Canada Gazette, Part I, Volume 158, Number 38: SUPPLEMENT

September 21, 2024

SUPPLEMENT Vol. 158, No. 38

Canada Gazette

Part I

OTTAWA, Saturday, September 21, 2024

COPYRIGHT BOARD

SOCAN Tariff 22.D.3 – Online Allied Audiovisual Services (2014-2024)

• Citation: SOCAN Tariff 22.D.3 (2014-2024), 2024 CB 6-T
• See also: SOCAN Tariff 22.D.3 (2014-2024), 2024 CB 6

Published pursuant to section 70.1 of the Copyright Act

Greg Gallo
Acting Secretary General
1‑833‑860‑7131 (toll-free number)
registry-greffe@cb-cda.gc.ca (email)

SOCAN TARIFF 22.D.3 – ONLINE ALLIED AUDIOVISUAL SERVICES (2014-2024)

Short Title

1.1 This tariff may be cited as the SOCAN Online Allied Audiovisual Services Tariff (2014-2024).

Application

2.1 This tariff sets the royalties to be paid to, for the years 2014 to 2024, as the context may require,

• (a) communicate to the public by telecommunication, including by making available to the public by telecommunication in a way that allows a member of the public to have access to a work from a place and at a time individually chosen by that member of the public; and
• (b) authorize the communication to the public by telecommunication of,

works in SOCAN’s repertoire in connection with the operation of an Allied Audiovisual Service and its authorized distributors.

2.2 Except as provided for herein, this tariff does not apply to uses covered by

• (a) communications to the public by telecommunication by a broadcast television station, such as those covered by SOCAN Tariff 2.A (2009-2013);
• (b) communications to the public by telecommunication in connection with the transmission of a television signal for private or domestic use, such as those covered by SOCAN Tariff 17 (2009-2013);
• (c) communications to the public by telecommunication by an online music service provider, such as those covered by SOCAN Tariff 22.A (2010-2013);
• (d) communications to the public by telecommunication by an online audiovisual service provider, such as those covered by SOCAN Tariff 22.D.1 (2007-2013);
• (e) communications to the public by telecommunication by a user-generated content service provider, such as those covered by SOCAN Tariff 22.D.2 (2007-2013); and
• (f) communications to the public by telecommunication by a game service provider, such as those covered by SOCAN Tariff 22.G (2007-2019).

2.3 If an Allied Audiovisual Service or its allied Conventional Service does not track subscribers to its Streams of audiovisual works over the Internet separately from subscribers to its Streams of audiovisual content by broadcast television or other means of transmission, the service is exempt from paying royalties under subsection 4.1(1)(b) or subsection 4.2(2)(b), provided that,

• (a) all uses and amounts paid by Canadian Subscribers, referred to in subsection 4.1(1)(b) or subsection 4.2(2)(b) are accounted and paid for under the appropriate tariff for Conventional Services, either SOCAN Tariff 2.A (2009-2013) or SOCAN Tariff 17 (2009-2013);
• (b) the Rate Base, if applicable, is determined and reported to SOCAN appropriately; and
• (c) all royalties that would otherwise be payable by the Allied Audiovisual Service or the Conventional Service under subsections 4.1(1)(a), 4.1(1)(c), 4.2(2)(a), and 4.2(2)(c) are paid.

Definitions

3.1 In this tariff,

“Additional Information”

means, in respect of each musical work contained in a File, the following information, if available:

• (a) the musical work’s Identifier;
• (b) the title of the musical work;
• (c) the name of each author of the musical work;
• (d) the name of each performer or group to whom the sound recording is credited;
• (e) the name of the person who released any sound recording contained in the File;
• (f) the International Standard Recording Code (ISRC) assigned to the sound recording;
• (g) if the sound recording is or has been released in physical format as part of an album: the name, the Identifier, the product catalogue number and the Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
• (h) the name of the music publisher associated with the musical work;
• (i) the International Standard Musical Work Code (ISWC) assigned to the musical work;
• (j) the Global Release Identifier (GRID) assigned to the musical work and, if applicable, the GRID of the album in which the musical work was released;
• (k) the running time of the musical work, in minutes and seconds; and
• (l) any alternative title used to designate the musical work or sound recording. (« renseignements additionnels »)

“Allied Audiovisual Service”

means an Audiovisual Service analogous to, and operated in conjunction with, by or in support of, the operations of a Conventional Service or a BDU, the content of which is duplicative, complementary or adjunct to the content offered by the Conventional Service or BDU; (« service audiovisuel allié »)

“Audiovisual Service”

means a service that delivers Streams of audiovisual works to end users over the Internet, and includes a Hybrid Service; (« service audiovisuel »)

“AV Ratio”

means (i) the ratio of AV SOCAN Revenue to Internet-Related Revenue, or, if that ratio cannot be determined based on the revenue data available to the licensee; (ii) the ratio of AV Usage to all Usage, or, if that ratio cannot be determined based on the Usage data available to the licensee; or (iii) 100%; (« ratio AV »)

“AV SOCAN Revenue”

means Internet-Related Revenue arising from AV Usage other than Non-SOCAN AV Usage; (« revenus AV de la SOCAN »)

“AV Usage”

means the Usage that allows a person to hear an audiovisual work; (« utilisation AV »)

“BDU”

means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, ch. 11; (« EDR »)

“Canadian AV SOCAN Revenue”

means AV SOCAN Revenue arising from Canadian Usage; (« revenus AV canadiens de la SOCAN »)

“Canadian Usage”

means the Usage of a service by persons in Canada; (« utilisation canadienne »)

“Conventional Service”

means (i) an over-the-air television station, (ii) a pay and speciality service, (iii) a community channel, (iv) a BDU, or (v) a programming or non-programming service, that, during the years 2014 to 2024, pays royalties to SOCAN for

• (a) the communication to the public by telecommunication by a broadcast television station pursuant to SOCAN Tariff 2.A (2009-2013), or
• (b) the communication to the public by telecommunication in connection with the transmission of a television signal for private or domestic use under and pursuant to SOCAN Tariff 17 (2009-2013); (« service conventionnel »)

“Domestic Ratio”

means (i) the ratio of Canadian AV SOCAN Revenue to all AV SOCAN Revenue, or, if that ratio cannot be determined based on the revenue data available to the licensee, (ii) the ratio of Canadian Usage to all Usage, or, if that ratio cannot be determined based on the Usage data available to the licensee, (iii) 10%; (« ratio national »)

“File”

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

“Hybrid Service”

means a service that, in addition to transmitting Streams of audiovisual works to end users, permits Files to be temporarily cached by end users for offline viewing; (« service hybride »)

“Identifier”

means the unique identifier an Allied Audiovisual Service assigns to a File; (« identificateur »)

“Internet-Related Revenue”

means all revenues generated by Internet-related activities, including membership, subscription and other access fees; advertising, product placement, promotion, and sponsorship; net revenues from the sale of goods or services; and commissions on third-party transactions, but excluding

• (a) revenues that are already included in calculating royalties pursuant to another SOCAN tariff;
• (b) agency commissions;
• (c) the fair market value of any advertising production services provided by the service; and
• (d) network usage and other connectivity access fees; (« revenus d’Internet »)

“Non-SOCAN AV Usage”

means AV Usage that allows a person to hear an audiovisual work containing musical works for which a SOCAN licence is not required, and for which the service retains records establishing the basis upon which the service claims a SOCAN licence is not required; (« utilisation AV non-SOCAN »)

“On-Demand Stream”

means a Stream of a File selected by its recipient and transmitted at a time selected by its recipient; (« transmission sur demande »)

“Play”

means the single performance of an On-Demand Stream; (« écoute »)

“Production Music”

means music contained in interstitial programming such as commercials, public service announcements and jingles. (« musique de production »)

“Quarter”

means from January to March, from April to June, from July to September and from October to December; (« trimestre »)

“Rate Base”

means (i) Canadian AV SOCAN Revenue or, if not available, (ii) Internet-Related Revenue × AV Ratio × Domestic Ratio; (« assiette tarifaire »)

“Stream”

means a File that is intended to be copied onto an end user’s local storage medium or device only to the extent required to allow listening to the File at substantially the same time as when the File is transmitted; (« transmission »)

“Subscriber”

means an end user with whom an Allied Audiovisual Service or its authorized distributor has entered into a contract for service, other than on a transactional per-download or per-Stream basis, whether for a fee, for other consideration or free of charge, including pursuant to a free subscription; (« abonné »)

“Usage”

means usage of a service measured by such reasonable measures of usage as are commonly and/or customarily used by the service; (« utilisation »)

“Year”

means a calendar year. (« année »)

Royalties

Standard Rates

4.1(1) Subject to subsection 4.2(2) and section 4.3, the royalties payable are,

• (a) for a service that charges per-program fees to end users: 1.9% of the amounts paid by Canadian end users for Plays for which a SOCAN licence was required, subject to a minimum of 1.3¢ per program communicated;
• (b) for a service that offers subscriptions to end users: 1.9% of the amounts paid by Canadian Subscribers, subject to a minimum monthly royalty fee of 7.5¢ per subscriber. In the case of a single, initial free trial of up to 31 days in any 12-month period offered to induce a prospective subscriber to enter into a paid subscription, there shall be no royalty fee payable; and
• (c) for a service that receives Internet-Related Revenue in connection with its communication of audiovisual works: 1.9% of the Rate Base.

(2) A service with revenues from more than one of the categories in paragraphs 4.1(1)(a), (b) and (c), the royalties shall be determined in accordance with each applicable paragraph, but the calculation in paragraph (c) shall exclude any fees charged to end users pursuant to paragraphs (a) and (b), and the related Usage.

Low Music Use Rates

4.2(1) An Allied Audiovisual Service qualifies for low music use rates in a month, if

• (a) the service’s transmissions of audiovisual works contain musical works for which a SOCAN licence is required, excluding Production Music, that in total account for less than 20% of the overall time of the transmissions and the service keeps and makes available to SOCAN, upon request, records sufficient to demonstrate this calculation for 90 days after a month in which the low music use rate is paid; or
• (b) the Conventional Service with which the Allied Audiovisual Service is allied requires a licence from SOCAN, excluding Production Music, for less than 20% of the Conventional Service’s total air time and keeps and makes available to SOCAN, upon request, complete recordings of its last 90 broadcast days, and the content and usage patterns of the Allied Audiovisual Service are substantially similar to those of the Conventional Service with which it is allied.

(2) Subject to section 4.3, the royalties payable for an Allied Audiovisual Service that qualifies for low music use rates are,

• (a) for a service that charges per-program fees to end users: 0.8% of the amounts paid by Canadian end users for Plays for which a SOCAN licence is required, subject to a minimum of 1.3¢ per program communicated;
• (b) for a service that offers subscriptions to end users: 0.8% of the amounts paid by Canadian Subscribers, subject to a minimum monthly royalty fee of 7.5¢ per subscriber. In the case of a single, initial free trial of up to 31 days in any 12-month period offered to induce a prospective subscriber to enter into a paid subscription, there shall be no royalty fee payable; and
• (c) for a service that receives Internet-Related Revenue in connection with its communication of audiovisual works: 0.8% of the Rate Base.

(3) For a service with revenues from more than one of the categories in paragraphs 4.2(2)(a), (b) and (c), the royalties shall be determined in accordance with each applicable paragraph, but the calculation in paragraph 4.2(2)(c) shall exclude any fees charged to end users pursuant to paragraphs 4.2(2)(a) and (b), and the related Usage.

Other Rate – No Revenues

4.3 For a service with no revenue in a Year, the royalties shall be $15.00 per Year.

Reporting Requirements

Service Identification

5.1(1) No later than the earlier of 30 days after the end of the first month during which an Allied Audiovisual Service communicates a File requiring a SOCAN licence and the day before the service first makes such a File available to the public, the service shall provide to SOCAN the following information:

• (a) the name of the person who operates the service, including
  • (i) the name of the corporation and a mention of its jurisdiction of incorporation,
  • (ii) the name of the proprietor of an individual proprietorship,
  • (iii) the names of the principal officers of any other service,
  • (iv) any other trade name under which the service carries on business;
• (b) the address of its principal place of business;
• (c) the name, address and email of the persons to be contacted for the purposes of notice, for the exchange of data and for the purposes of invoicing, and payments;
• (d) the name and address of any authorized distributor;
• (e) the Uniform Resource Locator (URL) at or through which the service is or will be offered.

Sales Reports

5.2(1) No later than 30 days after the end of each month, each Allied Audiovisual Service shall provide to SOCAN a report setting out for that month, in relation to the Files that were streamed to end users, the following information, if available:

• (a) the title of the program and/or series, episode name, number and season for each File;
• (b) the number of Plays of each File;
• (c) the number of Plays of all Files;
• (d) the International Standard Audiovisual Number (ISAN) assigned to each File;
• (e) in the case of a translated program, the title in the language of its original production; and
• (f) the Additional Information.

(2) No later than 30 days after the end of each month, each Allied Audiovisual Service shall also provide to SOCAN a report setting out for that month,

• (a) for Allied Audiovisual Services that charge per-program fees to end users, the total amount paid by Canadian end users for Plays for which a SOCAN licence is required;
• (b) for Allied Audiovisual Services with Subscribers,
  • (i) the number of Subscribers to the service at the end of the month,
  • (ii) the total amounts paid by Subscribers to the service during that month,
  • (iii) the number of Subscribers provided with free trial subscriptions, and
  • (iv) the total number of Plays of all Files as On-Demand Streams by Subscribers provided with free trial subscriptions; and
• (c) for Allied Audiovisual Services that are required to pay royalties pursuant to paragraph 4.1(1)(c) or 4.2(2)(c),
  • (i) the service’s Internet-Related Revenue,
  • (ii) if the service’s Rate Base for the month was its Canadian AV SOCAN Revenue, then its (1) Canadian AV SOCAN Revenue, (2) AV SOCAN Revenue, (3) AV SOCAN Usage, (4) AV Usage, (5) Canadian Usage and (6) all Usage, or
  • (iii) if the service’s Rate Base for the month was not its Canadian AV SOCAN Revenue, then its AV Ratio and its Domestic Ratio and all the Usage data upon which each ratio is calculated, including, in respect of each Play for which the service claims a SOCAN licence is not required, the information set out in subsection 5.2(3).

(3) If the Allied Audiovisual Service claims that a SOCAN licence is not required for a File, the service shall provide information that establishes why the licence is not required.

(4) For an Allied Audiovisual Service for which royalties are payable pursuant to more than one paragraph of subsection 4.1(1) or 4.2(2), the service shall file a separate report pursuant to each subsection of this section.

Administration

Calculation and Payment of Royalties

6.1(1) Royalties payable under sections 4.1 or 4.2 shall be due no later than 30 days after the end of each month.

(2) Royalties payable under section 4.3 shall be due no later than January 31 after the end of the Year.

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

Late Payments

6.2(1) Any amount not received by its 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 1% above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Adjustments

6.3(1) Adjustments to any information provided pursuant to section 5.1 or 5.2 shall be provided with the next report dealing with such information.

(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.

Records and Audits

6.4(1) An Allied 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 4 and 5 can be readily ascertained, including — if the service has based its royalty calculation on either its AV Ratio or Domestic Ratio, or both — all the Usage data the service relied upon in calculating the AV Ratio and/or Domestic Ratio.

(2) SOCAN may audit these records at any time during the period set out in subsection 6.4(1), on reasonable notice and during normal business hours, but no more frequently than once in any 12-month period.

(3) Subject to subsection 6.4(4), if an audit discloses that royalties due have been understated in any Quarter by more than 10%, the service shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

(4) For the purposes of subsection 6.4(3), any amount owing as a result of an error or omission on the part of SOCAN shall not be taken into account.

Confidentiality

6.5(1) Subject to subsections 6.5(2) and 6.5(3), SOCAN, the Allied Audiovisual Service and its authorized distributors shall treat in confidence information received pursuant to this tariff, unless the disclosing party consents in writing to the information being treated otherwise.

(2) Information referred to in subsection 6.5(1) may be shared

• (a) between the Allied Audiovisual Service and its authorized distributors in Canada;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Board, once the Allied Audiovisual Service has had a reasonable opportunity to request a confidentiality order;
• (d) with any person who knows the information;
• (e) to the extent required to effect the distribution of royalties, with royalty claimants; and
• (f) if required by law.

(3) Subsection 6.5(1) does not apply to information that must be provided pursuant to section 67.2 of the Copyright Act.