Supplement, Vol. 137, No. 21 — May 24, 2003

COPYRIGHT BOARD

FILE: Reproduction of Musical Works 2004 to 2008

Statement of Proposed Royalties to Be Collected for the Reproduction of Musical Works in Canada

In accordance with sections 70.14 and 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of royalties filed by the Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada (SODRAC) on March 27, 2003, with respect to royalties that it proposes to collect, effective on January 1, 2004, for the reproduction of musical works, in Canada, for the years 2004 to 2008.

In accordance with the provisions of the same sections, the Board hereby gives notice that all 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 July 23, 2003.

Ottawa, May 24, 2003

CLAUDE MAJEAU
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
(613) 952-8621 (Telephone)
(613) 952-8630 (Facsimile)
majeau.claude@cb-cda.gc.ca (Electronic mail)

SOCIÉTÉ DU DROIT DE REPRODUCTION DES AUTEURS, COMPOSITEURS
ET ÉDITEURS AU CANADA (SODRAC) INC.

STATEMENT OF ROYALTIES TO BE COLLECTED FOR THE REPRODUCTION OF MUSICAL WORKS BY PAY AUDIO PROGRAMMING UNDERTAKINGS, IN CANADA, IN 2004, 2005, 2006, 2007 AND 2008

For a licence during calendar years 2004 to and including 2008 authorizing the reproduction of works in Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada (SODRAC) inc. (SODRAC)'s repertoire by a Pay Audio Programming Undertakings and the use of copies resulting from such reproductions for its broadcasting purposes, the following royalties, terms and conditions shall apply :

Tariff No. 4

REPRODUCTION OF MUSICAL WORKS BY PAY AUDIO SERVICES

1. Short Title

This tariff may be cited as the SODRAC Pay-Audio Services Tariff, 2004-2008

2. Definitions

In this tariff,

"Act" ("Loi") means the Copyright Act, R.S.C. 1985, c. C-42, as modified;

"copy" ("copie") means any format or material form on or in which a musical work in the repertoire is fixed by a pay audio programming undertaking by any known or to be discovered process;

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

"pay audio programming undertaking" ("entreprise de programmation sonore payante") means a programming undertaking licensed by the Canadian Radio-television and Telecommunications Commission to carry on a pay audio programming undertaking or any programming undertaking carrying on similar activities, whether or not licensed by the Canadian Radio-television and Telecommunications Commission;

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

"repertoire" ("répertoire") means the musical works in SODRAC's repertoire;

"reproduction" ("reproduction") means the fixation by a pay audio programming undertaking of a musical work in the repertoire by any known or to be discovered process, in any format or material form, including the fixation on the random access memory (RAM) or hard-disk of a computer;

"pay audio service" ("service sonore payant") means a service comprising one or more pay audio channels supplied by a pay audio programming undertaking to a distribution undertaking;

"year" ("année") means a calendar year.

3. Licence

3.1 In consideration of the payment of the royalties set out in section 4 of this tariff, and in consideration of the other terms and conditions set out therein, SODRAC shall grant to a pay audio programming undertaking a non exclusive, non transferable licence for each calendar year from 2004 to and including 2008, authorizing the reproduction, at any time and as often as desired during the term of the licence, of the musical works in the repertoire by a pay audio programming undertaking and the use of copies resulting from such reproductions for its broadcasting purposes.

3.2 The licence shall not authorize a pay audio programming undertaking to reproduce a musical work in the repertoire, or use a copy resulting from such reproduction, in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.

3.3 This tariff does not apply to

(a) uses covered by other SODRAC tariffs; or

(b) transmissions of a musical work in the repertoire on a digital interactive communication network, such as from a Web site available on the Internet.

3.4 Every SODRAC licence shall subsist according to the terms set out therein. SODRAC shall have the right at any time to terminate a licence for breach of terms or conditions upon 30 days notice in writing.

4. Royalties

In consideration of the licence that shall be granted in accordance with section 3 above by SODRAC, the royalties payable to SODRAC by a pay audio programming undertaking shall be 8 per cent of the affiliation payments payable by a distribution undertaking to a pay audio programming undertaking for a pay audio service during a month.

5. Payments

5.1 Royalties payable pursuant to section 4 shall be due on the last day of the month following the month for which the royalties are being paid.

5.2 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.

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

6. Reporting Requirements

A pay audio programming undertaking shall provide with its payment, for the relevant period and with respect to each distribution undertaking to which it supplied a pay audio service,

(a) the name of the distribution undertaking,

(b) the list of the pay audio services the pay audio programming undertaking supplied to the distribution undertaking, and

(c) a report on the amounts of the affiliation payments payable to the pay audio programming undertaking for supplying these pay audio services.

7. Musical Works Use Information

7.1 A pay audio programming undertaking shall provide to SODRAC the sequential lists of all musical works played on each channel. Each entry list shall mention the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album and the record label.

7.2 The information set out in section 7.1 shall be provided for a period of seven consecutive days for each month, no later than on the last day of the following month. It shall be provided in electronic format where available.

8. Accounts and Records

8.1 A pay audio 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.

8.2 A pay audio 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 pay audio programming undertaking can be readily ascertained.

8.3 SODRAC may audit these records at any time during the period set out in section 8.1 or 8.2, on reasonable notice and during normal business hours.

8.4 SODRAC shall, upon receipt, supply a copy of the report of the audit to the pay audio programming undertaking which was the object of the audit.

8.5 If an audit discloses that royalties due to SODRAC have been understated in any month by more than ten per cent, the pay audio programming undertaking which was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

9. Confidentiality

9.1 Subject to sections 9.2 and 9.3, SODRAC shall treat in confidence information received from a pay audio programming undertaking pursuant to this tariff, unless the pay audio programming undertaking who supplied the information consents in writing to the information being treated otherwise.

9.2 SODRAC may share information referred to in section 9.1:

(i) with any other collecting body in Canada or elsewhere;

(ii) with the Copyright Board;

(iii) in connection with proceedings before the Copyright Board, with anyone;

(iv) to the extent required to effect the distribution of royalties, with its royalty claimants; or

(v) if ordered by law or by a court of law.

9.3 Section 9.1 does not apply to information that is publicly available, or to information obtained from someone other than the pay audio programming undertaking and who is not under an apparent duty of confidentiality to that pay audio programming undertaking.

10. Adjustments

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.

11. Delivery of Notices and Payments

11.1 All notices to SODRAC shall be sent to 759 Carré Victoria, Suite 420, Montréal, Quebec H2Y 2J7, facsimile number (514) 845-3401 or to any other address or facsimile number of which the pay audio programming undertaking has been notified in writing. All payments shall be sent to 759 Carré Victoria, Suite 420, Montréal, Quebec H2Y 2J7.

11.2 All communications from SODRAC to a pay audio programming undertaking shall be sent to the last address and facsimile number provided by that pay audio programming undertaking to SODRAC in writing.

11.3 A communication or notice may be delivered by hand, by postage paid mail or by facsimile. A payment must be delivered by hand or by postage paid mail.

11.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by facsimile shall be presumed to have been received the day they were transmitted.

Tariff No. 5

REPRODUCTION OF CINEMATOGRAPHIC WORKS EMBODYING MUSICAL WORKS IN VIEW OF THEIR VIDEO-COPY DISTRIBUTION, IN CANADA, IN 2004, 2005, 2006, 2007 AND 2008

For a licence to a distributor, during years 2004 to and including 2008, authorizing the reproduction of cinematographic works embodying musical works in Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada (SODRAC) inc. (SODRAC)'s repertoire for their video-copy distribution, the following royalties, terms and conditions shall apply :

1. Short Title

This tariff may be cited as the SODRAC Video-copy Distribution Tariff, 2004-2008

2. Definitions

In this tariff,

"Act" ("Loi") means the Copyright Act, R.S.C. 1985, c. C-42, as modified;

"musical audiovisual work" ("œuvre audiovisuelle musicale") means an audiovisual work where the music/oral expressions ratio is at least 60/40, such as a concert, a musical, a variety show, a video-clip, a physical exercises show or any other show of a similar nature;

"cinematographic work" ("œuvre cinématographique") has the meaning of a cinematographic work in the Act, intended initially for distribution in theaters or television; for the purposes of this tariff, it does not include a musical audiovisual work;

"distributor" ("distributeur") means the person which having acquired cinematographic works video-copy distribution rights sells such video-copies to wholesalers or retailers in view of their sale or rental to consumers; this term includes the person which imports video-copies of cinematographic works, to sell them to wholesalers or retailers for the same purpose, who is responsible for the payment of the royalties set in this tariff unless established to SODRAC that appropriate royalties have been paid in another country;

"distribution revenues" ("revenus de distribution") means all sums derived by the distributor from the delivery to wholesalers or retailers of video-copies of cinematographic works embodying works of the repertoire;

"repertoire" ("répertoire") means the musical works in SODRAC's repertoire embodied in a cinematographic work;

"reproduction" ("reproduction") means the fixation by video-copy of a cinematographic work, on which the distributor has acquired distribution rights, embodying a musical work of the repertoire;

"video-copy" ("vidéocopie") means a copy in any video-format such as a video-cassette, a DVD, a video-disk or any other known or to be discovered similar format;

"year" ("année") means a calendar year.

3. Licence

3.1 In consideration of the payment of the royalties set out in section 4 of this tariff, and in consideration of the other terms and conditions set out therein, SODRAC shall grant to a distributor a non exclusive, non transferable license for each calendar year from 2004 to an including 2008, authorizing, as often as desired during the term of the licence, the reproduction of cinematographic works embodying musical works of the repertoire and the sale by the distributor of such video-copies to wholesalers or retailers in view of their sale or rental to consumers for their private use.

3.2 The licence does not authorize the fixation or reproduction of a work in the repertoire in a cinematographic work.

3.3 The licence does not authorize the fixation or reproduction of a work in the repertoire in any other material form or format than a video-copy.

3.4 The licence applies to all the distributor's cinematographic work video-copies sales made after January 1, 2004.

3.5 Unless permitted in writing by SODRAC, the distributor is not allowed to deliver to anyone free-of-charge video-copies authorized under this tariff.

4. Royalties

4.1 In consideration of the licence that shall be granted in accordance with section 3 above by SODRAC, the royalties payable to SODRAC by a distributor shall be 1.8 per cent (1.8%) of the distributor's distribution revenues from cinematographic works video-copies embodying a work of the repertoire.

4.2 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.

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

5. Works of the Repertoire Identification

5.1 Each year, prior to the July 31 for the preceding semester ending June 30 and prior to January 31 for the preceding semester ending December 31, the distributor forwards to SODRAC an exemplary of the box of each of the cinematographic works video-copy the distributor has delivered for that semester to wholesalers and retailers in Canada. The country where the cinematographic work was produced is also provided.

If the name of the music composer does not appear on the video-copy box, an exemplary of the video-copy of the cinematographic work is delivered to SODRAC.

5.2 Following such delivery to SODRAC, SODRAC identifies for the distributor in writing the ones that embody a work of the repertoire among such declared cinematographic works.

6. Reporting Requirements and Payments

6.1 In the fifteen (15) days following the end of each semester, the distributor shall provide to SODRAC for such semester a report in writing with the following information in relation which all cinematographic works identified by SODRAC as containing a work of the repertoire:

a) the number of video-copies made or imported for each cinematographic work;

b) the number of video-copies of each cinematographic work delivered by the distributor to wholesalers or retailers;

c) the distributor's sale price of video-copies for each cinematographic work ;

d) the distributor's distribution revenues of the video-copies for each cinematographic work;

e) any withdrawal of cinematographic works from the distributor's catalogues during the semester and any destruction of video-copies.

In each case, the cinematographic work identification number, title and country of production are provided.

6.2 The distributor must forward to SODRAC with each semester report the payment of the royalties for the semester as calculated under section 4 of this tariff.

6.3. The distributor must provide to SODRAC a written sworn statement to evidence any destruction of video-copies.

6.4 The distributor must provide SODRAC with any other required relevant information for the purposes of this tariff.

7. Accounts and Records

7.1 A distributor shall keep and preserve, for a period of four years after the end of the semester to which they relate, reports, records and other documents from which the conformity with the tariff of the royalties as well as the information set out in section 6 of the tariff can be easily ascertained and found by SODRAC.

7.2 SODRAC may audit such documents at any time during the period set out in section 7.1 on reasonable notice and during normal business hours.

7.3 SODRAC shall, upon receipt, supply a copy of the report of the audit to the distributor who was the object of the audit.

7.4 If an audit discloses that royalties due to SODRAC have been understated in any semester by more than ten per cent, the distributor who was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

8. Termination

8.1 Every SODRAC licence shall subsist according to the terms set out therein. SODRAC shall have the right at any time to terminate a licence for breach of terms or conditions upon 30 days notice in writing.

8.2 Upon termination of the licence, a distributor shall see to the immediate withdrawal from the market of all video-copies embodying a work of the repertoire.

9. Confidentiality

9.1 Subject to sections 9.2 and 9.3, SODRAC shall treat in confidence information received from a distributor pursuant to this tariff, unless the distributor who supplied the information consents in writing to the information being treated otherwise.

9.2 SODRAC may share information referred to in section 9.1:

(a) with any other collecting body in Canada or elsewhere;

(b) with the Copyright Board;

(c) in connection with proceedings before the Copyright Board, with anyone;

(d) to the extent required to effect the distribution of royalties, with its royalty claimants; or

(e) if ordered by law or by a court of law.

9.3 Section 9.1 does not apply to information that is publicly available, or to information obtained from someone other than the distributor who is not under an apparent duty of confidentiality to that distributor.

10. Adjustments

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.

11. Delivery of Notices and Payments

11.1 All notices and reports to SODRAC shall be sent to 759 Carré Victoria, Suite 420, Montréal, Quebec H2Y 2J7, facsimile number (514) 845-3401 or to any other address or facsimile number of which the distributor has been notified in writing. All payments shall be sent to 759 Carré Victoria, Suite 420, Montréal, Quebec H2Y 2J7.

11.2 All communications from SODRAC to a distributor shall be sent to the last address and facsimile number provided by that distributor to SODRAC in writing.

11.3 A communication or notice may be delivered by hand, by postage paid mail or by facsimile. A payment must be delivered by hand or by postage paid mail.

11.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by facsimile shall be presumed to have been received the day they were transmitted.

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