Canada’s Online Streaming Act, (Bill C-11) the draft legislation that will bring online streaming content under the purview of the Broadcasting Act, will continue its slow progress through Parliament in 2023. Review in the Senate last year led to a number of amendments, one of which dealt with the definition of Canadian content (Cancon). That amendment added a provision that no factor is determinative in establishing Cancon standards or equitable contribution rules. It is unclear at this point whether the government will accept any of the amendments adopted by the Senate or will reject them and send the Bill back to the Red Chamber for further review.
The Bill has many provisions and objectives but one of them requires the broadcasting regulator, the CRTC, to update the arcane formula that determines what content qualifies as “Canadian”. An amendment that would give the CRTC the flexibility to weigh various elements in determining what constitutes Cancon, rather than being bound by an outdated and inflexible formula, would be welcome. That is the approach taken in Australia, and this more flexible definition seems to have been successful in producing content that is recognizably and unabashedly Aussie.
As an example, I have just started watching the Australian “political thriller” Total Control, being broadcast and streamed on my local public television provider, Knowledge Network. It is a gripper, with great character development, contemporary storyline, and realistic settings. Most of all, it proudly and unabashedly Australian. For those not familiar with the show, it is the story of an Aboriginal woman, Alex Irving (played by Deborah Mailman) who achieves national prominence because of her bravery in stopping an act of gun violence. As a result of that, she is approached by the office of the Prime Minister of Australia (a women, played by Rachel Griffiths) to fill a vacancy in the Australian Senate. (While the Australian Senate, unlike the Canadian Senate, is an elected body, if a vacancy occurs due to a senator’s death, resignation or expulsion, a replacement can be appointed by the Governor of a state to complete the term. This was the case in this scenario). The government in the show has a narrow majority, and the PM is concerned about her future political career and the possibility of an internal coup. Given recent Australian political history, this is entirely plausible.
The new Senator has to deal with the pressure of adapting to her new political role while championing her people and the region she represents. The show is set in Canberra, where the corridors of power in Parliament are displayed both through the interactions of the protagonists and the physical settings of the offices and chambers, and in the outback, where Alex Irving lives. As a Canadian who has visited Australia, including the Parliament in Canberra a few times, it spoke to me. I can imagine that for Australians it is a story that has resonance. Certainly, the show has enjoyed generally positive reviews in Australia and is now being distributed globally. While acclaim has not been universal, what no-one can deny is that this is an Australian production that tells Australian stories in an Australian way. Australia has long been known for the excellence of its productions in telling Australian stories (and I am not talking about Crocodile Dundee), as well as producing Hollywood-style product for the international market. It has a thriving film industry and as a country that has managed to project its culture globally, it punches above its weight.
Canada also has a strong film industry, the largest part (in terms of value) based on Foreign Location Shooting (FLS), which brings many benefits. But when it comes to projecting Canadian culture through film productions, Canada punches well under its weight. In fact, you could say it has barely climbed into the ring. I cannot recall a Canadian drama where Canada’s political culture was a central part of the story. Ottawa and the Canadian Parliament never seem to appear on screen. Many of the themes explored in Australian productions such as the clash between Indigenous and “settler” cultures are similar to those in Canada, yet I don’t see this being explored in televised Canadian drama. Instead, we get clones of US shows (“Family Feud Canada”) or productions, like the award-winning Schitt’s Creek, where any possible indication that the show was filmed in Canada has been airbrushed out—all on the dubious premise that if it is to be sold in the US market, it must look American if it is to appeal to US audiences. (I am not convinced this is the case. When I look at the offerings provided by Netflix, they include US shows to be sure, but also Nordic, German, Spanish, Korean and Australian. Squid Game, produced in Korea with a Korean soundtrack, was Netflix’s most watched show. They even have some “Canadian” films on their platform, although not all of them meet the legal definition of “Canadian content”). I find it interesting that Australian shows seem to revel in their “Australian-ness” while Canadian shows generally go to great lengths to hide any reference to their Canadian origins. What accounts for this difference?
Some will say Canada’s geographical proximity to the United States is the biggest factor. It certainly is one reason why a lot of FLS production takes place in Canada, and there is no question that the sheer weight and quality of US content can easily overwhelm competing voices. But if that is true in Canada, it is also true in Australia, New Zealand, and perhaps to a lesser extent in the UK, just to name the leading English-speaking markets. To provide support to local production, Canada, Australia and the UK (as well as the EU) all have local production incentives linked to content requirements. Canada’s are particularly convoluted and confusing, as I wrote recently (“Unravelling the Complexities of the Canadian Content (CanCon) Conundrum”). Canada’s financial incentives for “CanCon” are essentially tied to who produces, directs, and finances a production. It matters not if the story has any Canadian connection whatsoever.
Blogger and commentator Michael Geist has had fun with his Cancon quiz in which readers are invited to guess whether a given production qualifies as Canadian content. (Hint: anything with any obvious relationship to Canada in terms of storyline, location or author doesn’t qualify whereas any production you have never heard of likely does). Most people don’t do too well on the quiz. Obscure co-productions with Norway or Ireland qualify but Disney’s “Turning Red, about a Chinese-Canadian girl growing up in Toronto, starring Canadian actor Sandra Oh, does not qualify nor does a production like “Ultimate Gretzky” or Margaret Atwood’s “Handmaid’s Tale”. The current Cancon policy is designed to support jobs in film production, not to promote identifiably Canadian stories. It is an industrial policy, not a cultural policy. The biggest single impediment to a production qualifying as Cancon, and thus being eligible to receive production incentives as well as meeting Cancon airtime broadcasting quotas, is the requirement that the copyright must be held by a Canadian. This eliminates all productions financed by international producers, from Amazon to Netflix to a Hollywood studio. The only exception is a treaty co-production—but there is no co-production treaty with the US.
Australia also has content quotas for commercial television broadcasting.[i] While less onerous than Canada’s, they are designed to do essentially the same thing by ensuring that a certain amount of Australian content is shown on primetime TV. Australia is also considering extending the quotas to online streaming (Subscription Video on Demand—SVOD) services as is happening in Canada with Bill C-11, the Online Streaming Act although, as in Canada, there is some pushback. The big difference between Australia and Canada, however, is not how content quotas are applied, but in how national content is defined. I have already referred to the unnecessarily complex and confusing formulae for deciding on Canadian content. It is based on four key elements (production control, copyright and distribution rights, creative positions and production spend) and calculated using a complicated points system, where productions must get a minimum of 6 points out of a possible 10 (10/10 for access to some funding), based on the following;
“The writer gets 2 points; the director gets 2 points. Either the writer or the director must be Canadian. The highest and second highest paid performers each get 1 point and one of these two must be Canadian. For live action productions the other 4 points go to the Director of Photography, the Production Designer; the Music Composer and the Picture Editor.”
Simple it’s not.
Australia, like the UK, takes a broader view of what constitutes Australian content. According to Screen Australia and the Government of Australia in its “Producer Offset Guidelines”, the SAC (Significant Australian Content) Test—which is applicable for the producer offset (tax rebate) and compliance with quotas–covers the following;
- the subject matter of the film
- the place where the film was made
- the nationalities and places of residence of the persons who took part in the making of the film
- the details of the production expenditure incurred in respect of the film
- and any other matters that we consider to be relevant.
More detail is provided on each element. For example, in assessing the subject matter of the film, the following factors are taken into account;
- did the project originate in Australia or was it developed by Australians?
- is the project under Australian control?
- were Australian citizens or residents involved in the project’s development?
- is the project based on an Australian story?
- is the project about Australian characters?
- is the project set in Australia?
- does the project reflect a cultural background that is particular to Australia or Australians?
- does the project reveal some aspect of Australia’s or Australians’ cultural background or experience?
- are there other relevant factors which are specific to the individual project?
To be sure, as in Canada, factors such as the nationality of the main players in the production (executive producer, producer, writer and director, lead cast members, creative heads of department such as the director of photography, production designer, editor, costume designer, sound designer and composer; and other cast, crew and service providers) are all considered. Australian “creative control” has set criteria set in legislation. However, for me the single most important element of the assessment is the statement that “The SAC test is a holistic one and no single element is determinative”. In other words, there is no rote formula and unlike the Canadian definition, an element of judgement actually enters into the assessment. Hopefully C-11 will give the CRTC that flexibility when it passes.
If Canada had a content definition that placed more emphasis on the story, location and talent rather than on the production and source of funding, would it result in more shows like Total Control?[ii] Richard Stursberg has argued for a different way to assess Canadian content. Stursberg is the former head of English services (TV, radio, digital) at the CBC, former CEO of Telefilm Canada, and former chairman of the Canadian Television Fund. He has written in his book, “The Tangled Garden (A Canadian Cultural Manifesto for the Digital Age)”, and more recently in an op-ed in the Globe and Mail, that Canadian content should look, sound and feel Canadian. He cites the British content definition that takes into account (by according points on the scorecard) things such as whether the program is clearly set in Britain, is based on British subject matter, and offers an interpretation of British culture, heritage or diversity. The definition does not require production companies to be British-owned and controlled, simply that the company be incorporated and pay taxes in Britain. The Harry Potter films, set in Britain and based on the work of English author J.K. Rowling, but produced and distributed by Warner Bros., qualify. A similar production in Canada would not.
According to the Minister responsible for bringing forth C-11, Pablo Rodriguez, one goal of the Online Streaming Act is to modernize the definition of Canadian content. If a redefinition leads to the production of more shows and films that are recognizably Canadian through their stories and settings, that would be very welcome from my perspective. It would also incentivize the big US producers to produce content that looks Canadian, at the same time unleashing the power of their global distribution systems to promote Canadian content since they would have skin in the game by being able to invest in and earn a return on certified Cancon, which could in turn be used to meet content quotas where they apply. More production would create more work for Canadian writers, actors, film-makers, etc. not just for FLS production but also to produce recognizably Canadian stories. That would be both good business for the studios and help meet Canadian cultural objectives of telling Canadian stories in a recognizably Canadian way. Maybe one day, I will be able to watch a drama series about an Indigenous legislator from Canada’s “outback” (Saskatchewan?) dealing with political issues in the corridors of power in Ottawa, set in a recognizably Canadian setting, along the lines of Total Control in Australia.
© Hugh Stephens, 2023. All Rights Reserved
[i] Total Control was aired on the Australian public broadcaster, ABC, which is governed by its Charter, rather than by content rules that apply to commercial broadcasters. However, its Charter requires it to “to broadcast programs that contribute to Australia’s sense of national identity, inform and entertain, and reflect the cultural diversity of the Australian community…”.