Vol. 151, No. 19 — May 13, 2017

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 31, 2017, with respect to royalties it proposes to collect, effective January 1, 2018, 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 July 5, 2017.

Ottawa, May 6, 2017

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

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED FROM COMMERCIAL RADIO STATIONS BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION AND THE PERFORMANCE IN PUBLIC, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEARS 2018-2020

Tariff No. 1

RADIO

A. Commercial Radio

Short Title

1. This tariff may be cited as the Re:Sound Commercial Radio Tariff, 2018-2020.

Definitions

2. In this tariff,

“collective societies,” “collectives” or “societies” means SOCAN, Re:Sound, CSI, Connect/SOPROQ and Artisti; (« sociétiés de gestion »)

“device” means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

“file” means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

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

“low-use station (sound recordings)” means a station that

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

“play” means a single communication of a file or a part thereof, to a single person; (« écoute »)

“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 »)

“service provider” means a professional service provider which may be retained by a collective society to assist in its operations including the conduct of an audit, maintenance or improvements to its database or other information technology systems, licensing, enforcement of tariffs, or the distribution of royalties to rights holders; (« prestataire de services »)

“simulcast” means the simultaneous, unaltered, real-time streaming of an over-the-air broadcast signal to which this tariff applies, via the Internet or other digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

“simulcasting income” includes all direct and indirect revenues of a station’s simulcasts in Canada, including, but not limited to,

For greater certainty, simulcasting income includes all income accruing from any allied or subsidiary business that is a necessary adjunct to the simulcast and which results in the use of the simulcast, including the gross amounts received by the station broadcaster pursuant to a turn-key contract with an advertiser; (« revenu provenant de la diffusion simultanée »)

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

Application

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

(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 Tariff 8. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network, to a device, except by simulcast.

Royalties Payable

4. A low-use station (sound recordings) shall pay to Re:Sound

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

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 pay the royalties for that month and report 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 section (d) 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 published sound recordings embodying musical works or parts thereof, broadcast during each day of the previous month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry shall include the following information:

(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 subsection (1) other than the cue sheets, which are to be used to insert the relevant music use information into each field of the report.

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 information set out in section 7 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 and to the other collective societies.

(5) If an audit discloses that royalties owed to Re:Sound have been understated in any month by more than 10 per cent, the station that was subject to the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid 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 and in advance to each proposed disclosure of its information.

(2) Information received from a station pursuant to this tariff may be shared

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, 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 that 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).

Late Payments and Reporting

13. (1) In the event that a station does not pay the amount owed under this tariff or provide the report required by section 7 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 music use reporting required by section 9 within seven days of the due date, upon written notice by Re:Sound, the station shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

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 made by credit card or delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 7 shall be provided concurrently to Re:Sound by email.

(2) The information set out in sections 7 and 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 EBT shall be presumed to have been received the day it was transmitted.

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEAR 2018

Tariff No. 3.A

BACKGROUND MUSIC SUPPLIERS

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 Background Music Suppliers Tariff, 2018.

Definitions

2. (1) In this tariff,

Act” means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« 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 is a separate establishment; (« établissement »)

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

“recorded music” means published sound recordings of musical works; (« musique enregistrée »)

“revenues” means the total gross revenues of the background music supplier including, but not limited to, all subscription fees and advertising revenues; (« recettes »)

“small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 (Canada Gazette, Part II, Vol. 128, page 4096), amended by SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« petit système de transmission par fil »)

“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, unless the related person who provides a service of supplying recorded music for the performance in public by an establishment (the “Related Music Supplier”)

Application

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

Royalties Payable

4. (1) Subject to subsection (4), a background music supplier shall pay to Re:Sound 2.25 per cent of revenues received during the quarter, subject to a minimum fee of $1.50 per subscriber per establishment per quarter, for the communication to the public by telecommunication of recorded music.

(2) Subject to subsections (3) and (4), a background music supplier shall pay to Re:Sound 7.5 per cent of revenues received during the quarter, subject to a minimum fee of $5.00 per subscriber per establishment per quarter, for the performance in public by an establishment of recorded music supplied by the background music supplier.

(3) A background music supplier is not required to pay the royalties set out in subsection (2) to the extent that royalties have been paid under Tariff 3.B (Use of Background Music) or Tariff 6.B (Use of Recorded Music to Accompany Fitness Activities) for that performance in public of recorded music supplied by that background music supplier.

(4) Royalties payable by a small cable transmission system are reduced by half.

Reporting Requirements

5. (1) No later than 60 days after the end of the quarter, a background music supplier shall pay the royalty for that quarter and shall report the information used to calculate the royalty.

(2) A background music supplier subject to subsection 4(2) shall provide with its payment the name of each subscriber and the address of each establishment for which the background music supplier is making a payment.

(3) Information provided pursuant to subsections 5(1) and 5(2) shall be delivered electronically, in plain text format or in any other format agreed upon by Re:Sound and the background music supplier.

Records and Audits

6. (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 revenues and number of subscribers can be readily ascertained, including the subscription rates payable to subscribe to the background music supplier, a list of the subscribers for which payments are made and copies of background music subscriber invoices.

(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 background music supplier that was subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

(4) If an audit discloses that royalties owed to Re:Sound during any period have been understated by more than 10 per cent, the background music supplier that was the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

7. (1) Subject to subsections (2) and (3), information received pursuant to this tariff shall be treated in confidence, unless the background music supplier that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from a background music supplier pursuant to this tariff may be shared

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

Adjustments

8. (1) A background music supplier 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 background music supplier that 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 background music supplier 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 6(2).

Late Payments and Reporting

9. (1) In the event that a background music supplier does not pay the amount owed under section 4 by the due date, the background music supplier 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.

(2) In the event that a background music supplier does not provide the reporting information required by section 5 by the due date, Re:Sound may provide notice of that default (“Default Notice”). If the background music supplier does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the background music supplier shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

(3) 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.

10. (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 background music supplier 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

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

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

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

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEAR 2018

Tariff No. 3.B

BACKGROUND MUSIC

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 2018.

Definitions

2. In this tariff,

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

“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 is a separate establishment; (« établissement »)

“recorded music” means published sound recordings of musical 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 »)

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the communication to the public by telecommunication or the performance in public of recorded music in an establishment, including any use of such 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 for which royalties are paid by a background music supplier under Re:Sound Tariff 3.A.

(3) 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.

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

Royalties Payable

4. (1) For the performance in public or communication to the public by telecommunication of recorded music by telephone on hold, the annual royalty payable shall be $120.41 for the first trunk line and $2.67 for each additional trunk line.

(2) In addition to any royalty payable under subsection (1), the annual royalty payable for the performance in public or communication to the public by telecommunication of recorded music in an establishment shall be calculated, subject to section 5, as follows:

(3) In all cases a minimum annual fee of $120.41 shall apply per establishment to all recorded music uses under subsection (2).

Rate Adjustment to Account for Inflation

5. (1) Subject to subsections (2) to (4), the amounts payable in 2019 and thereafter 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 that is subject to this tariff, before the end of January, a notice stating the following:

“Re:Sound Tariff 3.B (Background Music), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates 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 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:

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. (1) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 4 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows. If that 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 that 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 4. 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.

(2) No later than January 31 of the following year (in which an establishment was required to make a payment to Re:Sound pursuant to subsection 6(1)), 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 4 (from the amount paid under subsection 6(1)). If the amount owing exceeds the amount previously paid by the establishment to Re:Sound pursuant to subsection 6(1), 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.

Records and Audits

7. (1) An establishment 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 calculation of its payment can be readily ascertained, including information used to determine the choice of calculation, and information required to ascertain days on which recorded music 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 establishment that was subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

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

Confidentiality

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

(2) Information received from an establishment pursuant to this tariff may be shared

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

Adjustments

9. (1) An establishment 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 establishment that 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 establishment 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 7(2).

Late Payments and Reporting

10. (1) In the event that an establishment subject to this tariff does not pay the amount owed under section 4 by the due date, the establishment 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.

(2) In the event that an establishment subject to this tariff does not provide the reporting information required by section 6 by the due date, Re:Sound may provide notice of that default (“Default Notice”). If the establishment does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the establishment shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

(3) 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 an establishment subject to the tariff 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 email, by fax or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail, or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 6 shall be provided concurrently to Re:Sound by email.

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

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

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEARS 2018 TO 2022

Tariff No. 6.B

USE OF RECORDED MUSIC TO ACCOMPANY FITNESS ACTIVITIES
Short Title

1. This tariff may be cited as the Re:Sound Fitness Tariff, 2018-2022.

Definitions

2. In this tariff,

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

“class” means a single instance within a session, programme or course, with a start and end time, on a single day. For example, a fitness or dance course that is held for one hour, once a week, for eight weeks constitutes eight classes; (« cours »)

“dance class” means a lesson in dance instruction including without limitation, ballet, jazz, tap and ballroom dance; (« cours de danse »)

“fitness activity” means any form of physical exercise, sport or dance, including but not limited to, fitness classes, dance classes, gymnasium workouts, weight training, circuit training, cardio training, running, swimming, martial arts, gymnastics and rock climbing; (« activité de conditionnement physique »)

“fitness class” means a structured form of exercise or sport instruction, conducted in a class environment whether in a group or individual instruction, whether or not such class is presented live by a fitness instructor or by video instruction or otherwise, including, but not limited to, aerobics, gymnastics, circuit training, boot camp, aqua fitness, cardio, flexibility, stretching and abdominal exercises (including yoga, Pilates and Tai Chi), step, dance-exercise (including hip-hop and Zumba), cycling and spinning, strength, toning and resistance exercise, boxing, combat and martial arts activities, age, lifestyle and specialty exercise classes, and swimming and skating lessons; (« cours de conditionnement physique »)

“fitness venue” means an indoor or outdoor venue where a fitness activity is undertaken including, without limitation, fitness centres, gymnasiums, health clubs, leisure and recreation centres, community centres, and aquatic centres; (« lieu de conditionnement physique »)

“member” means a person who is entitled to participate in fitness activity at the fitness venue, whether or not for a fee and includes daily, weekly, bi-weekly, monthly and annual memberships as well as persons who attend on a per visit or class basis or per package of visits or classes; (« membre »)

“skating venue” means an indoor or outdoor venue that provides roller or ice skating, excluding skating lessons, which fall under the definition of fitness class, and excluding sporting events and ice shows, which are subject to Re:Sound Tariff 5 (Use of Music to Accompany Live Events); (« lieu de patinage »)

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

“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, in Canada, for the years 2018 to 2022, of published sound recordings embodying musical works (“recorded music”), in all areas within a fitness venue and skating venue and to accompany a fitness activity including fitness classes and dance classes.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication of recorded music for which royalties are paid by or on behalf of a background music supplier under Re:Sound Tariff 3.A (Background Music Suppliers).

(3) This tariff does not apply to a performance in public or a communication to the public by telecommunication of recorded music that is subject to another Re:Sound tariff, including Tariff 3.B (Background Music), Tariff 5 (Use of Music to Accompany Live Events) and Tariff 6.A (Use of Recorded Music to Accompany Dance).

(4) This tariff is subject to the exception set out in subsection 69(2) of the Copyright Act, R.S.C., 1985, c. C-42, as modified.

Fitness Venues

4. The royalties payable to Re:Sound for the use of recorded music in all areas within a fitness venue other than during a fitness class or dance class, including in connection with weight training, cardiovascular training, circuit training and other fitness activities, as well as in change rooms, hallways, offices and lobby areas, are determined as follows:

(1) If recorded music is provided by a background music supplier, notwithstanding subsection 3(2) of the NRCC Background Music Tariff, 2003-2009, the royalties payable and the supplier’s reporting requirements and payment deadlines are determined pursuant to Re:Sound Tariff 3.A (Background Music Suppliers). Notwithstanding subsection 4(3) of Re:Sound Tariff 3.A (Background Music Suppliers), a background music supplier who authorizes a subscriber to perform in public recorded music in a fitness venue, skating venue, or to accompany a fitness activity, is not required to pay the royalties set out in subsection 4(2) of Tariff 3.A to the extent that the subscriber complies with the Re:Sound Fitness Tariff, 2018-2022.

(2) If recorded music is not provided by a background music supplier, the royalty payable is an amount based on the number of members of the fitness venue during the relevant calendar year as set forth below:

Number of members

Royalty

<1 000

$150.00

>1 000 and <5 000

$750.00

>5 000

$1,500.00

(3) For the purpose of calculating the royalties payable pursuant to subsection (2), the number of members of a fitness venue shall be calculated by adding the number of members on the last day of each month during the calendar year and dividing by 12. A fitness venue that does not track the number of members shall pay $750.00.

(4) The royalties payable pursuant to subsection (2) for any given year are due no later than by January 31 of the following year and shall be accompanied with a report indicating

Fitness Classes and Dance Classes

5. (1) The royalty payable to Re:Sound for the use of recorded music during fitness classes and dance classes is determined as follows: for each fitness class and dance class in which recorded music is performed, provided at any time during the particular calendar year, an amount per class multiplied by the number of classes held during the year as follows:

Year

Amount per class

2018

$1.13

2019

$1.16

2020

$1.19

2021

$1.23

2022

$1.27

Subject to a minimum annual fee of $250.00 per fitness venue.

(2) Royalties payable in respect of fitness classes and dance classes held within or under the administration of a fitness venue or skating venue are payable by the venue. All other fitness classes and dance classes are payable by the instructor or organization holding or organizing the class.

(3) Royalties payable pursuant to subsection (1) for any given year are due no later than by January 31 of the following year and shall be accompanied with a report indicating

Skating Venues

6. (1) The royalty payable to Re:Sound for the use of recorded music in a skating venue, excluding skating lessons, which are subject to royalties under subsection 5(1), and excluding ice shows and sporting events, which are subject to Re:Sound Tariff 5 (Use of Recorded Music to Accompany Live Events), is as follows: (a) where an admission fee is charged: 1.2 per cent of the gross receipts from admissions, exclusive of sales and amusement taxes, subject to a minimum annual fee of $139.55; and (b) where no admission fee is charged: an annual fee of $139.55.

(2) Royalties payable pursuant to subsection (1) for any given year are due no later than by January 31 of the following year. The payment shall be accompanied with a report indicating

Taxes

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

Records and Audits

8. (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 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 and to any other Canadian collective society with a tariff applicable to fitness venues, skating venues or fitness activities.

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

Confidentiality

9. (1) Subject to subsections (2) and (3), information received 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 received pursuant to this tariff may be shared

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

Interest on Late Payments

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

Adjustments

11. (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 that 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).

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 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 email, by fax or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail, or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting shall be provided concurrently to Re:Sound by email.

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

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

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEAR 2018

Tariff No. 8

NON-INTERACTIVE AND SEMI-INTERACTIVE WEBCASTS
Short Title

1. This tariff may be cited as the Re:Sound Non-Interactive and Semi-Interactive Webcasts Tariff, 2018.

Definitions

2. In this tariff,

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

“channel” means an individual programme or playlist which a user selects to initiate a communication of a file. For example, if a webcaster offers 10 different musical genres and within each genre, there are a further 10 sub-genres, the selection of each of which initiates the streaming of a different playlist, the webcaster has 100 channels. For semi-interactive webcasts that permit a user to customize a programme or playlist, each such individually customized programme or playlist constitutes one channel; (« chaîne »)

“device” means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

“file” means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

“gross revenues” includes all direct and indirect revenues of a webcaster with respect to its communications in Canada by non-interactive webcast, semi-interactive webcast and simulcast (except a simulcast excluded under paragraph 3(1)(a)), including, but not limited to,

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

“interactive webcast” refers to any webcast through which a specific file can be communicated to a member of the public at a place and at a time individually chosen by that member of the public such as on-demand streaming; (« webdiffusion interactive »)

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

“non-commercial webcaster” means any webcaster other than the Canadian Broadcasting Corporation, that is owned and operated by a not-for-profit organization including any campus webcaster and community webcaster, whether or not any part of the webcaster’s operating costs are funded by advertising revenues; (« webdiffuseur non commercial »)

“non-interactive webcast” refers to a webcast over which the recipient exercises no control over the content or the timing of the webcast. For example, the recipient cannot skip or pause the communication of a file or influence the content by indicating a preference for a musical genre, artist or sound recording other than by selecting the channel; (« webdiffusion non interactive »)

“play” means the single communication of a file or a part thereof, to a single person; (« écoute »)

“semi-interactive webcast” refers to a webcast over which the recipient exercises some level of control over the content or the timing of the webcast, such as by skipping, pausing, rewinding or fast-forwarding the communication of a file or by indicating a preference for a musical genre, artist or sound recording; (« webdiffusion semi-interactive »)

“simulcast” means the simultaneous communication of an over-the-air radio, pay audio or satellite radio broadcast via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

“webcast” means the communication in Canada, via the Internet or another digital network, to a device, of one or more files; (« webdiffusion »)

“webcaster” means a person or organization, including an aggregator, who carries out a webcast; (« webdiffuseur »)

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

Application

3. (1) This tariff sets the royalties to be paid by a webcaster, for the year 2018, for the communication to the public by telecommunication of published sound recordings embodying musical works, other than

(2) If a webcaster offers an interactive webcast, download or simulcast service as well as a non-interactive or semi-interactive webcast service, the non-interactive webcast and semi-interactive webcast shall not be treated as part of the interactive webcast, download or simulcast service.

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

ROYALTIES
Non-Commercial Webcasters

4. (1) The royalties payable for all webcasts (other than simulcasts) carried out by a non-commercial webcaster shall be $500 per year.

(2) The royalties payable for all simulcasts carried out by a non-commercial webcaster shall be $500 per year.

(3) The payment made pursuant to subsection (1) and/or (2) shall be accompanied by a description of the webcast and/or simulcast services the webcaster offers or intends to offer as well as documentation to substantiate that the webcaster is a non-commercial webcaster.

(4) Except to the extent required by subsection (3), a non-commercial webcaster is not subject to section 8.

Non-Interactive and Semi-Interactive Webcasts other than by Non-commercial Webcasters

5. The royalties payable for any given month by a webcaster including the CBC, other than a non-commercial webcaster, shall be the greater of

subject to a minimum annual fee of $500 per channel up to a maximum of $50,000.

Date Payable

6. (1) Royalties payable under section 5 are due 15 days after the end of the month for which they are being paid.

(2) Royalties payable under section 4 are due by January 15 of the year for which they are being paid.

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

(4) Minimum fees payable under section 5 are due on the 15th day of January of each year for which they apply, to be credited against the monthly amounts payable under section 5.

REPORTING REQUIREMENTS
Webcaster Identification

7. No later than 15 days after the end of the first month during which a webcaster carries out a webcast pursuant to section 3, the webcaster shall provide to Re:Sound the following information:

Music Use Information

8. (1) No later than 15 days after the end of each month, a webcaster that is required to pay royalties pursuant to section 5 shall provide to Re:Sound, in relation to each file or part thereof included in a non-interactive and semi-interactive webcast and in a simulcast (except a simulcast excluded under paragraph 3(1)(a)) in that month:

(2) A webcaster shall provide, as part of the information set out in subsection (1), a report setting out, for that month

(3) The information set out in subsections (1) and (2) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the webcaster, with a separate field for each piece of information required in subsection (1) other than the cue sheets, which are to be used to insert the relevant music use information into each field of the report.

Adjustments

9. Adjustments to any information provided pursuant to section 7 or 8 shall be provided with the next monthly report provided pursuant to section 8.

10. (1) A webcaster 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 webcaster 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 webcaster to whom 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 11(2).

Records and Audits

11. (1) A webcaster to which section 5 applies shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the calculation of that webcaster’s payment under this tariff can be readily ascertained, including the information required under subsections 8(1) and (2).

(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 webcaster that was the subject of the audit and to any other Canadian collective society with a tariff applicable to non-interactive webcasts, semi-interactive webcasts or simulcasts.

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

Confidentiality

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

(2) Information received from a webcaster pursuant to this tariff may be shared

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

Late Payments and Reporting

13. (1) If either the amount owed under section 4 or 5 or the report required under subsection 8(2) are not provided by the due date, the webcaster shall pay to Re:Sound interest calculated on the amount payable for the relevant period 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 webcaster does not provide the reporting required by subsection 8(1) within seven days of the due date, upon written notice by Re:Sound, the webcaster shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

until the reporting is received.

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: internet@resound.ca, fax number: 416-962-7797, or to any other address, email address, or fax number of which the webcaster has been notified in writing.

(2) Anything addressed to a webcaster 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 made by credit card or delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 8 shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 8 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 EBT shall be presumed to have been received the day it was transmitted.