Vol. 146, No. 23 — June 9, 2012

COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings

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

In accordance with subsection 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by Re:Sound Music Licensing Company (Re:Sound) on March 30, 2012, with respect to royalties it proposes to collect, effective January 1, 2013, for the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers’ performances of such works.

In accordance with the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than August 8, 2012.

Ottawa, June 9, 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 FROM COMMERCIAL RADIO STATIONS BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION AND THE PERFORMANCE IN PUBLIC, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013-2014

Tariff No. 1

RADIO

A. Commercial Radio

Short Title

1. This tariff may be cited as the Re:SoundCommercial Radio Tariff, 2013-2014.

Definitions

2. In this tariff,

“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) income from simulcasting, non-interactive webcasting or semi-interactive communications subject to Re:Sound Tariffs 8 or 8B;

  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” 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 Re:Sound complete recordings of its last 90 broadcast days; (« station à faible utilisation »)

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

“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

  1. (a) to communicate to the public by telecommunication in Canada, for private or domestic use, published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound; and

  2. (b) to perform in public by means of any radio receiving set in any place other than a theatre that is ordinarily and regularly used for entertainments to which an admission charge is made, published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound.

(2) This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including the SOCAN-Re:Sound Pay Audio Services Tariff, the Satellite Radio Services Tariff or Re:Sound Tariffs 8 and 8.B.

Royalties

4. A low-use station shall pay to Re:Sound

  1. (a) 2.6 per cent of its gross income for the reference month in respect of the communication to the public by telecommunication referred to in paragraph 3(1)(a); and

  2. (b) 0.26 per cent of its gross income for the reference month in respect of the performance in public referred to in paragraph 3(1)(b).

5. Except as provided in section 4, a station shall pay to Re:Sound, on its gross income for the reference month,

  1. (a) 4.46 per cent on its first $1.25 million gross income in a year and 6.5 per cent on the rest in respect of the communication to the public by telecommunication referred to in paragraph 3(1)(a); and

  2. (b) 0.446 per cent on its first $1.25 million gross income in a year and 0.65 per cent on the rest in respect of the performance in public referred to in paragraph 3(1)(b).

For the purposes of determining royalties payable under section 5, where two or more stations are owned by the same company, the station shall pay royalties based on the total combined gross income for the year of all of the stations owned by the company.

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

Reporting Requirements

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

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

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

8. At any time during the period set out in subsection 10(2), Re:Sound 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) No later than the 14th day of each month, a station shall provide to Re:Sound the sequential lists of all musical works and published sound recordings, or parts thereof, broadcast during the previous month. Each entry shall include the following information:

  1. (a) the date of the broadcast;

  2. (b) the time of the broadcast;

  3. (c) the title of the sound recording;

  4. (d) the title of the album;

  5. (e) the catalogue number of the album;

  6. (f) the track number on the album;

  7. (g) the record label;

  8. (h) the name of the author and composer;

  9. (i) the name of all performers or the performing group;

  10. (j) the duration of the sound recording broadcast, in minutes and seconds;

  11. (k) the duration of the sound recording as listed on the album, in minutes and seconds;

  12. (l) the Universal Product Code (UPC) of the album;

  13. (m) the International Standard Recording Code (ISRC) of the sound recording;

  14. (n) the type of usage (feature, theme, background, etc.);

  15. (o) whether the track is a published sound recording; and

  16. (p) the cue sheets for all syndicated programming, inserted into the Excel report.

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

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 section 9 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) Re:Sound may audit these records at any time during the period set out in subsection (1) or (2), on reasonable notice and during normal business hours.

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

(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 amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

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

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation, an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 10(3).

Interest and Penalties on Late Payments and Reporting

13. (1) In the event that a station does not pay the amount owed under paragraph 7(a) or provide the report required by paragraph 7(b) by the due date, the station shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a station does not provide the sequential lists required by section 9 by the due date, the station shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

14. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: radio@resound.ca, fax number: 416-962-7797, 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 Re:Sound has been notified in writing.

Delivery of Notices and Payments

15. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under paragraph 7(b) is provided concurrently to Re:Sound by email.

(2) The information set out in section 9 shall be sent by email.

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED FROM THE CANADIAN BROADCASTING CORPORATION BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013-2016

Tariff No. 1

RADIO

C. Canadian Broadcasting Corporation (CBC)

Short Title

1. This tariff may be cited as the Re:Sound CBC Radio Tariff,2013-2016.

Definitions

2. In this tariff,

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

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

Application

3.1 This tariff sets the royalties to be paid to Re:Sound by CBC for the communication to the public by telecommunication, in Canada, for private or domestic use, of published sound recordings embodying musical works and performers’ performances of such works, by over-the-air radio broadcasting by the radio networks and stations owned and operated by CBC.

3.2 This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including Re:Sound Tariffs 3, 8, 8.B, the Satellite Radio Services Tariff or the SOCAN-Re:Sound Pay Audio Services Tariff. For greater certainty, this tariff does not apply to either simulcasting of an over-the-air radio signal or webcasting, which are subject to Re:Sound Tariffs 8 and 8.B.

Royalties

4.1 CBC shall pay to Re:Sound $250,000 per month, on the first day of each month.

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

Music Use Information

5.1 No later than the 14th day of each month, CBC shall provide to Re:Sound, the sequential lists of all musical works and published sound recordings or parts thereof, broadcast during the previous month by each of CBC’s conventional radio services, as may be applicable. Each entry shall include the following information:

  1. (a) the date of the broadcast;

  2. (b) the time of the broadcast;

  3. (c) the title of the sound recording;

  4. (d) the title of the album;

  5. (e) the catalogue number of the album;

  6. (f) the track number on the album;

  7. (g) the record label;

  8. (h) the name of the author, composer, and arranger;

  9. (i) the name of all performers or the performing group;

  10. (j) the duration of the sound recording broadcast, in minutes and seconds;

  11. (k) the duration of the sound recording as listed on the album, in minutes and seconds;

  12. (l) the Universal Product Code (UPC) of the album;

  13. (m) the International Standard Recording Code (ISRC) of the sound recording;

  14. (n) the type of usage (feature, theme, background, etc.);

  15. (o) whether the track is a published sound recording;

  16. (p) the International Standard Musical Work Code (ISWC) of the work;

  17. (q) the type of broadcast (local, regional);

  18. (r) the name of the program; and

  19. (s) the station (including call letters) and location of the station on which the sound recording was broadcast.

5.2 The information set out in section 5.1 shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and CBC, with a separate field for each piece of information required in paragraphs (a) to (s).

5.3 CBC 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 5.1 can be readily ascertained.

5.4 Re:Sound may audit these records at any time during the period set out in section 5.3, on reasonable notice and during normal business hours.

5.5 Re:Sound shall, upon receipt, supply a copy of the report of the audit to CBC.

Interest and Penalties on Late Payments and Reporting

6.1 In the event that CBC does not pay the amount owed under section 4.1 by the due date, CBC shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

6.2 In the event that CBC does not provide the sequential lists required by section 5.1 by the due date, CBC shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Confidentiality

7.1 Subject to sections 7.2 and 7.3, information received from CBC pursuant to this tariff shall be treated in confidence, unless CBC consents in writing to the information being treated otherwise.

7.2 Information referred to in section 7.1 may be shared

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

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

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

7.3 Section 7.1 does not apply to information that is publicly available, or to information obtained from someone other than CBC and who is not under an apparent duty of confidentiality to CBC with respect to the supplied information.

Delivery of Notices and Payments

8.1 Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, fax number: 416-962-7797, or to any other address, email address or fax number of which CBC has been notified in writing.

8.2 Anything addressed to CBC shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

8.3 A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer.

8.4 The information set out in section 5.1 shall be sent by email.

8.5 Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed. Anything sent by fax, by email, by FTP or by electronic bank transfer shall be presumed to have been received the day it was transmitted.

Rate Adjustments to Account for Inflation

9.1 Subject to sections 9.2 to 9.4, the amount payable pursuant to section 4.1 may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

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

9.3 An increase can be applied only in January.

9.4 An increase that cannot be applied in accordance with section 9.2 shall be cumulated with the increase for the following year, and so on.

9.5 When Re:Sound applies an increase, it shall send to the Copyright Board of Canada and to the CBC, before the end of January of the year for which the increase applies, a notice stating the following:

“Re:Sound Tariff 1.C, the Re:Sound CBC Radio Tariff, 2013-2016, as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section 4.1 of the tariff to account for inflation, according to a formula set out in section 9 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates for [year in which the increase is applied] and thereafter shall be: [new applicable rate] per month.”

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013 TO 2016

Tariff No. 3

USE AND SUPPLY OF BACKGROUND MUSIC

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Background Music Tariff, 2013-2016.

Definitions

2. (1) In this tariff,

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

“background music supplier” means a person who provides a service of supplying recorded music for performance in public by an establishment dealing at arm’s length; (« fournisseur de musique de fond »)

“establishment” means a place to which the public, including employees, has access, and includes, but is not limited to, a retail store, restaurant, hotel, bar, workplace, park, club or school, as well as a means of public transportation. In the case of a business which has multiple locations, each separate location shall be considered to be a separate establishment; (« établissement »)

“recorded music” means published sound recordings embodying musical works and performers’ performances of such works; (« musique enregistrée »)

“trunk line” means a telephone line, whether digital or analog, linking telephone switching equipment to the public switched telephone network; (« ligne principale de standard »)

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

(2) For the purposes of this tariff, related persons shall be deemed not to deal with each other at arm’s length.

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of recorded music in an establishment, including any use of recorded music with a telephone on hold.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

(3) This tariff is subject to the exception set out in subsection 69(2) of the Act.

Royalties Payable When Recorded Music Is Provided by a Background Music Supplier

4. When recorded music, including recorded music for a telephone on hold, is provided by a background music supplier to an establishment, the royalty payable for the relevant quarter is 16.36 per cent of the supplier’s gross revenue from the supply of the recorded music, including but not limited to subscription fees and advertising revenues, and subject to a minimum quarterly fee of $20.61 per establishment.

Royalties Payable in Other Cases

5. (1) When recorded music is not provided by a background music supplier and recorded music is used with a telephone on hold, the royalty payable for the relevant year shall be $98.84 for the first trunk line and $27.00 for each additional trunk line.

(2) When recorded music is not provided by a background music supplier, in addition to any royalty payable under subsection (1), the royalty payable shall be calculated as follows:

  1. (a) if the number of admissions, attendees, or tickets sold for days or events during which recorded music was played can be established with certainty, that number multiplied by 0.294¢;

  2. (b) if paragraph (a) does not apply, the number of square metres (square feet) of the area of the establishment to which the public has access, multiplied by the number of days of operation on which recorded music was played, multiplied by 0.92¢ (0.084¢); and

  3. (c) if paragraphs (a) and (b) do not apply, the royalty payable for the relevant year shall be $98.84.

(3) In all cases a minimum annual fee of $98.84 shall apply per establishment to all recorded music uses under subsection (2).

Rate Adjustment to Account for Inflation

6. (1) Subject to subsections (2) to (4), the amounts payable pursuant to section 5 may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

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

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

(4) An increase that cannot be applied in accordance with subsection 6(2) shall be cumulated with the increase for the following year, and so on.

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

“Re:Sound Tariff 3 (Background Music), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section 5 of the tariff to account for inflation, according to a formula set out in section 6 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result the applicable rates for [year in which the increase is applied] and thereafter shall be as follows:

  1. (a) If royalties are calculated according to subsection 5(1) of the tariff (telephone on hold), the annual applicable royalty is $ [new applicable rate] for the first trunk line plus $ [new applicable rate] for each additional trunk line;

  2. (b) if royalties are calculated according to paragraph 5(2)(a) of the tariff, (admissions, attendees or number of tickets sold), [new applicable rate] ¢;

  3. (c) if royalties are calculated according to paragraph 5(2)(b) of the tariff (area), [new applicable rate for area measured in metres] ¢ if calculated in metres and [new applicable rate for area measured in feet] ¢ if calculated in feet;

  4. (d) if royalties are payable pursuant to paragraph 5(2)(c) of the tariff (all other instances), the annual royalty payable is $ [new applicable rate]; and

  5. (e) if royalties are payable pursuant to subsection 5(3) of the tariff (minimum fee), the annual royalty payable is $ [new applicable rate].”

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

Reporting Requirements

7. (1) No later than 30 days after the end of the quarter, a background music supplier making a payment pursuant to section 4 shall pay the royalty for that quarter and, where applicable, shall report the information used to calculate the royalty, including, where applicable, a report of the suppliers’ gross revenue for the quarter, and a list (in electronic format if available) of the subscribers to which the payment relates, containing the business name, full address, and telephone number and identifying, for each month during the quarter, any new subscribers or any existing subscribers that have cancelled their service.

(2) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 5 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows. If the establishment played recorded music in the previous year, the establishment shall pay the amount equal to the royalties owed by the establishment to Re:Sound in the previous year. If the establishment did not play recorded music in the previous year, the establishment shall provide Re:Sound with an estimate of the number of days of operation that the establishment will play recorded music during the year and shall pay royalties to Re:Sound based on that estimate, calculated in accordance with section 5. If an establishment making payment pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the establishment first opened. In all cases the establishment making payment under this subsection shall report to Re:Sound all information used to calculate the royalty payment.

(3) No later than January 31 of the following year (in which an establishment makes a payment to Re:Sound pursuant to subsection 7(2)), the establishment shall report to Re:Sound any changes in the actual number of days of operation that the establishment played recorded music in the previous year and any difference in the amount of royalties payable for that year calculated in accordance with section 5 (from the amount paid under subsection 7(2)). If the amount owing exceeds the amount previously paid by the establishment to Re:Sound pursuant to subsection 7(2), the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and shall pay the additional royalties owing to Re:Sound by January 31. If the amount owing is less than the amount of the payment made by the establishment to Re:Sound in the previous year, the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and Re:Sound shall credit the amount of the overpayment to the establishment against future payments.

Accounts and Records

8. (1) A background music supplier shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which its gross revenue can be readily ascertained, including the subscription rate payable to subscribe to the background music service, a list of the subscribers for which payments were made and copies of background music subscriber invoices.

(2) All other persons subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’s payment can be ascertained, including information used to determine the choice of calculation, and information required to ascertain the days on which recorded music was used.

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

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was subject to the audit.

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

(6) In addition to any audit that may be conducted under subsection 8(3), upon receipt of a written request from Re:Sound not more than once during each quarter, a background music supplier shall send to Re:Sound, within 30 days of receipt of the written request, copies of 50 representative invoices from the supplier to establishments, for the provision of its background music service, for each province in which the supplier provides that service.

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if the person who supplied the information had the opportunity to request a confidentiality order;

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

(3) Subsection 9(1) does not apply to information that is publicly available, or to information obtained from someone other than a person who supplied the information and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.

Adjustments

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

(2) When an error is discovered by Re:Sound at any point in time during the term of this tariff, Re:Sound shall notify the person to whom the error applies and an appropriate adjustment shall be made to the next payment due following the notification.

(3) The 12-month limit in subsection 10(1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 8(3).

Interest on Late Payments and Reporting

11. In the event that a person subject to this tariff does not pay the amount owed under sections 4 or 5, or provide the reporting information required by section 7 or subsection 8(6) by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Addresses for Notices, etc.

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

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

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED FROM MULTI-CHANNEL SUBSCRIPTION SATELLITE RADIO SERVICES BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013-2014

Tariff No. 4

USE OF MUSIC BY SATELLITE RADIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Satellite Radio Services Tariff, 2013-2014.

Definitions

2. In this tariff,

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

“number of subscriptions” means the average number of subscriptions during the reference month; (« nombre d’abonnements »)

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

“service” means a multi-channel subscription satellite radio service licensed by the Canadian Radio-television and Telecommunications Commission as well as any similar service distributed in Canada; (« service »)

“service revenue” means all amounts paid by subscribers for a service, advertising revenues, product placement, promotion and sponsorship, net revenues from the sale of goods or services including hardware and accessories used in the reception of the service, and commissions on third-party transactions. This includes activation and termination fees, as well as membership, subscription and all other access and administrative fees. It excludes advertising agency fees and revenue accruing from any business that is not a necessary adjunct to the distribution of the service or the use of the service’s broadcasting facilities; (« recettes du service »)

“subscriber” means a person who is authorized to receive in Canada a signal offered by a service, whether for free or for valuable consideration, excluding a commercial subscriber; (« abonné »)

“subscription” means an account tied to a single receiver that authorizes the subscriber to receive in Canada one signal offered by a service, whether for free or for valuable consideration including prepaid and lifetime subscriptions, excluding commercial subscriptions. Where multiple subscriptions are combined in a single account, each subscription for a separate receiver shall be counted as a separate subscription; (« abonnement »)

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

Application

3. (1) This tariff sets the royalties to be paid each month by a service to communicate to the public by telecommunication in Canada published sound recordings embodying musical works and performers’ performances of such works in Re:Sound’s repertoire in connection with the operation of the service, for direct reception by subscribers for their private use by any means other than by utilizing the Internet and/or other transmission protocols.

(2) This tariff does not authorize any use of a sound recording by a service in connection with its delivery to a commercial subscriber.

(3) This tariff does not apply to uses covered by other Re:Sound tariffs, including Re:Sound Tariffs 1.A, 1.C, 3, 5, 6, 8, 8.B or the SOCAN-Re:Sound Pay Audio Services Tariff.

Royalties

4. (1) A service shall pay to Re:Sound, for each month of the tariff term, 17 per cent of its service revenue for the reference month, subject to a minimum fee of $1.50 per subscription.

(2) The royalties payable under subsection (1) shall be calculated and paid as follows:

  1. (a) For each subscription, including free, prepaid and lifetime subscriptions, the service shall pay the greater of

    1. (i) 17 per cent of the total amounts paid for the subscription (including activation and termination fees as well as membership, subscription and all other access and administrative fees), or

    2. (ii) $1.50 per subscription;
  2. PLUS
  3. (b) 17 per cent of the total amount of all additional service revenue not included in paragraph (a).

Reporting Requirements

5. No later than on the first day of each month of the tariff term, a service shall pay the royalties for that month and shall provide for the reference month

  1. (a) the total number of subscriptions to the service, broken down into free subscriptions, prepaid and lifetime subscriptions, and the number of subscriptions at each of the various subscription price points charged by the service during the month; and

  2. (b) its service revenue, broken down into amounts paid by subscribers for the service, advertising revenues, sponsorship revenues and other revenues.

Sound Recording and Musical Work Use Information

6. (1) No later than the 14th day of each month, a service shall provide to Re:Sound the sequential lists of all musical works and published sound recordings or parts thereof, broadcast during the previous month. Each entry shall include the following information:

  1. (a) the date of the broadcast;

  2. (b) the time of the broadcast;

  3. (c) the title of the sound recording;

  4. (d) the title of the album;

  5. (e) the catalogue number of the album;

  6. (f) the track number on the album;

  7. (g) the record label;

  8. (h) the name of the author and composer;

  9. (i) the name of all performers or the performing group;

  10. (j) the duration of the sound recording broadcast, in minutes and seconds;

  11. (k) the duration of the sound recording as listed on the album, in minutes and seconds;

  12. (l) the Universal Product Code (UPC) of the album;

  13. (m) the International Standard Recording Code (ISRC) of the sound recording;

  14. (n) the type of usage (feature, theme, background, etc.); and

  15. (o) whether the track is a published sound recording.

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

Records and Audits

7. (1) A service shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in subsection 6(1) can be readily ascertained.

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

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

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

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

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if the service that supplied the information had the opportunity to request a confidentiality order;

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 7(3).

Interest and Penalties on Late Payments and Reporting

10. (1) In the event that a service does not pay the amount owed or provide the report required by subsection 5(1) by the due date, the service shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a service does not provide the sequential lists required by subsection 6(1) by the due date, the service shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

12. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under section 5 is provided concurrently to Re:Sound by email.

(2) The information set out in subsection 6(1) shall be sent by email.

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013-2015

Tariff No. 5

USE OF MUSIC TO ACCOMPANY LIVE EVENTS

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

Short Title

1. This tariff may be cited as the Re:Sound Live Events Tariff, 2013-2015.

Definitions

2. In this tariff,

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

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

General Provisions

3. Except where otherwise specified, sections 1 to 9 apply to all tariffs included within the Re:Sound Live Events Tariff,2013-2015.

Accounts and Records

4. (1) A person subject to the tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’s payment under this tariff can be readily ascertained.

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

(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was the subject of the audit.

(4) If the audit discloses that the royalties owed to Re:Sound for the applicable reporting period have been understated by more than 10 per cent, the subject of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

5. (1) Subject to subsections (2) and (3), Re:Sound and its agents shall treat in confidence information received pursuant to this tariff, unless the person who supplied the information consents in writing to the information being treated otherwise.

(2) Re:Sound may share information referred to in subsection (1)

  1. (a) with SOCAN;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if Re:Sound has first provided a reasonable opportunity for the person who supplied the information to request a confidentiality order;

  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 a person subject to this tariff and who is not under an apparent duty of confidentiality to that person.

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 4(2).

Interest on Late Payments

7. Any amount not received by the due date (excluding adjustments for overpayments) shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one 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.

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

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

Delivery of Notices and Payments

9. (1) A document mailed in Canada shall be presumed to have been received four business days after the day it was mailed.

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

Rate Adjustments to Account for Inflation

10. (1) Subject to subsections (2) to (4), the amounts payable pursuant to Tariffs 5.B, 5.C, 5.D, 5.F and 5.G may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

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

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

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

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

“Re:Sound Tariff 5 [applicable tariff], as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section [applicable section] of the tariff to account for inflation, according to a formula set out in section 10 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates for [year in which the increase is applied] and thereafter shall be: [new applicable rates].

You can review the detailed calculation of the increase on Re:Sound’s website, at [URL to which the calculation is posted].”

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

A. RECORDED MUSIC ACCOMPANYING LIVE ENTERTAINMENT

Definitions

1. In this tariff,

“compensation for entertainment” means the total amounts paid for entertainment of which sound recordings form a part, including compensation in kind and any other compensation received by any performers. It does not include expenditures for stage props, lighting equipment, set design and costumes, or expenditures for renovation, expansion of facilities or furniture and equipment. (« compensation pour divertissement »)

“event” means a single performance or show with a start and end time and a single location. However, where a single admission fee applies to multiple performances, performers, or locations, the event consists of all performances, performers and locations included in the admission fee. (« événement »)

Application

2. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works as a part of any type of live entertainment including theatrical, dance, acrobatic or other live performances.

(2) This tariff does not apply to events that are subject to another Re:Sound tariff, including Re:Sound Tariffs 5.B-5.J.

(3) Where this tariff applies to an event, it applies to all uses of sound recordings at the event, including sound recordings played during intermissions and during the entrance and exit of the audience, as well as the use of sound recordings as a part of the live entertainment.

(4) This tariff does not apply to events where sound recordings are not used as a part of the live entertainment and are only played during intermissions or during the entrance and exit of the audience. Where not otherwise subject to another Re:Sound tariff, such uses of sound recordings are subject to Re:Sound Tariff 3 (Background Music).

(5) This tariff applies in addition to Re:Sound Tariff 3 (Background Music) and any other applicable Re:Sound tariffs for any uses of sound recordings other than during the event.

Royalties

3. (1) The fee payable per event is,

  1. (a) where admission is charged, 3.6 per cent of gross receipts from ticket sales of the event, exclusive of any applicable taxes; or

  2. (b) where no admission is charged, 3.6 per cent of the compensation for entertainment paid for the event,

subject to a minimum fee of $92.78 per event.

(2) Where the duration of the use of sound recordings as a part of the live entertainment is less than 10 minutes in total for the entire event, the fee payable is $54.90 per event.

Reporting Requirements

4. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound, by no later than 30 days after the event, the fee for that event together with a report of the name and location of the event and the gross receipts from ticket sales for paid events and the compensation for entertainment for unpaid events.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the name and location of each event and the gross receipts from ticket sales for paid events and the compensation for entertainment for unpaid events.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

B. RECEPTIONS, CONVENTIONS, ASSEMBLIES AND FASHION SHOWS

Application

1. This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works as a part of events at receptions (including weddings), conventions, video game events, assemblies and fashions shows.

Royalties

2. The fee payable for each event, or for each day on which a fashion show is held, is as follows:

Room capacity
(seating and standing)

Fee per event without dancing

Fee per event with dancing

1-100

$30.84

$61.70

101-300

$44.34

$88.76

301-500

$92.54

$185.07

Over 500

$131.10

$262.19

Reporting Requirements

3. No later than 30 days after the end of each quarter, a person subject to the tariff shall file with Re:Sound the payment for all events within that quarter and a report for that quarter including

  1. (a) the actual number of events with and without dancing and the number of days on which a fashion show was held; and

  2. (b) the room capacity (seating and standing) authorized under the establishment’s liquor licence or any other document issued by a competent authority for this type of establishment.

C. KARAOKE BARS

Application

1. This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works by means of karaoke machines at karaoke bars and similar establishments.

Royalties

2. The annual fee shall be as follows:

  1. (a) Establishments operating with karaoke no more than three days a week: $286.86; and

  2. (b) Establishments operating with karaoke more than three days a week: $413.34.

Reporting Requirements

3. No later than January 31 of each year, a person subject to this tariff shall pay the applicable fee for that year to Re:Sound and report the number of days it operates with karaoke in a week.

D. FESTIVALS, EXHIBITIONS AND FAIRS

Application

1. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works at a festival, exhibition or fair.

(2) This tariff applies to all uses of sound recordings at a festival, exhibition or fair. An event that is subject to Tariff 5.D is not subject to any other Re:Sound tariff for that event.

Royalties

2. (1) Where the total attendance (excluding exhibitors and staff and including attendance at any concerts or other separately ticketed events held as part of the festival, exhibition or fair) for the duration of the festival, exhibition or fair does not exceed 75 000 persons, the fee is calculated as follows:

Total Attendance

Fee Payable per Day

Up to 25 000 persons

$19.22

25 001 to 50 000 persons

$38.67

50 001 to 75 000 persons

$96.47

(2) Where the total attendance (excluding exhibitors and staff and including attendance at any concerts or other separately ticketed events held as part of the festival, exhibition or fair) for the duration of the festival, exhibition or fair exceeds 75 000 persons, the fee is calculated as follows:

Total Attendance

Fee Payable per Person

For the first 100 000 persons

1.61¢

For the next 100 000 persons

0.71¢

For the next 300 000 persons

0.53¢

All additional persons

0.39¢

Reporting Requirements

3. (1) In the case of a festival, exhibition or fair that is scheduled yearly, the fee shall be paid on the actual attendance figures in the preceding year, on or before January 31 of the year in which the festival, exhibition or fair is held. A person subject to this tariff shall submit with the fee the figures for actual attendance for the previous year and the duration, in days, of the festival, exhibition or fair.

(2) In all other cases, a person subject to this tariff shall, within 30 days of a festival’s, exhibition’s or fair’s closing, report its attendance and duration, in days, and submit the fee based on those figures.

(3) Where the reported attendance includes attendance at separately ticketed events held as part of the festival, exhibition or fair, a person subject to this tariff shall report the total attendance and provide a breakdown of the attendance at each separately ticketed event.

E. CIRCUSES, ICE SHOWS, FIREWORKS DISPLAYS, SOUND AND LIGHT SHOWS AND SIMILAR EVENTS

Application

1. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works at circuses, ice shows, fireworks displays, sound and light shows and similar events.

(2) This tariff applies to all use of sound recordings at the event, whether inside or outside of the venue, and whether such sound recordings are played during the event itself, during intermissions, or during the entrance and exit of the audience.

Royalties

2. (1) The fee payable per event is 1.44 per cent of gross receipts from ticket sales, exclusive of all taxes, including but not limited to sales and amusement taxes, and exclusive of all service charges, convenience fees and delivery fees on ticket sales that are charged to the ticket purchaser in addition to the face value ticket price, subject to a minimum fee of $61.85 per event.

(2) Where no admission fee is charged for the event, the minimum fee applies.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of its gross receipts, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the gross receipts for each event by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

F. PARADES

Application

1. This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works (“recorded music”) by floats participating in parades.

Royalties

2. The fee payable is $13.17 for each float with recorded music participating in the parade, subject to a minimum fee of $48.83 per day.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of the name and location of the parade and the number of floats with recorded music participating in the parade, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the number of parades and the name, location and number of floats with recorded music for each parade by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

G. PARKS, STREETS AND OTHER PUBLIC AREAS

Application

1. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works in parks, streets or other public areas.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

Royalties

2. (1) The fee payable is $48.83 for each day on which sound recordings are performed, up to a maximum fee of $334.40 in any three-month period.

(2) If an event takes place in multiple locations, the fee payable under subsection (1) applies to each location in which sound recordings are performed.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of the date, location and name of the event, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the date, location and name of the event for each event by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

H. SPORTS EVENTS

Application

1. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works at sporting events, including but not limited to basketball, baseball, football, hockey, skating competitions, races, track meets and other sporting events.

(2) This tariff applies to all use of sound recordings at the sporting event, whether inside or outside of the stadium, arena or other venue and whether such sound recordings are played during the game itself or during the pre- or post-game periods (including the entrance and exit of the audience).

Royalties

2. (1) The fee payable per event shall be as follows, as a percentage of gross receipts from ticket sales, exclusive of all taxes, including but not limited to sales and amusement taxes, and exclusive of all service charges, convenience fees and delivery fees on ticket sales that are charged to the ticket purchaser in addition to the face value ticket price:

Period

Percentage of gross receipts from ticket sales

2013

0.099%

2014

0.1035%

2015

0.108%

(2) A complimentary ticket is valued at half the lowest price paid for a sold ticket from the same ticket category in the same event.

(3) Where admission to a sporting event is free, a fee of $5.00 per event applies.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound, no later than 30 days after the event, the fee for that event together with a report of its gross receipts, if applicable, including the number of complimentary tickets and the value attributed to them and the number of admissions for free events.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the gross receipts for each event, if applicable, including the number of complimentary tickets and the value attributed to them and the number of admissions for each free event.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

I. COMEDY AND MAGIC SHOWS

Application

1. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works at events where the primary focus is on comedians or magicians and the use of sound recordings is incidental.

(2) This tariff applies to all incidental use of sound recordings at the event whether inside or outside of the venue, and whether such sound recordings are played during the event itself, during intermissions, or during the entrance and exit of the audience.

Royalties

2. The fee payable per event is $32.94.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound, by no later than 30 days after the event, the fee for that event together with a report of the date, name and location of the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the date, name and location of each event.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

J. CONCERTS

Definitions

1. In this tariff,

“capacity” means the maximum number of persons that can attend an event (seating and standing) based on the number of tickets that can be issued for the event (both free and paid) as reported in the event’s ticket manifest or other relevant document. Where no ticket manifest or other relevant document exists, capacity shall be determined as the maximum number of persons that can occupy the venue or attend the particular event, if and as applicable, as set by the venue’s liquor licence, or if a liquor licence has not been issued, any other document issued by a competent authority. In the case of an event for which capacity cannot be determined by any of the foregoing methods, such as a free, un-ticketed outdoor concert, the capacity is the total number of persons in attendance at the event, or if the number of attendees is not tracked, a good faith and reasonable estimate of the total number of persons in attendance at the event. (« capacité »)

Application

2. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of published sound recordings of musical works and performers’ performances of such works during the entrance and exit of audiences and during breaks in live performances at live music concerts.

(2) This tariff does not apply to any use of sound recordings as part of the live performance.

Royalties

3. The fee payable per event is 0.3116¢ multiplied by the capacity, subject to a minimum fee of $30.00 per event.

Reporting Requirements

4. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound, by no later than 30 days after the event, the fee for that event together with a report of the name and location of the event and the capacity, as well as the applicable supporting documentation for the reported capacity.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the name, location and capacity for each event, as well as the applicable supporting documentation for the reported capacity.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013 TO 2015

Tariff No. 6.A

USE OF RECORDED MUSIC TO ACCOMPANY DANCE

Short Title

1. This tariff may be cited as the Re:Sound Dance Tariff, 2013-2015.

Application

2. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2013 to 2015, of published sound recordings embodying musical works and performers’ performances of such works, in any indoor or outdoor venue, including nightclubs, dance clubs, bars, restaurants, hotels, halls, clubs, schools, and campuses, for the purposes of dancing or any similar activity.

(2) This tariff does not apply to any venue operated by a not-for-profit religious or not-for-profit educational institution, if the dancing is primarily made available to participants under the age of 19.

(3) This tariff does not apply to dancing at an event that will be subject to Re:Sound’s proposed Tariff 6.C (Use of Recorded Music to Accompany Adult Entertainment) or to any tariff the Board may certify as a result of Re:Sound’s proposed Tariff 5 (Use of Music to Accompany Live Events).

Royalties

3. (1) A venue accommodating no more than 100 patrons shall pay an annual royalty as follows:

Days of operation

Months of operation

1–3 days

4–7 days

Six months or less

$1,086

$2,172

More than six months

$2,172

$4,344

(2) A venue accommodating more than 100 patrons shall pay 10 per cent more than the fees set out in subsection (1) for each capacity increase of up to 20 patrons.

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

4. For the purposes of this tariff, the number of patrons that a venue can accommodate is

  1. (a) the number of persons who can be present at any time under the venue’s liquor licence;

  2. (b) where the venue is not licensed to serve liquor, the number of persons who can be present at any time under any other document issued by a competent authority for this type of venue; or

  3. (c) otherwise, the total number of persons in attendance.

Rate Adjustments to Account for Inflation

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

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

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

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

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

“Re:Sound Tariff 6.A (Use of Recorded Music to Accompany Dance), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section 3 of the tariff to account for inflation, according to a formula set out in section 5 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates under subsection 3(1) for [year in which the increase is applied] and thereafter shall be [new applicable rates].

You can review the detailed calculation of the increase on Re:Sound’s website, at [URL to which the calculation is posted].”

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

Reporting Requirements

6. No later than January 31, the operator of the venue shall pay the royalty for that year and shall provide, for that same year,

  1. (a) the name and address of the venue;

  2. (b) the name and contact information of the person operating the venue;

  3. (c) the number of patrons that the venue can accommodate, with supporting documentation; and

  4. (d) the days and months of operation, as used to calculate the royalties.

Records and Audits

7. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in section 6 can be readily ascertained.

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

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

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

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

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

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 7(2).

Interest on Late Payments

10. Any amount not received by the due date (excluding adjustments for overpayments) shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one 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.

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

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

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

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

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEAR 2013

Tariff No. 6.B

USE OF RECORDED MUSIC IN FITNESS VENUES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Fitness Tariff,2013

Definitions

2. In this tariff,

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

“attendee” means a person who attends a fitness venue, for the purpose of participating in a fitness activity including a fitness class but who is not a member of the fitness venue; (« personne présente »)

“fitness class” means a class providing fitness instruction, and includes, without limitation, an aqua fitness, cardio, dance, skating and stretching class; (« cours d’activité physique »)

“fitness venue” means an indoor or outdoor venue where a fitness activity is undertaken and includes, without limitation, weight training, cardio training, and a fitness class; (« aire d’activité physique »)

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

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

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication of published sound recordings embodying musical works and performers’ performances of such works in fitness venues.

(2) This tariff shall not apply to a performance in public or communication to the public by telecommunication that is subject to another Re:Sound tariff.

Royalties

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

  1. (a) a monthly rate of $1.55 per member of the fitness venue; and

  2. (b) 4.24 per cent of the fees paid by all attendees to attend the fitness venue.

(2) For a fitness venue for which paragraphs 4(1)(a) and 4(1)(b) do not apply, the annual royalty payable is $500.

(3) For a fitness venue for which paragraphs 4(1)(a) and 4(1)(b) apply, the fitness venue shall pay a minimum annual royalty of $500.

Payments

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

(2) Royalties payable pursuant to subsections 4(2) and 4(3) shall be paid annually, and shall be due no later than January 31 of the year following the year for which the royalties are being paid.

Rate Adjustments to Account for Inflation

6. (1) Subject to subsections (2) to (4), the amounts payable pursuant to paragraph 4(1)(a) and subsections 4(2) and 4(3) may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

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

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

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

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

“Re:Sound Tariff 6.B (Use of Music in Fitness Venues), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rate set out in paragraph 4(1)(a) and subsections 4(2) and 4(3) of the tariff to account for inflation, according to a formula set out in section 6 of the tariff. Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates for [year in which the increase is applied] and thereafter shall be as follows:

  1. (a) if royalties are calculated according to paragraph 4(1)(a) of the tariff, [new applicable rate per member];

  2. (b) if royalties are calculated according to subsection 4(2) of the tariff, [new applicable flat rate]; and

  3. (c) if royalties are calculated according to subsection 4(3) of the tariff, [new applicable flat rate].”

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

Reporting Requirements

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

  1. (a) the name and address of the fitness venue;

  2. (b) the name and contact information of the person operating the fitness venue; and

  3. (c) a statement setting out the information used to calculate the royalty.

Accounts and Records

8. (1) A fitness venue subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that fitness venue’s royalty can be readily calculated, including, without limitation, the number of members of the fitness venue and the amount paid by attendees to attend the fitness venue.

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

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

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

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

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

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

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

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

Interest on Late Payments

11. Any amount not received by the due date (excluding adjustments for overpayments) shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one 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.

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

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

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2013 TO 2015

Tariff No. 6.C

USE OF RECORDED MUSIC TO ACCOMPANY ADULT ENTERTAINMENT

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Adult Entertainment Tariff, 2013-2015.

Definitions

2. In this tariff,

“capacity” means the number of persons that can occupy the venue (seating and standing), authorized under the venue’s liquor licence or any other document issued by a competent authority for this type of venue; (« capacité »)

“day” means any period between 6:00 a.m. on one day and 6:00 a.m. the following day during which the establishment operates as an adult entertainment club; (« jour »)

“venue” means a single location where adult entertainment is performed and includes an adult entertainment club, nightclub, dance club, bar, or hotel; (« aire »)

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

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2013 to 2015, of published sound recordings embodying musical works and performers’ performances of such works to accompany adult entertainment.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

Royalties

4. The annual royalty rate payable is 21¢ per day, multiplied by the venue’s capacity.

Rate Adjustments to Account for Inflation

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

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

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

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

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

“Re:Sound Tariff 6.C (Use of Recorded Music to Accompany Adult Entertainment), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rate set out in section 4 of the tariff to account for inflation, according to a formula set out in section 5 of the tariff.

Effective January 1, [year in which the increase is applied], the rate is being increased by [rate of increase] per cent. As a result, the applicable rates under section 4 for [year in which the increase is applied] and thereafter shall be [new applicable rate].

You can review the detailed calculation of the increase on Re:Sound’s website, at [URL to which the calculation is posted].”

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

Royalty Payments and Reporting Requirements

6. (1) No later than January 31, in the year for which sound recordings are performed, a person making payment pursuant to section 4 shall pay to Re:Sound the estimated royalties owing for that year as follows. If sound recordings were performed in the previous year, the payment will be calculated based on capacity and the days of operation for which sound recordings to accompany adult entertainment where performed during the previous year. If no sound recordings were performed during the previous year, or if an establishment was only open for part of the previous year, the person making payment shall provide an estimate of the days of operation for which sound recordings will be performed and shall pay the royalties owing based on that estimate. If a venue for which payment is being made pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the venue first opened. In all cases, the person making payment under this section shall report the information used to calculate the royalty.

(2) No later than January 31 of the following year, a person who has made payment under subsection 6(1) shall provide Re:Sound with a report of the actual days of operation for which sound recordings were performed to accompany adult entertainment during the previous year and an adjustment of the royalties payable shall be made accordingly. All additional monies owed shall be paid to Re:Sound by January 31. If the royalties due are less than the amount paid, Re:Sound shall credit the amount of the overpayment to the person who has made payment under subsection 6(1) against future payments.

Records and Audits

7. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the venue’s capacity and the information required to ascertain the days on which music to accompany adult entertainment was used.

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

(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was the subject of the audit.

(4) If an audit discloses that royalties due have been understated in any year by more than 10 per cent, the person who was the subject of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if the person who supplied the information had the opportunity to request a confidentiality order;

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

(2) When an error is discovered by Re:Sound at any point in time during the term of this tariff, Re:Sound shall notify the person to whom the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 7(2).

Interest on Late Payments

10. Any amount not received by the due date (excluding adjustments for overpayments) shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one 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.

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

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

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEAR 2013

Tariff No. 8

SIMULCASTING, NON-INTERACTIVE WEBCASTING AND SEMI-INTERACTIVE WEBCASTING

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Simulcasting, Non-Interactive Webcasting and Semi-Interactive Webcasting Tariff, 2013.

Definitions

2. (1) In this tariff,

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

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

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

  1. (a) user revenues, which means all payments made by, on behalf of, or to enable, users to access the Service, including, but not limited to, subscriber fees, connect time charges, access or activation fees, administrative fees, account history fees, returned payment fees, invoice fees, cancellation fees and hardware transfer and other transfer fees, whether made directly to the Service or to any entity under the same or substantially the same ownership, management or control, or to any other person, firm or corporation including, but not limited to, any partner or co-publisher of the Service, pursuant to an agreement or as directed or authorized by any agent or employee of the Service; and

  2. (b) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the Service including, but not limited to, payments associated with syndicated selling, on-line franchising, associates or affiliate programs, bounty, e-commerce or other revenue including revenue from the sale, design, development, manufacture, rental or installation of receiving devices and any other hardware and accessories used in the reception of the Service and also includes the value of any goods or services received from any source as barter in connection with the Service including, but not limited to, barter received in exchange for providing advertising time or space.

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

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

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

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

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

  1. (a) the content of such communication is influenced by a user of the Service having provided to the person making the communication (or a third party) information such as

    1. (i) the musical genre the user purchases, consumes or otherwise prefers,

    2. (ii) the artist the user purchases, consumes or otherwise prefers,

    3. (iii) ratings for a particular artist, or

    4. (iv) ratings for a particular sound recording,

    5. but without enabling any user to receive on request a specific file from a place and at a time individually chosen by the user; and/or

  2. (b) the user may skip through the communication by advancing to the start of the next file but is not permitted to skip back, repeat, rewind or fast forward or otherwise affect the timing and/or performance of the communication; (« webdiffusion semi-interactive »)

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

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

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

“stream ripping” means the act of copying a file from a site or service; (« extraction en ligne »)

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

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

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

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

Application

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

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

  1. (a) that is subject to another Re:Sound tariff, including Re:Sound Tariffs 1.A (Commercial Radio), 1.C (CBC Radio), 3 (Background Music), 4 (Satellite Radio Services), 9 (Commercial Television), and the Pay Audio Services Tariff. For greater certainty, an entity that is subject to another Re:Sound tariff is also subject to this tariff with respect to any communication to the public by telecommunication by simulcast, non-interactive webcast or semi-interactive webcast;

  2. (b) by podcast; or

  3. (c) by interactive communication that enables a user to receive, on request, a specific file from a place and at a time individually chosen by the user, such as a download or on-demand webcast of a specific file or album. If a Service offers both an interactive communication and a non-interactive webcast, semi-interactive webcast or simulcast (either concurrently or at different times), the non-interactive webcast, semi-interactive webcast and simulcast shall not be treated as part of an interactive communication.

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

Royalties

4. (1) The royalties payable under subsection 3(1) are the greater of

  1. (a) 30 per cent of gross revenues; or

  2. (b) $0.0022 for each communication of a file in Canada by the Service by simulcast, non-interactive webcast and semi-interactive webcast.

(2) The amounts payable under subsection (1) are subject to a minimum annual fee of $30,000.

ADMINISTRATIVE PROVISIONS

Technical Protection Measures

5. (1) A Service shall implement effective measures that are commercially available and can be implemented without unreasonable costs to prevent stream ripping.

(2) A Service shall crossfade songs, or where the Service is unable to implement crossfading, it shall reduce the gap between the songs to a maximum of no more than 0.25 seconds.

Accounts and Records

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

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

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

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

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

Payment and Reporting Requirements

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

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

  1. (a) the gross revenues of the Service;
  2. (b) the total number of times that a file was communicated in Canada by the Service by simulcast, non-interactive webcast and semi-interactive webcast; and

  3. (c) where applicable, the total number of subscribers to the Service (including both free and paid subscriptions) and the total amounts paid by them.

(3) The minimum fee payable under subsection 4(2) is due on the 14th day of January of each year for which it applies, to be credited against the monthly amounts payable under subsection 7(1).

Music Use Information

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

  1. (a) the date of the broadcast;

  2. (b) the time of the broadcast;

  3. (c) the title of the sound recording;

  4. (d) the title of the album;

  5. (e) the catalogue number of the album;

  6. (f) the track number on the album;

  7. (g) the record label;

  8. (h) the name of the author and composer;

  9. (i) the name of all performers or the performing group;

  10. (j) the duration of the sound recording broadcast, in minutes and seconds;

  11. (k) the duration of the sound recording as listed on the album, in minutes and seconds;

  12. (l) the Universal Product Code (UPC) of the album;

  13. (m) the International Standard Recording Code (ISRC) of the sound recording;

  14. (n) the type of usage (feature, theme, background, etc.);

  15. (o) whether the track is a published sound recording; and

  16. (p) where applicable, the cue sheets for all syndicated programming, inserted into the Excel report.

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

Confidentiality

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

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

  1. (a) with any other collective society;

  2. (b) with the Copyright Board;

  3. (c) in connection with proceedings before the Copyright Board, if the Service that supplied the information had the opportunity to request a confidentiality order;

  4. (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and

  5. (e) if required by law.

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

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 6(3).

Interest on Late Payments

11. (1) If either the amount owed or report required under subsection 7(2) is not provided by the due date, the Service shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a Service does not provide the sequential lists required by subsection 8(1) by the due date, the Service shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

13. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under subsection 7(2) is provided concurrently to Re:Sound by email.

(2) The information set out in subsection 8(1) shall be sent by email.

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

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