Canada Gazette, Part I, Volume 151, Number 35: COPYRIGHT BOARD
September 2, 2017
Statement of Royalties to Be Collected by Re:Sound for the Performance in Public or the Communication to the Public by Telecommunication, in Canada, of Published Sound Recordings Embodying Musical Works and Performers' Performances of Such Works
In accordance with subsection 68(4) of the Copyright Act, the Copyright Board has certified and hereby publishes the statement of royalties to be collected by Re:Sound Music Licensing Company (Re:Sound) for the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers' performances of such works by background music suppliers for the years 2010 to 2013 (Tariff 3.A) and for the use of background music for the years 2010 to 2015 (Tariff 3.B).
Ottawa, September 2, 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 BY RE:SOUND FOR THE PERFORMANCE IN PUBLIC OR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS AND PERFORMERS' PERFORMANCES OF SUCH WORKS FOR THE YEARS 2010-2015
GENERAL PROVISIONS
All royalties payable under this tariff are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
Tariff No. 3.A
BACKGROUND MUSIC SUPPLIERS
Short Title
1. This tariff may be cited as the Re:Sound Background Music Suppliers Tariff, 2010-2013.
Definitions
2. (1) In this tariff,
“Act” means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« Loi »)
“background music supplier” means a person who provides a service of supplying recorded music for performance in public by an establishment dealing at arm's length; (« fournisseur de musique de fond »)
“establishment” means a place to which the public, including employees, has access, and includes, but is not limited to, a retail store, restaurant, hotel, bar, workplace, park, club or school, as well as a means of public transportation. In the case of a business which has multiple locations, each separate location is a separate establishment; (« établissement »)
“recorded music” means published sound recordings embodying musical works and performers' performances of such works; (« musique enregistrée »)
“revenues” means any amount paid to subscribe to a background music service, net of any amount paid by the subscriber for the equipment provided to him; (« recettes »)
“small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 (Canada Gazette,Part II, Vol. 128, page 4096), amended by SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« petit système de transmission par fil »)
“year” means a calendar year. (« année »)
(2) For the purposes of this tariff, related persons shall be deemed not to deal with each other at arm's length, unless the related person who provides a service of supplying recorded music for the performance in public by an establishment (the “Related Music Supplier”)
- (a) also provides that service to the public and not only to related persons; and
- (b) the amount that the Related Music Supplier charges related persons for that service is no less than the lowest amount that the Related Music Supplier charges the public for a similar service.
Application
- 3. (1) This tariff sets for the years 2010 to 2013 the royalties to be paid to Re:Sound, for the benefit of performers and makers, by a background music supplier, for the communication to the public by telecommunication of recorded music in the repertoire of Re:Sound or for the authorization of a subscriber to perform in public recorded music in the repertoire of Re:Sound, including any use of such recorded music with a telephone on hold.
- (2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to a previously certified Re:Sound tariff.
Royalties Payable When Recorded Music is Provided by a Background Music Supplier
- 4. (1) Subject to subsection (4), a background music supplier who communicates recorded music in the repertoire of Re:Sound during a quarter pays to Re:Sound 0.97% of revenues received during the quarter, subject to a minimum of $0.64 per subscriber per establishment per quarter.
- (2) Subject to subsections (3) and (4), a background music supplier who pays on behalf of subscribers the royalties for the performance in public of the recorded music in Re:Sound's repertoire by the subscribers pays to Re:Sound 3.2% of revenues from those subscribers during the quarter, subject to a minimum of $2.15 per subscriber per establishment per quarter.
- (3) Where a background music supplier pays on behalf of a subscriber royalties for the performance in public referred to in subsection (2), that subscriber is not required to pay royalties pursuant to Re:Sound Tariff 3.B or Tariff 6.B.
- (4) Royalties payable by a small cable transmission system are reduced by half.
Reporting Requirements
- 5. (1) No later than 60 days after the end of the quarter, a background music supplier making a payment pursuant to section 4 shall pay the royalty for that quarter and shall report the information used to calculate the royalty.
- (2) A background music supplier subject to subsection 4(2) shall provide with its payment the name of each subscriber and the address of each establishment for which the background music supplier is making a payment.
- (3) Information provided pursuant to subsections 5(1) and 5(2) shall be delivered electronically, in plain text format or in any other format agreed upon by Re:Sound and a background music supplier.
Accounts and Records
- 6. (1) A background music supplier shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which its revenues can be readily ascertained, including the subscription rates payable to subscribe to the background music service, a list of the subscribers for which payments are made and copies of background music subscriber invoices.
- (2) Re:Sound may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.
- (3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was subject to the audit.
- (4) If the audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the person who was subject to the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.
Confidentiality
- 7. (1) Subject to subsections (2) and (3), information received by a person pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.
- (2) Information referred to in subsection (1) may be shared
- (a) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Copyright Board, if the person who supplied the information had the opportunity to request a confidentiality order;
- (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and
- (e) if required by law.
- (3) Subsection 7(1) does not apply to information that is publicly available, or to information obtained from someone other than a person subject to this tariff and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.
Adjustments
- 8. (1) A person making a payment under this tariff, who subsequently discovers an error in the payment, shall notify Re:Sound of the error and an appropriate adjustment shall be made to the next payment due following notification.
- (2) When an error is discovered by Re:Sound, Re:Sound shall notify the person to whom the error applies and an appropriate adjustment shall be made to the next payment due following the notification.
Interest on Late Payments
- 9. (1) In the event that a person subject to this tariff does not pay the amount owed under section 4 by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.
- (2) 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.
Addresses for Notices, etc.
- 10. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: licensing@resound.ca, fax number: 416-962-7797, or to any other address, email address or fax number of which the sender has been notified in writing.
- (2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.
Delivery of Notices and Payments
- 11. (1) A notice or payment must be delivered by hand or by postage-paid mail. Anything else may be delivered by hand, by postage-paid mail, by fax or by email.
- (2) Anything mailed in Canada shall be presumed to have been received four days after the day it was mailed.
- (3) Anything sent by fax or email shall be presumed to have been received the day it was transmitted.
Transitional Provisions
- 12. (1) No later than November 30, 2017, a background music supplier shall provide to Re:Sound a statement of the difference between what is owed pursuant to this tariff and what it has already paid for the period from January 1, 2010, to December 31, 2013, and shall supply the information set out in section 5 for each quarter during that period.
- (2) Any amount determined pursuant to subsection (1) that is owed by a background music supplier shall be paid in two equal payments payable on November 30, 2017, and February 28, 2018.
- (3) Any amount determined pursuant to subsection (1) that is owed by Re:Sound shall be refunded in two equal payments payable on November 30, 2017, and February 28, 2018.
- (4) Any amount determined pursuant to subsection (1) shall not bear any interest if it is paid pursuant to subsection (2) or (3).
Tariff No. 3.B
USE OF BACKGROUND MUSIC
Short Title
1. This tariff may be cited as the Re:Sound Background Music Tariff, 2010-2015.
Definitions
2. (1) In this tariff,
“Act” means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« Loi »)
“establishment” means a place to which the public has access, and includes, but is not limited to, a retail store, restaurant, hotel, bar, workplace, park, club or school, as well as a means of public transportation. In the case of a business which has multiple locations, each separate location is a separate establishment; (« établissement »)
“recorded music” means published sound recordings embodying musical works and performers' performances of such works; (« musique enregistrée »)
“trunk line” means a telephone line, whether digital or analog, linking telephone switching equipment to the public switched telephone network. (« ligne principale de standard »)
Application
- 3. (1) This tariff sets for the years 2010 to 2015 the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of recorded music in the repertoire of Re:Sound in an establishment, including any use of such recorded music with a telephone on hold.
- (2) This tariff does not apply to a performance in public or a communication to the public by telecommunication for which royalties are paid by a background music supplier under Re:Sound Tariff 3.A.
- (3) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to a previously certified Re:Sound tariff.
- (4) This tariff is subject to the exception set out in subsection 69(2) of the Act.
Royalties Payable
- 4. (1) For the performance in public or communication to the public by telecommunication of recorded music by telephone on hold, the royalty payable for the relevant year shall be
- (a) for 2010-2012, $46.27 for the first trunk line and $1.02 for each additional trunk line;
- (b) for 2013-2014, $47.94 for the first trunk line and $1.06 for each additional trunk line; and
- (c) for 2015, $49.85 for the first trunk line and $1.11 for each additional trunk line.
- (2) In addition to any royalty payable under subsection (1), the royalty payable for the relevant year for the performance in public or communication to the public by telecommunication of recorded music in an establishment shall be calculated as follows:
- (a) if the number of admissions, attendees, or tickets sold for days or events during which recorded music was played can be established with certainty, that number multiplied by
- (i) 0.0864¢ in 2010-2012,
- (ii) 0.0895¢ in 2013-2014, and
- (iii) 0.0931¢ in 2015;
- (b) if paragraph (a) does not apply, and the capacity of the establishment can be verified, that number, multiplied by the number of days of operation on which recorded music was played, multiplied by
- (i) 0.1620¢ in 2010-2012,
- (ii) 0.1678¢ in 2013-2014, and
- (iii) 0.1745¢ in 2015;
- (c) if neither paragraph (a) nor (b) applies, the number of square metres (square feet) of the area to which the public has access multiplied by the number of days of operation during which background music was played, multiplied by
- (i) 0.2701¢ (0.0249¢) in 2010-2012,
- (ii) 0.2798¢ (0.0258¢) in 2013-2014, and
- (iii) 0.2910¢ (0.0268¢) in 2015; and
- (d) if paragraphs (a), (b) and (c) do not apply, the royalty payable for the relevant year shall be
- (i) $46.27 in 2010-2012,
- (ii) $47.94 in 2013-2014, and
- (iii) $49.85 in 2015.
- (a) if the number of admissions, attendees, or tickets sold for days or events during which recorded music was played can be established with certainty, that number multiplied by
- (3) In all cases, the minimum annual royalties for all recorded music uses under subsection (2) shall be $25 per establishment.
Reporting Requirements
- 5. (1) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 4 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows:
- (a) if that establishment played recorded music in the previous year, the establishment shall pay the amount equal to the royalties owed by the establishment to Re:Sound in the previous year; or
- (b) if that establishment did not play recorded music in the previous year, the establishment shall provide Re:Sound with an estimate of the number of days of operation that the establishment will play recorded music during the year and shall pay royalties to Re:Sound based on that estimate, calculated in accordance with section 4.
- (2) If an establishment making payment pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the establishment first opened.
- (3) In all cases, the establishment making payment under this subsection shall report to Re:Sound all information used to calculate the royalty payment.
- (4) No later than January 31 of the following year (in which an establishment makes a payment to Re:Sound pursuant to subsection 5(1)), the establishment shall report to Re:Sound any changes in the actual number of days of operation that the establishment played recorded music in the previous year and any difference in the amount of royalties payable for that year calculated in accordance with section 4 (from the amount paid under subsection 5(1)).
- (5) If the amount owing exceeds the amount previously paid by the establishment to Re:Sound pursuant to subsection 5(1), the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and shall pay the additional royalties owing to Re:Sound by January 31.
- (6) If the amount owing is less than the amount of the payment made by the establishment to Re:Sound in the previous year, the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and Re:Sound shall credit the amount of the overpayment to the establishment against future payments.
Accounts and Records
- 6. (1) A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person's payment can be ascertained, including information used to determine the choice of calculation, and information required to ascertain days on which recorded music was used.
- (2) Re:Sound may audit these records at any time during the period set out in subsection (1), on reasonable notice and during normal business hours.
- (3) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the person who was subject to the audit.
- (4) If the audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the person who was subject to the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.
Confidentiality
- 7. (1) Subject to subsections (2) and (3), information received by a person pursuant to this tariff shall be treated in confidence, unless the person who supplied the information consents in writing to the information being treated otherwise.
- (2) Information referred to in subsection (1) may be shared
- (a) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;
- (b) with the Copyright Board;
- (c) in connection with proceedings before the Copyright Board, if the person who supplied the information had the opportunity to request a confidentiality order;
- (d) to the extent required to effect the distribution of royalties, with any other collecting body, with royalty claimants and their agents; and
- (e) if required by law.
- (3) Subsection 7(1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than a person subject to this tariff and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.
Adjustments
- 8. (1) A person making a payment under this tariff, who subsequently discovers an error in the payment, shall notify Re:Sound of the error and an appropriate adjustment shall be made to the next payment due following notification.
- (2) When an error is discovered by Re:Sound, Re:Sound shall notify the person to whom the error applies and an appropriate adjustment shall be made to the next payment due following the notification.
Interest on Late Payments
- 9. (1) In the event that a person subject to this tariff does not pay the amount owed under section 4 by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.
- (2) 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.
Addresses for Notices, etc.
- 10. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: licensing@resound.ca, fax number 416-962-7797 or to any other address, email address or fax number of which the sender has been notified in writing.
- (2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.
Delivery of Notices and Payments
- 11. (1) A notice or payment must be delivered by hand or by postage-paid mail. Anything else may be delivered by hand, by postage-paid mail, by fax or by email.
- (2) Anything mailed in Canada shall be presumed to have been received four days after the day it was mailed.
- (3) Anything sent by fax or email shall be presumed to have been received the day it was transmitted.
Transitional Provisions
12. Any amount owed as a result of differences between this tariff and what an establishment has already paid for the period from January 1, 2010, to December 31, 2015, shall be due on November 30, 2017, and shall be increased by using the multiplying interest factors (based on the Bank Rate) set out in the following table with respect to each period. Reports required under section 5 shall also be filed on or before November 30, 2017.
| Year | Interest Factor |
|---|---|
| 2010 | 1.0810 |
| 2011 | 1.0726 |
| 2012 | 1.0601 |
| 2013 | 1.0476 |
| 2014 | 1.0351 |
| 2015 | 1.0226 |