Supplement, Vol. 136, No. 19 — May 11, 2002
COPYRIGHT BOARD
FILE: Reproduction of Musical Works 2003 to 2007
Statement of Proposed Royalties to Be Collected for the Reproduction, in Canada, of Musical Works by Non-Commercial Radio Stations and Pay Audio Services
In accordance with sections 70.14 and 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of royalties filed by the Canadian Musical Reproduction Rights Agency (CMRRA) on April 2, 2002, with respect to royalties that it proposes to collect, effective on January 1, 2003, for the reproduction, in Canada, of musical works by non-commercial radio stations and by pay audio services.
In accordance with the provisions of the same sections, the Board hereby gives notice that prospective users or their representatives who wish 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 10, 2002.
Ottawa, May 11, 2002
CLAUDE MAJEAU
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
(613) 952-8621 (Telephone)
(613) 952-8630 (Facsimile)
majeau.claude@cb-cda.gc.ca (Electronic mail)
CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY (CMRRA)
General provisions
All royalties payable under these tariffs are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
Every CMRRA licence shall subsist according to the terms set out therein. CMRRA shall have the right at any time to terminate a licence for breach of terms or conditions upon 30 days notice in writing.
Tariff No. 3
REPRODUCTION OF MUSICAL WORKS BY NON-COMMERCIAL RADIO STATIONS
1. Short title
This tariff may be cited as the CMRRA Non-Commercial Radio Tariff, 2003-2007
2. Definitions
In this tariff,
"copy" ("copie") means any format or material form on or in which a musical work in the repertoire is fixed by a non-commercial radio station by any known or to be discovered process;
"French non-commercial low-use station" ("station non commerciale de langue française à faible utilisation") means a non-commercial low-use station licensed by the Canadian Radio-television and Telecommunications Commission to operate in the French language or in a language other than the French or English languages;
"French non-commercial radio station" ("station de radio non commerciale de langue française") means a non-commercial radio station licensed by the Canadian Radio-television and Telecommunications Commission to operate in the French language or in a language other than the French or English languages;
"non-commercial low-use station" ("station non commerciale à faible utilisation") means a non-commercial radio station that:
(a) broadcasts musical works for less than 20 per cent of its total broadcast time during the year for which the payment is being made; and
(b) keeps and makes available to CMRRA complete recordings of its last 30 broadcast days;
"non-commercial radio station" ("station de radio non commerciale") means any AM or FM radio station other than a Canadian Broadcasting Corporation radio station, licensed under the Broadcasting Act, S.C. 1991, c. 11, by the Canadian Radio-television and Telecommunications Commission as a station owned or operated by a not-for-profit corporation, whether or not any part of its gross operating costs is funded by advertising revenues, including any campus station, community station or native station that is owned or operated on a not-for-profit basis, or any AM or FM radio station owned or operated by a similar corporation, whether or not this corporation holds a licence from the Canadian Radio-television and Telecommunications Commission;
"repertoire" ("répertoire") means the musical works in CMRRA's repertoire;
"reproduction" ("reproduction") means the fixation by a non-commercial radio station of a musical work in the repertoire by any known or to be discovered process, in any format or material form, including the fixation on the random access memory (RAM) or hard disk of a computer;
"year" ("année") means a calendar year.
3. Licence
3.1 In consideration of the payment of the royalties set out in section 4 of this tariff, and in consideration of the other terms and conditions set out therein, CMRRA shall grant to a non-commercial radio station, a non-exclusive, non-transferable licence for each calendar year from 2003 to and including 2007, authorizing the reproduction, at any time and as often as desired during the term of the licence, of the musical works in the repertoire by a conventional over-the-air non-commercial radio station and the use of copies resulting from such reproductions for its radio broadcasting purposes;
3.2 The licence shall not authorize a non-commercial radio station to reproduce a musical work in the repertoire, or use a copy resulting from such reproduction, in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.
3.3 This tariff does not apply to
(a) any non-commercial audio service that is not a conventional over-the-air broadcasting service; or
(b) transmissions of a musical work in the repertoire on a digital interactive communication network, such as from a Web site available on the Internet.
4. Royalties
In consideration of the licence that shall be granted in accordance with section 3 above by CMRRA, the annual royalties payable to CMRRA by a non-commercial radio station shall be:
4.1 0.64 per cent of the non-commercial radio station's gross operating costs in the year for which the royalties are being paid, except as provided in sections 4.2, 4.3. and 4.4;
4.2 For a non-commercial low-use station, 0.28 per cent of the non-commercial low-use station's gross operating costs in the year for which the royalties are being paid;
4.3 For a French non-commercial radio station, 0.31 per cent of the French non-commercial radio station's gross operating costs in the year for which the royalties are being paid, except as provided in section 4.4;
4.4 For a French non-commercial low-use station, 0.13 per cent of the French non-commercial low-use station's gross operating costs in the year for which the royalties are being paid.
5. Payments, Accounts and Records
5.1 Royalties payable by a non-commercial radio station to CMRRA for each calendar year shall be due on the 31st day of January of the year following the calendar year for which the royalties are being paid.
5.2 With each payment, a non-commercial radio station shall forward to CMRRA a written certified declaration of the actual gross operating costs of the non-commercial radio station for the year for which the payment is made.
5.3 Following a fifteen-day notice to that effect from CMRRA, a non-commercial radio station shall collect information on the musical contents of its programming (logs), in electronic format where available, indicating for each musical work broadcast, at least the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album, the record label, and the date and time of broadcast. CMRRA may formulate such a request no more than twice a year, each time for a period 14 consecutive days. The non-commercial radio station shall then forward the information requested to CMRRA in the 15 days following the last day of the period indicated in CMRRA's notice.
5.4 A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records and logs from which the information set out in section 5.3 can be readily ascertained.
5.5 A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, accounts and records from which the information set out in section 5.2 can be readily ascertained.
5.6 CMRRA may audit these accounts, records and logs at any time during the period set out in sections 5.4 and 5.5, on reasonable notice during normal business hours.
5.7 CMRRA shall, upon receipt, supply a copy of the report of the audit to the non-commercial radio station which was the object of the audit.
5.8 If an audit discloses that royalties due to CMRRA have been understated in any month by more than ten per cent, the non-commercial radio station which was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.
5.9 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.
5.10 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.
6. Confidentiality
6.1 Subject to sections 6.2 and 6.3, CMRRA shall treat in confidence information received from a non-commercial radio station pursuant to this tariff, unless the non-commercial radio station consents in writing to the information being treated otherwise.
6.2 CMRRA may share information referred to in section 6.1:
(i) with any other collecting body in Canada or elsewhere;
(ii) with the Copyright Board;
(iii) in connection with proceedings before the Copyright Board, with anyone;
(iv) to the extent required to effect the distribution of royalties, with its royalty claimants; or
(v) if ordered by law or by a court of law.
6.3 Section 6.1 does not apply to information that is publicly available, or to information obtained from someone other than the non-commercial radio station and who is not under an apparent duty of confidentiality to that non-commercial radio station.
7. Delivery of Notices and Payments
7.1 All notices and payments to CMRRA shall be sent to 56 Wellesley West, Suite 320, Toronto, Ontario M5S 2S3, facsimile number (416) 926-7521, or to any other address or facsimile number of which the non-commercial radio station has been notified in writing.
7.2 All communications from CMRRA to a non-commercial radio station shall be sent to the last address and facsimile number provided by that non-commercial radio station to CMRRA in writing.
7.3 A communication or a notice may be delivered by hand, by postage paid mail or by facsimile. A payment must be delivered by hand or by postage paid mail.
7.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by facsimile shall be presumed to have been received the day they were transmitted.
Tariff No. 4
REPRODUCTION OF MUSICAL WORKS BY PAY AUDIO SERVICES
1. Short title
This tariff may be cited as the CMRRA Pay Audio Services Tariff, 2003-2007.
2. Definitions
In this tariff,
"Act" ("Loi") means the Copyright Act, R.S.C. 1985, c. C-42, as modified;
"copy" ("copie") means any format or material form on or in which a musical work in the repertoire is fixed by a pay audio programming undertaking by any known or to be discovered process;
"distribution undertaking" ("entreprise de distribution") means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11;
"pay audio programming undertaking" ("entreprise de programmation sonore payante") means a programming undertaking licensed by the Canadian Radio-television and Telecommunications Commission to carry on a pay audio programming undertaking or any programming undertaking carrying on similar activities, whether or not licensed by the Canadian Radio-television and Telecommunications Commission;
"programming undertaking" ("entreprise de programmation") means a programming undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11;
"repertoire" ("répertoire") means the musical works in CMRRA's repertoire;
"reproduction" ("reproduction") means the fixation by a pay audio programming undertaking of a musical work in the repertoire by any known or to be discovered process, in any format or material form, including the fixation on the random access memory (RAM) or hard-disk of a computer;
"pay audio service" ("service sonore payant") means a service comprising one or more pay audio channels supplied by a pay audio programming undertaking to a distribution undertaking;
"year" ("année") means a calendar year.
3. Licence
3.1 In consideration of the payment of the royalties set out in section 4 of this tariff, and in consideration of the other terms and conditions set out therein, CMRRA shall grant to a pay audio programming undertaking a non exclusive, non transferable licence for each calendar year from 2003 to an including 2007, authorizing the reproduction, at any time and as often as desired during the term of the licence, of the musical works in the repertoire by a pay audio programming undertaking and the use of copies resulting from such reproductions for its broadcasting purposes.
3.2 The licence shall not authorize a pay audio programming undertaking to reproduce a musical work in the repertoire, or use a copy resulting from such reproduction, in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.
3.3 This tariff does not apply to
(a) uses covered by other CMRRA tariffs; or
(b) transmissions of a musical work in the repertoire on a digital interactive communication network, such as from a Web site available on the Internet.
4. Royalties
In consideration of the licence that shall be granted in accordance with section 3 above by CMRRA, the royalties payable to CMRRA by a pay audio programming undertaking shall be 8 per cent of the affiliation payments payable by a distribution undertaking to a pay audio programming undertaking for a pay audio service during a month.
5. Payments
5.1 Royalties payable pursuant to section 4 shall be due on the last day of the month following the month for which the royalties are being paid.
5.2 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.
6. Reporting Requirements
A pay audio programming undertaking shall provide with its payment, for the relevant period and with respect to each distribution undertaking to which it supplied a pay audio service,
(a) the name of the distribution undertaking,
(b) the list of the pay audio services the pay audio programming undertaking supplied to the distribution undertaking, and
(c) a report on the amounts of the affiliation payments payable to the pay audio programming undertaking for supplying these pay audio services.
7. Sound Recording Use Information
7.1 A pay audio programming undertaking shall provide to CMRRA the sequential lists of all musical works played on each channel. Each entry list shall mention the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album and the record label.
7.2 The information set out in section 7.1 shall be provided for a period of seven consecutive days for each month, no later than on the last day of the following month. It shall be provided in electronic format where available.
8. Accounts and Records
8.1 A pay audio programming undertaking 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 7 can be readily ascertained.
8.2 A pay audio programming undertaking shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which a distribution undertaking's affiliation payments to the pay audio programming undertaking can be readily ascertained.
8.3 CMRRA may audit these records at any time during the period set out in section 8.1 or 8.2, on reasonable notice and during normal business hours.
8.4 CMRRA shall, upon receipt, supply a copy of the report of the audit to the pay audio programming undertaking which was the object of the audit.
8.5 If an audit discloses that royalties due to CMRRA have been understated in any month by more than ten per cent, the pay audio programming undertaking which was the object of the audit shall pay the reasonable costs of the audit within thirty days of the demand for such payment.
9. Confidentiality
9.1 Subject to sections 9.2 and 9.3, CMRRA shall treat in confidence information received from a pay audio programming undertaking pursuant to this tariff, unless the pay audio programming undertaking who supplied the information consents in writing to the information being treated otherwise.
9.2 CMRRA may share information referred to in section 9.1:
(i) with any other collecting body in Canada or elsewhere;
(ii) with the Copyright Board;
(iii) in connection with proceedings before the Copyright Board, with anyone;
(iv) to the extent required to effect the distribution of royalties, with its royalty claimants; or
(v) if ordered by law or by a court of law.
9.3 Section 9.1 does not apply to information that is publicly available, or to information obtained from someone other than the pay audio programming undertaking and who is not under an apparent duty of confidentiality to that pay audio programming undertaking.
10. Adjustments
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.
11. Delivery of Notices and Payments
11.1 All notices and payments to CMRRA shall be sent to 56 Wellesley West, Suite 320, Toronto, Ontario M5S 2S3, facsimile number (416) 926-7521 or to any other address or facsimile number of which the pay audio programming undertaking has been notified in writing.
11.2 All communications from CMRRA to a pay audio programming undertaking shall be sent to the last address and facsimile number provided by that pay audio programming undertaking to CMRRA in writing.
11.3 A communication or notice may be delivered by hand, by postage paid mail or by facsimile. A payment must be delivered by hand or by postage paid mail.
11.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by facsimile shall be presumed to have been received the day they were transmitted.
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