Law Times

Law Times • JuLy 25, 2016 Page 11 www.lawtimesnews.com FOCUS Federal laws to be updated Broaden definition of Canadian content, lawyers say BY YAMRI TADDESE Law Times A s the federal govern- ment embarks on a major review of Can- ada's cultural policies, entertainment lawyers say it's time to rethink how we define Canadian content. Minister of Canadian Herit- age Mélanie Joly said she'd begin consultations this summer to update the country's media laws, policies, and institutions. Driven by technological changes over the years, the large-scope review could mean changes to legislation such as the Broadcast Act, fund- ing systems such as The Film or Video Production Services Tax Credit Program, and national in- stitutions such as the CBC. "There is work to be done to ensure that Canada — and Canadian content — is poised to succeed in the face of increasing global competition and along- side the rapid evolution of new technologies that are changing the ways content is watched, read, experienced and discov- ered," the ministry announced. Entertainment lawyers say part of that work should be re- valuating and broadening what's deemed Canadian content. "The challenge is that Can- adian content often equates to some iteration of Anne of Green Gables," says Peter Henein, part- ner at Cassels Brock & Blackwell LLP. "That's a very, very lim- ited and limiting view of what it means to be Canadian. "Perhaps the broader point is that Canadian content needs to mean content that's created by Canadians and not content that's related to Tim Hortons, snowshoes, and ice rinks and hockey," adds Henein, himself a former actor and comedian. "I imagine there are artists that will always want to create things that have a very local, culturally entrenched feeling to it, and there are artists who want to create work that could very well come out of an American voice or from an American broadcaster," he continues. "What defines it as Canadian content, certainly in my personal view, is the point of view of the artist who is creating that. That's why we have such a great and long history of exporting incredible comedic talent." If the goal is to create more Canadian content, this country could benefit from broadening the test for what exactly meets the criteria, says Ken Dhaliwal, entertainment lawyer at Den- tons Canada LLP. The UK and Germany, for example, have cultural tests that are much broader, Dhali- wal says. "It's very inclusive and in a lot of ways . . . that test has facilitated production," he says. Those countries, according to Dhaliwal, have taken the Can- adian test and improved it. When it comes to Canadian content, "You don't have to be wrapping the whole thing in a Canadian f lag. We have a dias- pora of people from all over the world — do you have to shoot it in Canada to be Canadian?" Dhaliwal says. Sure, adding a broader cul- tural component test to what we define as Canadian content will be tricky, Dhaliwal says. It might even seem like it requires some deeper soul searching about what makes something Can- adian. But to Dhaliwal, it doesn't have to be so complicated be- cause the end goal can help an- swer that question. "I think the point is, what are we trying to accomplish? Are we trying to facilitate production or facilitate people making mov- ies?" he asks. "The rules are go- ing to have to take into account at some level . . . that this is a business and business requires competition." With game changers such as Netf lix now in the marketplace, the availability of digital content intensifies that competition. Through this review and chan- ges to policies, the government could choose to bolster trad- itional broadcasters' capacity to compete, Henein says. If the concern for traditional broadcasters is that they don't have the same freedom that on- line providers have, the govern- ment could choose to relax the regulatory barriers for the tra- ditional broadcast, Henein adds. "But if the intention is to go to the digital broadcasters and say, 'Hey, what's going on here?' then it really is less about encouraging the f low of content and more about controlling," he continues. As part of its review into cul- tural policies, the Ministry of Canadian Heritage identified four "drivers of change" in the digital world. Traditional lines between "user" and "creator" as well as "professional" and "amateur" are blurred, the ministry said. It also said new players and intermedi- aries are disrupting traditional business models while the world becomes "increasingly inter- connected and open." In addition, easy access to global content is affecting ex- pectations at home. "Change is happening at different speeds and being felt more acutely in some industries where disruption has led to dif- ficult pressures including job cuts, reductions in services, and struggles to ensure fair compen- sation for artists and creators," the ministry said. LT Peter Henein says 'Canadian content needs to mean content that's created by Canadians and not content that's related to Tim Hortons, snowshoes, and ice rinks and hockey.' Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Keynote Speaker: Brian Zubert, Director, Thomson Reuters Labs - Waterloo Region Dress: Business Attire Innovation. 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