ARCHIVED — Vol. 146, No. 27 — July 7, 2012

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COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings 2008-2012

Statement of Royalties to Be Collected by Re:Sound in Respect of the Use of Recorded Music to Accompany Physical Activities

In accordance with subsection 68(4) of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected from 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 pursuant to Tariff No. 6.B (Use of Recorded Music to Accompany Physical Activities) for the years 2008 to 2012.

Ottawa, July 7, 2012

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8624 (telephone)
gilles.mcdougall@cb-cda.gc.ca (email)

STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND MUSIC LICENSING COMPANY (RE:SOUND) FOR THE PERFORMANCE IN PUBLIC OR 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 2012

Tariff No. 6.B

USE OF RECORDED MUSIC TO ACCOMPANY PHYSICAL ACTIVITIES

Application

1. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2008 to 2012, of published sound recordings embodying musical works and performers’ performances of such works in the repertoire of Re:Sound, in any indoor or outdoor venue, for the purposes of fitness, training, skating, dance instruction or any other physical activity.

(2) This tariff does not apply to uses of sound recordings that are subject to another Re:Sound tariff, including Tariffs 5 (Use of Music to Accompany Live Events) and 6.A (Use of Recorded Music to Accompany Dance).

Background Music (Fitness)

2. Notwithstanding subsection 3(2) of the NRCC Background Music Tariff, 2003-2009, the royalties payable for the use of recorded music in connection with weight training, cardiovascular training, circuit training and other similar activities, other than during a fitness class, are determined pursuant to the NRCC Background Music Tariff, 2003-2009.

Fitness Classes

3. (1) The royalty payable to Re:Sound for the use of recorded music during fitness classes is $105.74 per year, per venue.

(2) Royalties payable pursuant to subsection (1) for any given year shall be payable

  • (a) if the venue is subject to the NRCC Background Music Tariff, 2003-2009, at the same time as the first payment the venue makes pursuant to section 7 of that tariff in that year; and

  • (b) if not, no later than on January 31 of the relevant year.

(3) A payment made pursuant to paragraph (2)(b) shall be accompanied with a report indicating the name and address of the venue as well as the name and contact information of the person operating the venue.

Skating

4. (1) The royalty payable to Re:Sound for the use of recorded music in connection with roller or ice skating is as follows:

  • (a) where an admission fee is charged: 0.44 per cent of the gross receipts from admissions, exclusive of sales and amusement taxes, subject to a minimum annual fee of $38.18; and

  • (b) where no admission fee is charged: an annual fee of $38.18.

(2) Royalties payable pursuant to subsection (1) for any given year shall be payable no later that on January 31 of the following year. The payment shall be accompanied with a report indicating the name and address of the venue, the name and contact information of the person operating the venue, as well as the gross receipt from admissions, exclusive of sales and amusement taxes, for the previous year.

Dance Instruction and Other Physical Activities

5. (1) The royalty payable to Re:Sound for the use of recorded music in connection with dance instruction or, subject to sections 3 and 4, with any other activity targeted in this tariff is $23.42 per year, per venue.

(2) Royalties payable pursuant to subsection (1) shall be paid no later than on January 31 of the relevant year, and shall be accompanied with a report indicating the name and address of the venue as well as the name and contact information of the person operating the venue.

Taxes

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

Accounts and Records

7. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’s payment under this tariff can be readily ascertained.

(2) Re:Sound may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.

(3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was the subject of the audit.

(4) If an audit discloses that the royalties owed to Re:Sound during any reporting period have been understated by more than 10 per cent, the subject of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

8. (1) Subject to subsections (2) and (3), Re:Sound shall treat in confidence information received pursuant to this tariff, unless the person who supplied the information consents in writing to the information being treated otherwise.

(2) Re:Sound may share information referred to in subsection (1)

  • (a) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;

  • (b) with the Copyright Board;

  • (c) in connection with proceedings before the Board, if Re:Sound has first provided a reasonable opportunity for the person who supplied the information to request a confidentiality order;

  • (d) to the extent required to effect the distribution of royalties, with its 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 a person subject to this tariff and who is not under an apparent duty of confidentiality to that person.

Interest on Late Payments

9. 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.

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

(2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

Delivery of Notices and Payments

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

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

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

Transitional provision

12. Any amount that would otherwise be payable pursuant to this tariff on or before July 1, 2012, shall be due on October 1, 2012, and shall be increased by using the multiplying interest factor (based on the Bank Rate) set out in the following table with respect to each period. Information pertaining to that same period shall be filed with the payment and shall be supplied only if it is available.

Multiplying factors applicable to quarterly payments:

Q1

Q2

Q3

Q4

2008

1.0672

1.0568

1.0483

1.0399

2009

1.0341

1.0317

1.0304

1.0291

2010

1.0278

1.0266

1.0248

1.0221

2011

1.0189

1.0157

1.0126

1.0094

2012

1.0063

1.0031

   

Multiplying factors applicable to yearly payments:

2008

1.0667

2009

1.0340

2010

1.0277

2011

1.0188

2012

1.0063