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Vol. 145, No. 20 — May 14, 2011

COPYRIGHT BOARD

FILE: Private Copying 2012-2013

Statement of Proposed Levies to Be Collected on 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 March 31, 2011, with respect to the levies it proposes to collect, effective January 1, 2012, on 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 hereof, that is no later than July 13, 2011.

Ottawa, May 14, 2011

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)

TARIFF OF LEVIES TO BE COLLECTED BY CPCC IN 2012 AND 2013 ON 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 PERFORMERS’ PERFORMANCES OF SUCH WORKS OR OF SOUND RECORDINGS IN WHICH SUCH WORKS AND PERFORMANCES ARE EMBODIED

Short Title

1. This tariff may be cited as the Private Copying Tariff, 2012-2013.

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) recordable compact discs (CD-R, CD-RW, CD-R Audio, CD-RW Audio),
    • (ii) electronic memory cards, 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 rates shall be

  • (a) 29¢ for each CD-R, CD-RW, CD-R Audio or CD-RW Audio;
  • (b) 50¢ for each electronic memory card with 1 gigabyte of memory or less, $1.00 for each electronic memory card with more than one gigabyte of memory but less than 8 gigabytes of memory, and $3.00 for each electronic memory card with 8 gigabytes of memory or more.

(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.

Distribution of Levies Paid

5. CPCC shall distribute the amounts it collects, less its operating costs, as follows:

  • (a) 58.2 per cent, to be shared between the Society of Composers, Authors and Music Publishers of Canada (SOCAN), the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC), on account of eligible authors;
  • (b) 23.8 per cent to RE:SOUND on account of eligible performers; and
  • (c) 18.0 per cent to RE:SOUND on account of eligible makers.

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, fax number and email 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” 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 the entity filing the report sells the medium or identifies it in its inventory; and
  • (e) the number of each type of blank audio recording medium exported or 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. These records shall be constituted of original source documents sufficient to determine all sources of supply of blank audio recording media, the number of media acquired or manufactured and the manner in which they were disposed of. They shall include, among other things, purchase, sale and inventory records, as well as financial statements when these are reasonably necessary to verify the accuracy and completeness of the information provided to CPCC.

(2) CPCC may audit these records at any time on reasonable notice and during normal business hours. It is entitled to conduct reasonable procedures and make reasonable inquiries with the person being audited and with others, to confirm the completeness and accuracy of the information reported to CPCC.

(3) If an audit discloses that the amounts due to CPCC have been understated by more than 10 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 (5), 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 or a court of law,
  • (iii) with any person who knows or is presumed to know the information,
  • (iv) 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
  • (v) 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)

  • (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 paragraph 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 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.

13. (1) Anything that a manufacturer or importer sends to CPCC shall be sent to 150 Eglinton Avenue E, Suite 403, Toronto, Ontario M4P 1E8, telephone 416-486-6832 or 1-800-892-7235, fax 416-486-3064, 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, by fax or by email. 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 fax or by email shall be presumed to have been received on the day it is transmitted.