The Tyee.ca By a quirk of legal fiction, our courts treat a corporation as if it were a person. Alas, that person is by design a psychopath, conclude a team of B.C. filmmakers who put the "dominant institution of our time" on the couch and apply to its behaviour the Diagnostic and Statistical Manual of Mental Disorders. Their resulting acclaimed documentary "The Corporation," which opens today in Vancouver, powerfully chronicles corporate calamities, muckraking and protest. Along the way, we hear from a frank and engaging cast of business leaders and critics. That the talking heads seem so personable is but one example of how co-directors Mark Achbar and Jennifer Abbott have mastered the art of making potentially grinding material fresh, friendly, even fun. (Achbar achieved a sense of intimacy by having his subjects speak to a mirror, just under the lens, reflecting his face as he asked questions.) Last time out, Achbar co-directed "Manufacturing Consent," which conveyed the political thinking of Noam Chomsky with similar verve. UBC law professor Joel Bakan, writer of "The Corporation" film, has authored a book of the same name and theme to be published in the spring. The Tyee caught up with Achbar and Bakan earlier this week in a Chinatown loft in Vancouver, just before they left to screen their film at the Sundance Film Festival. TYEE That legal framework allowing corporations to be treated by the law as persons, but also to act as psychopaths bent on their own self interest only. Is Canada's different than the U.S.? JOEL BAKAN No, pretty well throughout the western world there are two fundamental principles in corporate law: one is the idea that the corporations are to be treated as persons in the sense that they have the same rights as individuals do in terms of owning property, trading property, suing, being sued. In the United States and Canada corporations also have human rights. So for example, a tobacco company can go to court and allege that restrictions on tobacco advertising are violations of its free speech, which RJR MacDonald successfully did in the Canadian Supreme court a few years ago. So that's one leg of it. And the other is what is often referred to as the best interest principle. It says that directors and managers of corporations always have to make decisions that are in the best interest of the corporation. The courts have generally understood that to mean: in the best interest of the shareholders. So to that extent, it's illegal for corporations to make decisions for the benefit of others. A corporate executive could say: "I'm going to make this decision to preserve a river by spending more money on anti-pollution devices. Even though that's going to cost my shareholders, I'm doing it because I think it's good for the environment." That would be illegal. A corporate executive who did that could be sued by his or her shareholders successfully. TYEE In your film, it was chilling to hear a New York commodities trader discuss how he and his peers scrambled to make a buck off the 9/11 attacks and the Iraq War. But some might argue for what the economist Schumpeter celebrated as capitalism's "creative destruction." Our society is dynamic and affluent, so maybe it makes sense to allow 'psychopathic' corporations to do what must be done to create wealth, no matter how ruthlessly. BAKAN I think that you can also make the argument that fascist governments are very good at making the trains run on time, and very good at creating wealth. I think wealth creation is undoubtedly something that we need to do in society. The problem with the corporation is that it has created an institutional structure where wealth creation is unmodified. To create wealth you have to destroy things. You have to literally exploit things. I'm not using the term in the pejorative sense, but as the economists use it. So you have to exploit natural resources, you have to exploit labour, you have to extract wealth from other things whether it be nature or human beings -- and I think the difficulty with the corporation is that impulse to extract, to exploit is entirely unmodified. We end up in a situation where the destruction that it causes is actually greater than the benefits from the wealth that it creates. So what we've done with the corporation is created a fundamentalist system, and no fundamentalist system works. We've created a system where there's one operating principle, and that is that you exploit in order to create wealth. Eventually, that's not sustainable, because it's not in any way balanced. And what we're seeing increasingly is that what balance there is, in the form of government regulation and democratic regulation of corporations, is being removed. TYEE That's what I wondered at film's end, whether you were arguing for more regulation of corporations, or a revolutionary reinvention of capitalism itself. BAKAN In the book, I make a stronger claim for regaining democratic control of the corporation. The corporation is a product of our democratic institutions. It's not part of nature. We created the corporation, and the only legitimate and justifiable reason for government or the state to create an institution is to serve the public good. So this idea that somehow we need to bow down to corporations is ridiculous. The corporation is a policy instrument to serve the public good and at this point it's causing more harm than good to the public. So my argument in the book is effectively to create new structures of regulation. I'm not suggesting we go back to the regulatory systems of the 70s. What I say in the book is that I think it's Utopian and unrealistic to talk about fundamentally changing capitalism -- even though that's something I might agree with. I don't think social change necessarily happens from black to white. I think if people start to reinvigorate themselves as citizens, start to feel they have ownership over this institution, good things will happen. And I don't know exactly what those good things will be. The film is more open ended . . . MARK ACHBAR We weren't trying to be prescriptive in the film. But it shows there have been examples of people fighting back and people trying at least to take charge of their lives and of the institution itself using the law, using the streets, and with varying degrees of success. Sometimes we think that instead of calling the film "The Corporation" we should have just called it "The World" because it's so vast, this topic and the range of actions that could have been depicted. As for whether we are making an argument for revolution, that's up to the viewers to decide. I wouldn't say no to that question. To get us from here to a fully sustainable corporate culture, I would say by whatever means necessary, frankly. TYEE Given your scathing critique, and the corporate world's obsession with managing its own messaging and branding, it's amazing you were granted so much access to its inner sanctums and leaders. BAKAN We just asked politely! ACHBAR Actually, if I had been asked "What is your bias?" I would have said so. But I think it was pretty obvious from the gist of my questions. In the film, I'm interviewing Michael Walker of the Fraser Institute, and you hear my astonishment at some of his more outrageous statements. So it's not like he doesn't know where I'm coming from. Some wouldn't go for it. One top female CEO, for example, had this blanket of media protection. They wanted to see treatments for the film and wanted to see our previous work and all that; and we didn't bother. We just figured there's no way. It's funny. To gain access to that world, we presented ourselves to some degree as a corporate entity, as a big picture media corporation comprising filmmakers and writers with great experience and we didn't go into a lot of detail unless somebody asked. TYEE The production quality of your film is worthy of any 'big picture media corporation.' How did you raise the cash? Give me your 30 second elevator pitch to potential backers. ACHBAR It was initially funded as a three-hour television mini-series and we raised about $3 million for that, which is by world standards a decent budget, but by no means extravagant. It took three and a half years to get the funding. We tried everywhere we possibly could, anyone who would listen to us. We have to give credit to Vision television, which is a charitable institution; to TV Ontario, a publicly funded educational network, and Knowledge Network here in B.C., SCN in Saskatchewan and Access in Alberta. Those are the television entities that gave us our original licences. And when you have that money, you can then leverage that, if you're lucky, with provincial funding institutions that are designed to support cultural industries, the film industry. And also federal institutions like Telefilm Canada. In addition we got a big fat grant of $100,000 from Rogers, a mega-corporation. It's not out of the goodness of their hearts, it's a regulatory requirement and they happen to have some people who saw the value of this particular project on their adjudication team and they wanted to give this film a chance. The irony of course of the whole thing is that I have a feeling this film will be profitable for its various investors. I think if you look at Telefilm's annual reports you'll see that the industry returns about 11 cents on the dollar invested. TYEE Joel, you're a scholar of both commercial and constitutional law. How powerful a weapon is today's law for taming the corporation's excesses? BAKAN The law is a very complicated thing when it comes to the corporation because the law has kind of a multiple personality. The law is what creates the corporation. The law is what regulates the corporation. And the law is what creates contract and property rights that create a market economy. What happened from roughly 1935 until 1975 was the balance shifted in favour of regulation so that with President Roosevelt's New Deal in America and in other parts of the world you had this rise of a regulatory state that was designed to basically dull the sharper edges of capitalism. What's happened in the last 30 years is that balance has shifted in favour of the law that empowers capital and creates capital. We need to bolster the law's protection of the public interest, greater democratic control, greater regulation of corporations. One other thing that can be done is to actually change the way that the law creates the corporation. You could say, make it no longer a psychopathic person. Go right into the charters of corporations and add various kinds of social responsibilities. But if we build into the corporation's mandate that it has to respect environmental standards or labour standards, then what? We leave it to corporate decision makers to decide how to achieve that? So I prefer the regulatory model. I prefer having democratically accountable regulators who oversee what corporations do. TYEE But we hear a lot about corporate donations to good causes, ethical practices. A lot of people are invested, literally, in the idea of encouraging corporations to be more socially responsible . . . BAKAN I think corporate social responsibility is an oxymoron. Legally, the way the corporation is constituted, it can't be socially responsible as an end in itself. So where we're at is that corporations are capable, in fact obliged, to pursue socially responsible policies if and only if those will help their profitability. As a public relations campaign, as a marketing campaign, a corporation is well within its rights to say, as does British Petroleum or Shell Oil, we are an environmentally sensitive oil company and we do this, this and this in order to make that real. However, there's an envelope, and those corporations are able to push that envelope to a point, but not to the point where they would actually pursue social good for the sake of pursuing social good. So you do have a range of choices as a consumer and as an investor; you have a range of choices among corporations that have decided not to push the envelope and are happy to continue to ruin the environment and not even try to be socially responsible and those that are trying to push the envelope a little and making an effort to do it. But I think that range is relatively narrow and the problem is, is that in today's world we're being presented with corporate social responsibility as an alternative to democratic regulation. That's where things get difficult and scary, because the image that we're getting is that the corporation has this limitless capacity to bring social good to the world and it doesn't; it has a very limited capacity to do that. But corporations today are making the argument: "We don't need regulation because we can regulate ourselves and be socially responsible." And that's a problem. TYEE What about the labour movement? Corporate leaders often rail against unions as their chief antagonists. But unions also are aligned with the overall goal of corporation to stay in business, grow and employ workers. BAKAN I think labour has been a force for reforming corporations. Before the environmental movement, beginning a hundred years ago, the labour movement was really the only social movement of any force of power that took upon itself the task of trying to create legally enforceable social standards that corporations had to comply with. There are going to be times when the interests of workers and environmentalists clash. We're well aware of that in British Columbia. But I think it's fair to say that both those organizations have a common goal in trying to stop the corporate compulsion to exploit and one of the real tasks for social movements these days is to find common ground rather than to get into the sort of divide and conquer strategy with one group aligning itself as, arguably, some forestry unions have with the corporate sector. TYEE Your film won the People's Choice Award at the Toronto Film Festival, among other awards. What do people say to you after they've seen "The Corporation?" ACHBAR They thank me for it. They thank me for having done the work. Some tell me they've cried. The film started out as kind of an intellectual exercise. There were a lot of arguments to be made and points to be gotten across and I think a lot of the credit has to go to my co-director Jennifer Abbott's editing and putting it together in a way that it becomes an emotional experience for people. TYEE Documentary makers like yourself, Michael Moore and Errol Morris seem to be pushing the form further and further, and as a result connecting with ever larger audiences. Are we learning more about how to convey the power of documentary, how to pack a punch? ACHBAR I don't know. I can remember crying watching [the Vietnam War documentary film] "Hearts and Minds." When was that? More than thirty years ago? People ducked when the first image of a train was shown in a movie theatre. It's a very powerful medium. But the fact that documentaries are making their way into these entertainment complexes - "The Corporation" is showing in a place called Tinseltown of all things - that's progress! TYEE Perhaps corporations themselves have helped create the hunger. In a digitally enhanced culture flooded with advertising, people might be drawn to documentaries for their promise of something authentic, real. ACHBAR Documentary film is a highly manipulative medium. But I am finding in myself lately a huge disinterest in fiction. There might be an immaculate-to-behold film, fantastically acted and the camera is amazing and I don't give a shit. I just don't care about the story. I don't care about the plight of the characters. Or I feel like I'm being manipulated and I just run the other way. These days I am engaged by things that tickle my intellect. That is my definition of entertainment these days: something that provokes me to think but captivates me also in a way that doesn't just sledgehammer me. BAKAN Non-fiction literature too is having a bit of a renaissance. I think what's happening is that there's a general sense that we're in a major crisis, that the world is in trouble and that our children may actually be inheriting a world that is in serious demise. And there's also a general sense that when you turn on the television news or pick up a newspaper or pick up a magazine, nothing is being said about that. Instead you're being sort of anesthetized about how wonderful everything is and everything's fine; buy this product and you'll be ok. That and lots of bad news, but the bad news seems random. You feel fear, but are not given any sort of way of understanding why these bad things are happening. So it's all "weather". I think what documentary filmmakers do is make an attempt - and non-fiction writing does this as well - to actually provide some understanding of the world, not just information and not just pabulum, but understanding. That's why people are thanking us at the end of the film. ACHBAR I think there's a sense of corporate claustrophobia; that from the second you wake up in the morning everything you touch, everything you ingest unless you have really disengaged from mainstream society has been touched or created in some way by a corporation. It's aggressively trying to get your kids. And I think in part my impetus for making "Manufacturing Consent" a while ago was that I felt so inundated by the media and I felt so affected by it, I wanted to feel like I had some control over it. BAKAN One of the things I have become very frustrated by -- and in my academic work I deal with it -- is that the idea of reality has come into disrepute. In the academy there's this whole notion of postmodernism. In one of its more simplistic versions, a central thesis is that everything is social construction and that there is no reality. We do construct our realities but there are still these things that we bump up against and I think the idea that there is reality has gotten lost, both in scholarship and in popular consciousness. The so-called reality shows on television for example have absolutely nothing to do with reality, and I guess don't purport to. But I also think that people in this society are very disturbed by that. In other words it's not that they've given up on the idea of reality, it's that they just don't know where to find representations of it anymore. And I think that's a very disturbing thing and it's a scary thing. ACHBAR For the people in Bolivia paying a quarter of their income to a corporation for their water, there's no confusion about what is real and what is not. In this culture many of us are perhaps removed to some degree from reality and think that we get a taste of it when a film like "The Corporation" reminds you of a lot of other people's suffering, realities other people are experiencing. There's a resonance there. You are reminded. And you get reconnected. And I think that's a part of the response to the film. In Vancouver, "The Corporation" starts its run today at the Ridge and Tinseltown theatres. David Beers is editor of The Tyee.