(2/2) The current definition of Canadian Content, explained

Our screen-based sector is at a crossroads—and we need to talk about Canadian content. Over the next several months, the CMF wants to spark a conversation about the redefinition of CanCon: What is at stake? Why does it matter? What do we want the future of the industry to look like? This two-part article is the second of a Now & Next series that will provide a platform for diverse voices to weigh in on Canadian content, authenticity, ownership, business and funding models, and more.

Read part two below!

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Welcome to part two of the CMF’s history and context of Canadian content as it applies to the audiovisual industry. Did you miss part one of our CanCon explainer? Read it first here.

In part one of our explainer, we covered the history of how “Canadian content” came to be and gave a breakdown of the governing bodies that make the decisions. In part two, we discuss how CanCon is qualified and defined in our current system.

Let’s get back to the three governing bodies that determine CanCon.

How do CAVCO, the CRTC, and Telefilm Canada define “Canadian content”?

Even though there are three different certification bodies, the definition of what constitutes a Canadian production is generally harmonized, with some key exceptions. In the section below, we will not consider the treaty coproductions certified by Telefilm, as they abide by rules laid out in the bilateral treaty agreements. However, the CAVCO and CRTC definitions of Canadian content share these three pillars:

1. Creative talent

This is where the notorious “points test” comes in:

To be certified as Canadian content, a production must score a minimum of 6/10 points based on the citizenship of specified key creative personnel behind the production. The idea is that these key creative voices help give a production its “Canadian-ness.” At minimum, either the director or the writer must be Canadian, as well as at least one of the two lead performers. It should be noted that the “points test” differs slightly between live-action, animated, and documentary productions to account for the differences in the key roles required for the types of production.

What might be considered a conspicuous omission from the points system are points for the lead producer. Producers are not included because Canadian content in the current system requires the work be fully controlled by a Canadian producer (more on that below), rendering their presence in the points system redundant. 

It is also important to note that certification as “Canadian” does not automatically qualify a production to receive all sources of public funding. To qualify for the CPTC, a production must earn 6/10 points, while the Canada Media Fund is limited to funding productions that score 10/10. Telefilm has an 8/10 points requirement, and Canadian independent production funds (CIPFs), such as Bell Fund, Quebecor Fund, Shaw Rocket Fund, the Independent Production Fund, and the Rogers Group of Funds, generally only require 6/10 points. Importantly, all these funds also have other eligibility requirements aside from the “points test.”

2. Production spending

The certifying bodies also require that a minimum of 75% of all eligible costs related to the production must be paid to Canadians and that 75% of post-production costs must be paid to service providers in Canada, which includes services like laboratory work, sound recording, sound editing, and picture editing. This requirement considers the economic contribution in Canada and to Canadians.

3. Production ownership and control

The last pillar is that the applicant (generally the producer) must be Canadian and have full creative and financial control over all aspects of the project, from development through production and exploitation. In essence, to be certified, a Canadian production must be meaningfully and demonstrably owned by a Canadian.

It is possible for non-Canadians to be credited on Canadian productions as a type of producer (e.g. executive producer, associate producer, and so on). These are usually called courtesy credits, but their roles must be limited so they do not interfere with the financial and creative authority of the Canadian producer.

The differences between the CRTC and CAVCO definitions

While the CRTC and CAVCO definitions are almost the same, CAVCO also has different copyright and distribution requirements. They require that the Canadian company producing the content be the copyright owner for all commercial exploitation purposes for a minimum 25-year period. The applicant is required to demonstrate this through documentation, including financial and chain-of-title agreements.

Additionally, CAVCO requires that the project be shown in Canada within two years after completion via either a Canadian distributor or CRTC-licensed broadcaster. Importantly, since 2017 this requirement has been interpreted by CAVCO to encompass online services on certain conditions, including that the service be readily accessible to Canadians. The list of eligible online services includes Canadian streaming services, like CBC Gem, Club illico, Crave, VRAI, and APTN lumi; foreign streaming services like Acorn.TV, Netflix, and Prime Video; as well as certain YouTube channels certified by CAVCO.

Another slight variation between the CRTC and CAVCO definitions is that the list of eligible genres that CAVCO certifies is narrower than the CRTC’s list. News and current affairs, sports, reality programming, and awards shows are not certified by CAVCO, as they do not qualify for the CPTC (which CAVCO administers). Given that the current CRTC certification process exists to certify what Canadian broadcasters air on television, the list of eligible genres is much broader. In other words, news and current affairs, sports, reality programming, and certain awards shows can and do qualify as Canadian in terms of broadcaster requirements, but don’t qualify for the CPTC.

Who counts as “Canadian”?

We’ve discussed how the definition of Canadian content requires certain standards, like the use of Canadian talent and companies, but we should also talk about what constitutes “Canadian” in our current system.

Canadian individual

Both the CRTC and CAVCO definitions use the same standard in defining what constitutes a Canadian person: a Canadian citizen or permanent resident. The individual must hold their citizenship or permanent residency before the start of production.

Canadian company

The definition of a Canadian company (in this context, largely production companies) differs slightly between the two certification bodies. For the CRTC, this means either an entity that it licenses or a company conducting business in Canada that has a business address and is owned and controlled by Canadians. At CAVCO, the definition of a Canadian company is very similar, but taken directly from the definition in the Investment Canada Act.

What’s next?

Stay tuned for more pieces in the CMF’s Now & Next exploring some of the key questions in the sparks for thought sections above. Do you have a burning opinion and want to lend your voice to a future piece? Get in touch at [email protected]. You can also join the conversation on social media using #CanConDef. 

Want to learn more?

This piece is not intended as a comprehensive explanation of all the intricate details of how Canadian content is defined. If you want to dig deeper, here are links to the full details from each certification body:

·        CAVCO

·        CRTC

·        Telefilm Canada

Kyle O'Byrne

Based in Ottawa, Kyle is responsible for developing and implementing the CMF’s national public affairs strategy. Prior to joining the CMF, Kyle worked at the Canadian Media Producers Association (CMPA). In his role as Director of Policy, Kyle was responsible for monitoring and reporting on emerging policies relating to the Canadian independent production sector, communications to government, regulatory agencies, production funding bodies, media, and CMPA members. He oversaw production of Profile, the CMPA’s annual economic report, and other research activities. He also previously worked in the CMPA's communications department as Manager of Media Relations and Communications, where he was a lead organizer for their annual conference Prime Time and contributing editor of the CMPA’s flagship Indiescreen magazine.

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