Canada Gazette, Part I, Volume 151, Number 25: COPYRIGHT BOARD

June 24, 2017

FILE: Reproduction of Sound Recordings

Statement of Proposed Royalties to Be Collected from Commercial Radio Stations by Connect Music Licensing Services Inc. and the Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (Connect/SOPROQ) for the Reproduction, in Canada, of Sound Recordings

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by Connect/SOPROQ on March 30, 2017, with respect to royalties it proposes to collect, effective on January 1, 2018, for Commercial Radio Stations for the year 2018.

In accordance with the provisions of the same subsection, the Board hereby gives notice that any person who wishes 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 August 23, 2017.

Ottawa, June 24, 2017

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 FROM COMMERCIAL RADIO STATIONS BY CONNECT MUSIC LICENSING SERVICE INC. AND THE SOCIÉTÉ DE GESTION COLLECTIVE DES DROITS DES PRODUCTEURS DE PHONOGRAMMES ET DE VIDÉOGRAMMES DU QUÉBEC (CONNECT/SOPROQ) FOR THE REPRODUCTION, IN CANADA, OF SOUND RECORDINGS FOR THE YEAR 2018

Short Title

1. This tariff may be cited as the Connect/SOPROQ Commercial Radio Tariff, 2018.

Definitions

2. In this tariff,

“Act” means the Copyright Act; (« Loi »)

“gross income” means the gross amounts paid by any person for the use of one or more broadcasting services or facilities provided by a station's operator, including the value of any goods or services provided by any person in exchange for the use of such services or facilities, and the fair market value of non-monetary consideration (e.g. barter or “contra”), but excluding the following:

• (a) income accruing from investments, rents or any other business unrelated to the station's broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station's broadcasting services and facilities or that results in their being used, including the gross amounts received by a station pursuant to turnkey contracts with advertisers, shall be included in the “gross income”;
• (b) amounts received for the production of a program that is commissioned by someone other than the station and that becomes the property of that person;
• (c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the station can establish that the station was also paid normal fees for station time and facilities; and
• (d) amounts received by an originating station acting on behalf of a group of stations, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station subsequently pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station's “gross income”; (« revenus bruts »)

“low-use station” means a station that

• (a) broadcasts published sound recordings of musical works for less than 20 per cent of its total broadcast time (excluding production music) during the reference month; and
• (b) keeps and makes available to Connect/SOPROQ complete recordings of its last 90 broadcast days; (« station utilisant peu d'enregistrements sonores »)

“month” means a calendar month; (« mois »)

“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)

“reference month” means the second month before the month for which royalties are being paid; (« mois de référence »)

“service provider” means a professional service provider that may be retained by a collective society to assist in the conduct of an audit or in the distribution of royalties to rights holders; (« prestataire de services »)

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

Application

3. (1) This tariff sets the royalties to be paid each month by commercial radio stations, in connection with the over-the-air broadcasting operations of a station, to reproduce in Canada sound recordings in the repertoire of Connect or SOPROQ, including performers' performances embodied therein which Connect or SOPROQ administer on behalf of the makers or other rights holders of the sound recordings.

(2) This tariff does not authorize the use of any reproduction made pursuant to subsection (1) in association with a product, service, cause or institution.

Royalties

4. A low-use station shall pay, on its gross income for the reference month, 0.134% of the station's first $625,000 gross income in a year, 0.257% of the station's next $625,000 gross income in a year, and 0.431% on the rest.

5. Except as provided in section 4, a station shall pay, on its gross income for the reference month, 0.302% of the station's first $625,000 gross income in a year, 0.593% of the station's next $625,000 gross income in a year, and 1.232% on the rest.

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

7. For the purposes of determining royalties payable under sections 4 and 5, where two or more stations, including low-use stations, are owned or controlled by the same company, the station shall pay royalties based on the total combined gross income for the year of all of the stations owned or controlled by the company.

Administrative Provisions

8. No later than the first day of each month, a station shall

• (a) pay the royalties for the month;
• (b) report its gross income for the reference month;
• (c) report the call letters of any other station or stations with which it is under common ownership or control; and
• (d) provide to Connect/SOPROQ the sequential lists of all published sound recordings, or parts thereof, broadcast by the station during each day of the reference month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year.

9. At any time during the period set out in subsection 11(2), Connect/SOPROQ may require the production of any contract granting rights referred to in paragraph (c) of the definition of “gross income”, together with the billing or correspondence relating to the use of these rights by other parties.

Information on Repertoire Use

10. (1) Each entry provided under paragraph 8(d) shall include the following information:

• (a) the date of the broadcast;
• (b) the time of the broadcast;
• (c) the title of the sound recording;
• (d) the title of the musical work;
• (e) the title of the album;
• (f) the catalogue number of the album;
• (g) the track number on the album;
• (h) the record label;
• (i) the name of the author and composer;
• (j) the name of all performers or the performing group;
• (k) the duration of the sound recording broadcast, in minutes and seconds;
• (l) the duration of the sound recording as listed on the album, in minutes and seconds;
• (m) the Universal Product Code (UPC) of the album;
• (n) the International Standard Recording Code (ISRC) of the sound recording;
• (o) the type of usage (feature, theme, background, etc.);
• (p) whether the track is a published sound recording; and
• (q) the cue sheets for syndicated programming, with the relevant music use information inserted into the report.

(2) The information set out in subsection (1) shall be provided in electronic format (Excel format or any other format agreed upon by Connect/SOPROQ and the station), with a separate field for each piece of information required in subsection (1) other than the cue sheets which are to be used to insert the relevant music use information into each field of the report.

Records and Audits

11. (1) A station 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 subsection 10(1) can be readily ascertained.

(2) A station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the station's gross income can be readily ascertained.

(3) Connect/SOPROQ may audit the records referred to in subsections (1) and (2) at any time during the period set out therein, on reasonable notice and during normal business hours.

(4) Connect/SOPROQ shall, upon receipt, supply a copy of the report of the audit to the station that was the subject of the audit and may, upon request, supply a copy to another collective society in Canada that has secured a certified tariff applicable to commercial radio stations.

(5) If an audit discloses that royalties due have been understated in any month by more than 10 per cent, the station shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

12. (1) Subject to subsections (2), (3) and (4), information received from a station pursuant to this tariff shall be treated in confidence, unless the station that supplied the information consents in writing and in advance to each proposed disclosure of the information.

(2) Information referred to in subsection (1) may be shared

• (a) amongst the collective societies in Canada that have secured certified tariffs applicable to commercial radio stations, and those collectives' service providers, to the extent required by the service providers for the service they are contracted to provide;
• (b) with the Copyright Board;
• (c) in connection with proceedings before the Board, if the station had the opportunity to request that it be protected by a confidentiality order;
• (d) to the extent required to effect the distribution of royalties, with royalty claimants; or
• (e) if required by law.

(3) Where confidential information is shared with service providers as per paragraph (2)(a), those service providers shall sign a confidentiality agreement that shall be shared with the affected station prior to the release of the information.

(4) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the station that supplied the information and who is not under an apparent duty of confidentiality in relation to that information.

Adjustments

13. (1) A station making a payment under this tariff, which subsequently discovers an error in the payment, shall notify Connect/SOPROQ of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the station that occurred more than 12 months prior to its discovery and notification to Connect/SOPROQ.

(2) When an error is discovered by Connect/SOPROQ at any point in time, Connect/SOPROQ shall notify the station to which the error applies, and an appropriate adjustment shall be made to the next payment due following notification.

(3) The 12-month limit in subsection (1) shall not apply to an error discovered by Connect/SOPROQ, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 11(3).

Interest on Late Payments and Reporting

14. In the event that any amount or report owed by a station under paragraph 8(1) is not provided to Connect/SOPROQ by the due date, the station shall pay to Connect/SOPROQ interest calculated on the amount owed from the due date until the date both the amount and the report are received by Connect/SOPROQ. 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).

Addresses for Notices, etc.

15. (1) Anything addressed to Connect shall be sent to 85 Mowat Avenue, Toronto, Ontario M6K 3E3, email: radioreproduction@connectmusic.ca, fax number: 416-967-9415, or to any other address, email address or fax number of which a station has been notified in writing.

(2) Anything addressed to SOPROQ shall be sent to 6420 Saint-Denis Street, Montréal, Quebec H2S 2R7, email: radioreproduction@soproq.org, fax number: 514-842-7762, or to any other address, email address or fax number of which a station has been notified in writing.

(3) Anything addressed to a station shall be sent to the last address, email address or fax number of which Connect/SOPROQ has been notified in writing.

Delivery of Notices and Payments

16. (1) Royalties payable to Connect/SOPROQ are paid to Connect. All other information to which Connect/SOPROQ is entitled pursuant to this tariff is delivered to Connect and SOPROQ separately.

(2) A notice may be delivered by file transfer protocol (FTP), by hand, by postage-paid mail, by email or by fax. A payment must be delivered by hand, by postage-paid mail, or by electronic bank transfer (EBT), provided that the associated reporting is provided concurrently to each of Connect and SOPROQ by email.

(3) Information set out in sections 8 and 10 shall be sent by email.

(4) Anything mailed in Canada shall be presumed to have been received four business days after the day it was mailed.

(5) Anything sent by fax, email, FTP or EBT shall be presumed to have been received the day it was transmitted.