Statement Amending the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries: SOR/2020-82

Canada Gazette, Part II, Volume 154, Number 9

Registration

SOR/2020-82 April 7, 2020

COPYRIGHT ACT

Whereas the Minister of Industry is of the opinion that the Rome Convention country or WPPT countries referred to in the annexed Statement do not grant a right of remuneration, similar in scope and duration to that provided by subsections 19(1.1) footnote a and (1.2) footnote b of the Copyright Act footnote c, for the performance in public or the communication to the public by telecommunication of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act footnote d or was a corporation that had its headquarters in Canada;

Therefore, the Minister of Industry, pursuant to subsections 20(2) footnote e and (2.1) footnote f of the Copyright Act footnote c, makes the annexed Statement Amending the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries.

Ottawa, March 24, 2020

Navdeep Singh Bains
Minister of Industry

Statement Amending the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries

Amendments

1 (1) Subsection 2(1) of the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries footnote 1 is replaced by the following:

Japan and Singapore

2 (1) Subject to subsections (2) and (7), a right to equitable remuneration applies only to the communication to the public by telecommunication of a sound recording whose maker, at the date of its first fixation, was a citizen or permanent resident of Japan or Singapore or was a corporation that had its headquarters in either of those countries.

(2) The portion of subsection 2(2) of the Statement before paragraph (a) is replaced by the following:

Exception — broadcasts and background music

(2) In the case of a sound recording whose maker, at the date of its first fixation, was a citizen or permanent resident of Singapore or was a corporation that had its headquarters in that country, a right to equitable remuneration does not apply to

(3) Subsections 2(4) and (5) of the Statement are repealed.

(4) Subsection 2(6) of the Statement is repealed.

Coming into Force

2 (1) Subject to subsection (2), this Statement comes into force on the day on which it is published in the Canada Gazette, Part II.

(2) Subsections 1(1) to (3) come into force on the later of the day on which this Statement is published in the Canada Gazette, Part II and the day on which the Agreement between Canada, the United States of America and the United Mexican States, done at Buenos Aires on November 30, 2018, as amended by the Protocol of Amendment to the Agreement between Canada, the United States of America and the United Mexican States, done at Mexico City on December 10, 2019, comes into force for Canada.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Statement.)

Issues

Recent changes in U.S. copyright law and the expected entry into force of the Agreement between Canada, the United States of America and the United Mexican States done at Buenos Aires on November 30, 2018, as amended by the Protocol of Amendment to the Agreement between Canada, the United States of America and the United Mexican States, done at Mexico City on December 10, 2019 (the “CUSMA”), require changes to the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries, SOR/2014-181, issued by the Minister of Industry in 2014 (the “2014 Ministerial Statement”) in order for Canada to fulfill its obligations to provide national treatment in respect of certain uses of sound recordings whose makers were U.S. nationals at relevant times.

Background

Section 19 of the Copyright Act (the “Act”) provides performers and makers of sound recordings with a right to equitable remuneration for their performance in public (e.g. playing recorded music in a restaurant) or communication to the public by telecommunication (e.g. playing recorded music as part of a radio broadcast), subject to certain conditions.

Canada is a member of certain treaties that generally require it to extend this right to performers and makers who are nationals of other member countries, but which also provide some flexibility to limit doing so in respect of member countries that do not offer a similar right, including the World Intellectual Property Organization Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996 (the “WPPT”), and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done at Rome on October 26, 1961 (the “Rome Convention”).

Pursuant to his authority under subsections 20(2) and 20(2.1) of the Act, the Minister of Industry issued the 2014 Ministerial Statement to limit the scope and duration of the right to equitable remuneration for makers from other WPPT or Rome Convention member countries that do not offer a similar right. For the Rome Convention, the 2014 Ministerial Statement repealed and replaced the Limitation of the Right to Equitable Remuneration of Certain Rome Convention Countries Statement, SOR/99-143, to account for changes to the laws of countries listed therein as well as countries that had since acceded to the treaty.

At the time of publication of the 2014 Ministerial Statement, U.S. law did not provide a right to equitable remuneration identical in scope to that of Canada. The statement thus included the United States, given its membership in the WPPT, and limited Canada’s application of this right to U.S. rights holders in a way that reciprocally accounted for the two countries’ differences in law.

Recent and expected developments relating to this area of law would require these limitations to be repealed. The U.S. Music Modernization Act, enacted in late 2018, changed relevant aspects of U.S. law and requires certain immediate changes to the 2014 Ministerial Statement. The CUSMA will subject Canada to new national treatment obligations with respect to the right to equitable remuneration for U.S. rights holders such that further changes will be required to the 2014 Ministerial Statement once the agreement enters into force.

Objective

The objective of the amended statement is to modify the 2014 Ministerial Statement in order to ensure that Canada will fulfill its obligations to the United States to provide national treatment in light of recent changes in U.S. copyright law and the expected entry into force of the CUSMA.

Description

The amended statement would repeal the limitations included in the 2014 Ministerial Statement regarding a sound recording whose maker, at the date of the sound recording’s first fixation, was a national of the United States. These amendments would occur in two phases: a first stage of changes coming into force on the day on which the amended statement is published in the Canada Gazette, Part II, to account for recent changes in U.S. copyright law and a second stage of changes coming into force upon the later of the day on which the amended statement is published in the Canada Gazette, Part II and the day on which the CUSMA comes into force for Canada.

Regulatory development

Consultation

The government undertook extensive public consultations on the development of the CUSMA, including the underlying policy of the amended statement, beginning in February 2017. These consultations included hundreds of in-person interactions and teleconferences with Canadian stakeholders as well as tens of thousands of written submissions from the same, both during the negotiation of the agreement and following its conclusion. The consultations proceeded via hearings of the House of Commons Standing Committee on International Trade, cross-country outreach by the Ministers of Foreign Affairs and International Trade Diversification and targeted stakeholder engagement by departmental officials. No submissions were received during these consultations regarding the underlying policy of the amended statement.

The overall CUSMA outcome has received broad support from Canadian stakeholders, including the majority of Canadian businesses and business associations.

The amended statement was not prepublished in the Canada Gazette, Part I, in light of the authority of the Minister of Industry — now, the Minister of Innovation, Science and Industry — under subsections 20(2) and 20(2.1) of the Act and the fact that the amendments are required in order for Canada to comply with its international obligations.

Modern treaty obligations and Indigenous engagement and consultation

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, the amended statement’s possible treaty implications were assessed. No such implications were identified, including with respect to the issue of jurisdiction.

Instrument choice

The proposed instrument was chosen given the authority of the Minister of Industry — now, the Minister of Innovation, Science and Industry — to make such a statement to be published in the Canada Gazette pursuant to subsections 20(2) and 20(2.1) of the Act as well as the precedent of the 2014 Ministerial Statement.

Regulatory analysis

Benefits and costs

The intention of the amended statement is to fulfill Canada’s existing and future national treatment obligations to the United States. In this way, the amended statement would help to provide continuity in Canada’s economic relationship with the United States. The amended statement would also help to position the government to ratify the CUSMA promptly. Once in force, the CUSMA would allow Canadian businesses and workers to continue to reap the benefits of predictable and stable preferential access to U.S. and Mexican markets.

No incremental source of funding would be required to implement the amended statement.

Small business lens

In accordance with the Policy on Limiting Regulatory Burden on Business, the amended statement could have associated costs for small businesses making certain uses of sound recordings whose makers, at the times of first fixation of the sound recordings, were nationals of the United States. This potential impact is difficult to quantify prospectively because it would depend on the royalty rates established by the Copyright Board of Canada or negotiated between the small businesses and relevant U.S. rights holders. Moreover, the impact on certain small businesses would be mitigated by subsection 72(2) of the Act, which limits the royalties payable by certain types of broadcasters for the first $1.25 million or less earned in annual advertising revenues.

One-for-one rule

In accordance with the Red Tape Reduction Act, the Red Tape Reduction Regulations and the Policy on Limiting Regulatory Burden on Business, the one-for-one rule does not apply to the amended statement because it would not impose or change any administrative costs on businesses. The amended statement is in fact a repeal of existing regulations.

Regulatory cooperation and alignment

The amended statement is unrelated to a work plan or commitment under a formal regulatory cooperation forum to which Canada is subject.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the amended statement.

Implementation, compliance and enforcement, and service standards

Implementation, compliance and enforcement and service standards are not applicable to the amended statement.

Contacts

Martin Simard
Director
Copyright and Trademark Policy Directorate
Innovation, Science and Economic Development Canada
235 Queen Street
Ottawa, Ontario
K1A 0H5
Telephone: 613‑291‑3163
Email: martin.simard@canada.ca

Drew Olsen
Senior Director
Marketplace and Legislative Policy
Department of Canadian Heritage
25 Eddy Street
Gatineau, Quebec
K1A 0M5
Telephone: 819‑934‑2825
Email: drew.olsen@canada.ca