Vol. 145, No. 23 — June 4, 2011

ARCHIVED — Supplement

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, 2011, with respect to royalties it proposes to collect, effective January 1, 2012, for the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers’ performances of such works.

In accordance with the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than August 3, 2011.

Ottawa, June 4, 2011

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

STATEMENT OF ROYALTIES TO BE COLLECTED FROM COMMERCIAL RADIO STATIONS BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION AND THE PERFORMANCE IN PUBLIC, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEAR 2012

Tariff No. 1

RADIO

A. Commercial Radio

Short Title

1. This tariff may be cited as the Re:SoundCommercial Radio Tariff, 2012.

Definitions

2. In this tariff,

“Act” means the Copyright Act; (« Loi »)

“gross income” means the gross amounts paid by any person for the use of one or more broadcasting services or facilities provided by a station’s operator, excluding the following:

(a) income accruing from investments, rents or any other business unrelated to the station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station’s broadcasting services and facilities or which results in their being used, including the gross amounts received by a station pursuant to turn-key contracts with advertisers, shall be included in the “gross income”;
(b) income from simulcasting, non-interactive webcasting or semi-interactive communications subject to Re:Sound Tariffs 8 or 8B;
(c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the station can establish that the station was also paid normal fees for station time and facilities; and
(d) amounts received by an originating station acting on behalf of a group of stations, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station subsequently pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station’s “gross income”; (« revenus bruts »)

“low-use station” means a station that:

(a) broadcasts published sound recordings of musical works for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and
(b) keeps and makes available to Re:Sound complete recordings of its last 90 broadcast days; (« station utilisant peu d’enregistrements sonores »)

“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)

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

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

Application

3. (1) This tariff sets the royalties to be paid each month by commercial radio stations in connection with the over-the-air broadcasting operations of a station

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

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

4. This tariff is subject to the special royalty rates set out in subparagraph 68.1(1)(a)(i) of the Act.

Royalties

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

(a) 2.6 per cent of its gross income for the reference month in respect of the communication to the public by telecommunication referred to in paragraph 3(1)(a); and
(b) 0.26 per cent of its gross income for the reference month in respect of the performance in public referred to in paragraph 3(1)(b).

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

(a) 4.46 per cent on its first $1.25 million gross income in a year and 6.5 per cent on the rest in respect of the communication to the public by telecommunication referred to in paragraph 3(1)(a); and
(b) 0.446 per cent of its first $1.25 million gross income in a year and 0.65 per cent on the rest in respect of the performance in public referred to in paragraph 3(1)(b).

7. All royalties are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

Reporting Requirements

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

(a) pay the royalties for that month; and
(b) report the station’s gross income for the reference month.

9. At any time during the period set out in subsection 11(2), Re:Sound may require the production of any contract granting rights referred to in paragraph (c) of the definition of “gross income”, together with the billing or correspondence relating to the use of these rights by other parties.

Information on Repertoire Use

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

(a) the date of the broadcast;
(b) the time of the broadcast;
(c) the title of the sound recording;
(d) the title of the album;
(e) the catalogue number of the album;
(f) the track number on the album;
(g) the record label;
(h) the name of the author and composer;
(i) the name of all performers or the performing group;
(j) the duration of the sound recording broadcast, in minutes and seconds;
(k) the duration of the sound recording as listed on the album, in minutes and seconds;
(l) the Universal Product Code (UPC) of the album;
(m) the International Standard Recording Code (ISRC) of the sound recording;
(n) the type of usage (feature, theme, background, etc.);
(o) whether the track is a published sound recording; and
(p) the cue sheets for all syndicated programming, inserted into the Excel report.

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

Records and Audits

11. (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 10 can be readily ascertained.

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

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

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

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

Confidentiality

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

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

(a) with any other collective society in Canada that has secured a certified tariff applicable to commercial radio stations;
(b) with the Copyright Board;
(c) in connection with proceedings before the Board, if the station had the opportunity to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with royalty claimants; or
(e) if ordered by law.

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

Adjustments

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

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

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Re:Sound, including without limitation, an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 11(3).

Interest and Penalties on Late Payments and Reporting

14. (1) In the event that a station does not pay the amount owed under paragraph 8(a) or provide the report required by paragraph 8(b) by the due date, the station shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a station does not provide the sequential lists required by section 10 by the due date, the station shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

15. (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

16. (1) A notice may be delivered by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand, by postage-paid mail or by electronic bank transfer. Where payment is made by electronic bank transfer, the reporting required under paragraph 8(b) shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 10 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 or by email shall be presumed to have been received the day it was transmitted.

STATEMENT OF ROYALTIES TO BE COLLECTED FROM NON-COMMERCIAL RADIO STATIONS BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2012 TO 2016

Tariff No. 1

RADIO

B. Non-Commercial Radio Other than the Canadian Broadcasting Corporation

Note (This note is not part of the proposed tariff.)

Paragraph 68.1(1)(b) of the Copyright Act provides that, notwithstanding the tariffs approved by the Board, community systems shall pay royalties of $100 in respect of each year for the communication to the public by telecommunication of performers’ performances of musical works, or of sound recordings embodying such performers’ performances. Pursuant to this provision, Re:Sound recognizes that, notwithstanding this tariff filed with respect to non-commercial radio stations, community systems are required to pay only $100 in respect of each year.

Short Title

1. This tariff may be cited as the Re:Sound Non-Commercial Radio Tariff, 2012-2016.

Definitions

2. (1) In this tariff,

“gross operating costs” means all direct expenditures of any kind and nature (whether in money or other form) incurred by the non-commercial radio station or on its behalf in connection with the products and services that are subject to the licence covered by this tariff; (« coûts bruts d’opération »)

“non-commercial radio station” means any radio station that transmits in analog or digital mode, whether in the A.M. or F.M. frequency band or in any other range assigned by the Minister under section 5 of the Radiocommunication Act other than a Canadian Broadcasting Corporation radio station, that is owned and operated by a not-for-profit organization including any campus station, community station, native station, or ethnic station owned and operated by a not-for-profit organization, whether or not any part of the station’s gross operating costs is funded by advertising revenues, and whether or not the station is licensed by the Canadian Radio-television and Telecommunications Commission; (« station de radio non commerciale »)

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

Application

3.1 This tariff sets the royalties to be paid to Re:Sound annually by non-commercial radio stations in connection with the over-the-air broadcasting operations of a station, to communicate to the public by telecommunication in Canada, for private or domestic use, published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound for the years 2012 to 2016.

3.2 This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including Re:Sound Tariffs 1.A, 1.C, 8 and 8.B.

3.3 This tariff is subject to the special royalty rates set out in subsection 68.1(1) of the Copyright Act.

Royalties

4.1 The royalties payable to Re:Sound by a non-commercial radio station in respect of each year shall be 2 per cent of the non-commercial radio station’s annual gross operating costs for that year.

4.2 All royalties are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

Payments, Records and Audits

5.1 No later than January 1 of each year, a non-commercial radio station shall pay the estimated fee owing for that year. The fee is subject to adjustment when the actual gross operating costs for the year have been determined and reported to Re:Sound.

5.2 With each payment, a non-commercial radio station shall forward to Re:Sound a written certified declaration of the actual gross operating costs of the non-commercial radio station for the previous year.

5.3 (1) No later than the 14th day of each month, a non-commercial radio station shall provide to Re:Sound the sequential lists of all musical works and published sound recordings broadcast during the previous month. Each entry shall include the following information:

(a) the date of the broadcast;
(b) the time of the broadcast;
(c) the title of the sound recording;
(d) the title of the album;
(e) the catalogue number of the album;
(f) the track number on the album;
(g) the record label;
(h) the name of the author and composer;
(i) the name of all performers or the performing group;
(j) the duration of the sound recording broadcast, in minutes and seconds;
(k) the duration of the sound recording as listed on the album, in minutes and seconds;
(l) the Universal Product Code (UPC) of the album;
(m) the International Standard Recording Code (ISRC) of the sound recording;
(n) the type of usage (feature, theme, background, etc.); and
(o) whether the track is a published sound recording.

5.4 A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records and logs from which the information set out in section 5.3 can be readily ascertained.

5.5 A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, accounts and records from which the station’s annual gross operating costs can be readily ascertained.

5.6 Re:Sound may audit these accounts, records and logs at any time during the period set out in sections 5.4 and 5.5, on reasonable notice and during normal business hours.

5.7 Re:Sound shall, upon receipt, supply a copy of the report of the audit to the non-commercial radio station which was the object of the audit.

5.8 If an audit discloses that royalties due to Re:Sound have been understated in any year by more than 10 per cent, the non-commercial radio station which was the object of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment.

Interest and Penalties on Late Payments and Reporting

5.9 (1) In the event that a non-commercial radio station does not pay the amount owed under section 5.1 or provide the report required by section 5.2 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 non-commercial radio station does not provide the sequential lists required by section 5.3 by the due date, the station shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Adjustments

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

Confidentiality

6.1 Subject to sections 6.2 and 6.3, Re:Sound shall treat in confidence information received from a non-commercial radio station pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

6.2 Re:Sound may share information referred to in section 6.1

(a) with any other collective society in Canada that has secured a certified tariff applicable to non-commercial radio stations;
(b) with the Copyright Board;
(c) in connection with proceedings before the Copyright Board, if the station had the opportunity to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with royalty claimants; or
(e) if ordered by law.

6.3 Section 6.1 does not apply to information that is publicly available, or to information obtained from someone other than the non-commercial radio station and who is not under an apparent duty of confidentiality to that station.

Delivery of Notices and Payments

7.1 Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, fax number: 416-962-7797, email: radio@resound.ca, or to any other address, email address or fax number of which the non-commercial radio station has been notified in writing.

7.2 Anything addressed to a non-commercial radio station shall be sent to the last address, email address or fax number provided by that non-commercial radio station to Re:Sound in writing.

7.3 A notice may be delivered by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand or by postage-paid mail.

7.4 Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed. Anything sent by fax or by email shall be presumed to have been received the day it was transmitted.

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEAR 2012

GENERAL PROVISIONS

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

Tariff No. 1

RADIO

C. Canadian Broadcasting Corporation (CBC)

Short title

1. This tariff may be cited as the Re:Sound CBC Radio Tariff, 2012.

Definitions

2. In this tariff,

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

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

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

Application

3.1 This tariff sets the royalties to be paid to Re:Sound each month by the CBC, pursuant to section 19 of the Act, as equitable remuneration, for the communication to the public by telecommunication of published sound recordings embodying musical works and performers’ performances of such works by over-the-air radio broadcasting by the radio networks and stations owned and operated by the CBC.

3.2 This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including Re:Sound Tariffs 3, 8, 8.B, the Satellite Radio Services Tariff or the SOCAN-Re:Sound Pay Audio Services Tariff.

Royalties

4. CBC shall pay Re:Sound $375,000 per month, on the first day of each month.

Music UseInformation

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

(a) the date of the broadcast;
(b) the time of the broadcast;
(c) the title of the sound recording;
(d) the title of the album;
(e) the catalogue number of the album;
(f) the track number on the album;
(g) the record label;
(h) the name of the author and composer;
(i) the name of all performers or the performing group;
(j) the duration of the sound recording broadcast, in minutes and seconds;
(k) the duration of the sound recording as listed on the album, in minutes and seconds;
(l) the Universal Product Code (UPC) of the album;
(m) the International Standard Recording Code (ISRC) of the sound recording;
(n) the type of usage (feature, theme, background, etc.); and
(o) whether the track is a published sound recording.

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

5.3 CBC shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in section 5.1 can be readily ascertained.

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

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

Interest and Penalties on LatePayments and Reporting

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

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

Confidentiality

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

7.2 Re:Sound may share information referred to in section 7.1

(a) with any other collective society in Canada that has secured a certified tariff applicable to the CBC;
(b) with the Copyright Board;
(c) in connection with proceedings before the Copyright Board, if the CBC had the opportunity to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with royalty claimants; or
(e) if ordered by law.

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

Delivery of Notices and Payments

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

8.2 All communications from Re:Sound to the CBC shall be sent to the last address, email address or fax number provided by the CBC to Re:Sound in writing.

8.3 A communication or a notice may be delivered by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand or by postage-paid mail.

8.4 Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed. Anything sent by fax or email shall be presumed to have been received the day it is transmitted.

GENERAL PROVISIONS

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

Tariff No. 2

PAY AUDIO SERVICES

Short Title

1. This tariff may be cited as the Re:Sound Pay Audio Services Tariff, 2012-2013.

Definitions

2. In this tariff,

“distribution undertaking” means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11; (« entreprise de distribution »)

“premises” has the meaning attributed to it in section 2 of the Regulations, which reads:

“‘premises’ means

(a) a dwelling, including a single-unit residence or a single unit within a multiple-unit residence, or
(b) a room in a commercial or institutional building.”; (« local »)

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

“Regulations” means the Definition of “Small Cable Transmission System” Regulations, SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« Règlement »)

“service area” has the meaning attributed to it in section 2 of the Regulations, which reads:

“‘service area’ means an area in which premises served in accordance with the laws and regulations of Canada by a cable transmission system are located.”; (« zone de service »)

“signal” means a television or audio signal, other than a signal within the meaning of subsection 31(1) of the Act, retransmitted in accordance with subsection 31(2) of the Act; (« signal »)

“small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Regulations, which read:

“3. (1) Subject to subsections (2) to (4) and section 4, ‘small cable transmission system’ means a cable transmission system that transmits a signal, with or without a fee, to not more than 2,000 premises in the same service area.

(2) For the purpose of subsection (1), where a cable transmission system is included in the same unit as one or more other cable transmission systems, the number of premises to which the cable transmission system transmits a signal is deemed to be equal to the total number of premises to which all cable transmission systems included in that unit transmit a signal.

(3) For the purpose of subsection (2), a cable transmission system is included in the same unit as one or more other cable transmission systems where

(a) they are owned or directly or indirectly controlled by the same person or group of persons; and
(b) their service areas are each less than 5 km distant, at some point, from at least one other among them, and those service areas would constitute a series of contiguous service areas, in a linear or non-linear configuration, were it not for that distance.

(4) Subsection (2) does not apply to a cable transmission system that was included in a unit on December 31, 1993.

4. The definition set out in subsection 3(1) does not include a cable transmission system that is a master antenna system located within the service area of another cable transmission system that transmits a signal, with or without a fee, to more than 2,000 premises in that service area.”; (« petit système de transmission par fil » )

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

Application

3. (1) This tariff sets the royalties to be paid for the communication to the public by telecommunication of published sound recordings embodying musical works and performers’ performances of such works in Re:Sound’s repertoire, in connection with the transmission by a distribution undertaking of a pay audio signal for private or domestic use.

(2) This tariff does not apply to uses covered by other applicable tariffs, including Re:Sound Tariff 3.

Royalties

4. (1) Subject to subsection (2), the royalties payable to Re:Sound are 15 per cent of the affiliation payments payable during a month by a distribution undertaking for the transmission for private or domestic use of a pay audio signal.

(2) The royalties payable to Re:Sound are 7.5 per cent of the affiliation payments payable during a year by a distribution undertaking for the transmission for private or domestic use of a pay audio signal, where the distribution undertaking is

(i) a small cable transmission system,
(ii) an unscrambled Low Power Television Station or Very Low Power Television Station (as defined in Sections E and G of Part IV of the Broadcast Procedures and Rules of Industry Canada effective April 1997), or
(iii) a system which performs a function comparable to that of a cable transmission system, which uses Hertzian waves to transmit the signals and which otherwise meets the definition of “small transmission system.”

Dates of Payments

5. (1) Royalties payable pursuant to subsection 4(1) shall be due on the last day of the month following the month for which the royalties are being paid.

(2) Royalties payable pursuant to subsection 4(2) shall be due on January 31 of the year following the year for which the royalties are being paid.

Reporting Requirements

6. (1) A programming undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each distribution undertaking to which it supplied a pay audio signal,

(a) the name of the distribution undertaking;
(b) the list of pay audio signals the programming undertaking supplied to the distribution undertaking for transmission for private or domestic use; and
(c) the amount of the affiliation payments payable for the transmission for private or domestic use of these signals.

(2) A distribution undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each programming undertaking from which it purchased a signal,

(a) the name of the programming undertaking;
(b) the list of pay audio signals supplied to the distribution undertaking by the programming undertaking for transmission for private or domestic use; and
(c) the amount of the affiliation payments payable for the transmission for private or domestic use of these signals.

(3) The following information shall also be provided with respect to any system for which royalties are being paid pursuant to subsection 4(2):

(a) the number of premises served in the system on the last day of each month for which payment is being made;
(b) if the system is a master antenna system and is located within the service area of another cable transmission system, the name of that other system and a statement to the effect that the other system transmits a signal, with or without a fee, to not more than 2,000 premises in its service area;
(c) if the system is included in a unit within the meaning of the Definition of “Small Cable Transmission System” Regulations,
- (i) the date the system was included in the unit,
- (ii) the names of all the systems included in the unit,
- (iii) the names of the person or group of persons who own or who directly or indirectly control the systems included in the unit, and
- (iv) the nature of the control exercised by these persons.

(4) Notwithstanding subsections (1), (2) and (3) above, no later than March 31 of each year, a programming undertaking shall provide Re:Sound with the name of each distribution undertaking to which it has supplied with a pay audio signal for private or domestic use in the previous year. A programming undertaking shall be relieved of this obligation if it has already provided the name of each such distribution undertaking pursuant to its obligations under subsection (1).

Sound Recording Use Information

7. (1) No later than the 14th day of each month, a programming undertaking shall provide to Re:Sound, the sequential lists of all musical works and published sound recordings played on each pay audio signal during the previous month. Each entry shall include the following information:

(a) the date of the broadcast;
(b) the time of the broadcast;
(c) the title of the sound recording;
(d) the title of the album;
(e) the catalogue number of the album;
(f) the track number on the album;
(g) the record label;
(h) the name of the author and composer;
(i) the name of all performers or the performing group;
(j) the duration of the sound recording broadcast, in minutes and seconds;
(k) the duration of the sound recording as listed on the album, in minutes and seconds;
(l) the Universal Product Code (UPC) of the album;
(m) the International Standard Recording Code (ISRC) of the sound recording;
(n) the type of usage (feature, theme, background, etc.); and
(o) whether the track is a published sound recording.

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

Records and Audits

8. (1) A programming undertaking 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 7 can be readily ascertained.

(2) Both the distribution undertaking and the programming undertaking shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which a distribution undertaking’s affiliation payments to the programming undertaking 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 undertaking which was the object of the audit.

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month by more than 10 per cent, the undertaking which was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

9. (1) Subject to subsections (2) and (3), Re:Sound shall treat in confidence information received pursuant to this tariff, unless the undertaking that supplied the information consents in writing to the information being treated otherwise.

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

(i) with any other collective society in Canada that has secured a certified tariff applicable to pay audio services;
(ii) with the Copyright Board;
(iii) in connection with proceedings before the Copyright Board if the collective society has first provided a reasonable opportunity for the undertaking providing the information to request a confidentiality order;
(iv) to the extent required to effect the distribution of royalties, with any other collecting body or with its royalty claimants; or
(v) if required by law.

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

Adjustments

10. (1) A programming undertaking or distribution undertaking making 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 programming undertaking or distribution undertaking 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 programming undertaking or distribution undertaking 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 8(3).

Interest and Penalties on Late Payments and Reporting

11. (1) In the event that a programming undertaking or distribution undertaking does not pay the amount owed under subsection 4(1) or 4(2) or provide the reporting information required by section 6 by the due date, the programming undertaking or distribution undertaking 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 programming undertaking does not provide the sequential lists required by section 7 by the due date, the programming undertaking shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the sequential lists are received by Re:Sound.

Addresses for Notices, etc.

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

(2) Anything that Re:Sound sends to an undertaking shall be sent to the last address, email or fax number of which Re:Sound has been notified.

Delivery of Notices and Payments

13. (1) A notice may be delivered by hand, by postage paid mail, by email or by fax.

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

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

STATEMENT OF 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 OF MUSICAL WORKS FOR THE YEAR 2012

GENERAL PROVISIONS

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

Tariff No. 3

USE AND SUPPLY OF BACKGROUND MUSIC

Short Title

1. This tariff may be cited as the Re:Sound Background Music Tariff 2012.

Definitions

2. (1) In this tariff,

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

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

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

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

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

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

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

Application

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

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

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

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

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

Royalties Payable in Other Cases

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

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

(a) if the number of admissions, attendees, or tickets sold for days or events during which recorded music was played can be established with certainty, that number multiplied by 0.294¢;
(b) if paragraph (a) does not apply, the number of square metres (square feet) of the area of the establishment to which the public has access, multiplied by the number of days of operation on which recorded music was played, multiplied by 0.92¢ (0.084¢); and
(c) if paragraphs (a) and (b) do not apply, the royalty payable for the relevant year shall be $98.84.

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

Rate Adjustment to Account for Inflation

6. (1) Subject to subsections (2) and (4), the amounts payable in 2012 and thereafter pursuant to section 5 may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied, minus one percentage point.

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

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

(a) if royalties are calculated according to subsection 5(1) of the tariff (telephone on hold), the annual applicable royalty is $ [new applicable rate] for the first trunk line plus $ [new applicable rate] for each additional trunk line;
(b) if royalties are calculated according to paragraph 5(2)(a) of the tariff, (admissions, attendees or number of tickets sold), [new applicable rate] ¢;
(c) if royalties are calculated according to paragraph 5(2)(b) of the tariff (area), [new applicable rate for area measured in metres] ¢ if calculated in metres and [new applicable rate for area measured in feet] ¢ if calculated in feet;
(d) if royalties are payable pursuant to paragraph 5(2)(c) of the tariff (all other instances), the annual royalty payable is $[new applicable rate]; and
(e) if royalties are payable pursuant to subsection 5(3) of the tariff (minimum fee), the annual royalty payable is $[new applicable rate].

Reporting Requirements

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

(2) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 5 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows. If 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 5. If an establishment making payment pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the establishment first opened. In all cases, the establishment making payment under this subsection shall report to Re:Sound all information used to calculate the royalty payment.

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

Accounts and Records

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

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

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

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

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

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

Confidentiality

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

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

(a) with any other collective society in Canada that has secured a certified tariff that covers any of the uses of recorded music covered by this tariff;
(b) with the Copyright Board;
(c) in connection with proceedings before the Copyright Board, if Re:Sound has first provided a reasonable opportunity for the person providing the information to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with its royalty claimants; or
(e) if required by law.

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

Adjustments

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

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

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

Interest on Late Payments and Reporting

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

Addresses for Notices, etc.

12. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: background@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 the tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED FROM MULTI-CHANNEL SUBSCRIPTION SATELLITE RADIO SERVICES BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEAR 2012

GENERAL PROVISIONS

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

Tariff No. 4

USE OF MUSIC BY SATELLITE RADIO SERVICES

Short Title

1. This tariff may be cited as the Re:Sound Satellite Radio Services Tariff, 2012.

Definitions

2. In this tariff,

“collective society” means any other collective society in Canada including CSI that has secured a certified tariff that covers any of the uses of recorded music covered by this tariff; (« société de perception »)

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

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

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

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

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

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

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

Application

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

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

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

Royalties

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

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

(a) For each subscription, including free, pre-paid and lifetime subscriptions, the service shall pay the greater of
- (i) 17 per cent of the total amount paid for the subscription (including activation and termination fees as well as membership, subscription and all other access fees), or
- (ii) $1.50 per subscription;
PLUS
(b) 17 per cent of the total amount of all additional service revenue not included in paragraph (a).

Reporting Requirements

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

(a) the total number of subscriptions to the service, broken down into free subscriptions, pre-paid and lifetime subscriptions, and the number of subscriptions at each of the various subscription price points charged by the service during the month; and
(b) its service revenue, broken down into amounts paid by subscribers for the service, advertising revenues, sponsorship revenues and other revenues.

Sound Recording and Musical Work Use Information

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

(a) the date of the broadcast;
(b) the time of the broadcast;
(c) the title of the sound recording;
(d) the title of the album;
(e) the catalogue number of the album;
(f) the track number on the album;
(g) the record label;
(h) the name of the author and composer;
(i) the name of all performers or the performing group;
(j) the duration of the sound recording broadcast, in minutes and seconds;
(k) the duration of the sound recording as listed on the album, in minutes and seconds;
(l) the Universal Product Code (UPC) of the album;
(m) the International Standard Recording Code (ISRC) of the sound recording;
(n) the type of usage (feature, theme, background, etc.); and
(o) whether the track is a published sound recording.

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

Records and Audits

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

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

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

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

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month 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

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

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

(a) with another collective society;
(b) with the Copyright Board;
(c) in connection with proceedings before the Copyright Board, if the service had the opportunity to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with royalty claimants; or
(e) if ordered by law.

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

Adjustments

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

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

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

Interest and Penalties on Late Payments and Reporting

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

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

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

12. (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). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under section 5 is provided concurrently.

(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 electronic bank transfer shall be presumed to have been received on the day it is transmitted.

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE PUBLIC PERFORMANCE, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS BY MOTION PICTURE THEATRES FOR THE YEARS 2012 AND 2013

GENERAL PROVISIONS

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

Tariff No. 7

MOTION PICTURE THEATRES AND DRIVE-INS

NOTE TO PROSPECTIVE USERS: Tariff No. 7 was first proposed and filed by Re:Sound for the years 2009 to 2011. The Copyright Board heard a motion on the preliminary issue of whether anyone is entitled to equitable remuneration pursuant to section 19 of the Copyright Act when a published sound recording is part of the soundtrack that accompanies a motion picture that is performed in public. In its decision on the motion released September 16, 2009, the Copyright Board struck Tariff No. 7 from the proposed statement of royalties published in the Canada Gazette, Part I, on May 31, 2008. The Board’s decision is the subject of ongoing court proceedings. Re:Sound refiles the tariff for the years 2012 to 2013, recognizing that its entitlement to certification of Tariff No. 7 is subject to the outcome of the pending court proceedings.

Short Title

1. This tariff may be cited as the Re:Sound Motion Picture Theatre Tariff, 2012-2013.

Definitions

2. In this tariff,

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

Application

3.1 This tariff sets the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public of published sound recordings of musical works and performers’ performances of such works embodied in a motion picture or any other audiovisual work by a motion picture theatre, drive-in or establishment exhibiting motion pictures.

3.2 This tariff does not apply to a public performance that is subject to another Re:Sound tariff, including Re:Sound Tariff 3 (Background Music).

Royalties

4.1 A motion picture theatre or any establishment exhibiting motion pictures may perform, at any time and as often as desired in the years 2012 to 2013, any or all of the works in Re:Sound’s repertoire for an annual fee of $380 per screen.

4.2 Theatres operating three days or less per week shall pay one half of the above rates.

4.3 For theatres operating for less than 12 months in each year, the fee payable, either under section 4.1 or 4.2, shall be reduced by one twelfth for each full month during the year in which no operations occur.

Reporting Requirements

5.1 No later than January 31 of each year, a theatre subject to this tariff shall pay the royalty for that year and report the information used to calculate the royalty.

5.2 No later than the 14th day of each month, a theatre subject to this tariff shall report the titles of all motion pictures exhibited during the prior month and the number of times each motion picture was exhibited.

5.3 The information set out in section 5.2 shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the theatre.

Accounts and Records

6.1 A theatre subject to this tariff shall keep and preserve, for a period of six months after the end of the year to which they relate, records from which the information set out in section 5.2 can be readily ascertained.

6.2 A theatre 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 theatre’s payment can be readily ascertained.

6.3 Re:Sound may audit these records at any time during the period set out in section 6.1 or 6.2, on reasonable notice and during normal business hours.

6.4 Re:Sound shall, upon receipt, supply a copy of the report of the audit to the theatre who was the object of the audit.

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

Confidentiality

7.1 Subject to sections 7.2 and 7.3, Re:Sound shall treat in confidence information received pursuant to this tariff, unless the theatre that supplied the information consents in writing to the information being treated otherwise.

7.2 Re:Sound may share information referred to in section 7.1

(a) with any other collective society in Canada that has secured a certified tariff applicable to motion picture theatres;
(b) with the Copyright Board;
(c) in connection with proceedings before the Copyright Board, if the theatre had the opportunity to request a confidentiality order;
(d) to the extent required to effect the distribution of royalties, with royalty claimants; or
(e) if ordered by law.

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

Adjustments

8.1 A theatre 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 in the amount of royalties owed may be made in respect of an overpayment discovered by the theatre which occurred more than 12 months prior to its discovery.

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

8.3 The 12-month limit in section 8.1 shall not apply to an error discovered by Re:Sound, including without limitation an error discovered pursuant to section 8.2 or an underpayment discovered through an audit conducted pursuant to section 6.3.

Interest and Penalties on Late Payments and Reporting

9.1 In the event that a theatre does not pay the amount owed or report the information required under section 5.1 by the due date, the theatre 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.

9.2 In the event that a theatre does not provide the list of titles of motion pictures required by section 5.2 by the due date, the theatre shall pay to Re:Sound a late fee of $50.00 per day from the due date until the date the list is received by Re:Sound.

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

10.2 Anything addressed to a theatre 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

11.1 A notice may be delivered by hand, by postage paid mail, by fax or by email.

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

11.3 Anything sent by fax or email shall be presumed to have been received the day it is transmitted.

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FILE: Public Performance of Sound Recordings