Why Policies to Promote “Canadian Stories” Need an Overhaul

Why Policies to Promote “Canadian Stories” Need an Overhaul
Posted on March 11, 2020 | Michael Geist | Written on March 11, 2020
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Canadian content requires having a Canadian producer along with meeting a strict point system that rewards granting roles such as the director, screenwriter, lead actors, and music composer to Canadians. It is checklist approach that is ultimately a poor proxy for “telling our stories.”

The challenge is that the Cancon rules are premised on three competing objectives which do not mesh easily together into a single policy.

The first objective posits Cancon as a cultural policy that preserves and promotes Canadian stories. The current approach is woefully ineffective in this regard. Programs such as The Handmaid’s Tale may be based on a Margaret Atwood novel, but using one of Canada’s best known novelists as the source doesn’t count in the Canadian points system. Meanwhile, “co-productions”, in which treaty agreements deem predominantly foreign productions as Cancon (enabling the Norwegian language film Hevn to qualify as Canadian) almost completely sever the link between certification and Canadian stories.

The second objective envisions Cancon as economic policy designed to create jobs and facilitate local investment. Yet other than a handful of specific industry jobs, there are few economic differences between Cancon and foreign productions. Indeed, governments and industry tout the economic benefits of both equally since the overwhelming majority of job opportunities are the same.

The third objective is Cancon as intellectual property policy, which adopts the position that producers must be Canadian to ensure control over the global rights. This leads to rules that preclude foreign companies from producing Cancon and requiring domestic IP ownership. As a result, revivals of Canadian programs such as Trailer Park Boys do not meet the qualification requirements if Netflix is the sole funder and producer. Further, the Yale Report recommendations would require foreign companies to invest in Cancon but cultural policies restrict their ability to actually own the IP, setting up the possibility of a trade challenge under CUSMA.

There is nothing wrong with wanting to promote Canadian stories, facilitate job creation, and enhance intellectual property ownership. But if the goal is Canadian stories, the current policy needs to be revamped to better reflect those cultural goals. If it’s economic policy, there is no reason to distinguish between investment in domestic or foreign productions. If it’s IP, Canada can’t both require foreign investment in Cancon and restrict IP ownership. Before the government leaps into a controversial communications law overhaul, it need to get its Cancon story straight.

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Michael Geist's picture

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School... More