Canada Gazette, Part I, Volume 152, Number 20: COPYRIGHT BOARD

May 19, 2018

COPYRIGHT BOARD

Proposed Statements of Royalties to Be Collected for the Reproduction of Musical Works

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the proposed statements of royalties filed by the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) on March 28, 2018, with respect to royalties it proposes to collect, for the reproduction of musical works, in Canada, by commercial television stations (Tariff No. 5), and by the television services of the Canadian Broadcasting Corporation (Tariff No. 6) for the year 2019.

In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the proposed statements of royalties may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than July 18, 2018.

Ottawa, May 19, 2018

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)

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA FROM COMMERCIAL TELEVISION STATIONS FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS IN 2019

Tariff No. 5

Short Title

1. This tariff may be cited as the CMRRA Commercial Television Tariff, 2019.

Definitions

2. The following definitions apply in this tariff.

"additional information" means, in relation to each musical work contained in a program, the following information, if available:

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

"CMRRA" means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

"CMRRA work" means all or part of a musical or dramatico-musical work of which CMRRA may authorize the reproduction in Canada, in proportion to the rights it holds. (« œuvre CMRRA »)

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

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

"low-use station" means a station that

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

"program" means any combination of sounds and visual images that are intended to inform, enlighten, or entertain, excluding an advertisement of up to 60 seconds' duration. (« émission »)

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

"required information" means, in relation to a program,

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

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

"year" means a calendar year. (« année »)

Application

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

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

(3) The reproductions referred to in subsection (1) and paragraphs (2)(a) and (b) shall be limited to the CMRRA work as embodied in the program, including the associated visual images.

(4) This tariff does not authorize

(5) This tariff does not apply to stations operated by the Ontario Educational Communications Authority, the Société de télédiffusion du Québec, or the Canadian Broadcasting Corporation.

Royalties

4. The royalties payable to CMRRA for a month shall be,

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

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

Reporting and Payment Requirements

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

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

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

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

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

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

11. At any time during the period set out in subsection 12(1), CMRRA may require the production of any contract granting rights referred to in paragraph (c) of the definition of "gross income," together with the billing or correspondence relating to the use of those rights by other parties, and the station shall provide that information within 10 days after receiving a request in writing from CMRRA.

Records and Audits

12. (1) A station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in sections 8, 9, 10 and 11, any other information that must be provided under this tariff, and the amounts owed under this tariff, can be readily ascertained.

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

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

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

Breach and Termination

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

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

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

Confidentiality

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

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

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

Adjustments

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

Interest

16. (1) In the event that a station does not pay the amount owed under section 8 or provide the information required by sections 8, 9, and 10 by the due date, the station shall pay to CMRRA interest calculated on the amount owed from the due date until the date both the amount and the information are received by CMRRA. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(2) In the event that a station does not provide the information required by sections 8, 9, and 10 by the due date, the station shall pay to CMRRA a late fee of $50.00 per day from the due date until the date the information is received by CMRRA.

Addresses for Notices, etc.

17. (1) Anything that a station sends to CMRRA shall be sent to 56 Wellesley Street West, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax number: 416-926-7521, or to any other address, email address or fax number of which a station has been notified in writing.

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

Delivery of Notices and Payments

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

(2) Information provided pursuant to sections 8, 9, and 10 shall be provided electronically, in a format agreed upon by CMRRA and the station.

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

(4) A notice sent by fax, by email, or by FTP shall be presumed to have been received the day it was transmitted.

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

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY CMRRA FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS BY THE TELEVISION SERVICES OF THE CANADIAN BROADCASTING CORPORATION IN 2019

Tariff No. 6

Short Title

1. This tariff may be cited as the CMRRA CBC Television Tariff, 2019.

Definitions

2. The following definitions apply in this tariff.

"additional information" means, in relation to each musical work contained in a program, the following information, if available:

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

"CBC" means the Canadian Broadcasting Corporation / Société Radio-Canada. (« SRC »)

"CMRRA" means Canadian Musical Reproduction Rights Agency Ltd. (« CMRRA »)

"CMRRA work" means all or part of a musical or dramatico-musical work of which CMRRA may authorize the reproduction in Canada, in proportion to the rights it holds. (« œuvre CMRRA »)

"gross income" means the gross amounts paid for the use of one or more broadcasting services or facilities offered by a service referred to in paragraph 4(b), including the value of any goods or services provided by any person in exchange for the use of such services or facilities, the fair market value of any non-monetary consideration (e.g. barter or "contra"), and any income from simulcast, whether such amounts are paid to CBC or to other persons, but excluding the following:

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

"low-use service" means a service that

"program" means any combination of sounds and visual images that are intended to inform, enlighten, or entertain, excluding an advertisement of up to 60 seconds' duration. (« émission »)

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

"required information" means, in relation to a program,

"service" means a programming undertaking, as defined in the Broadcasting Act, S.C. 1991, c. 11, that is owned or operated by CBC. (« service »)

"simulcast" means the simultaneous, unaltered, real-time streaming of the broadcast signal of a service via the Internet or other similar computer network. (« diffusion simultanée »)

"year" means a calendar year. (« année »)

Application

3. (1) This tariff authorizes CBC, provided that it complies with this tariff, to reproduce a CMRRA work as embodied in a program, in any material form and by any process now known or hereafter devised, solely for the purpose of broadcasting the program on a service, including any simulcast.

(2) Provided that it complies with this tariff, CBC is also authorized to

(3) The reproductions referred to in subsection (1) and paragraphs (2)(a) and (b) shall be limited to the CMRRA work as embodied in the program, including the associated visual images.

(4) This tariff does not authorize

Royalties

4. The royalties payable to CMRRA for a month shall be,

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

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

Reporting and Payment Requirements

7. No later than the later of 30 days after the coming into force of this tariff and 20 days after the end of the first month during which a service reproduces a program that may require a CMRRA licence, CBC shall provide to CMRRA the name, address, and email address of the person or persons to be contacted for the purposes of notice and, if different, the name, address, and email address of the person or persons to be contacted for the payment of royalties, the provision of information pursuant to this tariff, and any inquiries related thereto.

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

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

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

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

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

11. At any time during the period set out in subsection 12(1), CMRRA may require the production of any contract granting rights referred to in paragraph (c) of the definition of "gross income," together with the billing or correspondence relating to the use of those rights by other parties, and CBC shall provide that information within 10 days after receiving a request in writing from CMRRA.

Records and Audits

12. (1) CBC shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in sections 8, 9, 10, and 11, any other information that must be provided under this tariff, and the amounts owed under this tariff, can be readily ascertained.

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

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

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

Breach and Termination

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

(2) If CBC fails to comply with any other provision of this tariff, it will not be entitled to do any of the acts described in section 3 as of five business days after CMRRA has notified CBC in writing of that failure and until CBC remedies that failure.

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

Confidentiality

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

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

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

Adjustments

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

Interest

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

Addresses for Notices, etc.

17. (1) Anything that CBC sends to CMRRA shall be sent to 56 Wellesley Street West, Toronto, Ontario M5S 2S3, email: tariffnotices@cmrra.ca, fax number: 416-926-7521, or to any other address, email address or fax number of which CBC has been notified in writing.

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

Delivery of Notices and Payments

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

(2) Information provided pursuant to sections 8, 9, and 10 shall be provided electronically, in a format agreed upon by CMRRA and CBC.

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

(4) A notice sent by fax, by email, or by FTP shall be presumed to have been received the day it was transmitted.

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