Vol. 150, No. 25 — June 18, 2016

COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings

Statement of Proposed Royalties to Be Collected 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

In accordance with subsection 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by Re:Sound Music Licensing Company (Re:Sound) on March 30, 2016, with respect to royalties it proposes to collect, effective January 1, 2017, 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.

In accordance with the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than August 17, 2016.

Ottawa, June 18, 2016

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 PROPOSED ROYALTIES TO BE COLLECTED FROM NON-COMMERCIAL RADIO STATIONS BY 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 FOR THE YEARS 2017 TO 2021

Tariff No. 1

RADIO

B. Non-Commercial Radio Other than the Canadian Broadcasting Corporation

Note (This note is not part of the proposed tariff.)

Subsection 68.1(1)(b) of the Copyright Act provides that, notwithstanding the tariffs approved by the Board, community systems shall pay royalties of $100 in respect of each year for the communication to the public by telecommunication of performers’ performances of musical works, or of sound recordings embodying such performers’ performances. Pursuant to this provision, Re:Sound recognizes that, notwithstanding this tariff filed with respect to non-commercial radio stations, community systems are required to pay only $100 in respect of each year.

Short Title

1. This tariff may be cited as the Re:Sound Non-Commercial Radio Tariff, 2017-2021.

Definitions

2. In this tariff,

“gross operating costs” means all direct expenditures of any kind and nature (whether in money or other form) incurred by the non-commercial radio station or on its behalf in connection with the products and services that are subject to this tariff; (« coûts bruts d’opération »)

“non-commercial radio station” means any radio station that transmits in analog or digital mode, whether in the A.M. or F.M. frequency band or in any other range assigned by the Minister under section 5 of the Radiocommunication Act other than a Canadian Broadcasting Corporation radio station, that is owned and operated by a not-for-profit organization including any campus station, community station, native station, or ethnic station owned and operated by a not-for-profit organization, whether or not any part of the station’s gross operating costs is funded by advertising revenues, and whether or not the station is licensed by the Canadian Radio-television and Telecommunications Commission; (« station de radio non commerciale »)

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

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound by non-commercial radio stations for the communication to the public by telecommunication, in Canada, for private or domestic use, of published sound recordings embodying musical works and performers’ performances of such works, by over-the-air radio broadcasting, for the years 2017 to 2021.

(2) This tariff does not apply to a communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network, to a device including computers, digital media players, cellular phones, smartphones and tablets. For greater certainty, this tariff does not apply to simulcasts, non-interactive webcasts or semi-interactive webcasts by non-commercial radio stations, which are subject to Re:Sound Tariff 8.

(3) This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including Re:Sound Tariffs 1.A, 1.C and 8.

(4) This tariff is subject to the special royalty rates set out in paragraph 68.1(1)(b) of the Copyright Act.

Royalties

4. (1) The royalties payable to Re:Sound by a non-commercial radio station in respect of each year shall be 2 per cent of the non-commercial radio station’s annual gross operating costs for that year.

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

Payments and Reporting

5. (1) No later than January 1st of each year, a non-commercial radio station shall pay the estimated fee owing for that year. The fee is subject to adjustment when the actual gross operating costs for the year have been determined and reported to Re:Sound.

(2) With each payment, a non-commercial radio station shall forward to Re:Sound a written certified declaration of the actual gross operating costs of the non-commercial radio station for the previous year.

(3) No later than the 14th day of each month, a non-commercial radio station shall provide to Re:Sound, the sequential lists of all musical works and published sound recordings or parts thereof, broadcast during the previous month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry shall include the following information:

(4) The information set out in subsection (3) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the station, with a separate field for each piece of information required in paragraphs (3)(a) to (o).

Records and Audits

6. (1) A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records and logs from which the information set out in subsection 5(3) can be readily ascertained.

(2) A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, accounts and records from which the calculation of the station’s annual gross operating costs can be readily ascertained.

(3) Re:Sound may audit these accounts, records and logs at any time during the period set out in subsections 6(1) and 6(2), on reasonable notice and during normal business hours.

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the non-commercial radio station which was the subject of the audit and to any other Canadian collective society with a tariff applicable to non-commercial radio stations.

(5) If an audit discloses that royalties due to Re:Sound have been understated in any year by more than 10 per cent, the noncommercial radio station which was the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Interest on Late Payments

7. 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.

Adjustments

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. Excess payments are not subject to interest.

Confidentiality

9. (1) Subject to subsections 9(2) and 9(3), information received from a non-commercial radio station pursuant to this tariff shall be treated in confidence, unless the station consents in writing to the information being treated otherwise.

(2) Information received from a non-commercial radio station pursuant to this tariff may be shared

(3) Subsection 9(1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the non-commercial radio station that supplied the information and who is not under an apparent duty of confidentiality to that station with respect to the supplied information.

Delivery of Notices and Payments

10. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, fax number 416-962-7797, email: radio@resound.ca, or to any other address, email address or fax number of which the non-commercial radio station has been notified in writing.

(2) Anything addressed to a non-commercial radio station shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

(3) 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 delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting shall be provided concurrently to Re:Sound by email.

(4) The information set out in subsection 5(3) shall be sent by email.

(5) Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed. Anything sent by fax, by email, by FTP or by EBT shall be presumed to have been received the day it was transmitted.

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED FROM THE CANADIAN BROADCASTING CORPORATION BY 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 FOR THE YEARS 2017-2019

Tariff No. 1

RADIO

C. Canadian Broadcasting Corporation (CBC)
Short Title

1. This tariff may be cited as the Re:Sound CBC Radio & Simulcasts Tariff, 2017-2019.

Definitions

2. In this tariff,

“device” means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

“file” means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

“month” means a calendar month; (« mois »)

“play” means a single communication of a file or a part thereof, to a single person; (« écoute »)

“simulcast” means the simultaneous communication of an over-the-air CBC radio broadcast to which this tariff applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

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

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound by the CBC for the communication to the public by telecommunication, in Canada, for private or domestic use, of published sound recordings embodying musical works and performers’ performances of such works, by over-the-air radio broadcasting and simulcast by the radio networks and stations owned and operated by the CBC.

(2) This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including Re:Sound Tariffs 3 and 8, the Satellite Radio Services Tariff or the SOCAN-Re:Sound Pay Audio Services Tariff. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network, to a device, except by simulcast.

Royalties

4. (1) CBC shall pay to Re:Sound, on the first day of each month, $250,000 for its over-the-air radio broadcasting in that month.

(2) CBC shall pay to Re:Sound no later than 15 days after the end of each month, for its simulcasts in that month, the greater of

(3) Together with its monthly payment under subsection 4(2), CBC shall provide Re:Sound with a report setting out

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

Music Use Information

5. (1) No later than 15 days after the end of each month, CBC shall provide to Re:Sound, the sequential lists of all musical works and published sound recordings or parts thereof, broadcast during the previous month by each of CBC’s conventional radio services, as may be applicable. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry shall include the following information:

(2) The information set out in subsection 5(1) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and CBC, with a separate field for each piece of information required in paragraphs (a) to (s).

Records and Audits

6. (1) CBC 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 5(1) can be readily ascertained.

(2) CBC shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the calculation of CBC’s payment under subsection 4(2) can be readily ascertained, including the information required under subsection 4(3).

(3) Re:Sound may audit these records at any time during the period set out in subsection 6(1) or 6(2), on reasonable notice and during normal business hours.

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to CBC and to any other Canadian collective society with a tariff applicable to the CBC.

(5) If an audit discloses that royalties due to Re:Sound under subsection 4(2) have been understated in any month by more than ten per cent, CBC shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Interest and Late Fees

7. (1) If either the amounts owed under subsections 4(1) and 4(2) or the report required under section 4(3) are not provided by the due date, CBC shall pay to Re:Sound interest calculated on the amounts payable for the relevant period, from the due date until the date both the amounts and the report are received by Re:Sound. 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 CBC does not provide the reporting required by subsection 5(1) within seven days of the due date, upon written notice by Re:Sound, CBC shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

until the reporting is received.

Confidentiality

8. (1) Subject to subsections 8(2) and 8(3), information received from the CBC pursuant to this tariff shall be treated in confidence, unless the CBC consents in writing to the information being treated otherwise.

(2) Information received from the CBC pursuant to this tariff may be shared:

(3) Subsection 8(1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the CBC and who is not under an apparent duty of confidentiality to the CBC with respect to the supplied information.

Adjustments

9. 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. Excess payments are not subject to interest.

Delivery of Notices and Payments

10. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: radio@resound.ca, fax number 416-962-7797 or to any other address, email address or fax number of which the CBC has been notified in writing.

(2) Anything addressed to the CBC shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

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

(4) The information set out in subsection 5(1) shall be sent by email.

(5) Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed. Anything sent by fax, by email, by FTP or by EBT shall be presumed to have been received the day it was transmitted.

Rate Adjustments to Account for Inflation

11. (1) Subject to subsections 11(2) to 11(4), the amount payable pursuant to subsections 4(1) and 4(2) may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

(2) An increase can be applied only if the factor is higher than three percentage points.

(3) An increase can be applied only in January.

(4) An increase that cannot be applied in accordance with subsection 11(2) shall be cumulated with the increase for the following year, and so on.

(5) When Re:Sound applies an increase, it shall send to the Copyright Board of Canada and to the CBC, before the end of January of the year for which the increase applies, a notice stating the following:

“Re:Sound Tariff 1.C, the Re:Sound CBC Radio & Simulcasts Tariff, 2017-2019, as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in subsections 4(1) and 4(2) of the tariff to account for inflation, according to a formula set out in section 11 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates for [year in which the increase is applied] and thereafter shall be: [new applicable rate] per month.”

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY 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 BY PAY AUDIO SERVICES FOR THE YEARS 2017 TO 2018

Tariff No. 2

PAY AUDIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Pay Audio Services Tariff, 2017-2018.

Definitions

2. In this tariff,

“affiliation payments” means the total amounts payable by a distribution undertaking to a programming undertaking for all programming and services provided by the programming undertaking, without deduction; (« paiements d’affiliation »)

“device” means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

“distribution undertaking” means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11, as amended; (« entreprise de distribution »)

“file” means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

“pay audio signal” includes all programming and services supplied by a programming undertaking, whether or not for a fee and whether or not licenced by the CRTC as a pay audio service; (« signal sonore payant »)

“play” means the single communication of a file or a part thereof, to a single person; (« écoute »)

“premises” has the meaning attributed to it in section 2 of the Regulations, which currently reads:

“programming undertaking” means a programming undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11; (« entreprise de programmation »)

Regulations” means the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 (Canada Gazette, Part II, Vol. 128, page 4096), amended by SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« Règlement »)

“service area” has the meaning attributed to it in section 2 of the Regulations, which currently reads:

“signal” means a television or audio signal, other than a signal within the meaning of subsection 31(1) of the Copyright Act, retransmitted in accordance with subsection 31(2) of the Copyright Act; (« signal »)

“simulcast” means the simultaneous communication of an over-the-air pay audio signal to which this tariff applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

“Small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Regulations, which currently read:

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

Application

3. (1) This tariff sets the royalties to be paid for the communication to the public by telecommunication of published sound recordings embodying musical works and performers’ performances of such works, for private or domestic use, in connection with the transmission by a distribution undertaking of a pay audio signal or simulcast, for the years 2017 to 2018.

(2) This tariff does not apply to uses specifically covered by other tariffs, including Re:Sound Tariffs 3 and 8. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network, to a device, except by simulcast.

Royalties

4. (1) Subject to subsection (2), the royalties payable each month to Re:Sound are

(2) The royalties payable to Re:Sound each year where the distribution undertaking is:

Dates of Payments

5. (1) Royalties payable pursuant to subsection 4(1) shall be due on the last day of the month following the month for which the royalties are being paid.

(2) Royalties payable pursuant to subsection 4(2) shall be due on January 31 of the year following the year for which the royalties are being paid.

Reporting Requirements

6. (1) A programming undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each distribution undertaking to which it supplied a pay audio signal,

(2) A distribution undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each programming undertaking from which it purchased a signal,

(3) The following information shall also be provided with respect to any system for which royalties are being paid pursuant to subsection 4(2):

(4) Notwithstanding subsections (1), (2) and (3) above, no later than March 31 of each year, a programming undertaking shall provide Re:Sound with the name of each distribution undertaking to which it supplied a pay audio signal or simulcast for private or domestic use in the previous year. A programming undertaking shall be relieved of this obligation if it has already provided the name of each such distribution undertaking pursuant to its obligations under subsection (1). The programming undertaking shall also indicate who (the programming undertaking or the distribution undertaking) is responsible for paying royalties under this Tariff for each distribution undertaking listed.

Sound Recording Use Information

7. (1) No later than the fourteenth day of each month, a programming undertaking shall provide to Re:Sound the full sequential lists of all published sound recordings embodying musical works or parts thereof, played on each pay audio signal during each day of the previous month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry shall include the following information:

(2) The information set out in subsection (1) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the programming undertaking, with a separate field for each piece of information required in paragraphs (1)(a) to (o).

Records and Audits

8. (1) A programming undertaking 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 section 7 can be readily ascertained.

(2) Both the distribution undertaking and the programming undertaking shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which a distribution undertaking’s affiliation payments to the programming undertaking and the calculation of payments under paragraphs 4(1)(b) and 4(2)(e) can be readily ascertained, including the information required under section 6.

(3) Re:Sound 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) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the undertaking that was the subject of the audit and to any other Canadian collective society with a tariff applicable to pay audio services.

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month by more than 10 per cent, the undertaking that was audited shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

9. (1) Subject to subsections (2) and (3), information received from an undertaking pursuant to this tariff shall be treated in confidence, unless the undertaking who supplied the information consents in writing to the information being treated otherwise.

(2) Information received from an undertaking pursuant to this tariff may be shared:

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the undertaking that supplied the information and who is not under an apparent duty of confidentiality to that undertaking with respect to the supplied information.

Adjustments

10. 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. Excess payments by an undertaking are not subject to interest.

Interest and Fees on Late Payments and Reporting

11. (1) In the event that an undertaking does not pay the amounts owed under sections 4 and 5 or provide the reporting required under section 6 by the due date, the undertaking shall pay to Re:Sound interest calculated on the amount payable for the relevant period from the due date until the date both the amount and the report are 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.

(2) In the event that an undertaking does not provide the music use reporting required by section 7 within seven days of the due date, upon written notice by Re:Sound, the undertaking shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received, of

until the reporting is received.

Addresses for Notices, etc.

12. (1) Anything that an undertaking sends to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: payaudio@resound.ca, fax number 416-962-7797, or to any other address, email or fax number of which the undertaking has been notified in writing.

(2) Anything that Re:Sound sends to an undertaking shall be sent to the last address, email or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

13. (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 delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 7 shall be sent by email.

(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, by FTP or by EBT shall be presumed to have been received the day it is transmitted.

STATEMENT OF PROPOSED 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 YEAR 2017

Tariff No. 3.A

BACKGROUND MUSIC SUPPLIERS

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Background Music Suppliers Tariff 2017.

Definitions

2. (1) In this tariff,

Act” means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« Loi »)

“background music supplier” means a person who provides a service of supplying recorded music for performance in public by an establishment dealing at arm’s length; (« fournisseur de musique de fond »)

“establishment” means a place to which the public, including employees, has access, and includes, but is not limited to, a retail store, restaurant, hotel, bar, workplace, park, club or school, as well as a means of public transportation. In the case of a business which has multiple locations, each separate location is a separate establishment; (« établissement »)

“recorded music” means published sound recordings of musical works and performers’ performances of such works; (« musique enregistrée »)

“revenues” means the total gross revenues of the background music supplier, including, but not limited to, all subscription fees and advertising revenues; (« recettes »)

“small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 (Canada Gazette, Part II, Vol. 128, page 4096), amended by SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« petit système de transmission par fil »)

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

(2) For the purposes of this tariff, related persons shall be deemed not to deal with each other at arm’s length, unless the related person who provides a service of supplying recorded music for the performance in public by an establishment (the “Related Music Supplier”)

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, by a background music supplier, for the communication to the public by telecommunication of recorded music by a supplier and for the performance in public by an establishment of recorded music supplied by the supplier, including any use of such recorded music with a telephone on hold.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

Royalties Payable When Recorded Music is Provided by a Background Music Supplier

4. (1) Subject to subsection (4), a background music supplier shall pay to Re:Sound 2.25 per cent of revenues received during the quarter, subject to a minimum fee of $1.50 per subscriber per establishment per quarter, for the communication to the public by telecommunication of recorded music.

(2) Subject to subsections (3) and (4), a background music supplier shall pay to Re:Sound 7.5 per cent of revenues received during the quarter, subject to a minimum fee of $5.00 per subscriber per establishment per quarter, for the performance in public by an establishment of recorded music supplied by the supplier.

(3) A background music supplier is not required to pay the royalties set out in subsection (2) to the extent that royalties have been paid under Tariff 3.B (Use of Background Music) or Tariff 6.B (Use of Recorded Music to Accompany Fitness Activities) for that performance in public of recorded music supplied by that supplier.

(4) Royalties payable by a small cable transmission system are reduced by half.

Reporting Requirements

5. (1) No later than 60 days after the end of the quarter, a background music supplier making a payment pursuant to section 4 shall pay the royalty for that quarter and shall report the information used to calculate the royalty.

(2) A background music supplier subject to subsection 4(2) shall provide with its payment the name of each subscriber and the address of each establishment for which the background music supplier is making a payment.

(3) Information provided pursuant to subsections 5(1) and 5(2) shall be delivered electronically, in plain text format or in any other format agreed upon by Re:Sound and a background music supplier.

Accounts and Records

6. (1) A background music supplier shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which its revenues can be readily ascertained, including the subscription rates payable to subscribe to the background music service, a list of the subscribers for which payments are made and copies of background music subscriber invoices.

(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 subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

(4) If the audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the person who was subject to the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

7. (1) Subject to subsections (2) and (3), information received pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.

(2) Information received pursuant to this tariff may be shared

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the person subject to this tariff who supplied the information and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.

Adjustments

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. Excess payments are not subject to interest.

Interest on Late Payments and Reporting

9. (1) In the event that a person subject to this tariff does not pay the amount owed under section 4 by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.

(2) In the event that a person subject to this tariff does not provide the reporting information required by section 5 by the due date, Re:Sound may provide notice of that default (“Default Notice”). If the person does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the person shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

(3) 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.

10. (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 the 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

11. (1) Anything mailed in Canada shall be presumed to have been received four days after the day it was mailed.

(2) Anything sent by fax or email shall be presumed to have been received the day it was transmitted.

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 OF MUSICAL WORKS FOR THE YEAR 2017

Tariff No. 3.B

BACKGROUND MUSIC

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Background Music Tariff 2017.

Definitions

2. In this tariff,

Act” means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« Loi »)

“establishment” means a place to which the public, including employees, has access, and includes, but is not limited to, a retail store, restaurant, hotel, bar, workplace, park, club or school, as well as a means of public transportation. In the case of a business which has multiple locations, each separate location is a separate establishment; (« établissement »)

“recorded music” means published sound recordings of musical works and performers’ performances of such works; (« musique enregistrée »)

“trunk line” means a telephone line, whether digital or analog, linking telephone switching equipment to the public switched telephone network. (« ligne principale de standard »)

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the communication to the public by telecommunication or the performance in public of recorded music in an establishment, including any use of such recorded music with a telephone on hold.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication for which royalties are paid by a background music supplier under Re:Sound Tariff 3.A.

(3) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

(4) This tariff is subject to the exception set out in subsection 69(2) of the Act.

Royalties Payable

4. (1) For the performance in public or communication to the public by telecommunication of recorded music by telephone on hold, the annual royalty payable shall be $120.41 for the first trunk line and $2.67 for each additional trunk line.

(2) In addition to any royalty payable under subsection (1), the annual royalty payable for the performance in public or communication to the public by telecommunication of recorded music in an establishment shall be calculated, subject to section 5, as follows:

(3) In all cases a minimum annual fee of $120.41 shall apply per establishment to all recorded music uses under subsection (2).

Rate Adjustment to Account for Inflation

5. (1) Subject to subsections (2) to (4), the amounts payable in 2018 and thereafter pursuant to section 4 may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

(2) An increase can be applied only if the factor is higher than three percentage points.

(3) An increase can be applied only in January.

(4) An increase that cannot be applied in accordance with subsection (2) shall be cumulated with the increase for the following year, and so on.

(5) When Re:Sound applies an increase, it shall send to the Copyright Board and to every person known to Re:Sound that is subject to this tariff, before the end of January, a notice stating the following:

You can review the detailed calculation of the increase on Re:Sound’s website, at [URL to which the calculation is posted].”

(6) Before sending any notice pursuant to subsection (5), Re:Sound shall post on its Web site a page that provides the detailed calculation of the increase being applied. That page shall be accessible to the public directly from the home page of Re:Sound’s Web site.

Reporting and Payment Requirements

6. (1) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 4 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows. If that establishment played recorded music in the previous year, the establishment shall pay the amount equal to the royalties owed by the establishment to Re:Sound in the previous year. If that establishment did not play recorded music in the previous year, the establishment shall provide Re:Sound with an estimate of the number of days of operation that the establishment will play recorded music during the year and shall pay royalties to Re:Sound based on that estimate, calculated in accordance with section 4. If an establishment making payment pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the establishment first opened. In all cases the establishment making payment under this subsection shall report to Re:Sound all information used to calculate the royalty payment.

(2) No later than January 31 of the following year (in which an establishment was required to make a payment to Re:Sound pursuant to subsection 6(1)), the establishment shall report to Re:Sound any changes in the actual number of days of operation that the establishment played recorded music in the previous year and any difference in the amount of royalties payable for that year calculated in accordance with section 4 (from the amount paid under subsection 6(1)). If the amount owing exceeds the amount previously paid by the establishment to Re:Sound pursuant to subsection 6(1), the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and shall pay the additional royalties owing to Re:Sound by January 31. If the amount owing is less than the amount of the payment made by the establishment to Re:Sound in the previous year, the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and Re:Sound shall credit the amount of the overpayment to the establishment against future payments.

Accounts and Records

7. (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 the calculation of that person’s payment can be ascertained, including information used to determine the choice of calculation, and information required to ascertain days on which recorded music was used.

(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 subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

(4) If the audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the person who was subject to the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

8. (1) Subject to subsections (2) and (3), information received pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.

(2) Information received pursuant to this tariff may be shared:

(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.

Adjustments

9. Subject to subsection 6(2), 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. Excess payments are not subject to interest.

Interest on Late Payments and Reporting

10. (1) In the event that a person subject to this tariff does not pay the amount owed under section 4 by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.

(2) In the event that a person subject to this tariff does not provide the reporting information required by section 6 by the due date, Re:Sound may provide notice of that default (“Default Notice”). If the person does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the person shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

(3) 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 the 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) Anything mailed in Canada shall be presumed to have been received four days after the day it was mailed.

(2) Anything sent by fax or email shall be presumed to have been received the day it was transmitted.

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY 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 FOR THE YEAR 2017

Tariff No. 8

NON-INTERACTIVE AND SEMI-INTERACTIVE WEBCASTS

GENERAL PROVISIONS
Short Title

1. This tariff may be cited as the Re:Sound Non-Interactive and Semi-Interactive Webcasts Tariff, 2017.

Definitions

2. In this tariff,

Act” means the Copyright Act, R.S.C. 1985, c. C-42, as modified; (« Loi »)

“channel” means an individual programme or playlist which a user selects to initiate a communication of a file. For example, if a webcaster offers 10 different musical genres and within each genre, there are a further 10 sub-genres, the selection of each of which initiates the streaming of a different playlist, the webcaster has 100 channels. For semi-interactive webcasts that permit a user to customize a programme or playlist, each such individually customized programme or playlist constitutes one channel; (« chaîne »)

“device” means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

“file” means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

“gross revenues” includes all direct and indirect revenues of a webcaster with respect to its communications in Canada by noninteractive webcast, semi-interactive webcast and by simulcast (except a simulcast excluded under paragraph 3(1)(a)), including, but not limited to,

For greater certainty, gross revenues includes all income accruing from any allied or subsidiary business that is a necessary adjunct to the webcast and which results in the use of the webcast, including the gross amounts received by the webcaster pursuant to a turn-key contract with an advertiser; (« revenus bruts »)

“interactive webcast” refers to any webcast through which a specific file can be communicated to a member of the public at a place and at a time individually chosen by that member of the public such as on-demand streaming; (« webdiffusion interactive »)

“month” means a calendar month; (« mois »)

“non-commercial webcaster” means any webcaster other than the Canadian Broadcasting Corporation, that is owned and operated by a not-for-profit organization including any campus webcaster and community webcaster, whether or not any part of the webcaster’s operating costs are funded by advertising revenues; (« webdiffuseur non commercial »)

“non-interactive webcast” refers to a webcast over which the recipient exercises no control over the content or the timing of the webcast. For example, the recipient cannot skip or pause the communication of a file or influence the content by indicating a preference for a musical genre, artist or sound recording other than by selecting the channel; (« webdiffusion non interactive »)

“play” means the single communication of a file or a part thereof, to a single person; (« écoute »)

“semi-interactive webcast” refers to a webcast over which the recipient exercises some level of control over the content or the timing of the webcast, such as by skipping, pausing, rewinding or fast-forwarding the communication of a file or by indicating a preference for a musical genre, artist or sound recording; (« webdiffusion semi-interactive »)

“simulcast” means the simultaneous communication of an over-the-air radio, pay audio or satellite radio broadcast via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

“webcast” means the communication in Canada via the Internet or another digital network, to a device, of one or more files; (« webdiffusion »)

“webcaster” means a person or organization, including an aggregator, who carries out a webcast; (« webdiffuseur »)

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

Application

3. (1) This tariff sets the royalties to be paid by a webcaster, for the year 2017, for the communication to the public by telecommunication of published sound recordings embodying musical works and performers’ performances of such works, other than

(2) If a webcaster offers an interactive webcast, download or simulcast service as well as a non-interactive or semi-interactive webcast service, the non-interactive webcast and semi-interactive webcast shall not be treated as part of the interactive webcast, download or simulcast service.

(3) This tariff is not subject to the special royalty rates set out in section 68.1 of the Act.

ROYALTIES
Non-Commercial Webcasters

4. (1) The royalties payable for all webcasts (other than simulcasts) carried out by a non-commercial webcaster shall be $500 per year.

(2) The royalties payable for all simulcasts carried out by a non-commercial webcaster shall be $500 per year.

(3) The payment made pursuant to subsection (1) and/or (2), shall be accompanied by a description of the webcast and/or simulcast services the webcaster offers or intends to offer as well as documentation to substantiate that the webcaster is a noncommercial webcaster.

(4) Except to the extent required by subsection (3), a noncommercial webcaster is not subject to section 8.

Non-Interactive and Semi-Interactive Webcasts other than by Non-commercial Webcasters

5. The royalties payable for any given month by a webcaster including the CBC, other than a non-commercial webcaster, shall be the greater of

subject to a minimum annual fee of $500 per channel up to a maximum of $50,000.

Date Payable

6. (1) Royalties payable under section 5 are due 15 days after the end of the month for which they are being paid.

(2) Royalties payable under section 4 are due by January 15 of the year for which they are being paid.

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

(4) Minimum fees payable under section 5 are due on the 15th day of January of each year for which they apply, to be credited against the monthly amounts payable under section 5.

REPORTING REQUIREMENTS
Webcaster Identification

7. No later than 15 days after the end of the first month during which a webcaster carries out a webcast pursuant to section 3, the webcaster shall provide to Re:Sound the following information:

Music Use Information

8. (1) No later than 15 days after the end of each month, a webcaster that is required to pay royalties pursuant to section 5 shall provide to Re:Sound, in relation to each file or part thereof included in a non-interactive and semi-interactive webcast and in a simulcast (except a simulcast excluded under paragraph 3(1)(a)) in that month

(2) A webcaster shall provide, as part of the information set out in subsection (1), a report setting out, for that month

(3) The information set out in subsections (1) and (2) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the webcaster, with a separate field for each piece of information required in paragraphs (1)(a) to (l).

Adjustments

9. Adjustments to any information provided pursuant to section 7 or 8 shall be provided with the next monthly report provided pursuant to section 8.

10. 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. Excess payments by a webcaster are not subject to interest.

Accounts and Records

11. (1) A webcaster to which section 8 applies shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the calculation of that webcaster’s payment under this tariff can be readily ascertained, including the information required under subsections 8(1) and (2).

(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 webcaster that was the subject of the audit and to any other Canadian collective society with a tariff applicable to non-interactive webcasts, semi-interactive webcasts or simulcasts.

(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 webcaster that was the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

12. (1) Subject to subsections (2) and (3), information received from a webcaster pursuant to this tariff shall be treated in confidence, unless the webcaster that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from a webcaster pursuant to this tariff may be shared

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the webcaster who supplied the information and who is not under an apparent duty of confidentiality to the webcaster with respect to the supplied information.

Interest and Late Fees

13. (1) If either the amount owed under section 4 or 5 or report required under subsection 8(2) are not provided by the due date, the webcaster shall pay to Re:Sound interest calculated on the amount payable for the relevant period from the due date until the date both the amount and the report are received by Re:Sound. 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 webcaster does not provide the reporting required by subsection 8(1) within seven days of the due date, upon written notice by Re:Sound, the webcaster shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

until the reporting is received.

Addresses for Notices, etc.

14. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: internet@resound.ca, fax number: 416-962-7797, or to any other address, email address, or fax number of which the webcaster has been notified in writing.

(2) Anything addressed to a webcaster shall be sent to the last address, email address, or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

15. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 8 shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 8 shall be sent by email.

(3) Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed.

(4) Anything sent by fax, by email, by FTP or by EBT shall be presumed to have been received the day it was transmitted.