Vol. 145, No. 21 — May 21, 2011
ARCHIVED — Supplement
COPYRIGHT BOARD
FILE: Reproduction of Sound Recordings
Statement of Proposed Royalties to Be Collected for the Reproduction of Sound Recordings, in Canada, for the Years 2012 to 2017
In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by AVLA Audio-Visual Licensing Agency (AVLA) and the Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (SOPROQ) on March 31, 2011 with respect to royalties they propose to collect, effective January 1, 2012, for the reproduction of sound recordings, in Canada, by commercial radio stations for the years 2012 to 2017.
In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the statement may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than July 20, 2011.
Ottawa, May 21, 2011
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 FROM COMMERCIAL RADIO STATIONS BY AVLA AUDIO-VIDEO LICENSING AGENCY INC. AND THE SOCIÉTÉ DE GESTION COLLECTIVE DES DROITS DES PRODUCTEURS DE PHONOGRAMMES ET DE VIDÉOGRAMMES DU QUÉBEC (AVLA/SOPROQ) FOR THE REPRODUCTION OF SOUND RECORDINGS, IN CANADA, FOR THE YEARS 2012 TO 2017
Short Title
1. This tariff may be cited as the AVLA/SOPROQCommercial Radio Tariff, 2012-2017.
Definitions
2. In this tariff,
“Act” means the Copyright Act; (« Loi »)
“gross income” means the gross amounts paid by any person for the use of one or more broadcasting services or facilities provided by a station’s operator, excluding the following:
- (a) income accruing from investments, rents or any other business unrelated to the station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station’s broadcasting services and facilities or which results in their being used, including the gross amounts received by a station pursuant to turn-key contracts with advertisers, shall be included in the “gross income”;
- (b) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the station can establish that the station was also paid normal fees for station time and facilities; and
- (c) amounts received by an originating station acting on behalf of a group of stations, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station subsequently pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station’s “gross income”; (« revenus bruts »)
“low-use station” means a station that
- (a) broadcasts published sound recordings of musical works for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and
- (b) keeps and makes available to AVLA/SOPROQ complete recordings of its last 90 broadcast days; (« station utilisant peu d’enregistrements sonores »)
“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)
“reference month” means the second month before the month for which royalties are being paid; (« mois de référence »)
“year” means a calendar year. (« année »)
Application
3. This tariff sets the royalties to be paid each month by commercial radio stations, in connection with the over-the-air broadcasting operations of a station, to reproduce in Canada sound recordings in the repertoire of AVLA or SOPROQ, including performers’ performances embodied therein which AVLA or SOPROQ administer on behalf of the makers or other rights holders of the sound recordings.
4. This tariff does not authorize the use of any reproduction made pursuant to section 3 in association with a product, service, cause or institution.
Royalties
5. A low-use station shall pay to AVLA/SOPROQ on its gross income for the reference month, 0.15 per cent of the station’s first $625,000 gross income in a year, 0.288 per cent of the station’s next $625,000 gross income in a year and 0.482 per cent on the rest.
6. Except as provided in section 5, a station shall pay to AVLA/SOPROQ on its gross income for the reference month, 0.338 per cent of the station’s first $625,000 gross income in a year, 0.663 per cent of the station’s next $625,000 gross income in a year and 1.375 per cent on the rest.
7. All royalties are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
8. For the purposes of determining royalties payable under sections 5 and 6, where two or more stations, including low-use stations, are owned by the same company, the station shall pay royalties based on the total combined gross income for the year of all of the stations owned by the company.
Reporting Requirements
9. No later than the first day of each month, a station shall
- (a) pay the royalties for that month; and
- (b) report the station’s gross income for the reference month.
10. At any time during the period set out in subsection 12(2), AVLA/SOPROQ may require the production of any contract granting rights referred to in paragraph (b) of the definition of “gross income”, together with the billing or correspondence relating to the use of these rights by other parties.
Information on Repertoire Use
11. (1) No later than the 14th day of each month, a station shall provide to AVLA/SOPROQ the sequential lists of all musical works and published sound recordings broadcast during the previous month. Each entry shall include the following information:
- (a) the date of the broadcast;
- (b) the time of the broadcast;
- (c) the title of the sound recording;
- (d) the title of the album;
- (e) the catalogue number of the album;
- (f) the track number on the album;
- (g) the record label;
- (h) the name of the author and composer;
- (i) the name of all performers or the performing group;
- (j) the duration of the sound recording broadcast, in minutes and seconds;
- (k) the duration of the sound recording as listed on the album, in minutes and seconds;
- (l) the Universal Product Code (UPC) of the album;
- (m) the International Standard Recording Code (ISRC) of the sound recording;
- (n) the type of usage (feature, theme, background, etc.);
- (o) whether the track is a published sound recording; and
- (p) the cue sheets for all syndicated programming, inserted into the Excel report.
(2) The information set out in subsection (1) shall be provided electronically, in Excel format or in any other format agreed upon by AVLA/SOPROQ and the station, with a separate field for each piece of information required in paragraphs (1)(a) to (p).
Records and Audits
12. (1) A station shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in subsection 11(1) can be readily ascertained.
(2) A station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the station’s gross income can be readily ascertained.
(3) AVLA/SOPROQ may audit these records at any time during the period set out in subsection (1) or (2), on reasonable notice and during normal business hours.
(4) AVLA/SOPROQ shall, upon receipt, supply a copy of the report of the audit to the station that was the object of the audit.
(5) If an audit discloses that royalties due have been understated in any month by more than 10 per cent, the station 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), AVLA/SOPROQ shall treat in confidence information received pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.
(2) Information referred to in subsection (1) may be shared
- (a) with any other collective society in Canada that has secured a certified tariff applicable to commercial radio stations;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Board, if the station had the opportunity to request a confidentiality order;
- (d) to the extent required to effect the distribution of royalties, with royalty claimants; or
- (e) if ordered by law.
(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than the station and who is not under an apparent duty of confidentiality to the station.
14. (1) A station making a payment under this tariff, that subsequently discovers an error in the payment, shall notify AVLA/ SOPROQ of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the station which occurred more than 12 months prior to its discovery and notification to AVLA/ SOPROQ.
(2) When an error is discovered by AVLA/SOPROQ at any point in time, AVLA/SOPROQ shall notify the station to which the error applies, and an appropriate adjustment shall be made to the next payment due following notification.
(3) The 12-month limit in subsection (1) shall not apply to an error discovered by AVLA/SOPROQ, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 12(3).
Interest and Penalties on Late Payments and Reporting
15. (1) In the event that a station does not pay the amount owed under paragraph 9(a) or provide the report required by paragraph 9(b) by the due date, the station shall pay to AVLA/ SOPROQ interest calculated on the amount owed from the due date until the date both the amount and the report are received by AVLA/SOPROQ. 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.
(2) In the event that a station does not provide the sequential lists required by section 11 by the due date, the station shall pay to AVLA/SOPROQ a late fee of $50.00 per day from the due date until the date the sequential lists are received by AVLA/ SOPROQ.
Addresses for Notices, etc.
16. (1) Anything addressed to AVLA shall be sent to 85 Mowat Avenue, Toronto, Ontario M6K 3E3, email: radioreproduction@ avla.ca, fax number: 416-967-9415, or to any other address, email address or fax number of which a station has been notified in writing.
(2) Anything addressed to SOPROQ shall be sent to 6420 Saint-Denis Street, Montréal, Quebec H2S 2R7, email: radioreproduction@soproq.org, fax number: 514-842-7762, or to any other address, email address or fax number of which a station has been notified in writing.
(3) Anything addressed to a station shall be sent to the last address, email address or fax number of which a collective society has been notified in writing.
Delivery of Notices and Payments
17. (1) Royalties payable to AVLA/SOPROQ are paid to AVLA. All other information to which AVLA/SOPROQ is entitled pursuant to this tariff is delivered to AVLA and SOPROQ separately.
(2) 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 or by electronic bank transfer. Where payment is made by electronic bank transfer, the reporting required under paragraph 9(b) shall be provided concurrently to AVLA/ SOPROQ by email.
(3) Information set out in section 11 shall be sent by email.
(4) Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed.
(5) Anything sent by fax or by email shall be presumed to have been received the day it was transmitted.