Part II: Sectoral Issues (continued)

Live Theatre

Playwrights Guild of Canada, with over 450 members, represents more than 90% of working Canadian playwrights. Full membership is available to any Canadian who has had at least one professional production of his or her work within the past decade. Associate membership is open to playwrights whose work has been presented in an advertised staged public reading by Equity actors, or has been produced at a community theatre or recognized theatre festival.

PGC was founded in 1984, a merger of two earlier playwrights associations. One of these predecessors was a co-operative that started in 1972, serving as a kind of clearing house for scripts at a time when theatres decided to begin mounting more Canadian plays, but discovered there was no central source of information. Eventually, the Guild developed into a broader members-based organization, working to protect the rights of Canadian playwrights and promote Canadian theatre. Through negotiations with the Professional Association of Canadian Theatres (PACT), PGC has developed a series of standard contracts for use by playwrights presenting at PACT member theatres. On request, PGC will negotiate both Canadian and international professional contracts on behalf of its members. In addition, PGC administers members’ “amateur rights” with respect to productions mounted in schools, community theatres and other non-professional venues. It continues to maintain a large archive of Canadian scripts that are available for purchase.

In recent years, PGC, working with l’association quebecoises des auteurs dramatiques (AQAD) and Access Copyright, with financial support from the Government of Canada through the Canadian Culture Online Program, has developed an electronic publishing service to distribute the scripts in its collection. The intent is to streamline the distribution of scripts and reduce expenses associated with copying and postage, and thus increase the royalty revenues to the author and the availability of the work. Currently, PGC maintains a fully searchable online catalogue of more than 2,500 titles. Individual users can go online and read over 50 of these works (the others exist only in hard copy and can be ordered from PGC). The plays posted on the Guild’s website are protected from `cutting and pasting.’ However, users can purchase the right to print out copies.

The ‘market’ for original Canadian plays is small by comparison to the more commercial end of the industry, which tends to feature classics, traveling Broadway shows and so on. There are about 20 to 40 professional English productions of new Canadian work per year. Very rarely are these plays re-mounted. The non-profit theatre world is responsible for well over half of these productions. In addition, there are approximately 200 to 250 amateur productions per year in Canada.

As with visual arts, it is extremely difficult for a playwright to earn their entire income from theatre work. Many playwrights will also work in film, television and radio, write novels, teach or do other sorts of freelancing. A few are hired as playwright-in-residence for a professional company or university.

The numbers tell the tale: a playwright may earn only a few hundred dollars a year from his or her theatre work or royalties from the sale of published scripts. The typical fee for an amateur production is under $100. For full-scale theatrical productions, the royalty is typically based on 10% of gross box office receipts, typically returning about $6,000 to $10,000 to the playwright. The Guild estimates that about half of its members belong to Access Copyright, which licenses the photocopying of published playscripts.

Unlike writing for television and film, the theatre world continues to be governed by some long-established norms that have an impact on the work of playwrights. For example, it is a well-established tradition that a playwright has the right to approve or reject any change to his or her script. In other words, artistic convention, in this art form, effectively protects moral rights, at least for the time being.

The contractual and financial relationship between the playwright and the theatre company, however, has become increasingly uncertain. In recent years, a growing number of theatre companies have sought to obtain “participation rights” from playwrights who have been commissioned to write an original work or where the theatre is mounting the premiere production of a work. A contract providing participation rights means that the theatre company is entitled to a share of that play’s royalties over a specified period of time (typically five to ten years).

Participation rights are, in effect, a tax imposed on the playwright’s earnings, ostensibly to recognize the originating theatre’s contribution. The pressure for playwrights to assign participation rights has tended to come from larger commercial theatres, and follows a U.S. model. However, the very existence of participation rights should be called into question because a majority of theatres already receive funding from the Canadian government to develop and produce new Canadian works.

A related development, according to the Guild, is that other individuals associated with the mounting of a play – directors, dramaturges, choreographers, etc. – are also beginning to demand participation rights, citing their contribution to the creative process. As one playwright puts it, “Peripheral people are asking for a piece of the pie from what was traditionally considered the playwright’s intellectual property.”

Digital reproduction issues are not yet a major concern for playwrights, but this situation could change, depending on the direction of copyright reform. The Guild is concerned about the combination of an educational exemption with provisions that allow certain users to circumvent technological protection mechanisms. In effect, these two exemptions potentially would allow educational institutions to find ways of downloading electronic versions of scripts that are housed on the Guild’s website, and also to transmit an exempted school production to other educational institutions or to students participating in a distance education course.

Such a development underscores an apparent contradiction in Canadian policy. On one hand, the Department of Canadian Heritage has identified as a funding priority the digitization of Canadian culture as a means of broadening access to the work of Canadian artists – in this case, play scripts. On the other hand, exemptions have the potential to deprive playwrights -- along with all other creators -- of even more royalty income, above and beyond the ongoing decline in revenues from the production of Canadian plays in schools because of existing performance exemptions enacted in 1997. Beyond the economic implications, additional exemptions have the potential to deprive the author of the ability to control unauthorized electronic copying and performance of his or her plays.

Film / Television

For many years, the lion’s share of creative film and television work in Canada came from public institutions such as the CBC and the National Film Board. The sector has grown in the last twenty years due to a sharp increase in foreign film shoots in Canada, new funding from private and public sources, tax incentives, Canadian-content rules for new cable channels, co-production treaties, and so on. Much of this activity can be attributed to U.S. film companies coming to Canadian cities and rural areas to shoot on location, taking advantage of new studio facilities and highly-trained technicians and so generating post-production work. The low Canadian dollar has contributed heavily to the proliferation of so-called runaway productions from south of the border. The combination of these factors has spawned a broad range of Canadian players, from small independent outfits to large diversified media conglomerates like Alliance Atlantis.

More recently, however, the sector has experienced a downturn. “Canadian content productions”, productions written, directed and performed by Canadians, have sharply declined as a result of the Canadian Radio and Telecommunications Commission (CRTC) 1999 “television policy” which removed expenditure and exhibition requirements from broadcasters for Canadian dramatic programming. During the same period, shrinking export markets, reduced distribution advances and decreased government support for domestic shows has also contributed to the decline of the indigenous production industry.

There has also been a drop in the amount of foreign production in Canada due to the soaring dollar, the SARS scare in 2003, and the increases in U.S. state tax credits and incentives to keep those productions at home. As a result, there are far fewer opportunities for creators who work in these fields. In response, screenwriters, performers, directors and technicians have united to form the Coalition of Canadian Audiovisual Unions (CCAU) to advocate for more government support for the home grown production and reinstatement of spending and broadcast requirements on networks to develop, produce and air Canadian dramatic programming.

Copyright has always been a contentious subject in film and television production, especially the former. By long-standing convention, “shell” companies, created by large studios to provide a legal framework for the production itself, are dissolved once a film is finished and released, with the ownership rights reverting to a distributor. This practice makes it extremely difficult to track royalties and any other rights negotiated between the producer and members of their creative teams, or to enforce payments. In Canada, with the exception of cable retransmission, there are no authors’ levies established because the Copyright Act doesn’t define the author of the audiovisual work. Where rights are established, it is easy to track them because the terms are laid out explicitly in negotiated agreements.

There are three categories of off stage creators who work within the television and film production industries: directors, screenwriters and composers, all of whom are represented by well-organized unions or collectives empowered by negotiated collective agreements or tariffs with production companies, studios, broadcasters, etc. (Actors will be discussed in a separate section.)

The Directors Guild of Canada has several categories of members, including assistant directors, editors and production managers – all of whom play a part in the creative process. Across Canada, there are about 500 directors in the guild, which has three standard agreements for productions, depending on the location of the shoot. These agreements are structured so that producers or distributors can sell the work.

The legal status of a director’s authorship in cinematographic or audiovisual work is the focal point of most discussions about copyright in film and television production. In the United States, the industry, supported by legislation, has long adopted the so-called “work for hire” doctrine, which means that directors, screenwriters and composers are considered to be employees who have no copyright in the final product. In Europe, by contrast, authorship is formally vested in the director, or a director-writer team. To counter pressure from the powerful American film industry to export the work-for-hire doctrine (as was the case when the U.S. negotiated a free trade agreement with Chile), the Guild has sought an amendment to Canada’s copyright legislation to define directors as co-authors of audiovisual works.

The Writers Guild of Canada (WGC), in turn, is the national association representing more than 1700 screenwriters working in English-language film, television, radio and multi-media production in Canada. Along with its Quebec counterpart SARTEC, the WGC is one of the only writers’ unions to be certified and thus empowered to negotiate collective agreements. About half of its members are active, and most do not rely exclusively on screenwriting to earn a living. Many are also novelists, playwrights, speech writers and teachers.

Of all the creators working in film and television, Canadian screenwriters enjoy the greatest degree of protection for their intellectual property. Unlike colleagues in the U.S. and other countries, Canadian screenwriters retain copyright in their scripts and license their work to producers according to the rules set out in the WGC’s negotiated agreements. All other rights rest with the screenwriter as per the collective agreements; this includes the use of the work for stage plays, merchandizing or ‘novelization.’ This arrangement also exists in France, while in the U.S., Australia and the U.K., by contrast, producers have copyright and screenwriters are treated as if they were employees.

In terms of the non-fee revenues flowing to screenwriters, however, there is an interesting contrast between what exists in Canada and the arrangement negotiated by the Writers Guild of America (WGA). Under WGA rules, American screenwriters are not entitled to copyright royalties (which are based on production revenues). But they do receive “residuals” based on their upfront fees (in most cases). These contractual payments are made by broadcasters and distributors when audiovisual works are aired in secondary markets. As well, the Digital Millennium Copyright Act provides for the “automatic assumption” of contractual agreements for writers, directors and actors when the rights for a film are transferred (i.e., sold to another company). That provision, in effect, ensures that the residual payment schedules entrenched in the various guilds’ collective agreements survive. No such legal mechanism exists in Canada, although it is covered for Canadian screenwriters in the WGC Independent Production Agreement.

Though in possession of copyright, Canadian screenwriters generally collect little royalty income, which only begins to flow after certain revenue thresholds are met. Downstream revenues can be difficult to collect. Most screenwriters, indeed, see nothing beyond the up front fees, unless the show or film is a huge hit. “Even though we’re retaining copyright, which is very important” says one screenwriter, “we don’t see a great benefit from it. The fact that we don’t get residuals or see much in the way of royalties has to do with our lack of power in negotiation as well as the poor economics of our industry.”

In recent years, however, Canadian screenwriters have begun to access secondary use monies collected by the Canadian Screenwriters Collective Society (CSCS). To date, the CSCS has collected between $300,000 and $500,000, to be divided up among its members.

Set up in 2000, the CSCS exists to recoup monies collected by similar societies in Europe, where copyright rules impose fees and levies on broadcasters, video rentals and blank media. (The CSCS also collects retransmission royalties from Canadian cable companies.) In other words, if a Canadian audiovisual work is shown in a European country, a “secondary use” payment will be generated. The difficulty, for Canadian screenwriters and producers generally, has been accessing these funds and negotiating reciprocal agreements between the CSCS and European collective societies. In Canada, where levies are not in place, there are also issues regarding how the revenues are to be divided up among the creators, because, as one screenwriter puts it, “producers, writers and directors are all claiming authorship of audiovisual works.” Again, the problem comes down to a lack of definition in the existing language of the Copyright Act.

Canadians working in film and television, of course, are not immune to the unpredictable economic impact of the Internet on their respective sectors. Although the courts shut down third-party streaming of television signals some years ago, the illegal downloading of DVDs is theoretically just as serious an issue for Canadian film as for Hollywood, although Canadian films are considerably less exposed to the problem of mass unauthorized copying or downloading of “blockbusters.” On balance, however, it could be argued that the domestic film industry’s most serious distribution challenge remains the traditional one: its long-standing lack of access to Canadian screens.

Quite apart from these macro issues, Canadian screenwriters and directors face a range of other copyright-related issues that affect both their professional lives and their creative control. Screenwriters, for example, have encountered increasing pressure by producers to write additional copy for program websites, without adequate compensation. (This kind of writing is now covered by the WGC collective agreement.) Typically, when screenwriters decline to provide copy for websites, the producer or their webmaster will hire writers to work exclusively for the site. This practice is not considered to be a violation of the collective agreement, and has not generated grievances.

Disputes with broadcasters over the unauthorized use of material, such as audio files of radio dramas posted to websites without payment of royalties to the author are grieved by the WGC. This illustrates how creators can rely on a structured contractual relationship with a producer or broadcaster to address a copyright matter.

Directors who have made films for the National Film Board face a variation on this problem. Under an agreement with ACTRA, the NFB is digitizing its extensive catalogue of film, and providing free downloads from its website as part of an attempt to make Canadian productions available to Canadians. The NFB’s long-term plan is to create a subscription-driven site, and would be equipped with a so-called “digital rights management” system that could provide secure downloads, collect revenues and monitor royalties. ACTRA has negotiated an agreement so that its members will receive a portion of the proceeds. But NFB directors don’t always own copyright or control digital rights. And because Canada has yet to ratify the WIPO treaties, there’s no penalty for the act of tampering with technological protection mechanisms designed to prevent unauthorized copying. In fact, this shortcoming has discouraged Canadian movie distributors from converting to digital projectors, a technology now coming into use in the U.S. With such equipment, the studios can distribute secure digital versions of films directly to theatres, thus eliminating the substantial cost of printing and shipping film. But without anti-tampering law, theatrical distributors will not make the necessary capital investment.

Performers

In Canada, professional and part-time actors are represented by ACTRA and Canadian Actors Equity Association (CAEA).

ACTRA members work in the full spectrum of fixed performance media, from commercials to television series, film, radio dramas, video games and various digital platforms including the Internet. On audio recordings, ACTRA contracts cover musical and spoken word performances, digital voice clips on toys and telephony recorded messages, even recorded museum tours.

CAEA is an association representing performers, directors, choreographers and stage managers in English Canada engaged in live performance in theatre, opera and dance. (Its sister organization in Quebec is the Union des Artistes.) The association traces its origins to actors’ unions established in the U.S. in the 1920s, but came into its own as a full-fledged Canadian union in the 1960s. CAEA collective agreements, such as the Canadian Theatre Agreement, cover a range of issues relating to the workplace and working conditions, and the organization also administers benefits, handles disputes, etc.

ACTRA’s members rely primarily on their collective agreement, but this allows performers to negotiate additional terms beyond those set out in the contract. Although an audio performer has copyright in his or her performance, an actor ceases to have any copyright ownership rights in a performance once it is “fixed” with the performer’s authorization and used for the agreed purpose. The provisions and protections inherent in the collective agreement, therefore, help to compensate for the fact that performers are not entitled to any form of copyright royalty when authorized copies of an audiovisual work are sold, communicated to the public in a broadcast, on the Internet or in a movie theatre.

ACTRA, however, is part of a growing international campaign by actors’ guilds to have performers’ rights recognized under copyright law as being equivalent to those of the screenwriters and directors of audiovisual works. This debate is taking place within multi-lateral fora, such as WIPO, with performers organizations seeking an international treaty as a starting point. In Canada, under the present Copyright Act, audiovisual performers do not have the benefit of a full catalogue of economic rights in a performance, as authors have traditionally enjoyed. Although the 1997 amendments to the law enshrined the concept of neighbouring rights for sound performances, which provides a right to remuneration for the broadcast of recorded performances, these rights are not exclusive rights that would allow a performer to negotiate the use of his or her performances. Since those changes were enacted, performers have begun to receive royalties from radio and TV stations that broadcast their music, and sound performers share in private copying royalties.

ACTRA and CAEA contracts are highly detailed and include a grid for many categories of performances. It is not within the scope of this report to provide a detailed description of these contracts. But in general, an ACTRA performer is paid a fee and the producer obtains a limited right to use the performance in order to promote and distribute the work. There are options in the agreement that provide actors with enhanced rates with secondary distribution deals, as well as compensation or additional fees for spin-offs, such as merchandise rights.

As with many creators working within the film industry, ACTRA members are generally affected by unauthorized copying of digitized movies – either pirated DVDs or downloaded versions. But ACTRA members are also confronting the advent of digital technology in more specific ways. These include video-game versions of films which require actors to produce voice-overs and performance capture for the digital versions of their characters; the growth of entertainment-related websites with voice-overs; and the next generation of online advertising which is interactive or adopts a broadcast style, and therefore makes use of actors in an online environment. ACTRA’s fee grid has been amended to address these new types of performances.

A more challenging issue has to do with the growing popularity of low-cost digital filmmaking. There’s nothing new about low-budget ‘indie’ films. But with the advent of affordable digital cameras and editing suites, there’s been a sharp increase in this kind of filmmaking in recent years. But as production budgets decrease as a result of digital technology, there’s a downward pressure on actors’ fees in such projects, and thus an increased risk that producers of such films will use non-unionized talent. ACTRA has traditionally offered discounted rates for low-budget productions, and these typically entitled performers to a larger share of the profits, should they materialize. ACTRA has also addressed the growing presence of digital filmmaking within the movie industry.