Canada Gazette, Part I, Volume 147, Number 24: SUPPLEMENT

June 15, 2013

COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings

Statement of Proposed Royalties to Be Collected for the Performance in Public or the Communication to the Public by Telecommunication, in Canada, of Published Sound Recordings Embodying Musical Works and Performers' Performances of Such Works

In accordance with subsection 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by Re:Sound Music Licensing Company (Re:Sound) on March 28, 2013, with respect to royalties it proposes to collect, effective January 1, 2014, for the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers' performances of such works.

In accordance with the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than August 14, 2013.

Ottawa, June 15, 2013

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 RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS BY PAY AUDIO SERVICES FOR THE YEARS 2014 TO 2016

Tariff No. 2

PAY AUDIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Pay Audio Services Tariff, 2014-2016.

Definitions

2. In this tariff,

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

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

“ ‘premises' means

• (a) a dwelling, including a single-unit residence or a single unit within a multiple-unit residence, or
• (b) a room in a commercial or institutional building;” (« local »)

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

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

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

“ ‘service area' means an area in which premises served in accordance with the laws and regulations of Canada by a cable transmission system are located;” (« zone de service »)

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

“similar transmission service” means a telecommunications service from which a file is communicated to a mobile device, including a cellular phone, smartphone or tablet, utilizing the Internet and/or other transmission protocols; (« service de transmission semblable »)

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

“3. (1) Subject to subsections (2) to (4) and section 4, ‘small cable transmission system' means a cable transmission system that transmits a signal, with or without a fee, to not more than 2,000 premises in the same service area.

(2) For the purpose of subsection (1), where a cable transmission system is included in the same unit as one or more other cable transmission systems, the number of premises to which the cable transmission system transmits a signal is deemed to be equal to the total number of premises to which all cable transmission systems included in that unit transmit a signal.

(3) For the purpose of subsection (2), a cable transmission system is included in the same unit as one or more other cable transmission systems where

• (a) they are owned or directly or indirectly controlled by the same person or group of persons; and
• (b) their service areas are each less than 5 km distant, at some point, from at least one other among them, and those service areas would constitute a series of contiguous service areas, in a linear or non-linear configuration, were it not for that distance.

(4) Subsection (2) does not apply to a cable transmission system that was included in a unit on December 31, 1993.

4. The definition set out in subsection 3(1) does not include a cable transmission system that is a master antenna system located within the service area of another cable transmission system that transmits a signal, with or without a fee, to more than 2,000 premises in that service area;”(« petit système de transmission par fil »)

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

Application

3. (1) This tariff sets the royalties to be paid for the communication to the public by telecommunication of published sound recordings embodying musical works and performers' performances of such works in Re:Sound's repertoire, in connection with the transmission by a distribution undertaking of a pay audio signal for private or domestic use, whether or not there is a fee for the transmission.

(2) This tariff does not apply to uses covered by other tariffs, including Re:Sound tariffs 3, 8 and 8.B. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or any similar transmission service.

Royalties

4. (1) Subject to subsection (2), the royalties payable to Re:Sound are 15 per cent of the affiliation payments payable during a month by a distribution undertaking for the transmission for private or domestic use of a pay audio signal.

(2) The royalties payable to Re:Sound are 7.5 per cent of the affiliation payments payable during a year by a distribution undertaking for the transmission for private or domestic use of a pay audio signal, where the distribution undertaking is

• (a) a small cable transmission system;
• (b) an unscrambled Low Power Television Station or Very Low Power Television Station (as defined in Sections E and G of Part ⅠV of the Broadcast Procedures and Rules of Industry Canada effective April 1997); or
• (c) a system which performs a function comparable to that of a cable transmission system, which uses Hertzian waves to transmit the signals and which otherwise meets the definition of “small transmission system.”

Dates of Payments

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

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

Reporting Requirements

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

• (a) the name of the distribution undertaking;
• (b) the list of pay audio signals the programming undertaking supplied to the distribution undertaking for transmission for private or domestic use; and
• (c) the amount of the affiliation payments payable for the transmission for private or domestic use of these signals.

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

• (a) the name of the programming undertaking;
• (b) the list of pay audio signals supplied to the distribution undertaking by the programming undertaking for transmission for private or domestic use; and
• (c) the amount of the affiliation payments payable for the transmission for private or domestic use of these signals.

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

• (a) the number of premises served in the system on the last day of each month for which payment is being made;
• (b) if the system is a master antenna system and is located within the service area of another cable transmission system, the name of that other system and a statement to the effect that the other system transmits a signal, with or without a fee, to not more than 2 000 premises in its service area; and
• (c) if the system is included in a unit within the meaning of the Definition of “Small Cable Transmission System” Regulations,
  • (i) the date the system was included in the unit,
  • (ii) the names of all the systems included in the unit,
  • (iii) the names of the person or group of persons who own or who directly or indirectly control the systems included in the unit, and
  • (iv) the nature of the control exercised by these persons.

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

Sound Recording Use Information

7. (1) No later than the 14th day of each month, a programming undertaking shall provide to Re:Sound, the sequential lists of all musical works and published sound recordings played on each pay audio signal during the previous month. Each entry shall include the following information:

• (a) the date of the broadcast;
• (b) the time of the broadcast;
• (c) the title of the sound recording;
• (d) the title of the album;
• (e) the catalogue number of the album;
• (f) the track number on the album;
• (g) the record label;
• (h) the name of the author and composer;
• (i) the name of all performers or the performing group;
• (j) the duration of the sound recording broadcast, in minutes and seconds;
• (k) the duration of the sound recording as listed on the album, in minutes and seconds;
• (l) the Universal Product Code (UPC) of the album;
• (m) the International Standard Recording Code (ISRC) of the sound recording;
• (n) the type of usage (feature, theme, background, etc.);
• (o) whether the track is a published sound recording; and
• (p) any alternative title used to designate the sound recording.

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

Records and Audits

8. (1) A programming undertaking shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in section 7 can be readily ascertained.

(2) Both the distribution undertaking and the programming undertaking shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which a distribution undertaking's affiliation payments to the programming undertaking can be readily ascertained.

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

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the undertaking that was audited.

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

Confidentiality

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

(2) Information referred to in subsection (1) may be shared

• (a) with any other collective society;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Copyright Board if the undertaking who supplied the information had the opportunity to request a confidentiality order;
• (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and
• (e) if required by law.

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

Adjustments

10. (1) A programming undertaking or distribution undertaking making payment under this tariff, that subsequently discovers an error in the payment shall notify Re:Sound of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the programming undertaking or distribution undertaking which occurred more than 12 months prior to its discovery and notification to Re:Sound.

(2) When an error is discovered by Re:Sound at any point in time, Re:Sound shall notify the programming undertaking or distribution undertaking to which the error applies, and an appropriate adjustment shall be made to the next payment due following notification.

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation, an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to section 8(3).

Interest and Penalties on Late Payments and Reporting

11. (1) In the event that a programming undertaking or distribution undertaking does not pay the amount owed under section 4(1) or 4(2) or provide the reporting information required by section 6 by the due date, the programming undertaking or distribution undertaking shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a programming undertaking does not provide the sequential lists required by section 7 by the due date, the programming undertaking shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

13. (1) A notice may be delivered by hand, by postage-paid mail, by email or by fax.

(2) A notice or payment mailed in Canada shall be presumed to have been received four business days after the day it was mailed.

(3) A notice sent by fax or email shall be presumed to have been received the day it is transmitted.

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2014-2017

Tariff No. 6.B

USE OF MUSIC IN FITNESS VENUES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Fitness Tariff, 2014-2017.

Definitions

2. In this tariff,

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

“attendee” means a person who attends a fitness venue, for the purpose of participating in a fitness activity including a fitness class; (« personne présente »)

“dance class” means a lesson in dance instruction whether in a group or individual setting including, without limitation, ballet, jazz, tap and ballroom dance; (« cours de danse »)

“fitness activity” means any form of physical exercise, sport or dance including, without limitation, fitness classes, dance classes, gymnasium workouts, weight training, circuit training, cardio training, running, ice skating, swimming, martial arts, gymnastics, rock climbing, and any other physical fitness activity; (« activité physique »)

“fitness class” means a form of group exercise or sport instruction conducted in a class environment including, without limitation, aerobics, circuit training, boot camp, aqua fitness, cardio, flexibility, stretching and abdominal exercises (including yoga, Pilates and Tai Chi), step, dance-exercise (including hip-hop and Zumba), group cycling (including spinning), strength, toning and resistance exercise, boxing, combat and martial arts activities, group training, age, lifestyle and specialty exercise classes, and swimming and skating lessons, whether or not such class is presented live by a fitness instructor or by video and/or audio instruction or otherwise; (« cours d'activité physique »)

“fitness venue” means an indoor or outdoor venue where a fitness activity is undertaken including, without limitation, fitness centres, gymnasiums, health clubs, leisure and recreation centres, community centres, ice skating rinks and aquatic centres; (« aire d'activité physique »)

“venue” means a single location and includes a fitness venue operating within a multipurpose facility such as a hotel or campus; (« aire »)

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

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, of published sound recordings embodying musical works and performers' performances of such works in fitness venues and to accompany a fitness activity. This tariff applies to all uses of published sound recordings by a fitness venue including in fitness classes and dance classes, to accompany fitness activities, and in all other areas of the venue including lobbies, offices, showers, change-rooms, food, beverage and retail areas.

(2) This tariff shall not apply to a performance in public or communication to the public by telecommunication that is subject to another Re:Sound tariff, including tariffs 3, (Use and Supply of Background Music), 5 (Use of Music to Accompany Live Events) and 6.A (Use of Music to Accompany Dance). For greater certainty, Re:Sound Tariff 3 (Use and Supply of Background Music) does not apply to fitness venues or fitness activities.

Royalties

4. (1) For a fitness venue the royalty payable is as follows:

• (a) a monthly rate of $1.55 per member of the fitness venue; and
• (b) 4.24 per cent of the fees paid by all attendees to attend the fitness venue who are not included under (a).

(2) All fitness venues are subject to a minimum annual fee that is the greater of

• (a) $2.60 per each fitness class and dance class provided in the year, and for all other areas of the fitness venue in which published sound recordings are played (excluding areas used solely for fitness classes and dance classes), $3.36 per square metre or $0.31 per square foot;
• (b) $3.50 times the average number of total attendees of the fitness venue in a week; and
• (c) $500.

Payments

5. (1) Royalties payable pursuant to subsection 4(1) and paragraphs 4(2)(a) and (b) shall be paid quarterly and shall be due no later than 30 days after the end of each quarter for which the royalties are being paid.

(2) Royalties payable pursuant to paragraph 4(2)(c) shall be paid annually, and shall be due no later than January 31 of the year for which the royalties are being paid.

Rate Adjustments to Account for Inflation

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

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

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

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

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

Re:Sound Tariff 6.B (Use of Music in Fitness Venues), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section 4 of the tariff to account for inflation, according to a formula set out in section 6 of the tariff. Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates for [year in which the increase is applied] and thereafter shall be as follows: [new applicable rates].

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

Reporting Requirements

7. (1) A royalty payment made pursuant to section 4 shall include with the payment, for the relevant period,

• (a) the name and address of the fitness venue;
• (b) the name and contact information of the person operating the fitness venue; and
• (c) a statement setting out the information used to calculate the royalty including the minimum fee.

Accounts and Records

8. (1) A fitness venue subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that fitness venue's royalty can be readily calculated, including, without limitation, the number of members of the fitness venue, the amounts paid by attendees to attend the fitness venue, and the information used to calculate the minimum fee pursuant to subsection 4(2).

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

(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the fitness venue that was audited.

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

Confidentiality

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

(2) Information referred to in subsection (1) may be shared

• (a) with any other collective society;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Board, if the fitness venue that supplied the information had the opportunity to request a confidentiality order;
• (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and
• (e) if required by law.

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

Adjustments

10. (1) A fitness venue making a payment under this tariff, that subsequently discovers an error in the payment, shall notify Re:Sound of the error, and shall make the appropriate adjustment to the next payment due following the notification. No adjustments in the amount of royalties owed may be made in respect of an overpayment discovered by the fitness venue which occurred more than 12 months prior to its discovery and notification to Re:Sound.

(2) When an error is discovered by Re:Sound at any point in time, Re:Sound shall notify the fitness venue to which the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 8(2).

Interest on Late Payments

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

Addresses for Notices, etc.

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

(2) Anything addressed to a fitness venue subject to this tariff shall be sent to the last address, email address or fax number provided by that fitness venue to Re:Sound in writing.

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEAR 2014

Tariff No. 8

SIMULCASTING, NON-INTERACTIVE WEBCASTING AND SEMI-INTERACTIVE WEBCASTING

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Simulcasting, Non-Interactive Webcasting and Semi-Interactive Webcasting Tariff, 2014.

Definitions

2. (1) In this tariff,

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

“aggregate tuning hours or ATH” means the total hours of programming that the service has transmitted during the relevant period to all listeners in Canada from all channels and stations that provide audio programming consisting, in whole or in part, of sound recordings. By way of example, if the service transmitted one hour of programming to 10 simultaneous listeners, the service's ATH would be 10; (« nombre total d'heures d'écoute ou NTHE »)

“file” means a digital file of a published sound recording of a musical work; (« fichier »)

“gross revenues” includes all direct and indirect revenues of a service with respect to its communications in Canada by simulcast, non-interactive webcast, and semi-interactive webcast, including, but not limited to,

• (a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the service, including, but not limited to, subscriber fees, connect time charges, access or activation fees, administrative fees, account history fees, returned payment fees, invoice fees, cancellation fees and hardware transfer and other transfer fees, whether made directly to the service or to any entity under the same or substantially the same ownership, management or control, or to any other person, firm or corporation including, but not limited to, any partner or co-publisher of the service, pursuant to an agreement or as directed or authorized by any agent or employee of the service; and
• (b) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the service including, but not limited to, payments associated with syndicated selling, on-line franchising, associate or affiliate programs, bounty, e-commerce or other revenue including revenue from the sale, design, development, manufacture, rental or installation of receiving devices and any other hardware and accessories used in the reception of the service and also includes the value of any goods or services received from any source as barter in connection with the service including, but not limited to, barter received in exchange for providing advertising time or space.

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

“microcaster” means a service that offers simulcasts, non-interactive webcasts and/or semi-interactive webcasts and has

• (a) annual ATH of less than 18,250;
• (b) annual revenues of less than $5,000; and
• (c) annual expenses of less than $10,000

and provides to Re:Sound as part of their reporting, their ATH, revenues and expenses; (« microdiffuseur »)

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

“non-interactive webcast” means a webcast other than a semi-interactive webcast or simulcast; (« webdiffusion non interactive »)

“podcast of a radio station signal” means a radio station broadcast that has been converted to an MP3 file or other audio file format for playback on a digital media player, computer or mobile device; (« baladodiffusion de signaux de stations de radio »)

“semi-interactive webcast” means a webcast in which the file is included within a stream of content that enables only the real-time (or substantially real-time) communication of the streamed content, and

• (a) the content of such communication is influenced by a user of the service having provided to the person making the communication (or a third party) information such as
  • (i) the musical genre the user purchases, consumes or otherwise prefers;
  • (ii) the artist the user purchases, consumes or otherwise prefers;
  • (iii) ratings for a particular artist; or
  • (iv) ratings for a particular sound recording,

• but without enabling any user to receive on request, a specific file from a place and at a time individually chosen by the user;
• and/or
• (b) the user may skip through the communication by advancing to the start of the next file; (« webdiffusion semi-interactive »)

“service” means a site or service from which a file is communicated to a user by simulcast, non-interactive webcast, semi-interactive webcast or any combination thereof; (« service »)

“similar transmission service” means a telecommunications service from which a file is communicated to a mobile device, including a cellular phone, smartphone or tablet, utilizing the Internet and/or other transmission protocols; (« service de transmission semblable »)

“simulcast” means the communication of a radio station signal via the Internet or a similar transmission service; (« diffusion simultanée »)

“sound recording performance complement” means that the service will not transmit within any given three-hour period more than

• (a) three different sound recordings from the same album or more than two such recordings transmitted consecutively; or
• (b) four different sound recordings by the same artist (or four different sound recordings from the same compilation) or more than three such recordings transmitted consecutively; (« exigence supplémentaire relative à l'exécution d'enregistrements sonores »)

“user” means a member of the public who receives or accesses a file communicated via the Internet or a similar transmission service; (« utilisateur »)

“webcast” means the communication of a file via the Internet or a similar transmission service, including a file accessed through a computer, digital media player, or mobile device, including a cellular phone, smartphone and tablet; (« webdiffusion »)

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

(2) In this tariff, words in the singular include the plural and words in the plural include the singular.

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound, as equitable remuneration pursuant to section 19 of the Act, for the communication to the public by telecommunication in Canada, of published sound recordings embodying musical works and performers' performances of such works, by simulcast, non-interactive webcast and semi-interactive webcast.

(2) This tariff does not apply to a communication to the public by telecommunication

• (a) that is subject to another Re:Sound tariff, including tariffs 1.A (Commercial Radio), 1.C (CBC Radio), 3 (Background Music), 4 (Satellite Radio Services), and the Pay Audio Services Tariff. For greater certainty, an entity that is subject to another Re:Sound tariff is also subject to this tariff with respect to any communication to the public by telecommunication in Canada by that entity of published sound recordings by simulcast, non-interactive webcast or semi-interactive webcast;
• (b) by podcast; or
• (c) by interactive communication that enables a user to receive, on request, a specific file from a place and at a time individually chosen by the user, such as a download or on-demand webcast of a specific file or album. If a service offers both an interactive communication and a non-interactive webcast, semi-interactive webcast or simulcast (either concurrently or at different times), the non-interactive webcast, semi-interactive webcast and simulcast shall not be treated as part of an interactive communication.

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

ROYALTIES

Simulcasts

4. (1) The royalties payable under subsection 3(1) for sites or services offering only simulcasts and not either or both of non-interactive webcasts and semi-interactive webcasts are $0.00090 for each communication of a file in Canada by the service by simulcast, subject to a minimum fee of $500 per channel up to a maximum of $50,000 annually.

Webcasts — Sound Recording Performance Complement Compliant

(2) The royalties payable under subsection 3(1) for sites or services offering non-interactive webcasts and/or semi-interactive webcasts all of which meet the sound recording performance complement are the greater of

• (a) 21.75 per cent of gross revenues; or
• (b) $0.00113 for each communication of a file in Canada by the service by non-interactive webcast and semi-interactive webcast,

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

Webcasts — Non-Sound Recording Performance Complement Compliant

(3) The royalties payable under subsection 3(1) for sites or services offering non-interactive webcasts and/or semi-interactive webcasts all or part of which do not meet the sound recording performance complement are the greater of

• (a) 25 per cent gross revenues; or
• (b) $0.0023 for each communication of a file in Canada by the service by non-interactive webcast and semi-interactive webcast,

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

Simulcasts and Webcasts

(4) A site or service that offers simulcasts in addition to non-interactive webcasts and/or semi-interactive webcasts is subject to the royalties under subsection (2) or (3) as applicable for all communications in Canada of files by simulcast, non-interactive webcast and semi-interactive webcast.

Microcasters

(5) The royalties payable under subsection 3(1) for microcasters are $250 annually.

ADMINISTRATIVE PROVISIONS

Accounts and Records

5. (1) A service shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in subsection 7(1) can be readily ascertained.

(2) A service shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that service's payment can be readily ascertained.

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

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the service that was audited.

(5) If an audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the service audited shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Payment and Reporting Requirements

6. (1) The royalties payable pursuant to this tariff shall be paid monthly, calculated based on the gross revenues and total number of communications of a file in Canada by simulcast, non-interactive webcast and semi-interactive webcast for that month.

(2) Royalties for each month are due on or before the 14th day of the following month, together with a report showing for the prior month:

• (a) the gross revenues of the service;
• (b) the total number of times that a file was communicated in Canada by the service by simulcast, non-interactive webcast and semi-interactive webcast; and
• (c) where applicable, the total number of subscribers to the service (including both free and paid subscriptions) and the total amounts paid by them.

(3) The annual royalties payable by microcasters under subsection 4(5) are due on the 14th day of January of each year for which they apply.

(4) All minimum fees payable under section 4 are due on the 14th day of January of each year for which they apply, to be credited against the monthly amounts payable under subsection 6(1).

Music Use Information

7. (1) No later than the 14th day of each month, a service shall provide to Re:Sound, the sequential lists of all files communicated in Canada by simulcast, non-interactive webcast and semi-interactive webcast during the previous month. Each entry shall include the following information:

• (a) the title of the sound recording;
• (b) the title of the album;
• (c) the catalogue number of the album;
• (d) the track number on the album;
• (e) the record label;
• (f) the name of the author and composer;
• (g) the name of the main performer or the performing group;
• (h) the names of all other performers, if applicable;
• (i) the duration of the sound recording broadcast, in minutes and seconds;
• (j) the duration of the sound recording as listed on the album, in minutes and seconds;
• (k) the Universal Product Code (UPC) of the album;
• (l) the International Standard Recording Code (ISRC) of the sound recording;
• (m) whether the track is a published sound recording;
• (n) any alternative title used to designate the sound recording; and
• (o) where applicable, the cue sheets for all syndicated programming, inserted into the Excel report.

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

(3) Subsection (1) does not apply to stations licensed by the CRTC as non-commercial radio stations. A non-commercial radio station shall report to Re:Sound the same information that is required by SOCAN Tariff 22.C 1996-2006 or its current equivalent.

(4) Microcasters may pay an annual fee of $50 in lieu of reporting under subsection (1), due on January 14th of each year for which it applies.

Confidentiality

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

(2) Information referred to in subsection (1) may be shared

• (a) with any other collective society;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Copyright Board, if the service who supplied the information had the opportunity to request a confidentiality order;
• (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and
• (e) if required by law.

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

Adjustments

9. (1) A service making a payment under this tariff, who subsequently discovers an error in the payment, shall notify Re:Sound of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the service which occurred more than 12 months prior to its discovery and notification to Re:Sound.

(2) When an error is discovered by Re:Sound at any point in time, Re:Sound shall notify the service to which the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 5(3).

Interest on Late Payments

10. (1) If either the amount owed or report required under subsection 6(2) is not provided by the due date, the service shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a service does not provide the sequential lists required by subsection 7(1) by the due date, the service shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

12. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under subsection 6(2) is provided concurrently to Re:Sound by email.

(2) The information set out in subsection 7(1) shall be sent by email.

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

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