IP-retention issues must be addressed in Acts review: CMPA

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The producers association said global digital platforms and large Canadian broadcasters have disproportionate leverage when negotiating agreements with domestic producers.

The bargaining power wielded by global digital platforms and large Canadian broadcast groups is creating IP-retention issues for producers that must be addressed in the reviews of the Broadcasting and Telecommunications Acts, according the CMPA.

In its written submission to the Acts review panel, the producers association said the CRTC must be given express power to regulate what it sees as a power imbalance between the indie production community and the largest commissioners operating in Canada.

On the domestic front, the CMPA’s paper argues that “producers are increasingly being forced to act like production contractors operating in a service industry [...] unable [to exploit] their content and intellectual property in their dealings with domestic broadcasters.”

The submission also said global digital players have disproportionate leverage when negotiating agreements with Canadian producers, some of which have reported doing “super service” deals where they are “hired to produce an entire show from script to final delivery, yet do not own, control, or share in any exploitation rights in the IP.”

These “super service” deals are something the CMPA said it heard about during its cross-country consultation tour that ran from August to October last year. This type of deal is becoming increasingly common in markets across the world as digital players aggressively pursue an owned-and-controlled strategy as they build out their original content libraries.

While the CMPA acknowledged that the service-production business in Canada is driving record levels of production spending, its view is that an overabundance of service work results in the value of the IP developed, created and produced by Canadians leaving the country. “This reality has the potential to turn Canada’s vibrant domestic independent production industry into a mere branch plant of the U.S.; one that is dictated by U.S. audience programming choices and that is overly dependent on the U.S. market and political environment.”

The CMPA pointed to the U.K. as an example of an industry where the bargaining power between producers and commissioners is regulated more appropriately. In the U.K., this was done through a Terms of Trade agreement (Canada’s Terms of Trade expired in 2016) between public service broadcasters and indie producers, allowing producers to retain secondary and ancillary rights to their IP, and exploit that IP globally. In addition, the U.K. has a Codes of Practice that governs how public service broadcasters commission programs from independent producers. In its submission, the CMPA said it is “critical” that the CRTC be given the power to implement a Code of Practice if it is determined in the future that it is in the public interest.

Elsewhere, in a separate proposal, the CMPA recommended that the CBC be required to enter into a Code of Practice that would govern the public broadcaster’s commercial relationship with independent producers. The code would provide a future framework for all business dealings between the public broadcaster and the prodcos it commissions projects from, including a clause clarifying CBC cannot take international rights to properties it greenlights. “In its negotiations with independent producers, the CBC should not be entitled to take international rights that may impact producers’ ability to finance their programs,” said the CMPA.

The producers association also called for an expansion of the concept of “exhibition” to address the shift to on-demand viewing habits. Under the current Broadcasting Act, the definition of exhibition covers only the amount of time that Canadian programming must be shown for, with CMPA calling for a redraft of the literature surrounding exhibition. “[T]his section must be expanded to incorporate the concepts of shelf space, discoverability, priority, prominence, and promotion – in other words, any manner of “exhibition” related to Canadian programming.”

Piracy was also addressed in the CMPA’s submission. In the fall, the commission rejected an application from the FairPlay Canada coalition (which includes the CMPA) to institute a website-blocking regime to address piracy. At the time, the CRTC rejected the proposal on the basis that it did have the jurisdiction to consider it under the Telecommunications Act. In its written submission, the CMPA called for the Telecommunications Act to be updated to give the CRTC the power to implement measures to fight online piracy.

Elsewhere, the CMPA proposed that the commission be given the explicit power to order broadcast undertakings to direct expenditures to production funds, and to impose monetary fines on broadcasting undertakings. As well, it recommended that the government fast-track a review of the CRTC’s powers in order to bring foreign-based digital companies under Canadian regulation.

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