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 Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) on March 29, 2018, with respect to royalties it proposes to collect, for the reproduction of musical works embedded in music videos for their transmission by a service, in Canada, in 2019 (Tariff No. 6), for the reproduction of musical works embedded in audiovisual works for their transmission by a service, in Canada, in 2019 (Tariff No. 7), and for the reproduction of musical works by commercial television stations, in Canada, in 2019 (Tariff No. 8).

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 SODRAC FOR THE REPRODUCTION OF MUSICAL WORKS EMBEDDED IN MUSIC VIDEOS FOR THEIR TRANSMISSION BY A SERVICE, IN CANADA, FOR THE YEAR 2019

Short Title

1. This tariff may be cited as SODRAC Tariff No. 6, Reproduction of Musical Works Embedded in Music Videos for Transmission by a Service, 2019.

Definitions

2. In this tariff,

"authorized distributor" means any person who has entered into an agreement with a licensee permitting that person to distribute the service; (« distributeur autorisé »)

"download" means the receipt by an end-user of a file from a download service and making a reproduction thereof onto a storage device; (« téléchargement »)

"download service" means a service that transmits to end-users a file that is intended to be copied onto a storage device and results in a durable copy of that file; (« service de téléchargement »)

"end-user" means a person who accesses an online music service, whether the person pays a fee or provides other consideration for the service or uses the service free of charge; (« utilisateur final »)

"file" means a digital file of either an audio track or a music video; (« fichier »)

"free subscription" means the provision of free access to limited downloads or webcasts to a subscriber; (« abonnement gratuit »)

"gross revenue" means, in relation to an online music service, all revenues received by a licensee whether in cash, in kind, in barter or contra, including revenues received for use of the service, and revenues received for promotional activities, such as advertising, that are attributed to the operation of the service; (« revenus bruts »)

"hybrid webcast service" means a webcast service where the files transmitted to an end-user may also be copied onto a storage device for the purpose of listening to them later, and where the period for which such files are retained, or the number of files that may be so retained, or both, is limited, and established by the service; (« service de webdiffusion hybride »)

"identifier" means the unique identifier an online music service assigns to a file or bundle; (« identificateur »)

"interactive webcast service" means a webcast service where the files are chosen by the end-user and received at a place and time individually chosen by that person; (« service de webdiffusion interactive »)

"licensee" means a person that operates an online music service that is licensed under this tariff; (« titulaire de licence »)

"limited download service" means a download service where the downloaded files, through technological means, become unusable upon the happening of a certain event or events, such as the end of the end-user's subscription; (« service de téléchargement limité »)

"mixed bundle" means a bundle that contains at least one file containing an audio track and at least one file containing a music video; (« ensemble mixte »)

"music video" means an audiovisual representation of one or more musical works, including a concert; (« vidéo de musique »)

"non-interactive webcast service" means a webcast service where the end-user exercises no control over the content nor the timing of the transmission of the files; (« service de webdiffusion non interactive »)

"online music service" means a non-interactive webcast service, a semi-interactive webcast service, an interactive webcast service, a hybrid webcast service, a limited download service, or a permanent download service; (« service de musique en ligne »)

"permanent download service" means a download service, but does not include a limited download service; (« service de téléchargement permanent »)

"play" means the single performance of a file by an enduser; (« écoute »)

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

"repertoire" means the musical works for which SODRAC is entitled to grant a licence pursuant to section 3 of this tariff; (« répertoire »)

"semi-interactive webcast service" means a webcast service where the end-user exercises some level of control over the content of the files, or timing of the transmission of the files, or both; (« service de webdiffusion semi-interactive »)

"SODRAC" means SODRAC 2003 Inc. and Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc.; (« SODRAC »)

"subscriber" means a person who accesses an online music service, pursuant to a contract or otherwise, whether the person pays a fee or provides other consideration for the service or uses the service free of charge; (« abonné »)

"unique visitor" means each end-user, excluding a subscriber, who receives a free on-demand stream from a service in a month; (« visiteur unique »)

"webcast service" means a service that transmits files to end-users, where the files are intended to be copied by the end-user onto a storage device only to the extent required to allow listening or viewing the contents of the file at substantially the same time as when the file is received. (« service de webdiffusion »)

Application

3. (1) This tariff entitles an online music service that complies with this tariff, and its authorized distributors,

in connection with the operation of the online music service.

(2) For greater certainty, this tariff does not apply to activities subject to a licence in force between SODRAC and the Canadian Broadcasting Corporation / Société Radio-Canada or to activities subject to SODRAC Tariff No. 5 and SODRAC Tariff No. 7.

4. (1) This tariff does not authorize the reproduction of a musical work of the repertoire embedded in a music video in a medley, for the purpose of creating a mashup, for use as a sample or in association with a product, service, cause or institution.

(2) This tariff does not entitle the owner of the copyright in a sound recording of a musical work to authorize the reproduction of that work.

(3) This tariff does not authorize the production of a music video or the synchronization of a musical work in a music video. It authorizes only the transmission by any means whatsoever of existing music videos in which the musical work is already embedded.

Royalties Payables

Permanent and Limited Download Services

5. (1) The royalties payable by a licensee that operates a download service for music videos shall be 5.64 per cent of the amount paid by end-users for the downloads of music videos, multiplied by SODRAC's share in those works payable to SODRAC.

Subscription-Based Limited Download Service

(2) The royalties payable by a licensee that operates a limited download service with a subscription for music videos, with or without webcasting shall be,

(2) The royalties payable by a licensee that operates a limited download service with a subscription for music videos, with or without webcasting shall be,

where

Where a service does not report to SODRAC the number of plays of files as limited downloads, (B) will be deemed to equal either (a) the number of plays of the same music video as a webcast during the month, or (b) if the music video has not been played as a webcast during the month, the average number of plays of all music videos as webcast during the month.

Webcast

(3) The royalties payable in a month by a service that offers webcast but does not offer limited downloads shall be

(3) The royalties payable in a month by a service that offers webcast but does not offer limited downloads shall be

where

For clarity, if the service permits an end-user to copy files onto a local storage medium or device for later access, the service shall pay royalties pursuant to subsection (1), not pursuant to this subsection.

Free Subscription to a Webcast Service

(4) The royalties payable in a month by a service that offers a free webcast service shall be the lesser of 16.37¢ per unique visitor per month and 0.054¢ per free webcast requiring a SODRAC licence received by that unique visitor in that month.

(5) Where an online music service that is required to pay royalties under any of subsections (2) to (4) also offers downloads, the royalty payable by the service for each download requiring a SODRAC licence shall be 5.64 per cent of the amount paid by an end-user for the download, subject to a minimum of 2.6¢ per musical work in a music video that contains 19 musical works or more, per permanent download, and 8.04¢ per permanent download in all other cases.

Minimum Royalties

(6) The royalties payable by a licensee pursuant to subsection 5(1) shall be no less than $0.066 per music video containing only one musical work, and $0.026 per musical work in a music video containing two or more musical works, where both of these amounts are to be adjusted for the partial ownership of the musical works by SODRAC.

(7) The royalties payable by a licensee pursuant to subsection 5(2) shall be a minimum equal to the greater of

30.08¢ per subscriber; and

0.097¢ for each play of a file requiring a SODRAC licence.

(8) The royalties payable by a licensee pursuant to subsection 5(3) shall be a minimum equal to the greater of

16.37¢ per subscriber; and

0.054¢ for each play of a file requiring a SODRAC licence.

Mixed Bundles

(9) Where an end-user pays for a mixed bundle, the amount paid by the end-user for the files containing music videos in the bundle shall be deemed to be (a) the price of the bundle, multiplied by the price of the files containing the music videos when not sold in a bundle, divided by the sum of the prices of all files in the bundle when not sold in a bundle; or (b) when information required to calculate the amount in paragraph (a) is not available, the price of the bundle, multiplied by two, divided by the sum of the number of files containing audio tracks and two times the number of files containing a music video.

Adjustments

(10) For the purpose of calculating the minimum payable pursuant to subsection (2) and subsection (3), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

(11) All royalties payable under this tariff are exclusive of any bank fees and any federal, provincial or other governmental taxes or levies of any kind.

ADMINISTRATIVE PROVISIONS

Reporting Requirements

6. No later than the earlier of 20 days after the end of the first month during which a licensee, in connection with the operation of an online music service, communicates or reproduces a file requiring a SODRAC licence under this tariff, or authorizes another person to do the same, and in any event before the service first makes that file available to the public, the licensee shall provide to SODRAC the following information:

Music Use Report

Definition

7. (1) In this section, "required information" means, in respect of a file, where available

(1.1) For certainty, information is "available" under subsection (1) if it is in the possession or control of the licensee operating the relevant online music service, regardless of the form or the way in which it was obtained.

Permanent and Limited Download Services

(2) No later than 20 days after the end of each quarter, a service that is required to pay royalties pursuant to subsection 5(1) shall provide to SODRAC a report setting out, for that quarter, allocated by month, in relation to each file that was downloaded by an end-user,

Subscription-Based Limited Download and Webcast Service

(3) No later than 20 days after the end of each quarter, a service that is required to pay royalties pursuant to subsections 5(2) and 5(3) shall provide to SODRAC a report setting out, for that quarter, allocated by month,

Free Subscription to a Webcast Service

(4) No later than 20 days after the end of each quarter, an online music service that is required to pay royalties pursuant to subsection 5(4) shall provide to SODRAC a report setting out, for that quarter, allocated by month,

(5) An online music service that is required to pay royalties pursuant to more than one subsection of section 5 shall file a separate report pursuant to each subsection of this section.

(6) Whenever an online music service is required to report its gross revenue for a month, it shall include, separately — and in addition to any other information specifically required by the relevant subsection — the amount of revenue received from subscribers, the amount received from non-subscribers, the amount received from advertisers, the amount attributable to sponsorships, and the amounts received from each additional revenue source.

(7) Using the information received pursuant to subsections (1) to (4) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 5.

(8) An online music service shall provide the information set out in subsection (1) with respect to each otherwise identical music video if the musical content in each such work is different.

(9) If the information supplied pursuant to subsection (1) or (8) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire with the online music service, which will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including

8. (1) As soon as possible after receiving the information set out in section 7, SODRAC shall notify the online music service of those music videos that include a work for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the online music service a report setting out

(2) At least once each quarter, SODRAC shall provide a new report with respect to music videos for which the information set out in paragraph (1)(c) or (d) has changed.

9. Royalties payable pursuant to section 5 are due no later than six months after the quarter. If SODRAC does not provide the report under section 8 prior to the date where the payment is due, the payment of royalties for that quarter is deferred to the next quarter.

Repertoire Disputes

10. (1) A licensee that disputes the indication that a file contains a work in the repertoire or requires a SODRAC licence shall provide to SODRAC information that establishes why the licence is not required, unless the information was provided earlier.

(2) An online music service that disputes the indication more than 20 days after receiving a report pursuant to section 8 is not entitled to interest on the amounts owed to it.

Adjustments

11. (1) Updates to any information provided pursuant to sections 6, 7, 8 and 10 shall be provided with the next report dealing with such information.

(2) Subject to subsection (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.

(3) Any excess payment resulting from a licensee providing incorrect or incomplete information about a file shall be deducted from future amounts owed in respect of works owned by the same person as the work in the file.

Records and Audits

12. (1) A licensee shall keep and preserve, for a period of six years after the end of the month to which they relate, records from which the information set out in subsection 5(9), and sections 6, 7, and 10 can be readily ascertained.

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

(3) Subject to subsection (4), if an audit discloses that royalties due have been understated in any quarter by more than 10 per cent, the licensee shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

(4) For the purposes of subsection (3), any amount owing as a result of an error or omission on the part of SODRAC shall not be taken into account.

Confidentiality

13. (1) Subject to subsections (2) and (3), SODRAC and each licensee and authorized distributor shall treat in confidence information received pursuant to this tariff, unless the disclosing party consents in writing to the information being treated otherwise.

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

(3) Where confidential information is shared with a service provider as per paragraph 2(a), the service provider shall sign a confidentiality agreement, which shall be shared prior to the release of the information with the party whose information is to be disclosed, and shall not use any confidential information for any purpose other than to assist in the conduct of an audit or in the distribution of royalties to rights holders.

(4) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than the collectives, a licensee or their authorized distributors, and who is not under an apparent duty of confidentiality to the service.

Interests on Late Payments

14. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

(2) Any overpayment resulting from an error or omission on the part of SODRAC shall bear interest from the date of the overpayment until the overpayment is refunded.

(3) For the purposes of this section, a report provided pursuant to section 8 following the late reception of a report provided pursuant to section 7 is deemed to have been received within the time set out in section 8 as long as SODRAC provides the report no more than 20 days after receiving the late report.

(4) Any amount owing by an online music service as a result of an error or omission on the part of SODRAC shall not bear interest until 30 days after SODRAC has corrected the error or omission.

(5) 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.

Delivery of Notices and Payments

15. (1) Anything that an online music service sends to SODRAC pursuant to sections 6 and 7 shall be sent by email to audiovisual@sodrac.ca. Anything else that an online music service sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the online music service has been notified in writing.

(2) Anything that SODRAC sends to an online music service shall be sent to the last address, fax number or email address of which SODRAC has been notified in writing.

16. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email or by File Transfer Protocol (FTP).

(2) To the extent possible, information that an online music service provides pursuant to section 7 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the online music service. Each type of information shall be provided in a separate field.

(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 is transmitted.

Termination

17. (1) SODRAC may, after providing 30 days' notice in writing, terminate the licence of an online music service that does not comply with this tariff.

(2) Upon termination of the licence, an online music service shall immediately withdraw from the market all copies it owns that contain a work of the repertoire.

Term

18. This tariff comes into force on January 1, 2019, and ends on December 31, 2019.

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY SODRAC FOR THE REPRODUCTION OF MUSICAL WORKS EMBEDDED IN AN AUDIOVISUAL WORK FOR THEIR TRANSMISSION BY A SERVICE, IN CANADA, FOR THE YEAR 2019

Short Title

1. This tariff may be cited as SODRAC Tariff No. 7, Reproduction of Musical Works Embedded in Audiovisual Works for Transmission by a Service, 2019.

Definitions

2. In this tariff,

"audiovisual work" means a movie, television program or other cinematographic work irrespective of its initial intended use, but excludes a music video as defined in SODRAC Tariff No. 6; (« œuvre audiovisuelle »)

"bundle" means two or more digital files offered as a single product, if at least one file is a permanent download; (« ensemble »)

"cue sheet" means a report containing the following information: the title of the audiovisual work, the title of each of the musical works embedded into the audiovisual work, the name of the author and composer of each of the musical works, the duration of each of the musical works, and the total duration of the audiovisual work; (« rapport de contenu musical »)

"download" means a file intended to be copied onto an end-user's local storage medium or device; (« téléchargement »)

"file," except in the definition of "bundle," means a digital file of an audiovisual work embedding one or more musical works; (« fichier »)

"free on-demand stream" excludes an on-demand stream provided to a subscriber; (« transmission sur demande gratuite »)

"free subscription" means the provision of free access to limited downloads or on-demand streams to a subscriber; (« abonnement gratuit »)

"gross revenue" means the aggregate of (a) all revenues payable by or on behalf of end-users for access to streams or downloads delivered by a service or its authorized distributors, including membership, subscription and other access fees; (b) all other revenues payable to a service or its authorized distributors in respect of the service, including amounts paid for advertising, product placement, promotion and sponsorship, and commissions on third-party transactions; and (c) amounts equal to the value of the consideration received by a service or its authorized distributors pursuant to any contra and barter agreements related to the operation of the service; (« revenus bruts »)

"identifier" means the unique identifier a service assigns to a file or bundle; (« identificateur »)

"limited download" means a download that uses technology that causes the file to become unusable upon the happening of a certain event; (« téléchargement limité »)

"non-subscriber" means an end-user other than a subscriber, and includes an end-user who receives limited downloads or on-demand streams from a service subject to the requirement that advertising be viewed or listened to; (« non-abonné »)

"on-demand stream" means a stream selected by its recipient; (« transmission sur demande »)

"permanent download" means a download other than a limited download; (« téléchargement permanent »)

"play" means the single performance of a stream or a limited download; (« écoute »)

"repertoire" means the musical works for which SODRAC is entitled to grant a licence pursuant to section 3; (« répertoire »)

"semester" means from January 1 to June 30 and from July 1 to December 31; (« semestre »)

"service" means a service that delivers on-demand streams, limited downloads and permanent downloads of an audiovisual work to end-users, by any means whatsoever (e.g. online, cable, satellite); (« service »)

"SODRAC" means SODRAC 2003 Inc. and Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc.; (« SODRAC »)

"stream" means a file that is intended to be copied onto a local storage medium or device only to the extent required to allow listening to the file at substantially the same time as when the file is transmitted; (« transmission »)

"subscriber" means an end-user with whom a service or its authorized distributor has entered into a contract for service other than on a transactional per-download or per-stream basis, for a fee, or for other consideration, including pursuant to a free subscription; (« abonné »)

"unique visitor" means each end-user, excluding a subscriber, who receives a free on-demand stream from a service in a month. (« visiteur unique »)

Application

3. This tariff entitles a service that complies with this tariff, and its authorized distributors,

in connection with the operation of the service.

Restrictions

4. (1) This tariff only authorizes the reproduction of a musical work in association with the same images with which the musical work was embedded in the audiovisual work.

(2) For greater certainty, this tariff does not apply to activities subject to SODRAC Tariff No. 5, SODRAC Tariff No. 6 and SODRAC Tariff No. 8.

(3) This tariff does not authorize the production of an audiovisual work or the synchronization of a musical work in an audiovisual work. It authorizes only the transmission by any means whatsoever of an existing audiovisual work in which a musical work is already embedded.

Royalties

Permanent Downloads

5. (1) Subject to paragraph (6)(a), the royalties payable in a month by a service that offers permanent downloads requiring a SODRAC licence shall be the greater of paragraphs (1)(a) and (b):

Amount of music requiring a SODRAC licence Royalty per downloaded file
No more than 5 minutes 2.51¢
More than 5 and no more than 10 minutes 6.67¢
More than 10 and no more than 20 minutes 12.43¢
More than 20 and no more than 30 minutes 17.80¢
More than 30 and no more than 45 minutes 22.47¢
More than 45 and no more than 60 minutes 27.00¢

Limited Downloads

(2) The royalties payable in a month by a service that offers limited downloads requiring a SODRAC licence shall be the greater of paragraphs (2)(a) and (b):

Amount of music requiring a SODRAC licence Royalty per play
No more than 5 minutes 1.94¢
More than 5 and no more than 10 minutes 5.14¢
More than 10 and no more than 20 minutes 9.57¢
More than 20 and no more than 30 minutes 13.70¢
More than 30 and no more than 45 minutes 17.30¢
More than 45 and no more than 60 minutes 20.80¢

On-Demand Streams

(3) The royalties payable in a month by a service that offers on-demand streams but does not offer limited downloads shall be the greater of paragraphs (3)(a) and (b):

Amount of music requiring a SODRAC licence Royalty per play
No more than 5 minutes 1.36¢
More than 5 and no more than 10 minutes 3.60¢
More than 10 and no more than 20 minutes 6.71¢
More than 20 and no more than 30 minutes 9.61¢
More than 30 and no more than 45 minutes 12.13¢
More than 45 and no more than 60 minutes 14.59¢

For clarity, if the service permits an end-user to copy files onto a local storage medium or device for later access, the service shall pay royalties pursuant to subparagraph (2)(a)(i) or paragraph (2)(b), not pursuant to this subsection.

Free On-Demand Streams

(4) Subject to paragraph (6)(a), the royalties payable for free on-demand streams shall be the lesser of 7.95¢ per unique visitor per month and 0.054¢ per free on-demand stream requiring a SODRAC licence received by that unique visitor in that month.

(5) Subject to paragraph (6)(a), where a service that is required to pay royalties under any of subsections (2) to (4) also offers permanent downloads, the service is required to pay royalties under subsection (1).

Adjustments

(6) Where SODRAC does not hold all the rights in a musical work,

(7) For the purpose of calculating the minimum payable pursuant to subparagraph (2)(a)(ii) and paragraph (3)(a), the number of subscribers shall be determined as at the end of the month in respect of which the royalties are payable.

(8) All royalties payable under this tariff are exclusive of any bank fees and any federal, provincial or other governmental taxes or levies of any kind.

ADMINISTRATIVE PROVISIONS

Reporting Requirements

6. No later than the earlier of 20 days after the end of the first month during which a service reproduces a file requiring a SODRAC licence and the day before the service first makes such a file available to the public, the service shall provide to SODRAC the following information:

Sales Reports

7. (1) In this section, "required information" means, in respect of a file,

Permanent and Transactional Limited Downloads

(2) No later than 20 days after the end of each semester, any service that is required to pay royalties pursuant to subsection 5(1), subparagraph 5(2)(a)(i) or paragraph 5(2)(b) shall provide to SODRAC a report setting out, for that semester, allocated by month,

Subscription-Based Limited Downloads and On-Demand Streams

(3) No later than 20 days after the end of each semester, any service that is required to pay royalties pursuant to subparagraph 5(2)(a)(ii), paragraph 5(2)(b) and subsection 5(3) shall provide to SODRAC a report setting out, for that semester, allocated by month,

Free On-Demand Streams

(4) No later than 20 days after the end of each semester, a service that is required to pay royalties pursuant to subsection 5(4) shall provide to SODRAC a report setting out, for that semester, allocated by month,

(5) A service that is required to pay royalties pursuant to more than one subsection of section 5 shall file a separate report pursuant to each subsection of this section.

(6) Whenever a service is required to report its gross revenue for a month, it shall include, separately — and in addition to any other information specifically required by the relevant subsection — the amount of revenue received from subscribers, the amount received from non-subscribers, the amount received from advertisers, the amount attributable to sponsorships, and the amounts received from each additional revenue source.

(7) Using the information received pursuant to subsections (1) to (4) and any other information at its disposal, SODRAC shall make reasonable efforts to determine the information required to calculate and distribute the royalties payable pursuant to section 5.

(8) A service that does not supply a musical cue sheet pursuant to paragraph (1)(b) shall collaborate with SODRAC if SODRAC attempts to secure the cue sheet from anyone, including the producer of the audiovisual work. If SODRAC does not receive the cue sheet despite such collaboration, the service shall provide to SODRAC, if available,

(9) A service shall provide the information set out in subsection (1) or (8) with respect to each otherwise identical audiovisual work if the musical content in each such work is different.

(10) If the information supplied pursuant to subsection (1), (8) or (9) does not allow SODRAC to reasonably proceed to the distribution of royalties, SODRAC, after first conducting its own reasonable search, may further inquire with the service, which will make reasonable efforts to supply any further, relevant information to assist SODRAC in its royalty distribution, including

8. (1) As soon as possible after receiving the information set out in section 7, SODRAC shall notify the service of those audiovisual works that include a work for which a SODRAC licence is required. With respect to such works, SODRAC shall also provide to the service a report setting out

(2) At least once each semester, SODRAC shall provide a new report with respect to audiovisual works for which the information set out in paragraph (1)(c) or (d) has changed.

9. Royalties payable pursuant to section 5 are due no later than six months after the semester. If SODRAC does not provide the report under section 8 prior to the date where the payment is due, the payment of royalties for that semester is deferred to the next semester.

Repertoire Disputes

10. (1) A service that disputes the indication in a report received pursuant to section 8 that a file contains a musical work requiring a SODRAC licence shall provide to SODRAC the information on which the service relies to conclude that the licence is not required, unless the information was provided earlier.

(2) A service that disputes the indication more than 20 days after receiving a report pursuant to section 8 is not entitled to interest on the amounts owed to it.

Records and Audits

11. (1) A service and SODRAC shall keep and preserve, for a period of four years after the end of the semester to which they relate, records from which the information set out in sections 7 and 8 can be ascertained.

(2) SODRAC may audit these records at any time during the period set out in subsection (1) on notice of 10 business days and during normal business hours.

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

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

Confidentiality

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

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

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

Adjustments

13. 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.

Interests on Late Payments

14. (1) Subject to subsection (4), any amount not received by the due date shall bear interest from that date until the date the amount is received.

(2) Any overpayment resulting from an error or omission on the part of SODRAC shall bear interest from the date of the overpayment until the overpayment is refunded.

(3) For the purposes of this section, a report provided pursuant to section 8 following the late reception of a report provided pursuant to section 7 is deemed to have been received within the time set out in section 8, as long as SODRAC provides the report no more than 20 days after receiving the late report.

(4) Any amount owing by a service as a result of an error or omission on the part of SODRAC shall not bear interest until 30 days after SODRAC has corrected the error or omission.

(5) 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.

Delivery of Notices and Payments

15. (1) Anything that a service sends to SODRAC pursuant to sections 6 and 7 shall be sent by email to audiovisual@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the service has been notified in writing.

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

16. (1) Subject to subsection (2), a notice may be delivered by hand, by postage-paid mail, by fax, by email or by File Transfer Protocol (FTP).

(2) To the extent possible, information that a service provides pursuant to section 7 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the service. Each type of information shall be provided in a separate field.

(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 is transmitted.

Termination

17. (1) SODRAC may, after providing 30 days' notice in writing, terminate the licence of a service that does not comply with this tariff.

(2) Upon termination of the licence, a service shall immediately withdraw from the market all files that contain a musical work of the repertoire.

Term

18. This tariff comes into force on January 1, 2019, and ends on December 31, 2019.

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

Short Title

1. This tariff may be cited as the SODRAC Tariff No. 8, Commercial Television Tariff, 2019.

Definitions

2. The following definitions apply in this tariff.

"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 in which a work of the repertoire is already embedded, but including any simulcast. (« radiodiffusion »)

"cue sheet" means a report containing the following information: the title of the audiovisual work, the title of each of the musical works embedded into the audiovisual work, the name of the author and composer of each of the musical works, the duration of each of the musical works, the duration of the audiovisual work. (« rapport de contenu musical »)

"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 »)

"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 is intended to inform, enlighten, or entertain, excluding an advertisement. (« émission »)

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

"repertoire" means the musical works for which SODRAC is entitled to grant a licence pursuant to section 3. (« répertoire »)

"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 »)

"SODRAC" means Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. and SODRAC 2003 Inc., acting jointly and severally. (« SODRAC »)

"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 work of the repertoire already embedded 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)(b) and (c) shall be limited to the work of the repertoire already embedded in the program, including the associated visual images.

(4) This tariff does not authorize

(5) This tariff does not apply where there is an agreement between SODRAC and a person authorized to do the acts referred to therein, if the agreement is in effect during the period of the approved tariff.

Royalties

4. (1) The royalties payable to SODRAC for a month shall be 0.66 per cent of the station's gross income for the reference month, adjusted in accordance with the use of SODRAC's repertoire, as a percentage of the music played.

(2) If a program contains at least one musical work and the station provides or has provided SODRAC with documentation establishing that the rights referred to in subsection 3(1) have been cleared with respect to all the musical works embedded into the program, the station is entitled, with respect to that program, to a discount of

where

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 SODRAC licence, the station shall provide to SODRAC 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 SODRAC 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 SODRAC in any attempt by SODRAC 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 SODRAC 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), SODRAC 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 SODRAC.

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) SODRAC may audit these records at any time during the period set out in subsection (1), during normal business hours and on notice of 10 business days.

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

(4) If an audit discloses that royalties due to SODRAC 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 SODRAC 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 Actor 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), SODRAC shall treat in confidence information received pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

(2) SODRAC 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 a 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 SODRAC interest calculated on the amount owed from the due date until the date both the amount and the information are received by SODRAC. 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 SODRAC a late fee of $50.00 per day from the due date until the date the information is received by SODRAC.

Delivery of Notices and Payments

17. (1) Anything that a service sends to SODRAC pursuant to sections 8 to 10 shall be sent by email to audiovisual@sodrac.ca. Anything else that a distributor sends to SODRAC shall be sent to 1470 Peel Street, Tower B, Suite 1010, Montréal, Quebec H3A 1T1, Attn.: Director, Licensing and Legal Services, email: licences@sodrac.ca, fax number: 514-845-3401, or to any other address of which the service has been notified in writing.

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

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 SODRAC and the station.

(2) To the extent possible, information that a service provides pursuant to sections 8 to 10 shall be delivered electronically, in Excel format or in any other format agreed upon by SODRAC and the service. Each type of information shall be provided in a separate field.

(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.

Term

19. This tariff comes into force on January 1, 2019, and ends on December 31, 2019.