OTTAWA – Divergent opinions on whether a movie and television producer should be credited as an author on their productions took centre stage at the latest Standing Committee on Canadian Heritage which is discussing remuneration models for artists and creative industries in relation to the Copyright Act review.
Speaking on behalf of the Writers Guild of Canada on Tuesday, which represents more than 2,000 English-language writers working in film, television, radio and digital media production, director of policy Neal McDougall pointed out that both scripts and productions resulting from scripts are separate entities under the copyright law, which affords each of them copyright protection.
The sole amendment put forward by McDougall on behalf of the Writers Guild was a request to clarify that screenwriters and directors should be considered joint authors of cinematographic works, which in turn would shut out producers.
“Authorship is a central concept in the Canadian Copyright Act. The Act acknowledges that authors generally create copyrightable works and states the general rule that the author of a work shall generally be the first owner of the copyright therein. The authors of cinematographic works are jointly the screenwriter and the director,” McDougall said.
“Producers are not authors. Producers are the people with the financial and administrative responsibility for a production, which is defined in the current act as ‘makers.’ While raising financing and arranging for distribution are important aspects of film making, it is not creative in the artistic sense, and it is not authorship. Moreover, copyright protects the expression of ideas, not ideas themselves. So, while producers may, on occasion, provide screenwriters and directors ideas and concepts, it is screenwriters and directors who in turn express those ideas and concepts in copyrightable form.”
McDougall emphasized the Writers Guild of Canada’s proposal poses no threat to existing business models, and that it was not seeking to change Canadian law, but rather make it consistent with other territories in the world.
“Our proposal does not change the law or reality in Canada, it simply clarifies it, and does so consistently with international norms, such as those in the EU,” he explained.
“Why is this important? For one thing, the Act defines the term of copyright based on the life of the author. If the identity of the author is uncertain, then the term of copyright may be uncertain and therefore, there can be uncertainty about whether a given work is still under copyright or is in the public domain. Recognizing screenwriters and directors as joint authors provides support for creators and the role they play in Canada’s creative economy. It gives them a strong position in which to bargain and enter into contracts with others in the content value chain. It puts them on a more-level playing field.”
Directly addressing the guild’s proposal, Canadian Media Producers Association chief legal officer Erin Finlay says her organization, “strenuously opposes the writers’ and directors’ efforts to be made joint authors of copyright in a cinematographic work.”
She added the market has “long ago worked out this question” and that no subsequent changes to the Copyright Act were required in that respect.
Stephen Stohn, President of SkyStone Media and the executive producer of Degrassi, pointed out producers have been long treated as an author in both Canada and the U.S. because they bring together all the creative elements to get a project from concept to screen.
"We cannot do our jobs as producers if we are not considered as we are today, authors of the cinematographic work." – Stephen Stohn, SkyStone Media
“We hire and work closely with all the creative roles. We work with screenwriters to turn ideas into scripts. We hire directors to help turn scripts into projects. Screenwriters and directors are important partners of producers. We cannot do our jobs as producers if we are not considered as we are today, authors of the cinematographic work,” Stohn said.
Finlay said Canada finds itself at an important cultural crossroads, one that will ultimately determine the success or failure of Canadian content creators moving forward.
“From cable company contributions to the Canada Media Fund, to Canadian programming requirements, to intellectual property laws that protect and incentivize Canadian creation, our communications and copyright legislative framework is backbone of current vibrant, domestic market,” Finlay said.
She cautioned the committee on the “cultural behemoths south of the border” – namely Netflix and Amazon – which she says are drawing Canadian subscribers away from domestic cable companies.
“These foreign players are delivering U.S. content straight into our homes with complete immunity from the strong regulations that helped build our industry. This has created an unfair competitive advantage and is putting immense stress on our funding system for Canadian content.
“Failure to regulate these foreign entities and how content now reaches audiences is an existential threat to Canadian artists and creative industries. We must level the playing field and give the CRTC the tools it needs to do so. Our system must be modernized to require foreign OTT services and the new distribution channels operating in our market to contribute to the production of Canadian content or there will be no more Canadian copyright to review.”
Finlay added that new methods of delivering content to consumers will eventually render the re-transmission regime and Copyright Act obsolete. As such, she said the CMPA was putting forward a recommendation that the re-transmission regime be modernized and made technologically neutral to account for online and mobile use of protected works.
Additionally, the organization is also advocating for rightsholders to be able to obtain injunctive relief against intermediaries with respect to large-scale commercial piracy, citing website blocking and de-indexing orders as tools that could be effective on that front.
