ARCHIVED — Vol. 146, No. 40 — October 6, 2012

COPYRIGHT BOARD

FILE: Public Performance of Musical Works

Statement of Royalties to Be Collected by SOCAN for the Communication to the Public by Telecommunication, in Canada, of Musical or Dramatico-Musical Works

In accordance with subsection 68(4) of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected by the Society of Composers, Authors and Musical Publishers of Canada (SOCAN) for the communication to the public by telecommunication, in Canada, of musical or dramatico-musical works in respect of Tariff 22.A (Internet – Online Music Services) for the years 2007 to 2010.

Ottawa, October 6, 2012

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY THE SOCIETY OF
COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA (SOCAN)
FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION,
IN CANADA, OF MUSICAL OR DRAMATICO-MUSICAL
WORKS FOR THE YEARS 2007 to 2010

Short Title

1. This tariff may be cited as SOCAN Tariff 22.A (Online Music Services), 2007-2010.

Definitions

2. The following definitions apply in this tariff.

“file” means a digital file of a sound recording of a musical work and includes a music video. (« fichier »)

“free on-demand stream” excludes an on-demand stream provided to a subscriber. (« transmission sur demande gratuite »)

“free subscription” means the provision of free access to on-demand streams to a subscriber. (« abonnement gratuit »)

“identifier” means the unique identifier an online music service assigns to a file. (« identificateur »)

“music video” means an audiovisual representation of a musical work. (« vidéo musicale »)

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

“online music service” means a service that delivers streams to end users, other than a service that offers only streams in which the file is selected by the service and can only be listened to at a time chosen by the service and for which no advance play list is published. (« service de musique en ligne »)

“play” means the single performance of an on-demand stream. (« écoute »)

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

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

“subscriber” means an end user with whom an online music service or its authorized distributor has entered into a contract for service other than on a transactional per-stream basis, for a fee, for other consideration or free of charge, including pursuant to a free subscription. (« abonné »)

“unique visitor” means each end user, excluding a subscriber, who receives a free on-demand stream from an online music service in a month. (« visiteur unique »)

Application

3. (1) This tariff sets the royalties to be paid for the communication to the public by telecommunication of works in SOCAN’s repertoire in connection with the operation of an online music service in the years 2007 to 2010.

(2) This tariff does not apply to uses covered by other applicable tariffs, including SOCAN Tariffs 16 and 24 and the Satellite Radio Services Tariff.

Royalties

On-Demand Streams

4. (1) The royalties payable in a month by any online music service that offers on-demand streams shall be

A × B
   C

where

(A) is 5.02 per cent of the amounts paid by subscribers for the service during the month if the subscriber only received music videos, and 7.6 per cent if not,

(B) is the number of plays of on-demand streams requiring a SOCAN licence during the month, and

(C) is the number of plays of all on-demand streams, during the month,

subject to a minimum of 50.67¢ per subscriber.

Free On-Demand Streams

(2) The royalties payable for free on-demand streams shall be the lesser of 50.67¢ per unique visitor per month or 0.13¢ per free on-demand stream requiring a SOCAN licence received by that unique visitor in that month.

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

ADMINISTRATIVE PROVISIONS

Reporting Requirements: Service Identification

5. No later than the earlier of 20 days after the end of the first month during which an online music service reproduces a file requiring a SOCAN licence and the day before the service first makes such a file available to the public, the service shall provide to SOCAN the following information:

  • (a) the name of the person who operates the service, including
    • (i) the name of a corporation and a mention of its jurisdiction of incorporation,

    • (ii) the name of the proprietor of an individual proprietorship, or

    • (iii) the names of the principal officers of any other service, together with any other trade name under which the service carries on business;
  • (b) the address of its principal place of business;

  • (c) the name, address and email of the persons to be contacted for the purposes of notice, for the exchange of data and for the purposes of invoicing and payment;

  • (d) the name and address of any authorized distributor; and

  • (e) the Uniform Resource Locator (URL) of each website at or through which the service is or will be offered.

Sales Reports

Definition

6. (1) In this section, “required information” means, in respect of a file,

  • (a) its identifier;

  • (b) the title of the musical work;

  • (c) the name of each performer or group to whom the sound recording is credited;

  • (d) the name of the person who released the sound recording;

  • (e) if the online music service believes that a SOCAN licence is not required, information that establishes why the licence is not required;

  • and, if available,

  • (f) the name of each author of the musical work;

  • (g) the International Standard Recording Code (ISRC) assigned to the sound recording;

  • (h) the name of the music publisher associated with the musical work;

  • (i) the International Standard Musical Work Code (ISWC) assigned to the musical work;

  • (j) if the sound recording was released in physical format as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;

  • (k) the Global Release Identifier (GRid) assigned to the file and, if applicable, the GRid of the album or bundle in which the file was released;

  • (l) the running time of the file, in minutes and seconds; and

  • (m) any alternative title used to designate the musical work or sound recording.

On-Demand Streams

(2) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 4(1) shall provide to SOCAN a report setting out, for that month,

  • (a) in relation to each file that was delivered as an on-demand stream, the required information;

  • (b) the number of plays of each file;

  • (c) the total number of plays of all files;

  • (d) the number of subscribers to the service during the month and the total amounts paid by them during that month; and

  • (e) the number of subscribers provided with free subscriptions and the total number of plays of all files by such subscribers as on-demand streams.

Free On-Demand Streams

(3) No later than 20 days after the end of each month, any online music service that is required to pay royalties pursuant to subsection 4(2) shall provide to SOCAN a report setting out, for that month,

  • (a) in relation to each file that was delivered as a free on-demand stream, the required information;

  • (b) the number of plays of each file as a free on-demand stream;

  • (c) the total number of plays of all files as free on-demand streams;

  • (d) the number of unique visitors;

  • (e) a description of the manner in which each unique visitor is identified; and

  • (f) the number of free on-demand streams provided to each unique visitor.

(4) An online music service that is required to pay royalties pursuant to more than one subsection of section 4 shall file a separate report pursuant to each subsection of this section.

(5) An online music service that is required to pay royalties with respect to music videos shall file the required information separately from the information dealing with audio-only files.

Payment of Royalties

7. Royalties shall be due no later than 20 days after the end of each quarter.

Adjustments

8. Adjustments to any information provided pursuant to sections 5 or 6 shall be provided with the next report dealing with such information.

9. (1) Subject to subsection (2), adjustments in the amount of royalties owed, including excess payments, as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.

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

Records and Audits

10. (1) An online music service shall keep and preserve, for a period of six years after the end of the month to which they relate, records from which the information set out in sections 5 or 6 can be readily ascertained.

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

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

Confidentiality

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

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

  • (a) in connection with the collection of royalties or the enforcement of a tariff, with CMRRA, SODRAC or CSI;

  • (b) with the Copyright Board;

  • (c) in connection with proceedings before the Board, once the online music service had a reasonable opportunity to request a confidentiality order;

  • (d) with any person who knows or is presumed to know the information;

  • (e) to the extent required to effect the distribution of royalties, with royalty claimants; and

  • (f) if ordered by law.

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

Interest on Late Payments

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

Addresses for Notices, etc.

13. (1) Anything addressed to SOCAN shall be sent to 41 Valleybrook Drive, Toronto, Ontario M3B 2S6, email: customers@socan.ca, fax number: 416-445-7108, or to any other address, email address or fax number of which a service has been notified in writing.

(2) Anything that SOCAN sends to an online music service shall be sent to the last address, email address or fax number of which SOCAN has been notified in writing.

Delivery of Notices and Payments

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

(2) Information provided pursuant to sections 5 and 6 shall be delivered electronically, by way of delimited text file or in any other format agreed upon by SOCAN and the online music service.

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

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

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

Transitional Provisions

15. (1) Royalties owed on or before December 31, 2012, as a result of differences between this tariff and the SOCAN Tariff 22.A (Internet – Online Music Services) 1996-2006 shall be due on March 31, 2013, and shall be increased by using the multiplying interest factors (based on the Bank Rate) set out in the following table with respect to each period. Subject to subsection (2), information pertaining to that same period shall be filed with the payment and shall be supplied only if it is available.

Q1

Q2

Q3

Q4

2007

1.0808

1.0808

1.0769

1.0698

2008

1.0570

1.0481

1.0399

1.0274

2009

1.0162

1.0130

1.0120

1.0111

2010

1.0101

1.0107

1.0124

1.0110

(2) A service that files a report that complies with the SOCAN Tariff 22.A (Internet – Online Music Services) 1996-2006 before December 31, 2012, is not required to provide any additional information that this tariff may require with respect to the corresponding report.