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A GOLDEN KEY? Film Fund serves as common link between some of the region’s most promising stories for the screen

What does a story about an Indonesian school girl with big dreams, a tale of a modern day pilgrim searching for a place to call home, and an account of two miners from Vietnam confronting the ghosts of the past, have in common? The answer: All are exciting new feature film projects developed with the support of the MPA APSA Academy Film Fund.

The Fund, a joint initiative of the Motion Picture Association and the Asia Pacific Screen Academy, aims to encourage and empower creative filmmakers. The films they feel inspired to make may be unconventional in style and content, may be about contemporary or historical social issues that don’t fit within the conventions of a mainstream industry, or may be in jeopardy of attracting uninvited censorship or political restraint.  The filmmakers may be located outside their own country’s commercial film and TV industries, working alongside them or within them.

Yuni (2021) (Source: Asia Pacific Screen Awards)

 

An Indonesian project entitled Yuni attracted the attention of the Fund jury in 2018 because it was the work of a strong female director, Kamila Andini, seeking to explore the thoughts and emotions of a teenage schoolgirl faced with the pressure of regimented social structures around her. As the film’s synopsis says, “Yuni realizes that when her dreams get bigger, the world around her gets smaller.” Driven to resist the push from family and friends to accept a domestic role in an arranged marriage, she struggles to find a way of pursuing her own preference for continuing study at an advanced level. The communal constraints that surround her include the threat of a virginity test at her school for any students felt by teachers to be “at risk” of pregnancy. Her complex responses to these tensions are the substance and strength of the project, and the submission felt authentic, sensitive, and empathetic. Kamila Adani was nominated for Best Achievement in Directing in the 2021 Asia Pacific Screen Awards for her work on Yuni, which now begins a Festival career around the world. Toronto is the first and likely many more will follow.

No Land’s Man (2021) (Image courtesy of Mostofa Sawar Farooki)

 

No Land’s Man from Bangladeshi filmmaker Mostofa Sarwar Farooki was similarly convincing as a project from the heart. Essentially a classic picaresque fable about a man’s journey through a turbulent life, the project partly drew on Farooki’s personal experiences to examine the progress of a modern “pilgrim” – in this case, a lone, stateless man who moves from one country to another looking for legal status and a place he can call home. In his identity crisis, he has no certainty about his name, religion, or nationality.

Farooki’s remarkable debut feature, Television (2012), about a rural village where the community leaders ban television, signaled him to be an innovative artist supremely committed to making his films in his own way, in the face of innumerable obstacles.

With No Land’s Man, after receiving the support of the MPA APSA Academy Film Fund in 2014, the project went on to participate in the Asian Project Market at Busan in South Korea and was chosen as the best project at India’s Film Bazaar. After receiving the grant, Farooki spent some months working with Australian producer Graeme Isaac pursuing Australian finance so that he could film an episode of the story in Australia. While the location shoot didn’t happen, an Australian actress, Megan Mitchell, remained in the cast as a young woman who meets the pilgrim in the USA. The film moved forward dramatically when Indian star Nawazuddin Siddiqui made a personal commitment to join the team as lead actor and co-producer: “I thought this is our film. It is as much my film as it is Farooki’s, and it needs to get made,” Siddiqui said. With its personal origins, sense of social relevance, urgency, and bold narrative structure, the project commanded attention from the MPA APSA Academy Film Fund and is set to travel far internationally after its 2021 world premiere at the Busan International Film Festival.

Truong Minh Quý, Bianca Balbuena & Bradley Liew (Source: IFFR)

 

An international life also awaits Viêt And Nam, a film now in pre-production, which received a grant from the Fund in 2020. With a Vietnamese director, Trương Minh Quý, and Filippino producers, Bianca Balbuena and Bradley Liew, the film is already crossing boundaries. Trương’s project signals its uniqueness and commands attention when he describes his narrative as “lying between documentary and fiction, personal and impersonal, drawing on the landscape of his homeland, childhood memories, and the historical context of Vietnam.” The submission radiated a sense of urgency and emotional depth in facing issues of profound social dislocation and alienation, with characters still haunted by memories of the Vietnam War decades earlier, and inspired in part by the appalling death of 39 Vietnamese, who suffocated in a container lorry in England in August 2015.

Việt and Nam are two miners who work deep below ground, struggling between their love for each other and their conflicting desires for their futures. In their journeys, together and apart, they confront “the ghosts of Vietnam’s past and the uncertainty of its present.” Nam helps his mother search for the remains of his father, a soldier in the war, with endless hope but no success.  He decides to leave his mother and Việt and finds an agent who can smuggle him abroad.

The Fund was not alone in identifying the strength of this project. It also attracted a grant from the prestigious Hubert Bals Development Fund in the Netherlands. The film is due to be completed in 2022.

These three films exemplify the strength of the MPA APSA Academy Film Fund in promoting authentic and diverse voices from the Asia-Pacific region, and in engaging with filmmakers in fundamentally practical ways, through finance and through endorsement. To be backed by the Fund can raise a project’s profile simply through the association with the Fund’s long list of prestigious recipients, beginning with an Oscar-winner, A Separation, by Asghar Farhadi, in the Fund’s very first year of operation.

With jurors drawn from all sectors of the industry across the Asia-Pacific region, the grants carry with them networking opportunities. Bonds are created and connections made. The Fund’s goal is to promote independent filmmakers in cutting-edge work and to expand and enhance the potential for creative artists in the film domain. Audiences worldwide are also beneficiaries, both in the short term when the film is first released domestically and overseas, and also in the long-term as the film moves onto new services and continues to circulate. It cannot be underestimated too, that the Fund, through cinema, is documenting the social history and helping to stimulate understanding and awareness of communal and historical complexities in ways that would not otherwise be possible. The goal of empowering the open-ended exchange of ideas and experiences at home and abroad makes this Fund much more than an industry assistance agency.

This article was originally published on the MPA-APAC website.

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Blog Industry Media OTT

Here to co-exist: Broadcast during the Covid-19 pandemic

In this insightful interaction, Mr. Nagpal, MD & CEO, Tata Sky, shares his views on the ever-evolving nature of broadcast, how the sector adapted to the changes brought about by the Covid-19 pandemic, the demographic trends in India’s consumption patterns, and Tata Sky’s strategy going forward. He also shares engaging anecdotes from his extensive travels and experience in the sector.

On the evolving landscape in the broadcast sector, he said that it is this dynamic quality of the sector that makes it an exciting place to be, and that there hasn’t been a time when the broadcast sector wasn’t challenged or professed to be defunct in the future.

Commenting on the ways in which the sector adapted to the pandemic, he said that the broadcast sector was able to serve customers because it was in the process of digitising query-handling processes online before the pandemic struck. A major change that resulted from the pandemic was customer care executives taking calls from home, he remarked.

Regarding consumption patterns of the DTH consumer, Mr. Nagpal stated that the DTH consumer is no different from the cable, YouTube, or any other consumer, and likes to be entertained. He further explained that when there’s a major event like a cricket match or the election results are coming out, there is a certain shift from entertainment to that event, but the core entertainment segment still exists since not every consumer makes the switch.

When it comes to installations and sign ups, there are more subscribers coming in from villages than from cities. According to him, there are two reasons for this: one, the number of people living in villages in India consist of 65-70% of the population, and second, DTH is more amenable for villages since a tower connects 10 or more villages, while wire connectivity is a difficult task to establish in such conditions. Further, South India is a major contributor in new additions to installations since the South has always seen more film production and entertainment addiction, he observed.

Speaking about the opportunities for Tata Sky in the coming future, Mr. Nagpal said the fact that out of 280 million households in India, 100 million still don’t have access to a television is in itself a great opportunity. Further, converting a portion – if not all – of the 40-45 million homes that watch Free to Air, to paid subscribers remains a goal for the near future for Tata Sky.

Expressing his views on regulation, Mr Nagpal feels that there is a need for transparent dialogue between the regulators and industry players, with the aim to find a middle path. This transparency in discussions, which is currently missing according to him, is needed for both parties to do their jobs well.

Tata Sky’s latest offerings combine DTH viewing and OTT viewing both via a single device. When asked if this was a form of cord cutting, Mr Nagpal said that in India, television and OTT will always be “ands”, not “ors”. Elucidating further, he said with the changing digital landscape, some customers who have signed up for OTT have given up on a TV connection, but it is important to note that not all of those customers have done so.  Given that it isn’t cord cutting in the true sense, it only makes sense to adapt to distributing on-demand content if the Tata Sky customer wishes to watch it.

On Tata Sky’s encryption standards and preventive measures taken to tackle piracy, he revealed that the signal transmitted from Tata Sky is encrypted in a manner that it cannot be decrypted unless authorised by someone at the company. Further, in the event of someone trying to retransmit the signal, fingerprinting mechanisms such as the 8-digit alphanumeric code help in identifying the rogue connection and stopping it. Tata Sky takes piracy very seriously and is committed to prevent any infringement of content belonging to rightful owners, Mr. Nagpal maintained.

Speaking of traveling to customers’ homes – especially in villages – despite being in the broadcast sector, Mr. Nagpal said that broadcast is actually Faster Moving Consumer Goods and that it is important for broadcasters to meet with customers to figure out customer desires yet unfulfilled by the sector: “We first discover customer need and then use technology to create products and processes to fulfil them,” he stated.

For more insights, view our video with Mr. Harit Nagpal.

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Blog Industry Piracy

Much ado about nothing: have concerns over site blocking materialised?

Having worked as both a filmmaker and a copyright lawyer, the issue of online piracy is one that is close to my heart. The copyright protection of an artist’s work is essential, firstly, to making a living but, secondly, to enable the funding of new works. Simply, it is a way of recognising an artist’s work.

Australia, however, is commonly identified as a country with high levels of online piracy. Incredibly, for example, when Season 5 of Game of Thrones was released in Australia, despite the season premiere being available on Foxtel, 32% of all Australians who watched it downloaded it illegally.

For all the internet’s wonders and the freedom to access information, and although some may see it as lawless, the internet is not a digital equivalent of Deadwood. The law of copyright applies to the internet in the same way as it would to any other setting where we get our films, TV shows and music.

Not only are individual internet users affected by copyright law, so too are intermediaries. An ‘intermediary’ is a service that stands between an internet-user and an online work and, without whom, a transmission such a download may not happen. Well-known intermediaries include carriage services providers (sometimes referred to as ISPs) such as Telstra, and search engine providers such as Google.

Given the role that intermediaries play in the downloading or streaming of audio-visual works, the Australian Government, as a means of reducing piracy, introduced a ‘no fault’ website-blocking regime in 2015. The scheme enables the Court, upon an application by a copyright owner, to make orders against ISPs and search engines (without any finding of liability) requiring them to block access to overseas websites that have the primary purpose or effect of facilitating online copyright infringement. Other countries such as the United Kingdom and Singapore have successfully introduced similar no-fault schemes.

At the time the scheme was proposed (and again when there was a proposal to amend it) it was subject to significant criticism that it would amount to a form of censorship and a restriction on the freedom to access information, particularly in relation to sites which host both legitimate and infringing material such as Pinterest and YouTube.

With the above in mind, I researched and wrote a paper titled The Inevitable Actors: an Analysis of Australia’s Recent Anti-Piracy Website Blocking Laws, their Balancing of Rights and Overall Effectiveness, published in the latest edition of the Australian Intellectual Property Journal (AIPJ).  The paper examines the Australian scheme in detail (including cases where blocking orders have been made) and concludes that the criticisms of the regime are unfounded.

Rather, Australia’s site-blocking regime has not curtailed freedom of speech or the right to access information, and it is unlikely to.

This is borne out in a number of ways including, firstly, the types of sites that have been targets of blocking orders which, without exception, have all facilitated large-scale copyright infringement with little or no evidence of legitimate material also being available. And secondly, where competing interests have arisen, these have been considered in light of a list of discretionary factors to be taken into account by the Court (as set out in the Copyright Act). These include, for example, the impact of any person likely to be affected by the orders, whether they are in the ‘public interest’, and whether they are ‘proportionate’ in the circumstances.

Importantly, the paper concludes that the regime is effective in helping to reduce online piracy and, further, that there is room for it to be expanded to include other intermediaries that are inevitable actors in the streaming or downloading process.

These include, for example, Alternative DNS providers such as Google DNS and reverse proxy services such as Cloudflare. These services sit between a user and an audio-visual work and can make a copyright infringing transmission possible. Certain website operators, for example, use Reverse Proxy services to hide their true internet address, whilst Alternative DNS services simply allow internet users to circumvent DNS based blocking orders. Given Australia’s high levels of piracy, it will come as no surprise that Australians are also prevalent users of Alternative DNS services.

The Australian Government has signalled that it intends to conduct a further review of its site-blocking regime, during which, it is hoped that the Government considers whether there is in fact room to expand the regime.

This article was originally published on Content Cafe.

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Blog Hollywood Industry

How Underwater Cinematographer Ian Seabrook Got The Shots in “Jungle Cruise”

Disney’s latest blockbuster based on a ride, director Jaume Collet-Serra’s Jungle Cruise, is a banter-filled romp down the Amazon. Blue-blooded adventurer Lily (Emily Blunt) drags her fusspot brother, MacGregor (Jack Whitehall), to South America in pursuit of the petals of an all-powerful healing tree. Their guiding trinket is an arrowhead, pilfered with great difficulty from a retrograde London men’s scientific society. Upon landing on the other side of the world, the pair wind up in the hands of riverboat captain Frank (Dwayne Johnson), a debtor prone to horrendous puns but an otherwise upstanding fellow. The group is plagued by trouble from the start, but Lily is determined to fulfill her adventurer father’s incomplete mission.

Competing factions have equally virulent but less altruistic interest than Lily in the magical flora. For a group of zombie 16th-century conquistadors, the petals are their solution to return to the living and wreak revenge on the entity that cursed and bound them to the river. A marauding German prince, Joachim (Jesse Plemons), sees the petals as the key to Germany’s wartime success (it’s 1916, and World War I is raging across the ocean). But it takes Lily’s gumption and Frank’s grouchily proffered support to unlock the secret of the tree, an event that takes place in a giant underwater puzzle.

Dwayne Johnson as Frank and Emily Blunt as Lily in JUNGLE CRUISE. Photo by Frank Masi. © 2020 Disney Enterprises, Inc. All Rights Reserved.

 

The scene is only a few minutes long but the plot hangs in its balance. Underwater cinematographer Ian Seabrook (Old, In the Shadow of the Moon), shot Blunt and Johnson in one tank for the moments above the water’s surface, avoiding a huge vacuum intake valve creating an artificial current. “I was told by the marine coordinator don’t go anywhere near that,’ because thatll just suck you right underwater,” Seabrook said. Below the surface of the water, in the production’s second tank, Lily’s goal is to get back up as fast as she can — solving the puzzle causes it to rise out of the water. Seabrook held on to 80 pounds of camera and housing in order to get the shot, in which Lauren Shaw, Blunt’s underwater double, was locked into the puzzle with one small top opening to escape. “They did have a spare air tank in there for her, but she never used it,” Seabrook said of Shaw, who didn’t even need to use a regulator to breathe during rehearsals.

(L-R): Emily Blunt, Dwayne Johnson and director Jaume Collet-Serra on the set of Disney’s JUNGLE CRUISE. Photo by Frank Masi. © 2021 Disney Enterprises, Inc. All Rights Reserved.

 

“The set itself was an overhead environment and it was confined. So when shes moving the puzzle pieces around, [Shaw’s] really got her back against the wall. And shes got something over her head. So shes holding her breath while doing all that, using her feet, and doing whatever else she was doing. She was spectacular,” the underwater cinematographer added. For these crucial scenes, Seabrook also spent plenty of time holding his breath while plying his craft. The shots were 15 to 30 seconds, with preparation to get everything down bringing the time spent underwater to about a minute (all the underwater scenes were shot over the course of a week and a half). The process looks different in, say, the open ocean, but “oftentimes, when we’re in these smaller sets, if you wear an oxygen tank, you’re smashing into everything, you’re going to wreck the set, and you don’t have the mobility,” he said.

The underwater cinematographer was first called to his unusual line of work as a child, holding his breath watching Sean Connery swim through a shark-infested estate in Thunderball. He later began his career as an underwater photographer, progressing to underwater cinematography, a field in which the camera comes first despite the unusual physical demands. “The job entails composition and lighting and grip work and breath-hold and your diving skills have to be second,” Seabrook explained. “You can’t even look at anything. You have to concentrate on the shot, otherwise, you’ll be flailing.” Despite the jocular vibes, there’s no room in Jungle Cruise for heroine Lily and her sidekick Frank to flinch, and behind the camera, it was the same, whether above the surface of the river or below.

 

Featured image: Dwayne Johnson and director Jaume Collet-Serra on the set of Disney’s JUNGLE CRUISE. Photo by Frank Masi. © 2021 Disney Enterprises, Inc. All Rights Reserved.

This article was originally published on The Credits.

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Blog Hollywood Industry

Taika Waititi Talks “Thor: Love and Thunder” & His “Star Wars” Movie

Taika Waititi has a tremendous amount going on at the moment. The writer/director/actor will next be seen in director Shawn Levy’s Free Guywhere he blessedly got a break from the writing and directing duties to simply co-star in the film with Ryan Reynolds and Jodie Comer. Waititi plays the film’s villain, a loathsome tech bro named Antoine. Not that acting isn’t work, of course, but when you consider what else Waititi has going on, you’d be excused for thinking it must have felt like a break.

Waititi just wrapped filming on Thor: Love and Thunder, his follow-up to the film that made him a bonafide directing star, 2018’s Thor: Ragnarok. This has allowed him to start focusing on another little project, his Star Wars film. Speaking with WiredWaititi was able to dish just a bit about where that project’s at and what he’s feeling thus far.

“It’s still in the ‘EXT. SPACE’ stage,” he tells Wired, a reference to a script just being started. “But we’ve got a story. I’m really excited by it because it feels very me.” When Wired asked how he was able to marry his tone and style—irreverence, wit, endless shenanigans—to the more earnest Star Wars universe, Waititi wasn’t concerned. “I tend to go down that little sincerity alleyway in my films,” he said. “I like to fool the viewer into thinking ‘ha it’s this’ and then them going, ‘Damn it, you made me feel something!’”

Feeling something sounds like it was also on his mind when he was crafting Thor: Love and Thunder, which he has said is the craziest film he’s ever done. Not only has Waititi promised that Love and Thunder is going to be insane, but it’ll also do something no one was counting on. “What I wanted to do from the beginning was to ask: ‘What are people expecting the least from this franchise?’” he told Wired, “Oh, I know – a full-blown love story!”

This article was originally published in The Credits.

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Blog Hollywood Industry Media

How the Emmy-Nominated “WandaVision” VFX Team Made Magic

Laden with special effects, big-name stars, and an audacious high concept, WandaVision represented a big swing for Marvel Studios when it debuted in January on Disney+. The bet paid off. Creator Jac Schaeffer’s series quickly became one of the season’s most talked-about new shows and it’s now validated all that buzz with a whopping 23 Emmy nominations. The hook? Superheroic witch Wanda Maximoff (Elizabeth Olsen) and android Vision (Paul Bettany) disguise themselves as man and wife living sitcom-perfect lives in small-town New Jersey. Juxtaposed against the couples’ seventies-styled retro innocence is a nefarious supernatural scheme that threatens to destroy Wanda and Vision’s safe harbor in the aftermath of 2019’s cataclysmic Avengers: Endgame. Oh, and one more twist—Vision died in Avengers: Infinity War, so his presence in WandaVision was all the more mysterious.

Helping to jolt crimson-headed Vision from one dimension to the next is Toronto VFX company Monsters Aliens Robots Zombies (MARZ), which earned visual effects nominations for WandaVision as well as Netflix series The Umbrella Academy. Launched in 2018, MARZ uses artificial intelligence to deliver movie-quality effects on TV budgets.

Visual effects supervisor Ryan Freer and MARZ Chief Operating Officer Matt Panousischecked in with The Credits to talk about Bettany’s chin, Vision’s cape, and other transformational tricks of the computer-generated trade.

WandaVision VFX Reel — Vision | MARZ from MARZ VFX on Vimeo.

Congratulations on your Emmy nominations for The Umbrella Academy and especially for WandaVision, which marks the first time you worked for Marvel. How did you get the gig?

Ryan: We did a test for Marvel doing our version of a shot from Avengers: Age of Ultron, where Vision’s basically being born. Marvel gave us the [background] plate and some assets that had been done already by another vendor and asked us: Can you do this? We’d just done a bunch of head replacement stuff on HBO’s Watchmen so we were able to create the shot to their standard, and that got the ball rolling.

Matt: The big caveat there is not just “can you do it?” but can you do it on a [shorter] TV timeline and [lower] budget. Marvel’s the epitome of premium episodic television so there was a lot of work that went into it getting the shot where it needed to be.

How did this sitcom-inspired version of Vision differ from the big screen character?

Ryan: In the movies, he’s very calm and collected but in our show, Vision does funny slap-sticky things. The director [Matt Shakman] and even Paul Bettany didn’t know if Vision being goofy was going to work. Also, we’ve never seen Vision in black and white, we’ve never seen him in the seventies. These are things we worked really hard with Marvel to perfect.

Paul Bettany and Elizabeth Olsen in ‘WandaVision.’ Photo courtesy of Marvel Studios. ©Marvel Studios 2020. All Rights Reserved/Disney+

 

Details are so important in making visual effects seem believable. What are some more subtle aspects of Vision that you guys obsessed over?

Ryan: One of the little things people don’t notice is that Vision has eyelashes in our show, which he does not have in the movies. Another thing is that Paul Bettany has a very large chin, but Vision has a small chin. We got a lot of notes from Marvel: “Vision’s chin looks too much like Paul’s chin!” When you’re watching the show, you may not see it, but you feel it.

L-r: Elizabeth Olsen and Paul Bettany in ‘WandaVision.’ Courtesy Marvel Studios/Disney+

 

People definitely notice each time Paul Bettany’s human-looking character morphs into his true android self. How did you design those visual effects?

Ryan: In one of the black and white episodes, we did a transformation of Paul going from a synthezoid to a person and sent it to Marvel. They said it looks great but we want it to be cheesy and retro like it’s from the fifties. So we did a couple of versions back and forth and wound up landing on this very glittery I Dreamed of Jeannie kind of thing. It’s funny because usually, you’re not supposed to notice the CG effect, but here, we threw in a visual effect from the era and blended multiple [styles of] visual effects on top of each other.

There’s also an old-school vibe when we see voltage flickering across Vision’s face. What inspired that look?

Ryan: In the [1982] movie Tron, they would actually cut some of the film and expose the light behind it to get the effect. That’s the kind of technology they had back then, so we took a lot of reference from that, which was super fun.

Just to be clear, Vision’s beet-red head is computer generated?

Ryan: The only thing we’re pulling from Paul’s acting is his eyes, his nose, and his mouth. That’s it. Everything else is CG whenever you see Paul Bettany as Vision, with no ears.

Paul Bettany as Vision in Marvel Studios’ WandaVision. Courtesy Marvel Studios.

 

How did you create the digital skin to make the human actor looks like the superhero Vision?

Ryan: We’d receive footage of Paul Bettany wearing a bald cap, ears sticking out, and he’s got tracking markers all over his face and neck. We remove the markers with an in-house removal system driven by AI, because paintwork, especially track marking removal, can be very costly. Once we have a solid track of that CG head, we align the shoulders so it lines up properly. Then the animators go and create his jaw, his eyebrows, they knock out the ears, they smooth the skin, they’re adding these very fine panels on top of his cheeks and adding a gem on his chin. Everything has to be rock solid because if something starts jittering or not moving with his facial expression, then you lose the performance and that’s the most important part.

Matt: We’ve made heavy investments in artificial intelligence to get things done faster. AI has ended up saving the client hundreds of thousands of dollars and tons of time, about a day of savings per shot. Multiply that across 400 shots that we did for the show and it adds up to about 400 artist days that are effectively gone.

Vision likes to levitate. How did you pull that off?

Ryan: The big episode six Halloween scene, where Vision transforms and flies up into the sky, was probably our most technically difficult shot. The entire ground [showing a nighttime vista of suburban Westview] is a digital map painting. They put Paul in a rig against a green screen all done up in his costume and makeup. When he flies up, the camera rotates around him, but we ended up going full digital-double with the body, which gave us a lot more control. And one of the cool things about Vision is that his cape is entirely CG because a [real] cape has a mind of its own, the way it ripples. You can’t get it to act the way you want.

Elizabeth Olsen as Wanda and Paul Bettany as Vision in Marvel Studios’ WandaVision. Courtesy Marvel Studios.

 

I imagine you had an entire team devoted to Vision’s CG cape?

Ryan: Within our pipeline, we have a department that brings in the [background] plates, we have tracking, layout, animation, effects which is where the cape would be done, a lighting department, compositing. Each department has its own lead, so every small detail is looked at closely.

Ryan, how did you train to become the guy who supervises everybody’s work?

Ryan: l wanted to do something in the arts but I was also a computer nerd so I went into computer animation, took a three-year program at Durham College in Ontario, and loved it. Out of school, I did animation, motion graphics, visual effects — I’ve dabbled in everything enough to develop an eye for making things look good and understanding how to not make things look bad basically. I call myself more like a glorified generalist.

Matt: When Ryan looks at something, he can see things that the artists can’t see.

Ryan: A lot of it has to do with timing because every shot is based on reality – – until it’s not. Many times I’ll tell my team “That’s moving too fast,” or “It’s too slow.” If it doesn’t look right in the shot, you might have to cheat things for the camera whether it’s based on reality or not.

This article was originally published in The Credits.

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Blog Piracy

Tackling the growing sports piracy problem prompts call for faster take down regimes

Tackling the Growing Sports Piracy Problem Prompts Call for Faster Take Down Regimes

Two clocks are ticking. A shot clock measures the immediate need for sports broadcasters to adopt more rapid take down/blocking responses to illegal streaming of their events.* Meanwhile, the game clock measures a need to more holistically mitigate the growing sports piracy trend before the market comprises only Millennials and GenXers who are, not surprisingly, more piracy-prone than their parents and grandparents.  

According to a report published by Synamedia, only 16% of international fans polled engage in zero illegal access of sports broadcasts, and as usual, piracy rationales and habits vary according to region and age. Consistent with other piracy studies, Synamedia’s data reveal that most fans mix legal and illegal viewing, often for obvious reasons like inaccessibility due to regional licensing.  

As long as there is a desire to watch an event that is unavailable in a given location, and a technology exists to circumvent the legal routes, broadcast piracy may never be fully eliminated. But at the moment, piracy of sports is increasing, thanks largely to the technology known as Internet Protocol Television (IPTV).

IPTV is accessed via software that looks like a legitimate streaming interface (e.g. Netflix), but which is in fact sourcing both live and recorded material from networks of pirate servers located around the world. So, a viewer in the EU paying perhaps €8 to €12 per month for an illegal IPTV service can watch a hijacked, live broadcast of a sporting event, bypassing subscription to either the licensed broadcasters or the Pay-Per-View fees charged for certain events like major boxing matches. As DigitalTV Europe reported in mid-June, Italian authorities recently shut down 600 pirate football sites and intends to fine end-users who illegally streamed the games €1.032 each.  

Sporting events are typically not a subject of copyright protection, but teams and organizations retain the exclusive right to license the broadcasts of their events. In some countries, the broadcasts (or at least the recordings of same) are protected by copyright, but regardless of the distinctions in regional copyright laws, broadcast licensing of sporting events is integral to the economic ecosystem for any nation with a professional sports industry.   

As with any harm to a system, there is always a tipping point at which the harm will begin to cannibalize sustainability. Usually, we cannot know precisely where that tipping point lies, and the harm being done is often conveniently invisible to those causing it. Much like the piracy of motion pictures, sports fans see well-paid star athletes, coaches, and reporters on the screen and often assume that professional sports broadcasting can afford their intermittent use of pirate access.  

But perhaps less visible to the pirating fan is that, for instance, in markets like Europe and Australia, revenues from sports broadcasts directly support the athletic clubs that develop young talent. As such, unchecked piracy could ultimately damage sport itself.  

Today’s 20-year-old fans could theoretically engage in enough piracy to shrink the variety and quality of the sporting events they’ll get to watch by the time they’re 40-year-old fans.  This symbiosis between the incubator athletic clubs and professional broadcast revenues is just one of several points highlighted in a resolution addressing sports piracy that was introduced by the European Parliament in May.  

Emphasizing the value of professional sports and sports broadcasting beyond the economic contribution of 2,12% of Union GDP, the resolution states, “…sport plays a key role in the social, cultural and economic prosperity of the Union and promotes common values of solidarity, diversity and social inclusion….” More specifically, the EU resolution recognizes the fact thatpiracy of a sporting event is different from piracy of other material. Unlike a motion picture—or even a music concert—the value of a sports broadcast is concentrated in the fans’ eagerness to see the event live. Or as the EU resolution states:  

… whereas, unlike other sectors, most of the value of a sports event broadcast lies in the fact that it is live and most of that value is lost when the event ends; whereas illegal streaming of sports event broadcasts is at its most harmful in the first thirty minutes of its appearance online; whereas, consequently and only in this context, an immediate reaction is needed to put an end to the illegal transmission online of sports events 

Immediate reaction is exactly what is being proposed due to the fact that existing injunctive and take down procedures are too sluggish to have any meaningful effect on the piracy of sports broadcasts. “Real-time take down should be the objective,” the resolution states, proposing a system whereby “certified trusted flaggers” would be able to notify online intermediaries of illegal live streams early enough that they can be removed almost instantly, ideally within the first thirty minutes of the broadcast.  

At the same time, the resolution emphasizes the importance of distinguishing between illegal streams of whole broadcasts from streams of short segments used by fans and news media for purposes generally protected under copyright law. 

So far, it does not look as though the usual anti-copyright suspects have denounced the EU proposal, but if past is prologue, somebody probably will. Removing illegal streams as rapidly as the May resolution recommends would signal a major leap forward in the take down/disabling paradigm; and if the remedies are successful, we can probably expect other rightsholders to use the same systems and technologies to more efficiently combat piracy of their material. Hence, the EU resolution could mark a very significant development in combatting media piracy overall.  

The shift from download-based illegal distribution to streaming via technologies like IPTV has been advantageous for pirates in several ways, not the least of which is the ability to promote illegal streaming though easy-to-use interfaces that look and function just like legitimate streaming networks. Consequently, if the sports broadcasters prove to be the vanguard in effectively disabling illegal streams in real-time, this could be a substantial blow to many pirates’ ability to earn revenue because they have a shot clock, too.  

In the piracy game, making money often depends on the interval between providing illegal access and that access being blocked or removed. By tightening up the defense and closing that window of opportunity, the profit potential for the pirate decreases, which should result in fewer pirates wanting to play the game in the first place.  

*Shot clocks are used in a few sports and games, but most prominently in basketball. Upon taking possession of the ball, a team has 24 seconds to attempt a shot before automatically losing possession. 

This article was originally published on Content Café.

Categories
Blog Hollywood

Talking Shop with Former Pixar Animator and 2021 Oscar® Nominee Erick Oh

Every year, one filmmaker takes home the CreativeFuture Innovation Award from the Slamdance Film Festival. This year’s winner is Erick Oh, whose powerful animated short Opera uses a single, massive canvas and an army of faceless, lemming-like drones to convey the full sweep of human society and history in all its beauty, absurdity, and horror.

Moving up and down a static, triangle-shaped backdrop that teems with tiny, anonymous figures engaged in activities ranging from farming to torture, Opera is a riveting, unforgettable viewing experience. Which is why we were not remotely surprised when, after receiving our own special prize at Slamdance, Opera was nominated for another little honor you might have heard of called the Academy Award® – in the Animated Short Film category.

Unfortunately, our grand visions of the two statues, CreativeFuture and Oscar®, sitting side by side on Oh’s shelf, did not come to fruition. Opera did not take home the Oscar®, but Oh was hardly disappointed. He calls the whole experience “like a dream” and marvels at the “roller coaster” ride of a film that was originally intended to be mounted as an art exhibition in gallery spaces. In any case, he is too busy working to reflect on the experience for long. The former Pixar animator’s VR experience, Namoo, is coming to Oculus platforms later this year.

Oh spoke with us from his home studio in Los Angeles, in a wide-ranging conversation that covered, among other things, the recent global strife that inspired Opera, his career beginnings as an intern at Pixar, and what it was like to attend the Oscar® ceremony during a pandemic.

Justin Sanders: Erick, congrats again on the Oscar® nomination for Opera. It’s a truly stunning achievement. I would have assumed the Academy Awards® are kind of the pinnacle in terms of a film’s festival run, but your publicity team informs me that even post-Oscars®, Opera is still making the rounds in film fests.

Erick Oh: Not only film festivals but exhibition spaces, too. It was actually designed to be an art piece in a gallery space and that’s still our goal even after all this craziness.

JS: That’s interesting. What compelled you to design the film for exhibition in a gallery space as opposed to where one would normally envision a film playing i.e., a movie screen?

EO: I designed both a theatrical and gallery version together. When I was making Opera, I started to think I couldn’t tell this story in a traditional linear narrative because I’m here to talk about, you know, history and human society. The scope of what I wanted to say led me to think that maybe this could be an art piece and not just a traditional short film. But I still always wanted to show it as a film as well, so that’s why we made both versions.

JS: When you say you “designed” both versions of Opera, what do you mean? Does it present differently in a gallery space than it does in a theater?

EO: Well actually, there’s not much difference. The goal is to provide the same experience whether you’re in the theater or you’re in a physical space. But different environments have different strengths and personalities, so I wanted to reflect those in the different versions.

So, for example, in the exhibition version, there is no camera movement – it is just a static pyramid that is supposed to be projected on a gigantic wall. So, a viewer would ideally walk into, say, a warehouse and come across this incredible, crazy sight extending up to the ceiling. The exhibition version is also a perfect loop, meaning the end of daytime in the film syncs up with the beginning of nighttime, so it can be repeated endlessly for as long as the given space is open. And then we can also play around with the audio and use the location of the speakers to make it a more immersive experience in a physical space.

On the other hand, in the theatrical version, you just sit down and watch it and then you’re done – so, it has a bit of camera movement and we added music to give it a bit more of an emotional arc.

JS: It’s amazing that what originated in your mind as an art gallery piece eventually found its way to an Academy Award® nomination in the Animated Short Film category. How did that journey unfold?

EO: [Laughs] First off, the Oscars® were definitely not part of our plan. By August of last year, we were, as I said, pursuing both film festivals and exhibitions. But because of the pandemic, all of the exhibition venues pushed us or cancelled us. What’s more, film festivals all went online, which was kind of challenging because Opera, whether it’s in a gallery or on a screen, is a piece that needs a big space. It’s not a piece you want to watch on a 15-inch monitor, you know?

I was really upset about this, so I kind of rejected some festivals or put them off until next year – but I soon realized that many of them may not come back in the near future. So, we decided to just roll with it and started more aggressively submitting to the fests. And suddenly [laughs] we were Oscar®-qualified and all we could say was, “What the hell is going on?”

That’s when everything changed for us and it’s just been a roller coaster ride since then.

JS: What was is it like going to the Oscars® during a pandemic?

EO: This was actually my second time nominated for the Oscars®. [Ed: the first time was as supervising animator for the 2014 animated short, The Dam Keeper.] Normally it’s like a marketplace – there are thousands of people and you know nobody there, and there are all these celebrities and stars. This time, it was just the nominees and their plus-ones, so it was an intimate, small party and it was really fun. I went there with my wife, and I was already friends with a lot of the animation nominees, so I didn’t feel so alone there. We were having a great time. It still feels like a dream looking back!

JS: What inspired you to make a short film that, as Opera’s tagline suggest, sets out to do nothing less than chronicle “our society and history, which is filled with beauty and absurdity”?

EO: I’ve been in the animation industry for about 10 years and I’ve always had this vision to try something new and to challenge ourselves as creators and also challenge the audience. Animation doesn’t have to be the way we’re all familiar with – I wanted to push the medium.

That was in the back of my mind in the summer of 2017, a tough time for everybody, politically and otherwise. The whole nation kind of split into two polar opposite groups, but it wasn’t just America either, you know? That was the same year where, in Korea, millions of people gathered in central Seoul and after months of riots and protests, our President got impeached.

For me, as a Korean-American, seeing my two homes so troubled was a wakeup call. I thought, “as an artist, as a filmmaker, I need to document this. The racism, the gender issues, the environmental destruction, the terrorism… all of it.” That was really the origin and genesis of our project, to talk about history and our society in all its joy, happiness, sadness, and terror – and how we are all in it together, living this life. And the message inspired the medium, I guess.

JS: How did the message inspire the medium? How did your goal to essentially chronicle the sweep of human civilization manifest in the film’s design – a static pyramid backdrop teeming with stories enacted by what are essentially stick figures?

EO: Coming up with that triangular shape was not difficult. I wanted a simple iconic shape as my canvas and in a way, I had to use a series of triangles because I’m trying to tell these stories of the different classes and sections of our society.

So, the triangle shape was one of the first things I came up with, and then it was a matter of trying to populate it with something that is both reflective of how I observe the world and that could resonate with a lot of people. Some of the aesthetics inside the triangle were things I was already doing in my previous shorts. I’ve actually been using the black and white stick-figure characters for many years. I made an earlier film using those characters and I do a lot of watercolors with them as well. I see them as avatars that can be used to tell a variety of different stories about the human condition.

JS: It’s an interesting juxtaposition because on the one hand, you have crafted this massively complex narrative juggernaut, and on the other hand, the delivery mechanism – an army of faceless drones – could not be simpler. Why do you think the stick figures are such effective vessels for communicating Opera’s themes?

EO: I didn’t feel like this was a character-driven story. I’m here to talk about the overall picture – what’s happening for everyone, all at once. So, I didn’t think it was important to showcase individuality in the figures. I went with a simple, basic design concept so that we don’t get distracted by facial expressions or personalities. We can just step back and look at our own reflection through these guys. They are like the Mini-Mes of who we are.

JS: As a writer myself, I’m fascinated by how you have found a way to weave together all of these narratives and stories in a way that is somehow lucid. It’s not just a feat of design and animation but of storytelling – how did you write the script for Opera? Or did you write a script?

EO: There was a writing component for sure but it was all mixed up because I knew the outcome would be so different from any other project I had done. It’s not a linear narrative film. There is no dialogue and no narrative through-line – and yet there are many narratives and stories if you look inside. There are about 24 different “sections” in the world of Opera, but that doesn’t mean there are only 24 stories – because these sections share and create new stories when working together.

Because I’m such a visual person, I really jumped into drawing sketches and thumbnails in the brainstorming phrase. It wasn’t like most films where first you write and then you conceive of visuals – it was kind of all at once. [Laughs] It would be difficult to even show my early sketches because they are a mixture of doodles and then some scribbles over here and some writings over there, and that’s how it went.

Eventually, I finalized one single drawing that was almost like a storyboard. It was one singular image of the entire pyramid structure with notes and sketches detailing what was happening in each section.

JS: That must have been some drawing. How big was it?

EO: [Laughs] It’s like 8,000 by 8,000 pixels in a Photoshop file.

JS: From farming to romance to torture, there are too many threads to cover here in detail, but one particular symbol in the film felt very resonant – a key that hangs in the air at the very bottom of the triangle. I found that image so powerful and poetic, but I’m curious how you interpret its meaning?

EO: Basically, the key is always there. It doesn’t go anywhere and nobody does anything with it. Then there’s a lock at the very top of the pyramid and they are located as far as possible from each other. And the sad reality is they will never meet. The key represents answers to all the questions in the world, and the keyhole is all the answers in the world. Those symbols are a way for me to explore this question: Do all the answers we have to all the world’s questions really match? Are they really the correct answers? All the things we think we know, can they be re-thought?

JS: You have said in other interviews that this was a labor of love for a lot of people, done in between other projects over the span of four years. Give us a little window into the animation process and how this all came together on the technical side.

EO: Opera was such a unique production because it was something I was doing as a side project while I had a day job. The first half of production was, like you said, a group of friends getting together and sacrificing their nights and weekends to do this. And because I was at Pixar, most of them were Pixar animators.

JS: [Laughs] Not a bad group of friends to have on board a passion project!

EO: [Laughs] Thankfully, they were really fascinated with the project and they were having a lot of fun, too, because it’s so different from what Pixar does normally. People are having sex, people are killing each other – [laughs] they were having a bit of fun animating all that.

Things started getting really visually complicated about halfway through the project. But then we were finally able to get some funding, from a Korean production company that is a passionate, open-minded group of artists. With their help, we were able to smoothly finish the rest of the production.

JS: Sorry if this question is too simplistic, but what is your day job, Erick? You’re an animator and a filmmaker of course, but how does that work manifest when you’re not making Oscar®-nominated shorts?

EO: For a long time, my job was just animation and storyboarding but for the past couple of years I’ve been fortunate enough to be a full-time freelance director. So, while I was finishing Opera, my day job was directing a VR piece that recently premiered at the Tribeca Festival. It’s a very personal story called Namoo, which means “tree” in Korean, that I was inspired to tell after I lost my grandfather. In it, we follow just one character all the way from birth to his later chapters in life. Like Opera, we did two versions, so Namoo came out as a VR piece in January and then we spent another three or four months transferring everything into a cinematic world so that people can watch it as a short film.

JS: Growing up in Korea, how did you decide to become an animator?

EO: I just knew from a very young age. Every kid likes animation, cartoons, and comics – but I was the little boy who was saying, “I want to be a Disney animator when I grow up.” I remember watching The Lion King on DVD, and there is a behind-the-scenes video where it shows a drawing coming to life, and that just blew my mind. I was like, “I want to do that. I want to be there.”

JS: Everyone has childhood dreams, though – you actually fulfilled yours. You became a Pixar animator! That’s the animation equivalent of an athlete making it to the NBA or Major League Baseball.

EO: When I got the job at Pixar, that was maybe the happiest moment of my entire life. [Laughs] I think I was even happier than when we got nominated for an Oscar®. Getting hired by them is still like a dream to me. It was so surreal. You can’t imagine how happy I was.

JS: How did you first get hired there?

EO: Like many students, I submitted my portfolio during my second year of college and wound up getting an internship at Pixar. The internship was about three months long and it was like a bootcamp – there were many interns there but only a few got hired at the end of it. [Laughs] It was like a survival reality show. It was extremely hard and I didn’t get hired, and, by the end of it, I was so tired I was almost relieved to have a break. But then two months later, they asked if I wanted to come back and I said, “Hell yeah!” [Laughs] So that’s how I became part of Pixar.

JS: What advice would you have for young artists who might share that dream of one day working for Pixar or another animation company?

EO: It’s advice that I also remind myself of a lot – at the end of the day, you are a storyteller. The message and ideas you convey through your art is important and everything will be designed and developed around them. Of course, craft and technique are important, too, but what’s more important is how you bring yourself into the work. When we’re hiring, we get tons of portfolios, but I am most drawn to people with distinct and compelling voices.

If helps to be an incredible artist and have a great skillset, but the candidates we like best are the ones who have something to say.

This article was originally published on Creative Future.

Categories
Blog Copyright

Supreme Court of Canada Decision Undermines Canada’s Collective Licensing System: A Parliamentary Fix is Needed

On July 30 the Supreme Court of Canada (SCC) delivered what can only be described as body blow to the management of collective rights in Canada, although the collective society at the centre of the action, Access Copyright, found some comfort, pointing out in its press release that the Court “refuses to legitimize uncompensated copying by the education sector”.  In its decision, the SCC not only dismissed the Access appeal against a ruling by the Federal Court of Appeal that “mandatory” copyright tariffs set by the Copyright Board of Canada are not mandatory with respect to users of content when that content is covered by the tariffs, but also editorialized on the lower court’s earlier ruling that York’s Guidelines (which York claimed allowed it to use material from Access Copyright’s repertoire without obtaining a licence or paying compensation) were not fair. Although the SCC refused to issue a Declaratory Statement legitimizing York’s Guidelines, its reasons for doing so were largely procedural. The Court declared that since payment of the tariff was not mandatory, there was no legal dispute between Access Copyright and York, and therefore it would be moot to take a position on the Guidelines. It then proceeded to cast doubt on the original decision against York, although recognizing that it was not retrying the case and that other factors not before the Court had to be considered.

The Guidelines will be tested when a suit is brought against York by a rights-holder (Access Copyright, although representing rights-holders with respect to collection of royalties, does not itself hold any rights in the works in its repertoire and therefore cannot bring an infringement case in its own name). When that takes place, the views of the SCC that the original finding of unfairness failed to take into account the user’s right of individual students will clearly be a factor in assessing culpability. Despite the unequivocal finding against York by the Federal Court in 2017 that their Guidelines had materially harmed the Canadian publishing market, the interpretive musings by the Supreme Court plus the need for individual rights-holders to establish infringement adds greater uncertainty to the process.

As for the mandatory tariff issue, it is complicated as I explored in a blog post (When is a “Mandatory Copyright Tariff” mandatory only if you opt-in?)last summer. Back in the 1930s when “mandatory tariffs” first entered the legal vocabulary with respect to copyright, they were mandatory in the sense that Performing Rights Organizations were required to issue a licence (for use of sheet music, radio broadcasts etc.) to a user if the user offered to pay or paid the established licensing fee. In the late 1980s and 1990s substantial changes were made to Canada’s copyright legislation to address challenges emerging from photocopying and digital reproduction, and a number of collective societies (collective rights management organizations) were established to facilitate licensing of content and collection of royalties. It became standard practice for the Copyright Board to “certify a tariff” (i.e. approve a royalty fee) which would be applied to all users of a collective’s repertoire unless voluntary arrangements between users and the collective were agreed upon. The Federal Court of Appeal’s decision in June 2020 upended this long-established system, ruling that the legislative intent of the original 1930’s interpretation of the term “mandatory” had not changed. This has now been reaffirmed by the SCC.

In reaching its conclusion the Supreme Court carefully parsed the wording of the 1988 and 1997 legislation and concluded that the original intent of imposing constraints on the ability of collective societies to withhold licences had not changed. Moreover, it concluded that the role of the Copyright Board of Canada in certifying tariffs was to limit the amount that collective societies could charge, not to establish the amount that a user should pay (even though this is at variance with actual practice for the past twenty years). In declaring that it could not impute intent to Parliament where no wording existed (with regard to the question of what was “mandatory”), the SCC declared (at paragraph 76);

It is of course open to Parliament to amend the Copyright Act if & when it sees fit to make collective infringement actions more readily available. But under the existing relevant legislation in this appeal, an approved tariff is not binding against a user who does not accept a licence.

Legislative amendment seems to be the only alternative if the system for the collective management of rights is to be maintained in Canada. Whether and when Parliament will be prepared to take up this matter is another question, particularly given the strong opposition that can be expected from the post-secondary sector.

The alternative is litigation, perhaps a class action lawsuit against York, or at least a series of individual infringement cases funded by major publishers. One of the precepts of the collective management system introduced in the 1988 and 1997 reforms, however, was to avoid endless, costly litigation by facilitating collective licensing. Given this intent, a return to litigation seems like a retrograde step. Small publishers and individual authors will find it difficult to pursue such a remedy. If Access Copyright changed its business model and acquired the rights to works that it holds in its repertoire, it could bring a collective action against York, but whether this is a viable option is a question for members of Access Copyright to decide. Some collective societies, such as SOCAN for example—representing composers, songwriters and music publishers—do have certain rights assigned to them. However, even they intervened in this case since SOCAN’s tariffs that cover bars, restaurants, and clubs cover tens of thousands of small establishments across the country and without enforceable tariffs, licensing at scale becomes impractical and inefficient.

Although York’s Guidelines were found to be unfair in the original trial by the Federal Court in 2017, the SCC’s musings on that decision will make a finding of infringement less certain. The SCC noted that while the Declaration requested by York should not be granted:

This should not be construed as endorsing the reasoning of the Federal Court and Federal Court of Appeal on the fair dealing issue. There are some significant jurisprudential problems with those aspects of their judgments that warrant comment.

According to the SCC the main problem with the analysis by the lower courts was that they approached the fairness analysis exclusively from the institutional perspective.

This error tainted their analysis of several fairness factors. By anchoring the analysis in the institutional nature of the copying & York’s purported commercial purpose, the nature of fair dealing as a user’s right was overlooked & the fairness assessment was over before it began.

This will add complications for those bringing an infringement case, although there are a number of other factors to be considered in evaluating fair dealing that the SCC recognized were dealt with in the original trial and would need to be dealt with in any future litigation, such as amount of the dealing, nature of the work and the effect of the dealing on the market. It is far from certain that York would prevail in a future case. Far from creating clarity, it looks as if the result of the SCC’s decision–barring Parliamentary action on reinterpreting the meaning of mandatory tariffs–is more litigation, more uncertainty, and more waste of public funds as universities defend themselves against infringement actions that could have been avoided by the simple expedient of obtaining a licence.

Copyright minimalist Michael Geist at the University of Ottawa declared that the SCC’ decision was “a massive win for education and copyright”. It may represent a massive win for those educational institutions that seem determined to avoid paying a reasonable licensing fee for the content they provide to their students but it is hardly a win either for education or for copyright. Undermining copyright and payment of royalties for the use of copyrighted material will only result in less quality material being available to students. The quality of education will suffer in order to save payment of a few dollars per student to the copyright collective that represents the bulk of publishing and the vast majority of authors in Canada. The only winners in the end will be the legal profession in terms of legal fees. The solution is for Parliament to plug the holes in the legislation that the Supreme Court’s decision has exposed.

This article was originally published on Hugh Stephens Blog.

Categories
Blog Media

The American Music Fairness Act (AMFA): The Canadian Dimension

Last week I posted a blog on the American Music Fairness Act (AMFA), draft US legislation that seeks to end the exemption that US terrestrial broadcasters enjoy with respect to payment of broadcast royalties to performers and labels for playing recorded music. It is an anomalous situation in which the US is the only developed country jurisdiction to provide such an advantage to terrestrial broadcasters. Not only that, the exemption unfairly tilts the playing field within the US broadcasting industry by discriminating against digital broadcasters, since streaming services and digital and satellite US broadcasters are required to pay performance royalties. It is also an anomaly because terrestrial (and other) broadcasters are required to pay royalties to songwriters and composers when they play their music, just not to performers (in the case of AM/FM stations).

As a result of this longstanding special treatment for terrestrial radio stations, which dates back to the dawn of the radio era in the US, not only do US performers in the US not get paid royalties when their work is played on terrestrial radio, but foreign artists are likewise deprived of such payments. As a result, many countries reciprocate by denying to US artists the ability to collect performance royalties when their works are played on terrestrial radio in their countries. This is permitted by the international convention that governs such matters, the WIPO (World Intellectual Property Organization) Performances and Phonograms Treaty of 1996 (WPPT). The WPPT, which the US ratified in 2002, provides that, in the words of WIPO;

Performers and producers of phonograms have the right to a single equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, broadcasting or communication to the public. However, any Contracting Party may restrict or – provided that it makes a reservation to the Treaty – deny this right. In the case and to the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted to deny, vis-à-vis the reserving Contracting Party, national treatment.

In other words, instead of applying national treatment, i.e. treating foreign performers “no less favourably” than domestic performers, Contracting Parties could apply reciprocity, discriminating against foreign performers if their home countries failed to provide the full benefits of the treaty. Tit for tat, or the “mirror principle”. At the time the US acceded to the WPPT it filed a reservation with respect to equitable remuneration because the performance right under US law is not applicable to terrestrial broadcasting. This led a number of countries to exercise their right to refuse to collect or pay royalties owed to US artists for performance of their works on their terrestrial radio stations. Among them was Canada, as well as many EU countries, including Ireland and, at the time, the UK.

But it gets more complicated. The policy of applying reciprocal rather than national treatment to US performers was recently challenged in a dispute between copyright collectives in Ireland. The Irish court then referred the matter to the EU Court of Justice (ECJ). In a preliminary ruling, the ECJ found that Irish law, which applied reciprocity, was not consistent with EU law, which is silent on the reciprocity question leading the Court to conclude that it was not permitted. However, this was not the end of the matter as the European Commission is now launching a study into the impact of this decision. A solution, pushed by some in the European music industry, is to amend EU law to allow individual member states to continue to apply the reciprocity principle, writes music journalist Chris Cooke.

Because Canada, like Ireland the UK and others, applied reciprocal rather than national treatment to US performing rights, Canadian broadcasters were not required to pay, nor did Canadian collecting societies (Re:Soundand others) collect, performance royalties on US works. The US music industry, which to date has been unsuccessful in having the terrestrial broadcast royalty exemption lifted despite years of trying, has been seeking “national treatment” as a fallback. If granted national treatment, US performers are able to collect radio royalties in countries that mandate payment of performance royalties by broadcasters, even though they and non-US performers are denied such royalties in the US. For US performers it is a partial solution. That solution is now coming to Canada.

As part of the updating of NAFTA and its replacement by the USMCA (known as CUSMA in Canada), the US, Canada and Mexico agreed to national treatment when it comes to “all categories of intellectual property covered in the (IP) Chapter”; viz.

Each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection (2) of intellectual property rights.

But that is all about “protection”, not payment of royalties, right?

Did you notice the footnote (2)? That says, among other things,

For the purposes of this paragraph, “protection” also includes…any form of payment, such as licensing fees, royalties, equitable remuneration, or levies, in respect of uses that fall under the copyright and related rights in this Chapter.

To implement this commitment, on April 29, 2020, the Government of Canada published a Statement Amending the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries, in the Canada Gazette, the publication of record for the Government of Canada. In plain English, this complicated “statement amending the statement…etc” means that U.S. recordings are now eligible in Canada for equitable remuneration under all tariffs applied by the collecting society responsible for performance royalties. U.S. recordings fixed before 1972 will also now be eligible. This is as a result of changes introduced in the US by the US Music Modernization Act, which among many other things, extended copyright protection under US federal law to pre-1972 sound recordings. The change in Canada for pre-1972 recordings came into effect April 29, 2020 while the rest of the changes came into effect on July 1, 2020, the date when the USMCA/CUSMA entered into force.

This is one more copyright related commitment in the USMCA/CUSMA that I probably should have included in my blog on the cultural aspects of the trade agreement that I posted on its first anniversary at the beginning of July this year. (I am making amends now). As an aside, and unrelated to the USMCA, for certain tariffs (satellite radio, pay audio, simulcasting, non-interactive and semi-interactive streaming) U.S. recordings became eligible as of August 13, 2014 as a result of Canada’s ratification of the WPPT. (This was because US law requires digital broadcasters to pay performance royalties, so Canada accorded US recordings national treatment). As noted above, on April 29, 2020, pre-1972 U.S. recordings also became eligible for the same treatment.

As a result of the USMCA, for US artists the problem of performance royalties paid by Canadian terrestrial broadcasters is “solved”, even though they do not get performance royalties from terrestrial broadcasters in their own country. This change will impose some additional costs on Canadian radio stations although the Canada Gazette did not hazard a guess as to the cost, saying in effect that it was too complicated to calculate. Canada also has its own peculiarity when it comes to payment of performance royalties, which complicates calculations. The first $1.25 million in advertising revenues for terrestrial stations is sheltered from performance royalty payments except for a nominal $100 fee. In effect, this is a greatly watered-down version of the performance royalty exemption enjoyed by US radio stations, and is as controversial in Canada (and as unpopular with the music industry) as the terrestrial broadcast exemption is in the US.

While the new USMCA/CUSMA provisions will help US artists earn revenues when their recordings are broadcast in Canada, this does nothing to solve the problem for Canadian artists with regard to royalties for the broadcast of their music on US AM/FM stations, nor does it do anything for US artists in the US (a far bigger market of course). Any improvement in outcomes for artists is a step forward, but the tiny step taken in Canada is dwarfed by what would happen in the US if the American Music Fairness Act becomes law. It has a long way to go, and the US broadcast lobby is well organized and well-funded. This is not the first time this issue has come before Congress, the most recent being in 2017 when the “Fair Play Fair Pay Act” was introduced. Despite determined efforts by the music industry at generating support in Congress, ultimately it did not make it through the legislative sausage machine. Now the issue is back on the congressional agenda; it is high time to end this anomalous exception to payment of copyright performance royalties by bringing US law into alignment with the rest of the modern world.

Getting national treatment for US performing artists in Canada is positive (for this one group of performers) but is nonetheless only a half-step forward, an interim measure. The US Congress needs to fix the problem once and for all by passing the AMFA and eliminating the broadcast exemption. That is the right thing to do for all artists affected by the non-payment of performance royalties for radio broadcasts, whether they are from the US, Canada or elsewhere. Enacting the AMFA would also eliminate the disparity (some would say unfairness) whereby Canadian broadcasters will now be paying royalties to US performers while Canadian performers are denied the same benefits in the US.

This article was originally published on Hugh Stephens Blog.