Disney questions CanCon under Bill C-11, ACTRA says bill reduces foreign requirement to use Canadian talent

A Walt Disney Company executive is questioning rules around Canadian content, claiming that some of its Canada-specific stories do not qualify as CanCon while American-based stories qualify, and is calling for the government to develop a more “flexible” approach to CanCon in the Online Streaming Act. Disney’s vice-president of Global Public Policy David Fares told MPs studying Bill C-11 in the House of Commons’ Heritage committee Monday that Canada is among the top four production markets for the American firm. One subsidiary, Industrial Light and Magic, has recently opened a facility in Vancouver that will hire hundreds of people. Disney has three Canadian-themed shows on its platform–Barkskins, Turning Red and the still-in-production Washington Black–that do not qualify as Canadian content under current CRTC regulations, Fares said. Yet some American-produced content having no Canadian themes could qualify as CanCon under certain circumstances. “We hope to invest more in Canada and a flexible regulatory regime will allow us to maximize those investments,” Fares said in his opening statement. Under questioning from Conservative Party Heritage Critic John Nater, the Disney executive expanded on that view. “What we are calling for is a flexible system around Canadian content that allows each one of us to contribute to the ecosystem in a manner consistent with what we offer,” Fares replied. The company is currently investing $3 billion in the Canadian production sector, he said, through both in-house and independent producers. It is the market which drives the demand. “They like local content as a supplement” to Disney’s international programming. Independent companies working with the U.S. giant are given a boost when they can tell prospective partners that they have worked with Disney. National President of the Alliance of Canadian Cinema, Television and Radio Artists (Actra) Eleanor Noble told the committee that while production “activity” in Canada is booming, content production in both official languages is lagging behind along with content owned and created by Canadian writers, producers, directors and performers. Noble raised concern later in the day that the bill will have a “significant and detrimental impact” on the Canadian artistic industry because it reduces the requirement to use Canadian creative resources. She said the existing Broadcasting Act is technologically neutral and serves the industry well, whereas Bill C-11 now creates two classes of broadcasters – Canadian broadcasting undertakings (including domestic online undertakings), and foreign online undertakings. “This approach becomes problematic when a lesser standard is introduced for foreign services,” she said. According to Noble, Canada’s screen-based media industry contributes $11 billion to the country's GDP and generates more than 216,000 jobs for Canadians. However, she said that research showed that between April 2020 and March 2021 the screen-based media sector saw Canadian content production decline by 12 per cent and foreign service productions saw a marginal uptick of one per cent. The proposed bill reads that “each Canadian broadcasting undertaking shall employ and make maximum use, and in no case less than predominant use of Canadian creative resources…” while foreign online undertakings “shall make the greatest practicable use of” Canadian creative resources. “Creating this two tier approach would significantly reduce the requirement for foreign online undertakings to use Canadian creative talent, and would devastate our screen based media production sector,” she said. Heritage Minister Pablo Rodriguez recently said that the government needs to modernize what qualifies as Canadian content and that it must modernize the CRTC to fit its new role in the digital age, after opposing MPs and stakeholders raised concern that the regulator lacked the expertise to regulate online platforms. Executive director of the Forum for Research and Policy in Communications Monica Auer, said that the provisions of the bill will do nothing to eliminate the backlog at the CRTC. “Rather than weakening the CRTC’s decision-making independence, Bill C-11 should strengthen it,”Auer said. “Gaps in C-11 will make current problems with the CRTC’s transparency, accountability and timing even worse.” She noted that sections of the legislation would permit cabinet to override the commission in various categories. She said the bill should be revised to force the regulator to issue annual reports of its activities, to be transparent as to who writes decisions, and that investigations be conducted in a timely manner. She pointed to the licence renewal for the CBC which is still not resolved more than a year after it should be. “It’s bizarre it’s taking this long,” Auer told MPs. Questions about the efficiency of the CRTC have been raised at the committee in earlier testimony. Commission chair Ian Scott said the organization could fully implement the law within two years of Royal Assent; former vice-chair Peter Menzies disputed that. Auer is among the naysayers. “I think it’s likely you’ll see increasing delays,” she offered. “The CRTC’s had its resources increased over the last 10 years, that's true. On the other hand, delays have increased in the last 10 years in terms of licensing decisions.” Patrick Rogers, CEO of Music Canada, called for the politicians to enshrine in the act Rodriguez’s statement that user-content will not be regulated. Scott has also claimed that the CRTC will not control content. But the wiggle room in the legislation is worrying to Music Canada. “We think the minister’s right,” Rogers said. “When the minister says no to algorithms and no to cat videos we think the language in the bill should reflect that.” His group supports the core principles of C-11, he told the MPs, and said that radio CanCon regulations of 50 years ago have been integral to the success of modern artists. “In a global marketplace, success in Canada is a stepping stone to international success,” Rogers noted. The CRTC should have the right to mediate disputes between platforms and artists, Joel Fortune, legal counsel to the Independent Broadcasters Group, testified. The internet has removed gatekeepers for consumers, he said. He used the example of OUTtv Network Inc. which has found local access has led to international success. Even then, the company has run into problems in some parts of the world due to the LGBTQ+ content on the network. The Canadian Union of Public Employees heralded the earlier version of the Broadcasting Bill from 30 years ago as an example of how the sector should be regulated. “If it wasn’t for the Broadcast Bill and CRTC regulation, we’d no longer have local news and regional TV stations,” Natalie Blais, research representative of the union, maintained. “When I started to take part in the labour movement in the late 2000s, we had local stations that had Canadian programming obligations, which was at 3 hours, 10 minutes per week, which is very little per day as you can imagine.” That has since been boosted to five hours. Blais called for those rules to be reinforced. The committee will continue its hearings all week. –Reporting by Paul Park at ppark@thewirereport.ca, files from Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

Disney questions CanCon under Bill C-11, ACTRA says bill reduces foreign requirement to use Canadian talent

Broadcast | May 30, 2022

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Disney questions CanCon under Bill C-11, ACTRA says bill reduces foreign requirement to use Canadian talent

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