Vol. 151, No. 22 — June 3, 2017

COPYRIGHT BOARD

FILE: Reproduction of Musical Works

Statement of Proposed Royalties to Be Collected for the Reproduction of Musical Works Embodied in Music Videos by Online Music Services and for the Reproduction of Musical Works by Commercial Television Stations, by Television Services of the Canadian Broadcasting Corporation and by Audiovisual Services

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by the Canadian Musical Reproduction Rights Agency (CMRRA) on March 31, 2017, with respect to royalties it proposes to collect, effective on January 1, 2018, for the reproduction of musical works embodied in music videos, in Canada, by online music services in 2018 (Tariff No. 4) and for the reproduction, in Canada, of musical works, in 2018, by commercial television stations (Tariff No. 5), by the television services of the Canadian Broadcasting Corporation (Tariff No. 6) and by audiovisual services (Tariff No. 7).

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 August 2, 2017.

Ottawa, June 3, 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 CMRRA FOR THE REPRODUCTION OF MUSICAL WORKS EMBODIED IN MUSIC VIDEOS, IN CANADA, BY ONLINE MUSIC SERVICES IN 2018

Tariff No. 4

Short Title

1. This tariff may be cited as the CMRRA Online Music Services Tariff (Music Videos), 2018.

Definitions

2. The following definitions apply in this tariff.

“bundle” means two or more digital files offered as a single product, if at least one file is a permanent download. (« ensemble »)

“CMRRA” means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

“download” means a file intended to be copied onto an end user’s local storage medium or device. (« téléchargement »)

“file,” except in the definition of “bundle,” means a digital file of a music video. (« fichier »)

“free on-demand stream” excludes an on-demand stream provided to a subscriber. (« transmission sur demande gratuite »)

“free subscription” means the provision of free access to limited downloads or on-demand streams to a subscriber. (« abonnement gratuit »)

“gross revenue” means the aggregate of (a) all revenues payable by or on behalf of end users for access to streams or downloads delivered by an online music service or its authorized distributors, including membership, subscription and other access fees; (b) all other revenues payable to an online music service or its authorized distributors in respect of the online music service, including amounts paid for advertising, product placement, promotion and sponsorship, and commissions on third-party transactions, but excluding revenues payable in relation to streams or downloads of digital files containing only sound recordings of musical works; and (c) amounts equal to the value of the consideration received by an online music service or its authorized distributors pursuant to any contra and barter agreements related to the operation of the online music service, excluding consideration received exclusively in relation to the delivery of streams or downloads of digital files containing only sound recordings of musical works. (« revenus bruts »)

“identifier” means the unique identifier an online music service assigns to a file or bundle. (« identificateur »)

“limited download” means a download that uses technology that causes the file to become unusable upon the happening of a certain event. (« téléchargement limité »)

“music video” means a videoclip or any similar audiovisual representation of a musical work. (« vidéo de musique »)

“non-subscriber” means an end user other than a subscriber, and includes an end user who receives limited downloads or on-demand streams from an online music service subject to the requirement that advertising be viewed or listened to. (« non-abonné »)

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

“online music service” means a service that delivers on-demand streams, limited downloads, and/or permanent downloads to end users. (« service de musique en ligne »)

“permanent download” means a download other than a limited download. (« téléchargement permanent »)

“play” means the single performance of a stream or a limited download. (« écoute »)

“quarter” means from January to March, from April to June, from July to September and from October to December. (« trimestre »)

“repertoire” means the musical works for which CMRRA is entitled to grant a licence pursuant to section 3. (« répertoire »)

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

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

“unique visitor” means each end user, excluding a subscriber, who receives a free on-demand stream from an online music service in a month. (« visiteur unique »)

Application

3. This tariff entitles an online music service that complies with this tariff, and its authorized distributors,

in connection with the operation of the service.

4. (1) This tariff does not authorize the reproduction of a work in a medley, for the purpose of creating a mashup, for use as a sample, or in association with a product, service, cause or institution.

(2) This tariff does not entitle the owner of the copyright in a sound recording of a musical work to authorize the reproduction of that work.

(3) This tariff does not authorize the production of a music video or the synchronization of a musical work in a music video, but only the online distribution of an existing music video in which the musical work is already embodied.

(4) Nothing in this tariff affects the liability of an online music service to pay royalties under the CSI Online Music Services Tariff in relation to digital files containing only sound recordings of musical works.

(5) This tariff does not authorize any use covered by any other CMRRA or CSI tariff, including the CSI Online Music Services Tariff or the CMRRA Audiovisual Services Tariff.

ROYALTIES

On-Demand Streams

5. (1) Subject to paragraph (6)(a), the royalties payable in a month by any online music service that offers on-demand streams but does not offer limited downloads shall be

where

subject to a minimum equal to the greater of

Limited Downloads

(2) Subject to paragraph (6)(a), the royalties payable in a month by any online music service that offers limited downloads — with or without on-demand streams — shall be

where

subject to a minimum equal to the greater of

Where a service does not report to CMRRA the number of plays of music videos as limited downloads, (B) will be deemed to equal either (a) the number of plays of the same music video as an on-demand stream during the month, or (b) if the music video has not been played as an on-demand stream during the month, the average number of plays of all music videos as on-demand streams during the month.

Free On-Demand Streams

(3) Subject to paragraph (6)(b), the royalties payable for free on-demand streams shall be the lesser of 43.56¢ per unique visitor per month and 0.11¢ per free on-demand stream requiring a CMRRA licence received by that unique visitor in that month.

Permanent Downloads

(4) Subject to paragraph (6)(a), the royalties payable in a month by any online music service that offers only permanent downloads shall be

where

subject to a minimum of 2.59¢ per permanent download in a bundle that contains 15 or more files and 4.53¢ per permanent download in all other cases.

(5) Subject to paragraph (6)(b), where an online music service that is required to pay royalties under any of subsections (1) to (3) also offers permanent downloads, the royalty payable by the online music service for each permanent download requiring a CMRRA licence shall be 11 per cent of the amount paid by an end user for the download, subject to a minimum of 2.59¢ per permanent download in a bundle that contains 15 or more files and 4.53¢ per permanent download in all other cases.

Adjustments

(6) Where CMRRA does not hold all the rights in a musical work,

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

(8) For the purpose of calculating the minimum payable pursuant to subsections (1) and (2), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

ADMINISTRATIVE PROVISIONS

Reporting Requirements: Service Identification

6. No later than the earlier of 20 days after the end of the first month during which an online music service reproduces a file requiring a CMRRA licence and the day before the service first makes such a file available to the public, the service shall provide to CMRRA the following information:

together with any other trade name under which the service carries on business;

Sales Reports

Definition

7. (1) In this section, “required information” means, in respect of a file,

and, if available,

On-Demand Streams

(2) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 5(1) shall provide to CMRRA a report setting out, for that month,

Limited Downloads

(3) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 5(2) shall provide to CMRRA a report setting out, for that month,

Free On-Demand Streams

(4) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 5(3) shall provide to CMRRA a report setting out, for that month,

Permanent Downloads

(5) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 5(4) or (5) shall provide to CMRRA a report setting out, for that month,

(6) An online music 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.

(7) Whenever a service is required to report its gross revenue for a month, it shall include, separately — and in addition to any other information specifically required by the relevant subsection — the amount of revenue received from subscribers, the amount received from non-subscribers, the amount received from advertisers, the amount attributable to sponsorships, and the amounts received from each additional revenue source.

Calculation and Payment of Royalties

8. No later than 20 days after receiving a report pursuant to section 7 for the last month in a quarter, CMRRA shall provide to the online music service a detailed calculation of the royalties payable for that quarter for each file, along with a report setting out

9. Royalties shall be due no later than 30 days after an online music service receives a report pursuant to section 8.

Repertoire Disputes

10. (1) An online music service that disputes the indication that a file contains a work in the repertoire or requires a CMRRA licence shall provide to CMRRA information that establishes why the licence is not required, unless the information was provided earlier.

(2) An online music service that disputes the indication more than 20 days after receiving a report pursuant to paragraph 8(a) or (c) is not entitled to interest on the amounts owed to it.

Adjustments

11. Adjustments to any information provided pursuant to sections 6 to 8 or 10 shall be provided with the next report dealing with such information.

12. (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 music 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

13. (1) An online music 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 6, 7, 10 and 11 can be readily ascertained.

(2) CMRRA may audit these records at any time during the period set out in subsection (1) on reasonable notice and during normal business hours.

(3) Subject to subsection (4), if an audit discloses that royalties due have been understated in any quarter by more than 10 per cent, the online music 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 CMRRA shall not be taken into account.

Breach and Termination

14. (1) An online music service that fails to provide any report required by section 7 within five business days of the date on which the report is required, or to pay royalties within five business days of the date on which the royalties are due, is not entitled to do any of the acts described in section 3 as of the first day of the month in respect of which the report should have been provided or the quarter in respect of which the royalties should have been paid, as the case may be, and until the report is provided and the royalties and any accrued interest are paid.

(2) An online music service that fails to comply with any other provision of this tariff is not entitled to do any of the acts described in section 3 five business days after CMRRA has notified the service in writing of that failure and until the service remedies that failure.

(3) An online music service that becomes insolvent, commits an act of bankruptcy, makes an assignment for the benefit of its creditors, files for protection under the Companies Creditors Arrangement Act or other comparable legislation in another jurisdiction, winds up its affairs, ceases to carry on business, or has a receiver/manager appointed for it or for a substantial part of its property, is not entitled to do any of the acts described in section 3 as of the day immediately preceding the day of the relevant occurrence.

Confidentiality

15. (1) Subject to subsections (2) and (3), CMRRA 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 is publicly available, or to information obtained from someone other than an online music service or its authorized distributors and who is not under an apparent duty of confidentiality to the service.

Interest

16. (1) Subject to subsections (3) and (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

(2) Any overpayment resulting from an error or omission on the part of CMRRA shall bear interest from the date of the overpayment until the overpayment is refunded.

(3) For the purposes of this section, a report provided pursuant to section 8 following the late reception of a report required pursuant to section 7 is deemed to have been received within the time set out in section 8 provided that, after receiving the late report required under section 7, CMRRA provides the corresponding report required pursuant to section 8 no later than the date on which the next report required pursuant to section 8 is due.

(4) Any amount owing as a result of an error or omission on the part of CMRRA shall not bear interest until 30 days after CMRRA has corrected the error or omission.

(5) 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.

(6) In the event that an online music service does not provide the information required by section 7 by the due date, the online music service shall pay to CMRRA a late fee of $50.00 per day from the due date until the date the required information is received by CMRRA.

Addresses for Notices, etc.

17. (1) Anything that an online music service sends to CMRRA shall be sent to 56 Wellesley Street West, Suite 320, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax: 416-926-7521, or to any other address, email address or fax number of which the service has been notified in writing.

(2) Anything that CMRRA sends to an online music service shall be sent to the last address, email address or fax number of which CMRRA has been notified in writing.

Delivery of Notices and Payments

18. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email or by File Transfer Protocol (FTP). A payment must be delivered by hand, by postage-paid mail, or as otherwise agreed upon by CMRRA and the online music service.

(2) Information provided pursuant to sections 6 to 8 and to subsection 10(1) shall be delivered electronically, by way of a delimited text file or in any other format agreed upon by CMRRA and the online music service.

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

(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.

STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA FROM COMMERCIAL TELEVISION STATIONS FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS IN 2018

Tariff No. 5

Short Title

1. This tariff may be cited as the CMRRA Commercial Television Tariff, 2018.

Definitions

2. The following definitions apply in this tariff.

“additional information” means, in relation to each musical work contained in a program, the following information, if available:

“broadcasting” has the meaning ascribed to it in section 2 of the Broadcasting Act, S.C. 1991, c. 11, excluding any video-on-demand, any dissemination of programs via the Internet for a fee, and any podcasting of audiovisual content, but including any simulcast. (« radiodiffusion »)

“CMRRA” means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

“CMRRA work” means all or part of a musical or dramatico-musical work of which CMRRA may authorize the reproduction in Canada, in proportion to the rights it holds. (« œuvre CMRRA »)

“gross income” means the gross amounts paid for the use of one or more broadcasting services or facilities offered by a station’s operator, including the value of any goods or services provided by any person in exchange for the use of such services or facilities, the fair market value of any non-monetary consideration (e.g. barter or “contra”), and any income from simulcast, whether such amounts are paid to the station owner or operator or to other persons, but excluding the following:

“identifier” means the unique identifier assigned to a program, musical work, sound recording, or cue sheet, as the case may be. (« identificateur »)

“low-use station” means a station that

“network” has the meaning ascribed to it in section 2 of the Broadcasting Act, S.C. 1991, c. 11. (« réseau »)

“program” means any combination of sounds and visual images that are intended to inform, enlighten, or entertain, excluding an advertisement of up to 60 seconds’ duration. (« émission »)

“reference month” means the second month before the month for which royalties are being paid. (« mois de référence »)

“required information” means, in relation to a program,

“simulcast” means the simultaneous, unaltered, real-time streaming of the broadcast signal of the station, or of another station that is part of the same network as the station, via the Internet or other similar computer network. (« diffusion simultanée »)

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

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

Application

3. (1) A station that complies with this tariff is authorized to reproduce a CMRRA work as embodied in a program, in any material form and by any process now known or hereafter devised, solely for the purpose of broadcasting the program on the station, including any simulcast.

(2) A station that complies with this tariff is also authorized to

(3) The reproductions referred to in subsection (1) and paragraphs (2)(a) and (b) shall be limited to the CMRRA work as embodied in the program, including the associated visual images.

(4) This tariff does not authorize

(5) This tariff does not apply to stations operated by the Ontario Educational Communications Authority, the Société de télédiffusion du Québec, or the Canadian Broadcasting Corporation.

Royalties

4. The royalties payable to CMRRA for a month shall be,

5. Royalties owed in respect of part of a month shall be prorated according to the number of days the station engaged in broadcasting during that month.

6. All royalties are exclusive of any bank fees and any federal, provincial or other governmental taxes or levies of any kind.

Reporting and Payment Requirements

7. No later than the later of 30 days after the coming into force of this tariff and 20 days after the end of the first month during which a station reproduces a program that may require a CMRRA licence, the station shall provide to CMRRA the following information:

8. No later than the first day of each month, a station shall

9. (1) No later than the first day of each month, a station shall provide CMRRA with a cue sheet indicating, in relation to each program broadcast by the station for the first time during the reference month, the following information:

(2) A station shall provide a cue sheet for each program that is otherwise identical to another program if their musical content differs in any way contemplated by paragraph (1)(d) or otherwise.

(3) The cue sheet that a station shall provide is that which is received by the station from the person from whom the station acquires the right to broadcast the program. A station shall cooperate with CMRRA in any attempt by CMRRA to obtain cue sheets from third parties, regardless of whether such parties produced the programs.

10. No later than the first day of each month, a station shall provide CMRRA with a copy of its broadcast schedule for the reference month and a broadcast report indicating, in relation to each program broadcast during the reference month, the following information:

11. At any time during the period set out in subsection 12(1), CMRRA may require the production of any contract granting rights referred to in paragraph (c) of the definition of “gross income,” together with the billing or correspondence relating to the use of those rights by other parties, and the station shall provide that information within 10 days after receiving a request in writing from CMRRA.

Records and Audits

12. (1) 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 information set out in sections 8, 9, 10 and 11, any other information that must be provided under this tariff, and the amounts owed under this tariff, can be readily ascertained.

(2) CMRRA may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.

(3) CMRRA shall, upon receipt of the audit report, supply a copy to the station.

(4) If an audit discloses that royalties due to CMRRA 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 a demand for such payment.

Breach and Termination

13. (1) A station that fails to provide any information required under this tariff within five business days of the date on which the information is required, or to pay royalties within five business days of the date on which the royalties are due, is not entitled to do any of the acts described in section 3 as of the first day of the month in relation to which the information should have been provided or the royalties should have been paid, as the case may be, and until the information is provided and the royalties and any accrued interest are paid.

(2) A station that fails to comply with any other provision of this tariff is not entitled to do any of the acts described in section 3 as of five business days after CMRRA has notified the station in writing of that failure and until the station remedies that failure.

(3) A station whose owner or operator becomes insolvent, commits an act of bankruptcy, makes an assignment for the benefit of its creditors, files for protection under the Companies’ Creditors Arrangement Act or other comparable legislation in another jurisdiction, winds up its affairs, ceases to carry on business, or has a receiver/manager appointed for it or for a substantial part of its property is not entitled to do any of the acts described in section 3 as of the day immediately preceding the day of the relevant occurrence.

Confidentiality

14. (1) Subject to subsections (2) and (3), CMRRA shall treat in confidence information received pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

(2) CMRRA may share information referred to in subsection (1)

(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.

Adjustments

15. 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.

Interest

16. (1) In the event that a station does not pay the amount owed under section 8 or provide the information required by sections 8, 9, and 10 by the due date, the station shall pay to CMRRA interest calculated on the amount owed from the due date until the date both the amount and the information are received by CMRRA. 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 information required by sections 8, 9, and 10 by the due date, the station shall pay to CMRRA a late fee of $50.00 per day from the due date until the date the information is received by CMRRA.

Addresses for Notices, etc.

17. (1) Anything that a station sends to CMRRA shall be sent to 56 Wellesley Street West, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax number: 416-926-7521, or to any other address, email address or fax number of which a station has been notified in writing.

(2) Anything that CMRRA sends to a station shall be sent to the last address, email address or fax number of which CMRRA has been notified in writing.

Delivery of Notices and Payments

18. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by email, by fax, or by File Transfer Protocol (FTP). A payment must be delivered by hand, by postage-paid mail, or as otherwise agreed upon by CMRRA and the station.

(2) Information provided pursuant to sections 8, 9, and 10 shall be provided electronically, in a format agreed upon by CMRRA and the station.

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

(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.

STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS BY THE TELEVISION SERVICES OF THE CANADIAN BROADCASTING CORPORATION IN 2018

Tariff No. 6

Short Title

1. This tariff may be cited as the CMRRA CBC Television Tariff, 2018.

Definitions

2. The following definitions apply in this tariff.

“additional information” means, in relation to each musical work contained in a program, the following information, if available:

“broadcasting” has the meaning ascribed to it in section 2 of the Broadcasting Act, S.C. 1991, c. 11, excluding any video-on-demand, any dissemination of programs via the Internet for a fee, and any podcasting of audiovisual content, but including any simulcast. (« radiodiffusion »)

“CBC” means the Canadian Broadcasting Corporation / Société Radio-Canada. (« SRC »)

“CMRRA” means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

“CMRRA work” means all or part of a musical or dramatico-musical work of which CMRRA may authorize the reproduction in Canada, in proportion to the rights it holds. (« œuvre CMRRA »)

“gross income” means the gross amounts paid for the use of one or more broadcasting services or facilities offered by a service referred to in paragraph 4(b), including the value of any goods or services provided by any person in exchange for the use of such services or facilities, the fair market value of any non-monetary consideration (e.g. barter or “contra”), and any income from simulcast, whether such amounts are paid to CBC or to other persons, but excluding the following:

“identifier” means the unique identifier assigned to a program, musical work, sound recording, or cue sheet, as the case may be. (« identificateur »)

“low-use service” means a service that

“program” means any combination of sounds and visual images that are intended to inform, enlighten, or entertain, excluding an advertisement of up to 60 seconds’ duration. (« émission »)

“reference month” means the second month before the month for which royalties are being paid. (« mois de référence »)

“required information” means, in relation to a program,

“service” means a programming undertaking, as defined in the Broadcasting Act, S.C. 1991, c. 11, that is owned or operated by the CBC. (« service »)

“simulcast” means the simultaneous, unaltered, real-time streaming of the broadcast signal of a service via the Internet or other similar computer network. (« diffusion simultanée »)

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

Application

3. (1) This tariff authorizes CBC, provided that it complies with this tariff, to reproduce a CMRRA work as embodied in a program, in any material form and by any process now known or hereafter devised, solely for the purpose of broadcasting the program on a service, including any simulcast.

(2) Provided that it complies with this tariff, CBC is also authorized to

(3) The reproductions referred to in subsection (1) and paragraphs (2)(a) and (b) shall be limited to the CMRRA work as embodied in the program, including the associated visual images.

(4) This tariff does not authorize

Royalties

4. The royalties payable to CMRRA for a month shall be,

5. Royalties owed in respect of part of a month shall be prorated according to the number of days the service engaged in broadcasting during that month.

6. All royalties are exclusive of any bank fees and any federal, provincial or other governmental taxes or levies of any kind.

Reporting and Payment Requirements

7. No later than the later of 30 days after the coming into force of this tariff and 20 days after the end of the first month during which a service reproduces a program that may require a CMRRA licence, CBC shall provide to CMRRA the name, address, and email address of the person or persons to be contacted for the purposes of notice and, if different, the name, address, and email address of the person or persons to be contacted for the payment of royalties, the provision of information pursuant to this tariff, and any inquiries related thereto.

8. No later than the first day of each month, CBC shall

9. (1) No later than the first day of each month, CBC shall provide CMRRA with cue sheets indicating, in relation to each program broadcast by CBC for the first time during the reference month, the following information:

(2) CBC shall provide a cue sheet for each program that is otherwise identical to another program if their musical content differs in any way contemplated by paragraph (1)(d) or otherwise.

(3) The cue sheet that CBC shall provide is that which is received by CBC from the person from whom CBC acquires the right to broadcast the program. CBC shall cooperate with CMRRA in any attempt by CMRRA to obtain cue sheets from third parties, regardless of whether such parties produced the programs.

10. No later than the first day of each month, CBC shall provide CMRRA with a copy of each service’s broadcast schedule for the reference month and a broadcast report indicating, in relation to each program broadcast during the reference month, the following information:

11. At any time during the period set out in subsection 12(1), CMRRA may require the production of any contract granting rights referred to in paragraph (c) of the definition of “gross income,” together with the billing or correspondence relating to the use of those rights by other parties, and CBC shall provide that information within 10 days after receiving a request in writing from CMRRA.

Records and Audits

12. (1) 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 information set out in sections 8, 9, 10, and 11, any other information that must be provided under this tariff, and the amounts owed under this tariff, can be readily ascertained.

(2) CMRRA may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.

(3) CMRRA shall, upon receipt of the audit report, supply a copy to CBC.

(4) If an audit discloses that royalties due to CMRRA have been understated in any month by more than 10 per cent, CBC shall pay the reasonable costs of the audit within 30 days of a demand for such payment.

Breach and Termination

13. (1) If CBC fails to provide any information required under this tariff within five business days of the date on which the information is required, or to pay royalties within five business days of the date on which the royalties are due, it will not be entitled to do any of the acts described in section 3 as of the first day of the month in relation to which the information should have been provided or the royalties should have been paid, as the case may be, and until the information is provided and the royalties and any accrued interest are paid.

(2) If CBC fails to comply with any other provision of this tariff, it will not be entitled to do any of the acts described in section 3 as of five business days after CMRRA has notified CBC in writing of that failure and until CBC remedies that failure.

(3) If CBC becomes insolvent, commits an act of bankruptcy, makes an assignment for the benefit of its creditors, files for protection under the Companies’ Creditors Arrangement Act or other comparable legislation in another jurisdiction, winds up its affairs, ceases to carry on business, or has a receiver/manager appointed for it or for a substantial part of its property, it will not be entitled to do any of the acts described in section 3 as of the day immediately preceding the day of the relevant occurrence.

Confidentiality

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

(2) CMRRA may share information referred to in subsection (1)

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

Adjustments

15. 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.

Interest

16. (1) In the event that CBC does not pay the amount owed under section 8 or provide the information required by sections 8, 9, and 10 by the due date, CBC shall pay to CMRRA interest calculated on the amount owed from the due date until the date both the amount and the information are received by CMRRA. 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 information required by sections 8, 9, and 10 by the due date, CBC shall pay to CMRRA a late fee of $50.00 per day from the due date until the date the information is received by CMRRA.

Addresses for Notices, etc.

17. (1) Anything that CBC sends to CMRRA shall be sent to 56 Wellesley Street West, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax number: 416-926-7521, or to any other address, email address or fax number of which CBC has been notified in writing.

(2) Anything that CMRRA sends to CBC shall be sent to the last address, email address or fax number of which CMRRA has been notified in writing.

Delivery of Notices and Payments

18. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by email, by fax, or by File Transfer Protocol (FTP). A payment must be delivered by hand, by postage-paid mail, or as otherwise agreed upon by CMRRA and CBC.

(2) Information provided pursuant to sections 8, 9, and 10 shall be provided electronically, in a format agreed upon by CMRRA and CBC.

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

(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.

STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA FOR THE REPRODUCTION OF MUSICAL WORKS, IN CANADA, BY AUDIOVISUAL SERVICES IN 2018

Tariff No. 7

Short Title

1. This tariff may be cited as the CMRRA Audiovisual Services Tariff, 2018.

Definitions

2. The following definitions apply in this tariff.

“additional information” means, in relation to each musical work contained in a file, the following information, if available:

“audiovisual content” means any combination of sounds and visual images that is intended to inform, enlighten, or entertain, irrespective of its duration, initial intended use, or manner of distribution, but excludes a music video covered by the CMRRA Online Music Services Tariff (Music Videos). (« contenu audiovisuel »)

“audiovisual service” means a service that delivers audiovisual content to end users as streams, downloads, or both, by any means of telecommunication (including the Internet or another digital network), and includes, for greater certainty, any form of video-on-demand service. (« service audiovisuel »)

“CMRRA” means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

“CMRRA work” means all or part of a musical or dramatico-musical work of which CMRRA may authorize the reproduction in Canada, in proportion to the rights it holds. (« œuvre CMRRA »)

“CSI” means CMRRA-SODRAC Inc. (« CSI »)

“download” means a file intended to be copied onto an end user’s local storage medium or device. (« téléchargement »)

“file” means a digital file of audiovisual content. (« fichier »)

“free subscription” means the provision of free access to downloads or streams to a subscriber. (« abonnement gratuit »)

“identifier” means the unique identifier assigned to any audiovisual content, musical work, sound recording, cue sheet, file, album, or other product, as the case may be. (« identificateur »)

“gross revenue” means the aggregate of

excluding any revenues that are already included in calculating royalties pursuant to another CMRRA or CSI tariff. (« revenus bruts »)

“limited download” means a download that uses technology that causes the file to become unusable upon the happening of a certain event. (« téléchargement limité »)

“non-subscriber” means an end user other than a subscriber, and includes an end user who receives downloads or streams from an audiovisual service subject to the requirement that advertising be viewed or listened to. (« non-abonné »)

“permanent download” means a download other than a limited download. (« téléchargement permanent »)

“play” means the single performance of a stream. (« écoute »)

“program” means any audiovisual content other than user-generated content. (« émission »)

“quarter” means from January to March, from April to June, from July to September and from October to December. (« trimestre »)

“reference month” means the second month before the month for which royalties are being paid. (« mois de référence »)

“required information” means, in relation to a file,

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

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

“user-generated content” means any audiovisual content that includes one or more musical works and that is created by anyone other than the creator or creators of the underlying musical works or a person authorized by the creator or creators. (« contenu généré par les utilisateurs »)

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

Application

3. (1) This tariff entitles an audiovisual service that complies with this tariff, and its authorized distributors, to

all solely in connection with the operation of the service.

(2) The reproductions referred to in subsection (1) shall be limited to the CMRRA work as embodied in the audiovisual content, including the associated visual images.

4. This tariff does not authorize

ROYALTIES

Streams

5. (1) The royalties payable to CMRRA for a month by an audiovisual service that offers streams of programs, user-generated content, or both, but does not offer downloads, shall be 4.95 per cent of the gross revenue of the service for the reference month, subject to a minimum equal to the greater of

Amount of music in file

Amount per
play

No more than 5 minutes

1.39¢

More than 5 but no more than 10 minutes

3.68¢

More than 10 but no more than 20 minutes

6.63¢

More than 20 but no more than 30 minutes

9.59¢

More than 30 but no more than 45 minutes

12.36¢

More than 45 but no more than 60 minutes

15.01¢

More than 60 but no more than 90 minutes

18.78¢

More than 90 but no more than 120 minutes

23.02¢

More than 120 minutes

25.92¢

Downloads

(2) The royalties payable to CMRRA for a month by an audiovisual service that offers downloads of programs, user-generated content, or both, with or without streams, shall be 4.95 per cent of the gross revenue of the service for the reference month, subject to a minimum equal to the greater of

Amount of music in file

Amount per limited download

Amount per permanent download

No more than 5 minutes

1.49¢

1.98¢

More than 5 but no more than 10 minutes

3.92¢

5.21¢

More than 10 but no more than 20 minutes

6.86¢

9.13¢

More than 20 but no more than 30 minutes

10.01¢

13.32¢

More than 30 but no more than 45 minutes

13.15¢

17.48¢

More than 45 but no more than 60 minutes

16.12¢

21.43¢

More than 60 but no more than 90 minutes

20.17¢

26.98¢

More than 90 but no more than 120 minutes

24.72¢

32.84¢

More than 120 minutes

27.84¢

36.96¢

(3) For clarity, an audiovisual service that permits an end user to copy files onto a local storage medium or device for later access shall pay royalties pursuant to subsection (2), not pursuant to subsection (1).

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

(5) For the purpose of calculating the minimum payable pursuant to subsections (1)(a) and (2)(a), the number of subscribers shall be determined as at the end of the reference month.

ADMINISTRATIVE PROVISIONS

Service Identification

6. No later than 20 days after the end of the first month during which an audiovisual service makes a file available to the public, the service shall provide to CMRRA the following information:

together with any other trade name under which the service carries on business;

Payment of Royalties

7. No later than the first day of each month, a service shall

Cue Sheets

8. (1) No later than the first day of each month, an audiovisual service that offers programs shall provide CMRRA with any cue sheets available in relation to programs that were delivered to end users for the first time during the reference month, indicating, in relation to each such program, the following information:

(2) An audiovisual service shall provide a cue sheet, if available, for any program that is otherwise identical to any other program if their musical content differs in any way contemplated by paragraph (1)(d) or otherwise.

(3) The cue sheet that an audiovisual service shall provide is that which is received by the audiovisual service from the person from whom the audiovisual service acquires the right to transmit the program. An audiovisual service shall cooperate with CMRRA in any attempt by CMRRA to obtain cue sheets from third parties, regardless of whether such parties produced the program.

(4) In addition to any cue sheets required under subsection (1), an audiovisual service shall also provide CMRRA with any available information that would assist CMRRA in identifying any program available to an end user for the first time during the reference month, and the musical works contained therein, no later than the first day of each month.

Usage Reports

9. (1) No later than the first day of each month, an audiovisual service shall provide to CMRRA a report setting out, for the reference month

(2) Whenever an audiovisual service is required to report its gross revenue for a month, it shall include, separately — and in addition to any other information specifically required by the relevant subsection — the amount of revenue received from subscribers, the amount received from non-subscribers, the amount received from advertisers, the amount attributable to sponsorships, and the amounts received from each additional revenue source.

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. Adjustments to any information provided pursuant to sections 6 to 9 shall be provided with the next report dealing with such information.

Records and Audits

11. (1) An 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 6 to 9 can be readily ascertained.

(2) CMRRA may audit these records at any time during the period set out in subsection (1) on reasonable notice and during normal business hours.

(3) CMRRA shall, upon receipt of the audit report, supply a copy to the audiovisual service.

(4) If an audit discloses that royalties due to CMRRA have been understated in any month by more than 10 per cent, the audiovisual service shall pay the reasonable costs of the audit within 30 days of a demand for such payment.

Breach and Termination

12. (1) An audiovisual service that fails to provide any information required under this tariff within five business days of the date on which the information is required, or to pay royalties within five business days of the date on which the royalties are due, is not entitled to do any of the acts described in section 3 as of the first day of the month in relation to which the information should have been provided or the royalties should have been paid, as the case may be, and until the information is provided and the royalties and any accrued interest are paid.

(2) An audiovisual service that fails to comply with any other provision of this tariff is not entitled to do any of the acts described in section 3 as of five business days after CMRRA has notified the service in writing of that failure and until the service remedies that failure.

(3) An audiovisual service whose owner or operator becomes insolvent, commits an act of bankruptcy, makes an assignment for the benefit of its creditors, files for protection under the Companies’ Creditors Arrangement Act or other comparable legislation in another jurisdiction, winds up its affairs, ceases to carry on business, or has a receiver/manager appointed for it or for a substantial part of its property, is not entitled to do any of the acts described in section 3 as of the day immediately preceding the day of the relevant occurrence.

Confidentiality

13. (1) Subject to subsections (2) and (3), CMRRA shall treat in confidence information received pursuant to this tariff, unless the disclosing party consents in writing to the information being treated otherwise.

(2) CMRRA may share the information referred to in subsection (1)

(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than an audiovisual service or its authorized distributors and who is not under an apparent duty of confidentiality to the service.

Interest

14. (1) In the event that an audiovisual service does not pay the amount owed under section 7 or provide the information required by sections 7 and 9 by the due date, the service shall pay to CMRRA interest calculated on the amount owed from the due date until the date both the amount and the information are received by CMRRA. 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 audiovisual service does not provide the information required by sections 7 and 9 by the due date, the service shall pay to CMRRA a late fee of $50.00 per day from the due date until the date the information is received by CMRRA.

Addresses for Notices, etc.

15. (1) Anything that an audiovisual service sends to CMRRA shall be sent to 56 Wellesley Street West, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax number: 416-926-7521, or to any other address, email address, or fax number of which the service has been notified in writing.

(2) Anything that CMRRA sends to an audiovisual service shall be sent to the last address, email address, or fax number of which CMRRA has been notified in writing.

Delivery of Notices and Payments

16. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email, or by File Transfer Protocol (FTP). A payment must be delivered by hand, by postage-paid mail, or as otherwise agreed upon by CMRRA and the audiovisual service.

(2) Information provided pursuant to sections 6 to 9 shall be delivered electronically, by way of a delimited text file or in any other format agreed upon by CMRRA and the audiovisual service.

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

(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.