ARCHIVED — Vol. 146, No. 16 — April 21, 2012

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COPYRIGHT BOARD

FILE: Reproduction of Musical Works

Statement of Proposed Royalties to Be Collected for the Reproduction of Musical Works, in Canada, in 2013

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of royalties filed by CMRRA-SODRAC Inc. (CSI) on March 9, 2012, on behalf of the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., SODRAC 2003 Inc. and the Canadian Musical Reproduction Rights Agency (CMRRA), with respect to royalties it proposes to collect, effective January 1, 2013, for the reproduction of musical works, in Canada, by multi-channel subscription radio services in 2013.

This statement of proposed royalties replaces for the year 2013 the statement that was published in respect of the same services on July 17, 2010, for the years 2011 to 2013. The new statement is different in substance from the earlier one in two respects:

  1. — At paragraph 4(2)(b), the rate of 2.48 per cent replaces the earlier rate of 1.87 per cent; and
  2. — At paragraph 4(2)(c), the rate of 6.99 per cent replaces the earlier rate of 2.90 per cent.

In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than June 20, 2012.

Ottawa, April 21, 2012

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)

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY CMRRA-SODRAC INC. ON BEHALF OF THE SOCIETY FOR THE REPRODUCTION RIGHTS OF AUTHORS, COMPOSERS AND PUBLISHERS IN CANADA (SODRAC) INC. AND SODRAC 2003 INC. (HEREINAFTER JOINTLY “SODRAC”) AND THE CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY (CMRRA), FOR THE REPRODUCTION OF MUSICAL WORKS IN THE REPERTOIRE OF SODRAC OR CMRRA BY MULTI-CHANNEL SUBSCRIPTION RADIO SERVICES IN 2013

Note to reader (this note is not part of the tariff)

In March 2010, CMRRA-SODRAC Inc. filed a proposed tariff covering the period of 2011 to 2013. The present statement of proposed royalties cancels and replaces the previous proposed tariff for the year 2013.

Short Title

1. This tariff may be cited as the Satellite Radio Services Tariff (CMRRA-SODRAC Inc. 2013).

Definitions

2. In this tariff,

“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 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 »)

“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

  1. (a) [this space reserved for the Copyright Board (tariffs of other collectives)];

  2. (b) to reproduce and to authorize the reproduction and use of reproductions of all or part of a musical work in the repertoire for the purpose of delivering the audio content of the service’s channels to subscribers for their private use via satellite, terrestrial transmitters or other means of distribution;

  3. (c) to authorize a person to reproduce a musical work in the repertoire for the purpose of delivering to the service a copy of the musical work that can be used to deliver the service to subscribers; and

  4. (d) to authorize subscribers to reproduce the musical work for their own private use

in connection with the operation of the service, for direct reception by subscribers for their private use.

(2) This tariff does not authorize

  1. (a) any use of a work, sound recording or performer’s performance by a service in connection with its delivery to a commercial subscriber;

  2. (b) any use by a subscriber of a work, sound recording or performer’s performance transmitted by a service, other than the use set out in paragraph (1)(b); or

  3. (c) the use of a reproduction made pursuant to paragraph (1)(b) in association with a product, service, cause or institution.

(3) [this space reserved for the Copyright Board (tariffs of other collectives)]

Royalties

4. (1) [this space reserved for the Copyright Board (tariffs of other collectives)]

(2) A service shall pay to CMRRA-SODRAC Inc. the following percentages of its service revenues for the reference month:

  1. (a) for all reproductions, other than those described at paragraphs b) and c), one per cent, subject to a minimum fee of 10¢ per subscriber;

  2. (b) for reproductions onto receivers enabled for extended buffer or replay,
    formula-detailed information can be found in the surrounding text per cent

where

  1. (A) is the number of subscribers owning a receiver enabled for extended buffer or replay but not a receiver enabled to store individual songs or blocks of programming for playback at a time chosen by the subscriber, and

  2. (B) is the total number of subscribers,

subject to a minimum fee of 19¢ per subscriber referred to in variable (A); and

  1. (c) for reproductions onto receivers enabled to store individual songs or blocks of programming for playback at a time chosen by the subscriber,
    formula-detailed information can be found in the surrounding text per cent

where

  1. (C) is the number of subscribers owning a receiver enabled to store individual songs or blocks of programming for playback at a time chosen by the subscriber, and


    (B) is the total number of subscribers,

subject to a minimum fee of 29¢ per subscriber referred to in variable (C).

Reporting Requirements

5. No later than on the first day of the month, a service shall pay the royalties for that month and shall provide for the reference month,

  1. (a) the number of subscribers referred to in variables (A), (B) and (C) of paragraphs 4(2)(b) and 4(2)(c); and

  2. (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) Subject to subsection (2), a service shall provide with its payment the sequential lists of all musical works transmitted on each of its signals on the last seven days of the reference month. Each entry shall mention the date and time of transmission, the title of the musical work, the name of the author and the composer of the work, the name of the performer or of the performing group, the running time, in minutes and seconds, the title of the record album, the record label, the Universal Product Code (UPC) and the International Standard Recording Code (ISRC).

(2) The information set out in subsection (1) is provided only if it is available to the service or to a third party from whom the service is entitled to obtain the information.

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) CMRRA-SODRAC Inc. 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) CMRRA-SODRAC Inc. shall, upon receipt, supply a copy of the report of the audit to the service that was the object of the audit.

(5) If an audit discloses that royalties due to CMRRA-SODRAC Inc. have been understated in any month by more than 10 per cent, the service shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

8. (1) Subject to subsections (2) and (3), CMRRA-SODRAC Inc. shall treat in confidence information received pursuant to this tariff, unless the service that supplied the information consents in writing to the information being treated otherwise.

(2) CMRRA-SODRAC Inc. may share information referred to in subsection (1)

  1. (i) with another collective society that is subject to this tariff,
  2. (ii) with the Copyright Board,
  3. (iii) in connection with proceedings before the Copyright Board, if the service had the opportunity to request a confidentiality order,
  4. (iv) to the extent required to effect the distribution of royalties, with any royalty claimant, or
  5. (v) if required by law.

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

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 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.

11. (1) [this space reserved for the Copyright Board (tariffs of other collectives)]

(2) [this space reserved for the Copyright Board (tariffs of other collectives)]

(3) Anything addressed to CMRRA-SODRAC Inc. shall be sent to 1470 Peel Street, Tower B, Suite 1010, 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 the service has been notified.

(4) Anything addressed to a service shall be sent to the last address or fax number of which the society has been notified.

Delivery of Notices and Payments

12. (1) Subject to subsection (2), 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) Information provided pursuant to section 6 shall be delivered electronically, in plain text format or in any other format agreed upon by CMRRA-SODRAC Inc. and a service.

(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 is transmitted.