Canada Gazette, Part I, Volume 157, Number 43: SUPPLEMENT 1
October 28, 2023
SUPPLEMENT 1 Vol. 157, No. 43
Canada Gazette
Part I
OTTAWA, Saturday, October 28, 2023
COPYRIGHT BOARD
SOCAN Tariff 22.B – Commercial Radio and Satellite Radio (2007-2018)
Citation: 2023 CB 6-T-1
See also: SOCAN Tariff 22.B (2007-2018), 2023 CB 6
Published pursuant to section 70.1 of the Copyright Act
Lara Taylor
Secretary General
1‑833‑860‑7131 (toll-free number)
registry-greffe@cb-cda.gc.ca (email)
SOCAN TARIFF 22.B – COMMERCIAL RADIO AND SATELLITE RADIO (2007-2018)
Application
1. This tariff sets the royalties to be paid for the communication to the public by telecommunication of works in SOCAN’s repertoire, including making works available to the public by telecommunication in a way that allows a member of the public to have access to them from a place and at a time individually chosen by that member of the public, by means of the communication of audio works on the Internet by a broadcaster that is subject to Tariff 1.A (Commercial Radio Tariff) and by a satellite radio service provider that is subject to Tariff 25 (Satellite Radio Services Tariff), in 2007 to 2018.
Definitions
2. In this tariff,
- “additional information”
- means, in respect of each musical work contained in a file, the following information:
- (a) the musical work’s identifier, that is, the unique identifier assigned by a service provider;
- (b) the title of the musical work;
- (c) the name of each author of the musical work;
- (d) the name of each performer or group to whom the sound recording is credited;
- (e) the name of the person who released the sound recording contained in the file;
- (f) the International Standard Recording Code (ISRC) assigned to the sound recording;
- (g) if the sound recording is or has been released in physical format as part of an album, the name, identifier, product catalogue number and the Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
- (h) the name of the music publisher associated with the musical work;
- (i) the International Standard Musical Work Code (ISWC) assigned to the musical work;
- (j) the Global Release Identifier (GRid) assigned to the musical work and, if applicable, the GRid of the album or bundle in which the musical work was released;
- (k) the running time of the musical work, in minutes and seconds; and
- (l) any alternative title used to designate the musical work or sound recording. (« renseignements additionnels »)
- “audio page impression”
- means a page impression that allows a person to hear music; (« consultation de page audio »)
- “file”
- means a digital file of a sound recording of a musical work; (« fichier »)
- “Internet-related revenues”
- means all revenues generated by Internet-related activities, including membership, subscription and other access fees, advertising, product placement, promotion, sponsorship, net revenues from the sale of goods or services and commissions on third-party transactions, but excluding
- (a) revenues that are already included in calculating royalties pursuant to another SOCAN tariff;
- (b) revenues generated by an Internet-based activity that is subject to another SOCAN tariff;
- (c) agency commissions;
- (d) the fair market value of any advertising production services provided by the user; and
- (e) network usage and other connectivity access fees. (« recettes d’Internet »)
- “on-demand stream”
- means a stream selected by the end user and received at a place and time individually chosen by that end user; (« transmission sur demande »)
- “page impression”
- means a request to load a single page from a site; (« consultation de page »)
- “play”
- means a single delivery of a semi-interactive stream or on-demand stream; (« écoute »)
- “quarter”
- means a period from January to March, from April to June, from July to September and from October to December; (« trimestre »)
- “semi-interactive stream”
- means a stream delivered by an information filtering system that allows the end user to influence the content of the streams, the timing of the transmission of the streams, or both; (« transmission semi-interactive »)
- “site”
- means a collection of pages accessible via a common root URL; (« site »)
- “stream”
- means a file that is intended to be copied onto a local storage device only to the extent required to allow listening to the file at substantially the same time as when the file is received; (« transmission »)
- “subscriber”
- means an end user with whom an online service provider or its authorized distributor has entered into a contract for service other than on a transactional per-stream basis, whether for a fee, for other consideration, or free of charge, including pursuant to a free subscription. (« abonné »)
Royalties
Commercial Radio
3. (1) The royalties payable for the communication of musical works on the Internet by a broadcaster that is subject to Tariff 1.A (Commercial Radio) are as follows:
- A × B × C
- where
- (A)
- is the rate applicable to the broadcaster pursuant to Tariff 1.A,
- (B)
- is the broadcaster’s Internet-related revenues, and
- (C)
- is the ratio of audio page impressions to all page impressions, if that ratio is available, and 0.5 if not.
Satellite Radio Services
(2) The royalties payable for the communication of musical works on the Internet by a satellite radio service provider that is subject to the Satellite Radio Services Tariff are
- A × B × C × (1 − D)
- where
- (A)
- is the rate applicable to the satellite radio service provider pursuant to the tariff mentioned above in subsection (2),
- (B)
- is the service provider’s Internet-related revenues,
- (C)
- is
- (i) the ratio of audio page impressions to all page impressions, if that ratio is provided to SOCAN; and
- (ii) if not, 0.5.
- (D)
- is
- (i) 0 for a Canadian service;
- (ii) for any other service, the ratio of non-Canadian page impressions to all page impressions, if that ratio is provided to SOCAN and 0.9 if not.
Reporting Requirements
Service Provider Identification
4. No later than 20 days after the earlier of the end of the first month during which a service provider communicates a file requiring a SOCAN permission and the day before the service provider first makes such a file available to the public, the service provider shall provide to SOCAN the following information:
- (a) the name of the person who operates the service, including
- (i) if a corporation, its name and a mention of its jurisdiction of incorporation,
- (ii) if a sole proprietorship, the name of the proprietor,
- (iii) if a partnership, the names of each partner, and
- (iv) in any event, the names of the principal officers or operators of the service or any other service, together with any other trade name under which the service carries on business;
- (b) the address of its principal place of business;
- (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 of royalties;
- (d) the name and address of any authorized distributor; and
- (e) the Uniform Resource Locator (URL) of each Internet site at or through which the service is or will be offered.
Sales and Music Use Reports
5. (1) No later than 20 days after the end of each month, any service provider that is required to pay royalties pursuant to this tariff shall provide to SOCAN the following information, where available:
- (a) the service provider’s Internet-related revenues;
- (b) the ratio of audio page impressions to all page impressions; and
- (c) a report setting out, for that month, in relation to each file that was delivered, the following information:
- (i) the number of plays of each file,
- (ii) the total number of plays of all files, and
- (iii) the additional information as defined in section 2.
And if the service provider offers subscriptions in connection with its provision of streams, the service provider shall provide the following information:
- (iv) the number of subscribers to the service at the end of the month and the total amounts paid by them during that month, and
- (v) the number of subscribers provided with free trial subscriptions and the total number of plays of all files by such subscribers as streams.
(2) For certainty, information is “available” under subsection (1) if it is in the possession or control of the person operating the relevant service, regardless of the form or the way in which it was obtained.
Calculation and Payment of Royalties
6. Royalties shall be due no later than 20 days after the end of each month. All amounts payable under this tariff are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
Adjustments
7. Adjustments to any information provided pursuant to sections 4 and 5 shall be provided with the next report dealing with such information.
8. 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.
Records and Audit
9. (1) A service provider shall keep and preserve, for a period of six years after the end of the month to which they relate, records from which the information set out in sections 4 and 5 can be readily ascertained.
(2) SOCAN may audit these records at any time during the period set out in subsection (1) on reasonable notice and during normal business hours.
(3) Subject to subsection (4), if an audit discloses that royalties due have been understated in any quarter by more than 10%, the service provider shall pay the reasonable costs of the audit within 30 days of the demand for such payment.
(4) For the purposes of subsection (3), any amount owing as a result of an error or omission on the part of SOCAN shall not be taken into account.
Confidentiality
10. (1) Subject to subsections (2) and (3), SOCAN, the service provider and its authorized distributors shall treat in confidence information received pursuant to this tariff, unless the disclosing party consents in writing to the information being treated otherwise.
(2) Information referred to in subsection (1) may be shared
- (a) between the service provider and its authorized distributors in Canada;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Copyright Board, once the service provider has had a reasonable opportunity to request a confidentiality order;
- (d) with any person who knows or is presumed to know the information;
- (e) to the extent required to effect the distribution of royalties, with royalty claimants; and
- (f) if required by law.
(3) Subsection (1) does not apply to information that must be provided pursuant to section 67.2 of the Copyright Act.
Interest on Late Payments
11. 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 1% 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
12. (1) Anything addressed to SOCAN shall be sent to 41 Valleybrook Drive, Toronto, Ontario M3B 2S6, email: licence@socan.com, or to any other address or email address of which a service provider has been notified in writing.
(2) Anything that SOCAN sends to a service provider shall be sent to the last address or email address of which SOCAN has been notified in writing.
Delivery of Notices and Payments
13. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by email or by File Transfer Protocol (FTP).
(2) Information provided pursuant to sections 4 and 5 shall be delivered electronically, by way of delimited text file or in any other format agreed upon by SOCAN and the service provider.
(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 email or by FTP shall be presumed to have been received the day it is transmitted.
(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.
Transitional Provisions
14. (1) Section 9 shall apply after the tariff’s publication date.
(2) Notwithstanding subsection (1), section 9 applies if the relevant information was kept and is available at the tariff’s publication date.
15. Any amount owed under this tariff shall be due on January 28, 2024, and shall be increased by using the interest factors (based on the Bank Rate as published by the Bank of Canada) set out in the following table with respect to each period.
| 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 1 | 1.2808 | 1.2350 | 1.2061 | 1.2006 | 1.1912 | 1.1787 | 1.1662 | 1.1537 | 1.1414 | 1.1329 | 1.1254 | 1.1150 |
| 2 | 1.2770 | 1.2317 | 1.2054 | 1.2002 | 1.1901 | 1.1776 | 1.1651 | 1.1526 | 1.1405 | 1.1323 | 1.1248 | 1.1137 |
| 3 | 1.2733 | 1.2287 | 1.2048 | 1.1997 | 1.1891 | 1.1766 | 1.1641 | 1.1516 | 1.1397 | 1.1316 | 1.1241 | 1.1125 |
| 4 | 1.2695 | 1.2259 | 1.2043 | 1.1993 | 1.1880 | 1.1755 | 1.1630 | 1.1505 | 1.1389 | 1.1310 | 1.1235 | 1.1112 |
| 5 | 1.2658 | 1.2232 | 1.2039 | 1.1988 | 1.1870 | 1.1745 | 1.1620 | 1.1495 | 1.1380 | 1.1304 | 1.1229 | 1.1100 |
| 6 | 1.2619 | 1.2204 | 1.2035 | 1.1981 | 1.1860 | 1.1735 | 1.1610 | 1.1485 | 1.1373 | 1.1298 | 1.1222 | 1.1086 |
| 7 | 1.2580 | 1.2177 | 1.2031 | 1.1973 | 1.1849 | 1.1724 | 1.1599 | 1.1474 | 1.1366 | 1.1291 | 1.1214 | 1.1072 |
| 8 | 1.2540 | 1.2150 | 1.2027 | 1.1964 | 1.1839 | 1.1714 | 1.1589 | 1.1464 | 1.1360 | 1.1285 | 1.1204 | 1.1057 |
| 9 | 1.2501 | 1.2126 | 1.2022 | 1.1953 | 1.1828 | 1.1703 | 1.1578 | 1.1453 | 1.1354 | 1.1279 | 1.1194 | 1.1042 |
| 10 | 1.2461 | 1.2104 | 1.2018 | 1.1943 | 1.1818 | 1.1693 | 1.1568 | 1.1443 | 1.1348 | 1.1273 | 1.1183 | 1.1026 |
| 11 | 1.2423 | 1.2087 | 1.2014 | 1.1932 | 1.1807 | 1.1682 | 1.1557 | 1.1432 | 1.1341 | 1.1266 | 1.1173 | 1.1009 |
| 12 | 1.2386 | 1.2073 | 1.2010 | 1.1922 | 1.1797 | 1.1672 | 1.1547 | 1.1423 | 1.1335 | 1.1260 | 1.1162 | 1.0993 |