Canada Gazette, Part I, Volume 147, Number 3: Regulations Establishing the Periods Within Which Eligible Authors, Eligible Performers and Eligible Makers not Represented by Collective Societies Can Claim Private Copying Remuneration

January 19, 2013

Statutory authority

Copyright Act

Sponsoring agency

Copyright Board

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

Under the Copyright Act (the “Act”), eligible authors, performers and makers (the “eligible rights owners”) have a right to receive remuneration from manufacturers and importers of blank audio recording media in respect of the reproduction for private use of a musical work or a performer's performance of a musical work embodied in a sound recording, or a sound recording in which a musical work, or a performer's performance of a musical work, is embodied. This remuneration is collected by a collecting body designated by the Copyright Board (the “Board”) in accordance with a tariff certified by the Board. The collecting body remits royalties to collective societies acting on behalf of eligible rights owners. The collective societies in turn distribute them to eligible rights owners on a prorated basis.

Subsection 83(11) of the Act provides that eligible rights owners who do not authorize a collective society to act on their behalf (so-called “orphans”) are entitled to seek payment of the remuneration from the collective society that is designated by the Board.

Furthermore, subsection 83(13) provides that the Board may establish by regulation the periods, which shall not be less than 12 months, beginning when the applicable tariff ceases to be effective, within which this entitlement must be exercised by orphans. No regulations pursuant to that subsection have ever been made.

Alternatives

There are no alternatives. According to the Act, the periods for the exercise of the entitlement can only be set in regulations.

Without such regulations, uncertainty exists as to when an orphan rights owner can no longer seek remuneration from a collective society. As a result, the collecting body must maintain reserves for undetermined periods of time in order to cover the risk of possible claims. This delays the distribution of levies from the collecting body to the collective societies and, ultimately, to members of the collectives and indeed prevents that a final distribution ever be made.

Benefits and costs

Once the Regulations Establishing the Periods Within Which Eligible Authors, Eligible Performers and Eligible Makers not Represented by Collective Societies Can Claim Private Copying Remuneration (the Regulations) are made, the period within which the orphan rights owner can make a claim becomes clear. Once the period within which the entitlement can be exercised has expired, the collecting body and the collective societies will be able to allocate the reserves amongst their respective members without having to fear prosecutions from orphans.

Making the Regulations entails no costs for the Board, for the federal public administration, for the collecting body, for the collective societies or for the eligible rights owners. In fact, this will reduce the collecting body's and the collective societies' operating costs as they will be able to proceed to the final allocation of the reserve funds.

The Regulations have no impact on the environment.

The Regulations do not increase the regulatory burden. Instead, they clarify a situation which, absent regulations, remains uncertain and therefore creates difficulties for orphan rights owners as well as for the collecting body and the collective societies.

Consultation

Only the collecting body (on its behalf and on behalf of its member collectives) was consulted. The collective societies represent the known universe of eligible rights owners. The collecting body and the collective societies received a copy of the proposed Regulations and of the proposed Regulatory Impact Analysis Statement. All agree that the Regulations should be based on the following four principles:

• Orphan rights owners should be treated exactly as eligible rights owners who have authorized a collective society to act on their behalf. Accordingly, the entitlement of orphans should be for the same period as is established by the collecting body's internal distribution policy with respect to final distribution to collective societies;
• The respective final distributions to eligible rights owners cannot be synchronous, given the varying difficulties in identifying eligibility in each college. Accordingly, the proposed Regulations must allow for the entitlement periods to vary between orphans, depending on the college to which they belong;
• Given the Act's requirements and the implied status of collective societies as trustee of other people's money, it is important for final distribution to occur as soon as practicable after the collecting body has received the levies. Accordingly, where final distribution is feasible for one rights owners' college, it should not be delayed by the fact that another college is not yet ready for final distribution; and
• The first years of distribution take longer than later years due to the time required to implement distribution processes and systems, and to compile complete distribution data.

The proposed Regulations reflect these principles.

Orphan rights owners are necessarily not known and are not represented. It was therefore impossible to consult with them.

Compliance and enforcement

Compliance and enforcement mechanisms are not required. The Regulations establish a period of entitlement which is self-explanatory.

Contact

Gilles McDougall
Secretary General
Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
Telephone: 613-952-8624
Fax: 613-952-8630
Email: gilles.mcdougall@cb-cda.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Copyright Board, pursuant to paragraph 83(13)(b) (see footnote a) of the Copyright Act (see footnote b), proposes to make the annexed Regulations Establishing the Periods Within Which Eligible Authors, Eligible Performers and Eligible Makers not Represented by Collective Societies Can Claim Private Copying Remuneration.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must be sent by mail to Gilles McDougall, Secretary General, Copyright Board, 56 Sparks Street, Suite 800, Ottawa, Ontario K1A 0C9, by fax to 613-952-8630 or by email to gilles.mcdougall@cb-cda.gc.ca.

Ottawa, January 11, 2013

CLAUDE MAJEAU
Vice-Chairman and Chief Executive Officer
Copyright Board

REGULATIONS ESTABLISHING THE PERIODS WITHIN WHICH ELIGIBLE AUTHORS, ELIGIBLE PERFORMERS AND ELIGIBLE MAKERS NOT REPRESENTED BY COLLECTIVE SOCIETIES CAN CLAIM PRIVATE COPYING REMUNERATION

Definition of “Act”

1. In these Regulations, “Act” means the Copyright Act.

Eligible authors

2. The period within which an eligible author must exercise the entitlement referred to in subsection 83(11) of the Act is

• (a) in respect of the Private Copying Tariff, 1999-2000, from December 31, 2000 to December 31, 2013;
  
• (b) in respect of the Private Copying Tariff, 2001-2002, from December 31, 2002 to December 31, 2013;
  
• (c) in respect of the Private Copying Tariff, 2003-2004, from December 31, 2004 to December 31, 2013; and
  
• (d) in respect of any other tariff certified by the Board under paragraph 83(8)(c) of the Act, from the day on which the tariff ceases to be effective to December 31 of the seventh year after the year in which the tariff ceases to be effective.

Eligible performers

3. The period within which an eligible performer must exercise the entitlement referred to in subsection 83(11) of the Act is

• (a) in respect of the Private Copying Tariff, 1999-2000, from December 31, 2000 to December 31, 2016;
  
• (b) in respect of the Private Copying Tariff, 2001-2002, from December 31, 2002 to December 31, 2016;
  
• (c) in respect of the Private Copying Tariff, 2003-2004, from December 31, 2004 to December 31, 2016;
  
• (d) in respect of the Private Copying Tariff, 2005-2007, from December 31, 2007 to December 31, 2016;
  
• (e) in respect of the Private Copying Tariff, 2008-2009, from December 31, 2009 to December 31, 2016; and
  
• (f) in respect of any other tariff certified by the Board under paragraph 83(8)(c) of the Act, from the day on which the tariff ceases to be effective to December 31 of the seventh year after the year in which the tariff ceases to be effective.

Eligible makers

4. The period within which an eligible maker must exercise the entitlement referred to in subsection 83(11) of the Act is

• (a) in respect of the Private Copying Tariff, 1999-2000, from December 31, 2000 to December 31, 2013;
  
• (b) in respect of the Private Copying Tariff, 2001-2002, from December 31, 2002 to December 31, 2013;
  
• (c) in respect of the Private Copying Tariff, 2003-2004, from December 31, 2004 to December 31, 2013;
  
• (d) in respect of the Private Copying Tariff, 2005-2007, from December 31, 2007 to December 31, 2013; and
  
• (e) in respect of any other tariff certified by the Board under paragraph 83(8)(c) of the Act, from the day on which the tariff ceases to be effective to December 31 of the fifth year after the year in which the tariff ceases to be effective.

COMING INTO FORCE

Registration

5. These Regulations come into force on the day on which they are registered.

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