Canada Gazette, Part I, Volume 146, Number 24: SUPPLEMENT

June 16, 2012

COPYRIGHT BOARD

FILE: Reprography 2013-2015

Statement of Proposed Royalties to Be Collected for the Reprographic Reproduction, in Canada, of Works in Access Copyright’s Repertoire for the Years 2013-2015

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by The Canadian Copyright Licensing Agency (Access Copyright) on March 30, 2012, with respect to the royalties it proposes to collect, effective on January 1, 2013, for the reprographic reproduction, in Canada, of works in its repertoire by educational institutions and persons acting under their authority.

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 15, 2012.

Ottawa, June 16, 2012

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 CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)

For the reproduction, in Canada, from 2013 to 2015, of works in the repertoire of Access Copyright for the purposes of elementary or secondary education.

Short Title

1. This tariff may be cited as the Access Copyright Elementary and Secondary School Tariff, 2013-2015.

Definitions

2. In this tariff,

“Choral Work” means a Published Work written to be sung by a choir or other group of singers, with or without any instrumental accompaniment. (« Œuvre chorale »)

“Commercially Available” means that the Published Work is, at the time in question, offered for sale new through one or more then-customary channels of trade in Canada. (« Disponible dans le commerce »)

“Copy” means a visually perceptible reproduction made by any of the following processes:

  • (a) reproducing by reprographic process, which includes facsimile reproduction by photocopying and xerography;
  • (b) reproducing onto microform (including microfilm and microfiche);
  • (c) reproducing by
    • (i) typing or word-processing without adaptation,
    • (ii) hand transcription or drawing (including tracing) onto acetate or other media, and
    • (iii) duplicating from a stencil;
  • (d) reproducing by a machine, device or computer that makes a Digital Copy;
  • (e) facsimile transmission; and
  • (f) transmission by video telecommunication

and includes the Digital Copy, but does not include a mechanical reproduction of a Musical Work. («Copie»)

“Copying” means making a Copy. (« Copier »)

“Course Pack” means a compilation of materials (bound or otherwise assembled, either at once or gradually over time) that is designed for use by students of an Educational Institution to support a course or unit of study and is either intended, or may reasonably be expected, to be used instead of a Published Work that might otherwise have been purchased. A Course Pack may comprise a variety of types of material, published and unpublished, and may include original content. A compilation that includes Copies of Published Works taken from fewer than four sources or totalling fewer than 20 pages is not a Course Pack for the purposes of this tariff. (« Recueil de cours »)

“Digital Copy” means any electronic file. (« Copie numérique »)

“Educational Institution” means a Public Educational Institution and a Private Educational Institution. (« Établissement d’enseignement »)

“Full-time-equivalent Student” means a full-time student or the equivalent of one student qualifying as a full-time student of an Educational Institution. (« Élève équivalent temps plein »)

“FTE Determination Date” means the date as of which the number of Full-time-equivalent Students is calculated for any given year. (« Date de détermination de l’ÉTP »)

“Grand Right Work” means an opera, operetta, musical play, musical, pantomime, ballet, large choral work or other Musical Work that, if performed, would last over 20 minutes in duration. (« Œuvre de grand droit »)

“Library” means a resource or learning centre or any similar collection of Published Works that is operated under the authority of a Licensee. (« Bibliothèque »)

“Licensee” means any Minister, Ministry, School Board or Private Educational Institution licensed pursuant to this tariff. (« Titulaire de licence »)

“Minister” means the person appointed as responsible for a Ministry. (« Ministre »)

“Ministry” means Alberta Education, British Columbia Ministry of Education, Manitoba Education, New Brunswick Department of Education and Early Childhood Development, Newfoundland and Labrador Department of Education, Nova Scotia Department of Education, Nunavut Department of Education, Northwest Territories Education, Culture and Employment, Ontario Ministry of Education, Prince Edward Island Department of Education and Early Childhood Development, Saskatchewan Ministry of Education, Yukon Government Department of Education; or any successor or substituted ministry resulting from a reorganization of the government of a province or territory. (« Ministère »)

“Musical Work” means a Published Work of music or musical composition, with or without words, and includes any compilation thereof. (« Œuvre Musicale »)

“Orchestral or Band Work” means a Published Work scored for multiple musical instruments. (« Œuvre pour orchestre ou groupe musical »)

“Private Educational Institution” means an institution providing primary, elementary or secondary school programming that is not a Public Educational Institution. (« Établissement d’enseignement privé »)

“Public Educational Institution” means any institution providing primary, elementary or secondary school programming funded by a Minister, Ministry or School Board and operated under the authority of a Minister, Ministry or School Board. (« Établissement d’enseignement public »)

“Published Work” means a literary, dramatic, musical or artistic work protected by copyright in Canada, of which copies have been made available to the public with the consent or acquiescence of the copyright owner, but does not include a work created in digital form which does not have a corresponding print version. (« Œuvre publiée »)

“Repertoire” means those Published Works published in or outside of Canada by any author or publisher, estate of an author or publisher or other person with a copyright interest in the Published Works who, by assignment, grant of licence or by appointment as an agent or otherwise, has authorized Access Copyright to collectively administer reproduction rights in Published Works and those Published Works published in or outside of Canada by other copyright owners where an agreement between Access Copyright and another reproduction rights collective society authorizes Access Copyright to represent such other copyright owners. (« Répertoire »)

“School Board” means a school board, school district, divisional education council, conseil scolaire or similar entity or organization established by, and operating under, the authority of a Minister or Ministry. (« Commission scolaire »)

“School Year” means from September 1 to August 31. (« Année scolaire »)

“Secure Authentication” means a process of authentication which, at the time of login, identifies each user, whether by user name and password or by some other equally secured method. (« Authentification sécurisée »)

“Year” means a calendar year. (« Année »)

Application

3. (1) Subject to subsection 3(3) and section 4, this tariff entitles School Boards, Educational Institutions and persons acting under their authority to make and distribute Copies of Published Works in the Repertoire, for any not-for-profit purpose within or in support of the mandate of Educational Institutions in Canada, including

  • (a) educational (including testing and examination activities), professional, research, archival, administrative and recreational activities;
  • (b) communicating with and the provision of information to parents or guardians, school advisory/parent councils and other members of the community served by an Educational Institution;
  • (c) production of teacher implementation documents, correspondence school and distance learning courses, curriculum documents, workshop packages, provincial examinations and all other similar activities; and
  • (d) making a reasonable number of Copies for on-site consultation in a Library or loan by a Library.

(2) Subject to subsection 3(3) and section 4, this tariff entitles Ministries and persons acting under their authority to make and distribute Copies of Published Works in the Repertoire for inclusion in tests or examinations or in distance education materials.

(3) Subject to section 4, School Boards, Educational Institutions, Ministries and persons acting under their authority may

  • (a) Copy up to 10 per cent of a Published Work in the Repertoire, provided that such limit may be exceeded in respect of
    • (i) an entire newspaper article or page,
    • (ii) an entire single short story, play, essay, article or poem from a Published Work that contains other Published Works,
    • (iii) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,
    • (iv) an entire reproduction of an artistic work (including drawings, paintings, prints, photographs and reproductions of works of sculpture, architectural works of art and works of artistic craftsmanship), from a Published Work that contains other Published Works,
    • (v) one chapter, provided it is no more than 20 per cent of a book,
    • (vi) an entire reproduction of a Musical Work provided that, if taken from a book, it forms no more than 20 per cent of that book, and
    • (vii) up to 100 per cent of reproducibles such as blackline masters;
  • (b) notwithstanding paragraph 4(1)(a), Copy up to a cumulative maximum of 10 per cent of a workcard that is a Published Work in the Repertoire, if such Copies are made to replace purchased originals and the portion Copied is no longer Commercially Available; and
  • (c) except where otherwise stated, make and distribute the number of Copies of Published Works in the Repertoire that are
    • (i) sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies,
    • (ii) required for administrative purposes, including communication of information to parents, school advisory/parent councils and other members of the community served by an Educational Institution, and
    • (iii) a reasonable number of Copies for on-site consultation in a Library or for loan by a Library.

(4) With respect to Musical Works, make and distribute

  • (a) the number of Copies of a Choral Work in the Repertoire which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough sheet music or songbooks containing the Choral Work to supply at least 75 per cent of the largest group of Full-time-equivalent Students singing that Choral Work at any given time in any School Year;
  • (b) the number of Copies of an Orchestral or Band Work in the Repertoire which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough instrumental parts of the Orchestral or Band Work to supply at least 50 per cent of the largest group of Full-time-equivalent Students playing that Orchestral or Band Work at any given time in any School Year;
  • (c) the number of Copies of Commercially Available sheet music in the Repertoire, other than sheet music of a Choral Work or an Orchestral or Band Work, which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough Commercially Available sheet music such that the sheet music could be provided to at least 75 per cent of the largest group of Full-time-equivalent Students using that sheet music at any given time in any School Year;
  • (d) the number of Copies of sheet music in the Repertoire that is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies of sheet music that is not Commercially Available;
  • (e) one Copy of a Musical Work in the Repertoire for archival purposes or to replace copies that are lost, damaged, destroyed or otherwise unusable over time;
  • (f) Copies that transpose or adapt a Musical Work in the Repertoire plus a sufficient number of Copies of that transposed or adapted Musical Work to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies, subject to paragraphs 3(4)(a) to (c) whenever the sheet music or songbook is Commercially Available; and
  • (g) a Copy of a Musical Work in the Repertoire to be used to project, display or interact with an image of the Musical Work for presentation to students using, but not limited to, an overhead projector, LCD or plasma monitor or interactive whiteboard, subject to paragraphs 3(4)(a) to (c).

General Prohibitions

4. (1) Copies shall not be made, without prior written permission from the rights holder or the rights holder’s legal representative, of

  • (a) workcards, subject to paragraph 3(3)(b);
  • (b) instruction manuals and teachers’ guides;
  • (c) Grand Right Works; and
  • (d) Published Works that contain a notice prohibiting Copying under a licence from a collective society.

(2) There shall be no intentional cumulative Copying from the same Published Work in the Repertoire beyond the limits set out in paragraph 3(3)(a) for one course of study or program in one School Year or over time for retention in files maintained by a Library or any individual making Copies under the authority of a Licensee.

(3) Copies of Published Works in the Repertoire shall not be made for or used in a Course Pack.

(4) Copies of Published Works in the Repertoire shall not be sold (a sale of Copies shall not include a transaction whereby a Licensee recovers an amount not exceeding the direct cost of producing and distributing Copies).

(5) Copies of Published Works in the Repertoire shall not be made or used in a manner that would infringe the moral rights of any author, artist or illustrator.

(6) Except as specifically permitted by paragraph 3(4)(f), Copies shall be faithful and accurate reproductions of the original Published Work.

(7) Copies of Published Works in the Repertoire shall not be used in connection with products and merchandise, such as posters, T-shirts and mugs, or in advertising or promotional materials for a commercial product or service.

Additional Limitations Regarding Digital Copies

5. (1) Digital Copies of Published Works in the Repertoire shall not be placed on any computer or computer network on the publicly accessible Internet in such a way as to be made publicly available or accessible otherwise than by Secure Authentication which identifies the user’s status as an employee of a Ministry, School Board or a teacher, staff, student or parent or guardian of a student of the Educational Institution.

(2) Digital Copies of Published Works in the Repertoire shall not be shared, emailed or otherwise distributed to any persons other than an employee of a Ministry, School Board or a teacher, staff, student or parent or guardian of a student of the Educational Institution.

(3) Digital Copies of Published Works in the Repertoire shall not be stored, or systematically indexed, with the intention or result of creating an electronic database of Published Works or an educational learning resource.

(4) Where the Licensee is no longer covered by a tariff for the making and distribution of Digital Copies of Published Works in the Repertoire, the Licensee and persons acting under its authority shall immediately cease to use Digital Copies of Published Works in the Repertoire, delete from their hard drives, servers or storage area network, and make reasonable efforts to delete from any other device or medium capable of storing Digital Copies, those Digital Copies of Published Works in the Repertoire and upon written request from Access Copyright shall certify that it has done so.

Attribution

6. To the extent possible, Copies of Published Works in the Repertoire made pursuant to this tariff shall include, on at least one page, a credit to the author, artist or illustrator, and to the source.

Notification of the Terms and Conditions of Copying

7. A Licensee shall ensure there is affixed, within the immediate vicinity of each machine or device used for making Copies in a place and manner that is readily visible and legible to persons using such machine or device, a notice of the terms of this tariff in the form set out by the Copyright Board.

Royalties

8. (1) The Licensee shall pay an annual royalty to Access Copyright, calculated by the sum of multiplying the number of its Full-time-equivalent Students by each of the following:

  • (a) $1.35 CAD for the Copying of Musical Works in the Repertoire (including Choral Works, Orchestral and Band Works, sheet music and songbooks);
  • (b) $2.45 CAD for the Copying of material intended for one-time use such as workbooks, assignment sheets and activity books that are Published Works in the Repertoire; and
  • (c) $5.70 CAD for the Copying of all other Published Works in the Repertoire.

(2) Royalties shall be calculated on an annual basis with reference to Full-time-equivalent Student statistics provided pursuant to subsection 9(4).

Reporting and Payment

9. (1) Royalties shall be payable in two equal instalments.

(2) The first instalment shall be paid on or before the later of April 30 of each year and 60 days after the Licensee has received the invoice required pursuant to subsection 9(5) in respect of that instalment.

(3) The second instalment shall be paid on or before the later of October 31 of each year and 60 days after the Licensee has received the invoice required pursuant to subsection 9(5) in respect of that instalment.

(4) The Licensee shall deliver to Access Copyright a written notice specifying the number of Full-time-equivalent Students, as of the FTE Determination Date, in the current School Year by no later than January 31 of each School Year.

(5) Access Copyright shall issue to the Licensee invoices setting out the manner in which the royalties were calculated and the amounts payable on each of the instalment dates specified in subsections 9(2) and 9(3).

(6) Royalties payable under this tariff are exclusive of any federal, provincial, or other governmental taxes.

Interest on Late Payments

10. Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Bibliographic Surveys

11. (1) Once every School Year, Access Copyright may advise all Licensees of its intention to conduct a bibliographic survey (paper or digital) in Educational Institutions under their authority.

(2) Within 10 days of receiving a notice pursuant to subsection 11(1), a Licensee shall provide to Access Copyright the name, address, grade levels and enrolment of each Educational Institution that is under its authority.

(3) Within 10 days of receiving the last list requested pursuant to subsection 11(2), Access Copyright shall provide to each Licensee a list of the Educational Institutions under its authority that Access Copyright intends to include in the survey.

(4) Within 10 days of receiving a list pursuant to subsection 11(3), a Licensee may advise Access Copyright that an Educational Institution is, on reasonable grounds that shall be provided to Access Copyright, unable to participate in the survey.

(5) Within 7 days of receiving a notice pursuant to subsection 11(4), Access Copyright may provide to the Licensee the name of another Educational Institution it wishes to survey. Subsection 11(4) then applies, with any necessary modifications, in respect of that other Educational Institution.

(6) Within 10 days after the list of Educational Institutions to be surveyed is finalized, a Licensee shall supply to Access Copyright, with respect to each such Educational Institution, the name, address, telephone number and, where available, the email address of the school principal or of the person who will coordinate the survey within the Educational Institution, unless the information was on the list supplied pursuant to subsection 11(2).

(7) Within 10 days after the list of Educational Institutions to be surveyed is finalized, a Licensee that is not a School Board shall send to the director of education of each School Board responsible for an Educational Institution to be surveyed a letter substantially in the form set out by the Copyright Board. The Licensee shall send a copy of the letter to Access Copyright.

(8) No less than 15 days after the list of Educational Institutions to be surveyed is finalized and no later than 30 days before the survey period for an Educational Institution, Access Copyright shall send to the director of education for the Educational Institution a letter substantially in the form set out by the Copyright Board.

(9) Within 5 school days of receiving a letter pursuant to subsection 11(8), a director of education shall send to the principal of each Educational Institution mentioned in the letter a memorandum substantially in the form set out by the Copyright Board.

(10) Within 10 school days of receiving a letter pursuant to subsection 11(8), a director of education may advise Access Copyright that an Educational Institution is, on reasonable grounds that shall be provided to Access Copyright, unable to participate in the survey.

(11) Within 5 days of receiving a notice pursuant to subsection 11(10), Access Copyright may provide to the director of education the name of another Educational Institution it wishes to survey. Subsection 11(10) then applies, with any necessary modifications, in respect of that other Educational Institution.

(12) No less than 10 school days before the start of the survey period for an Educational Institution, Access Copyright shall send to the Educational Institution a letter substantially in the form set out by the Copyright Board.

(13) A paper survey shall last 10 consecutive school days. During the survey, an Educational Institution shall make a Copy of the page of each Copied Published Work that contains the most bibliographic information and shall indicate, on a sticker supplied by Access Copyright and to be affixed to the back of the Copy, the date the Copy was made, the number of original pages Copied from the Published Work and the number of sets of Copies made.

(14) A digital survey shall last up to 20 consecutive school days. During the survey, staff at the Educational Institution shall provide Access Copyright with a Digital Copy of all Digital Copies made of a Published Work that were used during the School Year. They shall also provide the date the Digital Copy was made, the medium or device on which the Digital Copy is being stored, information on whether the Digital Copy has been or will be viewed or accessed by others and, if the Digital Copy has been or will be viewed or accessed by others (including presentation in a classroom), the number of people it has been or will be viewed or accessed by.

(15) A representative of Access Copyright may, with the prior authorization of the principal of the Educational Institution being surveyed, monitor the conduct of all or part of the survey. The authorization shall not be unreasonably withheld. Before granting the authorization, the principal may require Access Copyright to provide information required by law or pursuant to School Board policy regarding access to school premises.

(16) The information set out in subsections 11(13) and 11(14) shall be provided to Access Copyright no later than 14 days after the end of the survey period.

(17) An Educational Institution that has participated in a survey during a School Year cannot be surveyed in the next two School Years.

(18) An Educational Institution that unreasonably refuses to participate in the survey, that unreasonably withholds the authorization mentioned in subsection 11(15) or that otherwise does not comply with this section ceases to be entitled to the benefit of this tariff until it so complies.

Records and Audits

12. (1) The Licensee shall keep and preserve, for a period of six years after the end of the School Year to which they relate, records (which may include internal audits) from which the royalties payable pursuant to this tariff can be readily ascertained.

(2) No more than once per School Year, Access Copyright may audit these records on seven days’ written notice to the Licensee and during normal business hours.

(3) Access Copyright shall, upon receipt, supply a copy of the report of the audit to the Licensee which was the subject of the audit.

(4) If an audit discloses that royalties due have been understated in respect of any instalment by more than 10 per cent, the Licensee shall pay the reasonable costs of the audit.

Adjustments

13. Adjustments in the amount of royalties owed (including overpayments) as a result of the discovery of an error or otherwise, shall be applied to the next invoice issued by Access Copyright to the Licensee or, if the tariff no longer applies, within 60 days.

Addresses for Notices and Payment

14. (1) Anything that a Licensee sends to Access Copyright, shall be sent to

Executive Director, Access Copyright
The Canadian Copyright Licensing Agency
One Yonge Street, Suite 800
Toronto, Ontario M5E 1E5
Telephone: 416-868-1620
Fax: 416-868-1621
Email: schooltariff@accesscopyright.ca

(2) Anything that Access Copyright sends to a Licensee shall be sent to the last address of which Access Copyright has been notified in writing.

Delivery of Notices and Payment

15. (1) A notice may be delivered by hand, by postage-paid mail, by fax or by email. A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer.

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

(3) Anything sent by fax, by email or by electronic bank transfer shall be presumed to have been received on the first business day following the day it is transmitted.

Transitional Provision: Interest Accrued before the Certification of the Tariff

16. Any amount payable before [insert date of certification of the tariff] shall be due [insert date immediately following certification of the tariff] and shall be increased by using the multiplying factor (based on the bank rate) set out in the following table [insert table with applicable bank rate].