ARCHIVED — Vol. 146, No. 19 — May 12, 2012

COPYRIGHT BOARD

FILE: Reproduction of Musical Works

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

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of royalties filed by CMRRA-SODRAC Inc. (CSI), on March 13, 2012, and March 30, 2012, on behalf of the Society of Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) and the Canadian Musical Reproduction Rights Agency (CMRRA), with respect to royalties it proposes to collect, effective January 1, 2013, for the reproduction of musical works, in Canada, by commercial radio stations in 2013, non-commercial radio stations in 2013 and online music services in 2013.

In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the 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 July 11, 2012.

Ottawa, May 12, 2012

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8624 (telephone)
613-952-8630 (fax)
gilles.mcdougall@cb-cda.gc.ca (email)

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED FROM COMMERCIAL RADIO STATIONS BY CMRRA-SODRAC INC. (CSI) FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS FOR THE YEAR 2013

Short Title

1. This tariff may be cited as the CSICommercial Radio Tariff 2013.

Definitions

2. In this tariff,

Act” means the Copyright Act; (« Loi »)

“gross income” means the gross amounts paid by any person for the use of one or more broadcasting services or facilities provided by a station’s operator including any income from simulcast, excluding the following:

  1. (a) income accruing from investments, rents or any other business unrelated to the station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station’s broadcasting services and facilities or which results in their being used, including the gross amounts received by a station pursuant to turn-key contracts with advertisers, shall be included in the “gross income”;

  2. (b) amounts received for the production of a program that is commissioned by someone other than the station and which becomes the property of that person;

  3. (c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the station can establish that the station was also paid normal fees for station time and facilities;

  4. (d) amounts received by an originating station acting on behalf of a group of stations, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station subsequently pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station’s “gross income”; (« revenus bruts »)

“low-use station (works)” means a station that

  1. (a) broadcasts works in the repertoire of SOCAN for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and

  2. (b) keeps and makes available to CSI complete recordings of its last 90 broadcast days; (« station utilisant peu d’œuvres »)

“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)

“reference month” means the second month before the month for which royalties are being paid; (« mois de référence »)

“simulcast” means the simultaneous, unaltered, real-time streaming of the over-the-air broadcast signal of the station, or of another station that is part of the same network as the station, via the Internet or other similar computer network; (« diffusion simultanée »)

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

Application

3. (1) This tariff sets the royalties to be paid each month by commercial radio stations

  1. (a) in connection with the over-the-air broadcasting operations of a station to reproduce in Canada musical works in the repertoire of CMRRA or SODRAC; and

  2. (b) in connection with a simulcast to reproduce in Canada musical works in the repertoire of CMRRA or SODRAC.

(2) This tariff also entitles a station to authorize a person to reproduce a musical work for the purpose of delivering it to the station, so that the station can use it as permitted in subsection (1).

(3) This tariff does not authorize

  1. (a) the use of any reproduction made pursuant to subsection (1) in association with a product, service, cause or institution; or

  2. (b) any use covered by other tariffs.

Royalties

4. A low-use station (works) shall pay on its gross income for the reference month, 0.135 per cent of the station’s first $625,000 gross income in a year, 0.259 per cent of the station’s next $625,000 gross income in a year and 0.434 per cent on the rest.

5. Except as provided in section 4, a station shall pay, on its gross income for the reference month, 0.304 per cent of the station’s first $625,000 gross income in a year, 0.597 per cent of the station’s next $625,000 gross income in a year and 1.238 per cent on the rest.

6. All royalties are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

Administrative Provisions

7. No later than the first day of each month, a station shall

  1. (a) pay the royalties for that month;

  2. (b) report the station’s gross income for the reference month;

  3. (c) provide to CSI, for the reference month, the gross income from any simulcast, as well as the number of listeners and listening hours or, if not available, any other available indication of the extent of the listeners’ use of simulcast; and

  4. (d) where available, provide the sequential lists of all musical works broadcast during the reference month. Each entry shall mention, to the extent possible, the information set out in subsection 9(1).

8. At any time during the period set out in subsection 10(2), CSI may require the production of any contract granting rights referred to in paragraph (c) of the definition of “gross income,” together with the billing or correspondence relating to the use of these rights by other parties.

Information on Repertoire Use

9. (1) Subject to subsection (4), upon receipt of a written request from CSI, a station shall provide to CSI, with respect to all musical works it broadcast during the days listed in the request:

  1. (a) the date and time of the broadcast, the title of the work, the title of the album, the record label, the name of its author and composer, the name of the performers or performing group, the duration, in minutes and seconds; and

  2. (b) where available, the Universal Product Code (UPC) of the album and the International Standard Recording Code (ISRC) of the sound recording from which the musical work is taken.

(2) The information set out in subsection (1) shall be provided in electronic format, where possible, or in writing, no later than 14 days after the end of the month to which it relates.

(3) A station is not required to provide the information set out in subsection (1) with respect to more than 28 days in a year.

(4) A station that complies with paragraph 7(d) in any given month is not required to provide the information set out in subsection (1) with respect to any day of that month if the list provided contains all the information set out in paragraph (1)(a).

Records and Audits

10. (1) A station 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 paragraph 7(d) and subsection 9(1) can be readily ascertained.

(2) A station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the station’s gross income can be readily ascertained.

(3) CSI 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) CSI shall, upon receipt, supply a copy of the report of the audit to the station that was the object of the audit.

(5) If an audit discloses that royalties due have been understated in any month by more than 10 per cent, the station shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

11. (1) Subject to subsections (2) and (3), CSI, CMRRA and SODRAC shall treat in confidence information received pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

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

  1. (a) amongst CSI, SODRAC and CMRRA;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Board, if the station had the opportunity to request a confidentiality order;

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

  5. (e) if ordered by law.

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

Adjustments

12. 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.

Interest on Late Payments

13. 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.

Addresses for Notices, etc.

14. (1) Anything addressed to CSI shall be sent to Tower B, Suite 1010, 1470 Peel Street, Montréal, Quebec H3A 1T1, email: csi@cmrrasodrac.ca, fax number: 514-845-3401, or to any other address, email address or fax number of which a station has been notified in writing.

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

Delivery of Notices and Payments

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

(2) Information set out in paragraphs 7(b) to (d) 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 or by email shall be presumed to have been received the day it was transmitted.

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY CMRRA-SODRAC INC. ON BEHALF OF THE SOCIETY FOR THE REPRODUCTION RIGHTS OF AUTHORS, COMPOSERS AND PUBLISHERS IN CANADA (SODRAC) AND SODRAC 2003 INC. (HEREINAFTER JOINTLY “SODRAC”) AND THE CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY (CMRRA), FOR THE REPRODUCTION OF MUSICAL WORKS IN THE REPERTOIRE OF SODRAC OR CMRRA BY NON-COMMERCIAL RADIO STATIONS FOR 2013

Short Title

1. This tariff may be cited as the CMRRA-SODRAC Inc. Non-Commercial Radio Tariff, 2013.

Definitions

2. In this tariff,

“copy” means any format or material form on or in which a musical work in the repertoire is fixed by a non-commercial radio station by any known or to be discovered process; (« copie »)

“gross operating costs” means all direct expenditures of any kind and nature (whether in money or other form) incurred by the non-commercial radio station or on its behalf in connection with the products and services that are subject to the licence covered by this tariff; (« dépenses brutes d’opération »)

“network” means a network within the meaning of the Regulations Prescribing Networks (Copyright Act), SOR/99-348, Canada Gazette, Part Ⅱ, Vol. 133, No. 19, p. 2166; (« réseau »)

“non-commercial low-use station” means a non-commercial radio station that, during the year for which royalties are paid

  1. (a) broadcasts works in the repertoire for less than 20 per cent of its total broadcast time (excluding production music) and keeps and makes available to CMRRA-SODRAC Inc. complete recordings of its last 30 broadcast days;

  2. (b) does not make or keep any reproduction onto a computer hard disk or server, does not use any reproduction made or kept onto the computer hard disk or server of another station within a network; and agrees to allow CMRRA to verify the conditions set out in this paragraph, and does so allow when requested; (« station non commerciale à faible utilisation »)

“non-commercial radio station” means any AM or FM radio station other than a Canadian Broadcasting Corporation radio station, licensed under the Broadcasting Act, S.C. 1991, c. 11, by the Canadian Radio-television and Telecommunications Commission as a station owned or operated by a not-for-profit corporation or organization, whether or not any part of its gross operating costs is funded by advertising revenues, including any station that is owned or operated on a not-for-profit basis, or any AM or FM radio station owned or operated by a similar corporation or organization, whether or not this corporation or organization holds a licence from the Canadian Radio-television and Telecommunications Commission; (« station de radio non commerciale »)

“repertoire” means the musical works in SODRAC’s or CMRRA’s repertoire; (« répertoire »)

“reproduction” means the fixation of a musical work 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. (« reproduction »)

“simulcasting” means the simultaneous, unaltered, real-time streaming of the over-the-air broadcast signal of the station, or of another station that is part of the same network as the station, via the Internet or other similar computer network; (« diffusion simultanée »)

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

Application

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, CMRRA-SODRAC Inc. grants to a non-commercial radio station, a non-exclusive, non-transferable licence for the duration of this tariff, authorizing the reproduction, as often as desired during the term of the licence, of the musical works in the repertoire by a conventional, over-the-air non-commercial radio station and the use of copies resulting from such reproduction for its radio broadcasting purposes, including simulcasting.

(2) The licence does not authorize the use of any copy made pursuant to subsection (1) in association with a product, service, cause or institution.

(3) This tariff does not apply to

  1. (a) any non-commercial audio service that is not a conventional, over-the-air radio broadcasting service; or

  2. (b) transmissions, other than simulcasts, of a musical work in the repertoire on a digital communication network, such as via the Internet.

Royalties

4. (1) In consideration of the licence granted in accordance with section 3 above by CMRRA-SODRAC Inc., the annual royalties payable to CMRRA-SODRAC Inc. by a non-commercial radio station shall be as follows:

  1. (a) 0.63 per cent of the gross operating costs in the year for which the royalties are being paid; or

  2. (b) in the case of a non-commercial low-use station, 0.23 per cent of the gross operating costs in the year for which the royalties are being paid.

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

Payments, Accounts and Records

5. (1) Royalties payable by a non-commercial radio station to CMRRA-SODRAC Inc. for each calendar year shall be due on the 31st day of January of the year following the calendar year for which the royalties are being paid.

(2) With each payment, a non-commercial radio station shall forward to CMRRA-SODRAC Inc. a written, certified declaration of the actual gross operating costs of the non-commercial radio station for the year for which the payment is made.

(3) Upon receipt of a written request from CMRRA-SODRAC Inc., a non-commercial radio station shall provide to CMRRA-SODRAC Inc. with respect to all musical works broadcast by the station during the days selected by CMRRA-SODRAC Inc. 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, the record label, the date and time of broadcast and, where available, the Universal Product Code (UPC) and the International Standard Recording Code (ISRC) of the record from which the musical work is taken. CMRRA-SODRAC Inc. must give 30 days’ notice for such a request and may formulate such a request no more than once a year, each time for a period of 12 days, which may not necessarily be consecutive. The non-commercial radio station shall then forward the information requested to CMRRA-SODRAC Inc., in electronic format where possible or in writing, within 15 days of the last day of the period indicated in CMRRA-SODRAC Inc.’s request.

(4) A non-commercial radio station that pays less than $2,000 per year in royalties will be required to submit the information described in subsection (3) for a period of only four days, which may not necessarily be consecutive.

(5) A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records from which the information set out in subsection (3) can be readily ascertained.

(6) A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in subsection (2) can be readily ascertained.

(7) CMRRA-SODRAC Inc. may audit these accounts, records and logs at any time during the period set out in subsections (5) and (6), on reasonable notice and during normal business hours.

(8) CMRRA-SODRAC Inc. shall, upon receipt of a report of an audit, supply a copy of the report to the non-commercial radio station that was the object of the audit.

(9) If an audit discloses that royalties due to CMRRA-SODRAC Inc. have been understated in any year by more than 10 per cent, the non-commercial radio station that was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

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

(11) Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made within 30 days following the conclusion of an agreement to this effect with CMRRA-SODRAC Inc.

Confidentiality

6. (1) Subject to subsections (2) and (3), CMRRA-SODRAC Inc., SODRAC and CMRRA shall treat in confidence information received from a non-commercial radio station pursuant to this tariff, unless the non-commercial radio station consents in writing to the information being treated otherwise.

(2) CMRRA-SODRAC Inc., SODRAC and CMRRA may share information referred to in subsection (1)

  1. (a) amongst themselves;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Board;

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

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

(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than the non-commercial radio station and who is not under an apparent duty of confidentiality to that non-commercial radio station.

Delivery of Notices and Payments

7. (1) All notices and payments to CMRRA-SODRAC Inc. shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, email: csi@cmrrasodrac.ca, fax number: 514-845-3401, or to any other address or fax number of which the non-commercial radio station has been notified in writing.

(2) All communications from CMRRA-SODRAC Inc. to a non-commercial radio station shall be sent to the last address or fax number provided in writing by that non-commercial radio station to CMRRA-SODRAC Inc.

(3) A communication or a notice may be delivered by hand, by postage-paid mail or by fax. A payment must be delivered by hand or by postage-paid mail.

(4) All communications, notices or payments mailed in Canada shall be presumed to have been received four business days after the day they were mailed. All communications or notices sent by fax shall be presumed to have been received the day they were transmitted.

STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA-SODRAC INC. FOR THE REPRODUCTION OF MUSICAL WORKS, IN CANADA, BY ONLINE MUSIC SERVICES IN 2013

Short Title

1. This tariff may be cited as the CSI Online Music Services Tariff, 2013.

Definitions

2. In this tariff,

“authorized distributor” means any person who has entered into an agreement with a licensee permitting that person to distribute the licensee’s online music service; (« distributeur autorisé »)

“bundle” means two or more digital files offered as a single product, if at least one file is a permanent download; (« ensemble »)

“CSI” means CMRRA-SODRAC Inc.; (« CSI »)

“download” means a file intended to be copied onto a consumer’s local storage device; (« téléchargement »)

“file”, except in the definition of “bundle”, means a digital file of a sound recording of a musical work, except where the sound recording is synchronized with a cinematographic work (as that term is defined in the Copyright Act, R.S.C. 1985, c. C-42); (« fichier »)

“gross revenue” means the aggregate of (a) all revenues payable by or on behalf of consumers for access to streams or downloads delivered by a licensee or its authorized distributors, including membership, subscription and other access fees; (b) all other revenues payable to a licensee or its authorized distributors in respect of the online music service, including amounts paid for advertising, product placement, promotion and sponsorship, and commissions on third-party transactions; and (c) amounts equal to the value of the consideration received by a licensee or its authorized distributors pursuant to any contra and barter agreements related to the operation of the online music service; (« revenus bruts »)

“identifier” means the unique identifier a licensee assigns to a file or bundle; (« identificateur »)

“interactive webcasting” means webcasting in which individual consumers are able to influence the selection of the musical works delivered specifically to them; (« webdiffusion interactive »)

“licensee” means a person who offers an online music service that is licensed under this tariff; (« licencié »)

“limited download” means a download that uses technology that causes the file to become unusable upon the happening of a certain event; (« téléchargement limité »)

“non-interactive webcasting” means webcasting in which individual consumers are not able to influence the selection of the musical works delivered to them; (« webdiffusion non interactive »)

“non-subscriber” means a person other than a subscriber, and includes a person who receives limited downloads or on-demand streams from an online music service subject to the requirement that advertising be viewed or listened to; (« non-abonné »)

“on-demand stream” means a stream selected by its recipient; (« transmission sur demande »)

“online music service” means a service that delivers on-demand streams, limited downloads, permanent downloads or webcasting to consumers, including a service that delivers files that are uploaded by consumers; (« service de musique en ligne »)

“permanent download” means a download other than a limited download; (« téléchargement permanent »)

“play” means the single performance of a stream or a limited download; (« écoute »)

“portable limited download” means a limited download that uses technology that allows the consumer to reproduce the file on a device other than a device to which a service delivered the file; (« téléchargement limité portable »)

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

“repertoire” means the musical works for which CSI is entitled to grant a licence pursuant to section 3; (« répertoire »)

“stream” means a file that is intended to be copied onto a local storage device only to the extent required to allow listening to the file at substantially the same time as when the file is delivered; (« transmission »)

“subscriber” means a person who is specifically authorized by a licensee, for a fee or on a free trial or other promotional basis, to receive in Canada limited downloads or on-demand streams; (« abonné »)

“webcasting” means the continuous delivery of streams of audio programming, excluding on-demand streams, consisting in whole or in part of sound recordings of musical works, which programming may be themed by genre or otherwise, and for which the consumer does not have advance knowledge of, or control over, the sequence or the timing of delivery of the musical works included in the program. (« webdiffusion »)

Application

3. (1) This tariff entitles a licensee who complies with this tariff, and its authorized distributors,

  1. (a) to reproduce all or part of a musical work in the repertoire for the purpose of delivering it in a file to consumers in Canada via the Internet or another similar computer network, including by wireless delivery;

  2. (b) to authorize a person to reproduce the musical work for the purpose of delivering to the licensee a file that can then be reproduced and delivered pursuant to paragraph (a); and

  3. (c) to authorize consumers in Canada to further reproduce the musical work for their own private use,

in connection with the operation of an online music service.

(2) A licensee who complies with this tariff does not incur any obligation pursuant to sections 5, 6 or 7 in relation to streams of 30 seconds or less offered free of charge to promote the licensee’s online music service or to allow consumers to preview a file.

4. (1) This tariff does not authorize the reproduction of a work in a medley, for the purpose of creating a mashup, for use as a sample or, subject to subsection 3(2), for use in association with a product, service, cause or institution.

(2) This tariff does not entitle the owner of the copyright in a sound recording of a musical work to authorize the reproduction of that work.

(3) For greater certainty, this tariff does not apply to any of the following:

  1. (a) the simultaneous, unaltered, real-time streaming by a radio station, via the Internet or other similar computer network, of its own over-the-air broadcast signal or that of another station that is part of the same network, provided that the station is either subject to the CMRRA-SODRAC Inc. Commercial Radio Tariff or the CMRRA-SODRAC Inc. Non-Commercial Radio Tariff or otherwise licensed by both CMRRA and SODRAC or by CSI;

  2. (b) activities authorized pursuant to agreements between CSI and pay audio services licensed by the Canadian Radio-television and Telecommunications Commission;

  3. (c) services offered by the Canadian Broadcasting Corporation pursuant to agreements with CMRRA and SODRAC; or

  4. (d) activities subject to the CMRRA-SODRAC Inc. Multi-Channel Subscription Radio Services Tariff.

ROYALTIES

Webcasting

5. (1) Subject to paragraph (7)(a), the royalties payable in a month for an online music service that offers only non-interactive webcasting shall be

A × B
   C

where

(A) is 3.5 per cent of the gross revenue from the service for the month;

(B) is the number of plays of files requiring a CSI licence for the month; and

(C) is the number of plays of all files during the month,

subject to a minimum of 0.05¢ for each play of a file requiring a CSI licence.

(2) Subject to paragraph (7)(a), the royalties payable in a month for an online music service that offers interactive webcasting, but does not offer on-demand streams or limited downloads, shall be

A × B
   C

where

(A) is 4.5 per cent of the gross revenue from the service for the month;

(B) is the number of plays of files requiring a CSI licence for the month; and

(C) is the number of plays of all files during the month,

subject to a minimum of 0.065¢ for each play of a file requiring a CSI licence.

On-Demand Streams

(3) Subject to paragraph (7)(a), the royalties payable in a month for an online music service that offers on-demand streams — with or without webcasting — but does not offer limited downloads shall be

A × B
   C

where

  1. (A) is equal to the greater of
    1. (i) 6.8 per cent, and
    2. (ii) a percentage equal to the percentage payable to SOCAN for the service pursuant to the equivalent provision of SOCAN Tariff 22.A (2013)
  2. of the gross revenue from the service for the month, excluding amounts paid by consumers for permanent downloads;
  3. (B) is the number of plays of files requiring a CSI licence during the month; and
  4. (C) is the number of plays of all files during the month,

subject to a minimum equal to the greatest of

  1. (a) 43¢ per subscriber;

  2. (b) 0.15¢ for each play of a file requiring a CSI licence; or

  3. (c) the minimum amount payable to SOCAN pursuant to the equivalent provision of SOCAN Tariff 22.A (2013).

Notwithstanding the foregoing, if the service permits or requires consumers to make a copy of an existing file on a remote server in order to facilitate further plays by that consumer only, the licensee shall pay royalties pursuant to subsection (4) rather than to this subsection.

Limited Downloads

(4) Subject to paragraph (7)(a), the royalties payable in a month for an online music service that offers limited downloads — with or without on-demand streams or webcasting — shall be

A × B
   C

where

  1. (A) is equal to the greater of
    1. (i) 9.9 per cent, and
    2. (ii) a percentage equal to twice the percentage payable to SOCAN for the service pursuant to the equivalent provision of SOCAN Tariff 22.A (2013)
  2. of the gross revenue from the service for the month, excluding amounts paid by consumers for permanent downloads;
  3. (B) is the number of limited downloads requiring a CSI licence during the month; and
  4. (C) is the total number of limited downloads during the month,

subject to a minimum equal to the greatest of

  1. (a) 96¢ per subscriber if portable limited downloads are allowed and 63¢ per subscriber if they are not;

  2. (b) 0.20¢ for each play of a file requiring a CSI licence; or

  3. (c) twice the minimum amount payable to SOCAN pursuant to the equivalent provision of SOCAN Tariff 22.A (2013).

Permanent Downloads

(5) Subject to paragraph (7)(a), the royalties payable in a month for an online music service that offers only permanent downloads shall be

A × B
   C

where

  1. (A) is equal to the greater of
    1. (i) 9.9 per cent, and
    2. (ii) a percentage equal to twice the percentage payable to SOCAN for the service pursuant to the equivalent provision of SOCAN Tariff 22.A (2013)
  2. of the gross revenue from the service for the month;
  3. (B) is the number of permanent downloads requiring a CSI licence during the month; and
  4. (C) is the total number of permanent downloads during the month,

subject to a minimum equal to the greater of

  1. (a) 4.4¢ per permanent download in a bundle that contains 15 or more files and 6.6¢ per permanent download in all other cases; or

  2. (b) twice the minimum amount payable to SOCAN pursuant to the equivalent provision of SOCAN Tariff 22.A (2013).

(6) Subject to paragraph (7)(b), where a licensee who is required to pay royalties under any of subsections (1) to (4) also offers permanent downloads, the royalty payable by the licensee for each permanent download requiring a CSI licence shall be 9.9 per cent of the amount paid by a consumer for the download or twice the amount payable to SOCAN pursuant to the equivalent provision of SOCAN Tariff 22.A (2013), whichever is greater, subject to a minimum equal to the greater of

  1. (a) 4.4¢ per permanent download in a bundle that contains 15 or more files and 6.6¢ per permanent download in all other cases; or

  2. (b) twice the minimum amount payable to SOCAN pursuant to the equivalent provision of SOCAN Tariff 22.A (2013).

Adjustments

(7) Where CSI does not control all the rights in a musical work,

  1. (a) for the purposes of subsections (1) to (5), only the percentage share that CSI controls shall be included in (B); and

  2. (b) for the purposes of subsection (6), the applicable rate shall be the relevant rate multiplied by the percentage share of the musical work that CSI controls.

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

(9) For the purpose of calculating the minimum payable pursuant to subsections (3) and (4), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

ADMINISTRATIVE PROVISIONS

Reporting Requirements

6. (1) No later than 20 days after the end of the first month during which a licensee reproduces a file requiring a CSI licence, and in any event before the service first makes that file available to the public, the licensee shall provide to CSI the following information:

  1. (a) the name of the licensee, including,

    1. (i) if a corporation, the name of the corporation and its jurisdiction of incorporation,

    2. (ii) if a sole proprietorship, the name of the proprietor, or

    3. (iii) if a partnership, the name of each partner, and

    4. (iv) in any event, the names of the principal officers or operators of the licensee;
  2. (b) any other trade name under which the licensee carries on business;

  3. (c) the address of its principal place of business;

  4. (d) its address (including email) for the purposes of notice and, if different from that address, for the payment of royalties, the provision of information pursuant to subsection 17(2), and any inquiries related thereto;

  5. (e) the name of each online music service operated by the licensee;

  6. (f) the name and address of each authorized distributor;

  7. (g) the Uniform Resource Locator (URL) of each Internet site at or through which the service is or will be offered; and

  8. (h) if the licensee offers webcasting, an indication of whether the webcasting offered is interactive, non-interactive or both.

(2) No later than 20 days after the end of each subsequent month, the licensee shall report to CSI any change to the information previously reported pursuant to subsection (1).

Sales Reports

Webcasting

7. (1) No later than 20 days after the end of each month, any licensee who is required to pay royalties pursuant to subsections 5(1) or (2) shall provide to CSI a report setting out, for that month,

  1. (a) in relation to each file that was delivered as a stream,

    1. (i) its identifier,

    2. (ii) the title of the musical work,

    3. (iii) the name of each author of the musical work,

    4. (iv) the name of each performer or group to whom the sound recording is credited,

    5. (v) the name of the person who released the sound recording,

    6. (vi) the International Standard Recording Code (ISRC) assigned to the sound recording,

    7. (vii) if the sound recording is or has been released in physical format as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers, and

    8. (viii) if the licensee believes that a CSI licence is not required, information that establishes why the licence is not required;
  2. (b) in relation to each file that was delivered as a stream, if the information is available,

    1. (i) the name of the music publisher associated with the musical work,

    2. (ii) the International Standard Musical Work Code (ISWC) assigned to the musical work,

    3. (iii) the Global Release Identifier (GRID) assigned to the file and, if applicable, the GRID of the album or bundle in which the file was released,

    4. (iv) the running time of the file, in minutes and seconds, and

    5. (v) any alternative title used to designate the musical work or sound recording;
  3. (c) the total number of plays of each file;

  4. (d) the total number of plays of all files;

  5. (e) the extent of use of the service during the month, including the number of consumers who used the service and the total hours of listening;

  6. (f) the gross revenue from the service for the month; and

  7. (g) if the licensee also offers permanent downloads, the information required pursuant to subsection (5).

On-Demand Streams

(2) No later than 20 days after the end of each month, any licensee who is required to pay royalties pursuant to subsection 5(3) shall provide to CSI a report setting out, for that month,

  1. (a) in relation to each file that was delivered as a stream, the information set out in paragraph (1)(a) and, if available, the information set out in paragraph (1)(b);

  2. (b) the total number of plays of each file;

  3. (c) the total number of plays of all files;

  4. (d) the number of subscribers to the service at the end of the month and the total amounts paid by them;

  5. (e) the number of plays by non-subscribers;

  6. (f) the gross revenue from the service for the month;

  7. (g) if the service has engaged in any promotional programs during the month, pursuant to which on-demand streams have been delivered to consumers free of charge, details of those programs; and

  8. (h) if the licensee also offers permanent downloads, the information required pursuant to subsection (5).

Limited Downloads

(3) No later than 20 days after the end of each month, any licensee who is required to pay royalties pursuant to subsection 5(4) shall provide to CSI a report setting out, for that month,

  1. (a) in relation to each file that was delivered as a stream or a limited download, the information set out in paragraph (1)(a) and, if available, the information set out in paragraph (1)(b);

  2. (b) the number of portable limited downloads and the number of other limited downloads of each file;

  3. (c) the number of portable limited downloads and the number of other limited downloads of all files;

  4. (d) the total number of plays of each file;

  5. (e) the total number of plays of all files;

  6. (f) the number of plays by non-subscribers;

  7. (g) the total number of subscribers — and, separately, the number of subscribers entitled to receive portable limited downloads — at the end of the month;

  8. (h) the gross revenue from the service for the month;

  9. (i) if the licensee or any authorized distributor has engaged in any promotional programs during the month, pursuant to which limited downloads have been provided to consumers free of charge, details of those programs; and

  10. (j) if the licensee also offers permanent downloads, the information required pursuant to subsection (5).

Permanent Downloads

(4) No later than 20 days after the end of each month, any licensee who is required to pay royalties pursuant to subsection 5(5) shall provide to CSI a report setting out, for that month,

  1. (a) in relation to each file that was delivered as a permanent download,

    1. (i) the information set out in paragraph (1)(a),

    2. (ii) if the information is available, the information set out in paragraph (1)(b),

    3. (iii) if the file was offered as part of a bundle,

      1. (A) the number of times the file was downloaded as part of a bundle,

      2. (B) the identifier of each such bundle and of the file as included in that bundle,

      3. (C) the amount paid by consumers for each such bundle,

      4. (D) the share of that amount assigned by the service to the file, and

      5. (E) a description of the manner in which the service assigned that share to the file, and
    4. (iv) the identifier and number of other permanent downloads of the file and the amounts paid by consumers for the file, including, if the file is offered as a permanent download at different prices from time to time, the number of permanent downloads of the file at each different price;
  2. (b) the total amount paid by consumers for bundles;

  3. (c) the total amount paid by consumers for permanent downloads;

  4. (d) the total number of permanent downloads supplied;

  5. (e) the gross revenue from the service for the month; and

  6. (f) if the licensee or any authorized distributor has engaged in any promotional programs during the month, pursuant to which permanent downloads have been delivered to consumers free of charge, details of those programs.

(5) A licensee who is required to pay royalties pursuant to subsection 5(6) shall also provide to CSI, on the same day as it provides a report pursuant to subsection 7(1), (2) or (3), as applicable — but separately from that other report — a further report setting out, for that month, the information set out in paragraphs 7(4)(a), (b), (c) and (e).

(6) Whenever a service is required to report its gross revenue for a month, it shall include, separately — and in addition to any other information specifically required by the relevant subsection — the amount of revenue received from subscribers, the amount received from non-subscribers, the amount received from advertisers, the amount attributable to sponsorships, and the amounts received from each additional revenue source.

Calculation and Payment of Royalties

8. (1) No later than 20 days after receiving a report pursuant to section 7 for the last month in a quarter, CSI shall provide the licensee with a report setting out

  1. (a) which files contain a work that it then knows to be in the repertoire;

  2. (b) which files contain a work that it then knows not to be in the repertoire;

  3. (c) which files contain a work that it then knows to be in the repertoire only as to a fraction of the rights, with an indication of that fraction;

  4. (d) with respect to all other files, an indication of the reason for which CSI is unable to provide an answer pursuant to paragraph (a), (b) or (c); and

  5. (e) a detailed calculation of the royalties payable in that quarter for each file.

(2) No later than 20 days after the end of each subsequent month, CSI shall update the information provided pursuant to paragraphs (1)(a) through (d).

9. No later than 20 days after receiving a report pursuant to section 8, if the licensee disputes the indication that a file contains a work in the repertoire or requires a CSI licence, the licensee shall provide to CSI information that establishes why the licence is not required, unless the information was provided earlier.

10. Royalties shall be due no later than 30 days after the licensee receives a report pursuant to section 8.

Adjustments

11. (1) Subject to subsection (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.

(2) Any excess payment resulting from the licensee’s providing incorrect or incomplete information about a file shall be deducted from future amounts owed for the use of works owned by the same person as the work in that file.

(3) Adjustments in any information provided pursuant to sections 7, 8 or 9 shall be provided with the next report dealing with such information.

Records and Audits

12. (1) The licensee 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 6, 7 and 9 can be readily ascertained.

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

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

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

Breach and Termination

13. (1) A licensee who fails to provide any report required by section 7 within five business days of the date on which the report is required, or to pay royalties within five business days of the date on which the royalties are due, is not entitled to do any of the acts described in section 3 as of the first day of the month in respect of which the report should have been provided or the quarter in respect of which the royalties should have been paid, as the case may be, and until the report is provided and the royalties and any accrued interest are paid.

(2) A licensee who fails to comply with any other provision of this tariff is not entitled to do any of the acts described in section 3 five business days after CSI has notified the licensee in writing of that failure and until the licensee remedies that failure.

(3) A licensee who becomes insolvent, commits an act of bankruptcy, makes an assignment for the benefit of its creditors, files for protection under the Companies’ Creditors Arrangement Act or other comparable legislation in another jurisdiction, winds up its affairs, ceases to carry on business, or has a receiver/manager appointed for it or for a substantial part of its property, is not entitled to do any of the acts described in section 3 as of the day immediately preceding the day of the relevant occurrence.

Confidentiality

14. (1) Subject to subsections (2) and (3), CSI, SODRAC, CMRRA, the licensee 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 (1) may be shared

  1. (a) amongst CSI, SODRAC, CMRRA and SOCAN;

  2. (b) between the licensee and its authorized distributors in Canada;

  3. (c) with the Copyright Board;

  4. (d) in connection with proceedings before the Board, once the licensee has had a reasonable opportunity to request a confidentiality order;

  5. (e) with any person who knows or is presumed to know the information;

  6. (f) to the extent required to effect the distribution of royalties, with royalty claimants; and

  7. (g) if ordered by law or by a court of law.

(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than CSI, SODRAC, CMRRA, the licensee or its authorized distributors and who is not under an apparent duty of confidentiality to the service.

Interest on Late Payments

15. (1) Subject to subsections (3) and (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

(2) Any overpayment resulting from an error or omission on the part of CSI shall bear interest from the date of the overpayment until the overpayment is refunded.

(3) Where the licensee fails to provide a report required under section 7 within the time set out in that section, any amount payable for the month to which the report relates shall bear interest from the date on which the licensee would have been required to pay royalties for that month, had the report been submitted when required and had CSI provided the report required under section 8 to the licensee 20 days after receiving that report, until the amount is received.

(4) Any amount owing as a result of an error or omission on the part of CSI shall not bear interest until 30 days after CSI has corrected the error or omission.

(5) 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.

Addresses for Notices, etc.

16. (1) Anything that the licensee sends to CSI shall be sent to 1470 Peel Street, Tower B, Montréal, Quebec H3A 1T1, email: csi@cmrrasodrac.ca, fax: 514-845-3401, or to any other address of which the licensee has been notified in writing.

(2) Anything that CSI sends to the licensee shall be sent to the last address of which CSI has been notified in writing.

Delivery of Notices and Payments

17. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email or by File Transfer Protocol (FTP).

(2) Information provided pursuant to sections 6 to 9 and to subsection 11(2) shall be delivered electronically, in plain text format or in any other format agreed upon by CSI and the licensee.

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

(4) A notice sent by fax, by email or by File Transfer Protocol (FTP) shall be presumed to have been received the day it is transmitted.

(5) All amounts required to be reported or paid under this tariff shall be reported or paid in Canadian dollars.