In support of a cultural approach to the definition of a Canadian television program

Creative control of a production is the best way to guarantee the presence of Canadian attitudes, opinions, ideas, values, creativity and experience.

by Robert Armstrong

A major debate is brewing over Canadian content in television. In February and March 2024, the Canadian Radio-television and Telecommunications Commission (CRTC) is organizing a series of workshops across Canada to review the definition of a Canadian program.

Since the enactment of the Online Streaming Act in April 2023, which amended the Broadcasting Act, the definition of a Canadian program has become the subject of criticism by those who would like to reduce its scope to minimize the impact of the changes to the law. Yet the current approach, which favors a cultural rather than an economic perspective, remains the best way to address the issue.

The Broadcasting Act is a cultural law that requires contributions to Canadian content with a view to maintaining and enhancing national identity and cultural sovereignty. The CRTC currently imposes Canadian content obligations only on licensed broadcasters, such as radio and television undertakings. Online streamers, who will be governed by a new registration regime, have no such obligations as yet.

As a result of amendments to the Broadcasting Act in 2023, the commission will soon impose new obligations on the largest online undertakings, such as Netflix, Disney and GAFAM (Google, Apple, Facebook/Meta, Amazon, Microsoft), for programs they broadcast that are covered by the act. These obligations will probably be similar to those currently required of Canadian broadcasters authorized by license, whether they be general-interest services like the CTV network, or video-on-demand (VOD) undertakings such as Rogers On Demand. These new obligations for web giants could include offering a certain percentage of Canadian programs, including feature films, in their catalogs.

Making these programs available to viewers will not oblige anyone to watch them. However, new rules could require a certain visibility or “discoverability” of Canadian programs to make the public aware of their presence.

For an objective definition of Canadian content

To avoid any new requirements, the web giants and major U.S. studios (see MPA-Canada’s July 7, 2023 intervention to the CRTC), supported by Canadian libertarians, are seeking to broaden the definition of a Canadian program. Because they already produce programs in Canada, several U.S. online undertakings and studios want the concept of a Canadian program to be redefined to render the effects of the Online Broadcasting Act null and void.

As a rule, these run-away Hollywood productions are transferred to Canada to benefit from the advantageous value of the Canadian dollar, tax credits offered by provincial and federal governments, and the excellent services provided by technicians throughout Canada.

Although shot in Canada, these productions don’t qualify as Canadian programs because they don’t meet the current criteria for certification. Indeed, American studios and web giants ensure that their programs tell stories in a setting familiar to American viewers, drawing on American creative elements and embodying an American point of view.

To qualify as Canadian, a program must embody a Canadian “point of view” — an element that is admittedly not easy to assess. The simplest way to guarantee this is to require that the creative elements involved in its production be Canadian. This approach, which relies in part on a points system based on the presence of Canadian creative elements, is essentially objective and relatively simple to manage administratively. It avoids a cumbersome process where officials would read thousands and thousands of projects, synopses, or scripts in an attempt to identifya “Canadian point of view” — a judgment that would inevitably be subjective and arbitrary.

To be certified as “Canadian” at present, a program must normally include a Canadian writer or director, a Canadian actor in one of the two leading roles, additional Canadian creators and a Canadian producer. Seventy-five percent of the production budget must be devoted to Canadian individuals or companies (there are certain exceptions to these rules, for example, in the case of an official international co-production). That said, the rules for certifying a Canadian program should not be confused with those for financing, in which case the responsible agencies, such as the Canada Media Fund (CMF), may impose additional requirements.

In principle, there’s nothing to stop foreign studios and online undertakings from abandoning their current practices and respecting the criteria needed to obtain Canadian certification for some of their projects. But at the present time, they prefer to use their lobbying power to change the rules for certifying Canadian content rather than to comply with them.

Requirements that irritate foreign studios

One aspect of the definition of a Canadian program to which they object is the requirement that its producer be Canadian. Wanting to control the nature of the project (and eventually the rights for worldwide distribution attached to it), online undertakings and American studios are generally reluctant to share the management of a project with a Canadian producer.

Another requirement that troubles them is the hiring of a Canadian writer or director. Most of the time, American studios and online undertakings want their compatriots to control the content of a program, to ensure a point of view compatible with their own values. What is more, they prefer that the main roles in the production be filled by actors familiar to the American public, to facilitate its eventual promotion. In addition, as American audiences are not accustomed to watching dubbed or subtitled programs, American companies require, with a few exceptions, that programs be filmed in English. This is a major constraint on the capacity of French-speaking creative elements in Quebec (and elsewhere) to collaborate with American firms.

Creative control of a production, using a quantitative approach, is the best guarantee of the presence of Canadian attitudes, opinions, ideas, values, creativity and experience, that is, the presence of a Canadian point of view on the screen.

An economic approach to the definition of a Canadian program would place much greater emphasis on the total employment generated by the production and its attractiveness to foreign investors, rather than on the “point of view” expressed by its principal artisans – the writer, director and lead actors. (The economic element is already taken into account in the current definition by the requirement that seventy-five percent of the total production budget be devoted to Canadian individuals or companies).

To believe that Canadian content certification should also encourage foreign investment in our broadcasting system is mistaken. Rather, that is the role of federal and provincial tax credits — like the federal government’s film or video production services tax credit. If Ottawa wants to encourage foreign investment in Canada, it should strengthen the tax credit, and leave the definition of a Canadian program intact. The current approach to this definition, which favours cultural rather than economic objectives, remains the best way to ensure Canadian and Quebec perspectives find their way to air.