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COMMENTARY: In modernizing the cancon points test, be careful what you wish for

Updated: May 3, 2023

By Douglas Barrett, Adjunct Professor in the Arts, Media, and Entertainment MBA program at the Schulich School of Business.

Photo of: Douglass Barrett, adjunct professor in the arts, media and entertainment MBA program at the Schulich School of Business at York University
Douglass Barrett, adjunct professor in the arts, media and entertainment MBA program at the Schulich School of Business at York University

This is the fifth piece I have written for on the definition of a Canadian Program (the previous pieces are listed below) and I want to focus this one on the 10-point content scale used by both CAVCO and the CRTC in determining whether to certify a program. As this measurement metric is now decades old, and as the world of production has completely changed multiple times in that period, it is almost universally assumed that a major modernization is in order. Not only does the about-to-be-passed Bill C-11 require a review by the CRTC, but the Canada Media Fund (CMF) has launched its own consultation on the subject.

What specifically are the articulated gripes about the point system? Well, first and foremost there is no formal subject matter requirement for a program to be identifiably set in Canada. The system is clearly focused on counting creative workers. More on this later.

Another complaint is that certifying a program if it achieves just six out of a possible 10 points permits key creatives to be non-Canadian. For example, by requiring that either the writer or director to be Canadian, a key authorial voice drops away. Historically, that has most often been the writer. As well, permitting either the highest paid or second highest paid performer to be non-Canadian is seen to damage the performing community.

Then there is the fact that the system is completely silent on the important role of BIPOC creators.

In the early days when the points metric was first developed, one could argue that there was a dearth of professional level creative talent. This is clearly no longer the case – in any production category.

But the allegation that most certified production is absent a Canadian look and feel is simply not true. There are other informal “regulators” out there actively and effectively at work ensuring that certified productions are genuinely Canadian. How does this “Fuzzy Regulation” (as I call it) work?

To start, the major Canadian English broadcast groups are obligated by the CRTC to spend 30% of their gross revenues on Canadian programs. More importantly, they are required to spend roughly 5% – 9% of revenues on Programs of National Interest (PNI), broadly defined as Long-form Documentary, Drama and Comedy, as well as certain award shows. Not surprisingly, these same categories are generally at the core of the CMF’s television funding program (Drama, Documentary, Children’s and Youth, and Variety and Performing Arts), and broadcasters have access to funding envelopes established for each of them.

To get made, almost all PNI programming requires the support of the CMF and its broadcaster envelopes. The CMF will not support six out of 10 programs or even eight out of 10 programs. With certain very narrow exceptions the CMF guidelines require that each funded project achieve a full 10 out of 10 points.

In addition, the programs must be shot and set primarily in Canada with the proviso that a non-Canadian location may only be used if it is integral to telling a Canadian story. So, the CMF levers the existing formal regulatory structure to ensure that all the key creatives on a supported program are Canadian, and it adds the subject matter piece that is perceived to be missing from the current CAVCO rules.

In the scheme of all things, how much does this mean? Well, it turns out quite a lot.

Each year the Nordicity Group prepares a document called Profile, commissioned by CMPA, AQPM, the Department of Canadian Heritage and Telefilm. Buried deep within the most recent edition are two remarkable charts. The first shows the leverage of CMF participation in Canadian projects. For 2020-2021, the CMF’s $281 million dollars of funding generated $1,366 billion in production. That’s a pretty big number, about 55% of the universe of all Canadian production (excluding broadcaster in house production), all 10 out of 10 and set in Canada.

The second chart is even more dramatic, and frankly astonishing: it turns out that fully 77% of all Canadian production is 10 out of 10; 11% is eight and nine points and only 12% is six and seven points. Indeed, in the decade covered by the chart, the amount of six and seven point production has never exceeded 13%. This is the power of Fuzzy Regulation.

In addition to the CMF’s eligibility pressures, there are the various Canadian Independent Production Funds. While they are technically permitted to fund six out of 10 productions, they rarely do. After all, they see their role as being to support Canadian creators, Canadian stories, and Canadian diversity. So, the pool of digital and linear production they choose to support is very Canadian. This subjective approach is a kind of Fuzzy Regulation too.

Add to this mix the decision-making by the various regional funds, and the genuine commitment of many broadcaster and independent producer creative executives. Also Fuzzy Regulation

Since the CMF is undertaking a consultation on the definition of a Canadian program, one might worry that the CMF is contemplating a relaxation in its own rules. But that decision is not entirely in its hands. All the funding provided by the Department of Canadian Heritage comes under the provisions of a contribution agreement that broadly requires a minimum of 10 out of 10 points on all supported programming. I know this because I was responsible for negotiating the contribution agreements on behalf of the Fund for a number of years in the late nineties and early aughts, and understand that this requirement remains in place today.

Recently, several respected commentators have suggested we adopt the UK approach of requiring 18 out of 35 points on its culturally based system. The main argument is that the British system pretty well guarantees that when a TV program or movie is made with British taxpayers’ money, it looks, sounds and feels British.

But there is a big flaw in the British system, I suspect due to the rules on cultural production across the EU – which remain in effect. So focused are the points on cultural matters, if a program tells a British story, depicts British characters, has a heritage focus, and is shot in the UK, there is actually no requirement for the participation of a single British creator either behind or in front the camera. And, of course, there is no requirement for British creative control or rights ownership of any kind. For this reason, it is often said that a major component of the UK production industry is now owned by American companies. Be careful what you wish for.

So from this side of the table, what we already have, made up of both formal and fuzzy regulation, produces solid results. This is not to say there isn’t work to be done, particularly to ensure access for and recognition of BIPOC creators. The open question is whether this can be more effectively achieved through formal or fuzzy regulation. I’ll leave that for a future piece.

Barrett’s previous writing for Cartt:

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