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I Didn’t Say That – The Ability of Actors to Control Their Performances Under Canadian Copyright Law

When the United States Ninth Circuit Court of Appeals issued its 2014 opinion in Garcia v Google (the original order and opinion is here; the amended order and opinion is here), its tentative conclusion that actors might enjoy copyright protection in their on-screen performances was met with vociferous criticism from movie producers and online content providers – the criticism was so fierce, and the arguments marshaled so convincing that on May 18, 2015 the US Ninth Circuit Court of Appeals en banc reversed the earlier decision (the May 18, 2015 opinion is available here). But Canadian copyright law has protected performer’s performances for nearly two decades, without much trouble or even attention – is there an explanation for the discrepancy in reactions?

Garcia v Google – Facts and Procedural Background

The May 18, 2015 decision  brings to an apparent close one of the stranger copyright cases in recent memory. The decision appears to definitively state that, under US copyright law, actors are not entitled to copyright in their on-screen performances – a conclusion which was vigorously argued over by a remarkably long list of intervenors in the case. The facts in Garcia are fairly straightforward: an actor responded to a casting call for movie titled “Desert Warrior” and appeared on-screen uttering two lines in the low-budget movie; unbeknownst to the actor, the producers of the movie dubbed her lines in the final version of the movie so that she appeared to be saying words she didn’t actually speak and re-titled the movie to “Innocence of Muslims“; worse, the movie, the trailer for which was uploaded to YouTube, proved to be incredibly controversial – in the words of the court, “the film fomented outrage across the Middle East, and media reports linked it to numerous violent protests”. The procedural history of the case is a bit more convoluted. The actor, seeking to have her participation in the trailer and film excised, sued Google and the producers of the movie and issued DMCA take-down notices, arguing, amongst other claims, that the defendants had infringed her copyright. Seeking an injunction forcing the removal of the footage from YouTube, she was unsuccessful in the district court, but a panel of the Ninth Circuit Court of Appeal reversed and granted the injunction. The court’s reasons seemed to indicate that Garcia had a protectable copyright interest in her performance as captured in the producer’s movie. That conclusion excited much debate and the case was re-heard by the Ninth Circuit Court of Appeal sitting en banc, which, as noted above, reversed the earlier Court of Appeal decision (Judge Alex Kozinski, who authored the original, controversial decision, stuck to his guns and dissented from the reasons of the en banc majority).

The initial 2014 Ninth Circuit Court of Appeals decision was controversial because it seemed so incongruous with established American copyright practice. American copyright law has historically not recognized any copyright interest on the part of an actor in their performance; indeed, when Garcia tried to register a copyright claim with the United States Copyright Office, the Office rejected the application, explaining that “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained in a motion picture”. There seemed to be doctrinal and practical obstacles to recognizing performances as copyrightable, not least of which would be that, to again quote the Ninth Circuit’s en banc decision, “treating every acting performance as an independent work would … be a logistical and financial nightmare”.

In any event, for purposes of US copyright law, the “nightmare” now appears to be over (at least until the Supreme Court decides to take up the matter…). All that being said, Canadian copyright law does offer copyright protection to actor’s performances – so how have we avoided the “nightmare”?

Performer’s Performances in Canadian Copyright Law

As an initial observation, the Canadian Copyright Act required some significant amendments, introduced in 1997, in order to enable the protection of what the Act terms “performer’s performances”. Prior to those 1997 amendments, performances were not protected by Canadian copyright law, as they failed to constitute a “work” for purposes of copyright law; post-1997, they still aren’t a “work”, but rather are protected as other subject-matter.

Sections 15(1) and 15(1.1) of the Copyright Act state that (subject to various threshold matters, found in Sections 15(2), (2.1) and (2.2), such as where the performance occurred) “a performer has a copyright in the performer’s performance”. “Performer’s performance” is a defined term in the Act (found in Section 2), and it means:

(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,

(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or

(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;

“Performance” itself as also defined in Section 2 and means “any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set”.

Readers will note that the definitions are impressively broad: virtually any motion or sound created by the human body seems to qualify as a “performer’s performance”, including dance, mime, recitations of lines or extemporaneous utterances – clause (c) of the definition, which allows for the protection of “improvisations” seems particularly expansive. Further, it should be highlighted that there is no requirement that any performer’s performance be “original” – thus, even that low bar does not apply and thereby restrict the scope of protection for performer’s performances.

The exact nature of the rights accorded to performer’s in their performances are found in Sections 15(1) and (1.1): the copyright in the performance includes the rights to fix the performance and to reproduce the fixation of the performance.

At first glance, then, the situation under the Canadian Copyright Act seems like a particularly robust example of what the full Ninth Circuit was concerned about: if copyright protection extends that far, it seems designed to make for logistical nightmares in the administration of copyright. But the Canadian film and television production industry has not ground to a halt in the face of this tsunami of copyright claims – why not?

I think there are two partial answers. On a practical level, most of the problems are addressed by simple contractual arrangements – producers ensuring that everyone who appears on-screen signs some kind of waiver/release/transfer of rights. But if that doesn’t happen (which is more often the case in small budget projects – the Garcia reasons state “low-budget films rarely use licenses”), there remains a “fail-safe” mechanism in the Canadian Copyright Act: Section 17(1). What the Act gives with one hand (Section 15), it takes away with another: Section 17(1) states that when a performer “authorizes the embodiment of [his or her] performer’s performance in a cinematographic work, the performer may no longer exercise … the copyright [in that performance]“. In other words: if a performer authorizes the inclusion of their performance in an audio-visual project, the performer loses the right to control the exploitation of their performance in that project. And note what the language does not say: it does not say that the performer has to “authorize” the embodiment in writing. Thus, if there’s no need for the performer to memorialize their authorization in a written instrument, it becomes much easier to conclude that a performer authorized the embodiment of their performance simply by agreeing to be present in front of the camera (of course, that argument works only when the performer is aware that the camera is present and recording).

One final consideration which bears mention, and which is the more troubling: what about moral rights? The Copyright Modernization Act, enacted in 2012, added Sections 17.1 and 17.2 to the Copyright Act, which extended moral rights to some performances (for earlier Signal commentary on the topic, see Moral Rights Extended – But How Far?). It’s not immediately clear whether moral rights apply to an actor’s performance (or all actor’s performances) – the language of Section 17.1 states that it gives moral rights to “a performer of a live aural performance or a performance fixed in a sound recording”; that seems to indicate an intention to grant moral rights to what we might call “musicians”, and possibly “singers”… but actors? Most actors do generate an “aural performance” (by speaking lines) but is what they do a “live aural performance”? (What is a “live” performance anyways? What role is “live” playing in that phrase? What would a “non-live” performance look like? Is there a distinction for these purposes to be drawn between actors performing on the theatrical stage and actors performing for embodiment in a film?) The easier position is to conclude that the moral rights provisions in Sections 17.1 and 17.2 don’t extend to film/TV actors. But if that is incorrect, and actors do enjoy moral rights in their performances, then the position of producers becomes more complicated. Moral rights cannot be assigned, but they can be waived (Section 17.1(2)); there is no requirement that the waiver be in writing, but presumably for there to be a waiver there must be some turning of the mind to the matter – which, I think it’s safe to conclude, isn’t something that happens very often on set. One could try to rely on industry practice resulting in an implied waiver of moral rights, but even that seems a bit of a stretch. More fruitful might be the inherent limitations on moral rights: the right of association (i.e., the right to be identified as the performer of the performance) is limited to when it is “reasonable in the circumstances”; the right of integrity (i.e., the right to control the distortion, mutilation or modification of a performance and the right to control the use of the performance in association with a product, service, cause or institution) is limited to uses which “prejudice” the performer’s honour or reputation. Interestingly, Garcia might have had more luck with her claims under Canadian law, relying on moral rights infringement on the basis that, when the producers dubbed her lines and included her performance in a motion picture which was apparently different from what she originally understood herself to be participating in, her performance had been modified in a manner which prejudiced her honour or reputation.

I Didn’t Say That – The Ability of Actors to Control Their Performances Under Canadian Copyright Law

If You Know About It, You’re the Publisher – Website Operator Liability for Defamation

The first few months of 2015 have brought some welcome direction from Canadian courts regarding the liability of operators of websites for defamatory postings on their websites made by third parties. In plain English: we’ve now got a better understanding of when, say, a newspaper publisher, independent blog writer or operator of an online discussion forum will be liable when one of their readers/participants posts a defamatory comment on the website (e.g., in the “comments” section of the newspaper’s website). Astoundingly, this was an open question in Canadian defamation law until now (it’s 2015!).

Perhaps that last editorial comment was a touch unfair. We had some indication from Canadian courts about how these matters would be handled. In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, the British Columbia Court of Appeal indicated that the operator of a website might be liable in defamation for material posted to the website once the operator received notice of the purportedly defamatory material but did not take steps to remove it; however, the Carter decision did not decide on the merits of that matter, being simply a reversal of the trial court’s summary judgment decision based on the plaintiff’s action being time-barred. (Carter is more often cited as authority for the proposition that simply pointing someone to an online destination which contains defamatory material does not make you a “publisher” of such defamatory material, a conclusion which was adopted by the Supreme Court of Canada in Crookes v. Newton 2011 SCC 47, in which a majority of the Court held that merely hyperlinking to defamatory material could functionally never give rise to liability for publishing the material.) Thus, while Carter gave us an inkling of what might happen to a website operator who left defamatory material on their website after receiving notice of such material, it was not definitive authority. In the meantime, based partly on Carter and partly on cases in other jurisdictions, counsel to large website operators had taken to advising their clients to remove defamatory material after being given notice thereof.

Fast forward to 2015, and we were suddenly blessed with two cases in quick succession which explicitly considered the matter, and explicitly held that the onus is on website operators to remove defamatory material of which they are given notice – failing which they will find themselves liable. First up, Weaver v. Corcoran, 2015 BCSC 165. Many different issues were considered in Weaver, but for our purposes the salient aspect of the case was that  one of the defendants (National Post Inc.) operated multiple websites at which readers had posted comments containing material which defamed the plaintiff. The National Post argued that it was not a “publisher” of the defamatory material contained in the reader comments as they “did not have effective control over those posts”. The court in Weaver observed that the parties to the case were ”of the view [that] this case raises, for the first time in Canada, the issue of whether one who operates an internet forum – in this case a reader comment area on the newspaper’s website – is liable for third-party postings”. (Oddly, the Weaver reasons never mention Carter.)

Ultimately, the court in Weaver concluded that the National Post was not liable for the content of the reader comments on the basis that the National Post had not “published” the posts due to the fact that the posts were removed from the National Post’s websites once the National Post was made aware of them. From the decision:

[273] Once the defendants became aware of the comments in the reader postings and received a complaint, they were then taken down. The volume of postings is such it would not be realistic to expect the defendant to pre-vet every posting. …

[275] I agree, as argued by the defendants, that the [English] cases appear to establish the requirement to show an active or deliberate act in making defamatory information available to establish liability. This appears to be a consistent approach in a number of English cases which have grappled with the issue. …

[284]     Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, theNational Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.

[285]     In this case, while Mr. Racovali could not recall who he spoke to about having the comments removed, he testified within one or two days of receiving the complaints of the reader posts, he took steps to remove the offending reader posts. While Dr. Weaver says this evidence is not credible as Mr. Racovali did not make a note of this, I accept his evidence on this point. The reader posts were clearly offensive. There is no apparent reason for theNational Post to retain posts of such vitriolic character.

[286]     Action must immediately be taken to fulfill the responsibility not to distribute defamatory material. The evidence establishes that was done within one to two days to address that problem. In my view, that is all the defendants could realistically do in the circumstances. While the plaintiff maintains more should have been done, I am unable to agree based on the evidence before me. As technology progresses, the answer and evidence on this issue may well be different.

[287]     Due to the prompt removal of the offending reader comments once known to the defendants, I have concluded the defendants are not publishers of the reader postings. Accordingly, I do not need to deal with the defence of innocent dissemination or fair comment.

In short, the National Post could not be held liable for the defamatory content contained in its readers’ comments until the National Post became aware of such content and unless it failed to remove the offending material either “immediately” or “promptly” following receipt of notice. The message to website operators from Weaver is thus fairly straightforward: feel free to operate “unmoderated” comments sections on your website, but once you are made aware of defamatory content, you’d better act swiftly to remove that content or risk the pain of an adverse defamation judgment.

While the website operator defendant in Weaver escaped liability on the basis that they weren’t publishers of the defamatory content, in the second of our 2015 defamation decisions, the website operator defendant was found to be a publisher of the content, but escaped liability on the basis that the content constituted “fair comment”. In Baglow v. Smith, 2015 ONSC 1175, the defendants operated a “message board” or online forum in which users could post messages. Users of the forum posted messages which were eventually found to be defamatory of the plaintiff, prompting the commencement of the defamation action; in response to the action, the defendants argued that they were not the publisher of the defamatory material, but instead were merely “the distributor of content generated and posted by third parties” and that “they did not write, edit, modify or in any way participate in the writing or posting of the impugned words”.

The court in Baglow concluded that the defendants were responsible, as publishers, for the defamatory content on the basis that they were the “the moderators and administrators” of the forum, with the power to edit and delete postings made by users. The court’s reasons refer to Carter, but did little more than mention the decision, without expressly applying the principles found in it to the facts at hand in Baglow. The primary concern articulated by the court in Baglow was that allowing the defendants the type of defence they were seeking would tip defamation law’s balance between protection of reputation and freedom of expression too far in favour of the latter. Nevertheless, it seems that the conclusion in Baglow that the defendants were prima facie liable for defamation was animated by the same considerations found in Weaver (which had been released only a few weeks before Baglow).

And so, putting Weaver and Baglow together, we seem to arrive at the conclusion, informed by concerns about providing Canadians with viable mechanisms for protecting their reputations from online disparagement, that Canadian defamation law will permit website operators to operate unmoderated forums (in the sense that material can be posted by users without prior review by the website operator), but that once the operators become aware that purportedly defamatory material has been posted to their forum, they are obliged to remove it within some fairly short period of time in order to avoid defamation liability as a publisher of the material.

All that being said, significant unanswered questions remain. How much time is a defendant permitted to remove a purportedly defamatory comment? Weaver swings between using “immediately” and “promptly” to describe the time period, and ultimately concludes that “one to two days” is swift enough, even in the context of a deeply-resourced and well-staffed commercial operation; will that apply in all circumstances or might shorter or longer periods apply in other situations? What if there is a reasonable dispute about the purportedly defamatory nature of the content? Is there any “safe harbour” for a website operator to consider the matter, or are they obliged to remove the content first, and ask questions later? Are website operators obliged to maintain their websites with the technical ability to alter or delete posts, or could they shelter themselves behind a wall of technical impossibility or difficulty (in other words: what if a website operator constructed a website or forum which it impossible to alter/delete posts)?

Presumably answers to the foregoing will come in time. For now, though, Canadian lawyers can take comfort in knowing that their instinctive response to online defamation (if you know about it, you’re best to take it down) has found favour in the courts.

If You Know About It, You’re the Publisher – Website Operator Liability for Defamation

Ontario Passes Protecting Child Performers Act

On April 30, 2015, Ontario passed Bill 17, entitled the Protecting Child Performers Act; on May 5, 2015, Bill 17 received Royal Assent, and so, by its terms, the Act will come into force in February 2016 (nine months from Royal Assent). As set out in Section 2 of the Act, its purpose is to “promote the best interests, protection and well being of child performers”. The text of the legislation as passed can be accessed here. The Act changes in critical ways the obligations of Ontario employers of children in the entertainment industries.

Effect of the Act

The particulars are set out below, but the “big picture” summary of the Act is that it extends to all child performers in a wide range of entertainment activities the types of working condition protections which have historically been associated with the collective agreements of performers’ unions and guilds, such as ACTRA. It is impossible to avoid the minimum protections afforded by the Act, but where an employment contract, collective agreement or other statute applies directly to a matter addressed by the Act and the provision in the employment contract, collective agreement or other statute provides “a greater right or protection to a child performer, the provision in the employment contract, collective agreement or other [statute] applies” and thus “trumps” the application of the Act. In short, a child performer can contract for better protection than that provided by the Act, but cannot contract for worse protections.

Scope of Application

To begin, we need to determine the scope of the Act’s application. At its core, the Act governs the relationships between employers, parents and “child performers”. Failure by an employer to comply with the Act can result in liability under the Employment Standards Act. The following criteria must be present for the Act to apply:

  • the “child performer” must be under 18 years of age;
  • the child performer must be receiving “monetary compensation” (i.e., the Act does not apply when the child performer is not being paid, or is being compensated by means other than monetary payments); and
  • the child performer must be performing work or supplying services in the “entertainment industry”
    • “entertainment industry” means either (i) the “live entertainment industry”, which means the “performing arts industry that provides live entertainment in theatre, dance, music, opera or circus” or (ii) the “recorded entertainment industry”, which means “the industry of producing visual or audio-visual recorded entertainment that is intended to be replayed in cinemas, on the Internet, on the radio, as part of a television broadcast, or on a VCR or DVD player or a similar device, and includes the industry of producing commercials”

We can see at this point that there are some ambiguities about the precise scope of the Act’s reach – namely, it is unclear the extent to which it applies to what we might colloquially refer to as the “music industry”. From the definition of “recorded entertainment industry”, it does not appear that the Act covers the rendering of performing services where what is being produced is an audio-only sound recording – but that’s not entirely certain, since the definition does include recorded entertainment that is intended to be replayed “on the radio”. Using the example of a “boy band” made up of members under the age of 18, it seems the Act would not apply to their in-studio recording work, but would apply to their live concert performances. (The Act has some other drafting oddities – is it really necessary to refer to “VCRs”?)

General Engagement Rules

The Act imposes three different sets of obligations on employers: (1) obligations which apply to all engagements of child performers, irrespective of which aspect of the entertainment industries they are providing service sin; (2) obligations which apply only to engagements in the “recorded entertainment industry”; and (3) obligations which apply only to engagements in the “live entertainment industry”. The following obligations apply to all engagements of child performers:

  • Contracts Must be in Writing. All engagements of child performers must be pursuant to a written contract. [Section 5]
  • Pre-Contract Meeting and Ongoing Disclosure. Before entering into a contract with a child performer, an employer must meet with with the child’s parent or guardian (the child performer is entitled to be present at and participate in such meeting) and disclose the following information: (a) a general description of the role the child performer will play; (b) the location and hours of rehearsals and performances; (c) any health or safety hazards to which the child performer may be exposed during rehearsals or performances, and the precautions that will be taken to prevent injury to the child performer; (d) any special skills the child performer is expected to perform that require a level of physical proficiency or other skill superior to that of an average child; and (e) any special effects to which the child performer may be exposed. If any of the items disclosed at the pre-contract meeting change, the employer must notify the parent/guardian of the change, and the employer is prohibited from implementing any proposed change unless the parent/guardian has agreed to in writing to the change. [Section 4]
  • Script Disclosure. A copy of the portion of any script relating to the child performer’s services must be provided to the parent/guardian prior to the commencement of production.
  • Travel. If a child performer is younger than 16, the parent, guardian or “authorized chaperone” (who must be over 18 and have written authorization from the parent/guardian) must accompany the performer to and from the workplace. If a child performer is obliged to be “away from home overnight”, a parent/guardian (but not an authorized chaperone) must accompany the child “at all times”, and the employer must pay for all “daily expenses and the costs of travel and accommodation” up to maximums to be set out in the Act’s regulation. [Section 6]
  • Tutoring. An employer must “provide time in the work schedule for a child performer who is of compulsory school age to receive tutoring”. Details of the elements required in the tutoring will be set forth in the Act’s regulation. [Section 7]
  • Income Protection. Where a child performer earns more than $2,000 on a production or project, the employer must deposit 25% of the child performer’s earnings into trust (to be held until the child turns 18). Details of the trust arrangements will be set out in the Act’s regulation. The foregoing will not apply in situations where the child performer is a union member, and the union’s collective agreement requires that funds be deposited into trust. [Section 8]
  • Health and Safety Training. Employers are required to provide training for each child performer (in a manner “appropriate to the child performer’s developmental stage”) and their parent/guardian/chaperone with respect to the following matters: emergency procedures; restricted areas; safe waiting areas; the location of washrooms, make-up areas and “other areas relevant to the child performer’s work”; and “the procedure for identifying and reporting unsafe working conditions”. [Section 23]
  • Right to Refuse Work. For purposes of subsections 43(3)-(10) of the Occupational Health and Safety Act (which permits workers to refuse to work in unsafe conditions), where a child performer is under 14 years of age, their parent/guardian/chaperone is given authority to make decisions for them. [Section 24]
  • Healthy Food. When employers provide food to child performers, they must provide them with “healthy snacks and meals … as close to the child performer’s regular snack and meal times as possible”, and must ensure that any food provided “meets the child performer’s needs in respect of food allergies and special dietary requirements”. [Section 25]

Recorded Entertainment Industry

The following obligations apply to engagements of child performers in the “recorded entertainment industry”:

  • Minimum Age. No child performer who is younger than 15 days can be engaged to provide services. [Section 10]
  • Hours of Work. The Act imposes strict limitations on the number of hours that child performers can work, which are different for different age groups: performers under two years can only work a maximum of four hours a day, while those over two years can only work a maximum of eight hours in a day. Overtime is permitted only if the child performer is a union member and the child is paid overtime rates. An employer must provide at least 48 hours notice if the child performer’s start time is after 7pm. [Section 11]
  • Turnaround Time. Child performers are entitled to a minimum of 12 consecutive hours “free from work” each day and 48 consecutive hours “free from work” each week. [Section 11]
  • Limits on Time in Front of Recording Device. The Act contains very detailed limits on how much time a child performer can spend being filmed/recorded before receiving a break (and how long such break period must last), based on the age of the performer. [Section 12]
  • Parental Accompaniment. Child performers who are under 16 years of age must be accompanied in the workplace by a parent/guardian or “authorized chaperone” (who cannot be the child’s tutor or agent), who is “accessible to the child performer at all times”. [Section 14]
  • Child Performers’ Coordinator. The employer must designate one person at the workplace as a child performers’ coordinator who is “responsible for co-ordinating matters related to the welfare, safety and comfort of child performers”. If there are more than six child performers in the workplace, the coordinator cannot also be the tutor. [Section 15]

Live Entertainment Industry

The following obligations apply to engagements of child performers in the “live entertainment industry”:

  • Minimum Age. No child performer who is younger than two-and-a-half years can be engaged to provide services. [Section 17]
  • Hours of Work. The Act imposes strict limitations on the number of hours that child performers can work, which are different depending on which “phase” the services are rendered in (the “rehearsal phase” or the “performance phase”) and depending on the age of the child performer. No overtime is permitted in either phase. [Section 18]
  • Turnaround Time. Child performers are entitled to a minimum of 12 consecutive hours “free from work” each day and 36 consecutive hours “free from work” each week. [Section 18]
  • Breaks. No employer shall require or permit a child performer to work for longer than two consecutive hours without a break of at least 10 minutes. During the rehearsal phase, the employer shall give the child performer an eating period of at least 90 minutes and shall schedule eating periods so that the child performer does not work more than four consecutive hours without an eating period. [Section 19]
  • Option for Chaperone. Unlike the situation in the recorded entertainment industry (which requires parental accompaniment for performers under 16 years of age during working hours), parents/guardians of child performers older than two-and-a-half years of age in the live entertainment industry may designate a chaperone to “be available to the child performer while the child performer is at the workplace”. Thus, for child performers in the live entertainment industry there is no obligation that they be accompanied by a parent/guardian/chaperone. [Section 20]
  • Child Attendants. The employer is obliged to designate a “child attendant” who is “responsible for monitoring the child performers at the workplace while the child performers are not rehearsing or performing”. The “child attendant” must be at least 18 years of age, not otherwise employed on the production, not the child’s tutor and must possess a clean criminal (as defined in the Act’s regulations). The number of child attendants required to be engaged is determined by a formula which is based on the age of the youngest child performer: where the youngest performer is under six years of age, there must be one attendant for every six children; where the youngest performer is between six and ten years of age, there must be one attendant for every ten children; and where the youngest performer is ten years of age or older, there must be one attendant for every fifteen children. [Section 21]
  • Clean Criminal Record. Section 22 of the Act requires that “prescribed individuals” (to be defined in the Act’s regulations) who “may be required to be alone with child performers” must have a “clean criminal record” (to be defined the Act’s regulations). The Act is silent on why this requirement applies only to the live entertainment industry but not to the recorded entertainment industry.

As readers can see, the Act imposes a raft of obligations on those who engage child performers in the live and recorded entertainment industries. While there is some overlap with existing union/guild requirements, there are also new statutory obligations which go beyond what might otherwise be required under an applicable collective agreement. Those engaging child performers must therefore take the time to familiarize themselves with the Act and determine what additional steps, if any, they must take to be in compliance.

Ontario Passes Protecting Child Performers Act

Ontario’s 2015 Budget Makes Changes to Cultural Tax Credits

The Ontario government released its 2015 Budget on April 23, 2015 – and it makes some significant changes to Ontario’s cultural tax credit regime, including the elimination of the sound recording tax credit. (Please note that the following text is excerpted from the Budget.)

Ontario Interactive Digital Media Tax Credit

The government proposes to amend the OIDMTC by focusing the credit on entertainment products and on educational products for children under the age of 12. Certain products would be specifically excluded, such as search engines, real estate databases, or news and public affairs. The government also proposes to strengthen the rule that excludes promotional products.  The changes would apply to expenditures incurred after April 23, 2015. However, products started before April 24, 2015, that would no longer be eligible for the credit would be eligible for relief in respect of expenditures incurred before April 24, 2015. Information about the proposed changes and examples of products that would be eligible for the credit will be provided in a bulletin.

The Province also proposes to improve the certification process by amending the requirement that all or substantially all (at least 90 per cent) of a product be developed in Ontario by the company claiming the credit. To provide certainty to applicants and reduce processing times for product certification, the requirement would be replaced by a rule based on the labour costs of the company developing the product. The proposed rule would require that 80 per cent of total labour costs for eligible products be attributable to qualifying wages and qualifying remuneration paid to individuals or corporations that carry on a personal services business. As well, 25 per cent of total labour costs for eligible products would berequired to be attributable to qualifying wages of employees of the qualifying corporation. The new rule would apply to all products, including those awaiting certification. However, the new rule would not apply to products that were certified before April 24, 2015.

Ontario Production Services Tax Credit (OPSTC)

Ontario proposes to reduce the OPSTC rate from 25 per cent to 21.5 per cent for qualifying production expenditures incurred after April 23, 2015.

Ontario also proposes to make the following changes to the OPSTC effective for taxation years that begin after April 23, 2015:

  • To ensure that salaries and wages paid to Ontario-based individuals for services provided in the Province represent more than a nominal amount of a corporation’s total eligible expenditures, a qualifying corporation’s Ontario labour expenditures (including labour under a service contract) would have to amount to at least 25 per cent of total expenditures.
  • Ontario also proposes to limit expenditures incurred by a qualifying corporation pursuant to contracts with non-arm’s-length parties to amounts that would have been eligible for the credit if the corporation had incurred the expenditures directly.

It is also proposed that the OPSTC be clarified to ensure that only expenditures incurred after the final script stage to the end of the post-production stage would be eligible for the credit. This amendment would apply to expenditures incurred after June 30, 2009.

Ontario Computer Animation and Special Effects (OCASE)

Ontario proposes to reduce the rate of the OCASE from 20 per cent to 18 per cent for expenditures incurred after April 23, 2015. In addition, it will be required that productions started after April 23, 2015, must also receive the OFTTC or the OPSTC in order to claim the OCASE.

Ontario Film and Television Tax Credit (OFTTC)

Ontario will pass a regulation to maintain the position that government equity is not assistance for OFTTC purposes.

Ontario Sound Recording Tax Credit

This credit is being eliminated altogether.  There is some limited grandfathering. An expenditure incurred after April 23, 2015, will only qualify for the credit if the eligible sound recording was commenced before April 23, 2015, the expenditure was incurred before May 1, 2016, and an Ontario Music Fund grant is not received in respect of the expenditure.

Ontario’s 2015 Budget Makes Changes to Cultural Tax Credits

Balancing the Budget …and Balancing Copyright

The Government of Canada’s Budget Plan for 2015 proposes various measures within the expected areas of tax relief, job creation and economic growth measures.  It also includes a very unexpected proposal to extend the copyright term for sound recordings, to benefit record labels and performers.  The Economic Action Plan puts this forward as follows:

Protection of Sound Recordings and Performances

Economic Action Plan 2015 proposes to amend the Copyright Act so that the term of protection of performances and sound recordings is extended from 50 years to 70 years following the date of the release of the sound recordings.

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings. While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song  recordings and performances following the first release of the sound recording is currently provided for only 50 years.

Economic Action Plan 2015 proposes to amend the Copyright Act to extend the term of protection of sound recordings and performances from 50 to 70 years following the first release of the sound recording. This will ensure that performers and record labels are fairly compensated for the use of their music for an additional 20 years.

The copyright proposal is surprising not only for its inclusion in a budget document, but also for its appearance so soon after the government heralded its delivery of the Copyright Modernization Act.  The 2012 Act was intended to balance and modernize Canada’s entire copyright regime, and was enacted following lengthy and detailed consultations with representatives of all affected stakeholders.

The 2012 Press Release, Harper Government Delivers on Commitment to Modernize Canada’s Copyright Laws,  includes the following statements:

“Our Government recognizes the critical role that modern copyright laws play in protecting and creating jobs in Canada’s digital economy,” said Minister Paradis. “We have delivered on our commitment to modernize Canada’s copyright legislation and strike the right balance between the needs of creators and users.”

“This is the most comprehensive effort to modernize our copyright laws in over a decade,” said Minister Moore. “It is widely supported by creator groups, consumer organizations and the businesses that drive Canada’s economy.”

A critical element of the Copyright Modernization Act is the requirement that Parliament revisit the Copyright Act every five years. This will serve as a reminder to current and future Parliaments and governments of the important role that modern and updated copyright laws play in our economy.

Indeed, section 92 of the Copyright Act calls for a statutory review of the Act every five years by a committee of the Senate, House of Commons, or both.  Section 92 does not preclude amendments between those statutory reviews.  However, the government and stakeholders alike have all recognized that copyright calls for balance.  Achieving that balance calls for careful review and input from all stakeholders.

A further 20 years of protection and fees for sound recordings has been welcomed by the music industry in Canada.  But will this proposed budgetary measure have the effect of making a real difference for the Canadian economy?  And on the copyright side, will it ”strike the right balance between the needs of creators and users”?

The Government of Canada has promised to balance the budget.  As the copyright term extension proposal moves forward, we look forward to further discussion on balanced copyright.

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Balancing the Budget …and Balancing Copyright