4. Law and legislation
Last update: November, 2008
Canada's Constitution Act (1982) contains several provisions that relate indirectly to culture and directly to citizenship in Canada: Part I - Canadian Charter of Rights and Freedoms, Part II - Rights of the Aboriginal Peoples of Canada, Part III - Equalisation and Regional Disparities, Part IV - Constitutional Conference(s), Part V - Procedure for Amending the Constitution of Canada, and Part VI - a general statement that the Constitution of Canada is the supreme law of Canada, and law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Charter is divided into the following major sections: 1. Guarantee of rights and freedoms; 2. Fundamental freedoms (conscience and religion, thought, belief, opinion and expression including freedom of the press and other means of communications), and peaceful assembly and association; 3-5. Democratic rights; 6. Mobility rights; 7 - 14; Legal rights (life, liberty and security; to be secure against unreasonable search or seizure; not to be arbitrarily detained or imprisoned; arrest or detention; those charged with an offence; not to be subjected to any cruel or unusual treatment or punishment; not to have any incriminating evidence used to incriminate a witness in any other proceedings except in a prosecution for perjury for the giving of contradictory evidence; the assistance of an interpreter for a party or witness in any proceedings who does not understand or speak the language used in the proceedings, or who is deaf; 15. Equality rights; 16-22. Official languages of Canada; 23. Minority language educational rights; 25-31. General (including, inter alia, Section 25 (a) and (b) that provides the guarantee in the Charter that certain rights and freedoms shall not be construed so as to abrogate or derogate from any Aboriginal, treaty or other rights and freedoms that pertain to the Aboriginal Peoples of Canada, Section 26 the provision that the guaranteed in the Charter that certain rights and freedoms shall not be construed as denying the existence of any other rights sand freedoms that exist in Canada; Section 27 providing that the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians; Section 28 containing the provision that the rights and freedoms referred to in the Charter are guaranteed equally to male and female persons, and nothing in the Charter extends the legislative powers of any body or authority); and Sections 32-34 concerning the application of the Charter.
Of these, the key provision against discrimination is contained in Section 15 (1):
"Every individual is equal before the and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, and law."
This provision underlies many of the policies and programmes of the Department of Canadian Heritage in regard to its citizenship mandate. Sections 16 on the Official languages of Canada and 23 on Minority language educational rights also constitute a foundation for other citizenship and cultural policies and programmes respecting their implementation.
Section 35 on the Rights of the Aboriginal Peoples of Canada provides that the existing Aboriginal and treaty rights (including rights that now exist by way of land claims or may be so acquired) of the Aboriginal Peoples of Canada, including the Indian, Inuit and Métis Peoples of Canada, are recognised and affirmed. The Aboriginal and treaty rights are guaranteed equally to male and female persons. The government of Canada recognised the inherent right of self-government of Aboriginal people as an existing right under this section in 1995 with the Inherent Right and Negotiations of Aboriginal Self-Government Policy. This recognition is based on the view that Aboriginal people have the right to govern themselves in relations to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions and with respect to their special relationship to their land and their resources. There are currently 66 active self-government and comprehensive claims files in Canada: 39 in the province of British Columbia and 16 self-government files and 11 comprehensive claims in the rest of Canada (see chapter 1.2.2).
Last update: November, 2008
Public funding is allocated on the basis of the Federal Budget and the Public Accounts, which list policy and programme spending for the Department of Canadian Heritage and the Federal Cultural Portfolio.
Last update: November, 2008
Enacted in 1993 and brought into force in 1995, the Status of the Artist Act (1995) officially recognises the contributions artists make to Canadian cultural, social, economic and political life and establishes a policy on the professional status of the artist. It also recognises rights of freedom of association and expression of artists and producers, as well as the right of artists' associations to be recognised in law and to promote the socio-economic well being of those whom they represent. Although Part I of the Act (1995) established the Canadian Council on the Status of the Artist, which was intended to provide advice to the Minister of Canadian Heritage, to date, this part of the Act has not been implemented. Part II of the Act (1995) established the Canadian Artists and Producers Professional Relations Tribunal, and put into place a framework for the conduct of professional relations between artists and producers within federal jurisdiction (government institutions and broadcasting undertakings under the jurisdiction of the Canadian Radio-television and Telecommunications Commission). The Tribunal reports to Parliament through the Minister of Labour.
As Labour Law falls under provincial jurisdiction in Canada, the Status of the Artist Act (1995) applies only to artists engaged by the federal government. Itdoes not apply to individuals working in employer-employee relationships; nor does it apply to producers and artists working under provincial jurisdiction. Quebec was the first and only province to have its own status of the artist legislation (which preceded the federal law) in 1987. Recently, however, both Ontario and Saskatchewan have introduced Status of the Artist-enabling legislation in 2007, and Newfoundland and Labrador has just begun the process to move towards creating the same type of legislation. Efforts continue to be made to encourage other provinces to consider enacting similar legislation.
The Tribunal has encouraged constructive professional relations between self-employed artists and producers under its jurisdiction. The Tribunal defined 23 sectors of artistic activity and certified 21 cultural associations by 2002. Fourteen final scale agreements have been reached including some with government producers and specialty television services. The effect of the Tribunal's work has yet to be fully felt in respect to raising the earnings of many self-employed artists in Canada who have average incomes (including income from other employment) CAD 7 300, less than the average income of CAD 31 757 for all workers in Canada (Census 2001).
The Status of the Artist Act was reviewed in 2002-2003 as stipulated in section 66. (Prairie Research Associates 2002) Although the Act (1995) was endorsed by those consulted, there was also a consensus that the legislation, by itself, is insufficient to bring about significant change in artists' socio-economic circumstances. The Act's restriction to federal producers, the fact that it addresses only labour relations, and the fact that it does not apply to producers sub-contracted by producers within federal jurisdiction are seen by artists' organisations in particular as its main shortcomings. There was general agreement that other kinds of measures are necessary if the socio-economic circumstances of self-employed artists are to improve. The evaluation recommended that other policies and programmes be explored to improve the situation of artists, in addition to possible amendments to the Act (1995), itself. The Departments of Canadian Heritage and Human Resources Development Canada continue to seek progress in this regard.
Last update: November, 2008
Tax deductions by individuals for donating to not-for-profit charities and cultural organisations are an important incentive for philanthropy. While the number of donors to cultural organisations decreased by 21% from 571 000 in 1997 to 451 000 in 2000, the value of cultural donations increased 22% from CAD 39.4 million in 1997 to CAD 47.9 million in 2000, or twice as fast as the rate of increase in the value of donations to any type of non-profit organisation. In 2004, about 732 000 Canadians aged 15 and over, or 3.3% made financial donations to arts and culture organisations, or 3.3% of all donations, including visual arts, architecture, ceramic art, performing arts, museums, zoos, aquariums, media and communications as well as historical, literary and humanistic societies. Donors indicated that they made a total of CAD 188 million to cultural organisations or CAD 257 as an average donation per donor compared to CAD 395 for the average value of donations to religious organisations per donor. The top one-quarter of donors provided the great majority of the total value of all donations. Arts and culture rank eighth out of 11 types of not-for-profit organisations in value of donations, well behind religious organisations (CAD 4 billion), health care (CAD 1.2 billion) and social service organisations (CAD 903 million).( Statistics Canada, National Survey of Giving, Volunteering and Participating 2006 and Hill Strategies Research, 2006). There is continuing pressure for the elimination of tax measures such as a reduction in the capital gains tax of donations of optioned shares.
Corporations and foundations also contribute to cultural organisations through grants and donations, endowment funds and sponsorships. The largest proportion of cultural donations flows to media, communications (public television, libraries and newsletter organisations) and the performing arts. As a percentage of total revenues, private sector revenues including endowments, trust funds, fund raising and sponsorships amount to 21% for the performing arts and 10% for heritage institutions. Both showed growth potential during the 1990s, an otherwise difficult period. An incentive was announced in 2006 to increase the opportunity to make private donations to charitable institutions, including not-for-profit arts and cultural groups, through improved tax treatment for the donation of publicly traded securities. See chapter 4.2.6 for film production credit legislation and chapter 3.1 for cultural property tax incentives.
Certain deductions to the Income Tax Act (1985) are in effect for visual artists and writers, and performing artists. Visual Artists and Writers: visual artists and writers who are self-employed are entitled to deduct reasonable expenses incurred in connection with earning income from their business, including work space in home expenses and professional membership dues. Visual artists and writers who are employees can deduct, within certain limitations, their expenses paid (e.g. advertising and promotion, travel expenses) to earn employment income from "qualifying artistic activity" which includes:
- creating (but not reproducing) paintings, prints, etchings, drawings, sculptures or similar works of art;
- composing a dramatic, musical or literary work;
- performing a dramatic or musical work as an actor, dancer, singer or musician; or
- an artistic activity in respect of which the taxpayer is a member of a professional artists' association that is certified by the Minister of Communications, now the Minister of Canadian Heritage.
Performing artists who are self-employed can deduct reasonable business expenses, including the following: insurance premiums on musical instruments and equipment, the cost of repairs to instruments and equipment, legal and accounting fees, union dues and professional membership dues, an agent's commission, publicity expenses, transportation expenses related to an engagement, cost of music, acting or other lessons incurred for a particular role or part or for the purpose of general self-improvement in the individual's artistic field. Artists who are employees may deduct reasonable employment expenses, subject to certain limitations (e.g. advertising and promotion, travel expenses). An employee, who is employed in the year as a musician and is required as a term of the employment to provide a musical instrument for a period in the year, may deduct certain costs related to the musical instrument (e.g. capital cost allowance, amounts for maintenance, rental and insurance of the instrument). It should be pointed out that both employed and self-employed artists may make such deductions only against their self-employed artistic income. This provision applies to both visual artists and writers and to performing artists. The deduction related to musical instruments for performing artists is the only one that does apply to artists' employment income.
Artists receive an income tax credit, calculated on the basis of fair market value, for a gift to institutions and public authorities designated under the Cultural Property Export and Import Act (1985), which regulates the import and export of cultural property and provides special tax incentives to encourage Canadians to donate or sell important objects to public institutions in Canada. An independent, administrative tribunal certifies cultural property for income tax purposes by making determinations with respect to the "outstanding significance and national importance" and the fair market value of objects or collections donated or sold to museums, archives and libraries. It is a tax credit scheme for "donors" of cultural property that may include an artist if the person actually owns the artwork at the time of the gift, but the scheme itself is open to any taxpayer in Canada who wishes to make a gift to public institutions. Arts service organisations recognised by the Minister of Canadian Heritage and the Minister of Revenue as having charitable status may issue receipts for income tax purposes to persons who make gifts to associations. Income averaging measures have not been introduced to date.
Last update: November, 2008
See chapter 4.1.3 on social security provisions.
Last update: November, 2008
The origins of Copyright Law in Canada draw from a mixture of Anglo-American and continental-European legal traditions. The Anglo-American legal system reflects an approach centered on the author's contribution to the pool of human art, knowledge and ideas through his or her work. Copyright is rooted in the tradition which took the form of monopoly protection of authors and publishers and it has remained essentially economic in nature. In contrast, the continental European approach, which traces back to the mid-18th century, was born in the human rights tradition and places more emphasis on the link between the author and his or her creation. Both traditions have influenced Canada's legal framework for copyright.
Responsibility for copyright is shared between the Minister of Industry and the Minister of Canadian Heritage corresponding to the different policy priorities of the respective departments. Industry Canada is involved in innovation and knowledge based economic growth, as well as consumer interests and protection whereas Canadian Heritage is involved in implementing and promoting policies, projects and programs with respect to Canadian identity and values, cultural development and heritage.
From the perspective of cultural policy objectives, copyright protection is seen as the foundation for creative endeavour. The creation of Canadian cultural content and the availability of diverse choices for Canadians depend on adequate copyright protection and the enforcement as well as effective administration of rights through copyright collective societies. Canada's Copyright Law establishes the economic and moral rights of creators to control the use of their works, to receive remuneration when their works are used and to protect the integrity of their work. Also, the objective of the Copyright Act (1985) is meant to ensure appropriate access for all Canadians to works that enhance the cultural experience and enrich the Canadian social fabric.
The Copyright Act was first enacted in 1924 and major amendments were introduced in 1988 and 1997with the following results:
- a number of new provisions, including a compensation right for cable retransmission and a clarification of the scope and strength of moral rights;
- collective societies administer specific rights on behalf of their rights holder members. The introduction of a set of provisions to allow the emergence of new types of collectives over which the Copyright Board was given jurisdiction;
- new rights for performers, sound recording makers ensured that they would be compensated when their performances or recordings were communicated to the public or performed in public. Broadcasters were given certain rights in their signals, including the right to "fix" them, as well as certain limited rights in relation to their rebroadcast or public performance;
- the introduction of new exceptions for schools, libraries, archives and museums;
- the creation of a private copying exception and a regime for compensating rights holders for the unauthorised copying of sound recordings for private use. This regime consists of a levy payable in respect to certain types of media used for such copying. The amount of the levy is set by the Copyright Board.
The government of Canada also brought the Copyright Act in line with commitments made under the Canada-United States Free Trade Agreement in 1989, the North American Free Trade Agreement in 1995, and the World Trade Organisation Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement in 1996. Canada thereupon substantially changed the Copyright Act, and dealt with numerous issues of domestic and international concern. It was able to become a party to an international agreement (the 1961 Rome Convention) and to meet the standards as well as ratify the latest version (1971) of the Berne Convention.
Following these amendments, many issues remained outstanding and new ones were emerging. In 1997, the government of Canada signed the World Intellectual Property Organisation (WIPO) Copyright Treaty (for authors and creators) and the WIPO Performances and Phonograms Treaty (for sound recording makers and performers). The two WIPO Treaties create an exclusive right for copyright owners to make their works available on-line to the public, prevent the circumvention of technical protection measures and prohibit tampering with rights management information.
In June 2001, the government of Canada announced further steps in the consultation process on digital copyright issues and released a document entitled, Framework for Copyright Reform. This document identified matters to be dealt with in future revisions and outlined a consultative process, which has since been followed. In October 2002, a comprehensive review of the Copyright Act entitled Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act was tabled in Parliament (the Section 92 Report) in compliance with the 1997 amendments of the Act. Important issues were identified including WIPO Treaty implementation.
Subsequently, in October 2003, the Standing Committee on Canadian Heritage began its review of the Section 92 Report including a list of all issues, such as WIPO Treaties. In May 2004, the Committee released an Interim Report. In June 2005 Bill C-60, An Act to amend the Copyright Act was tabled in Parliament. This proposed legislation was intended to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, clarify liability for Internet Service Providers, facilitate the use of new technologies for educational and research purposes as well as inter-library loans and harmonise the treatment of photographers with that of the other rights holders. The proposed legislation died on the Order Paper with the calling of the general elections and prorogation of Parliament in late 2005.
In 2006, the Department of Canadian Heritage, in coordination with Industry Canada, continued to work towards the eventual introduction of a piece of legislation to amend the Copyright Act in order to allow Canada to implement the provisions of the two WIPO Treaties. Also, a 2006 report commissioned by the Department of Canadian Heritage, The Economic Impact of Canadian Copyright Industries - Sectoral Analysis by CONNECTUS Consulting Inc. indicates that copyright industries in Canada (including the written and electronic Press and literature, theatrical and music productions, motion picture and video industries, sound recording, radio and television, software databases and new media, and advertising services) comprised 4.5% of the Canadian GDP and 5.5% of total Canadian employment in 2004. In 2007, Parliament passed anAct to amend the Criminal Code of Canada (2007) in regard to the unauthorised recordings of a movie in theatres which effectively stemmed the growing "piracy" of live feature films in Canadian theatres by use of camcorders or other copying instruments. This law has already led to a number of prosecutions for violations.
In the October 2007 Speech from the Throne, which is presented by the Governor General of Canada to mark a new Session of Parliament but is approved in advance by the Prime Minister and the government as an indication of it's planned directions in the coming year, the government of Canada made a commitment to improve the protection of cultural and intellectual property rights in Canada, including copyright reform. The Minister of Canadian Heritage is currently working with the Minister of Industry Canada towards the introduction of legislation to amend the Copyright Act that will allow the Canada to implement the WIPO Treaties.
Last update: November, 2008
While there are no specific data protection laws applicable targeting the cultural sector, federal legislation generally applicable in Canada includes the Privacy Act (1985) which extends the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information. According to Privacy International, Canada, Greece and Romania have the best privacy records of 47 countries surveyed although Canada's Privacy Commissioner recently noted that 2008 will be another challenging year of privacy in Canada in light of heightened national security concerns, the growing business appetite for personal information, technological advances and the absence of a national privacy law in the United States, Canada's neighbour and largest trading partner. The Access to Information Act, in force since 1983 but proclaimed into law in 1985, gives Canadians a broad legal right to information that is recorded in any form and controlled by federal government institutions. Individuals may apply for access to certain information, and, unless the requested information falls within specific and limited exceptions, the Act requires its release within specified time limits. The exemptions are set out in the Act; they generally relate to individual privacy, commercial confidentiality, national security or other confidences necessary for policy-making. Records containing Cabinet confidences are excluded from the operation of the Act for 20 years from the date of their making (see chapter 3.1). The Access to Information Act (1985) also contains provisions affecting the protection of data and information although the practical purpose of the Act, which is to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government, is to balance the privacy requirements for the protection of personal data and information.
Last update: November, 2008
Sections 41 and 42 of the Official Languages Act commit the federal government to enhancing the vitality of English-speaking and French-speaking minority communities, as well as to fostering the full recognition and use of both English and French in Canadian society. This commitment ensures not only that official-language minority communities have access to services in their language, but also that all federal institutions actively contribute to the development and vitality of these communities. Thus, all federal cultural programmes and policies are structured according to two separate official linguistic communities and markets.
Second (official)-language learning support programmes are among the most important tools in developing an inclusive and participatory society in Canada. For 35 years, the government of Canada has provided financial assistance to the provinces and territories, which together have jurisdiction over education. The Department has signed four-year agreements with the Council of Minister of Education, Canada and the provinces and territories for specific measures related to second-language learning. The objective of the Enhancement of Official Languages Programme and the Action Plan for Official Languages is to double the proportion of Canadian youth between 15 and 19 years old who have a working knowledge of both official languages and a greater understanding and appreciation of the benefits of linguistic duality. In addition to the second language learning programmes, the Department of Canadian Heritage also implements the Development of Official-Language Communities Programme (see chapter 2.5.4).
Information is currently not available.
Last update: November, 2008
Culture is not specifically referred to in Canada's Constitution; it is neither in the British North America Act (1867) nor the Constitution Act (1982). In the early years, the provinces were originally to have jurisdiction over cultural issues, which were thought to be of a local nature. However, the federal government began to intervene more extensively in culture through the exercise of its spending power in the mid-20th century. Elements of the federal role in culture and communications have been upheld on the basis of national interest ("peace, order and good government") and the spill-over properties of dissemination involved in the inter-provincial and international delivery of telecommunications and broadcasting signals. In the late 1970s, the Supreme Court of Canada extended exclusive federal jurisdiction to the regulation of cable television (by the CRTC) and in 1989, held that national telecommunication networks were also integral networks under federal authority.
The federal government has assumed exclusive authority over broadcasting, allowing for federally licensed provincial educational programming. It shares concurrent authority with the provinces on the balance of the cultural portfolio including the arts, heritage and the cultural industries. Quebec stands out among provinces in Canada in maintaining a strong cultural policy and programme presence at the provincial level motivated by its close connection to French-language culture.
In 1993, the Department of Canadian Heritage was created by the Department of Canadian Heritage Act and in 1995, the Act was given Royal assent. It sets out the mandate of the new amalgamated department, over which the Minister of Canadian Heritage presides, and explicitly includes the Minister's powers, duties and functions that relate to Canadian identity and values, cultural development and heritage. Section 4(1) states: "The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the government of Canada, relating to Canadian identity and values, cultural development, heritage and areas of natural or historical significance to the nation." The Act specifies 12 responsibilities:
- the promotion of a greater understanding of human rights;
- fundamental freedoms and related values;
- the arts including cultural aspects of the status of the artist;
- cultural heritage and industries including performing arts, visual and audio-visual arts, publishing, sound recording, film, video and literature;
- the encouragement, promotion and development of amateur sport;
- the advancement of the equality of status and use of English and French and the advancement and development of the English and French linguistic minority communities in Canada;
- state ceremonial and Canadian symbols;
- broadcasting (except in respect of spectrum management and the technical aspects of broadcasting);
- the formulation of cultural policy (including the formulation of cultural policy as it relates to foreign investment and copyright);
- the conservation, exportation and importation of cultural property; and
- national museums, archives and libraries.
The composite list of statutes in force is administered, in whole or in part, by the Canadian Heritage Portfolio and most of these statutes have either a direct or indirect effect on cultural policy. Many of the pieces of legislation below indicate 1985 as year of enactment since they were included in consolidated legislation in that year although all Acts are now updated in laws (see justice.gc.ca every year).
- An Act to acknowledge that persons of Ukrainian origin were interned in Canada during the First World War and to provide for recognition of this event (2005);
- An Act to amend the Criminal Code of Canada (unauthorised recordings of a movie) (2007);
- An Act to incorporate the Jules and Paul-Emile Léger Foundation (1980-83);
- An Act to Amend the Museums Act (2008);
- Broadcasting Act (1991);
- Canada Council for the Arts Act (1985);
- Canada Travelling Exhibitions Indemnification Act (1999);
- Constitution Act including the Canadian Charter of Rights and Freedoms (1982);
- Canadian Heritage Languages Institute - not in force (1991);
- Canadian Multiculturalism Act (1985);
- Canadian Radio-television and Telecommunications Commission Act (1985);
- Copyright Act R.S.C. 1985, c. C-42, hereinafter as amended - formulation of cultural policy;
- Cultural Property Export and Import Act (1977);
- Department of Canadian Heritage Act (1995);
- Foreign Publishers Advertising Services Act (1999);
- Holidays Act (1985);
- Income Tax Act - tax credits, national arts service organisations and cultural property (1985);
- Investment Canada Act - cultural foreign investment (1985);
- Library and Archives of Canada Act (2004);
- Lieutenant-Governors Superannuation Act - in part (1985);
- Museums Act (1990);
- National Acadian Day Act (2003);
- National Anthem Act (1985);
- National Arts Centre Act (1985);
- National Battlefields at Quebec Act (1907-08);
- National Capital Act (1985);
- National Film Act (1985);
- National Horse of Canada Act (2002);
- National Sports of Canada Act (1995);
- National Symbol of Canada Act (1985);
- Official Languages Act - Part VII (1985);
- Parliamentary Employment and Staff Relations Act (1985);
- Physical Activity and Sport Act - in respect of sport (1985);
- Public Service Employment Act - reporting to Parliament (1985);
- Salaries Act - lieutenant-governors (1985);
- Sir John A. MacDonald and Sir Wilfred Laurier Day Act (2002);
- Status of the Artist Act - Part I (1992);
- Telefilm Canada Act (1985); and
- Trademarks Act - use of national symbols (1985).
Last update: November, 2008
The government's role in heritage is governed by the Department of Canadian Heritage Act (1995), the Museums Act (1990) which declares the heritage of Canada and all its peoples is an important part of world heritage and must be preserved for present and future generations, the Library and Archives of Canada Act (2004), the Cultural Property Export and Import Act (1977), and the Canada Travelling Exhibitions Indemnification Act (1999). The Act to Amend the Museums Act received Royal Assent in 2008 and formally established Canada's latest national museum, the Canadian Museum for Human Rights to be located in Winnipeg. The new museum will explore the theme of human rights to enhance public understanding, promote respect for others, and encourage reflection and dialogue. It will be built with support from other levels of government, the private sector, and non-governmental organisations.
In 2004, some laws, which apply to cultural heritage, were transferred to the Minister of the Environment. Bill C-7, an Act to amend the Department of Canadian Heritage Act and the Parks Canada Agency Act and to make related amendments to other Acts replaces section 4(1) of the Parks Canada Agency Act with a new subsection listing the various matters now placed under the authority of the Agency. Briefly, all "built heritage" matters - canals, railway stations, buildings, and historic sites - are the responsibility of the Agency, which reports to the Minister of the Environment. Responsibility for national cultural heritage institutions, movable cultural property protection and the National Battlefields Commission remains with the Department of Canadian Heritage and the Portfolio.
The following laws apply to cultural heritage:
- Cultural Property Export and Import Act (1977): an Act respecting the export from Canada of cultural property and the import of cultural property into Canada illegally exported from foreign states - the Department of Canadian Heritage is currently reviewing this legislation to ensure that it remains as effective as possible in the protection of Canadian and international heritage (see chapter 4.2.2);
- Income Tax Act (1985): provides for an exemption from the payment of capital gains taxes on certified cultural property donated or sold to designated institutions or public authorities in Canada; gifts of certified cultural property are also eligible for a tax credit;
- Canada Travelling Exhibitions Indemnification Act (1999): an Act to establish an indemnification programme for travelling exhibitions;
- Canada National Parks Act (2000): an Act respecting the national parks of Canada;
- Parks Canada Agency Act (1998):provides a new operational framework for Parks Canada and establishes Parks Canada as an agency of the federal government;
- Historic Sites and Monuments Act (1985): an Act to establish the Historic Sites and Monuments Board of Canada;
- Heritage Railway Stations Protection Act (1985): the authority of the Minister of the Environment is required to destroy or alter designated heritage railways stations under this Act;
- Department of Transport Act (1985): Historic Canal Regulations under this Act deal with historic canal preservation;
- Canada Shipping Act (2001): Heritage Wreck Regulations currently being developed under this Act will protect heritage wrecks. No federal archaeology legislation exists;
- Laurier House Act (1952): an Act respecting the custody and care of Prime Minister Wilfred Laurier's historic home in Ottawa;
- National Battlefields at Quebec Act (1908): an Act to acquire and preserve the great historic battlefields (Plains of Abraham) at Quebec; and
- Criminal Code: along with the Cultural Property Export and Import Act (1977), the Crimes Against Humanity and War Crimes Act (2000), and the National Defence Act (1985), the Criminal Code (1985) plays a role in implementing Canada's obligations under the Protocols to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict by prohibiting certain acts against significant cultural heritage outside Canada.
Please find the available information on this subject in 4.2.6
Please find the available information on this subject in 4.2.6
Last update: November, 2008
Library and Archives of Canada Act (2004): the Act joins together in a new agency the formerly separate National Library of Canada and the National Archives of Canada.
Last update: November, 2008
Film, video and photography
Two laws apply to film at the federal level in Canada: the National Film Act (1985), which applies to the National Film Board, and the Telefilm Canada Act (1985, amended 2005), which applies to Telefilm Canada. The Standing Committee on Canadian Heritage in Parliament recommended that the mandate of Telefilm Canada, the National Film Board and other federal cultural agencies be better aligned toward common objectives while clearly delineating their respective roles and responsibilities. The government is reviewing the Acts of the NFB and Telefilm Canada and will make legislative changes in the coming years as required.
In 1995 the government of Canada established the Canadian Film or Video Production Tax Credit (CPTC) and in 1997, the Film or Video Production Services Tax Credit Programme (PSTC). The CPTC Programme comprises a fully refundable credit of up to 12% of the net total cost of assistance of an eligible production. The PSTC is equal to 11% of salary and wages paid to Canadian residents or taxable Canadian corporations for services provided to film production in Canada.
In February 2005, amendments to the Income Tax Act (1985) were approved concerning the CPTC Programme which supports film and video production in Canada by providing a tax credit equal to 25 per cent of qualifying labour expenditures, valued at approximately CAD 185 million in 2006. The intent of the modifications is to simplify the credit and ensure that tax assistance is appropriately targeted. The amendments include the following:
- the limit on the base of qualifying labour expenditures was raised to 60 per cent of the total cost of a production from the previous 48 percent rate;
- labour expenditures in respect of non-residents of Canada (other than Canadian citizens) are no longer eligible for the credit;
- the holding of an interest in a film or video production by a person other than the production corporation no longer disqualifies the production from eligibility for a tax credit, unless the production or one of the investors is associated with a tax shelter. However, the credit continues to be available only with respect to production expenditures made by the production corporation; and
- if a government entity is an investor, that investment will be treated in the same manner as other forms of government assistance.
In 2003, the PSTC tax credit was raised to 16 percent from 11 percent of salary and wages paid to Canadian residents or taxable Canadian corporations (for amounts paid to employees who are Canadian residents) for services provided to the production in Canada. This refundable tax credit has no cap on the amount that can be claimed. The Department of Canadian Heritage also announced the results of public consultations through the Canadian Audio-Visual Certification Office in regard to copyright ownership, acceptable share of revenues, format, programmes and screen credits and production control guidelines.
In March 2008, the Minister of Canadian Heritage, Status of Women and Official Languages issued a public statement indicating that under a proposed amendment to the film or video tax credit regime, the current rules of the Income Tax Act will be changed to disallow "extreme or gratuitous" films. The government contended that the proposed Bill C-10 "has nothing to do with censorship and everything to do with the integrity of the tax system...The modifications in question will affect a very small number of the over 1 000 productions that receive tax credits annually."
Canada's television quotas are administered by the CRTC based on ownership of the production company, expenditures paid for services to Canadians or incurred in Canada, and predominantly, on the nationality of the producer and key creative personnel. The CRTC certifies programmes as Canadian if the producer is Canadian, key creative personnel are Canadian and at least 75% of service costs and post-production laboratory costs are paid to Canadians. Canadian content quotas in radio, set at 35% of airtime each week, are administered according to the MAPL system (music, artist, production and lyrics), which supports the exposure of Canadian music performers, lyricists and composers to Canadian audiences and a strengthened Canadian music industry. The CRTC also maintains a 65% French-vocal music content requirement each week and at least 55% of the popular vocal music selections broadcast between 6AM and 6PM, Monday through Friday, must be in the French language (see chapter 3.5.1).
In 2002, the government launched a review of the definition of Canadian content in film and television production. However, regulations refer to the mandated availability of Canadian content, which, for television, is 60% from 18:00 to 24:00. They do not necessarily mean that the programming is in fact viewed at the same levels. For example, in 2003, viewing of English-language Canadian content television during prime-time (19h00 to 23h00) was substantially lower at 23.1% than its availability (36.1%) while the comparable figures for French-language Canadian content television were 78.4% viewing and 65.6% availability. All day viewing of Canadian content on television was 43.2% in 2003. In 2003, Canadian programs garnered 78% of the total viewership to French-language programmes and 37% of the total viewership to English-language programmes. Viewing by English-language viewers to Canadian drama and comedy programmes was 11.6%. In contrast, the viewing share for Canadian drama and comedy programmes by French-language viewers was 44.5% in 2003.Since then, audience statistics have been switched to the BBM TV meter survey and the CRTC and the Department of Canadian Heritage no longer use the viewing statistics from BBM TV diary surveys. The new meter data system provided by BBM does not allow for the calculation of viewing shares during peak hours along comparable lines with trend line information. The latest television and radio audience figures for all content (not just Canadian content) are contained in chapter 6.2.
Critics argue that Canadian content should be defined according to other considerations than "citizenship" or "residence" such as theme and subject matter, location of production and post-production, copyright and rights ownership, and international and domestic distribution rights. It has also been suggested that private broadcasters could be required to dedicate a percentage of their budget - rather than a percentage of airtime - to Canadian programmers. Currently, with the large levels of spending of Canadian broadcasters (private TV, public (CBC / SRC and educational) TV, and pay and specialty services combined) on telecasting Canadian programmes (CAD 2.2 billion in 2006) and federal subsidies for Canadian television programming, non-Canadian still dominate the top 20 TV programmes watched by English-Canadians whereas almost all of the top 20 programmes viewed in Quebec were Canadian. Viewing of English-language Canadian content on television in Canada is far less compared to other English-language markets such as the UK and Australia where 9 and 8 of the top shows watched are domestically produced, respectively. The realities are different in the Canada's French-language market where language has a buffering effect on foreign (US) competition. Telefilm Canada currently administers funding eligibility requirements for marketing and other audience-building efforts. (Statistics Canada and CRTC 2007)
In June 2003, the Review of Canadian Content in the 21st Century in Film and Television Productions (Francois Macerola) made recommendations to the government, among which are the following: (1) replace the current point / expenditure system by a creative expenditure model; (2) one arm's length organisation be made responsible for the certification of Canadian content: a proposed Canadian Content Commission; (3) the Canadian Film or Video Production tax Credit be scaled upwards; (4) Canada should seek preferential treatment and special association status with the most important multilateral initiatives especially those within the European Union; and (5) the distribution of Canadian feature films in Canada should continue to be reserved for Canadian-owned and -controlled companies.
Please find the available information on this subject in 4.2.2