Supplement, Vol. 136, No. 10 — March 9, 2002

COPYRIGHT BOARD

FILE: Private Copying 2003-2004

Statement of Proposed Levies to Be Collected for the Sale, in Canada, of Blank Audio Recording Media

Pursuant to subsection 83(6) of the Copyright Act, the Copyright Board hereby publishes the statement filed by the Canadian Private Copying Collective (CPCC) on February 11, 2002, with respect to the levies it proposes to collect, effective January 1, 2003, for the sale, in Canada, of blank audio recording media.

In accordance with the provisions of the same subsection, the Board hereby gives notice that any person who wishes to object to the statement may file written objections with the Board, at the address indicated below, within 60 days of the publication of this notice, that is, no later than May 8, 2002.

Objections that do not conform to the directions set out in this notice will be dealt with as letters of comments; the person filing them will not be considered as a formal objector.

Objections must briefly state the reasons therefor, and must indicate the name, address, telephone number, facsimile number and electronic mail address of the objector. The objection must also contain the following declarations:

I intend to participate actively to the process leading to the certification of the private copying tariff. Consequently, this constitutes my formal objection to the proposed statement filed by CPCC.

I have read the information set out in the Board's notice published in the Canada Gazette on March 9, 2002 with CPCC's proposed statement. I understand the duties that I undertake as an objector and intend to abide by them.

Objections must also state if the objector intends to participate in the pre-hearing conference to be held on Thursday, May 23, 2002 at 10:00 a.m., the object of which is set out below.

Where possible, the Board asks that all comments and objections be sent by electronic mail.

Ottawa, March 9, 2002

CLAUDE MAJEAU
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
(613) 952-8621 (Telephone)
(613) 952-8630 (Facsimile)
majeau.claude@cb-cda.gc.ca (Electronic mail)

NOTICE

Notice to the attention of those who contemplate filing formal objections or letters of comments on the proposed statement filed by CPCC

Pursuant to the Copyright Act, anyone can object to a proposed statement filed in a private copying matter. There are however at least two ways in which you may let the Board and CPCC know how you feel about the proposed tariff.

(1) You can file written comments at any time between now and the date the Board will set for hearing final arguments. This is the most convenient way to proceed if all you wish to do is to state your point of view. If you file a letter of comment, it will be part of the record of the proceedings. CPCC will receive a copy of it and the Board will take it into account when making a final decision.

(2) You can also file a formal objection. This form of participation requires that you abide by certain rules. You will enjoy a certain number of rights, and will undertake a certain number of duties. You will be required to file a written statement of case opposing the proposed tariff and to provide any evidence in support thereof. You will be entitled to receive a copy of every document filed with the Board in these proceedings and will be expected to provide copies of the documents that you file with the Board to all other participants. You will be allowed to ask questions and obtain information from other participants and be expected to answer questions and provide information to them. You will be allowed, but not required, to appear before the Board at a public hearing to present evidence and ask questions from witnesses.

Here are a few comments on some of the more important stages of the process. You can find out more by consulting the model directive on procedure typically used by the Board, which is at: www.cb-cda.gc.ca/new-eng.html (see "Model Directive" under the heading Private Copying 2003-2004). The Board will issue the actual directive for these proceedings in due course.

Pre-Hearing Conferences

Pre-hearing conferences are held to help the Board and participants focus on the real issues to be addressed. They also allow to set timetables and settle a variety of preliminary issues.

A first pre-hearing conference will be held on Thursday, May 23, 2002 at 10:00 a.m. at the offices of the Board. The issues to be addressed at that conference include a timetable for the proceedings, possible consolidation of objections and any other matter of relevance that may be suggested by participants or identified by the Board.

Other pre-hearing conferences will be held if necessary.

Those who file a formal objection must let the Board know at the same time if they intend to participate in the pre-hearing conference of May 23, 2002. Those who do not attend will nevertheless be required to comply with the timetable and other directions that will be set at that conference.

Preliminary Statement of Positions

In this matter, the Board wishes to learn as soon as possible the preliminary arguments of participants. For this reason, the Board has asked that CPCC file a preliminary statement of its position which will be available on Tuesday, March 19, 2002 on the Board's Web site at: www.cb-cda.gc.ca/new-eng.html (see "CPCC's Position" under the heading Private Copying 2003-2004). Reading this statement before you file any objections or comments will help ensure that they are relevant.

Any formal objection must briefly state the reasons therefor. You will be asked to file a more detailed preliminary statement of position at a later date, which will be set at the pre-hearing conference of May 23, 2002.

Interrogatories

The interrogatory process in a Copyright Board proceeding is akin to the discovery or deposition process in a normal lawsuit. As an objector, you will be allowed to obtain relevant information or documentation in the possession of other parties which you believe will assist your case before the Board. You will then be allowed to make that information part of the record for purposes of the proceedings, thereby allowing you to rely on it in support of your arguments.

No one is required to address interrogatories to the other participants. However, an objector who receives a request must provide an answer to the party who made the request by the date set by the Board for that purpose.

Statement of Case

A participant's statement of case sets out the arguments he/she intends to rely upon as well as the evidence he/she intends to provide at the hearing. It should include witness statements (summaries of what the party's witnesses will say at the hearing), expert reports and any other documentary evidence upon which the party intends to rely. In this proceeding, CPCC will be asked to file its statement of case first. Other parties will then file their statements of case in response to CPCC's. Finally, CPCC will be allowed to reply to the objectors' statements of case.

The Hearing

The hearing will take place in Ottawa after the filing of CPCC's reply case. The duration will depend on the number of parties in attendance, the number of witnesses to be heard, and the complexity of the evidence.

Final Arguments

Once the evidence is presented at the hearing and the record of the proceeding is closed, parties are given an opportunity to prepare and deliver arguments in support of their respective positions, using evidence filed at the hearing or based on any legal or public policy argument.

The Need to Comply With the Timetable Set by the Board

Anyone contemplating filing a formal objection must realize how important it is to comply with the timetable and other requirements set by the Board. Those who do not comply with these requirements will lose their status as objectors.

Limitations on the Powers of the Board

Anyone contemplating objecting to CPCC's proposed statement must realize that the Copyright Act sets out a number of limits on what the Board may or may not do. No purpose is served by objecting to the proposed statement based on grounds about which the Board can do nothing. In the following paragraphs, we summarize some of the limits imposed on the Board's powers in this matter:

(1) The Board must certify a tariff and set a levy. Those who own the rights to sound recordings of musical works (composers, authors, performers and producers) are entitled to be remunerated for private copies. No purpose is served by asking the Board to reject the tariff as a whole.

(2) Only persons who own rights in sound recordings of musical works are entitled to share in the remuneration; owners of rights in other works (computer programs, movies, literary works) are not.

(3) The remuneration must be paid by manufacturers and importers of blank audio recording media, in the form of a levy to be imposed on those media. The obligation to pay arises when the media are sold or otherwise disposed of in Canada by the manufacturer or importer. The Board cannot set the levy at the retail level.

(4) The levy is payable on all media that qualify, without regard to end use. No purpose is served by asking that the tariff include a mechanism that would allow those who can prove that they use qualifying media for purposes other than reproducing musical works to be exempted from payment or to receive a refund.

(5) The Copyright Act exempts from the levy recording media that are sold to a society, association or corporation that represents persons with perceptual disabilities. The Copyright Board cannot grant any other exemption.

TARIFF OF LEVIES TO BE COLLECTED BY CPCC IN 2003 AND 2004 FOR THE SALE OF BLANK AUDIO RECORDING MEDIA, IN CANADA, IN RESPECT OF THE REPRODUCTION FOR PRIVATE USE OF MUSICAL WORKS EMBODIED IN SOUND RECORDINGS, OF PERFORMER'S PERFORMANCES OF SUCH WORKS AND OF SOUND RECORDINGS IN WHICH SUCH WORKS AND PERFORMANCES ARE EMBODIED

Notes (these notes are not part of the tariff)

(1) Pursuant to Part VIII of the Copyright Act, every person who, for the purpose of trade, manufactures a blank audio recording medium in Canada or imports such a medium into Canada is liable to pay a levy on selling or otherwise disposing of that medium in Canada, unless the medium is destined for export or unless it is sold to a society, association or corporation that represents persons with a perceptual disability. This tariff sets the levy as well as the related terms and conditions. It also determines the collecting body to whom the levy is paid and how that body will share the levy among collective societies representing eligible rights owners.

(2) Under certain terms and conditions, CPCC may waive the levy on sales to certain persons or organizations. These include religious organizations, broadcasters, law enforcement agencies, courts, tribunals, court reporters, provincial ministers of education and members of the Association of Universities and Colleges of Canada, music and advertising industries. This waiver applies only to audiocassettes, CD-R Audio, CD-RW Audio and MiniDiscs. Those interested in finding out more about the terms and conditions of the zero-rating scheme may contact CPCC at the address indicated in subsection 13(1) of this statement or may consult CPCC's Web site at: www.cpcc.ca.

Short title

1. This tariff may be cited as the Private Copying Tariff, 2003-2004.

Definitions

2. In this tariff,

"accounting period" means the first two months of a calendar year, and each subsequent period of two months; (période comptable)

"Act" means the Copyright Act; (Loi)

"blank audio recording medium" means

(a) a recording medium, regardless of its material form, onto which a sound recording may be reproduced, that is of a kind ordinarily used by individual consumers for that purpose and on which no sounds have ever been fixed, including

(i) audio cassettes (1/8 inch tape) of 40 minutes or more in length;
(ii) recordable compact discs (CD-R, CD-RW, CD-R Audio, CD-RW Audio or any other type of recordable or rewritable compact disc) of 100 megabytes or more of storage capacity;
(iii) MiniDiscs;
(iv) Removable electronic memory cards, removable flash memory storage media of any type, and removable micro-hard drives (Microdrive and any similar removable hard drive);
(v) Recordable digital versatile discs (DVD-R, DVD-RW, DVD+RW, DVD-RAM or any other type of recordable or rewritable DVD);
(vi) Non-removable electronic memory cards or non-removable flash memory storage media of any type incorporated into an MP3 player or into any similar device with internal electronic or flash memory that is intended for use primarily to record and play music;
(vii) Non-removable hard drives incorporated into an MP3 player or into any similar device with an internal hard drive that is intended for use primarily to record and play music; and

(b) any medium prescribed by regulations pursuant to sections 79 and 87 of the Act (support audio vierge)

"CPCC" means the Canadian Private Copying Collective; (SCPCP)

"importer" means a person who, for the purpose of trade, imports a blank audio recording medium in Canada; (importateur)

"manufacturer" means a person who, for the purpose of trade, manufactures a blank audio recording medium in Canada, and includes a person who assembles such a medium; (fabricant)

"semester" means from January to June or from July to December. (semestre)

SUBSTANTIVE PROVISIONS

Levy

3. (1) Subject to subsection (2), the levy shall be

(a) 60¢ for each audio cassette of 40 minutes or more in length;

(b) 59¢ for each CD-R, CD-RW or each unit of any other type of recordable or rewritable compact disc of 100 megabytes or more of storage capacity;

(c) $1.23 for each CD-R Audio, CD-RW Audio or MiniDisc;

(d) 0.8¢ for each megabyte of memory in each removable electronic memory card, each removable flash memory storage medium of any type, or each removable micro-hard drive;

(e) $2.27 for each DVD-R, DVD-RW, DVD+RW, DVD-RAM or each unit of any other type of recordable or rewritable DVD;

(f) 2.1¢ for each megabyte of memory in each non-removable electronic memory card or each non-removable flash memory storage medium of any type incorporated into each MP3 player or into each similar device with internal electronic or flash memory that is intended for use primarily to record and play music;

(g) $21 for each gigabyte of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music.

(2) Pursuant to subsections 82(2) and 86(1) of the Act, no levy is payable

(i) in respect of a sale or other disposition of a medium that is to be exported from Canada and is so exported, or
(ii) on a medium that is sold or otherwise disposed of to a society, association or corporation that represents persons with a perceptual disability.

Collecting Body

4. CPCC is the collecting body designated pursuant to paragraph 83(8)(d) of the Act.

Apportionment of Levy

5. CPCC shall distribute the amounts it collects, less its operating costs, in accordance with the Copyright Board's decision, pursuant to section 84 of the Act.

Taxes

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

ADMINISTRATIVE PROVISIONS

Payments

7. (1) Subject to subsection (2), the levy for a blank audio recording medium sold or otherwise disposed of in any given accounting period shall be due no later than the last day of the month following that accounting period.

(2) Any manufacturer or importer who paid less than $2,000 in the previous semester may opt to make payments every semester after having so notified CPCC. The payment is then due on the last day of the month following that semester.

Reporting Requirements

8. Every manufacturer or importer shall provide to CPCC the following information with each payment:

(a) its name, that is,

(i) the name of a corporation and a mention of its jurisdiction of incorporation,
(ii) the name of the proprietor of an individual proprietorship, or
(iii) the names of the principal officers of all manufacturers or importers,

together with any trade name (other than the above) under which it carries on business;

(b) the address of its principal place of business;

(c) its address, telephone number, telecopier number and e-mail address for the purposes of notice;

(d) the number of units of each type of blank audio recording medium on account of which the payment is being made. The "type of blank audio recording medium" which must be disclosed to CPCC refers to the type, brand name and recording capacity of the blank audio recording medium, as well as to any other characteristics according to which it is sold by the reporter or identified in its inventory;

(e) the number of units of each type of blank audio recording medium exported, and the number of units of each type of blank audio recording medium sold or otherwise disposed of to a society, association or corporation that represents persons with a perceptual disability.

Accounts and Records

9. (1) Every manufacturer or importer shall keep and preserve for a period of six years, records from which CPCC can readily ascertain the amounts payable and the information required under this tariff.

(2) CPCC may audit these records at any time on reasonable notice and during normal business hours.

(3) If an audit discloses that the amounts due to CPCC have been understated by more than ten per cent in any accounting period or semester, as the case may be, the manufacturer or importer shall pay the reasonable costs of audit within 30 days of the demand for such payment.

Confidentiality

10. (1) Subject to subsections (2) to (4), CPCC shall treat in confidence information received from a manufacturer or importer pursuant to this tariff, unless the manufacturer or importer consents in writing to the information being treated otherwise.

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

(i) with the Copyright Board;
(ii) in connection with proceedings before the Copyright Board;
(iii) to the extent required to effect the distribution of royalties, with the collective societies represented by CPCC, once aggregated to prevent the disclosure of information dealing with a specific manufacturer or importer; or
(iv) if ordered by law or by a court of law.

(3) A collective society represented by CPCC may share information obtained pursuant to subsection (2)(iii)

(i) with the Copyright Board;
(ii) in connection with proceedings before the Copyright Board;
(iii) to the extent required to effect the distribution of royalties, with its claimants; or
(iv) if ordered by law or by a court of law.

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

(5) Notwithstanding the foregoing, the corporate name of a manufacturer or importer, the trade name under which it carries on business and the types of blank audio recording media reported by it pursuant to subsection 8(d) of this tariff shall not be considered confidential information.

Adjustments

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

Interest on Late Payments

12. 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 the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada) plus one percent. Interest shall not compound.

Addresses for Notices, etc.

13. (1) Anything that a manufacturer or importer sends to CPCC shall be sent to 150 Eglinton Avenue East, Suite 403, Toronto, Ontario M4P 1E8, Telephone (416) 486-6832, Facsimile (416) 485-4373, or to any other address of which the manufacturer or importer has been notified.

(2) Anything that CPCC sends to a manufacturer or importer shall be sent to the last address of which CPCC has been notified.

Delivery of Notices and Payments

14. (1) A notice may be delivered by hand, by postage paid mail or by telecopier. Payments shall be delivered by hand or by postage paid mail.

(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 telecopier shall be presumed to have been received on the day it is transmitted.

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).