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Public Notice
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Ottawa, 19 June 1998 |
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Public Notice CRTC 1998-59 |
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RECOGNITION FOR CANADIAN PROGRAMS - CALL FOR COMMENTS
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Table of Contents Par. |
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BACKGROUND 2 |
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SPECIFIC QUESTIONS 15
The Need for Advance or Preliminary Rulings 15
Definition of Producer and Producer-Related Credits 17
Definition of Major and Minor Performers 27
Processing and Final Preparation Costs 30
Definition of Key Creative Positions 33
Special Recognition for Co-Ventures 35
Recognition for Series 38
Sports Actuality Product ions 43
Twinning 46
Use of Stock Footage 48
Animation 51
Short "Interstitials'" 57
Transition to a Revised Definition 59 |
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PROCEDURE 61 |
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Deadline for submission of comments
First round - Monday, 20 July 1998
Second round - Monday, 17 August 1998 |
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RECOGNITION FOR CANADIAN PROGRAMS - CALL FOR
COMMENTS |
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1. This Public Notice calls for comments
concerning the Commission's definition of a Canadian program, as referenced
by the Television Broadcasting Regulations, 1987, the Pay
Television Regulations, 1990, and the Specialty Services Regulations,
1990. |
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BACKGROUND |
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2. The Commission's definition of a Canadian
program forms the basis of its policy and regulatory framework for
television. It is also an essential reference tool used by the Canadian
independent film and television production industry in formulating plans for
new projects, and in preparing their applications to the Commission for
recognition of a program as being Canadian. |
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3. In recent years the Canadian independent film
and television production industry has experienced rapid growth, with the
value of production activity increasing from $1.4 billion in 1991-92 to $2.9
billion in 1996-97 (according to figures published by the Canadian Film &
Television Production Association). The number of applications to the
Commission for Canadian program recognition increased from 361 in 1987 to
1,100 in 1997. The increasingly elaborate and varied production arrangements
characterizing this fast developing industry have revealed possible
shortcomings in the Commission's definition of a Canadian program, including
the elements used to assess the control of productions. There have also been
numerous incidents involving misunderstanding by applicants of the
requirements for Canadian program recognition, and consequent delays in the
recognition process. It is for these reasons that the Commission decided to
issue this call for comments on its definition of a Canadian program. |
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4. The Commission's definition, its television
regulations and policies, and the conditions of licence it applies to
individual broadcasters, collectively serve as the vehicles it uses to
further certain key objectives of the Broadcasting Act. Among other
things, these objectives call upon each element of the Canadian broadcasting
system to "contribute in an appropriate manner to the creation and
presentation of Canadian programming", and require each broadcasting
undertaking to "make maximum use, and in no case less than predominant use,
of Canadian creative and other resources in the creation and presentation of
programming..." |
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5. The Commission applies the definition when it
considers applications from independent producers for recognition of their
productions as Canadian. These productions span a wide range of genres. The
Commission provides "C" (Canadian) numbers, "D" (Canadian dubbings of foreign
productions) numbers, and "SR" (Special Recognition) numbers to programs
submitted by applicants who meet the established criteria. SR numbers are
most often issued to qualifying "co-ventures", these being international
co-productions that do not fall under official co-production treaties
administered by Telefilm Canada. Occasionally, a co-production that qualifies
under an official co-production treaty may also be granted SR number
recognition. |
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6. Television broadcasters indicate the Canadian
status of a production on their respective program logs, which they file with
the Commission. The program logs are the instruments the Commission uses to
monitor the compliance of television licensees with certain commitments and
regulations, including those dealing with Canadian content. |
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7. The definition of a Canadian program does not
apply to news and public affairs programs produced by licensees; all such
programs are recognized by the Commission as Canadian as a matter of course.
Other types of licensee-produced programs must meet the criteria of the
definition, but applications for recognition need not be submitted unless so
requested by the Commission. |
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8. The Canadian Audio-Visual Certification
Office (CAVCO) of the Department of Canadian Heritage also provides
recognition for certain genres of Canadian programs, as part of its
responsibility for administration of the Canadian Film or Video Production
Tax Credit. Programs certified by CAVCO are also noted on licensees' program
logs and are automatically recognized by the Commission as Canadian programs.
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9. Telefilm Canada and the Canada Television and
Cable Production Fund underwrite productions in a relatively narrow range of
genres. Although they also review the Canadian status of programs in
administering their respective funding regimes and other initiatives, they do
not issue Canadian content recognition numbers. |
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10. The Commission assesses productions that are
submitted to it for accreditation by using, among other criteria, a point
system that is based on the citizenship of individuals filling key creative
positions. The point system, adopted following an extensive public process,
was announced in Public Notice CRTC 1984-94
dated 15 April 1984 and entitled Recognition for Canadian Programs.
Subsequently, the Commission expanded the definition to allow for recognition
of qualifying production packages (Public Notice
CRTC 1987-28) and animated productions
(Public Notice CRTC 1988-105). Otherwise,
the system has essentially undergone no close examination for almost 15
years. |
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11. In this proceeding, which the Commission
intends to consist of a written process only, the Commission will review the
requirements contained in Public Notices CRTC
1984-94, 1987-28, and
1988-105. The objectives of this review
are to ensure that control over productions seeking Canadian program
recognition is indeed in the hands of Canadians, and to streamline the
recognition process by making certain that the definition is fair, clear, and
as responsive as possible to the current and future production and
broadcasting environments. |
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12. In Public Notice CRTC
1998-44 dated 6 May 1998 and entitled Canadian Television Policy
Review, the Commission announced a separate proceeding to examine a wide
range of issues related to its current policies and regulations respecting
conventional over-the-air, pay, and specialty television services. |
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13. The Commission's review of its Canadian
program definition and the separate public process now underway with respect
to the its television policies and regulations differ in scope. Nevertheless,
some of the concerns to be discussed in each proceeding are inter-related. A
coherent and consistent approach to these important issues is therefore
essential. Accordingly, the Commission has decided to conduct the two
proceedings concurrently, and will announce the determinations it reaches
with respect to the definition of a Canadian program when it publishes its
findings flowing from its larger review of Canadian television policy. |
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14. To assist in its examination of the current
definition of a Canadian program, the Commission seeks comments in response
to the following questions concerning certain specific aspects of that
definition. By putting forward these particular questions, however, the
Commission does not intend to limit the scope of this proceeding. The
Commission encourages members of the public to make their views knows about
all aspects of the current definition, including the specific wording it
employs, the application process and, indeed, the assumptions underlying the
definition itself. |
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SPECIFIC QUESTIONS |
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The Need for Advance or Preliminary Rulings |
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15. Upon the request of producers seeking to
make immediate financing arrangements, the Commission has issued advance or
preliminary C or SR numbers when most, but not all, of the required
information about the proposed production has been finalized. The
Commission's advance or preliminary rulings have been based on the assumption
that all of the planned arrangements will be executed as proposed, and that
the remaining elements of the production will be completed in such a manner
as to qualify the production as Canadian. Sometimes, the final production
arrangements do not reflect the preliminary information filed by the
producer, and the production ultimately fails to meet the criteria.
Revocation of the required Commission number at this stage, when contracts
have been signed and when production may be underway, can often have a
significant impact on broadcasters and producers. |
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16. Given that Commission staff would continue
to be available to respond to informal requests from prospective applicants
for explanations and interpretations of the rules, does the difficulty
arising from the current advance/preliminary ruling process outweigh the
benefits? If so, could this difficulty be minimized through modifications to
the current process, and what might these modifications be? |
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Definition of Producer and Producer-Related
Credits |
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17. In Public Notice
CRTC 1984-94, the Commission stipulated the
following: |
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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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18. CAVCO is the successor to the Canadian Film
and Videotape Certification Office (CFVCO). |
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19. Frequently, non-Canadians who assist the
Canadian producer in securing foreign financing or distribution for a project
will request courtesy screen credits for their financial and
distribution-related activities. Generally, the Commission will permit the
inclusion of such credits, provided the persons concerned do not interfere
with the responsibilities of the Canadian producer, including the control of
expenditures, the selection and engagement of key creative personnel, and
final casting approval. |
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20. In accordance with its Producer Control
Guidelines respecting the involvement of non-Canadians, common exemptions
permitted by CAVCO would include a maximum of two courtesy screen credits per
production for executive producer/producer-related positions, plus one
additional credit for such positions as a consultant (executive, creative or
production), a writer-for-hire or lead actor, and two "corporate logos".
Other combinations of exemptions are also possible under CAVCO's guidelines.
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21. The nationality of the producer, whose role
incorporates the notion of control over a production, is fundamental to the
current definition. Questions have been raised about the extent of the
control that might be exercised by non-Canadians seeking on-screen credits.
The Commission notes in this regard that the total remuneration to
non-Canadians receiving "executive-producer" screen credits sometimes equals
or exceeds the amount paid to the Canadian producer. |
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22. Given the importance that the current
definition of a Canadian program places on the control over a production
residing with Canadians, but recognizing as well that foreign sources of
financing and foreign distribution are often crucial to a production, what
should be the minimal requirements attached to the application process to
ensure that the objective of Canadian control is met? Should the policy
regarding exemptions be modified? If so, how? |
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23. The point system used by the Commission to
identify a program as Canadian is based on the nationality of those
individuals filling key creative positions. |
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24. Are the screen credits that may be permitted
under the current requirements in respect of courtesy credits for such
positions as writer-for-hire or lead actor, consistent with the objectives
of the point system? |
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25. Activities related to program production are
most often carried out by production companies, as opposed to individuals.
The Commission incorporated the notion of and defined the term "production
companies" in the section of Public Notice CRTC
1984-94 that deals with co-ventures and the awarding of SR numbers. With
respect to C number recognition, however, the Commission's procedures do not
reflect the fact that most productions are carried out by production
companies. |
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26. Should the definition of a Canadian program
be based in part on a production company being Canadian in relation to all
types of production arrangements? If so, what criteria should be employed in
formulating a definition of a "Canadian production company" or similar legal
entity? |
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Definition of Major and Minor Performers
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27. Public Notice
CRTC 1984-94 states: |
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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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28. Applicants are frequently uncertain about
the meaning of the phrases "leading performers" and "minor roles" in
non-dramatic productions such as talk shows and documentaries. Some producers
seeking Canadian program recognition have proposed the addition of a Canadian
host, with very little screen time or remuneration, to a project that is
already in production and employing the services of a non-Canadian host,
expert or other on-screen personality. |
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29. How might the meaning of the phrases
"leading performers" and "minor roles", in their application to non-dramatic
productions, be clarified? Should there be references to the duration of
screen time devoted to these roles, or to the amount of remuneration these
performers or personalities receive? |
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Processing and Final Preparation Costs
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30. Public Notice
CRTC 1984-94 states: |
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EXPENDITURES: at least 75% of total remuneration
paid to individuals, other than the producer and key creative personnel ...or
for post production work, must be paid to, or [be] 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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31. In the past, some applicants have suggested
that the above text implies that processing and final preparation costs need
not be paid to Canadians - only that the services must be provided in Canada.
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32. Should the above text be amended to require
explicitly that remuneration for the processing and final preparation costs
be paid to Canadians? |
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Definition of Key Creative Positions |
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33. The "Interpretation Notes" section of Public
Notice CRTC 1984-94 defines the positions
of producer, head of the art department, director of photography, music
composer, and editor. There are, however, no definitions for other key
creative personnel, such as director, writer, choreographer, and on-line and
off-line editors. This has led to some misunderstandings and delays in the
application process. |
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34. Should the roles of these, and other key
creative positions, be defined? If so, how? |
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Special Recognition for Co-Ventures |
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35. The international nature of many co-ventures
necessitates the use of special criteria and the granting of special
recognition. One of the existing stipulations with respect to co-ventures is
that "the decision-making responsibility for the production will be deemed to
be in the hands of a Canadian production company when that company....has an
equity position in the production and the entitlement to profit sharing..."
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36. There is no minimum equity stake or
entitlement to profit sharing specified. The Commission's other co-venture
criteria presume "50-50" arrangements that relate to the sharing of
responsibility for such matters as budget, services and decision-making. |
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37. Should the co-venture rules incorporate
minimum levels for equity and profit sharing? If yes, what should those
levels be? |
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Recognition for Series |
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38. Public Notice
CRTC 1984-94 recognizes 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". For instance,
non-Canadian directors can be associated with some episodes; this, when
combined with other factors, would render such episodes ineligible for
Canadian recognition if they were to be assessed individually. |
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39. Accordingly, the notice indicated that the
Commission would examine a series in its entirety, and might grant
recognition to all episodes in a series, provided that at least 50% of the
episodes actually qualify, and that the series, "on an overall average",
otherwise meets the minimum requirements of the point system. |
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40. The Commission's series rule provides a
considerable amount of flexibility for producers. Some parties, however, have
expressed concern that the Canadian elements of the episodes that meet the
minimum requirements of the point system are insufficient to counterbalance
those episodes that fall short of the minimum requirements. |
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41. The Commission notes that this concern does
not arise under CAVCO's procedures because CAVCO requires each episode of a
series to meet its criteria, and certifies episodes on an individual basis.
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42. Should the Commission continue to provide
flexibility for series? If so, should the current requirements be modified?
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Sports Actuality Productions |
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43. Public Notice
CRTC 1984-94 states: |
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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. In the case of broadcasts of sports events
originating outside Canada, involving non-Canadian teams or athletes and for
which a French-language commentary is provided by a Canadian producer,
one-quarter of the program time attached thereto shall be deemed to be
Canadian. |
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44. None of the individuals filling key creative
positions, including the principal on-camera performers (the hosts) of a
sports actuality program need be Canadian. This is in contrast to the
requirements in respect of all other programs certified by the Commission.
Applicants have rarely, if ever, made use of the provision permitting credit
for commentators based on language spoken. |
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45. Should the criteria for sports actuality
productions be revised to include requirements for key creative positions? If
so, how? |
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Twinning |
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46. Public Notice
CRTC 1987-28 included "twinning" arrangements in the definition of
production packages. Twinning arrangements are those in which "a Canadian
production, with minor foreign involvement, is matched with a foreign
production, with minor Canadian involvement." To date, however, certification
has been sought and granted for only three twinning arrangements. |
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47. Should the portion of the definition
incorporating "twinning" arrangements be maintained? |
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Use of Stock Footage |
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48. Public Notice
CRTC 1988-105 indicated that productions consisting predominantly of
stock footage not owned by Canadians would not qualify as Canadian. |
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49. Under the rule, control over the production
of the original footage is irrelevant. Although foreign produced, the footage
is deemed to be Canadian provided the rights to such footage are obtained
through a Canadian distributor or from a related Canadian company. It is
therefore possible to construct a Canadian program that consists entirely of
existing footage produced outside Canada by non-Canadians. |
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50. Is it appropriate to continue to grant
Canadian status to programs that consist predominantly of footage produced
outside Canada by non-Canadians, but that is obtained through Canadian
sources? Is it appropriate that special consideration be granted to
documentaries, as well as to programs of specific interest to Canada's
multicultural communities? |
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Animation |
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51. The rules for animation were last updated by
the Commission in Public Notice CRTC 1988-105.
Since then, the Canadian animation industry has rapidly adopted new
production technology. An increasing trend is the use of live action and
computer-generated animation in the same production, or even simultaneously
within a scene. |
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52. In considering applications for Canadian
recognition of programs involving the use of animation, the Commission
analyzes the live action and animated portions separately, as called for
under the existing rules. Separate application forms and budgets are often
submitted. |
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53. Given the changing production environment,
how should the Commission process applications for certification of programs
that make use of combined live action/animation production? |
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54. Should new types of animation or creative
positions be taken into account, and if so, which ones? |
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55. Under the current rules, animation work must
be done in Canada. Should it also be mandatory that the key animator be
Canadian? |
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56. Should the current requirement in respect of
animated productions, namely that 65% of all remuneration must be paid to
Canadians, be increased to the same level (75%) required of live action
productions? |
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Short "Interstitials" |
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57. An increasing number of short "programs"
(interstitials of one to five minutes duration) are being submitted for
recognition. A reason for this trend is that the Television Broadcasting
Regulations, 1987 permit stations to count such interstitials, plus any
surrounding advertising material, as Canadian, when they are inserted between
full-length foreign programs. Some are simply re-packaged footage from
existing programs consisting of, for example, brief excerpts from interviews
contained in full-length programs, and appear to make little contribution to
the development of the Canadian production industry. Certification of these
numerous interstitials allows broadcasters to claim Canadian content with a
minimal contribution to the Canadian production industry. |
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58. Should productions of less than five minutes
duration (other than drama programs) continue to qualify for certification by
the Commission, or should they qualify under different rules? |
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Transition to a Revised Definition |
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59. This public process may result in amendments
to the current definition of a Canadian program. During the process,
productions will continue to be structured, and pre-sales arranged, on the
basis of the current definition. Projects that are produced before the date
on which the new rules take effect may be subject to the current definition.
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60. How can the Commission fairly and equitably
make the transition from the current definition to any future revised rule?
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PROCEDURE |
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61. The above questions are not intended to
preclude discussion of any other relevant issues that interested parties may
wish to raise concerning the Commission's definition of a Canadian program.
The Commission invites written submissions on any or all aspects of that
definition. Comments must be filed with the Commission by Monday, 20 July
1998, and will be placed on the public file upon receipt. Those wishing to
provide their written observations about the first round of comments must do
so by Monday, 17 August 1998. These will also be placed on the public file.
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62. The Commission will only accept submissions
that it receives on or before the prescribed dates noted above. |
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63. Parties filing submissions that are over
five pages in length are asked to include a short summary. |
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64. Submissions filed in response to this notice
must be addressed to the Secretary General, CRTC, Ottawa, K1A 0N2. |
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65. All submissions must be filed in hard copy
format. The Commission, however, encourages parties to also file electronic
versions of their submissions. Such submissions should be in the HTML format;
as an alternate choice, "Microsoft Word" may be used for text and "Microsoft
Excel" for spreadsheets. Each paragraph of the document should be numbered.
In addition, as an indication that the document has not been damaged during
electronic transmission, the line ***End of Document*** should be entered
following the last paragraph of each document. The Commission's Internet
e-mail address for electronically filed documents is can.prog@crtc.gc.ca. In
order to facilitate access by the public, submissions filed in electronic
form will be available, in the language and format in which they are
submitted, on the Commission's web site. |
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EXAMINATION OF PUBLIC COMMENTS AND RELATED
DOCUMENTS AT THE FOLLOWING COMMISSION OFFICES DURING NORMAL BUSINESS HOURS
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Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage, Room 201
Hull, Quebec K1A ON2
Tel: (819) 997-2429 - TDD: 994-0423
Telecopier: (819) 994-0218 |
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Bank of Commerce Building
Suite 1007
1809 Barrington Street
Halifax, Nova Scotia B3J 3K8
Tel: (902) 426-7997 - TDD 426-6997
Telecopier: (902) 426-2721 |
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Place Montréal Trust
1800 McGill College Avenue
Suite 1920
Montréal, Quebec H3A 3J6
Tel: (514) 283-6607 - TDD 283-8316
Telecopier: (514) 283-3689 |
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Kensington Building
Suite 1810
275 Portage Avenue
Winnipeg, Manitoba R3B 2B3
Tel: (204) 983-6306 - TDD 983-8274
Telecopier: (204) 983-6317 |
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530-580 Hornby Street
Vancouver, British Columbia V6C 3B6
Tel: (604) 666-2111 - TDD 666-0778
Telecopier: (604) 666-8322 |
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Laura M. Talbot-Allan
Secretary General |
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This document is available in alternative
format upon request. |