Canada Gazette, Part I, Volume 148, Number 24: SUPPLEMENT

June 14, 2014

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 28, 2014, with respect to royalties it proposes to collect, effective January 1, 2015, 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 13, 2014.

Ottawa, June 14, 2014

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 YEARS 2015-2017

Tariff No. 1

RADIO

A. Commercial Radio

Short Title

1. This tariff may be cited as the Re:Sound Commercial Radio Tariff, 2015-2017.

Definitions

2. In this tariff,

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

(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) amounts received for the production of a program that is commissioned by someone other than the station and which becomes the property of that person;
(c) income from simulcasting, non-interactive webcasting or semi-interactive communications subject to Re:Sound Tariffs 8 or 8B;
(d) 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
(e) 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 à faible utilisation »)

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

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

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

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

Application

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

(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.

Royalties

4. 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) 0.5 per cent of its gross income for the reference month in respect of the performance in public referred to in paragraph 3(1)(b).

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

(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) 0.5 per cent of its gross income in respect of the performance in public referred to in paragraph 3(1)(b).

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

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

Reporting Requirements

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

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

8. At any time during the period set out in subsection 10(2), Re:Sound may require the production of any contract granting rights referred to in paragraph (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 full sequential lists of all published sound recordings embodying musical works or parts thereof, broadcast during each day of 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 and 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

10. (1) A station shall keep and preserve, for a period of six months after the end of the month to which they relate, records from which the information set out in section 9 can be readily ascertained.

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

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

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

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

Confidentiality

11. (1) Subject to subsections (2) and (3), information received from a station pursuant to this tariff shall be treated in confidence, unless that station consents in advance, in writing, to each proposed disclosure of its information.

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

(a) with any other collective society including Re:Sound's members;
(b) with Re:Sound's service providers;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

(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. Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. Excess payments by a station are not subject to interest.

Interest and Late Fees

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

(2) In the event that a station does not provide the 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

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter;

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

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

Delivery of Notices and Payments

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

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

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED FROM 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 YEARS 2015-2018

Tariff No. 4

USE OF MUSIC BY SATELLITE RADIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Satellite Radio Services Tariff, 2015-2018.

Definitions

2. In this tariff,

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

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

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

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

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

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

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

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

Application

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

(2) This tariff does not authorize

(a) any use of a sound recording by a service in connection with its delivery to a commercial subscriber; or
(b) any use by a subscriber of a sound recording transmitted by a service other than a use described in subsection (1).

(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. 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, a cellular, mobile or wireless network or any similar network, but does permit the use of wireless functionalities (such as a WiFi or Bluetooth functionality) integrated with a satellite radio receiving device that allows the relay of a satellite radio signal to local speakers for subscribers' private use.

Royalties

4. (1) A service shall pay to Re:Sound, for each month of the tariff term, 17 per cent of its service revenues 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 trials, previews, free, prepaid and lifetime subscriptions, the service shall pay the greater of
- (i) 17 per cent of the total amounts paid for the subscription (including activation and termination fees as well as membership, subscription and all other access and administrative fees), or
- (ii) $1.50 per subscription;
PLUS
(b) 17 per cent of the total amount of all additional service revenues not included in paragraph (a).

Reporting Requirements

5. No later than on the first day of each month of the tariff term, a service shall pay the royalties for that month as set out in section 4 and shall provide for the reference month

(a) the total number of subscriptions to the service, broken down into free trials, previews, free subscriptions, prepaid and lifetime subscriptions, and the number of subscriptions at each of the various subscription price points charged by the service during the month; and
(b) its service revenues, 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 full sequential lists of all published sound recordings embodying musical works or parts thereof, broadcast during each day of 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 and 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 year of the album and track.

(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 (p).

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 section 5 can be readily ascertained.

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

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

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

Confidentiality

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

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

(a) with any other collective society including Re:Sound's members;
(b) with Re:Sound's service providers;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

9. Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. Excess payments by a service are not subject to interest.

Interest and Late Fees

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 music use reporting required by subsection 6(1) within seven days of the due date, upon written notice by Re:Sound, the service 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

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter;

until the reporting is received.

Addresses for Notices, etc.

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

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

Delivery of Notices and Payments

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

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

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

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND 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 2015

Tariff No. 8

SIMULCASTING, NON-INTERACTIVE WEBCASTING AND SEMI-INTERACTIVE WEBCASTING

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Simulcasting, Non-Interactive Webcasting and Semi-Interactive Webcasting Tariff, 2015.

Definitions

2. (1) In this tariff,

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

“aggregate tuning hours or ATH” means the total hours of programming that the service has transmitted during the relevant period to all listeners in Canada from all channels and stations that provide audio programming consisting, in whole or in part, of sound recordings. By way of example, if the service transmitted one hour of programming to 10 simultaneous listeners, the service's ATH would be 10; (« nombre total d'heures d'écoute ou NTHE »)

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

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

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the service, including, but not limited to, subscriber fees, connect time charges, access or activation fees, administrative fees, account history fees, returned payment fees, invoice fees, cancellation fees and hardware transfer and other transfer fees, whether made directly to the service or to any entity under the same or substantially the same ownership, management or control, or to any other person, firm or corporation including, but not limited to, any partner or copublisher of the service, pursuant to an agreement or as directed or authorized by any agent or employee of the service; and
(b) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the service including, but not limited to, advertising included within the service or played upon selecting a link to the service, or on banner adverts on media players and pop-up windows associated with media players whilst the media player is delivering the service, payments associated with syndicated selling, on-line franchising, associate or affiliate programs, bounty, e-commerce or other revenue including revenue from the sale, design, development, manufacture, rental or installation of receiving devices and any other hardware and accessories used in the reception of the service and also includes the value of any goods or services received from any source as barter in connection with the service including, but not limited to, barter received in exchange for providing advertising time or space.

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

“microcaster” means a service that offers simulcasts, non-interactive webcasts and/or semi-interactive webcasts and has

(a) annual ATH of less than 18 250;
(b) annual revenues of less than $5,000; and
(c) annual expenses of less than $10,000;

and provides to Re:Sound, as part of their reporting, their ATH, revenues and expenses; (« microdiffuseur »)

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

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

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

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

(a) the content of such communication is influenced by a user of the service having provided to the person making the communication (or a third party) information such as
- (i) the musical genre the user purchases, consumes or otherwise prefers,
- (ii) the artist the user purchases, consumes or otherwise prefers,
- (iii) ratings for a particular artist, or
- (iv) ratings for a particular sound recording,
but without enabling any user to receive on request a specific file from a place and at a time individually chosen by the user;
and/or
(b) the user may skip through the communication by advancing to the start of the next file; (« webdiffusion semi-interactive »)

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

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

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

“sound recording performance complement” means that the service will not transmit within any given three-hour period more than

(a) three different sound recordings from the same album or more than two such recordings transmitted consecutively; or
(b) four different sound recordings by the same artist (or four different sound recordings from the same compilation) or more than three such recordings transmitted consecutively; (« exigence supplémentaire relative à l'exécution d'enregistrements sonores »)

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

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

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

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

Application

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

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

(a) that is subject to another Re:Sound tariff, including tariffs 1.A (Commercial Radio), 1.C (CBC Radio), 3 (Background Music), 4 (Satellite Radio Services), and the Pay Audio Services Tariff. For greater certainty, an entity that is subject to another Re:Sound tariff is also subject to this tariff with respect to any communication to the public by telecommunication in Canada by that entity of published sound recordings by simulcast, non-interactive webcast or semi-interactive webcast;
(b) by podcast; or
(c) by interactive communication that enables a user to receive, on request, a specific file from a place and at a time individually chosen by the user, such as a download or on-demand webcast of a specific file or album. If a service offers both an interactive communication and a non-interactive webcast, semi-interactive webcast or simulcast (either concurrently or at different times), the non-interactive webcast, semi-interactive webcast and simulcast shall not be treated as part of an interactive communication.

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

ROYALTIES

Simulcasts

4. (1) The royalties payable under subsection 3(1) for sites or services offering only simulcasts and not either or both of non-interactive webcasts and semi-interactive webcasts are $0.00098 for each communication of a file in Canada by the service by simulcast, subject to a minimum fee of $500 per channel up to a maximum of $50,000 annually.

Webcasts — Sound Recording Performance Complement Compliant

(2) The royalties payable under subsection 3(1) for sites or services offering non-interactive webcasts and/or semi-interactive webcasts all of which meet the sound recording performance complement are the greater of

(a) 21.75 per cent of gross revenues; or
(b) $0.00122 for each communication of a file in Canada by the service by non-interactive webcast and semi-interactive webcast;

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

Webcasts — Non-Sound Recording Performance Complement Compliant

(3) The royalties payable under subsection 3(1) for sites or services offering non-interactive webcasts and/or semi-interactive webcasts all or part of which do not meet the sound recording performance complement are the greater of

(a) 25 per cent of gross revenues; or
(b) $0.0025 for each communication of a file in Canada by the service by non-interactive webcast and semi-interactive webcast;

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

Simulcasts and Webcasts

(4) A site or service that offers simulcasts in addition to non-interactive webcasts and/or semi-interactive webcasts is subject to the royalties under subsection (2) or (3) as applicable for all communications in Canada of files by simulcast, non-interactive webcast and semi-interactive webcast.

Microcasters

(5) The royalties payable under subsection 3(1) for microcasters are $250 annually.

ADMINISTRATIVE PROVISIONS

Accounts and Records

5. (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 7(1) can be readily ascertained.

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

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

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

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

Payment and Reporting Requirements

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

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

(a) the gross revenues of the service;
(b) the total number of times that a file was communicated in Canada by the service by simulcast, non-interactive webcast and semi-interactive webcast; and
(c) where applicable, the total number of subscribers to the service (including both free and paid subscriptions) and the total amounts paid by them.

(3) The annual royalties payable by microcasters under subsection 4(5) are due on the 14th day of January of each year for which they apply.

(4) All minimum fees payable under section 4 are due on the 14th day of January of each year for which they apply, to be credited against the monthly amounts payable under subsection 6(1).

Music Use Information

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

(a) the title of the sound recording;
(b) the title of the album;
(c) the catalogue number of the album;
(d) the track number on the album;
(e) the record label;
(f) the name of the author and composer;
(g) the name of all performers and the performing group;
(h) the duration of the sound recording broadcast, in minutes and seconds;
(i) the duration of the sound recording as listed on the album, in minutes and seconds;
(j) the Universal Product Code (UPC) of the album;
(k) the International Standard Recording Code (ISRC) of the sound recording;
(l) whether the track is a published sound recording;
(m) any alternative title used to designate the sound recording; and
(n) where applicable, the cue sheets for all syndicated programming, inserted into the Excel report.

(3) Subsection (1) does not apply to stations licensed by the CRTC as non-commercial radio stations. A non-commercial radio station shall report to Re:Sound the same information that is required by SOCAN Tariff 22.C 1996-2006 or its current equivalent.

(4) Microcasters may pay an annual fee of $50 in lieu of reporting under subsection (1), due on January 14th of each year for which it applies.

Confidentiality

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

(a) with any other collective society including Re:Sound's members;
(b) with Re:Sound's service providers;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

Interest and Late Fees

10. (1) If either the amount owed or report required under subsection 6(2) is not provided by the due date, the service shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a service does not provide the music use reporting required by subsection 7(1) within seven days of the due date, upon written notice by Re:Sound, the service 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

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter;

until the reporting is received.

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

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

Delivery of Notices and Payments

12. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under subsection 6(2) is provided concurrently to Re:Sound by email.

(2) The information set out in subsection 7(1) shall be sent by email.

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

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