Canada Gazette, Part I, Volume 152, Number 39: Supplement

September 29, 2018

COPYRIGHT BOARD

Statement of Royalties to Be Collected for the Reproduction of Musical Works Embedded into Cinematographic Works for the Purpose of Distributing Copies of These Cinematographic Works for Private Use or for Theatrical Exhibition

In accordance with section 70.15 of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected by the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) for the reproduction, in Canada, of musical works embedded into cinematographic works for the purpose of distributing copies of these cinematographic works for private use or for theatrical exhibition (Tariff 5) for the years 2009-2016.

Note: For the years 2009-2012, this tariff replaces the tariff that the Board certified on July 6, 2013, and which was suspended on October 20, 2014.

Ottawa, September 29, 2018

Gilles McDougall
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8624 (telephone)
613-952-8630 (fax)
gilles.mcdougall@cb-cda.gc.ca (email)

STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FOR THE YEARS 2009 TO 2016

Tariff No. 5

REPRODUCTION OF MUSICAL WORKS EMBEDDED INTO CINEMATOGRAPHIC WORKS FOR THE PURPOSE OF DISTRIBUTING COPIES OF THESE CINEMATOGRAPHIC WORKS FOR PRIVATE USE OR FOR THEATRICAL EXHIBITION

Short Title

• 1. This tariff may be cited as SODRAC Tariff 5 – Reproduction of Musical Works in Cinematographic Works, 2009-2016.

Definitions

• 2. In this tariff,
• "audiovisual work" means a movie, television program or other cinematographic work irrespective of its initial intended use, but excludes a work where the main content is music such as a concert, variety show, video-clip or workout show; (« œuvre audiovisuelle »)
• "distribution revenues" means any amount a distributor may receive from any person in respect of a copy made pursuant to the licence in paragraph 3(a) and containing at least one work from the repertoire for the purpose of sale or rental to a consumer for private use; (« revenus de distribution »)
• "repertoire" means the musical works for which SODRAC is entitled to grant a licence pursuant to section 3; (« répertoire »)
• "semester" means from January 1 to June 30 and from July 1 to December 31; (« semestre »)
• "SODRAC" means the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. and SODRAC 2003 Inc., acting jointly and severally. (« SODRAC »)

Application

• 3. A distributor who complies with this tariff shall be entitled to reproduce, onto one or more copies of an audiovisual work, one or more musical works of the repertoire already embedded into that audiovisual work, or to authorize such reproduction,
  • (a) for the purpose of selling or renting DVDs or other physical copies of the audiovisual work, with or without additional content, to consumers for private use; and
  • (b) in connection with the public exhibition of the audiovisual work or of a trailer of the audiovisual work.

Restrictions

• 4. (1) This tariff only authorizes the reproduction of a musical work in association with the same images with which the musical work was embedded in the audiovisual work.
• (2) For greater certainty, this tariff does not apply to activities subject to a licence in force between SODRAC and the Canadian Broadcasting Corporation / Société Radio-Canada or to activities subject to SODRAC Tariff No. 6 and SODRAC Tariff No. 7.

Royalties

Private Use

• 5. For copies intended for private use, a distributor shall pay to SODRAC 1.2% of its distribution revenues or an amount of 8¢ per copy, whichever amount is higher, for each copy delivered for sale or rental that contains a work from the repertoire in the feature presentation.

Exhibition in a Theatre

• 6. For reproductions made pursuant to paragraph 3(b), a distributor shall pay to SODRAC $100 per year.

Taxes

• 7. All royalties payable under this tariff are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

Reporting and Payment Requirements

• 8. (1) No later than 30 days after the end of a semester during which a distributor first delivers one or more copies of an audiovisual work which are made pursuant to the licence in paragraph 3(a) directly or indirectly for sale or rental to consumers for private use, the distributor shall provide to SODRAC, with respect to that audiovisual work,
  • (a) the name, address, telephone number, fax number and email address of the distributor;
  • (b) a physical or digital copy of the work or the cover of the audiovisual work;
  • (c) the reference number or numbers assigned to the audiovisual work by the distributor;
  • (d) if available, the musical cue sheet for the audiovisual work;
  • (e) the title and identification number; and
  • (f) an indication of the country where the audiovisual work was produced.
• (2) Using the information received pursuant to subsection (1) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 5 or 6.
• (3) A distributor who does not supply a musical cue sheet pursuant to paragraph (1)(d) shall collaborate with SODRAC if SODRAC attempts to secure the cue sheet from anyone, including the producer of the audiovisual work, other than another collective society. If SODRAC does not receive the cue sheet despite such collaboration, the distributor shall provide to SODRAC, if available,
  • (a) the title or titles under which the audiovisual work is offered by the distributor;
  • (b) the original title;
  • (c) if the audiovisual work is part of a series, the number or title of the episode;
  • (d) the ISAN code;
  • (e) the name of the producer or, if not known, the name of the person from whom the distributor secured the distribution rights;
  • (f) the title of each musical work embedded into the audiovisual work;
  • (g) the name of the author and composer of each musical work; and
  • (h) the duration of each musical work.
• (4) A distributor shall provide the information set out in subsection (1) or (3) with respect to each otherwise identical audiovisual work if the musical content in each such work is different.
• (5) If the information supplied pursuant to subsection (1), (3) or (4) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire from the distributor who will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including
  • (a) any alternate title, whether in the original language or not;
  • (b) the country, year and type of production;
  • (c) the theatrical or other release date; and
  • (d) the name of the director.
• 9. (1) As soon as possible after receiving the information set out in section 8, SODRAC shall notify the distributor of those audiovisual works for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the distributor a report setting out
  • (a) each musical work embedded in the audiovisual work;
  • (b) the duration of each musical work;
  • (c) for each musical work requiring a SODRAC licence, an indication to that effect;
  • (d) if SODRAC administers only part of the rights in a musical work, the fraction of rights SODRAC administers; and
  • (e) the amount of royalties payable to SODRAC for each copy of the audiovisual work sold.
• (2) At least once each semester, SODRAC shall provide a new report with respect to audiovisual works for which the information set out in paragraph (1)(c) or (d) has changed.
• 10. (1) No later than 60 days after receiving the report pursuant to section 9, a distributor shall provide to SODRAC, with respect to each audiovisual work that is mentioned in a report received pursuant to section 9 before the end of the semester and a copy of which was sold during the semester, the following information relating to that semester:
  • (a) the reference number or numbers assigned to it by the distributor;
  • (b) the title or titles under which it is offered by the distributor;
  • (c) if already supplied, the ISAN code;
  • (d) the number of copies sold;
  • (e) if the audiovisual work was withdrawn from the catalogue during the semester, a mention to this effect;
  • (f) the number of video-copies delivered;
  • (g) the price received from the wholesaler or the retailer for the video-copy; and
  • (h) the total distribution revenues.
• (2) A distributor shall forward to SODRAC the royalties payable in respect of a copy at the same time as the information set out in subsection (1) in respect of that copy.
• (3) Royalties payable pursuant to section 6 are due no later than January 31 of the relevant year.

Repertoire Disputes

• 11. (1) A distributor who disputes the indication in a report received pursuant to section 9 that a musical work requires a SODRAC licence shall provide to SODRAC the information on which the distributor relies to conclude that the licence is not required, unless the information was provided earlier. Upon reception of that information from the distributor, if SODRAC disputes the distributor's claim that no SODRAC licence is required for a musical work, SODRAC shall provide to a distributor whatever evidence it has in its possession or control in support of its position.
• (2) A distributor who disputes the indication more than 20 days after receiving a report pursuant to section 9 is not entitled to interest on the amounts found to be owed to the distributor based on errors, omissions or adjustments.

Accounts and Records

• 12. (1) A distributor and SODRAC shall keep and preserve, for a period of four years after the end of the semester to which they relate, records from which the information set out in sections 8 to 10 can be readily ascertained.
• (2) SODRAC may audit these records at any time during the period set out in subsection (1) on notice of 10 business days and during normal business hours.
• (3) SODRAC shall, upon receipt, supply to the distributor a copy of the audit report.
• (4) If an audit discloses that royalties have been understated in any semester by more than 10 per cent, the distributor shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

• 13. (1) Subject to subsections (2) and (3), SODRAC shall treat in confidence information received from a distributor pursuant to this tariff, unless the distributor who supplied the information consents in writing to the information being treated otherwise.
• (2) SODRAC may share information referred to in subsection (1)
  • (a) with the Copyright Board;
  • (b) in connection with proceedings before the Copyright Board, if SODRAC has first provided a reasonable opportunity for the distributor providing the information to request a confidentiality order;
  • (c) to the extent required to effect the distribution of royalties, with a collective society or with a royalty claimant; or
  • (d) if ordered by law.
• (3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than a distributor and who is not under an apparent duty of confidentiality to that distributor.

Adjustments

• 14. 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.

Interest on Late Payments

• 15. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.
• (2) Any overpayment resulting from an error or omission on the part of SODRAC shall bear interest from the date of the overpayment until the overpayment is refunded.
• (3) For the purposes of this section, if a report provided pursuant to section 8 is filed late, no account is taken of the time between the date the report should have been filed and the date it is filed for the purposes of determining whether the corresponding report provided pursuant to section 9 was received before the end of a semester for the purposes of section 10.
• (4) Any amount owing by a distributor as a result of an error or omission on the part of SODRAC shall not bear interest until 30 days after SODRAC has corrected the error or omission and notified the distributor of such correction.
• (5) 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.

Delivery of Notices and Payments

• 16. (1) Anything that a distributor sends to SODRAC pursuant to section 8 or 10 shall be sent by email to audiovisuel@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 33 Milton Street, Suite 500, Montréal, Quebec H2X 1V1, Attn: Senior Legal Counsel, email: licence@socan.com, fax: 514-849-8446 or to any other address of which the distributor has been notified in writing.
• (2) Anything that SODRAC sends to a distributor shall be sent to the last address, fax number or email address of which SODRAC has been notified in writing.
• 17. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email or by File Transfer Protocol (FTP).
• (2) To the extent possible, information that a distributor provides pursuant to section 8 or 10 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the distributor. Each type of information shall be provided in a separate field.
• (3) A notice or payment mailed in Canada shall be presumed to have been received four business days after the day it was mailed.
• (4) A notice sent by fax, by email or by FTP shall be presumed to have been received the day it is transmitted.

Transitional Provisions

• 18. (1) Any information that a distributor must provide pursuant to section 8 with respect to 2009 to 2016 shall be provided no later than December 14, 2018. The delays within which anything to be provided pursuant to sections 9 and 10 with respect to these same periods are adjusted accordingly.
• (2) SODRAC shall account for any royalties a distributor has paid for the periods referred to in subsection (1) at the same time as it reports the information to be provided pursuant to section 9 with respect to the relevant audiovisual works.
• (3) With respect to any reporting requirement concerning a transaction occurring on or before December 31, 2016, "available" shall be deemed to mean "readily available."
• (4) Royalties payable pursuant to section 6 with respect to 2009 to 2016 are due on December 14, 2018.