Supplement, Vol. 136, No. 19 — May 11, 2002
COPYRIGHT BOARD
FILE: Educational Rights 2003-2006
Statement of Proposed Royalties to Be Collected from Educational Institutions in Canada, for the Reproduction and Performance of Works or Other Subject-Matters Communicated to the Public by Telecommunication
In accordance with subsection 72(1) of the Copyright Act, the Copyright Board hereby publishes the statement of royalties filed by the Educational Rights Collective of Canada (ERCC) on March 27, 2002, with respect to royalties that it proposes to collect, effective on January 1, 2003, from educational institutions in Canada, for the reproduction and performance of works or other subject-matters that have been communicated to the public by telecommunication.
In accordance with the provisions of the same subsection, the Board hereby gives notice that educational institutions 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)
STATEMENT OF ROYALTIES WHICH MAY BE COLLECTED BY THE EDUCATIONAL RIGHTS COLLECTIVE OF CANADA (ERCC)
for the reproduction and performance of works or other subject-matter that have been communicated to the public by telecommunication, by educational institutions or persons acting under their authority, during the calendar years 2003, 2004, 2005 and 2006.
Notes (these notes are not part of the tariff)
(1) The following notes are based on sections 29.5, 29.6 and 29.7 of the Copyright Act, and are provided for ease of reference.
(2) Except in respect of the acts described in note (3), this tariff applies to the following acts when done by an educational institution or a person acting under its authority:
(a) the making of a single copy of a work or other subject-matter at the time that it is communicated to the public by telecommunication, and
(b) the performance of that copy in public for educational and training purposes on the premises of the educational institution before an audience consisting primarily of students of the educational institution.
(3) No royalty is payable under this tariff for the following acts when done by an educational institution or a person acting under its authority in compliance with the applicable provisions of the Copyright Act:
(a) the performance in public under the specified conditions of a sound recording or of a work or a performer's performance that is embodied in a sound recording;
(b) the performance in public under the specified conditions of a work or other subject-matter at the time of its communication to the public by telecommunication;
(c) the making of a single copy of a news program or of a news commentary program, excluding documentaries, provided such copy is destroyed within the expiration of one year after making such copy;
(d) the performance of the copy made under note (3)(c) at any time or times within one year after the making of that copy, before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes; and
(e) the making of a single copy of a work or other subject-matter at the time that it is communicated to the public by telecommunication, provided that the copy is destroyed within thirty days thereof, and is not performed in public.
(4) For the purposes of note (3), the term "specified conditions" means when an act is done on the premises of an educational institution for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution or any person who is directly responsible for setting a curriculum for the educational institution.
Short Title
1. This tariff may be cited as the Educational Rights Tariff, 2003-2006.
Definitions
2. Except where otherwise specified, all expressions used in this tariff shall have the same meaning as under the Copyright Act, as amended.
3. "Educational institution" has the meaning attributed to it in section 2 of the Copyright Act, which reads:
" ' Educational institution ' means:
(a) a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education,
(b) a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training,
(c) a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraphs (a) or (b), or
(d) any other non-profit institution prescribed by regulation."
4. "FTE Student" means
(a) in respect to students at the pre-school level, each enrolled student of the educational institution, the total number of which is reported by the institution to the Ministry of Education for the academic year immediately preceding the academic year in which payment is made, provided that this number is divided in half.
(b) in respect to students at the elementary or secondary level, each enrolled student of the educational institution, the total number of which is reported by the institution to the Ministry of Education for the academic year immediately preceding the academic year in which payment is made.
(c) in respect to all other students,
(i) each full-time student of the educational institution, the total number of which is as reported by the institution to Statistics Canada for the academic year immediately preceding the academic year in which payment is made, and
(ii) each part-time student of the institution, the total number of which is as reported by the institution to Statistics Canada for the academic year immediately preceding the academic year in which payment is made, provided that this number is divided by 3.5;
where a student is a person enrolled in an educational, cultural or recreational activity including distance education or a correspondence course taking place on the premises of, or being administered or operated by, the institution.
Application
5. This tariff applies to all acts done by an educational institution or a person acting under its authority that give rise to an obligation to pay royalties under subsections 29.6(2), 29.7(2) or 29.7(3) of the Act. (See Notes).
THE TARIFF
Alternative Tariff Arrangements
6. (1) For all or part of a calendar year, an educational institution may operate either under the comprehensive tariff, described in section 7 to 10 below, or under the transactional tariff, described in sections 11 to 13 below.
(2) Unless an educational institution has elected to operate under the comprehensive tariff, it shall be deemed to be operating under the transactional tariff if it engages in activities for which a royalty is payable under this tariff.
Comprehensive Tariff
7. If an educational institution elects to operate under the comprehensive tariff in any calendar year, it shall pay the annual royalties stipulated in section 8.
8. (1) Subject to subsection (2), an educational institution electing to operate under the comprehensive tariff shall pay an annual royalty for each FTE Student receiving education from such institution,
(a) for each FTE Student receiving pre-school, elementary or secondary education from such institution,
(i) $2.40 for 2003,
(ii) $2.45 for 2004,
(iii) $2.51 for 2005,
(iv) $2.56 for 2006; and
(b) for each other FTE Student receiving education from such institution,
(i) $4.80 for 2003,
(ii) $4.90 for 2004,
(iii) $5.02 for 2005, and
(iv) $5.12 for 2006.
(2) An educational institution that commences operation under this tariff after the beginning of a calendar year may pro-rate the royalties for that year to the number of days remaining in that calendar year.
(3) For the purposes of subsection (2), operation is commenced under this tariff within a particular calendar year on the earlier of
(a) in the case of a copy of a work or other subject-matter made at the time it is communicated to the public by telecommunication under paragraph 29.6(1)(a) of the Act, the day one year after the day on which such copy was made, unless the copy was destroyed within that one year period;
(b) in the case of a copy of a work or other subject-matter made at the time it is communicated to the public by telecommunication, other than under paragraph 29.6(1)(a) of the Act, the day thirty days after the day on which such copy was made, unless the copy was destroyed within that 30 day period;
(c) in the case of a copy of a work or other subject-matter made at the time it is communicated to the public by telecommunication, other than under paragraph 29.6(1)(a) of the Act, the first day on which that copy is performed in public;
provided that if the day calculated as above falls in a previous calendar year, and the copy has not been destroyed within one year of such day, operation shall be deemed to have commenced under this tariff on the first day of the particular calendar year.
(4) For the purposes of subsection (1), the calculation of the number of students shall be based on the most recently available number of FTE Students receiving education from such institution, as reported pursuant to subsection 16(1).
9. Where an educational institution has operated under the comprehensive tariff in one or more calendar years but elects not to continue such operation in the following calendar year, it shall pay a royalty of 50 per cent of the royalties stipulated under section 12 for each copy of a work or other subject-matter that was made under the comprehensive tariff and that was not destroyed
(a) on or before December 31 of the last calendar year for which the comprehensive tariff was applicable,
(b) within one year of after the making of the particular copy, or
(c) in the case of copies made under paragraph 29.6(1)(a) of the Act within two years of the making of the particular copy,
whichever is later, and thereafter such copies shall be deemed to have been made under the transactional tariff.
10. Payment of the royalty stipulated in section 8 and compliance with all other requirements of this tariff and with the Copyright Act shall entitle the educational institution or any persons acting under its authority
(a) to make a single copy of a work or other subject-matter at the time it is communicated to the public by telecommunication with respect to any number of works or other subject-matter in the calendar year for which the royalty is paid, and
(b) to perform that copy, and copies made under the comprehensive tariff in previous years, on as many occasions as desired in the calendar year for which the royalty is paid, and for a period of 12 months after the date on which the copy was made, in public for educational and training purposes on the premises of the educational institution before an audience consisting primarily of students of the educational institution.
Transactional Tariff
11. If an educational institution operates under the transactional tariff in any calendar year, it shall pay the royalties stipulated in section 12.
12. (1) An educational institution operating under the transactional tariff shall pay a royalty for each copy of a work or other subject-matter that is made:
(a) where the copy is of a work or other subject-matter communicated to the public by a radio signal, a royalty for each minute or part thereof, of
(i) $0.20 for a copy made in 2003,
(ii) $0.20 for a copy made in 2004,
(iii) $0.21 for a copy made in 2005,
(iv) $0.21 for a copy made in 2006;
(b) where the copy is of a work or other subject-matter communicated to the public by a television signal, a royalty for each minute or part thereof, of
(i) $2.40 for a copy made in 2003,
(ii) $2.45 for a copy made in 2004,
(iii) $2.51 for a copy made in 2005, and
(iv) $2.56 for a copy made in 2006.
(2) For the purpose of subsection (1), if the copy is made of a work or other subject-matter that is received by the Internet,
(a) it shall be deemed to be communicated to the public by a television signal unless there is no visual component to the work or other subject-matter, or the visual component consists only of alphanumeric or still images (including graphic images), in which case it shall be deemed to be communicated to the public by a radio signal; and
(b) the number of minutes applicable to the copy shall be measured by the number of minutes it takes to perform or display the copy of the work or other subject-matter to a student.
13. Payment of the royalty stipulated in section 12 and compliance with all other requirements of this tariff and with the Copyright Act shall entitle the educational institution or any persons acting under its authority to make one copy of the work or other subject-matter and to perform that copy in public one or more times for educational and training purposes on the premises of the educational institution before an audience consisting primarily of students of the educational institution.
General
14. All royalties payable under these tariffs are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
ADMINISTRATIVE PROVISIONS
Reporting and Payment Dates
15. Except as specified in section 16, all reports, notices and payments made to ERCC by educational institutions shall be made on January 31, May 31 and September 30 in each calendar year, which dates are referred to herein as the Reporting and Payment Dates.
Registration and Election
16. (1) On the first occasion that an educational institution contacts ERCC for any reason under this tariff, it shall provide its name and address for purposes of notice, the most recently available number of FTE Students receiving education from such institution that were receiving pre-school, elementary or secondary education, the most recently available number of other FTE Students receiving education from such institution, and the name and address of the person to whom invoices should be sent should royalties be payable, and such information shall be updated on September 30 of each calendar year that the institution avails itself of this tariff.
(2) Upon being initially contacted by an educational institution, ERCC shall assign and communicate to that institution a unique institution identification number.
(3) Each educational institution which elects to operate under the comprehensive tariff shall notify ERCC to that effect. The educational institution shall be deemed to have elected to continue operation under the comprehensive tariff in the following year unless prior to the beginning of such following year it has notified ERCC that it does not wish to do so.
Payment of Royalties
17. (1) For each calendar year for which the educational institution has elected to operate under the comprehensive tariff, payment of royalties thereunder shall be made to ERCC in three instalments, on the three Reporting and Payment Dates, and the educational institution or the person responsible for the payment of its royalties shall pay to ERCC on each such date one-third of the royalties owing for that year.
(2) Except as provided in subsection (3), payment of royalties under the transactional tariff shall be made to ERCC on each Reporting and Payment Date, in respect of activities triggering royalties that take place in the four calendar months preceding the previous Reporting and Payment Date.
(3) Payment of royalties under the transactional tariff in respect to activities triggering royalties that take place prior to the four calendar months preceding the previous Reporting and Payment Date and that have not been previously invoiced shall be made on the Reporting and Payment Date next following the date 60 days after the sending of the invoice to the educational institution.
(4) ERCC shall send an invoice to each educational institution from which royalties are or may be payable hereunder, addressed to the person to whom such invoices were requested to be sent, at least 60 days prior to the relevant Reporting and Payment Date.
(5) ERCC may adjust an invoice on a retroactive basis to correct errors or omissions.
Accounts and Records
18. ERCC may, itself or through a designated representative, on reasonable notice and during normal business hours, audit the educational institution's accounts and records. Should any audit disclose that royalties paid to ERCC were understated by more than five per cent (5%), the person responsible for the payment of the royalties shall pay the reasonable costs of audit within thirty (30) days of the demand for such payment.
Adjustments
19. (1) Subject to subsection (2), adjustments in the amount of royalties owed by the educational institution or by the person responsible for the payment of the royalties (including excess payments), as a result of the discovery of an error or omission, shall be made on the date the next royalty payment is due.
(2) The educational institution or the person responsible for the payment of the royalties may deduct any amount owed to it from its next royalty payments until no money remains owed to it, or, if the total overpayment has not been extinguished within a year, may apply to ERCC for a refund which shall be paid by ERCC to the educational institution within thirty (30) days of the receipt of such application.
Interest on Late Payments
20. (1) Any amount not received by the due date shall bear interest from that date until the date the amount is received.
(2) Any amount found to be owing, through an audit or otherwise, shall bear interest from the date it was due until the date the amount is received.
(3) Any amount that cannot be delivered at the address referred to in section 21 shall bear interest from the date when the person owing the amount receives notice of the new address to which it should be delivered until the date the amount is received.
(4) Interest shall be calculated daily, at the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada) plus one per cent. Interest shall not compound.
Addresses for Notices, etc.
21. (1) Anything that the educational institution or the person responsible for the payment of the royalties sends to ERCC shall be sent to P.O. Box 658, 31 Adelaide Street East, Toronto, Ontario M5C 2J8, e-mail: info@ercc.ca, or to any other address of which the person responsible for the payment of the royalties has been notified.
(2) Anything that ERCC sends to the educational institution or the person responsible for the payment of the royalties shall be sent to the address provided to ERCC in accordance with section 16 or to any other address of which ERCC has been notified.
Delivery of Notices and Payments
22. (1) A notice may be delivered by hand, by postage paid mail, by telecopier, by e-mail, or by other mutually agreed means.
(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 telecopier or by e-mail shall be presumed to have been received the day it is transmitted.
23. (1) Any person that ERCC designates to receive on its behalf a payment or notice shall have an address in Canada.
(2) ERCC shall notify the educational institution or the person responsible for the payment of the royalties at least 60 days in advance of such a designation or of any change therein.
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