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Public Notice
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Ottawa, 2 March 1984
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Public Notice CRTC 1984-56
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Proposed Criteria: Recognition for Canadian Programs
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Proposed Amendment to Television Broadcasting Regulations
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For related documents: Public Notice CRTC 1983-18, 31 January 1983, "Policy Statement on Canadian Content in Television"; Public Notice CRTC 1983-51, 21 March 1983, "Definition of a Canadian Program"; Public Notice CRTC 1983-174, 15 August 1983, "Proposed Definition of a Canadian Program".
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For complementary documents: see Appendix B
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BACKGROUND
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On 31 January 1983, following a process of public consultation and review, the Commission issued its Policy Statement on Canadian Content in Television (Public Notice CRTC 1983-18). In this document, in response to strong representations supporting the development of an effective definition for Canadian content, the Commission announced a proposal to introduce a definition for Canadian programming based on a point system, "which would focus primarily on the two observable aspects of any program: performance and production."
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The Commission stated further that it considered it "desirable to move towards having a single definition for Canadian content for all federal government departments and agencies concerned. Consultation with the industry and governmental agencies (is) essential to develop an effective and practical Canadian content definition."
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The current method of determining Canadian program status is based on guidelines published by the Commission on 16 May 1972 and is again described in Public Notice CRTC 1983-174 dated 15 August 1983. In that notice, the Commission also outlined the results of the first round of consultations pursuant to Public Notice CRTC 1983-18, and called for public comment on all proposals which had then been submitted.
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The Commission has received 50 submissions in response to Public Notice CRTC 1983-174. Clarification regarding some of these has been sought at meetings between representatives of the Commission and those who replied to this call. In addition, a second consultative workshop was held on 19 December 1983 to discuss certain outstanding issues.
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The Commission thanks those who participated in this process of public consultation, including individual members of the public, CRTC licensees, production industry representatives and other interested parties. Their time and research and their positive approach at all discussions has been of great assistance and benefit to the Commission in fulfilling its mandate on this important matter.
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As a result, the Commission is now prepared to issue revised proposed criteria for the "Recognition for Canadian Programs." These criteria are being published in the Canada Gazette, and the public is invited to submit comments which must be received by the Commission by 2 April 1984. Pending final determination by the Commission, the criteria will be in force as of 15 April 1984.
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As stated previously, the Commission considers it desirable to ensure, to the maximum extent possible, that there will be uniformity between the government departments and agencies concerned on a definition of what constitutes a "Canadian program". In this connection, the Commission has given careful consideration to the representations made with respect to the adoption of the Capital Cost Allowance (CCA) model. The Commission is satisfied that the CCA point system and criteria wich are currently applied by the Canadian Film and Videotape Certification Office of the Department of Communications (CFVCO) for feature film productions can effectively be used by the Commission as the basis for its recognition of a Canadian program. Nevertheless, the Commission wishes to emphasize that these are minimum requirements and that it expects to undertake periodic reviews with all parties concerned to evaluate the effectiveness and practical application of such criteria.
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PROPOSED "RECOGNITION FOR CANADIAN PROGRAMS, 15 APRIL 1984"
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A Canadian program is a live, video tape or film production of any length, that meets the requirements of the point system and cost criteria currently used by CFVCO for feature productions, as varied by the Commission as stipulated below, and in which case such variances would prevail for the present purposes.
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Basic Application Process
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Upon request, the Commission will issue an advance ruling, preliminary or final recognition or special recognition, as the case may be, to any licensee, producer or property rights holder, where the program satisfies the requirements of the definition of a Canadian program. Submission of an application for advance ruling or for preliminary recognition is not mandatory; it is at the discretion of the applicant.
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I. BASIC DEFINITION OF A CANADIAN PROGRAM
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The Commission will recognize as a Canadian program, a live, videotape or film production of any length, that meets the following:
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1. PRODUCER(S): the producer, the individual who controls and is the central decision-maker of the visual production from beginning to end, must be Canadian. Additionally, all individuals fulfilling producer-related functions must be Canadian. Exemptions will be considered for non-Canadians to receive credits for producer-related functions as described in the CFVCO certification process booklet.
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2. THE POINT SYSTEM: a production must earn a minimum of six units of production or "points" based on the following key creative functions being performed by Canadians:
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Director - 2 points Writer - 2 points Leading performer - 1 point Second leading performer - 1 point Head of art department - 1 point Director of photography - 1 point Music composer - 1 point Editor - 1 point
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3. Notwithstanding the above, at least one of the director or writer and at least one of the two leading performers must be Canadian. The points for writer may be obtained if all screenwriters are Canadian or if both the principal writer and the author of the original work on which the production is based are Canadian. Determination of leading performers may take into account billing, screen-time and payment; this determination could be changed after further discussions with ACTRA, Union des artistes and other guilds, producers, CFVCO and CFDC.
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4. Productions in which non-Canadians are the only leading performers will not be accepted as Canadian, and the addition of Canadians in minor roles will not be sufficient for a production to qualify.
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5. Upon application, the Commission may recognize as a Canadian program, a production in which the positions of either:
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a) director and writer, or
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b) both leading performers are filled by non-Canadians, as long as all other key creative functions are filled by Canadians.
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6. Key creative functions could vary for different types of productions. Such variations will be taken into consideration by the Commission for the present purposes. (See attached Appendix A).
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7. EXPENDITURES: At least 75% of total remuneration paid to individuals, other than the producer and key creative personnel as listed above or for post production work, must be paid to, or in respect of services provided by, Canadians; and at least 75% of processing and final preparation costs must also be paid for services provided in Canada.
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8. The Commission may require audited statements and/or affidavits in support of an application.
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9. The Canadian content certification given by the Minister of Communications upon recommendation by the Canadian Film Development Corporation (CFDC) or CFVCO will also constitute recognition for Canadian programs by the Commission.
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10. Established CFVCO forms and procedures are acceptable to the Commission, except where variances are outlined in this document. The descriptions and interpretations detailed in the CFVCO certification process booklet will be used by the Commission, unless or until the Commission develops its own definitions and interpretations, if need be.
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11. Interpretation Notes
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a) Producer. The producer is expected, inter alia, to be involved in acquiring and developing the story, selecting and engaging the key creative personnel, budget preparation, financing, control of expenditures and distribution of the production.
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b) In productions where not all of the key creative positions are utilized, and there are fewer than six points possible, recognition will be granted if Canadians perform all key creative functions.
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c) Points will only be awarded in respect of a particular position if all persons sharing the duties of that position are Canadian.
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d) Head of Art Department. The Head of the Art Department will generally be the Production Designer. If there is no production designer the Art Director is considered Head of the Art Department.
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e) Director of photography - or Technical Producer/Director. The lighting director is not accepted as a technical director on videotape productions.
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f) Music composer. The point is awarded only if a Canadian has composed the original music and/or lyrics for the production. The rearrangement of existing music does not warrant a point. The position of music director is not accepted as a music composer.
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g) Editor. Means film or videotape editor. The positions of sound or music editor will not be acceptable.
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h) Expenditures. "Services" exclude goods. Payments for the purchase of goods such as film or videotape stock, supplies and equipment, and for the acquisition of music, story and copyrights, and non production-related fees, such as legal and accounting fees, are excluded from the 75% calculations.
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II. SPECIAL RECOGNITION FOR CO-VENTURES
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Co-ventures are defined as international co-productions not included under the treaties administered by the CFDC. They include all ventures with co-producers of any foreign country that does not have a film or television production treaty with Canada, and ventures with co-producers of any treaty country, where such ventures are not specifically covered by any treaty. The key function in these co-ventures is that of the producer.
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Such co-ventures will qualify for special recognition and will be given 100% Canadian program credit when broadcast or otherwise distributed by any licensee of the CRTC, even though some of the producer functions are performed by non-Canadians, where co-venture agreements and other documentation substantiate that the Canadian production company:
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- has no less than an equal measure of decision-making responsibility with other co-venture partners on all creative elements of the production, and
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- is responsible for the administration of not less than the Canadian element of the production budget.
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A "Canadian production company" is a licensee of the CRTC or is a Canadian company which carries on business in Canada with a Canadian business address, which is owned or controlled by Canadians and whose principal business is the production of film, videotape or live programs for distribution on television or in theatrical, industrial or educational markets.
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The application for Canadian recognition must be made by the Canadian production company and must be accompanied or supported by signed agreements between the co-venture partners. Such co-venture agreements will be kept confidential.
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The decision-making responsibility for the production will be deemed to be in the hands of a Canadian production company when that company:
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a) has sole or co-signing authority on the production bank account: for co-ventures shot entirely in Canada, the production bank account must be in Canada; for those shot partially in Canada, a Canadian bank account would be required for that portion of the production shot in Canada; in the case of co-ventures shot entirely outside Canada, there must be a Canadian bank account for payment of the Canadian elements of the program;
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b) has an equity position in the production and the entitlement to profit sharing;
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c) is at financial risk and/or has budgetary responsibility, including responsibility for over-runs;
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d) has no less than an equal measure of approval over all elements of the production with the co-venture partners, regardless of the number of foreign persons fulfilling the functions of executive producer or producer.
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With regard to points and expenditures, a co-venture with a co-producer from a Commonwealth or French-language country, or a country with which Canada has a film or television production treaty, will be considered as qualifying for Canadian program special recognition where, in addition to meeting the foregoing requirements, it attains 5 points, and at least 50% of the total remuneration paid to individuals, other than the producer and the key creative personnel listed above, or for post production work, is paid to, or in respect of services provided by, Canadians, and at least 50% of processing and final preparation costs are paid for services provided in Canada. Notwithstanding the above, the director or the writer and at least one of the two leading performers must be Canadian. All other considerations for recognition of a Canadian program apply to such a co-venture.
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Any other co-venture will be required to meet the same points and expenditure minimum requirements as a domestic production.
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III. SERIES
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Recognizing that the production elements of a series of programs may vary and that some of the episodes, if considered individually, could fall below the minimum requirements of the point system, the Commission will examine a series in its entirety and may grant it recognition if, on an overall average, it meets the minimum requirements.
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For the present purposes, a "series" means two or more programs produced by the same production company, having a common theme, situation, or set of characters, and completed within a 12-month period.
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A licensee will only be entitled to claim Canadian program recognition for any episodes in a series which might not meet the Canadian program recognition criteria when at least the same number of offsetting episodes which exceed such criteria are broadcast or otherwise distributed, at equitable times.
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IV. PRODUCTION PACKAGES
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For the present purposes, a "production package" means two or more co-productions or co-ventures, undertaken by a Canadian production company together with one or more non-Canadian production companies, where a production that qualifies as a Canadian production, with minor foreign involvement, is matched with a foreign production, with minor Canadian involvement.
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The production packages may be accepted as Canadian, where a Canadian production company is involved and the co-production partners are the same for all the productions. The role of the Canadian production company is as defined for co-ventures. In assessing a production package, the Commission will examine it in its entirety and may qualify it if, on an overall average, the minimum requirements for co-ventures are met. Furthermore, a licensee will not receive credit for the production with fewer Canadian elements unless it also carries the production with the larger number of Canadian elements, at equitable times.
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All other considerations for recognition for Canadian programs apply.
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The Commission will follow closely the extent to which licensees make use of co-venture productions or production packages to meet Canadian content requirements. It will review before April 1987 the suitability of continuing to accept production packages for the present purposes.
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V. SPORTS ACTUALITY PRODUCTIONS
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Productions of sports events or tournaments will be considered Canadian where a Canadian licensee or Canadian production company has production control and provides the commentators, whether the event takes place inside or outside Canada; in the latter case, the production would qualify only where Canadian teams or athletes participate in these events or tournaments.
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VI. DUBBING
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1) Where a program is not a Canadian program and is produced in an official language of Canada or a native Canadian language, and the audio portion of that program is converted into the other official language of Canada or a native Canadian language by a process of lip synchronization done in Canada, using Canadian resources, one-quarter of the program time attached thereto shall be deemed to be Canadian.
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2) Where a program is not a Canadian program and is produced in a language other than an official language of Canada or a native Canadian language, and the audio portion of that program is converted into an official language of Canada or a native Canadian language by a process of lip synchronization done in Canada, using Canadian resources, one-half of the program time attached thereto, to a maximum of 50 hours during each six-month reporting period, shall be considered as Canadian.
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VII. STATION AND NETWORK PRODUCTIONS
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To be recognized as Canadian, programs produced by licensees must meet the Canadian program recognition criteria stipulated in this Notice. However, licensees need not apply for recognition or submit production information unless specifically requested to do so by the Commission. If no such request is made by the Commission, programs produced by licensees shall be recognized as Canadian.
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The criteria for the recognition for Canadian programs do not apply to news and public affairs programs produced by licensees. Such programs shall be recognized as Canadian.
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VIII. MUSIC VIDEOS
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Definition of a Canadian Music Video
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Music videos, the short film or videotape productions or concert excerpts (clips) not produced primarily for the particular program in which they are presented, which normally contain one musical selection with visual material, will be recognized as Canadian where:
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1) at least two of the audio requirements a) through d) which follow, and three of the requirements a) through f) are met:
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a) instrumentation or lyrics are principally performed by a Canadian;
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b) music is composed by a Canadian;
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c) lyrics are written by a Canadian;
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d) performance is in Canada;
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e) video director or production company is Canadian;
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f) video production facilities are located in Canada; and
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2) as of 1 January 1986, at least one of the two video requirements e) or f) is met.
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Music Video Programs
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For programs consisting predominantly of music videos and in some cases including a host and other programming elements, Canadian program recognition will be awarded if all elements other than the music videos are Canadian, and a minimum of 30% of the music videos are Canadian.
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This last provision would not apply to music specialty services.
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IX. DRAMATIC PROGRAMMING CREDIT
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The Commission will award a 150% time credit for a drama carried by a licensee which meets the following criteria:
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a) is produced by a licensee or an independent production company after 15 April 1984;
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b) is recognized as a Canadian program and achieves 10 points; and
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c) is scheduled to commence (i) between the hours of 7:00 p.m. and 10:00 p.m., or
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(ii) in the case of a dramatic program intended for children, at an appropriate children's viewing time.
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Each licensee will receive a dramatic programming credit for each showing of a drama occurring within a two year period from the date of first showing.
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INTERIM MEASURES
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As stated earlier, it is proposed that this new definition of a Canadian program will come into force as of 15 April 1984. Canadian programs already certified by the Commission, the CFDC or CFVCO will continue to be recognized. Other interim arrangements may be considered by the Commission to be acceptable for "work in development". For present purposes, the following definition of "work in development", similar to that used by CFVCO, will apply:
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Generally, when the property has been acquired, the screenplay completed, a preliminary budget has been prepared, financing started to be obtained and some of the key creative personnel have been retained.
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PROPOSED AMENDMENT TO TELEVISION REGULATIONS, EFFECTIVE 1 OCTOBER 1984
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Schedule
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1. Subsection 2(1) of the Television Broadcasting Regulations is amended by adding thereto, immediately after the definition "calendar quarter", the following definition:
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"Canadian program" means a program that qualifies as a Canadian program in accordance with the criteria established and published by the Commission, in a notice entitled "Recognition for Canadian Programs, April 15, 1984"; ("émission canadienne)".
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Comments should be submitted to the Secretary General, CRTC, Ottawa, Ontario K1A 0N2 by 2 April 1984.
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J.G. Patenaude Secretary General
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