The Canadian Media Producers Association (CMPA) is seeking terms of trade between Canadian producers and traditional and online undertakings.

The organization appeared at the Canadian Radio-television and Telecommunications Commission (CRTC) market dynamics hearing on Wednesday (July 2) in Gatineau, Que., one day after the National Capital Region was caught up in Canada Day celebrations.

“This discussion is happening at a time when our broadcasting system is already heavily consolidated and vertically integrated, with a handful of Canadian companies controlling market shares of greater than 90%, in both broadcasting and distribution,” CMPA president and CEO Reynolds Mastin (pictured) told commissioners.

The CMPA has proposed the implementation of “codes of practice” that would be negotiated between producer associations, Canadian broadcasters and foreign streamers. They would ensure rights retention, define licensing terms, mandate fair revenue sharing, and “increase transparency, requiring major buyers to disclose key performance data to producers,” according to the CMPA’s written submission to the Commission.

Patrick Smith, the CMPA’s director of regulatory affairs, said the codes of practice would also help fulfil the requirements under the Broadcasting Act that the CRTC “consider the extent to which broadcasters and streamers collaborate with independent producers,” adding that the codes were inspired by a model from across the Atlantic.

Max Rumney, deputy CEO and director of business affairs at Pact Ltd. – the trade association representing independent producers in the U.K. – outlined how a British regulatory tool “can rebalance relationships between independent producers and buyers.”

Introduced in 2004, the U.K.’s Terms of Trade framework “unleashed the entrepreneurship of the independent production sector” and “fundamentally reshaped” it, said Rumney.

“It has ensured that producers are able to retain the intellectual property rights to the programs they create,” he said. “That ownership allows them to monetize their content beyond the initial license and broadcast window by retaining exploitation rights, such as international program sales, formats and merchandising.”

Rumney said that public service broadcasters have also benefitted, “receiving prescribed revenue shares on the rights exploited by producers.”

Lisa Broadfoot, the CMPA’s VP of industry and business affairs, argued that codes of practice “would help restore commercial balance.”

“They can redress producers’ limited negotiating power by safeguarding baseline requirements around rights retention, licensing terms, revenue sharing and data transparency,” she explained.

As Mastin outlined, “the Online Streaming Act has given the Commission the mandate to empower producers to monetize their IP so that they can invest in creative development, Canadian creators and Canadian productions – the three essential building blocks to making great shows.”

Earlier in the day, representatives at CBC/Radio-Canada shared their recommendations for a modernized regulatory system.

While many broadcasting distribution undertakings (BDUs) have called for relaxed regulations for the traditional broadcasting system, Canada’s public broadcaster disagreed. “The rules in place are more necessary than any other time in the history of this industry,” argued Jon Medline, CBC/Radio-Canada’s executive director of policy and international relations.

He said that nearly six out of 10 Canadian households subscribe to a BDU, and that market “remains by far the largest segment of the Canadian broadcasting sector in terms of revenue.”

“The health and viability of independent programming services are absolutely reliant on access to BDU systems and packaging,” said Medline.

Yet, as Elizabeth Heurtelou, senior director of distribution and partnerships, told commissioners, “Canadian content and voices risk being lost amid a growing seat of foreign content on foreign platforms,” which are not subject to a requirement to “offer, promote or highlight Canadian content or services on their user interfaces.”

“In this digital environment, the gatekeepers are huge international conglomerates,” she said, noting that while such connected TV manufacturers as Samsung, LG and Sony “are absent from the discussion,” they have a “colossal, perhaps even hidden, impact on the Canadian market.”

CBC/Radio-Canada recommended that the Commission require online distributors “to specify how they provide discoverability and prominence of Canadian programming services and their content,” and “produce a detailed report on this subject,” said Anne-Marie Migneault, director of regulatory affairs.

Bev Kirshenblatt, executive director of corporate and regulatory affairs, called on the CRTC to determine which online undertakings would be subject to the CRTC’s mandatory distribution orders under 9.1(1)(i), recommending that mandatory distribution orders be made prior to any conditions of service proceedings. During that time, parties would be able to enter good faith negotiations to set terms of service.

The Cable Public Affairs Channel (CPAC) added its voice to the chorus of companies calling for 9.1(1)(h) services to be supported under a Services of Exceptional Importance Fund, which would bring greater financial support to the services as revenue from their mandatory carriage continues to decline.

With the Online Streaming Act now “expressly” recognizing digital platforms as part of Canada’s broadcasting system, “it is time for this sector to support services, such as CPAC, that are considered to be of exceptional importance to the achievement of broadcasting policy objectives,” said president and CEO Christa Dickenson.

In her submission to the Commission, Dickenson wrote that “to be fair and equitable, agreements negotiated with [an] online service would need to put CPAC in a position that is similar to the position [it] is in regarding BDU distribution.”

“Otherwise, the terms of any agreement would be unreasonable in relation to CPAC’s distribution and role across other elements of the broadcasting system,” she wrote. “CPAC has received no indication to date that large online services will modify their standard distribution deals to accommodate Canadian services of exceptional importance.”

Appearing in front of the Commission on Thursday (July 3) are Amazon Canada, the Documentary Organization of Canada and Unifor, among others.