Vol. 151, No. 4 — January 28, 2017

COPYRIGHT BOARD

FILE: Public Performance of Musical Works

Statement of Royalties to Be Collected by SOCAN for the Communication to the Public by Telecommunication, in Canada, of Musical or Dramatico-Musical Works

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 the Society of Composers, Authors and Music Publishers of Canada (SOCAN) for the communication to the public by telecommunication, in Canada, of musical or dramatico-musical works in respect of Tariff No. 22.D.1 – Internet – Online Audiovisual Services, for the years 2007 to 2013.

Note:

This tariff replaces the tariff that the Board certified on July 18, 2014 (modified through an erratum on November 29, 2014), and was set aside in part by the Federal Court of Appeal on December 17, 2015. The only substantive difference between this tariff and the previous one is a new paragraph 3(b). A few clerical errors and translation oversights have also been corrected. Therefore, the full tariff is being republished, for convenience.

Ottawa, January 28, 2017

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 BY THE SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA (SOCAN) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF MUSICAL OR DRAMATICO-MUSICAL WORKS FOR THE YEARS 2007 TO 2013

GENERAL PROVISIONS

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

As used in this tariff, the term “licence” means a licence to communicate to the public by telecommunication or to authorize the communication to the public by telecommunication, as the context may require.

Except where otherwise specified, fees payable for any licence granted by SOCAN shall be due and payable upon the grant of the licence. 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.

Each licence shall subsist according to the terms set out therein. SOCAN shall have the right at any time to terminate a licence for breach of terms or conditions upon 30 days’ notice in writing.

Tariff No. 22.D.1

INTERNET – ONLINE AUDIOVISUAL SERVICES

Application
Definitions

2. In this part of the tariff,

“additional information” means, in respect of each musical work contained in an audiovisual file, the following information, if available:

“audiovisual page impression” means a page impression that allows a person to hear an audiovisual work; (« consultation de page audiovisuelle »)

“file” means a digital file of an audiovisual work; (« fichier »)

“identifier” means the unique identifier an online audiovisual service assigns to a file; (« identificateur »)

“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

“on-demand stream” means a stream selected by its recipient; (« transmission sur demande »)

“online audiovisual service” means a service that delivers streams of audiovisual works to end users, other than a service that offers only streams in which the file is selected by the service and can only be listened to at a time chosen by the service and for which no advance play list is published; (« service audiovisuel en ligne »)

“page impression” means a request to load a single page from a site. To the extent a service displays content and measures user “impressions” of such content in units other than single Internet Web pages, it shall be acceptable to treat impressions of such units as “page impressions” as long as the same unit measure is used in the numerator and denominator of part “B” of the royalty formula in paragraph 3(c); (« consultation de page »)

“play” means the single performance of an on-demand stream; (« écoute »)

“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 »)

“stream” means a file that is intended to be copied onto a local storage medium or device only to the extent required to allow listening to the file at substantially the same time as when the file is transmitted; (« transmission »)

“subscriber” means an end user with whom an online audiovisual service or its authorized distributor has entered into a contract for service, other than on a transactional per-stream basis, whether for a fee, for other consideration or free of charge, including pursuant to a free subscription; (« abonné »)

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

Royalties

3. The royalty payable for the communication of an audiovisual program containing one or more musical works requiring a SOCAN licence shall be as follows:

ADMINISTRATIVE PROVISIONS

Reporting Requirements
Service Identification

4. (1) No later than the earlier of 20 days after the end of the first month during which an online audiovisual service communicates an audiovisual file requiring a SOCAN licence and the day before the service first makes such a file available to the public, the service shall provide to SOCAN the following information:

Sales Reports
On-Demand Streams

(2) No later than 20 days after the end of each month, any online audiovisual service that provides on-demand streams shall provide to SOCAN a report setting out for that month, in relation to each audiovisual file that was delivered as an on-demand stream, the following information, if available:

(3) If the online audiovisual service offers subscriptions in connection with its provision of on-demand streams, the service shall provide the following information:

(4) If the online audiovisual service claims that a SOCAN licence is not required for a file, the service shall provide information to SOCAN that establishes why the licence is not required.

Page Impressions for Services With Internet-related Revenues

(5) No later than 20 days after the end of each month, any online audiovisual service that is required to pay royalties pursuant to subsection 3(c) shall provide to SOCAN the following information:

(6) An online audiovisual service that is required to pay royalties pursuant to more than one subsection of section 5 shall file a separate report pursuant to each subsection of this section.

Calculation and Payment of Royalties

5. Royalties shall be due no later than 20 days after the end of each month.

Adjustments

6. Adjustments to any information provided pursuant to section   or 4 shall be provided with the next report dealing with such information.

7. (1) Subject to subsection (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.

(2) Any excess payment resulting from an online audiovisual service providing incorrect or incomplete information about a file shall be deducted from future amounts owed for the use of works owned by the same person as the work in that file.

Records and Audits

8. (1) An online audiovisual service 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 3 and 4 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 year by more than 10 per cent, the online audiovisual service 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

9. (1) Subject to subsections (2) and (3), SOCAN, the online audiovisual service 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

(3) Subsection (1) does not apply to information that must be provided pursuant to section 70.11 of the Copyright Act.