Canada Gazette, Part I, Volume 158, Number 49: SUPPLEMENT 1

December 7, 2024

SUPPLEMENT 1 Vol. 158, No. 49

Canada Gazette

Part I

OTTAWA, Saturday, December 7, 2024

COPYRIGHT BOARD

Re:Sound Tariff 4 – Satellite Radio Services (2019-2021)

Citation: Re:Sound Tariff 4 (2019-2021), 2024 CB 10-T
See also: Re:Sound Tariff 4 (2019-2021), 2024 CB 10

Published pursuant to section 70.1 of the Copyright Act

Greg Gallo
Acting Secretary General

1‑833‑860‑7131 (toll-free number)
registry-greffe@cb-cda.gc.ca (email)

RE:SOUND TARIFF 4 – SATELLITE RADIO SERVICES (2019-2021)

Short Title

1. This tariff may be cited as Re:Sound Tariff 4 – Satellite Radio Services (2019-2021).

Definitions

2. In this tariff,

“month”

means a calendar month; (« mois »)

“number of subscribers”

means the average number of subscribers during the reference month; (« nombre d’abonnés »)

“reference month”

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

“service”

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

“service revenues”

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

“simulcast”

means the simultaneous communication of a satellite radio broadcast to which this tariff applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient is unable to exercise any 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 »)

“subscriber”

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

“year”

means a calendar year. (« année »)

Application

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

(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) For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet, a cellular, mobile or wireless network or any similar network, including simulcasts, but covers the use of wireless functionalities (such as a WiFi or Bluetooth functionality) integrated with a satellite radio receiving device that allows the relay of a satellite radio signal to local speakers for subscribers’ private use.

Royalties

4. (1) A service shall pay to Re:Sound for each month of the tariff term

• (a) for the period of January 1, 2019, to April 28, 2020, 3.63% of its service revenues for the reference month, subject to a minimum fee of 36¢ per subscriber;
• (b) for the period of April 29, 2020, to December 31, 2021, 3.71% of its service revenues for the reference month, subject to a minimum fee of 37¢ per subscriber;

(2) Royalties for the month of April 2020 shall be subject to adjustment on a pro rata basis.

(3) 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) No later than on the first day of each month of the tariff term, a service shall pay the royalties for that month as set out in Section 4 and shall provide for the reference month:

• (a) the total number of subscribers to the service; and
• (b) its service revenues, broken down into amounts paid by subscribers for the service, advertising revenues, sponsorship revenues and other revenues.

Sound Recording and Musical Work Use Information

6. (1) Each month, a service shall provide to Re:Sound the following information in respect of each sound recording embodying a musical work, or part thereof, broadcast by the service:

• (a) the date, time and duration of the broadcast of the sound recording;
• (b) the title of the sound recording and the name of its author and composer; and
• (c) the name of the main performer or performing group and if applicable, the album name and the record label.

Provided, however, that the service shall not be deemed to be in contravention of this subsection (1) for failure to report the complete information listed above for any given sound recording or parts thereof unless there were commercially reasonable means available to the service to obtain such information, and the unreported information exists with respect to the sound recording.

(2) In addition to the reporting required under subsection (1), where such information is available on a commercially reasonable basis to the service, the service shall also provide to Re:Sound the following information in respect of each sound recording embodying a musical work, or part thereof, broadcast by the service:

• (a) the catalogue number of the album;
• (b) the International Standard Musical Work Code (ISWC) of the work;
• (c) the Universal Product Code (UPC) of the album;
• (d) the International Standard Recording Code (ISRC) of the sound recording;
• (e) the names of all of the other performers (if applicable);
• (f) the duration of the musical work and sound recording as listed on the album, the track number on the album, and the year of the album and track:
• (g) the type of usage (feature, theme, background, etc.); and
• (h) whether the track is a published sound recording.

(3) The information set out in subsections (1) and (2) shall be provided electronically, in a format agreed upon by Re:Sound and the service, no later than 10 business days after the service receives the monthly music information report from its music information report supplier for a given month (in the case of Sirius XM Canada Inc., such supplier is Sirius XM Radio Inc.), and in any case no later than 45 days plus 10 business days after the end of a given month.

Records and Audits

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

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

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

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

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month by more than 10%, the service shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment, provided that the understatement has been shown by an audit report supplied to the service under subsection (4) and the audit costs are evidenced by an invoice issued by the auditor.

Confidentiality

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

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

• (a) with SOCAN;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Copyright Board, if the service that supplied the information had the opportunity to request a confidentiality order;
• (d) to the extent required to effect the distribution of royalties, with any other collective society, collecting body, royalty claimant, and their agents; and
• (e) if required by law.

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

Adjustments

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

Interest on Late Payments

10. Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to 1% 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.

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

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

Delivery of Notices and Payments

12. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer.

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

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

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