ARCHIVED — Vol. 146, No. 20 — May 19, 2012

COPYRIGHT BOARD

FILE: Reproduction of Performers’ Performances

Statement of Proposed Royalties to Be Collected for the Reproduction, in Canada, of Performers’ Performances by Commercial Radio Stations

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by ACTRA PRS/MROC on March 29, 2012, with respect to royalties it proposes to collect, effective January 1, 2013, for the reproduction, in Canada, of performers’ performances by commercial radio stations for the year 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 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 18, 2012.

Ottawa, May 19, 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 ROYALTIES TO BE COLLECTED BY ACTRA PERFORMERS’ RIGHTS SOCIETY (“ACTRA PRS”) AND MUSICIANS’ RIGHTS ORGANIZATION CANADA (“MROC”) FOR THE REPRODUCTION, IN CANADA, OF PERFORMERS’ PERFORMANCES IN THE REPERTOIRES OF ACTRA PRS OR MROC BY COMMERCIAL RADIO STATIONS FOR THE YEAR 2013

Short Title

1. This tariff may be cited as the ACTRA PRS/MROC Commercial 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, 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; and

  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 (sound recordings)” means a station that

  1. (a) broadcasts published sound recordings of musical works 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 ACTRA PRS and MROC complete recordings of its last 90 broadcast days; (« station utilisant peu d’enregistrements sonores »)

“performer’s performance” means a performer’s performance that has been fixed with the authorization of the performer; (« prestation »)

“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 »)

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

Application

3. (1) This tariff sets the royalties to be paid each month by commercial radio stations in connection with the over-the-air broadcasting operations of a station to reproduce in Canada performers’ performances in the repertoire of ACTRA PRS and MROC.

(2) This tariff also entitles a station to authorize a person to reproduce a performer’s performance 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 the use of any reproduction made pursuant to subsection (1) in association with a product, service, cause or institution, or any use covered by other tariffs.

Royalties

4. A low-use station (sound recordings) shall pay to ACTRA PRS/MROC, on its gross income for the reference month, 0.072 per cent of the station’s first $625,000 gross income in a year, 0.138 per cent of the station’s next $625,000 gross income in a year and 0.23 per cent on the rest.

5. Except as provided in section 4, a station shall pay to ACTRA PRS/MROC, on its gross income for the reference month, 0.162 per cent of the station’s first $625,000 gross income in a year, 0.318 per cent of the station’s next $625,000 gross income in a year and 0.659 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; and

  3. (c) where available, provide the sequential lists of all published sound recordings 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), ACTRA PRS or MROC 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 ACTRA PRS or MROC, a station shall provide with respect to all published sound recordings 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 in which the performer’s performance is embodied.

(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(c) 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(c) 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) ACTRA PRS and MROC 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) ACTRA PRS and MROC 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), ACTRA PRS and MROC 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 other collective societies for which the Copyright Board has certified a tariff affecting the station;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if the station had the opportunity to request a confidentiality order;
  1. (d) to the extent required to effect the distribution of royalties, with royalty claimants; or
  1. (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 ACTRA PRS or MROC shall be sent to 625 Church Street, Suite 300, Toronto, Ontario M4Y 2G1, email: racs@actra.ca, fax number 416-489-1040, 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 ACTRA PRS and MROC have been notified in writing.

Delivery of Notices and Payments

15. (1) Royalties payable to ACTRA PRS and MROC are paid to ACTRA PRS. All information to which ACTRA PRS and MROC are entitled pursuant to this tariff is delivered to ACTRA PRS.

(2) 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.

(3) Information set out in paragraphs 7(b) and (c) shall be sent by email.

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

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