Indie producers want more flexibility with new co-pro treaty

A fight could be brewing, as producers want better chances of working with foreign partners, while unions and guilds dig in to preserve key creative jobs for their members.
The Tudors

Canadian producers and union and guilds have for so long maintained an uneasy truce to stand firm against broadcasters that, suddenly, an issue has emerged that threatens to divide brother against brother and company against company.

The issue, of course, is the film and TV co-production between Canadian and foreign partners that the Heritage Department in Ottawa wants to reform with a new model treaty.

A survey of submissions to the feds during a current consultation phase reveals indie producers are looking for more flexibility to better their chances of working with foreign partners, just as unions and guilds dig in to preserve key creative jobs for their members.

In answer to consultation questions posed by the feds, the Canadian Media Production Association (CMPA), representing major indie producers, told Heritage it seeks to “enhance the flexibility afforded to producers to structure a co-production in such a way as to optimize the potential for attracting financing and achieving commercial success.”

The major changes urged by the CMPA include lowering the minimum threshold for producers’ financial contribution from 20% to 15% of the total production budget, and introducing “reasonable” reciprocity between creative control, financial participation and copyright ownership.

Much of the industry advice to Heritage hinges on the principle of proportionality, or the ratio between a producer’s financial contribution and their creative and technical participation as measured by the number of key creative positions, including the director, writer and lead actors.

The CMPA called for “sufficient latitude” to allow more Americans and other non-party or third party players to hold key creative roles in a co-production “on a case by case basis, as may be required to attract financing and/or talent to a given work.”

The producers are also looking for the feds to back away from current practice where key creative skills should ideally come from both co-production parties, the project should reflect both countries and should be released in their respective markets.

The producer submissions point to a future model treaty that would allow third-party nationals to routinely fill key creative roles, and where only one of the four “key positions” would need to be filled by a Canadian or permanent resident.

The issue of more flexible creative control also extends to how producers share the copyright in a co-production.

Muse Entertainment, a major co-producer, recommended in its submission that co-production partners be allowed to share the copyright and revenues at their own choosing, and that a proportionality test not be used for expenditures and financial contributions.

“In other words, the producers should have a right to negotiate more freely for their ownership and revenue interests in the project,” Muse argued.

Here the producers are looking for Canada’s treaty co-production model to keep pace with a domestic industry increasingly packaging U.S. cable shows for production in Canada as local fare, or acquiring European costume dramas co-produced by Canadian partners for primetime schedules here.

Against the producers’ flexibility play to more easily win over foreign partners, industry unions and guilds are calling on Heritage to ensure continuing job creation by international co-productions.

The Directors Guild of Canada took exception with indie producers urging that their minimum contribution be reduced from 20% to 15% of a production¹s total budget.

The filmmakers’ association said lowering the producer’s commitment would “lead to less work opportunities for Canadians.”

“It also opens up the danger of contributing to the production of American programming under the guise of a Canadian treaty co-production, a situation that would be unacceptable,” the guild added.

ACTRA, the Canadian performers union, in its own submission warned against reforming current rules to allow more non-party nationals to assume more key creative roles in co-productions to bring more foreign financing and parties on board.

“The result of this proposal is that a co-production has no obligation to cast any Canadian performers in the two leading roles ­ they can be from the partnering country or in the case of a big-budget project, they could both be American,” ACTRA argued.

The actors union suggested minority and majority Canadian co-productions have a Canadian in either the lead or second lead actor roles.

The Writers Guild of Canada in its submission argued it was wrong that Canadian primetime schedules are filled with so many minority co-productions like The Tudors (pictured), The Borgias, Camelot and Pillars of the Earth.

The WGC urged that Telefilm Canada, which administers the Canada Media Fund, put majority co-productions at the front of the queue for new investment before minority co-productions could be approved for scarce financing.

“We understand it is difficult to raise financing, but to truly build something for everyone in the industry we need an equal number of majority co-productions in key areas like TV drama,” WGC head Maureen Parker argued.

Even the Canada Media Fund, which does not administer Canadian co-productions, but invests in them, is wary of a more flexibility model treaty that could infringe on its current priorities and mandate.

“Currently, the CMF relies on the treaties to provide balance (between Canadian and non-Canadian elements), and makes no further rules of its own in this regard,” the fund said in its submission of current treaty safeguards.

“If the CMF found that the treaty was inconsistent with its mandate, it may have to consider additional rules or safeguards in pursuit of its objectives,” the CMF added.

Heritage Canada is to use the submissions to help negotiate or renegotiate co-production treaties with international partners.