COPYRIGHT BOARD

COPYRIGHT BOARD

FILE: Educational Rights 1999-2002

Statement of Proposed Royalties to Be Collected from Educational Institutions in Canada, for the Reproduction and Performance of Works or Other Subject-Matters Communicated to the Public by Telecommunication

In accordance with subsection 72(1) of the Copyright Act, the Copyright Board publishes the statement of royalties filed by the Educational Rights Collective of Canada (ERCC) on March 31, 1998, with respect to royalties that it proposes to collect, effective on January 1, 1999, from educational institutions in Canada, for the reproduction and performance of works or other subject-matters that have been communicated to the public by telecommunication.

And in accordance with the provisions of the same subsection, the Board hereby gives notice that educational institutions or their representatives, who wish to object to the statement 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 12, 1998.

Ottawa, June 13, 1998

CLAUDE MAJEAU
Secretary to the Board
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
(613) 952-8621 (Telephone)
(613) 952-8630 (Facsimile)

STATEMENT OF ROYALTIES WHICH MAY BE COLLECTED BY THE EDUCATIONAL RIGHTS COLLECTIVE OF CANADA (ERCC)

for the reproduction and performance of works or other subject-matter that have been communicated to the public by telecommunication, by educational institutions or persons acting under their authority, during the calendar years 1999, 2000, 2001 and 2002.

Short Title

1. This tariff may be cited as the Educational Rights Tariff, 1999-2002.

Definitions

2. Except where otherwise specified, all expressions used in this tariff shall have the same meaning as under the Copyright Act, as amended.

3. "Educational institution" has the meaning attributed to it in section 2 of the Copyright Act, which reads:

"Educational institution" means:

(a) a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education,

(b) a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training,

(c) a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraphs (a) or (b), or

(d) any other non-profit institution prescribed by regulation;"

4. "Specified conditions" means when an act is done on the premises of an educational institution for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution or any person who is directly responsible for setting a curriculum for the educational institution.

Application

5. Except in respect of the acts described in section 6, this tariff applies to the following acts when done by an educational institution or a person acting under its authority:

(a) the making of a single copy, for educational or training purposes, of a work or other subject-matter at the time that it is communicated to the public by telecommunication, and

(b) the performance of that copy in public for educational or training purposes on the premises of the educational institution before an audience consisting primarily of students of the educational institution.

6. No royalty is payable under this tariff for the following acts when done by an educational institution or a person acting under its authority in compliance with the applicable provisions of the Copyright Act:

(a) the performance in public under the specified conditions of a sound recording or of a work or performer's performance that is embodied in a sound recording;

(b) the performance in public under the specified conditions of a work or other subject-matter at the time of its communication to the public by telecommunication;

(c) the making of a single copy, for educational or training purposes, of a news program or of a news commentary program, excluding documentaries, provided such copy is destroyed within the expiration of one year after making such copy;

(d) the performance of the copy made under section 6(c) at any time or times within one year after the making of that copy, before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes; and

(e) the making of a single copy of a work or other subject-matter at the time that it is communicated to the public by telecommunication, provided that the copy is destroyed within 30 days thereof, and is not performed in public.

THE TARIFF

Alternative Tariff Arrangements

7. For all or part of a calendar year, an educational institution may elect to operate either under a comprehensive tariff, described in sections 8 to 11 below, or under a transactional tariff, described in sections 12 to 16 below.

Comprehensive Tariff

8. If an educational institution elects to operate under the comprehensive tariff in any calendar year, it shall pay the annual royalties stipulated in section 9.

9. (1) Subject to subsection (2), an educational institution electing to operate under the comprehensive tariff shall pay an annual royalty for each student enrolled in or otherwise receiving education from such institution, of $2.50 for each student receiving pre-school, elementary or secondary education from such institution, and $5.00 for each other student receiving education from such institution.

(2) As a transitional adjustment, the royalty payable under subsection (1) shall be reduced by 40 per cent for the calendar year 1999, by 20 per cent for the calendar year 2000, and by 10 per cent for the calendar year 2001.

(3) An educational institution that commences operation under this tariff after the beginning of a calendar year may pro-rate the royalties for that year to the number of days remaining in that calendar year.

(4) For the purposes of subsection (3), operation is commenced under this tariff within a calendar year on the earlier of

(a) the first day that a copy of a work or other subject-matter was made under section 5(a), and

(b) the first day of that year if a copy of a work or other subject-matter made under either the comprehensive tariff or the transactional tariff in a previous calendar year was not destroyed on or before December 31 of that previous year, and such copy was otherwise required to be destroyed under the Copyright Act or hereunder.

(5) For the purposes of subsection (1), the calculation of the number of students shall be based on the number of students enrolled in or otherwise receiving education from such institution as of December 31 of the previous calendar year.

10. It is a condition of this comprehensive tariff that on or before December 31 of the calendar year in which the educational institution operates under this tariff all copies of a work or other subject-matter which were made pursuant to this tariff shall be destroyed, provided that this shall not apply so long as the educational institution elects to continue to operate under the comprehensive tariff in the following calendar year.

11. Payment of the royalty stipulated in section 9 and compliance with all other requirements of this tariff and with the Copyright Act shall entitle the educational institution or any persons acting under its authority to carry on the acts described in section 5(a) and (b) with respect to any number of works or other subject-matter and on as many occasions as desired in the calendar year for which the royalty is paid.

Transactional Tariff

12. If an educational institution elects to operate under the transactional tariff in any calendar year, it shall pay the royalties stipulated in sections 13 and 15.

13. An educational institution electing to operate under the transactional tariff shall pay a royalty for each copy of a work or other subject-matter made in a calendar year:

(a) where the copy is of a work or other subject-matter communicated to the public by a radio signal, a royalty of $10 for each 30 minutes or part thereof;

(b) where the copy is of a work or other subject-matter communicated to the public by a television signal, a royalty of $60 for each 15 minutes or part thereof.

14. Payment of the royalty stipulated in section 13 and compliance with all other requirements of this tariff and with the Copyright Act shall entitle the educational institution or any persons acting under its authority to make one copy of the work or other subject-matter and to perform that copy in public once only, in the circumstances described in section 5(b).

15. Should an educational institution desire to perform the copy in public more than once, the royalty for each such additional performance shall be 80 per cent of the royalty applicable under section 13, and payment of such royalty and compliance with all other requirements of this tariff and with the Copyright Act shall entitle the educational institution or any person acting under its authority to make such additional performance, in the circumstances described in section 5(b).

16. It is a condition of this transactional tariff that on or before the twelfth calendar month after the date that the copy would have had to have been destroyed but for this tariff, such copy shall be destroyed, provided that this shall not apply if the educational institution by that time elects to operate under the comprehensive tariff, in which case such copy may be treated as if it had been made thereunder.

General

17. All royalties payable under these tariffs are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

ADMINISTRATIVE PROVISIONS

Payment of Royalties

18. (1) Payment of royalties under the comprehensive tariff shall be made to ERCC no later than the end of the first month of each calendar year within which an educational institution has commenced operation under such tariff, and the educational institution or the person responsible for the payment of its royalties shall pay to ERCC at that time the royalties owing for the calendar year.

(2) Payment of royalties under the transactional tariff shall be made to ERCC no later than the end of each month following the month within which an educational institution has made a single copy under such tariff, or makes a second or subsequent performance of the copy in public.

Registration

19. On the first occasion that an educational institution pays royalties to ERCC hereunder, it shall provide its name and address for purposes of notice, the number of students enrolled in or otherwise receiving education from such institution as of the previous December 31 that were receiving pre-school, elementary or secondary education, the number of other students enrolled in or otherwise receiving education from such institution as of the previous December 31, and such other information concerning the institution as may be reasonably required by ERCC using such forms as may be prescribed by ERCC from time to time, and such information shall be updated in each calendar year that the institution avails itself of this tariff.

Accounts and Records

20. The educational institution or the person responsible for the payment of its royalties shall keep all accounts and records from which ERCC can readily ascertain the royalties payable and the information required under this tariff in accordance with generally accepted accounting practices and for a period of six (6) years of the end of the year to which they relate. During such period, ERCC may audit such accounts and records itself or through a designated representative, on reasonable notice and during normal business hours. Should any audit disclose that royalties paid to ERCC were understated by more than five per cent (5%), the person responsible for the payment of the royalties shall pay the reasonable costs of audit within thirty (30) days of the demand for such payment.

Reporting Requirements

21. At the time royalties are paid pursuant to section 18, every educational institution availing itself of this tariff shall provide ERCC with the following information for each copy made, using such forms as may be prescribed by ERCC from time to time:

(a) the name and address of the institution;

(b) the name of the person making the copy;

(c) the series and program title of the program copied;

(d) the time and date of broadcast and the name or call signs of the broadcaster;

(e) the duration of the program in minutes;

(f) the duration of the program segment copied;

(g) the date the copy was performed in public;

(h) the date the copy was destroyed, if applicable; and

(i) such other information as ERCC may reasonably require.

22. In the case of an educational institution availing itself of the comprehensive tariff, ERCC may agree with that institution that certain information may be provided on a sample basis only, as an alternative to the reporting requirements otherwise applicable under section 21.

Adjustments

23. (1) Subject to subsection (2), adjustments in the amount of royalties owed by the educational institution or by the person responsible for the payment of the royalties (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.

(2) The educational institution or the person responsible for the payment of the royalties may deduct any amount owed to it from its next royalty payments until no money remains owed to it.

Interest on Late Payments

24. (1) Any amount not received by the due date shall bear interest from that date until the date the amount is received.

(2) Any amount found to be owing, through an audit or otherwise, shall bear interest from the date it was due until the date the amount is received.

(3) Any amount that cannot be delivered at the address referred to in section 26 shall bear interest from the date when the person owing the amount receives notice of the new address to which it should be delivered until the date the amount is received.

(4) Interest shall be calculated daily, at the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada) plus one per cent. Interest shall compound monthly.

Addresses for Notices, etc.

25. (1) Anything that the educational institution or the person responsible for the payment of the royalties sends to ERCC shall be sent to Suite 4700, Toronto-Dominion Bank Tower, Toronto, Ontario M5K 1E6, or to any other address of which the person responsible for the payment of the royalties has been notified.

(2) Anything that ERCC sends to the educational institution or the person responsible for the payment of the royalties shall be sent to the address provided to ERCC in accordance with section 19 or to any other address of which ERCC has been notified.

Delivery of Notices and Payments

26. (1) A notice may be delivered by hand, by postage paid mail, or by facsimile.

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

(3) A notice sent by facsimile shall be presumed to have been received the day it is transmitted.

27. (1) Any person that ERCC designates to receive a payment or notice shall have an address in Canada.

(2) ERCC shall notify the educational institution or the person responsible for the payment of the royalties at least 60 days in advance of such a designation or of any change therein.

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