Vol. 149, No. 13 — March 28, 2015

COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings 2008-2012

Statement of Royalties to Be Collected by Re:Sound in Respect of the Use of Recorded Music to Accompany Fitness Activities

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 by 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. 6.B (Use of Recorded Music to Accompany Fitness Activities) for the years 2008 to 2012.

Note:

This tariff replaces the tariff that the Board certified on July 7, 2012, and that was set aside in part by the Federal Court of Appeal on February 24, 2014. Sections 4 and 6 in this tariff are identical to sections 2 and 4, respectively, of Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Physical Activities), 2008-2012, certified by the Board on July 7, 2012. They are reproduced herein for convenience.

Ottawa, March 28, 2015

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 PERFORMANCE IN PUBLIC OR 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 2008 TO 2012

Tariff No. 6.B

USE OF RECORDED MUSIC TO ACCOMPANY FITNESS ACTIVITIES

Short Title

1. This tariff may be cited as the Re:Sound Fitness Tariff, 2008-2012.

Definitions

2. In this tariff,

“dance class” means a lesson in dance instruction, including, without limitation, ballet, jazz, tap and ballroom dance; (« cours de danse »)

“fitness activity” means any form of physical exercise, sport or dance, including, but not limited to, fitness classes, dance classes, gymnasium workouts, weight training, circuit training, cardio training, running, swimming, martial arts, gymnastics and rock climbing; (« activité de conditionnement physique »)

“fitness class” means a lesson in a structured form of exercise, conducted in a class environment under the direction of an instructor, including, but not limited to, aerobics, circuit training, boot camp, aqua fitness, cardio, flexibility, stretching and abdominal exercises (including yoga, Pilates and tai chi), step, dance-exercise (including hip-hop and Zumba), group cycling and spinning, strength, toning and resistance exercise, boxing, combat and martial arts activities, age, lifestyle and specialty exercise classes, and swimming; (« cours de conditionnement physique »)

“fitness venue” means an indoor or outdoor venue where a fitness activity is undertaken, including, without limitation, fitness centres, gymnasiums, health clubs, leisure and recreation centres, community centres, and aquatic centres; (« lieu de conditionnement physique »)

“member” means a person who is entitled to participate in a fitness activity at the fitness venue, whether or not for a fee and includes daily, weekly, bi-weekly, monthly and annual memberships, as well as persons who attend on a per visit or class basis or per package of visits or classes; (« membre »)

“skating venue” means an indoor or outdoor venue that provides roller or ice skating, excluding sporting events and ice shows which are subject to Re:Sound Tariff No. 5 (Use of Music to Accompany Live Events); (« lieu de patinage »)

“third-party music supplier” means a person who provides a paid subscription service of supplying recorded music for performance in public by a fitness venue dealing at arm’s length; (« fournisseur tiers de musique »)

“venue” means a single location and includes a venue operating within a multipurpose facility, such as a hotel or campus; (« lieu »)

“year” means a calendar year. (« année »)

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2008 to 2012, of published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound (“recorded music”), in fitness venues and skating venues and to accompany a fitness activity, including fitness classes and dance classes.

(2) This tariff does not apply to uses of recorded music that are subject to another Re:Sound tariff, including Tariff 5 (Use of Music to Accompany Live Events) and Tariff 6.A (Use of Recorded Music to Accompany Dance).

(3) This tariff is subject to the exception set out in subsection 69(2) of the Copyright Act, R.S.C. 1985, c. C-42, as modified.

Background Music (Fitness Venues)

4. Notwithstanding subsection 3(2) of the NRCC Background Music Tariff, 2003-2009, the royalties payable for the use of recorded music in connection with weight training, cardiovascular training, circuit training and other similar activities, other than during a fitness class, are determined pursuant to the NRCC Background Music Tariff, 2003-2009.

Fitness Classes and Dance Classes

5. (1) The royalty payable to Re:Sound for the use of recorded music during fitness classes and dance classes is determined as follows: for each fitness class and dance class in which recorded music is performed, provided at any time during the particular calendar year, an amount per class multiplied by the number of classes held during the year as follows:

Year Amount Per Class
2008 31.0¢
2009 31.9¢
2010 32.8¢
2011 33.8¢
2012 34.8¢

(2) Royalties payable in respect of fitness classes and dance classes held within or under the administration of a fitness venue are payable by the venue. All other fitness classes and dance classes are payable by the instructor or organization holding or organizing the class.

(3) Royalties payable pursuant to subsection (1) for any given year are due no later than on January 31 of the following year and shall be accompanied with a report indicating:

(4) For greater certainty, the use of recorded music during fitness classes and dance classes is not subject to section 4.

Skating

6. (1) The royalty payable to Re:Sound for the use of recorded music in connection with roller or ice skating is as follows:

(2) Royalties payable pursuant to subsection (1) for any given year shall be payable no later than on January 31 of the following year. The payment shall be accompanied with a report indicating the name and address of the venue, the name and contact information of the person operating the venue, as well as the gross receipt from admissions, exclusive of sales and amusement taxes, for the previous year.

Taxes

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

Accounts and Records

8. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’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 person who 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

9. (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)

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, 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 with respect to the supplied information.

Interest on Late Payments

10. 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.

11. (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 person subject to this tariff 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

12. (1) A notice may be delivered by hand, by postage-paid mail, by email, by fax or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail, or by electronic bank transfer (EBT), provided the associated reporting is provided concurrently to Re:Sound by email.

(2) A document mailed in Canada shall be presumed to have been received four 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 Provision

13. Royalties owed (including excess payments) on or before December 31, 2012, as a result of differences between this tariff and Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Physical Activities), 2008-2012, certified on July 7, 2012, shall be due on June 30, 2015, and shall be increased by using the multiplying interest factor (based on the Bank Rate) set out in the following table with respect to each period. Information pertaining to that same period shall be filed with the payment and shall be supplied only if it is available. If the number of fitness classes and dance classes is not known or cannot be reasonably determined, a reasonable estimate of the number of classes held will be provided.

Multiplying factors applicable to quarterly payments:

  Q1 Q2 Q3 Q4
2008 1.1002 1.0900 1.0819 1.0737
2009 1.0681 1.0654 1.0642 1.0629
2010 1.0617 1.0604 1.0590 1.0563
2011 1.0531 1.0500 1.0469 1.0438
2012 1.0406 1.0375 1.0344 1.0313

Multiplying factors applicable to yearly payments:

2008 2009 2010 2011 2012
1.1033 1.0712 1.0648 1.0563 1.0438