Canada Gazette, Part I, Volume 148, Number 20: SUPPLEMENT
May 17, 2014
COPYRIGHT BOARD
FILE: Public Performance of Sound Recordings
Statement of Royalties to Be Collected by Re:Sound in Respect of Non-Interactive and Semi-Interactive Webcasts
In accordance with subsection 68(4) of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected from Re:Sound Music Licensing Company (Re:Sound) for the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers' performances of such works pursuant to Tariff No. 8 (Non-Interactive and Semi-Interactive Webcasts) for the years 2009 to 2012.
Ottawa, May 17, 2014
GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8624 (telephone)
gilles.mcdougall@cb-cda.gc.ca (email)
STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2009 TO 2012
Tariff No. 8
NON-INTERACTIVE AND SEMI-INTERACTIVE WEBCASTS
Definitions
1. In this tariff,
“Act” means the Copyright Act, R.S.C. 1985, c. C-42, as modified; (« Loi »)
“ATH” means aggregate tuning hours, the total individual hours of programming a webcaster communicates during the relevant period to all listeners in Canada that provide audio programming consisting, in whole or in part, of sound recordings of musical works. For example, if the webcaster communicated 2 hours of programming to 10 simultaneous listeners, the webcaster's ATH would be 20; (« NTHE »)
“device” means any device capable of receiving and playing a file included in a webcast, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)
“file” means a digital file of a sound recording of a musical work, or a part thereof; (« fichier »)
“interactive webcast” refers to any webcast through which a specific file can be communicated to a member of the public at a place and at a time individually chosen by that member of the public; (« webdiffusion interactive »)
“month” means a calendar month; (« mois »)
“non-commercial webcaster” means any webcaster other than the Canadian Broadcasting Corporation, that is owned and operated by a not-for-profit organization including any campus webcaster and community webcaster, whether or not any part of the webcaster's operating costs is funded by advertising revenues; (« webdiffuseur non commercial »)
“non-interactive webcast” refers to a webcast — other than a simulcast of programming to which the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, AVLA/SOPROQ, ArtistI), the Pay Audio Services Tariff (SOCAN, NRCC) or the Satellite Radio Services Tariff (SOCAN, NRCC, CSI) applies — over which the recipient exercises no control over the content or the timing of the webcast; (« webdiffusion non interactive »)
“play” means the single performance of a file to a single person; (« écoute »)
“semi-interactive webcast” refers to a webcast — other than a simulcast of programming to which the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, AVLA/SOPROQ, ArtistI), the Pay Audio Services Tariff (SOCAN, NRCC) or the Satellite Radio Services Tariff (SOCAN, NRCC, CSI) applies, an interactive webcast or a non-interactive webcast — over which the recipient exercises some level of control over the content of the webcast or the timing of the webcast; (« webdiffusion semi-interactive »)
“webcast” means the communication in Canada, via the Internet or another digital network, to a device, of one or more files that are intended to be reproduced onto the device only to the extent required to allow listening to the files at substantially the same time as when the files are communicated; (« webdiffusion »)
“webcaster” means a person or organization who carries out a webcast; (« webdiffuseur »)
“year” means a calendar year. (« année »)
Application
2. (1) This tariff sets the royalties to be paid by a webcaster, in the years 2009 to 2012, for the communication to the public by telecommunication of published sound recordings embodying musical works and performers' performances of such works in the repertoire of Re:Sound, other than
- (a) a simultaneous transmission (or simulcast) of programming to which the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, AVLA/SOPROQ, ArtistI), the Pay Audio Services Tariff (SOCAN, NRCC) or the Satellite Radio Services Tariff (SOCAN, NRCC, CSI) applies;
- (b) an interactive webcast; and
- (c) a podcast or transmission of a program previously transmitted (whether or not it has been converted to another audio file format) for playback on a device.
(2) This tariff is not subject to the special royalty rates set out in section 68.1 of the Act.
Non-commercial Webcasters
3. (1) The royalties payable for all webcasts carried out by a non-commercial webcaster shall be $25 per year.
(2) The payment made pursuant to subsection (1) shall be accompanied by a description of the webcast services the webcaster offers or intends to offer.
(3) Except to the extent required by subsection (2), a webcaster that is subject to this section is not subject to section 9.
Canadian Broadcasting Corporation (CBC)
4. The royalties payable for any given month by CBC for non-interactive and semi-interactive webcasts subject to this tariff shall be $0.000131 per file included in a webcast, subject to a minimum of $100 per year.
Non-interactive and Semi-interactive Webcasts, other than by CBC and Non-commercial Webcasters
5. The royalties payable for any given month by a webcaster, other than CBC or a non-commercial webcaster, for any noninteractive or semi-interactive webcast shall be $0.000102 per file included in a webcast, subject to a minimum of $100 per year.
Date Payable
6. Unless otherwise provided, all royalties are due 45 days after the end of the relevant period.
7. All royalties payable under this tariff are exclusive of any applicable federal, provincial or other governmental taxes or levies of any kind.
REPORTING REQUIREMENTS
Webcaster Identification
8. No later than 45 days after the end of the first month during which a webcaster carries out a webcast pursuant to section 2, the webcaster shall provide to Re:Sound the following information:
- (a) the name of the webcaster, including
- (i) the name of the corporation, its jurisdiction of incorporation, the names of its principal officers and any other trade name under which it carries on business, or
- (ii) the name of the proprietor of an individual proprietorship;
- (b) the address of its principal place of business and, if applicable, the address of an office in Canada if the principal place of business is located outside Canada;
- (c) the name, address and email of the persons to be contacted for the purposes of notice, for the exchange of data and for the purposes of invoicing and payment;
- (d) the name and address of any authorized distributor;
- (e) the name and Uniform Resource Locator (URL) from which the webcast is or will be offered; and
- (f) the date(s) of its first non-interactive and/or semi-interactive webcast in Canada.
Music Use Information
9. (1) No later than 45 days after the end of each month, a webcaster that is required to pay royalties pursuant to sections 4 or 5 shall provide to Re:Sound, in relation to each file included in a non-interactive or semi-interactive webcast,
- (a) the title of the sound recording;
- (b) the name of each performer or group to whom the sound recording is credited;
- (c) the name of the record label or maker that released the sound recording;
and, if available,
- (d) the name of each author of the musical work;
- (e) the International Standard Recording Code (ISRC) assigned to the sound recording;
- (f) the name of the music publisher associated with the musical work;
- (g) the International Standard Musical Work Code (ISWC) assigned to the musical work;
- (h) if the sound recording was released as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
- (i) the Global Release Identifier (GRid) assigned to the sound recording and, if applicable, the GRid of the album or bundle in which the file was released;
- (j) the running time of the sound recording as webcast, in minutes and seconds;
- (k) the running time of the sound recording as listed on the album, in minutes and seconds;
- (l) any alternative title used to designate the musical work or sound recording; and
- (m) in the case of syndicated programming, the cue sheet.
(2) A webcaster shall provide, with the information set out in subsection (1), a report setting out, for that month,
- (a) the number of plays of each file; and
- (b) the total number of plays of all files.
(3) The information set out in subsections (1) and (2) shall be provided electronically, in an Excel format or in any other format agreed upon by Re:Sound and the webcaster, with a separate field for each element of information required in paragraphs 1(a) to (l).
Adjustments
10. Adjustments to any information provided pursuant to section 8 or 9 shall be provided with the next report dealing with such information.
11. (1) Subject to subsection (2), adjustments in the amount of royalties owed, including excess payments, as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.
(2) Any excess payment resulting from a webcaster providing incorrect or incomplete information about a file shall be deducted from future amounts owed for the use of sound recordings owned by the same person as the sound recording in that file.
Accounts and Records
12. (1) A webcaster, to which section 9 applies, shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that webcaster's payment under this tariff can be readily ascertained.
(2) Re:Sound may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.
(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the webcaster that was the subject of the audit.
(4) If an audit discloses that the royalties owed to Re:Sound during any reporting period have been understated by more than 10 per cent, the subject of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.
Confidentiality
13. (1) Subject to subsections (2) and (3), Re:Sound shall treat in confidence information received pursuant to this tariff, unless the person who supplied the information consents in writing to the information being treated otherwise.
(2) Re:Sound may share information referred to in subsection (1)
- (a) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Board, if Re:Sound has first provided a reasonable opportunity for the person that supplied the information to request a confidentiality order;
- (d) to the extent required to effect the distribution of royalties, with its royalty claimants; or
- (e) if required by law.
(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than a person subject to this tariff and who is not under an apparent duty of confidentiality to that person.
Interest on Late Payments
14. Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.
Addresses for Notices, etc.
15. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: licensing@resound.ca, fax number 416-962-7797, or to any other address, email address or fax number of which the sender has been notified in writing.
(2) Anything addressed to a webcaster shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.
Delivery of Notices and Payments
16. (1) A notice may be delivered by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand or by postage-paid mail.
(2) A document mailed in Canada shall be presumed to have been received three business days after the day it was mailed.
(3) A document sent by fax or email shall be presumed to have been received the day it was transmitted.
Transitional Provisions
17. (1) In the event that a webcaster, other than a noncommercial webcaster, has not implemented technology to track plays for any month during the term of the applicable tariff, the webcaster shall pay royalties to Re:Sound for that month calculated as follows:
- A × B × C
- where
- A is the number of ATH for that month,
- B is the per-play rate: $0.000131 for CBC and $0.000102 for other webcasters, and
- C is the average number of plays per hour: 3.0 if the webcaster's music use is 20 per cent or less, 12.0 if the webcaster's music use is more than 20 but less than 80 per cent, and 15.0 if the webcaster's music use is 80 per cent or more.
(2) The royalties calculation formula provided under subsection (1) shall be applicable for all relevant reporting periods under section 9 during the term of this tariff and be available to a webcaster until the earlier of
- (a) the end of the month when the webcaster started tracking plays in Canada; and
- (b) six months after certification of this tariff.
(3) A webcaster using the formula provided under subsection (1) to calculate royalties shall provide, for that month,
- (a) the ATH;
- (b) the total number of programming hours;
- (c) the total number of listeners;
and, if available, all the information set out in section 9.
18. Any amount that would otherwise be payable pursuant to this tariff on or before December 31, 2012, shall be paid no later than December 31, 2014, and shall be increased by using the relevant multiplying interest factor (based on the Bank Rate) set out in the following tables with respect to each period. Information pertaining to that same period shall be filed with the payment.
| Month | 2009 | 2010 | 2011 | 2012 |
|---|---|---|---|---|
| January | 1.0624 | 1.0560 | 1.0474 | 1.0349 |
| February | 1.0614 | 1.0555 | 1.0464 | 1.0339 |
| March | 1.0603 | 1.0551 | 1.0453 | 1.0328 |
| April | 1.0597 | 1.0547 | 1.0443 | 1.0318 |
| May | 1.0593 | 1.0543 | 1.0433 | 1.0308 |
| June | 1.0589 | 1.0539 | 1.0422 | 1.0297 |
| July | 1.0585 | 1.0533 | 1.0412 | 1.0287 |
| August | 1.0580 | 1.0524 | 1.0401 | 1.0276 |
| September | 1.0576 | 1.0516 | 1.0391 | 1.0266 |
| October | 1.0572 | 1.0505 | 1.0380 | 1.0255 |
| November | 1.0568 | 1.0495 | 1.0370 | 1.0245 |
| December | 1.0564 | 1.0485 | 1.0360 | 1.0235 |
| Year | 2009 | 2010 | 2011 | 2012 |
|---|---|---|---|---|
| 1.0510 | 1.0445 | 1.0360 | 1.0235 |