Vol. 144, No. 28 — July 10, 2010

Supplement

COPYRIGHT BOARD

FILES: Public Performance of Musical Works; Public Performance of Sound Recordings; Reproduction of Musical Works; Reproduction of Sound Recordings; Reproduction of Performers’ Performances

Statement of Royalties to Be Collected by SOCAN, Re:Sound, CSI, AVLA/SOPROQ and ArtistI in Respect of Commercial Radio Stations

In accordance with subsection 68(4) and section 70.15 of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected from commercial radio stations by the Society of Composers, Authors and Music Publishers of Canada (SOCAN), for the communication to the public by telecommunication, in Canada, of musical or dramatico-musical works for the years 2008 to 2010, by Re:Sound Music Licensing Company (Re:Sound) for the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers’ performances of such works for the years 2008 to 2011, by CMRRA-SODRAC Inc. (CSI) for the reproduction, in Canada, of musical works for the years 2008 to 2012, by AVLA Audio-Visual Licensing Agency and the Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (AVLA/SOPROQ) for the reproduction, in Canada, of sound recordings for the years 2008 to 2011, and by ArtistI for the reproduction, in Canada, of performers’ performances for the years 2009 to 2011.

Ottawa, July 10, 2010

GILLES MCDOUGALL
Acting 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)

STATEMENT OF ROYALTIES TO BE COLLECTED FROM COMMERCIAL RADIO STATIONS BY THE SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA (SOCAN) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF MUSICAL OR DRAMATICO-MUSICAL WORKS FOR THE YEARS 2008 TO 2010, BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS’ PERFORMANCES OF SUCH WORKS FOR THE YEARS 2008 TO 2011, BY CMRRA-SODRAC INC. (CSI) FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS FOR THE YEARS 2008 TO 2012, BY AVLA AUDIO-VISUAL LICENSING AGENCY INC. AND THE SOCIÉTÉ DE GESTION COLLECTIVE DES DROITS DES PRODUCTEURS DE PHONOGRAMMES ET DE VIDÉOGRAMMES DU QUÉBEC (AVLA/SOPROQ) FOR THE REPRODUCTION, IN CANADA, OF SOUND RECORDINGS FOR THE YEARS 2008 TO 2011, AND BY ARTISTI FOR THE REPRODUCTION, IN CANADA, OF PERFORMERS’ PERFORMANCES FOR THE YEARS 2009 TO 2011

Short Title

1. This tariff may be cited as the Commercial Radio Tariff (SOCAN: 2008-2010; Re:Sound: 2008-2011; CSI: 2008-2012; AVLA/SOPROQ: 2008-2011; ArtistI: 2009-2011).

Definitions

2. In this tariff,

“Act” means the Copyright Act; (« Loi »)

“gross income” means the gross amounts paid by any person for the use of one or more broadcasting services or facilities provided by a station’s operator, excluding the following:

(a) income accruing from investments, rents or any other business unrelated to the station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station’s broadcasting services and facilities or which results in their being used, including the gross amounts received by a station pursuant to turn-key contracts with advertisers, shall be included in the “gross income”;

(b) amounts received for the production of a program that is commissioned by someone other than the station and which becomes the property of that person;

(c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the station can establish that the station was also paid normal fees for station time and facilities;

(d) amounts received by an originating station acting on behalf of a group of stations, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station subsequently pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station’s “gross income”; and

(e) in the case of CSI, income from simulcast; (« revenus bruts »)

“low-use station (sound recordings)” means a station that

(a) broadcasts published sound recordings of musical works for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and

(b) keeps and makes available to Re:Sound, AVLA/ SOPROQ and ArtistI complete recordings of its last 90 broadcast days; (« station utilisant peu d’enregistrements sonores »)

“low-use station (works)” means a station that

(a) broadcasts works in the repertoire of SOCAN for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and

(b) keeps and makes available to SOCAN and CSI complete recordings of its last 90 broadcast days; (« station utilisant peu d’œuvres »)

“performer’s performance” means a performer’s performance that has been fixed with the authorization of the performer; (« prestation »)

“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)

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

“simulcast” means the simultaneous, unaltered, real-time streaming of the over-the-air 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 »)

“year” means a calendar year. (« année »)

Application

3. (1) This tariff sets the royalties to be paid each month by commercial radio stations

(a) in connection with the over-the-air broadcasting operations of a station

(i) to communicate to the public by telecommunication in Canada, for private or domestic use, musical or dramatico-musical works in the repertoire of SOCAN and published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound, and

(ii) to reproduce in Canada musical works in the repertoire of CMRRA or SODRAC, sound recordings in the repertoire of AVLA or SOPROQ and performers’ performances in the repertoire of ArtistI; and

(b) in connection with a simulcast to reproduce in Canada musical works in the repertoire of CMRRA or SODRAC.

(2) This tariff also entitles a station to authorize a person to communicate to the public by telecommunication a musical work, sound recording or performer’s performance and to reproduce a musical work or performer’s performance for the purpose of delivering it to the station, so that the station can use it as permitted in subsection (1).

(3) This tariff does not authorize

(a) the use of any reproduction made pursuant to subsection (1) in association with a product, service, cause or institution, or

(b) any use covered by other tariffs, including SOCAN Tariffs 16, 22 or 25 or the SOCAN-NRCC Pay Audio Services Tariff.

4. This tariff is subject to the special royalty rates set out in subparagraph 68.1(1)(a)(i) of the Act.

Royalties

5. (1) A low-use station (works) shall pay

(a) to SOCAN, 1.5 per cent of its gross income for the reference month; and

(b) to CSI on its gross income for the reference month, 0.135 per cent of the station’s first $625,000 gross income in a year, 0.259 per cent of the station’s next $625,000 gross income in a year and 0.434 per cent on the rest.

(2) A low-use station (sound recordings) shall pay

(a) to Re:Sound, 0.75 per cent of its gross income for the reference month;

(b) to AVLA/SOPROQ on its gross income for the reference month, 0.113 per cent of the station’s first $625,000 gross income in a year, 0.234 per cent of the station’s next $625,000 gross income in a year and 0.405 per cent on the rest; and

(c) to ArtistI on its gross income for the reference month, 0.003 per cent of the station’s first $625,000 gross income in a year, 0.005 per cent of the station’s next $625,000 gross income in a year and 0.008 per cent on the rest.

6. Except as provided in section 5, a station shall pay, on its gross income for the reference month,

(a) to SOCAN, 3.2 per cent on its first $1.25 million gross income in a year and 4.4 per cent on the rest;

(b) to Re:Sound, 1.44 per cent on its first $1.25 million gross income in a year and 2.1 per cent on the rest;

(c) to CSI, 0.304 per cent of the station’s first $625,000 gross income in a year, 0.597 per cent of the station’s next $625,000 gross income in a year and 1.238 per cent on the rest;

(d) to AVLA/SOPROQ, 0.278 per cent of the station’s first $625,000 gross income in a year, 0.564 per cent of the station’s next $625,000 gross income in a year and 1.192 per cent on the rest; and

(e) to ArtistI, 0.006 per cent of the station’s first $625,000 gross income in a year, 0.011 per cent of the station’s next $625,000 gross income in a year and 0.023 per cent on the rest.

7. All royalties are exclusive of any federal, provincial or other governmental taxes or levies of any kind.

Administrative Provisions

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

(a) pay the royalties for that month;

(b) report the station’s gross income for the reference month;

(c) provide to CSI, for the reference month, the gross income from any simulcast, as well as the number of listeners and listening hours or, if not available, any other available indication of the extent of the listeners’ use of simulcast; and

(d) where available, provide the sequential lists of all musical works and published sound recordings broadcast during the reference month. Each entry shall mention, to the extent possible, the information set out in subsection 10(1).

9. At any time during the period set out in subsection 11(2), a collective society 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 these rights by other parties.

Information on Repertoire Use

10. (1) Subject to subsection (4), upon receipt of a written request from any collective society, a station shall provide to all societies, with respect to all musical works and published sound recordings it broadcast during the days listed in the request:

(a) the date and time of the broadcast, the title of the work, the title of the album, the record label, the name of its author and composer, the name of the performers or performing group, the duration, in minutes and seconds; and

(b) where available, the Universal Product Code (UPC) of the album and the International Standard Recording Code (ISRC) of the sound recording from which the musical work is taken.

(2) The information set out in subsection (1) shall be provided in electronic format, where possible, or in writing, no later than 14 days after the end of the month to which it relates.

(3) A station is not required to provide the information set out in subsection (1) with respect to more than 28 days in a year.

(4) A station that complies with paragraph 8(d) in any given month is not required to provide the information set out in subsection (1) with respect to any day of that month if the list provided contains all the information set out in paragraph (1)(a).

Records and Audits

11. (1) A station 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 paragraph 8(d) and subsection 10(1) can be readily ascertained.

(2) 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 station’s gross income can be readily ascertained.

(3) A collective society 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) The collective society shall, upon receipt, supply a copy of the report of the audit to the station that was the object of the audit and to the other societies.

(5) If an audit discloses that royalties due 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 the demand for such payment.

Confidentiality

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

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

(a) amongst the collective societies;

(b) with the Copyright Board;

(c) in connection with proceedings before the Board, if the station had the opportunity to request a confidentiality order;

(d) to the extent required to effect the distribution of royalties, with royalty claimants; or

(e) if ordered by law.

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

Adjustments

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.

Interest on Late Payments

14. 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 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.

Addresses for Notices, etc.

15. (1) Anything addressed to SOCAN shall be sent to 41 Valleybrook Drive, Toronto, Ontario M3B 2S6, email: customers@ socan.ca, fax number: 416-445-7108, or to any other address, email address or fax number of which a station has been notified in writing.

(2) Anything addressed to Re:Sound shall be sent to 900-1235 Bay Street, Toronto, Ontario M5R 3K4, email: radio@ resound.ca, fax number: 416-962-7797, or to any other address, email address or fax number of which a station has been notified in writing.

(3) Anything addressed to CSI shall be sent to Tower B, Suite 1010, 1470 Peel Street, Montréal, Quebec H3A 1T1, email: csi@cmrrasodrac.ca, fax number: 514-845-3401, or to any other address, email address or fax number of which a station has been notified in writing.

(4) Anything addressed to AVLA shall be sent to 85 Mowat Avenue, Toronto, Ontario M6K 3E3, email: radioreproduction@ avla.ca, fax number: 416-967-9415, or to any other address, email address or fax number of which a station has been notified in writing.

(5) Anything addressed to SOPROQ shall be sent to 6420 Saint-Denis Street, Montréal, Quebec H2S 2R7, email: radioreproduction@soproq.org, fax number: 514-842-7762, or to any other address, email address or fax number of which a station has been notified in writing.

(6) Anything addressed to ArtistI shall be sent to 1441 René-Lévesque Boulevard W, Suite 400, Montréal, Quebec H3G 1T7, email: radiorepro@uda.ca, fax number: 514-288-7875, or to any other address, email address or fax number of which a station has been notified in writing.

(7) Anything addressed to a station shall be sent to the last address, email address or fax number of which a collective society has been notified in writing.

Delivery of Notices and Payments

16. (1) Royalties payable to AVLA/SOPROQ are paid to AVLA. All other information to which AVLA/SOPROQ is entitled pursuant to this tariff is delivered to AVLA and SOPROQ separately.

(2) A notice may be delivered by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand or by postage-paid mail.

(3) Information set out in paragraphs 8(b) to (d) shall be sent by email.

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

(5) Anything sent by fax or by email shall be presumed to have been received the day it was transmitted.

Transitional Provisions

17. (1) Royalties owed on or before August 1, 2010,

(a) to SOCAN or to Re:Sound, as a result of differences between this tariff and the SOCAN-NRCC Commercial Radio Tariff, 2003-2007;

(b) to CSI, as a result of differences between this tariff and the CMRRA/SODRAC Inc. Commercial Radio Tariff, 2007; and

(c) to AVLA/SOPROQ as a result of the certification of this tariff,

shall be paid in 12 equal instalments, on the first day of each month, starting on September 1, 2010.

(2) Royalties payable to ArtistI on or before August 1, 2010 as a result of the certification of this tariff shall be paid on September 1, 2010.

(3) Royalties payable pursuant to subsection (1) or (2) shall not bear any interest if they are paid pursuant to subsection (1) or (2).

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