepemc, Nlaka'pamux and Syilx Nations, collectively known as the Interior Salish and referenced in the document as the Shuswap, the Thompson and the Okanagan respectively.
The document was dictated to and translated by renowned ethnographer, James Alexander Teit, a Shetlander who married into the Nlaka'pamux Nation. The document articulates 100 years of the relationship between these indigenous nations and the arriving settlers, the traditional protocols for welcoming guests into our houses, and the disrespect offered in return, leading to the erosion of territory and traditional means of living, as well as trust in indigenous relations with the Crown.
As mentioned, the commission of the play was a joint effort between WCT and SCES in recognition of the fact that the play would be based on the history and stories of the Secwepemc. The play was written and developed through multiple workshops with a number of public readings in Tk’emlúps te Secwepemc, with opportunities for community members to participate in the development process.
The development of the play became part of a CURA project funded by SSHRC at Thompson Rivers University. A documentary called Tomson Highway Gets His Trout was one of the tangible means of disseminating the results. It aired subsequently on the Bravo network.
Ultimately the play, Ernestine Shuswap Gets Her Trout, premiered in January 2004 at the Sagebrush Theatre with representatives from all 17 Secwepemc Nations—and I understand that hasn't happened since—as well as representatives from the Nlaka'pamux and the Syilx Nations. Grand National Chief Phil Fontaine attended on behalf of the Assembly of First Nations.
The commissioning agreement contained two clauses relating to royalties that were anomalous: For every production, 3% of the playwright's royalties would be returned to the Secwepemc Cultural Education Society; and if in any given 12-month period the playwright earned more than $25,000 from royalties from the play from whatever medium, whether live performance, television, film and so on, then a small percentage—and I apologize that my memory fails me, but it was either 2% or 3%, which didn't ever come to pass, unfortunately—would be returned to the commissioning theatre, which was WCT.
The next project of interest is the commission and development of a play by Kevin Loring, a Nlaka'pamux playwright, currently the artistic director at the NAC indigenous theatre. WCT, in partnership with the Vancouver Playhouse, received a $95,000 grant from Arts Partners in Creative Development, a fund established in connection with the 2010 Olympics in Vancouver, to commission and develop Where the Blood Mixes. The grant enabled notable commissions for the playwright and two indigenous artists: a visual artist to inform design components and a musician to inform the soundscape.
It also enabled a production workshop of the play, a staged workshop with production elements that could tour to communities. In partnership with Tk’emlúps te Secwepemc, the production workshop rehearsed in the Chief Louis Centre, the former Kamloops residential school.
Elders were invited to open the rehearsal process with a welcoming ceremony, and time was allotted after the ceremony for the elders to interact with the cast, creators and WCT team members. The rehearsal process was open, so elders and community members could drop in at any time to watch. There were three public performances at WCT's Pavilion Theatre. There was a nominal ticket price to attend, $10 to $15, or admission was free to ensure broad access.
Post-show, the audience had the opportunity to respond and give feedback to Kevin directly. The production workshop toured to Trail, where the audience had the same opportunity. It then went to Lytton, Kevin's home community. The community held a feast and had, again, the same opportunity to respond to Kevin. It was a profound and impactful event for the community, seeing themselves onstage. Ultimately, at the end of the process, the play premiered in Vancouver on June 11, 2008, the day of the federal government's apology for residential schools.
I didn't note it here, but it also went on to win the Governor General's award for drama.
WCT's relationship with Tk’emlúps te Secwepemc has been through direct relational activities such as discussions and requests directly to the chief and council, outreach through the Shuswap Nation Tribal Council, service organizations, and the Nlaka'pamux and Syilx nations.
WCT, and in most instances, the artists directly, have sought permission to tell the stories. Acknowledgement of the permission has been as described above, through payment of a portion of the royalties and/or recognition on promotional material, such as posters, brochures, websites and/or printed versions of the texts.
Through the process of development and production, the consultation and outreach has ensured that the community members see themselves honoured and represented respectfully and authentically on stage. Through pricing structures and engagement, the work is accessible to the community.
In cases where the subject matter may be triggering, WCT has also ensured the presence of trauma counsellors, elders and the availability of safe spaces so that community members can participate in an emotionally supportive environment.
WCT is also a producer. It is a member of the Professional Association of Canadian Theatres, and as such, is a signatory to the corresponding professional agreements with Canadian Actors' Equity Association, Associated Designers of Canada and the Playwrights GuiId of Canada. All fees for all artists were governed by these agreements. The agreements set the baseline; financial support for cultural considerations were augmentation necessitated by WCT's internal core values and practices.
WCT is a regional theatre that produces a broad range of work for the southern interior of B.C. My position of leadership within the company helped to inform and establish these practices and, fundamentally, a relationship of trust with Tk’emlúps te Secwepemc and, more broadly, the nations of the interior Salish. Ultimately, it was the generosity of these nations and their community members in granting permissions to share their stories and resources that made the work and the relationship possible.
I hope other speakers are going into more detail about the challenges of artists, writers and researchers coming into a community, publishing the community's stories and then claiming the copyright. I offer the practices of WCT as what I hope is a counterpoint to that practice.
At the national level, there is a great deal of work to be done to enable the work of indigenous artists. Producing theatre requires infrastructure such as performance spaces and facilities in which to rehearse and build. These resources are not in the hands of the indigenous artists and companies. There are no indigenous companies that are signatories to the Canadian Theatre Agreement, in large part because the rehearsal and performance structures do not currently reflect or accommodate an indigenous way of working. Indigenous artists may choose not to join Canadian Actors' Equity Association because the body of their practice is cultural, for example, in powwow.
When doing work with a company required to work under the Canadian Theatre Agreement or its counterpart, the Independent Theatre Agreement, artists must pay fees to CAEA, equity fees that ultimately just mean a reduction in the level of pay to the artist.
In essence these requirements have resulted in exclusion of indigenous companies and artists, a situation that both PACT and Equity have committed to resolve.
Being a rather circular argument, the above situation leaves indigenous companies and artists under-resourced both financially and in terms of dedicated infrastructure.
It is a large and complex issue. On behalf on the Indigenous Performing Arts Alliance and its members, I thank you for taking on this examination.
Liberal
The Chair Liberal Julie Dabrusin
Thank you for that.
We're now going to begin our question and answer period.
We are going to begin for seven minutes with Mr. Hogg.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
Thank you very much for your submissions and information.
Mr. Garvie, you talked about a couple of wonderful successes with respect to Murdoch and Frankie. You've talked about the successes that have occurred there and reinforced your statement that the producers must own the copyright or else those things might not have happened.
Can you give us some examples of how things might have been different if the producers had not been in charge of that?
You seem to have highlighted the success. I assume there are a number of failures that would have occurred as well.
Executive Producer, Shaftesbury Films Inc.
I think from the beginning, the inception of the project, the true copyright owner of the concept was an author of a series of books. We did an arrangement with her, and she participates in revenues every year from our budget, plus she gets a participation in success. She is making some money alongside with us.
If we were not able to control that IP and the initial writers who we brought on to the show.... It wasn't their idea. We went to them and said we have this idea and asked if they would help us develop it. We actually had a couple of missteps with some writers who didn't quite get the tone or the storylines that we wanted to do, so we moved on.
If the first writers who had got involved with our concept then had become the owners of that concept, that would have stopped things in their tracks, if we hadn't progressed because we weren't able to get the show made because nobody bought into their vision. It would have tangled up the development process quite a bit.
When we go to the market and we talk to a U.K. broadcaster, a French broadcaster or even a Canadian broadcaster, there's a package of rights that are derived from the copyright ownership that allows the thing to be exploited in as many ways as possible. If we had carved off with a bunch of different copyright holders, we may not have all those rights or we would not be able to exploit in the most fulsome and efficient way.
I read the presentation made by the CMPA. Stephen Stohn made a comment that struck me as well. We've done more than 200 episodes of Murdoch Mysteries. We've had more than 150 writers write scripts. We've had more than 75 directors. If they own the copyright, they can't do anything because we own the underlying project. They can't actually take it to market. They can own the script or the work, but they can't do anything with it. It would turn the business on its head.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
Can you tell us about any jurisdiction that might have a different model from this one, which is successful in other countries or other jurisdictions?
Executive Producer, Shaftesbury Films Inc.
I'm sorry, sir. I would have to talk to the CMPA, who could canvass the structure outside of Canada.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
So with that, do you think the model that currently exists in Canada is favourable to you?
Executive Producer, Shaftesbury Films Inc.
I think it's favourable to the industry. I think there's a clear road map on how it's dealt with on the television and film side. The parties have agreements that are negotiated in good faith between them, the writers, the directors, the actors and all the people who are part of it. You know if you've ever been to a television set, there are 200 people working. All those deals are structured with guilds, so that there's protection for the employees or the contractors. There's also a mechanism that makes sure they are rewarded in success.
I think it is working. I think we do need to modernize the copyright system to make it reflective of the new delivery systems that are in place, but I think the basic system is a good one.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
So the principles that are in place you think are most appropriate.
When you go, as you mentioned, to England and other places where you've taken some of your shows, is there any difference when you apply there?
Do you fall under any other jurisdiction?
Executive Producer, Shaftesbury Films Inc.
Not on the copyright side. There may be different terms of copyright, but basically we own the project and then we sell the exploitation rights for a period of time. All the copyright laws that we deal with sort of align.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
At this point, the only privilege you see is some modernizing of the system.
Executive Producer, Shaftesbury Films Inc.
Yes, on the retransmission, on just having a more modern, efficient system to track. However, I think the underlying theory is good.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
Ms. Marchand, you mentioned that there were some disagreements and that the core values and practices are going to be paramount or will serve as the foundation for setting the guidelines. Can you tell us a little about what the foundation is, what the values are, how you are carrying those out and how that's being done?
Managing Director, Indigenous Theatre, National Arts Centre, Indigenous Performing Arts Alliance
The underlying concept, or value, is that the stories belong to the community. The way that both Western Canada Theatre and, ideally, the National Arts Centre indigenous theatre are going forward is to recognize that that is where the ownership resides. Any storytelling or sharing of those stories and histories beyond the community is really through permission and a consultative process in which the community participates fully and has buy-in on the final product.
With respect to remuneration or the official copyright, it becomes challenging, particularly in instances where...in many cases, unfortunately, it's a non-indigenous person who has come into a community to learn and has then taken that story and shared it more broadly. Through that copyright, they have actually disenfranchised the community from their own story. Those are the instances we are actively working to prevent.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
Mr. Garvie, if you were to take on the stories Ms. Marchand is talking about, and if you were producing some of those stories, would the values she's reflecting fall under the model you're talking about?
Executive Producer, Shaftesbury Films Inc.
Yes.
We are developing, with an Indian band, a film institution in northern Ontario. We have made arrangements with the school and with the individual students who are telling...I'm not sure these are historic stories as opposed to current reflections of their lives. We are working with them, and they are part of the creative process.
Liberal
Gordie Hogg Liberal South Surrey—White Rock, BC
So you have to have an agreement with them under the values that Ms. Marchand—
Executive Producer, Shaftesbury Films Inc.
We don't want to appropriate that story.
Liberal
The Chair Liberal Julie Dabrusin
Okay, that's great.
We will now be going to Mr. Yurdiga, please, for seven minutes.
David Yurdiga Fort McMurray—Cold Lake, CPC
Thank you, Madam Chair. Thank you, Mr. Garvie and Ms. Marchand, for taking the time to educate us, in some respect.
We heard from many groups—creators, artists, producers, right through to distributors. The one common theme seems to be revenue-sharing. There's some debate about who's taking too much and who's not getting enough.
In any business, that happens at the contract point. How do we protect...? From your perspective, Mr. Garvie, as an executive producer, what happens? I'm an artist. You want me to perform, to act in one of your films or whatever it may be. What are the first steps? How is everybody protected? Even if you look at the royalties after the fact, is that all established on day one? How does that work?
Executive Producer, Shaftesbury Films Inc.
I'll talk generally. There are some people who aren't governed by collective agreements. We do prime-time drama in Canada. We deal with ACTRA, WGC and the Directors Guild. There are projects that are done outside the protections that those guild arrangements provide, but we still have to come to an arrangement, and I assume that it's a market arrangement. Somebody's willing to provide those services, or get us involved in their content, based on the deal that we do. It's a purely contractual relationship.
The bulk of what we do is within the confines of very structured industrial relations, which deal with the base rates that you have to pay people. Everything's always in negotiation. There's a base rate in the Writers Guild agreement that says, “If you want a script, it's going to cost you x.” You may have a very hot writer who says, “I don't care. That's the base rate. I want two times that.” Then it's a market negotiation. If we can afford him or her, we'll do it. If not, we'll move down the line and find someone we can actually come to an arrangement with.
In those collective agreements that have been negotiated between the CMPA and the various parties, there are various types of buyouts you can do where you get paid up front from a budget. You get work even if the show doesn't get made; you still have a contract and a script fee, say. If it goes on, and you want to change the use that you negotiated, you may have to pay another fee to the particular party—say, the director. If you want to do a DVD buyout as opposed to just television, then there's a mechanism that says, “Here is the price that you have to pay to change that use.”
Most of the agreements also have some sort of formula that calculates when the producer has recouped the cost of production, and then there's a sharing of revenues, over and above. That's, again, a negotiation. There are some base rates, but then the marketplace takes place.
We did a show last year with David Shore, who I went to law school with, and who happened to create House. He now has a lot of leverage. We did a deal with him that was very, very expensive, but he was a very high-priced piece of manpower and he was able to get that amount.
There are protections in place with floors, and then the ceilings are all based on your negotiation ability, on how badly a person wants to work with us and how badly we want to work with them. I don't know if that's responsive.