Policy Matters: Kicking and screaming into the future

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In 1995, I sat in a Canadian Radio-Television & Telecommunications Commission (CRTC) hearing room arguing against the specialty broad- casters’ blossoming practice of refusing to license documentary (and other) projects unless “internet” rights were surrendered for a nominal sum—like a dollar—as well. A few of us (filmmakers, producers, and one esteemed communications lawyer, Peter Grant) argued that this grab was not only unconscionable but, as a business practice, represented an egregious example of a forced-tied sale that flew in the face of the spirit of the 1991 Broadcasting Act, which provides for the conditions where not only broadcasters can thrive, but independent producers, too. After all, you can’t have policy for Cancon without the skilled folks to provide it.

Permit me to quote their response from memory: “Why bring this to us?” they asked, with barely veiled hostility, “it’s not our concern. We don’t get involved in matters not broadcast related.”

Slack-jawed, we patiently tried to impress upon them that in time they would have little choice but to get involved, perhaps kicking and screaming, in the nether world of the Internet—and the larger, messier business of rights, revenue, and how broadcasters conduct their business (i.e., Terms of Trade).

Flash forward 13 years. After much braying from the independent community, two large processes have finally come to the forefront: one is the Terms of Trade talks now underway between producers and broadcasters; and two, the Commission, with much belated fan- fare, proclaiming in May that gee, maybe they should figure out after all how or whether to regulate online broadcasting.

These two policy processes are in fact related (rights and content), and their dominance in cultural policy at the moment has been occasioned by the tremendous consolidation in broadcasting, cable, and wireless that the Commission has allowed.

Producers are typically concerned about license fees, revenue splits, delivery schedules, and creative copyright issues—like how come an idea pitched is refused, only to um, appear on the schedule a year later produced by a friendlier producer (one public broadcaster in particular has been singled out for this lapse in fair play). Terms of Trade agreements were always necessary to deal with these things, but no one was compelling the ’casters to play ball. Sure, the CRTC gave nominal acknowledgement to the need for such formal agreements—the BBC has had one for years, for instance—but never offered a mechanism that they themselves could monitor or be account- able to beyond some nebulous time frame they ignored (as in the case of the CBC).

The Terms of Trade talks are now high on the agenda precisely because the fight over broadband/streaming/Internet rights has intensified. Broadcasters claim, as they did in ’95, that no one knows how revenue will be generated to pay for online programs, so how can a fair value be placed on them? And they are right: no one really does know. For now.

Meanwhile, in Canada, they’ve been allowed to wield unprecedented power. Many ‘casters are owned by entities that not only deliver cable in some cases, but wireless as well, like Rogers and Bell Globemedia. It’s a market that’s left producers and filmmakers vastly outplayed in negotiations for programs that are being made and delivered now, where rights are being scavenged in all media, in perpetuity, throughout the universe with- out a clear appreciation by broadcast entities of their value.

Enter the CRTC—finally—to do its part in assessing regulation as this world spins off into the galaxy of “new media.” But if all their efforts merely amount to figuring out how to regulate Cancon without looking at the very issues the Terms of Trade talks will delve into, then we’ll be not much further ahead than in 1995, when the “ick” factor was too high for the Commissioners to stomach.

Barri Cohen is an award-winning producer, writer, and director. She co-produced Phyllis Ellis’ Toxic Beauty (2019) and is currently completing a feature documentary for the Documentary Channel.

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