Canada Gazette, Part I, Volume 149, Number 25: SUPPLEMENT

June 20, 2015

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 30, 2015, with respect to royalties it proposes to collect, effective January 1, 2016, 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 19, 2015.

Ottawa, June 20, 2015

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, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2016 TO 2017

Tariff No. 1

RADIO

A.2 Commercial Radio Simulcasts

Short Title

1. This tariff may be cited as the Re:Sound Commercial Radio Simulcasting Tariff, 2016-2017.

Definitions

2. In this tariff,

All terms unless otherwise defined have the same meaning as under the Re:Sound Commercial Radio Tariff (Tariff 1.A).

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

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

“play” means the single performance of a file to a single person; (« écoute »)

“simulcast” means the simultaneous communication of an over-the-air commercial radio broadcast to which the Re:Sound Commercial Radio Tariff (Tariff 1.A) applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

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

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the simulcast, including, but not limited to, subscriber fees, connect time charges, access or activation fees and any administrative fees, whether made directly to the station broadcaster 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 co-publisher of the station broadcaster, pursuant to an agreement or as directed or authorized by any agent or employee of the station broadcaster; 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 simulcast including, but not limited to, advertising included within the simulcast or played upon selecting a link to the simulcast, or on banner adverts on media players and pop up windows associated with media players whilst the media player is delivering the simulcast, 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 simulcast and also includes the value of any goods or services received from any source as barter in connection with the simulcast including, but not limited to, barter received in exchange for providing advertising time or space.

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

Application

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

(2) This tariff does not apply to a communication to the public by telecommunication that is subject to another Re:Sound tariff, including the Re:Sound Commercial Radio Tariff (Tariff 1.A), Re:Sound Tariff 8 – Non-Interactive and Semi-Interactive Webcasts, the SOCAN-Re:Sound Pay Audio Services Tariff, the Re:Sound Background Music Tariff, or the SOCAN-Re:Sound Satellite Radio Services Tariff. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings via the Internet or another digital network, to a device, except by simulcast.

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

Royalties

4. A low-use station shall pay to Re:Sound, the greater of

(a) 2.6 per cent of its simulcasting income for the reference month; or
(b) $0.00098 for each play of a file in Canada by simulcast;

subject to a minimum annual fee of $500 per station.

5. Except as provided in section 4, a station shall pay to Re:Sound, the greater of

(a) 6.5 per cent of its simulcasting income for the reference month; or
(b) $0.00098 for each play of a file in Canada by simulcast;

subject to a minimum annual fee of $500 per station.

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. Royalties are payable on the first day of each month, together with a report setting out, for the reference month

(a) the station's simulcasting income including, where applicable, the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them;
(b) the total audience of the simulcast relative to the audience of the over-the-air broadcast;
(c) the number of plays of each file; and
(d) the total number of plays of all files.

Information on Sound Recording Use

8. Information on sound recording use shall be provided pursuant to the Re:Sound Commercial Radio Tariff (Tariff 1.A).

Administrative Provisions

9. All other administrative provisions under the Re:Sound Commercial Radio Tariff (Tariff 1.A) shall apply to this tariff.

STATEMENT OF ROYALTIES TO BE COLLECTED FROM THE CANADIAN BROADCASTING CORPORATION 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 2016

Tariff No. 1

RADIO

C.2 Canadian Broadcasting Corporation (CBC) Simulcasts

Short Title

1. This tariff may be cited as the Re:Sound CBC Radio Simulcasting Tariff, 2016.

Definitions

2. In this tariff,

All terms, unless otherwise defined, have the same meaning as under the Re:Sound CBC Radio Tariff (Tariff 1.C);

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

“play” means the single performance of a file to a single person; (« écoute »)

“simulcast” means the simultaneous communication of an over-the-air CBC radio broadcast to which the Re:Sound CBC Radio Tariff (Tariff 1.C) applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording (« diffusion simultanée »).

Application

3. (1) This tariff sets the royalties to be paid to Re:Sound by the CBC for the communication to the public by telecommunication, in Canada, for private or domestic use, of published sound recordings embodying musical works and performers' performances of such works, by simulcast by the radio networks and stations owned and operated by the CBC.

(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.C, 3, 8, the Satellite Radio Services Tariff 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, via the Internet or another digital network, to a device, except by simulcast.

Royalties

4. (1) The CBC shall pay to Re:Sound, on the first day of each month, the greater of

(a) $37,500; or
(b) $0.00098 for each play of a file in Canada by simulcast.

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

Reporting Requirements

5. (1) Together with its monthly payment, the CBC shall provide Re:Sound with a report setting out

(a) the number of plays of each file;
(b) the total number of plays of all files; and
(c) the total audience of the simulcast relative to the audience of the over-the-air broadcast.

(2) Information on sound recording use shall be provided pursuant to the Re:Sound CBC Radio Tariff (Tariff 1.C).

(3) All other administrative provisions under the Re:Sound CBC Radio Tariff (Tariff 1.C) shall apply to this tariff.

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 BY PAY AUDIO SERVICES FOR THE YEAR 2016

Tariff No. 2.B

PAY AUDIO SERVICES SIMULCASTS

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Pay Audio Services Simulcasting Tariff, 2016.

Definitions

2. In this tariff,

All terms unless otherwise defined have the same meaning as under the Re:Sound Pay Audio Services Tariff (Tariff 2).

“channel” means an individual program or playlist which a user selects to initiate a communication of a file. For example, if an undertaking offers 10 different musical genres and within each genre there are a further 10 sub-genres, the selection of each of which initiates the streaming of a different playlist, the undertaking has 100 channels; (« chaîne »)

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

“play” means the single performance of a file to a single person; (« écoute »)

“simulcast” means the simultaneous communication of an over-the-air pay audio signal to which the Re:Sound Pay Audio Services Tariff (Tariff 2) applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

“simulcasting income” includes all direct and indirect revenues associated with the simulcast in Canada, including, but not limited to

(a) affiliation payments payable by a distribution undertaking for the transmission for private or domestic use of a simulcast;
(b) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the simulcast, including, but not limited to, subscriber fees, connect time charges, access or activation fees and any administrative fees, whether made directly to the programming undertaking or distribution undertaking 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 co-publisher of the undertaking, pursuant to an agreement or as directed or authorized by any agent or employee of the undertaking; and
(c) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the simulcast, including, but not limited to, advertising included within the simulcast or played upon selecting a link to the simulcast, or on banner adverts on media players and pop-up windows associated with media players whilst the media player is delivering the simulcast, payments associated with syndicated selling, online 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 simulcast and also includes the value of any goods or services received from any source as barter in connection with the simulcast, including, but not limited to, barter received in exchange for providing advertising time or space.

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

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 connection with the transmission by a distribution undertaking of a simulcast for private or domestic use, whether or not for a fee.

(2) This tariff does not apply to uses covered by other tariffs, including the Re:Sound Pay Audio Services Tariff (Tariff 2), Re:Sound Tariffs 3, or 8. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings via the Internet or another digital network to a device, except by simulcast.

Royalties

4. (1) Subject to subsection (2), the royalties payable to Re:Sound are the greater of

(a) 15 per cent of simulcasting income; or
(b) $0.00098 for each play of a file in Canada by simulcast;

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

(2) The royalties payable to Re:Sound each year where the distribution undertaking is

(a) a small cable transmission system;
(b) 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
(c) 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”;

are the greater of

(a) 7.5 per cent of simulcasting income; or
(b) $0.00049 for each play of a file in Canada by simulcast;

subject to a minimum annual fee of $250 per channel up to a maximum of $25,000.

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. Royalty payments shall be accompanied by a report setting out for the month (for royalties payable under subsection 5(1)) or year (for royalties payable under subsection 5(2)) for which the royalties are being paid:

(a) the simulcasting income, including the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them;
(b) the number of plays of each file;
(c) the total number of plays of all files; and
(d) the total audience of the simulcast relative to the audience of the over-the-air broadcast.

7. Information on sound recording use shall be provided pursuant to the Re:Sound Pay Audio Services Tariff (Tariff 2).

8. All other administrative provisions under the Re:Sound Pay Audio Services Tariff (Tariff 2) shall apply to this tariff.

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 2016 TO 2018

Tariff No. 4.B

SATELLITE RADIO SERVICES SIMULCASTS

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 Simulcasting Tariff, 2016-2018.

Definitions

2. In this tariff,

All terms unless otherwise defined have the same meaning as under the Re:Sound Satellite Radio Services Tariff (Tariff 4).

“channel” means an individual program or playlist which a user selects to initiate a communication of a file. For example, if a service offers 10 different musical genres and within each genre, there are a further 10 sub-genres, the selection of each of which initiates the streaming of a different playlist, the service has 100 channels; (« chaîne »)

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

“play” means the single performance of a file to a single person; (« écoute »)

“simulcast” means the simultaneous communication of an over-the-air satellite radio broadcast to which the Re:Sound Satellite Radio Tariff (Tariff 4) applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient exercises no control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

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

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the simulcast, including, but not limited to, subscriber fees, connect time charges, access or activation fees and any administrative 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 co-publisher 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 simulcast including, but not limited to, advertising included within the simulcast or played upon selecting a link to the simulcast, or on banner adverts on media players and pop up windows associated with media players whilst the media player is delivering the simulcast, 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 simulcast and also includes the value of any goods or services received from any source as barter in connection with the simulcast including, but not limited to, barter received in exchange for providing advertising time or space;

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

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 by simulcast, for direct reception by subscribers for their private use.

(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 the Re:Sound Satellite Radio Services Tariff (Tariff 4), Re:Sound Tariffs 1.A, 1.C, 3, 8 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 via the Internet or another digital network, to a device, except by simulcast.

Royalties

4. A service shall pay to Re:Sound, for each month of the tariff term, the greater of

(a) 3.71 per cent of its simulcasting income for the reference month; or
(b) $0.00098 for each play of a file in Canada by simulcast;

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

Reporting Requirements

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

(a) the service's simulcasting income, including the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them;
(b) the total audience of the simulcast relative to the audience of the over-the-air broadcast;
(c) the number of plays of each file; and
(d) the total number of plays of all files.

Sound Recording Use Information

6. Information on sound recording use shall be provided pursuant to the Re:Sound Satellite Radio Services Tariff (Tariff 4).

Administrative Provisions

7. All other administrative provisions under the Re:Sound Satellite Radio Services Tariff (Tariff 4) shall apply to this tariff.

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 EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2016 TO 2020

Tariff No. 5

USE OF MUSIC TO ACCOMPANY LIVE EVENTS

Short Title

1. This tariff may be cited as the Re:Sound Live Events Tariff, 2016-2020.

Definitions

2. In this tariff,

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

Taxes

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

Accounts and Records

4. (1) A person subject to the tariff shall keep and preserve, for a period of six (6) years after the end of the year to which they relate, records from which that person's payment under this tariff can be readily ascertained.

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

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

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

Confidentiality

5. (1) Subject to subsections (2) and (3), information received pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.

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

(a) with Re:Sound's members and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;
(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 person subject to this tariff who supplied the information and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.

Adjustments

6. 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 are not subject to interest.

Interest on Late Payments and Reporting

7. (1) In the event that a person subject to this tariff does not pay the amount owed under the tariff by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.

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

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

Addresses for Notices, etc.

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

(2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

Delivery of Notices and Payments

9. (1) A document mailed in Canada shall be presumed to have been received four (4) business days after the day it was mailed.

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

Rate Adjustments to Account for Inflation

10. (1) Subject to subsections (2) to (4), the amounts payable pursuant to Tariffs 5.A, 5.B, 5.C, 5.D, 5.F, 5.G, 5.I and 5.J may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

(2) An increase can be applied only if the factor is higher than three (3) 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 of Canada and to every person known to Re:Sound that is subject to the applicable tariff, before the end of January of the year for which the increase applies, a notice stating the following:

“Re:Sound Tariff 5 [applicable tariff], as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section [applicable section] of the tariff to account for inflation, according to a formula set out in section 10 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: [new applicable rates].

You can review the detailed calculation of the increase on Re:Sound's website, at [URL to which the calculation is posted].”

(6) Before sending any notice pursuant to subsection (5), Re:Sound shall post on its website a page that provides the detailed calculation of the increase being applied. That page shall be accessible to the public directly from the home page of Re:Sound's website.

A. RECORDED MUSIC ACCOMPANYING LIVE ENTERTAINMENT

Definitions

1. In this tariff,

“admission” includes all persons entitled to attend the event including free admissions; (« entrée »)

“event” means a single performance or show with a start and end time and a single location; (« événement »)

“incidental” means the use of sound recordings at an event for either less than ten (10) per cent of the length of the event or for less than ten (10) minutes in total duration for the event, excluding intermissions and the entrance and exit of audiences before and after the event (« accessoire »).

Application

2. (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 published sound recordings of musical works and performers' performances of such works as a part of any type of live entertainment event including theatrical, dance, acrobatic arts, integrated arts, contemporary circus arts or other live performances.

(2) This tariff does not apply to events that are subject to another Re:Sound tariff, including Re:Sound Tariffs 5.B-5.J.

(3) Where this tariff applies to an event, it applies to all uses of sound recordings at the event, whether inside or outside the venue, including sound recordings played during intermissions and during the entrance and exit of the audience, as well as the use of sound recordings as a part of the live entertainment.

(4) This tariff does not apply to events where sound recordings are not used as a part of the live entertainment and are only played during intermissions or during the entrance and exit of the audience. Where not otherwise subject to another Re:Sound tariff, such uses of sound recordings are subject to Re:Sound Tariff 3 (Background Music).

(5) This tariff applies in addition to Re:Sound Tariff 3 (Background Music) and any other applicable Re:Sound tariffs for any uses of sound recordings other than during the event.

Royalties

3. (1) The fee payable per event is

(a) 1.7¢ per admission, where the use of sound recordings is incidental; and
(b) 6.7¢ per admission, for all other events.

(2) The royalties payable pursuant to paragraph (1)(a) are subject to a minimum fee of $32.00 per event. The royalties payable pursuant to paragraph (1)(b) are subject to a minimum fee of $63.00 per event. Where royalties are paid for multiple events on an annual basis pursuant to subsection 4(2), they are subject to an annual minimum fee of $105.00 instead of a minimum fee per event. For the purposes of calculating the minimum fee payable, an event may include multiple performances, performers and locations included within the same admission.

Reporting Requirements

4. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound by no later than thirty (30) days after the event, the fee for that event together with a report of the name and location of the event and the number of admissions. If the number of admissions is not tracked, a good faith and reasonable estimate shall be provided. Where royalties are payable pursuant to paragraph 3(1)(a), the report shall include the duration of use of sound recordings at the event in minutes, and the duration of use of sound recordings as a percentage of the total length of the event, excluding intermissions and the entrance and exit of audiences before and after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound by January 31 of the following year, the fee for all events within the year and report the name and location of each event, the number of admissions per event, and whether the royalties are calculated pursuant to either paragraph 3(1)(a) or 3(1)(b). If the number of admissions is not tracked, a good faith and reasonable estimate shall be provided. Where royalties are payable pursuant to paragraph 3(1)(a), the report shall include for each event, the duration of use of sound recordings at the event in minutes, and the duration of use of sound recordings as a percentage of the total length of the event, excluding intermissions and the entrance and exit of audiences before and after the event.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

B. RECEPTIONS, CONVENTIONS, ASSEMBLIES AND FASHION SHOWS

Application

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 published sound recordings of musical works and performers' performances of such works as a part of events at receptions (including weddings), conventions, video game events, assemblies and fashions shows.

Royalties

2. The fee payable for each event, or for each day on which a fashion show is held, is as follows:
Room capacity (seating and standing)	Fee per event without dancing	Fee per event with dancing
1–100	$30.84	$61.70
101–300	$44.34	$88.76
301–500	$92.54	$185.07
Over–500	$131.10	$262.19

Reporting Requirements

3. No later than thirty (30) days after the end of each quarter, an establishment subject to the tariff shall file with Re:Sound the payment for all events within that quarter and a report for that quarter including

(a) the actual number of events with and without dancing and the number of days on which a fashion show was held; and
(b) the room capacity (seating and standing) authorized under the establishment's liquor licence or any other document issued by a competent authority for this type of establishment.

C. KARAOKE BARS

Application

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 published sound recordings of musical works and performers' performances of such works by means of karaoke machines at karaoke bars and similar establishments.

Royalties

2. The annual fee shall be as follows:

(a) Establishments operating with karaoke no more than 3 days a week: $286.86.
(b) Establishments operating with karaoke more than 3 days a week: $413.34.

Reporting Requirements

3. No later than January 31 of each year, an establishment subject to this tariff shall pay the applicable fee for that year to Re:Sound and report the number of days it operates with karaoke in a week.

D. FESTIVALS, EXHIBITIONS AND FAIRS

Application

1. (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 published sound recordings of musical works and performers' performances of such works at a festival, exhibition or fair.

(2) This tariff applies to all uses of sound recordings at a festival, exhibition or fair. An event that is subject to Tariff 5.D is not subject to any other Re:Sound tariff for that event.

Royalties

2. The fees payable are calculated as follows, based on the average daily attendance (excluding exhibitors and staff and including attendance at any concerts or other separately-ticketed events held as part of the festival, exhibition or fair):
Average daily attendance	Fee payable per day
Up to 5 000 persons	$17.00
From 5 001 to 10 000 persons	$38.00
From 10 001 to 20 000 persons	$76.00
From 20 001 to 30 000 persons	$126.00
From 30 001 to 50 000 persons	$202.00
From 50 001 to 75 000 persons	$315.00
From 75 001 to 100 000 persons	$441.00
From 100 001 to 150 000 persons	$630.00
From 150 001 to 200 000 persons	$882.00
Over 200 000 persons	$1,260.00

Reporting Requirements

3. (1) In the case of a festival, exhibition or fair that is scheduled yearly, the fee shall be paid on the actual attendance figures in the preceding year, on or before January 31 of the year in which the festival, exhibition or fair is held. A person subject to this tariff shall submit with the fee the figures for actual attendance for the previous year and the duration, in days, of the festival, exhibition or fair.

(2) In all other cases, a person subject to this tariff shall, within 30 days of a festival's, exhibition's or fair's closing, report its attendance and duration, in days, and submit the fee based on those figures.

(3) Where the reported attendance includes attendance at separately ticketed events held as part of the festival, exhibition or fair, a person subject to this tariff shall report the total attendance and provide a breakdown of the attendance at each separately ticketed event.

E. CIRCUSES, ICE SHOWS, FIREWORKS DISPLAYS, SOUND AND LIGHT SHOWS AND SIMILAR EVENTS

Application

(2) Subject to subsection (3), this tariff applies to all use of sound recordings at the event, whether inside or outside of the venue, and whether such sound recordings are played during the event itself, during intermissions, or during the entrance and exit of the audience.

(3) An event that would otherwise be subject to Tariff 5.E is subject to Re:Sound Tariff 3 (Background Music) if only background music is used at the event.

Royalties

2. (1) The fee payable per event is 1.9 per cent of gross receipts from ticket sales, exclusive of sales and amusement taxes, subject to a minimum fee of $92.78 per event.

(2) Where no admission fee is charged for the event, the minimum fee applies.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of its gross receipts, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the gross receipts for each event by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

F. PARADES

Application

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 published sound recordings of musical works and performers' performances of such works (“recorded music”) by floats participating in parades.

Royalties

2. The fee payable is $13.17 for each float with recorded music participating in the parade, subject to a minimum fee of $48.83 per day.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of the name and location of the parade and the number of floats with recorded music participating in the parade, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the number of parades and the name, location and number of floats with recorded music for each parade by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

G. PARKS, STREETS AND OTHER PUBLIC AREAS

Application

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

Royalties

2. (1) The fee payable is $48.83 for each day on which sound recordings are performed, up to a maximum fee of $334.40 in any three-month period.

(2) If an event takes place in multiple locations, the fee payable under subsection (1) applies to each location in which sound recordings are performed.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound the fee for that event together with a report of the date, location and name of the event, no later than 30 days after the event.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound the fee for all events within the year and report the date, location and name of the event for each event by January 31 of the following year.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

H. SPORTS EVENTS

Application

(2) This tariff applies to all use of sound recordings at the sporting event, whether inside or outside of the stadium, arena or other venue and whether such sound recordings are played during the game itself or during the pre- or post-game periods (including the entrance and exit of the audience).

Royalties

2. (1) The fee payable per event shall be as follows, as a percentage of gross receipts from ticket sales, exclusive of sales and amusement taxes:
Period	Percentage of gross receipts from ticket sales
2016	0.25%
2017	0.26%
2018	0.27%
2019	0.28%
2020	0.29%

(2) A complimentary ticket is valued at half the lowest price paid for a sold ticket from the same ticket category in the same event.

(3) Where admission to a sporting event is free, a fee of $15.00 per event applies.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound, no later than 30 days after the event, the fee for that event together with a report of its gross receipts, if applicable, including the number of complimentary tickets and the value attributed to them and the number of admissions for free events.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the gross receipts for each event, if applicable, including the number of complimentary tickets and the value attributed to them and the number of admissions for each free event.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

I. COMEDY AND MAGIC SHOWS

Application

(2) This tariff applies to all incidental use of sound recordings at the event, whether inside or outside of the venue, and whether such sound recordings are played during the event itself, during intermissions, or during the entrance and exit of the audience.

Royalties

2. The fee payable per event is $54.90.

Reporting Requirements

3. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound by no later than 30 days after the event, the fee for that event together with a report of the date, name and location of the event.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

J. CONCERTS

Definitions

1. In this tariff,

“capacity” means the maximum number of persons who can attend an event (seating and standing) based on the number of tickets that can be issued for the event (both free and paid) as reported in the event's ticket manifest or other relevant document. Where no ticket manifest or other relevant document exists, capacity shall be determined as the maximum number of persons who can occupy the venue or attend the particular event, if and as applicable, as set by the venue's liquor licence, or, if a liquor licence has not been issued, any other document issued by a competent authority. In the case of an event for which capacity cannot be determined by any of the foregoing methods, such as a free, un-ticketed outdoor concert, the capacity is the total number of persons in attendance at the event, or if the number of attendees is not tracked, a good faith and reasonable estimate of the total number of persons in attendance at the event. (« capacité »)

Application

2. (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 published sound recordings of musical works and performers' performances of such works during the entrance and exit of audiences and during breaks in live performances at live music concerts.

(2) This tariff does not apply to any use of sound recordings as part of the live performance.

Royalties

3. The fee payable per event is 0.4640¢ multiplied by the capacity, subject to a minimum fee of $30.00 per event.

Reporting Requirements

4. (1) In the case of a single event, a person subject to this tariff shall file with Re:Sound by no later than 30 days after the event, the fee for that event together with a report of the name and location of the event and the capacity, as well as the applicable supporting documentation for the reported capacity.

(2) In the case of multiple events within a year, a person subject to this tariff shall file with Re:Sound, by January 31 of the following year, the fee for all events within the year and report the name, location and capacity for each event, as well as the applicable supporting documentation for the reported capacity.

(3) Where the total royalties payable for a year under subsection (2) exceed $500, payments and reporting for the rest of that year and for the following year shall be made on a quarterly basis.

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 EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2016 TO 2018

Tariff No. 6.A

USE OF RECORDED MUSIC TO ACCOMPANY DANCE

Short Title

1. This tariff may be cited as the Re:Sound Dance Tariff, 2016-2018.

Application

2. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2016 to 2018, of published sound recordings embodying musical works and performers' performances of such works, in any indoor or outdoor venue, including nightclubs, dance clubs, bars, restaurants, hotels, halls, clubs, schools, and campuses, for the purposes of dancing or any similar activity.

(2) This tariff does not apply to any venue operated by a not-for-profit religious institution or not-for-profit educational institution, if the dancing is primarily made available to participants under the age of 19.

(3) This tariff does not apply to dancing that will be subject to Re:Sound's proposed Tariff 6.C (Use of Recorded Music to Accompany Adult Entertainment) or to an event subject to the Re:Sound Live Events Tariff, or to dance instruction subject to Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Fitness Activities).

Royalties

3. (1) A venue accommodating no more than 100 patrons shall pay an annual royalty as follows:
Months of operation	1–3 days	4–7 days
	Days of operation
Six months or less	$954	$2,623
More than six months	$2,862	$7,870

(2) A venue accommodating more than 100 patrons shall pay 10 per cent more than the fees set out in subsection (1) for each capacity increase of up to 20 patrons.

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

4. For the purposes of this tariff, the number of patrons that a venue can accommodate is

(a) the number of persons that can be present at any time under the venue's liquor licence;
(b) where the venue is not licensed to serve liquor, the number of persons that can be present at any time under any other document issued by a competent authority for this type of venue; or
(c) otherwise, the total number of persons in attendance.

Rate Adjustments to Account for Inflation

5. (1) Subject to subsections (2) to (4), the amount payable pursuant to section 3 may be increased by a factor equal to the average annual variation in percentage of the Consumer Price Index calculated over a 12-month period ending in September of each year preceding the year in which the increase is applied.

(2) An increase can be applied only if the factor is higher than three (3) 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 of the year for which the increase applies, a notice stating the following:

“Re:Sound Tariff 6.A (Use of Recorded Music to Accompany Dance), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rates set out in section 3 of the tariff to account for inflation, according to a formula set out in section 5 of the tariff.

Effective January 1, [year in which the increase is applied], the rates are being increased by [rate of increase] per cent. As a result, the applicable rates under subsection 3(1) for [year in which the increase is applied] and thereafter shall be [new applicable rates].

You can review the detailed calculation of the increase on Re:Sound's website, at [URL to which the calculation is posted].”

Reporting Requirements

6. No later than January 31, the operator of the venue shall pay the royalty for that year and shall provide, for that same year,

(a) the name and address of the venue;
(b) the name and contact information of the person operating the venue;
(c) the number of patrons that the venue can accommodate, with supporting documentation; and
(d) the days and months of operation, as used to calculate the royalties.

Records and Audits

7. (1) A person subject to this tariff shall keep and preserve, for a period of six (6) years after the end of the year to which they relate, records from which the information set out in section 6 can be readily ascertained.

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

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

(4) If an audit discloses that royalties due have been understated in any year by more than 10 per cent, the subject of the audit 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 pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.

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

(a) with Re:Sound's members and service providers;
(b) in connection with the collection of royalties or the enforcement of the tariff, with SOCAN;
(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 person who supplied the information and who is not under an apparent duty of confidentiality to that person 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 are not subject to interest.

Interest on Late Payments and Reporting

10. (1) In the event that a person subject to this tariff does not pay the amount owed under the tariff by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.

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

Addresses for Notices, etc.

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

(2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

(3) Anything mailed in Canada shall be presumed to have been received four (4) 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 BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2016 TO 2018

Tariff No. 6.C

USE OF RECORDED MUSIC TO ACCOMPANY ADULT ENTERTAINMENT

GENERAL PROVISIONS

Short Title

1. This tariff may be cited as the Re:Sound Adult Entertainment Tariff, 2016-2018.

Definitions

2. In this tariff,

“capacity” means the number of persons that can occupy the establishment (seating and standing), authorized under the establishment's liquor licence or any other document issued by a competent authority for this type of establishment; (« capacité »)

“day” means any period between 6:00 a.m. on one day and 6:00 a.m. the following day during which the establishment operates as an adult entertainment club; (« jour »)

“establishment” means a single location where adult entertainment is performed and includes an adult entertainment club, nightclub, dance club, bar, or hotel; (« établissement »)

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

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2016 to 2018, of published sound recordings embodying musical works and performers' performances of such works to accompany adult entertainment.

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

Royalties

4. (1) The annual royalty fee payable by the establishment is 6.6¢ per day, multiplied by the establishment's capacity.

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

Rate Adjustments to Account for Inflation

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

(2) An increase can be applied only if the factor is higher than three percentage points.

(3) An increase can be applied only in January.

(4) An increase that cannot be applied in accordance with subsection (2) shall be cumulated with the increase for the following year, and so on.

“Re:Sound Tariff 6.C (Use of Recorded Music to Accompany Adult Entertainment), as certified by the Copyright Board of Canada, allows Re:Sound to increase the rate set out in section 4 of the tariff to account for inflation, according to a formula set out in section 5 of the tariff.

Effective January 1, [year in which the increase is applied], the rate is being increased by [rate of increase] per cent. As a result, the applicable rates under section 4 for [year in which the increase is applied] and thereafter shall be [new applicable rate].

You can review the detailed calculation of the increase on Re:Sound's website, at [URL to which the calculation is posted].”

Royalty Payments and Reporting Requirements

6. (1) No later than January 31, the operator of the establishment shall pay the estimated royalties for that year calculated as follows. If the establishment operated in the previous year, the payment will be calculated based on the establishment's capacity and the days of operation during the previous year. If the establishment did not operate during the previous year, or if it was only open for part of the previous year, the payment will be calculated based on the capacity and estimated days of operation for the current year. If an establishment opens after January 31, payment shall be made no later than 30 days after the date the establishment first opened.

(2) Together with its payment and report under subsection (1), the operator of the establishment shall provide:

(a) the name and address of the establishment;
(b) the name and contact information of the person operating the establishment;
(c) the capacity of the establishment, with supporting documentation; and
(d) the days of operation, as used to calculate the royalties.

(3) No later than January 31 of the following year, the operator of the establishment shall provide Re:Sound with a report of the actual days of operation during the previous year and an adjustment of the royalties payable shall be made accordingly. All additional monies owed shall be paid to Re:Sound by January 31. If the royalties due are less than the amount previously paid, Re:Sound shall credit the amount of the overpayment against future payments. No interest is payable with respect to overpayments.

Records and Audits

7. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in section 6 can be readily ascertained, including the capacity and days of operation used to calculate the royalties payable.

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

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

Confidentiality

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

(a) with Re:Sound's members and service providers;
(b) in connection with the collection of royalties or the enforcement of the tariff, with SOCAN;
(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.

Adjustments

9. Subject to subsection 6(3), 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 are not subject to interest.

Interests on Late Payments and Reporting

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

Addresses for Notices, etc.

(2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

(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 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 2016

Tariff No. 8

NON-INTERACTIVE AND SEMI-INTERACTIVE WEBCASTS

GENERAL PROVISIONS

Short Title

1. This tariff may be cited as the Re:Sound Non-Interactive and Semi-Interactive Webcasts Tariff, 2016.

Definitions

2. In this tariff,

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

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

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

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the webcast, 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 webcaster 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 co-publisher of the webcaster, pursuant to an agreement or as directed or authorized by any agent or employee of the webcaster; 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 webcast including, but not limited to, advertising included within the webcast or played upon selecting a link to the webcast, or on banner adverts on media players and pop-up windows associated with media players whilst the media player is delivering the webcast, payments associated with syndicated selling, online 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 webcast and also includes the value of any goods or services received from any source as barter in connection with the webcast 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 webcast and which results in the use of the webcast, including the gross amounts received by the webcaster pursuant to a turn-key contract with an advertiser; (« revenus bruts »)

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

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

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

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

“play” means the single performance of a file to a single person; (« écoute »)

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

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

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

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

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

Application

3. (1) This tariff sets the royalties to be paid by a webcaster, for the year 2016, for the communication to the public by telecommunication of published sound recordings embodying musical works and performers' performances of such works, other than:

(a) a simulcast of programming to which the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, Connect/SOPROQ, ArtistI), the Pay Audio Services Tariff (SOCAN, Re:Sound) or the Satellite Radio Services Tariff (SOCAN, Re:Sound, CSI) applies. For greater certainty, any other simulcasts or non-interactive or semi-interactive webcasts in Canada are subject to the royalties payable under this tariff for webcasts including simulcasts by non-Canadian radio stations, non-commercial radio stations, and any webcast by a commercial radio station, the Canadian Broadcasting Corporation, a pay audio service or satellite radio service that does not constitute a simulcast within the meaning of this tariff;
(b) an interactive webcast or download;
(c) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) of the Act;
(d) a podcast or transmission of a programme previously transmitted (whether or not it has been converted to another audio file format) for playback on a device; and
(e) a communication that is subject to another Re:Sound tariff, including the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, Connect/SOPROQ, ArtistI), the Pay Audio Services Tariff (SOCAN, Re:Sound), the Satellite Radio Services Tariff (SOCAN, Re:Sound, CSI) or the Background Music Tariff (Re:Sound). For greater certainty, an entity that is subject to another Re:Sound tariff is also subject to this tariff with respect to any non-interactive webcast or semi-interactive webcast with the exception of simulcasts excluded under paragraph (a);

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

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

ROYALTIES

Non-Commercial Webcasters

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

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

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

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

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

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

(a) 21.75 per cent of its gross revenues for that month; or
(b) $0.00122 for each play of a file in Canada in that month by non-interactive webcast, semi-interactive webcast, and by simulcast (except a simulcast excluded under paragraph 3(1)(a));

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

Date Payable

6. (1) Royalties payable under section 5 are due 45 days after the end of the month for which they are being paid.

(2) Royalties payable under section 4 are due by January 14 of the year for which they are being paid.

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

(4) Minimum fees payable under section 5 are due on the 14th day of January of each year for which they apply, to be credited against the monthly amounts payable under section 5.

REPORTING REQUIREMENTS

Webcaster Identification

7. No later than 45 days after the end of the first month during which a webcaster carries out a webcast pursuant to section 3, the webcaster shall provide to Re:Sound the following information:

(a) the name of the webcaster, including
- (i) the name of the corporation or other entity, its jurisdiction, the names of its principal officers and any other trade name under which it carries on business, or
- (ii) the name of the proprietor of an individual proprietorship;
(b) the address of its principal place of business and, if applicable, the address of an office in Canada if the principal place of business is located outside Canada;
(c) the name, address and email of the persons to be contacted for the purposes of notice, for the exchange of data and for the purposes of invoicing and payment;
(d) the name and address of any authorized distributor;
(e) the name and Uniform Resource Locator (URL) from which the webcast is or will be offered;
(f) whether the webcast is non-interactive and/or semiinteractive or both;
(g) the date(s) of its first non-interactive and/or semi-interactive webcast in Canada; and
(h) the number of channels.

Music Use Information

8. (1) No later than 45 days after the end of each month, a webcaster that is required to pay royalties pursuant to section 5 shall provide to Re:Sound, in relation to each file included in a non-interactive and semi-interactive webcast and in a simulcast (except a simulcast excluded under paragraph 3(1)(a)) in that month,

(a) the title of the sound recording;
(b) the name of each performer or group to whom the sound recording is credited;
(c) the name of the record label or maker that released the sound recording;
(d) the name of each author of the musical work;
(e) the International Standard Recording Code (ISRC) assigned to the sound recording;
(f) the name of the music publisher associated with the musical work;
(g) the International Standard Musical Work (ISWC) assigned to the musical work;
(h) if the sound recording was released as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
(i) the Global Release Identifier (GRID) assigned to the sound recording and, if applicable, the GRID of the album or bundle in which the sound recording was released;
(j) the running time of the sound recording as webcast, in minutes and seconds;
(k) the running time of the sound recording as listed on the album, in minutes and seconds;
(l) any alternative title used to designate the musical work or sound recording; and
(m) in the case of syndicated programming, the cue sheet, inserted into the Excel report.

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

(a) the number of plays of each file;
(b) the total number of plays of all files;
(c) the gross revenues of the webcaster including, where applicable, the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them.

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

Adjustments

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

10. 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 webcaster are not subject to interest.

Accounts and Records

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

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

(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the webcaster that was the subject of the audit.

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

Confidentiality

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

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

(a) with Re:Sound's members and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with the Society of Composers, Authors & Music Publishers of Canada (SOCAN) and CMRRA-SODRAC Inc. (CSI);
(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 webcaster that supplied the information and who is not under an apparent duty of confidentiality to the webcaster with respect to the supplied information.

Interest and Late Fees

13. (1) If either the amount owed under section 4 or 5 or the report required under subsection 8(2) is not provided by the due date, the webcaster 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 webcaster does not provide the reporting required by subsection 8(1) within 7 days of the due date, upon written notice by Re:Sound, the webcaster shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

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

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

Delivery of Notices and Payments

15. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer, provided the associated reporting required under section 8 is provided concurrently to Re:Sound by email.

(2) The information set out in section 8 shall be sent by email.

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

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