Vol. 150, No. 23 — June 4, 2016

COPYRIGHT BOARD

FILE: Reproduction of Musical Works

Statement of Proposed Royalties to Be Collected for the Reproduction of Musical Works Embedded into Cinematographic Works for the Purpose of Distribution of Copies of the Cinematographic Works for Private Use or Theatrical Exhibition, Reproduction of Musical Works Embedded in Musical Audiovisual Works for their Transmission by a Service, for the Reproduction of Musical Works Embedded in Audiovisual Works for their Transmission by a Service and for the Reproduction of Musical Works by Commercial Television Stations

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) on March 31, 2016, with respect to royalties it proposes to collect, effective on January 1, 2017, for the reproduction of musical works embedded into cinematographic works for the purpose of distribution of copies of the cinematographic works for private use or theatrical exhibition for the years 2017 to 2019 (Tariff No. 5), for the reproduction of musical works embedded in musical audiovisual works for their transmission by a service, in Canada, in 2017 (Tariff No. 6), for the reproduction of musical works embedded in audiovisual works for their transmission by a service, in Canada, in 2017 (Tariff No. 7), and for the reproduction of musical works by commercial television stations, in Canada, in 2017 (Tariff No. 8).

In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the statement may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than August 3, 2016.

Ottawa, June 4, 2016

GILLES McDOUGALL
Secretary General

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FOR THE REPRODUCTION OF MUSICAL WORKS EMBEDDED INTO CINEMATOGRAPHIC WORKS FOR THE PURPOSE OF DISTRIBUTION OF COPIES OF THE CINEMATOGRAPHIC WORKS FOR PRIVATE USE OR THEATRICAL EXHIBITION FOR THE YEARS 2017 TO 2019

Short Title

1. This tariff may be cited as SODRAC Tariff No. 5, Reproduction of Musical Works in Cinematographic Works for Theatrical Exhibition or Private Use, 2017-2019.

Definitions

2. In this tariff,

“audiovisual work” means a movie, television program or other cinematographic work irrespective of its initial intended use, but excludes musical audiovisual work; (« œuvre audiovisuelle »)

“musical audiovisual work” Audiovisual work consisting predominantly of musical audiovisual content fixed on a physical support, including a videoclip, a concert, a musical, a variety show, or a program of physical exercises, including any extract of such audiovisual work; (« œuvre audiovisuelle musicale »)

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

“semester” means from January 1 to June 30 and from July 1 to December 31; (« semestre »)

“SODRAC” means Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. and SODRAC 2003 Inc., acting jointly and severally. (« SODRAC »)

Application

3. A distributor that complies with this tariff shall be entitled to reproduce onto a copy of an audiovisual work a musical work of the repertoire already embedded into that audiovisual work, or to authorize such reproduction,

Restrictions

4. (1) This tariff only authorizes the reproduction of a musical work in association with the same images with which the musical work was embedded in the audiovisual work.

(2) For greater certainty, this tariff does not apply to musical audiovisual work, to activities subject to a licence in force between SODRAC and the Canadian Broadcasting Corporation / Société Radio-Canada or to activities subject to SODRAC Tariff No. 6 or SODRAC Tariff No. 7.

Paragraph 3(a): Alternative Tariff Arrangements and Elections

5. (1) For audiovisual work, a distributor shall pay royalties for reproductions made pursuant to paragraph 3(a) pursuant to section 6 or section 7.

(2) A distributor shall pay royalties pursuant to section 7 unless the distributor notifies SODRAC, before January 1 of a year, that the distributor has elected to pay royalties pursuant to section 6 for that and subsequent years.

(3) A distributor who has elected to pay royalties pursuant to section 6 continues to do so until the distributor notifies SODRAC, before January 1 of a year, of the distributor’s election to pay royalties pursuant to section 7 for that and subsequent years.

6. (1) For reproductions made pursuant to paragraph 3(a), a distributor shall pay to SODRAC, for each minute of music requiring a licence from SODRAC, a royalty calculated pursuant to the following table:

Per minute rate, per copy of program or product Foreground music (including themes) Background music (including transitions)
First 15 minutes 1.51¢ 0.61¢
Next 15 minutes 0.91¢ 0.36¢
Each additional minute 0.55¢ 0.22¢

(2) Where SODRAC administers only part of the rights in a musical work, the applicable rate is the relevant rate multiplied by SODRAC’s share in the musical work.

(3) Royalties owing for a product (box set) comprising several television programs are calculated on the basis of the product’s entire content.

7. For reproductions made pursuant to paragraph 3(a), a distributor shall pay to SODRAC, in respect of music requiring a licence from SODRAC, a royalty calculated pursuant to the following table:

Amount of music requiring a SODRAC licence Royalty per copy
No more than 5 minutes 2.51¢
More than 5 and no more than 10 minutes 6.67¢
More than 10 and no more than 20 minutes 12.43¢
More than 20 and no more than 30 minutes 17.80¢
More than 30 and no more than 45 minutes 22.47¢
More than 45 and no more than 60 minutes 27.00¢

8. Notwithstanding subsection 6(1) or section 7, a distributor is entitled to provide, royalty-free, one promotional copy for every 9 copies of an audiovisual work sold, up to a total of 300.

Paragraph 3(b): Royalties

9. For reproductions made pursuant to paragraph 3(b), a distributor shall pay to SODRAC $100 per year.

Taxes

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

Reporting and Payment Requirements

11. (1) No later than 30 days after the end of the semester during which a distributor first delivers an audiovisual work directly or indirectly for sale or rental to consumers for private use, the distributor shall provide to SODRAC, with respect to that audiovisual work,

(2) Using the information received pursuant to subsection (1) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 6 or 7.

(3) A distributor that does not supply a musical cue sheet pursuant to paragraph (1)(d) shall collaborate with SODRAC if SODRAC attempts to secure the cue sheet from anyone, including the producer of the audiovisual work, other than another collective society. If SODRAC does not receive the cue sheet despite such collaboration, the distributor shall provide to SODRAC, if available,

(4) A distributor shall provide the information set out in subsection (1) or (3) with respect to each otherwise identical audiovisual work if the musical content in each such work is different.

(5) If the information supplied pursuant to subsection (1), (3) or (4) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire with the distributor, who will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including

12. (1) As soon as possible after receiving the information set out in section 11, SODRAC shall notify the distributor of those audiovisual works that include a work for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the distributor a report setting out

(2) At least once each semester, SODRAC shall provide a new report with respect to audiovisual works for which the information set out in paragraph (1)(c) or (d) has changed.

13. (1) No later than 60 days after the end of a semester, a distributor shall provide to SODRAC, with respect to each audiovisual work that is mentioned in a report received pursuant to section 12 before the end of the semester and a copy of which was sold during the semester, the following information relating to that semester:

(2) A distributor shall forward to SODRAC the royalties payable in respect of a copy at the same time as it sends the information set out in subsection (1) in respect of that copy.

(3) Royalties payable pursuant to section 9 are due no later than on January 31 of the relevant year.

Repertoire Disputes

14. (1) A distributor that disputes the indication in a report received pursuant to section 12 that a musical work requires a SODRAC licence shall provide to SODRAC the information on which the distributor relies to conclude that the licence is not required, unless the information was provided earlier.

(2) A distributor that disputes the indication more than 20 days after receiving a report pursuant to section 12 is not entitled to interest on the amounts owed to it.

Accounts and Records

15. (1) A distributor and SODRAC shall keep and preserve, for a period of four years after the end of the semester to which they relate, records from which the information set out in sections 11 to 13 can be ascertained.

(2) SODRAC may audit these records at any time during the period set out in subsection (1) on notice of 10 business days and during normal business hours.

(3) SODRAC shall, upon receipt, supply to the distributor a copy of the audit report.

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

Confidentiality

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

(2) SODRAC may share information referred to in subsection (1)

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

Adjustments

17. 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.

Interests on Late Payments

18. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

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

(3) For the purposes of this section, if a report provided pursuant to section 11 is filed late, no account is taken of the time between the date the report should have been filed and the date it is filed for the purposes of determining whether the corresponding report provided pursuant to section 12 was received before the end of a semester for the purposes of section 13.

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

(5) Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Delivery of Notices and Payments

19. (1) Anything that a distributor sends to SODRAC pursuant to section 11 or 13 shall be sent by email to audiovisual@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the distributor has been notified in writing.

(2) Anything that SODRAC sends to a distributor shall be sent to the last address, fax number or email address of which SODRAC has been notified in writing.

20. (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) To the extent possible, information that a distributor provides pursuant to section 11 or 13 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the distributor. Each type of information shall be provided in a separate field.

(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.

Termination

21. (1) SODRAC may, after providing 30 days’ notice in writing, terminate the licence of a distributor who does not comply with this tariff.

(2) Upon termination of the licence, a distributor shall immediately withdraw from the market all copies it owns that contain a work of the repertoire.

Term

22. This tariff comes into force on January 1, 2017, and ends on December 31, 2019.

STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FOR THE REPRODUCTION OF MUSICAL WORKS EMBEDDED IN MUSICAL AUDIOVISUAL WORKS FOR THEIR TRANSMISSION BY A SERVICE, IN CANADA, IN 2017

Short Title

1. This tariff may be cited as SODRAC Tariff No. 6, Reproduction of Musical Works Embedded in Musical Audiovisual Works for Transmission by a Service, 2017.

Definitions

2. In this tariff,

“cue sheet” means a report containing the following information: the title of the musical audiovisual work, the title of each of the musical works embedded into the musical audiovisual work, the name of the author and composer of each of the musical works, the duration of each of the musical works, the duration of the musical audiovisual work; (« rapport de contenu musical »)

“download” means a file intended to be copied onto an end user’s local storage medium or device; (« téléchargement »)

“file” means a digital file of a musical audiovisual work; (« 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 limited downloads or on-demand streams to a subscriber; (« abonnement gratuit »)

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

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

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

“musical audiovisual work” Audiovisual work consisting predominantly of musical audiovisual content, including a videoclip, a concert, a musical, a variety show, a program of physical exercises, including any extract of such audiovisual work, fixed on any digital support whatsoever; (« œuvre audiovisuelle musicale »)

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

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

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

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

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

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

“service” means a service that delivers on-demand streams, limited downloads and permanent downloads of a musical audiovisual work to end users by any means whatsoever (e.g. cable, online, satellite); (« service »)

“SODRAC” means SODRAC 2003 Inc. and Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc.; (« SODRAC »)

“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 a service or its authorized distributor has entered into a contract for service other than on a transactional per-download or per-stream basis, for a fee, or for other consideration, including pursuant to a free subscription; (« abonné »)

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

Application

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

in connection with the operation of the service.

(2) For greater certainty, this tariff does not apply to activities subject to a licence in force between SODRAC and the Canadian Broadcasting Corporation / Société Radio-Canada or to activities subject to SODRAC Tariff No. 5 and SODRAC Tariff No. 7.

4. (1) This tariff does not authorize the reproduction of a musical work of the repertoire embedded in a musical audiovisual work in a medley, for the purpose of creating a mashup, for use as a sample or in association with a product, service, cause or institution.

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

(3) This tariff does not authorize the production of a musical audiovisual work or the synchronization of a musical work in a musical audiovisual work. It authorizes only the transmission by any means whatsoever of existing musical audiovisual works in which the musical work is already embedded.

Royalties

Permanent Downloads

5. (1) Subject to paragraph (6)(b), the royalties payable in a month by a service that offers permanent downloads requiring a SODRAC licence shall be 5.64 per cent of the amount paid by an end user for the download, subject to a minimum of 2.6¢ per musical work in a musical audiovisual work that contains 19 or more musical works, per permanent download, and 8.04¢ per permanent download in all other cases.

Limited Downloads

(2) The royalties payable in a month by a service that offers limited downloads requiring a SODRAC licence shall be,

A × B
C

where

subject to a minimum equal to the greater of

Where a service does not report to SODRAC the number of plays of files as limited downloads, (B) will be deemed to equal either (a) the number of plays of the same musical audiovisual work as an on-demand stream during the month, or (b) if the musical audiovisual work has not been played as an on-demand stream during the month, the average number of plays of all musical audiovisual works as on-demand streams during the month.

On-Demand Streams

(3) Subject to paragraph (6)(b), the royalties payable in a month by a service that offers on-demand streams but does not offer limited downloads shall be

A × B
C

where

subject to a minimum equal to the greater of

For clarity, if the service permits an end user to copy files onto a local storage medium or device for later access, the service shall pay royalties pursuant to paragraph (2)(b), not pursuant to this subsection.

Free On-Demand Streams

(4) Subject to paragraph (6)(a), the royalties payable for free on-demand streams shall be the lesser of 16.37¢ per unique visitor per month and 0.054¢ per free on-demand stream requiring a SODRAC licence received by that unique visitor in that month.

(5) Subject to paragraph (6)(a), where a service that is required to pay royalties under any of subsections (2) to (4) also offers permanent downloads, the royalty payable by the service for each permanent download requiring a SODRAC licence shall be 5.64 per cent of the amount paid by an end user for the download, subject to a minimum of 2.6¢ per musical work in a musical audiovisual work that contains 19 musical works or more, per permanent download, and 8.04¢ per permanent download in all other cases.

Adjustments

(6) Where SODRAC does not hold all the rights in a musical work,

(7) For the purpose of calculating the minimum payable pursuant to paragraph (2)(b) and subsection (3), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

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

ADMINISTRATIVE PROVISIONS

Reporting Requirements

6. No later than 20 days after the end of the first month during which a service reproduces a file requiring a SODRAC licence and the day before the service first makes such a file available to the public, whichever comes first, the service shall provide to SODRAC the following information:

Sales Reports

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

Permanent and Transactional Limited Downloads

(2) No later than 20 days after the end of each quarter, a service that is required to pay royalties pursuant to subsection 5(1) or paragraph 5(2)(a) shall provide to SODRAC a report setting out, for that quarter, allocated by month,

Subscription-Based Limited Downloads and On-Demand Streams

(3) No later than 20 days after the end of each quarter, a service that is required to pay royalties pursuant to paragraph 5(2)(b) and subsection 5(3) shall provide to SODRAC a report setting out, for that quarter, allocated by month,

Free On-Demand Streams

(4) No later than 20 days after the end of each quarter, a service that is required to pay royalties pursuant to subsection 5(4) shall provide to SODRAC a report setting out, for that quarter, allocated by month,

(5) A service that is required to pay royalties pursuant to more than one subsection of section 5 shall file a separate report pursuant to each subsection of this section.

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

(7) Using the information received pursuant to subsections (1) to (4) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 5.

(8) A service that does not supply a musical cue sheet pursuant to paragraph (1)(b) shall collaborate with SODRAC if SODRAC attempts to secure the cue sheet from anyone, including the producer of the musical audiovisual work. If SODRAC does not receive the cue sheet despite such collaboration, the service shall provide to SODRAC, if available,

(9) A service shall provide the information set out in subsection (1) or (8) with respect to each otherwise identical musical audiovisual work if the musical content in each such work is different.

(10) If the information supplied pursuant to subsection (1), (8) or (9) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire with the service, which will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including

8. (1) As soon as possible after receiving the information set out in section 7, SODRAC shall notify the service of those musical audiovisual works that include a work for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the service a report setting out

(2) At least once each quarter, SODRAC shall provide a new report with respect to musical audiovisual works for which the information set out in paragraph (1)(c) or (d) has changed.

9. Royalties payable pursuant to section 5 are due no later than six months after the quarter. If SODRAC does not provide the report under section 8 prior to the date where the payment is due, the payment of royalties for that quarter is deferred to the next quarter.

Repertoire Disputes

10. (1) A service that disputes the indication in a report received pursuant to section 8 that a file contains a musical work requiring a SODRAC licence shall provide to SODRAC the information on which the service relies to conclude that the licence is not required, unless the information was provided earlier.

(2) A service that disputes the indication more than 20 days after receiving a report pursuant to section 8 is not entitled to interest on the amounts owed to it.

Records and Audits

11. (1) A service and SODRAC shall keep and preserve, for a period of four years after the end of the quarter to which they relate, records from which the information set out in sections 7 and 8 can be readily ascertained.

(2) SODRAC may audit these records at any time during the period set out in subsection (1) on notice of 10 business days and during normal business hours.

(3) SODRAC shall, upon receipt, supply to the service a copy of the audit report.

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

Confidentiality

12. (1) Subject to subsections (2) and (3), SODRAC 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

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

Adjustments

13. 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.

Interests on Late Payments

14. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

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

(3) For the purposes of this section, a report provided pursuant to section 8 following the late reception of a report provided pursuant to section 7 is deemed to have been received within the time set out in section 8 as long as SODRAC provides the report no more than 20 days after receiving the late report.

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

(5) Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Delivery of Notices and Payments

15. (1) Anything that a service sends to SODRAC pursuant to sections 6 and 7 shall be sent by email to audiovisual@sodrac.ca. Anything else that a service sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the service has been notified in writing.

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

16. (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) To the extent possible, information that a service provides pursuant to section 7 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the service. Each type of information shall be provided in a separate field.

(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.

Termination

17. (1) SODRAC may, after providing 30 days’ notice in writing, terminate the licence of a service that does not comply with this tariff.

(2) Upon termination of the licence, a service shall immediately withdraw from the market all copies it owns that contain a work of the repertoire.

Term

18. This tariff comes into force on January 1, 2017, and ends on December 31, 2017.

STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FOR THE REPRODUCTION OF MUSICAL WORKS EMBEDDED IN AN AUDIOVISUAL WORK FOR THEIR TRANSMISSION BY A SERVICE, IN CANADA, IN 2017

Short Title

1. This tariff may be cited as SODRAC Tariff No. 7, Reproduction of Musical Works Embedded in Audiovisual Works for Transmission by a Service, 2017.

Definitions

2. In this tariff,

“audiovisual work” means a movie, television program or other cinematographic work irrespective of its initial intended use, but excludes musical audiovisual work as defined in SODRAC Tariff No. 6; (« œuvre audiovisuelle »)

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

“cue sheet” means a report containing the following information: the title of the audiovisual work, the title of each of the musical works embedded into the audiovisual work, the name of the author and composer of each of the musical works, the duration of each of the musical works, and the total duration of the audiovisual work; (« rapport de contenu musical »)

“download” means a file intended to be copied onto an end user’s local storage medium or device; (« téléchargement »)

“file,” except in the definition of “bundle,” means a digital file of an audiovisual work embedding one or more musical works; (« 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 limited downloads or on-demand streams to a subscriber; (« abonnement gratuit »)

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

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

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

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

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

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

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

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

“semester” means from January 1 to June 30 and from July 1 to December 31; (« semestre »)

“service” means a service that delivers on-demand streams, limited downloads and permanent downloads of an audiovisual work to end users, by any means whatsoever (e.g. online, cable, satellite); (« service »)

“SODRAC” means SODRAC 2003 Inc. and Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc.; (« SODRAC »)

“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 a service or its authorized distributor has entered into a contract for service other than on a transactional per-download or per-stream basis, for a fee, or for other consideration, including pursuant to a free subscription; (« abonné »)

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

Application

3. This tariff entitles a service that complies with this tariff, and its authorized distributors,

in connection with the operation of the service.

Restrictions

4. (1) This tariff only authorizes the reproduction of a musical work in association with the same images with which the musical work was embedded in the audiovisual work.

(2) For greater certainty, this tariff does not apply to activities subject to SODRAC Tariff No. 5, SODRAC Tariff No. 6 and SODRAC Tariff No. 8.

(3) This tariff does not authorize the production of an audiovisual work or the synchronization of a musical work in an audiovisual work. It authorizes only the transmission by any means whatsoever of an existing audiovisual work in which a musical work is already embedded.

Royalties

Permanent Downloads

5. (1) Subject to paragraph (6)(a), the royalties payable in a month by a service that offers permanent downloads requiring a SODRAC licence shall be the greater of paragraphs (1)(a) and (b):

Amount of music requiring a SODRAC licence Royalty per downloaded file
No more than 5 minutes 2.51¢
More than 5 and no more than 10 minutes 6.67¢
More than 10 and no more than 20 minutes 12.43¢
More than 20 and no more than 30 minutes 17.80¢
More than 30 and no more than 45 minutes 22.47¢
More than 45 and no more than 60 minutes 27.00¢
Limited Downloads

(2) The royalties payable in a month by a service that offers limited downloads requiring a SODRAC licence shall be the greater of paragraphs (2)(a) and (b):

A × B
C

where

subject to a minimum equal to the greater of

Where a service does not report to SODRAC the number of plays of files as limited downloads, (B) will be deemed to equal either (a) the number of plays of the same audiovisual work as an on-demand stream during the month, or (b) if the audiovisual work has not been played as an on-demand stream during the month, the average number of plays of all audiovisual work as on-demand streams during the month.

Amount of music requiring a SODRAC licence Royalty per play
No more than 5 minutes 1.94¢
More than 5 and no more than 10 minutes 5.14¢
More than 10 and no more than 20 minutes 9.57¢
More than 20 and no more than 30 minutes 13.70¢
More than 30 and no more than 45 minutes 17.30¢
More than 45 and no more than 60 minutes 20.80¢
On-Demand Streams

(3) The royalties payable in a month by a service that offers on-demand streams but does not offer limited downloads shall be the greater of paragraphs (3)(a) and (b):

A × B
C

where

subject to a minimum equal to the greater of

Amount of music requiring a SODRAC licence Royalty per play
No more than 5 minutes 1.36¢
More than 5 and no more than 10 minutes 3.60¢
More than 10 and no more than 20 minutes 6.71¢
More than 20 and no more than 30 minutes 9.61¢
More than 30 and no more than 45 minutes 12.13¢
More than 45 and no more than 60 minutes 14.59¢
Free On-Demand Streams

(4) Subject to paragraph (6)(a), the royalties payable for free on-demand streams shall be the lesser of 7.95¢ per unique visitor per month and 0.054¢ per free on-demand stream requiring a SODRAC licence received by that unique visitor in that month.

(5) Subject to paragraph (6)(a), where a service that is required to pay royalties under any of subsections (2) to (4) also offers permanent downloads, the service is required to pay royalties under subsection (1).

Adjustments

(6) Where SODRAC does not hold all the rights in a musical work,

(7) For the purpose of calculating the minimum payable pursuant to subparagraph (2)(a)(ii) and paragraph (3)(a), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

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

ADMINISTRATIVE PROVISIONS

Reporting Requirements

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

Sales Reports

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

Permanent and Transactional Limited Downloads

(2) No later than 20 days after the end of each semester, any service that is required to pay royalties pursuant to subsection 5(1), subparagraph 5(2)(a)(i) or paragraph 5(2)(b) shall provide to SODRAC a report setting out, for that semester, allocated by month,

Subscription-Based Limited Downloads and On-Demand Streams

(3) No later than 20 days after the end of each semester, any service that is required to pay royalties pursuant to subparagraph 5(2)(a)(ii), paragraph 5(2)(b) and subsection 5(3) shall provide to SODRAC a report setting out, for that semester, allocated by month,

Free On-Demand Streams

(4) No later than 20 days after the end of each semester, a service that is required to pay royalties pursuant to subsection 5(4) shall provide to SODRAC a report setting out, for that semester, allocated by month,

(5) A service that is required to pay royalties pursuant to more than one subsection of section 5 shall file a separate report pursuant to each subsection of this section.

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

(7) Using the information received pursuant to subsections (1) to (4) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 5.

(8) A service that does not supply a musical cue sheet pursuant to paragraph (1)(b) shall collaborate with SODRAC if SODRAC attempts to secure the cue sheet from anyone, including the producer of the audiovisual work. If SODRAC does not receive the cue sheet despite such collaboration, the service shall provide to SODRAC, if available,

(9) A service shall provide the information set out in subsection (1) or (8) with respect to each otherwise identical audiovisual work if the musical content in each such work is different.

(10) If the information supplied pursuant to subsection (1), (8) or (9) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire with the service, which will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including

8. (1) As soon as possible after receiving the information set out in section 7, SODRAC shall notify the service of those audiovisual works that include a work for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the service a report setting out

(2) At least once each semester, SODRAC shall provide a new report with respect to audiovisual works for which the information set out in paragraph (1)(c) or (d) has changed.

9. Royalties payable pursuant to section 5 are due no later than six months after the semester. If SODRAC does not provide the report under section 8 prior to the date where the payment is due, the payment of royalties for that semester is deferred to the next semester.

Repertoire Disputes

10. (1) A service that disputes the indication in a report received pursuant to section 8 that a file contains a musical work requiring a SODRAC licence shall provide to SODRAC the information on which the service relies to conclude that the licence is not required, unless the information was provided earlier.

(2) A service that disputes the indication more than 20 days after receiving a report pursuant to section 8 is not entitled to interest on the amounts owed to it.

Records and Audits

11. (1) A service and SODRAC shall keep and preserve, for a period of four years after the end of the semester to which they relate, records from which the information set out in sections 7 and 8 can be ascertained.

(2) SODRAC may audit these records at any time during the period set out in subsection (1) on notice of 10 business days and during normal business hours.

(3) SODRAC shall, upon receipt, supply to the distributor a copy of the audit report.

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

Confidentiality

12. (1) Subject to subsections (2) and (3), SODRAC 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

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

Adjustments

13. 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.

Interests on Late Payments

14. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

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

(3) For the purposes of this section, a report provided pursuant to section 8 following the late reception of a report provided pursuant to section 7 is deemed to have been received within the time set out in section 8 as long as SODRAC provides the report no more than 20 days after receiving the late report.

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

(5) Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Delivery of Notices and Payments

15. (1) Anything that a service sends to SODRAC pursuant to sections 6 and 7 shall be sent by email to audiovisual@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the service has been notified in writing.

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

16. (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) To the extent possible, information that a service provides pursuant to section 7 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the service. Each type of information shall be provided in a separate field.

(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.

Termination

17. (1) SODRAC may, after providing 30 days’ notice in writing, terminate the licence of a service that does not comply with this tariff.

(2) Upon termination of the licence, a service shall immediately withdraw from the market all files that contain a musical work of the repertoire.

Term

18. This tariff comes into force on January 1, 2017, and ends on December 31, 2017.

STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FROM COMMERCIAL TELEVISION STATIONS FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS IN 2017

Short Title

1. This tariff may be cited as the SODRAC Tariff No. 8, Commercial Television Tariff, 2017.

Definitions

2. The following definitions apply in this tariff.

“broadcasting” has the meaning ascribed to it in section 2 of the Broadcasting Act, S.C. 1991, c. 11, excluding any video-on-demand, any dissemination of programs via the Internet for a fee, and any podcasting of audiovisual content in which a work of the repertoire is already embedded, but including any simulcast. (« radiodiffusion »)

“cue sheet” means a report containing the following information: the title of the audiovisual work, the title of each of the musical works embedded into the audiovisual work, the name of the author and composer of each of the musical works, the duration of each of the musical works, the duration of the audiovisual work. (« rapport de contenu musical »)

“gross income” means the gross amounts paid for the use of one or more broadcasting services or facilities offered by a station’s operator, including the value of any goods or services provided by any person in exchange for the use of such services or facilities, the fair market value of any non-monetary consideration (e.g. barter or “contra”), and any income from simulcast, whether such amounts are paid to the station owner or operator or to other persons, but excluding the following:

“identifier” means the unique identifier assigned to a program, musical work, sound recording, or cue sheet, as the case may be. (« identificateur »)

“network” has the meaning ascribed to it in section 2 of the Broadcasting Act, S.C. 1991, c. 11. (« réseau »)

“program” means any combination of sounds and visual images that is intended to inform, enlighten, or entertain, excluding an advertisement. (« émission »)

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

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

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

“SODRAC” means Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. and SODRAC 2003 Inc., acting jointly and severally. (« SODRAC »)

“station” means a programming undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11. (« station »)

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

Application

3. (1) A station that complies with this tariff is authorized to reproduce a work of the repertoire already embedded in a program, in any material form and by any process now known or hereafter devised, solely for the purpose of broadcasting the program on the station, including any simulcast.

(2) A station that complies with this tariff is also authorized to

(3) The reproductions referred to in subsection (1) and paragraphs (2)(b) and (c) shall be limited to the work of the repertoire already embedded in the program, including the associated visual images.

(4) This tariff does not authorize

(5) This tariff does not apply where there is an agreement between SODRAC and a person authorized to do the acts referred to therein, if the agreement is in effect during the period of the approved tariff.

Royalties

4. (1) The royalties payable to SODRAC for a month shall be 0.66 per cent of the station’s gross income for the reference month, adjusted in accordance with the use of SODRAC’s repertoire, as a percentage of the music played.

(2) If a program contains at least one musical work and the station provides or has provided SODRAC with documentation establishing that the rights referred to in subsection 3(1) have been cleared with respect to all the musical works embedded into the program, the station is entitled, with respect to that program, to a discount of

A × B
C

where

5. Royalties owed in respect of part of a month shall be prorated according to the number of days the station engaged in broadcasting during that month.

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

Reporting and Payment Requirements

7. No later than the later of 30 days after the coming into force of this tariff and 20 days after the end of the first month during which a station reproduces a program that may require a SODRAC licence, the station shall provide to SODRAC the following information:

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

9. (1) No later than the first day of each month, a station shall provide SODRAC with a cue sheet indicating, in relation to each program broadcast by the station for the first time during the reference month, the following information:

(2) A station shall provide a cue sheet for each program that is otherwise identical to another program if their musical content differs in any way contemplated by paragraph (1)(d) or otherwise.

(3) The cue sheet that a station shall provide is that which is received by the station from the person from whom the station acquires the right to broadcast the program. A station shall cooperate with SODRAC in any attempt by SODRAC to obtain cue sheets from third parties, regardless of whether such parties produced the programs.

10. No later than the first day of each month, a station shall provide SODRAC with a copy of its broadcast schedule for the reference month and a broadcast report indicating, in relation to each program broadcast during the reference month, the following information:

11. At any time during the period set out in subsection 12(1), SODRAC 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 those rights by other parties, and the station shall provide that information within 10 days after receiving a request in writing from SODRAC.

Records and Audits

12. (1) 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 information set out in sections 8, 9, 10 and 11, any other information that must be provided under this tariff, and the amounts owed under this tariff, can be readily ascertained.

(2) SODRAC may audit these records at any time during the period set out in subsection (1), during normal business hours and on notice of 10 business days.

(3) SODRAC shall, upon receipt of the audit report, supply a copy to the station.

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

Breach and Termination

13. (1) A station that fails to provide any information required under this tariff within five business days of the date on which the information is required, or to pay royalties within five business days of the date on which the royalties are due, is not entitled to do any of the acts described in section 3 as of the first day of the month in relation to which the information should have been provided or the royalties should have been paid, as the case may be, and until the information is provided and the royalties and any accrued interest are paid.

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

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

Confidentiality

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

(2) SODRAC may share information referred to in subsection (1)

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

Adjustments

15. Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.

Interest

16. (1) In the event that a station does not pay the amount owed under section 8 or provide the information required by sections 8, 9, and 10 by the due date, the station shall pay to SODRAC interest calculated on the amount owed from the due date until the date both the amount and the information are received by SODRAC. 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 information required by sections 8, 9, and 10 by the due date, the station shall pay to SODRAC a late fee of $50.00 per day from the due date until the date the information is received by SODRAC.

Delivery of Notices and Payments

17. (1) Anything that a service sends to SODRAC pursuant to sections   to 10 shall be sent by email to audiovisual@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the service has been notified in writing.

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

18. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by email, by fax, or by File Transfer Protocol (FTP). A payment must be delivered by hand, by postage-paid mail, or as otherwise agreed upon by SODRAC and the station.

(2) To the extent possible, information that a service provides pursuant to sections 8 to 10 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the service. Each type of information shall be provided in a separate field.

(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 was transmitted.

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

Term

19. This tariff comes into force on January 1, 2017, and ends on December 31, 2017.