Thank you.

Good morning, Madam Chair, vice-chairs, and members of the committee. My name is Neal McDougall, and I'm the Director of Policy at the Writers Guild of Canada. Maureen Parker, WGC's Executive Director, cannot be here today due to illness. She sends her regrets. We would like to thank the committee for the invitation to appear before you today to discuss the Copyright Act.

The Writers Guild of Canada is the national association representing over 2,200 professional screenwriters working in English-language film, television, radio, and digital media productions all across Canada. These WGC members are the creative force behind Canada's successful TV shows, movies, and web series.

First, I would like to tell you a bit about how Canadian screenwriters under our jurisdiction work and get paid. Screenwriters in our jurisdiction work under our collective agreement, which is called the independent production agreement, or IPA. They enter into a contract with a producer for screenwriting services. This can involve various types of work, typically corresponding to various stages of writing and script development, from outlines and pitch documents to so-called bibles, which are reference documents that lay out a television series' characters, settings and other elements, to drafts of a completed script.

Under the IPA, screenwriters are paid what we call a script fee for any and all of these stages of work. If a script moves into production, the screenwriter is additionally paid what we call a production fee. Finally, the IPA provides for royalty payments to the screenwriter based on a percentage of profits from the distribution and exhibition of the production.

In addition, the WGC has established the Canadian Screenwriters Collection Society, or CSCS. The mandate of CSCS is to claim, collect, administer and distribute, on a collective basis, foreign authors' levies to which film and television writers are entitled under the national copyright legislation of certain countries.

A script and a production produced from that script are separate works under copyright, and as such, they each have their own copyright protection. Under the IPA, screenwriters retain copyright as the author of their script, and they license the producer the right to produce a cinematographic work based on that script. Producers aggregate that licence with whatever other intellectual property rights they may require to produce the cinematographic work. Producers then commercially exploit the finished production in the marketplace and remit a royalty to the screenwriter on profits, based on the terms of our collective agreement.

This leads to our primary request today. As we said in the summer to your colleagues at the Standing Committee on Industry, Science and Technology, we would like to ask for a simple amendment to the act to clarify that screenwriters and directors are jointly the authors of the cinematographic work.

Authorship is a central concept in the Canadian Copyright Act. The act acknowledges that authors generally create copyrightable works and states the general rule that “the author of a work shall be the first owner of the copyright therein”. The authors of cinematographic works are jointly the screenwriter and the producer.

Screenwriters and directors are the individuals who exercise the skill and judgment that result in the expression of cinematographic works in material form. They start with a world of possibilities from which they make countless creative choices. Screenwriters create a world, choose the specific place and time in that world to begin and end the story, set the mood and themes, create characters with histories and personalities, write dialogue and map out a plot. Directors direct actors, choose shots and camera positions, and make choices that determine the tone, style, rhythm, and meaning as rendered in moving pictures.

Producers are not authors. Producers are the people with the financial and administrative responsibility for a production, which is defined in the current act as makers. While raising financing and arranging for distribution are important aspects of filmmaking, neither activity is creative in the artistic sense, and it is not authorship.

Moreover, copyright protects the expression of ideas, not the ideas themselves, so while producers may, on occasion, provide screenwriters and directors with ideas and concepts, it is screenwriters and directors who in turn express those ideas and concepts in copyrightable form.

A painter is the author of a painting. A writer is the author of a novel, and screenwriters and directors are jointly the authors of a film or television production. Art is made by artists, no matter what the medium.

A Canadian court has already decided that the joint screenwriter/director is the author of a film and not the producer. The court held that the individual producer could not be considered to be the author of the film since his role was not creative. As such, our proposal does not change the law or the reality in Canada; it simply clarifies it and does so consistently with international norms such as those of the EU.

Why is this important? For one thing, the act defines the term of copyright based on the life of the author. If the identity of the author is uncertain, then the term of copyright may be uncertain; therefore, there can be uncertainty about whether a given work is still under copyright or is in the public domain. For another thing, recognizing screenwriters and directors as joint authors provides support for creators and the role they play in Canada's creative economy. It gives them a strong position in which to bargain and enter into contracts with others in the content value chain. It puts them on a more level playing field.

Since this clarification would not alter the legal reality in Canada, it poses no threat to existing business models. Producers and others seeking to engage creators for their work would simply contract for the rights in that work, the same as they always have. Nobody argues that novelists aren't authors of their novels or composers aren't authors of their music, and certainly nobody argues that publishers somehow can't sell books or recording companies can't sell music just because these authors are the first owners of their works. Indeed, screenwriters are already clearly the authors of their screenplays, and producers already contract for the rights to adapt those screenplays as a matter of course.

It is the same for sequels or series television, which are simply multiple works based on the same characters or other elements. Any number of films or TV shows have been based on Bible stories, Jane Austen or Batman, but each new production is a new and separate copyrighted work, and each has its own authors who wrote and directed that particular production. Each film or episode is a new and different story that drives the characters forward. This is how it has always worked.

Finally, in this fast-changing environment, in which disruption is the rule and not the exception, clarifying screenwriters' and directors' positions as authors provides the potential for further tools, such as equitable remuneration for authors—as is available in other jurisdictions, such as Europe—if and when that policy option needs to be considered. Clear authorship is an essential step toward getting there.

Thank you for your time, and we look forward to your questions.

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