Canada Gazette, Part I, Volume 149, Number 21: SUPPLEMENT

May 23, 2015

COPYRIGHT BOARD

FILE: Reprography 2005-2014

Tariff of Royalties to Be Collected for the Reproduction, in Canada, from 2005 to 2014, of Works in Access Copyright's Repertoire by Employees of Provincial and Territorial Governments

In accordance with subsection 70.15(1) of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected by the Canadian Copyright Licensing Agency (Access Copyright) for the reproduction, in Canada, from 2005 to 2014, of works in its repertoire by employees of provincial and territorial governments.

Ottawa, May 23, 2015

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 ROYALTIES TO BE COLLECTED BY THE CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)

For the reproduction, in Canada, from 2005 to 2014, of works in the repertoire of Access Copyright by employees of provincial and territorial governments.

Short Title

1. This tariff may be cited as the Access Copyright Provincial and Territorial Governments Tariff, 2005-2014.

Definitions

2. In this tariff,

“copy” means a reproduction of a published work made by any of the following processes:

• (a) reprography, which includes facsimile reproduction by photocopying and xerography;
• (b) reproducing onto microform (including microfilm and microfiche);
• (c) typing or word-processing without adaptation;
• (d) reproducing by a machine, device or computer that makes a digital copy;
• (e) hand transcription or drawing (including tracing) onto acetate or other media;
• (f) duplicating from a stencil;
• (g) facsimile transmission;
• (h) video telecommunication; and
• (i) printing from an electronic file, in the case of reproductions made on or after January 1, 2010,

but excludes the digital copy. (« copie »)

“copying” means making a copy. (« copier »)

“digital copy” means any electronic file of a published work. (« copie numérique »)

“employee” means an employee of one of the licensees, as determined in accordance with the applicable enactments, policies, and bookkeeping practices of that licensee. (« employé »)

“FTE” means a full-time employee or a part-time employee whose combined ordinary working hours are counted in proportion to a full-time employee's ordinary working hours. (« ETP »)

“licensee” means Her Majesty the Queen in Right of British Columbia, Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Saskatchewan, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of Ontario, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of Newfoundland and Labrador, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of the Yukon Territory, Her Majesty the Queen in Right of the Northwest Territories and Her Majesty the Queen in Right of the Nunavut Territory. (« titulaire de licence »)

“published work” means a literary, dramatic or artistic work protected by copyright in Canada, or a part of such work, of which copies have been issued to the public with the consent or acquiescence of the copyright owner, including but not limited to books, folios, magazines, newspapers, journals and other periodical publications. (« œuvre publiée »)

“repertoire” means those published works published in or outside of Canada by any author or publisher, estate of an author or publisher or other person with a copyright interest in the published works who, by assignment, grant of licence or by appointment as an agent or otherwise, has authorized Access Copyright to collectively administer reproduction rights in published works and those published works published in or outside of Canada by other copyright owners where an agreement between Access Copyright and another reproduction rights collective society authorizes Access Copyright to represent such other copyright owners. (« répertoire »)

“year” means a calendar year. (« année »)

Application

3. Subject to section 4, an FTE shall be permitted to make and distribute copies of published works in the repertoire, for the purpose of conducting the business of the licensee, including for purposes of delivery of government programs and services by means of activities such as, but not limited to, professional, research, archival, communication and administrative activities of the licensee, as follows:

• (a) copy up to ten (10) per cent, provided that such limit may be exceeded in respect of the following portions:
  • (i) an entire newspaper article or page,
  • (ii) an entire short story, play, essay or article,
  • (iii) an entire poem,
  • (iv) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
  • (v) an entire reproduction of an artistic work (including drawings, paintings, prints, photographs and reproductions of works of sculpture, architectural works of art and works of artistic craftsmanship), and
  • (vi) one entire chapter, provided it is no more than twenty (20) per cent of a book;
• (b) make a copy to be used to project, display or interact with an image for presentation using, but not limited to, an overhead projector, LCD or plasma monitor, or interactive whiteboard;
• (c) make a copy to replace any damaged or missing pages in the licensee's holdings. If the total number of replacement pages is more than twenty (20) per cent of a published work, then the licensee shall make reasonable efforts to secure a new replacement of the published work within a reasonable period of time; and
• (d) subject to paragraph 3(a), distribute
  • (i) copies to FTEs, and
  • (ii) copies to persons other than to FTEs.
    

General Limitations

• 4. (a) Copies may only be made from published works that are lawfully obtained by the licensee.
• (b) There shall be no intentional cumulative copying from the same published work beyond the limits set out in paragraph 3(a).
• (c) Copies shall not be made as a substitute for published works that would ordinarily be purchased.
• (d) Copies shall not be made of a published work that contains a notice prohibiting reproduction under a licence from a collective society.
• (e) Copies shall not be sold for an amount that exceeds the costs of making and distributing such copies, including an allowance for the royalties payable under this tariff.
• (f) Copies shall not be used in advertising products or services.
• (g) Copies shall be faithful and accurate reproductions of the original published work.
• (h) Copies shall not be made or used in a manner that would infringe the moral rights of any author.
  

Attribution

5. The licensee shall notify all persons under its authority who are entitled to make copies under this tariff that, where reasonable under the circumstances, copies made and/or distributed shall include, on at least one page

• (a) a credit to the author (including writer, artist, illustrator and photographer) and to the source; and
• (b) a notice stating “Copied under licence from Access Copyright.”

Notification of the Terms and Conditions of Copying

6. Access Copyright may provide, for free, a notice in the form set out in the Appendix. Each licensee shall make reasonable and good faith efforts to affix the notice within the immediate vicinity of each photocopier used for making copies in such a way that the notice is readily visible to, and legible by, persons using the photocopier.

Royalties

• 7. (a) The licensee shall pay an annual royalty to Access Copyright, calculated by multiplying the royalty rate of,
  • (i) for the years 2005 to 2009: 11.56¢
  • (ii) for the years 2010 to 2014: 49.71¢
• by the number of its FTEs.
• (b) The annual royalty payable under this tariff is exclusive of any federal or provincial taxes.
  

Reporting and Payment

• 8. (a) No later than January 31 of each year of this tariff, the licensee shall provide to Access Copyright the number of its FTEs covered by this tariff.
• (b) Access Copyright will invoice the licensee by March 1 of each year of this tariff and such invoice shall be payable within thirty (30) days of the issue date.
• (c) The licensee shall keep records of all copies made for external distribution pursuant to subparagraph 3(d)(ii) in a form and manner prescribed by Access Copyright. The licensee shall provide these external distribution records to Access Copyright within thirty (30) days of the end of each quarterly period.
  

Interest for 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 (1) 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.

Surveying

10. As requested by Access Copyright, but not more than once, the licensee shall cooperate with Access Copyright in measuring a sample of the licensee's libraries' holdings and circulation. Access Copyright will work with the licensee to ensure compliance with legislative and policy requirements concerning privacy, security and non-disclosure. Access Copyright will only collect this information for the purpose of distributing royalties. Any request by Access Copyright must be made no later than one year after the publication of this tariff.

Records and Audits

• 11. (a) The licensee shall keep and preserve, for a period of six (6) years, records from which the royalties due to Access Copyright under this tariff can be readily ascertained.
• (b) No more than once per year, Access Copyright, or its representative, may audit these records on fifteen (15) days' written notice to the licensee and during normal business hours.
• (c) Access Copyright shall, upon receipt, supply a copy of the report of the audit to the licensee which was the subject of the audit.
• (d) If an audit discloses that royalties due pursuant to section 7 have been understated by more than ten (10) per cent, the licensee shall pay the reasonable costs of the audit within thirty (30) days of the demand for such payment.
• (e) In the event that an audit reveals an overpayment, the licensee may reduce the amount due on the next royalty payment by the amount of such overpayment.
  

Addresses for Notices and Payment

• 12. (a) Notices to Access Copyright shall be sent to
  • Executive Director, Access Copyright
    The Canadian Copyright Licensing Agency
    One Yonge Street, Suite 800
    Toronto, Ontario
    M5E 1E5
    Telephone: 416-868-1620
    Fax: 416-868-1621
    Email: governmenttariff@accesscopyright.ca
• (b) Notices to the licensee shall be sent to the last address of which Access Copyright has been notified in writing.
  

Delivery of Notices and Payment

• 13. (a) A notice may be delivered by hand, by postage-paid mail, fax or email. Payments shall be delivered by hand, by postage-paid mail or by electronic bank transfer.
• (b) A notice or payment mailed in Canada shall be presumed to have been received three (3) business days after the day it was mailed.
• (c) A notice sent by fax or email shall be presumed to have been received on the first business day following the day it is transmitted.

Transitional Provisions

• 14. (a) In relation to each of the years from 2005 to 2014, the licensee shall, in lieu of paragraph 8(a), provide to Access Copyright the number of its FTEs covered by this tariff within 60 days of publication of this tariff.
• (b) In relation to each of the years from 2005 to 2014, Access Copyright shall, in lieu of paragraph 8(b), invoice the licensee within 120 days of publication of this tariff, and the invoice shall be payable within 60 days of receipt of the invoice.
• (c) Any amount payable in relation to each of the years from 2005 to 2014 shall be increased by using the multiplying interest factor (based on the Bank of Canada rate) set out in the following table with respect to each period:
  

2005	2006	2007	2008	2009	2010	2011	2012	2013	2014
1.2127	1.1808	1.1360	1.0910	1.0665	1.0615	1.0510	1.0385	1.0260	1.0135

• (d) The obligation set out in paragraph 8(c) only applies to copies made after the end of the quarterly period during which this tariff is published.
• (e) Notwithstanding paragraph 11(a), the licensee shall keep and preserve the records referred to in that paragraph for the period of January 2005 to December 2009 for one year following the publication of this tariff.
• (f) Notwithstanding paragraph 11(b), in relation to each of the years from 2005 to 2014, Access Copyright, or its representative, may once audit the records referred to in that paragraph on fifteen (15) days' written notice to the licensee and during normal business hours.

APPENDIX

Under the Access Copyright Provincial and Territorial Governments Tariff, 2005-2014, employees of provincial and territorial governments may make and distribute copies of published works in Access Copyright's repertoire, for the purpose of conducting the business of the government, including for purposes of delivery of government programs and services by means of activities such as, but not limited to, professional, research, archival, communication and administrative activities of the licensee, as follows:

• (a) copy up to ten (10) per cent, provided that such limit may be exceeded in respect of the following portions:
  • (i) an entire newspaper article or page,
  • (ii) an entire short story, play, essay or article,
  • (iii) an entire poem,
  • (iv) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
  • (v) an entire reproduction of an artistic work (including drawings, paintings, prints, photographs and reproductions of works of sculpture, architectural works of art and works of artistic craftsmanship), and
  • (vi) one entire chapter, provided it is no more than twenty (20) per cent of a book;
• (b) make a copy to be used to project, display or interact with an image for presentation using, but not limited to, an overhead projector, LCD or plasma monitor, or interactive whiteboard;
• (c) make a copy to replace any damaged or missing pages in the licensee's holdings. If the total number of replacement pages is more than twenty (20) per cent of a published work, then the licensee shall make reasonable efforts to secure a new replacement of the published work within a reasonable period of time; and
• (d) subject to paragraph (a) above, distribute
  • (i) copies to employees, and
  • (ii) copies to persons other than to employees.
    

General Limitations

• (a) Copies may only be made from published works that are lawfully obtained by the licensee.
• (b) There shall be no intentional cumulative copying from the same published work beyond the limits set out above.
• (c) Copies shall not be made as a substitute for published works that would ordinarily be purchased.
• (d) Copies shall not be made of a published work that contains a notice prohibiting reproduction under a licence from a collective society.
• (e) Copies shall not be sold for an amount that exceeds the costs of making and distributing such copies, including an allowance for the royalties payable under this tariff.
• (f) Copies shall not be used in advertising products or services.
• (g) Copies shall be faithful and accurate reproductions of the original published work.
• (h) Copies shall not be made or used in a manner that would infringe the moral rights of any author.