Canada Gazette, Part I, Volume 157, Number 43: SUPPLEMENT 2
October 28, 2023
SUPPLEMENT 2 Vol. 157, No. 43
Canada Gazette
Part I
OTTAWA, Saturday, October 28, 2023
COPYRIGHT BOARD
SOCAN Tariff 22.C – Other Audio Websites (2007-2018)
Citation: 2023 CB 6-T-2
See also: SOCAN Tariff 22.C (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.C – OTHER AUDIO WEBSITES (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 a site ordinarily accessed to listen to audio-only content, 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 site operator;
- (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 additionels »)
- “audio page impression”
- means a page impression that allows a person to hear music; (« consultation de page audio »)
- “channel”
- means a single transmission of content other than an “on-demand stream” (i.e. a stream selected by the end user and received at a place and time individually chosen by that end user); (« canal »)
- “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 »)
- “page impression”
- means a request to load a single page from a site; (« consultation de page »)
- “quarter”
- means from January to March, from April to June, from July to September and from October to December; (« trimestre »)
- “site”
- means a collection of pages accessible via a common root URL; (« site »)
- “SOCAN repertoire use”
- means the share of total transmission time, excluding music used in interstitial programming such as commercials, public service announcements and jingles, that uses the works in the SOCAN repertoire; (« utilisation du répertoire SOCAN »)
- “year”
- means a calendar year. (« année »)
Royalties
3. (1) The royalties payable in relation to a site ordinarily accessed to listen to audio-only content, other than a site subject to another SOCAN tariff, are
- A × B × [1 – (C × D)]
- where
- (A)
- is
- (i) 1.5% of the site’s Internet-related revenues, if the SOCAN repertoire use is 20% or less,
- (ii) 4.2% of the site’s Internet-related revenues, if the SOCAN repertoire use is between 20% and 80%, and
- (iii) 5.3% of the site’s Internet-related revenues, if the SOCAN repertoire use is 80% or more,
- (B)
- is the ratio of audio page impressions to all page impressions, if that ratio is available, and 0.5 if not,
- (C)
- is 0.95 for a Canadian site and 1 for any other site, and
- (D)
- is
- (i) the ratio of non-Canadian page impressions to all page impressions, if that ratio is available, and
- (ii) if not, 0 for a Canadian site and 0.9 for any other site,
subject to a minimum fee of
- $33.48 per year if the combined SOCAN repertoire use on the site is 20% or less,
- $94.45 per year if the combined SOCAN repertoire use is between 20% and 80%, and
- $119.56 per year if the combined SOCAN repertoire use is 80% or more.
(2) For the purposes of subsection (1), the applicable rate shall be determined by using the channel’s SOCAN repertoire use for revenues that are tracked on a per-channel basis, and by using the combined SOCAN repertoire use of all channels for all other revenues.
Reporting Requirements
Site Operator Identification
4. No later than 20 days after the earlier of the end of the first month during which a site operator communicates a file requiring a SOCAN permission, and the day before the site operator 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 it, 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 site, together with any other trade name under which the site operator 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 the site.
Sales and Music Use Reports
5. (1) No later than 20 days after the end of each month, any site operator that is required to pay royalties pursuant to this tariff shall provide to SOCAN the following information, where available:
- (a) the site’s Internet-related revenues;
- (b) the ratio of audio page impressions to all page impressions;
- (c) the ratio of non-Canadian page impressions to all page impressions;
- (d) 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.
(2) For certainty, information is “available” under subsection (1) if it is in the possession or control of the person operating the relevant online music 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 site operator 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 site operator 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 site operator 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 site operator and its authorized distributors in Canada;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Copyright Board, once the site operator 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 site operator has been notified in writing.
(2) Anything that SOCAN sends to a site operator 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) A notice or payment mailed in Canada shall be presumed to have been received four business days after the day it was mailed.
(3) A notice sent by email or by FTP shall be presumed to have been received the day it is transmitted.
(4) 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 tables 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 |
| Year | Factor |
|---|---|
| 2007 | 1.2414 |
| 2008 | 1.2115 |
| 2009 | 1.2044 |
| 2010 | 1.1956 |
| 2011 | 1.1831 |
| 2012 | 1.1706 |
| 2013 | 1.1581 |
| 2014 | 1.1460 |
| 2015 | 1.1372 |
| 2016 | 1.1295 |
| 2017 | 1.1192 |
| 2018 | 1.1022 |