Canada Gazette, Part I, Volume 152, Number 18: SUPPLEMENT

May 5, 2018

COPYRIGHT BOARD

Proposed Statements of Royalties to Be Collected for the Performance in Public or the Communication to the Public by Telecommunication of Published Sound Recordings Embodying Musical Works and Performers' Performances of Such Works

In accordance with subsection 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the proposed statements of royalties filed by Re:Sound Music Licensing Company (Re:Sound) on March 28, 2018, with respect to royalties it proposes to collect, effective January 1, 2019, 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 the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed statements of royalties 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 4, 2018.

Ottawa, May 5, 2018

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)

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEAR 2019

Tariff No. 2

PAY AUDIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Pay Audio Services Tariff, 2019.

Definitions

2. In this tariff,

"affiliation payments" means the total amounts payable by a distribution undertaking to a programming undertaking for the transmission for private or domestic use of a pay audio signal, including the total amounts payable for all programming and services provided by the programming undertaking in a bundle with the pay audio signal, without deduction; (« paiements d'affiliation »)

"device" means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

"distribution undertaking" means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11 as amended; (« entreprise de distribution »)

"file" means a digital file of a sound recording of a musical work or a part thereof, whether or not that sound recording has been published, is in the public domain, is eligible to receive equitable remuneration or is within the repertoire of Re:Sound; (« fichier »)

"pay audio signal" includes all programming and services licensed by the CRTC as a pay audio service as well as all programming and services supplied by a programming undertaking in a bundle with a pay audio service, whether or not for a fee and whether or not licensed by the CRTC as a pay audio service; (« signal sonore payant »)

"play" means the single communication of a file or a part thereof, to a single person; (« écoute »)

"premises" has the meaning attributed to it in section 2 of the Regulations, which currently reads:

"‘premises' means

(a) a dwelling, including a single-unit residence or a single unit within a multiple-unit residence, or
(b) a room in a commercial or institutional building."; (« local »)

"programming undertaking" means a programming undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11; (« entreprise de programmation »)

"Regulations" means 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); (« Règlement »)

"service area" has the meaning attributed to it in section 2 of the Regulations, which currently reads:

"‘service area' means an area in which premises served in accordance with the laws and regulations of Canada by a cable transmission system are located;" (« zone de service »)

"signal" means a television or audio signal, other than a signal within the meaning of subsection 31(1) of the Copyright Act, retransmitted in accordance with subsection 31(2) of the Copyright Act; (« signal »)

"simulcast" means the simultaneous communication of a pay audio signal to which this tariff applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient is unable to exercise any control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

"small cable transmission system" has the meaning attributed to it in sections 3 and 4 of the Regulations, which currently read:

"3. (1) Subject to subsections (2) to (4) and section 4, ‘small cable transmission system' means a cable transmission system that transmits a signal, with or without a fee, to not more than 2,000 premises in the same service area.

(2) For the purpose of subsection (1), where a cable transmission system is included in the same unit as one or more other cable transmission systems, the number of premises to which the cable transmission system transmits a signal is deemed to be equal to the total number of premises to which all cable transmission systems included in that unit transmit a signal.

(3) For the purpose of subsection (2), a cable transmission system is included in the same unit as one or more other cable transmission systems where

(a) they are owned or directly or indirectly controlled by the same person or group of persons; and
(b) their service areas are each less than 5 km distant, at some point, from at least one other among them, and those service areas would constitute a series of contiguous service areas, in a linear or non-linear configuration, were it not for that distance.

(4) Subsection (2) does not apply to a cable transmission system that was included in a unit on December 31, 1993.

4. The definition set out in subsection 3(1) does not include a cable transmission system that is a master antenna system if it is located within the service area of another cable transmission system that transmits a signal, with or without a fee, to more than 2,000 premises in that service area;" ( « petit système de transmission par fil »)

"year" means a calendar year (« année »).

Application

3. (1) This tariff sets the royalties to be paid for the communication to the public by telecommunication of published sound recordings embodying musical works, for private or domestic use, in connection with the transmission by a distribution undertaking of a pay audio signal or simulcast, for the year 2019.

(2) This tariff does not apply to uses specifically covered by other tariffs, including Re:Sound Tariffs 3.A, 3.B and 8. For greater certainty, this tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network, to a device, except by simulcast.

Royalties

4. (1) Subject to subsection (2), the royalties payable each month to Re:Sound are

(a) 15 per cent of the affiliation payments payable for that month by a distribution undertaking; plus
(b) $0.00126 for each play of a file in Canada by simulcast in that month.

(2) The royalties payable to Re:Sound each year where the distribution undertaking is

(a) a small cable transmission system;
(b) an unscrambled Low Power Television Station or Very Low Power Television Station (as defined in Sections E and G of Part IV of the Broadcasting Procedures and Rules of Industry Canada effective April 1997); or
(c) a system which performs a function comparable to that of a cable transmission system, which uses Hertzian waves to transmit the signals and which otherwise meets the definition of "small transmission system" are
(d) 7.5 per cent of the affiliation payments payable for that year by a distribution undertaking; plus
(e) $0.00063 for each play of a file in Canada by simulcast in that year.

Dates of Payments

5. (1) Royalties payable pursuant to subsection 4(1) shall be due on the last day of the month following the month for which the royalties are being paid.

(2) Royalties payable pursuant to subsection 4(2) shall be due on January 31 of the year following the year for which the royalties are being paid.

Reporting Requirements

6. (1) A programming undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each distribution undertaking to which it supplied a pay audio signal,

(a) the name of the distribution undertaking;
(b) the list of pay audio signals and simulcasts the programming undertaking supplied to the distribution undertaking for transmission for private or domestic use;
(c) the amount of the affiliation payments payable;
(d) the number of plays of each file by simulcast;
(e) the total number of plays of all files by simulcast; and
(f) the total simulcast audience relative to the audience of the pay audio signal.

(2) A distribution undertaking that makes a payment shall provide with its payment, for the relevant period and with respect to each programming undertaking from which it purchased a pay audio signal,

(a) the name of the programming undertaking;
(b) the list of pay audio signals and simulcasts supplied to the distribution undertaking by the programming undertaking for transmission for private or domestic use;
(c) the amount of the affiliation payments payable;
(d) the number of plays of each file by simulcast;
(e) the total number of plays of all files by simulcast; and
(f) the total audience of the simulcast relative to the audience of the pay audio signal.

(3) The following information shall also be provided with respect to any system for which royalties are being paid pursuant to subsection 4(2):

(a) the number of premises served in the system on the last day of each month for which payment is being made;
(b) if the system is a master antenna system and is located within the service area of another cable transmission system, the name of that other system and a statement to the effect that the other system transmits a signal, with or without a fee, to not more than 2 000 premises in its service area; and
(c) if the system is included in a unit within the meaning of the Definition of "Small Cable Transmission System" Regulations,
- (i) the date the system was included in the unit,
- (ii) the names of all the systems included in the unit,
- (iii) the names of the person or group of persons who own or who directly or indirectly control the systems included in the unit, and
- (iv) the nature of the control exercised by these persons.

(4) Notwithstanding subsections (1), (2) and (3) above, no later than March 31 of each year, a programming undertaking shall provide Re:Sound with the name of each distribution undertaking to which it supplied a pay audio signal or simulcast for private or domestic use in the previous year. A programming undertaking shall be relieved of this obligation if it has already provided the name of each such distribution undertaking pursuant to its obligations under subsection (1). The programming undertaking shall also indicate who (the programming undertaking or the distribution undertaking) is responsible for paying royalties under this Tariff for each distribution undertaking listed.

Sound Recording Use Information

7. (1) No later than the fourteenth day of each month, a programming undertaking shall provide to Re:Sound the full sequential lists of all published sound recordings embodying musical works or parts thereof, played on each pay audio signal and simulcast during each day of the previous month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry 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 name of each performer or group to whom the sound recording is credited;
(e) the name of the record label or maker that released the sound recording;
(f) the name of each author of the musical work;
(g) the International Standard Recording Code (ISRC) assigned to the sound recording;
(h) the name of the music publisher associated with the musical work;
(i) the International Standard Musical Work (ISWC) assigned to the musical work;
(j) if the sound recording was released as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
(k) the Global Release Identifier (GRid) assigned to the sound recording and, if applicable, the GRid of the album or bundle in which the sound recording was released;
(l) the running time of the sound recording as broadcast, in minutes and seconds;
(m) the running time of the sound recording as listed on the album, in minutes and seconds; and
(n) any alternative title used to designate the musical work or sound recording.

(2) The information set out in subsection (1) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the programming undertaking, with a separate field for each piece of information.

Records and Audits

8. (1) A 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.

(2) Both the distribution undertaking and the 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 programming undertaking and the calculation of payments under paragraphs 4(1)(b) and 4(2)(e) can be readily ascertained, including the information required under section 6.

(3) Re:Sound may audit these records at any time during the period set out in subsection (1) or (2), on reasonable notice and during normal business hours.

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the undertaking that was the subject of the audit and to any other Canadian collective society with a tariff applicable to pay audio services.

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month by more than 10 per cent, the undertaking that was audited shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

9. (1) Subject to subsections (2) and (3), information received from an undertaking pursuant to this tariff shall be treated in confidence, unless the undertaking who supplied the information consents in writing to the information being treated otherwise.

(2) Information received from an undertaking pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to pay audio services;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

10. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the undertaking which occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

11. (1) In the event that an undertaking does not pay the amounts owed under sections 4 and 5 or provide the reporting required under section 6 by the due date, the undertaking shall pay to Re:Sound interest calculated on the amount payable for the relevant period from the due date until the date both the amount and the report are 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.

(2) In the event that an undertaking does not provide the music use reporting required by section 7 within seven days of the due date, upon written notice by Re:Sound, the undertaking shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received, of

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter.

Addresses for Notices, etc.

12. (1) Anything that an undertaking sends to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: payaudio@resound.ca, fax number 416-962-7797, or to any other address, email or fax number of which the undertaking has been notified in writing.

(2) Anything that Re:Sound sends to an undertaking shall be sent to the last address, email or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

13. (1) A notice may be delivered by hand, by postage-paid mail, by email, by fax or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 7 shall be sent by email.

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

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

PROPOSED 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 FOR THE YEARS 2019-2022

Tariff No. 3.A

BACKGROUND MUSIC SUPPLIERS

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

Short Title

1. This tariff may be cited as the Re:Sound Background Music Suppliers Tariff, 2019-2022.

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 »)

"quarter" means from January to March, from April to June, from July to September and from October to December; (« trimestre »)

"recorded music" means published sound recordings of musical works; (« musique enregistrée »)

"revenues" means the total gross revenues of the background music supplier including, but not limited to, all subscription fees and advertising revenues; (« 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 2019-2022, 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 and for the performance in public by an establishment of recorded music supplied by the background music supplier, 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 another Re:Sound tariff.

Royalties Payable

4. (1) Subject to subsection (4), a background music supplier who communicates recorded music during a quarter shall pay to Re:Sound 2.25 per cent of revenues received during the quarter, subject to a minimum fee of $1.50 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 recorded music by the subscribers shall pay to Re:Sound 7.5 per cent of revenues from those subscribers during the quarter, subject to a minimum fee of $5.00 per subscriber per establishment per quarter.

(3) Where a background music supplier pays on behalf of a subscriber the 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 (Use of Background Music) or Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Fitness Activities) for that performance in public of recorded music supplied by that background music supplier.

(4) Royalties payable by a small cable transmission system are reduced by half.

Reporting Requirements

5. (1) No later than 30 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 the background music supplier.

Records and Audits

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 and number of subscribers 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 background music supplier that was subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

(4) If an audit discloses that royalties owed to Re:Sound during any period have been understated by more than 10 per cent, the background music supplier that was the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

7. (1) Subject to subsections (2) and (3), information received pursuant to this tariff shall be treated in confidence, unless the background music supplier that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from a background music supplier pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to background music;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

(3) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the background music supplier who supplied the information and who is not under an apparent duty of confidentiality to the background music supplier with respect to the supplied information.

Adjustments

8. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the background music supplier which occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

9. (1) In the event that a background music supplier does not pay the amount owed under section 4 by the due date, the background music supplier 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) In the event that a background music supplier does not provide the reporting information required by section 5 by the due date, Re:Sound may provide notice of that default ("Default Notice"). If the background music supplier does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the background music supplier shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

(3) 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 background music supplier shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

11. (1) A notice may be delivered by hand, by postage-paid mail, by email, by fax or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail, or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 5 shall be provided concurrently to Re:Sound by email.

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

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

PROPOSED 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 FOR THE YEARS 2019-2022

Tariff No. 3.B

BACKGROUND MUSIC

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

Short Title

1. This tariff may be cited as the Re:Sound Background Music Tariff 2019-2022.

Definitions

2. In this tariff,

"Act" means the Copyright Act, R.S.C. 1985, c. C-42, as amended; (« Loi »)

"recorded music" means published sound recordings of musical 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 2019-2022 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 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 another 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 2019-2020, $126.42 for the first trunk line and $2.82 for each additional trunk line; and
(b) for 2021-2022, $134.01 for the first trunk line and $2.99 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) 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) 0.7380¢ (0.0679¢) in 2019-2020, and
- (ii) 0.7823¢ (0.0720¢) in 2021-2022;
(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) 0.4425¢ in 2019-2020, and
- (ii) 0.4691¢ in 2021-2022;
(c) if neither paragraphs (a) nor (b) apply and 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) 0.2361¢ in 2019-2020, and
- (ii) 0.2503¢ in 2021-2022;
(d) if paragraphs (a), (b) and (c) do not apply, the royalty payable for the relevant year shall be
- (i) $126.42 in 2019-2020, and
- (ii) $134.01 in 2021-2022.

(3) In all cases, the minimum annual royalties for all recorded music uses under subsection (2) shall be $126.42 per establishment in 2019-2020 and $134.01 in 2021-2022.

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 section 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. No interest is payable with respect to overpayments.

Records and Audits

6. (1) An establishment 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 the calculation of its payment can be readily ascertained, including information used to determine the choice of calculation, and information required to ascertain the 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 establishment that was subject to the audit and to any other Canadian collective society with a tariff applicable to background music.

(4) If an audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the establishment that was the subject of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

7. (1) Subject to subsections (2) and (3), information received from an establishment pursuant to this tariff shall be treated in confidence, unless the establishment that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from an establishment pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to background music;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

8. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the establishment which occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

9. (1) In the event that an establishment subject to this tariff does not pay the amount owed under section 4 by the due date, the establishment 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) In the event that an establishment subject to this tariff does not provide the reporting information required by section 5 by the due date, Re:Sound may provide notice of that default ("Default Notice"). If the establishment does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the establishment shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

Addresses for Notices, etc.

(2) Anything addressed to an establishment subject to the tariff shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

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

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

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEARS 2019-2021

Tariff No. 4

USE OF MUSIC BY SATELLITE RADIO SERVICES

GENERAL PROVISIONS

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

Short Title

1. This tariff may be cited as the Re:Sound Satellite Radio Services Tariff, 2019-2021.

Definitions

2. In this tariff,

"device" means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

"month" means a calendar month; (« mois »)

"number of subscriptions" means the average number of subscriptions during the reference month; (« nombre d'abonnements »)

"play" means the single communication of a file or a part thereof to a single person; (« écoute »)

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

"service" means a multi-channel subscription satellite radio service licensed by the Canadian Radio-television and Telecommunications Commission as well as any similar service distributed in Canada; (« service »)

"service revenue" means all amounts paid by subscribers for a service, advertising revenues, revenues from product placement, promotion and sponsorship, net revenues from the sale of goods or services including hardware and accessories used in the reception of the service, and commissions on third-party transactions. This includes activation and termination fees, as well as membership, subscription and all other access and administrative fees. It excludes advertising agency fees and revenue accruing from any business that is not a necessary adjunct to the distribution of the service or the use of the service's broadcasting facilities; (« recettes du service »)

"simulcast" means the simultaneous communication of a satellite radio broadcast to which this tariff applies, via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient is unable to exercise any control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

"simulcasting income" includes all direct and indirect revenues of a service's simulcasts in Canada, including, but not limited to,

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the simulcast, including, but not limited to, subscriber fees, connect time charges, access or activation fees and any administrative fees, whether made directly to the service or to any entity under the same or substantially the same ownership, management or control, or to any other person, firm or corporation including, but not limited to, any partner or co-publisher of the service, pursuant to an agreement or as directed or authorized by any agent or employee of the service; and
(b) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the simulcast including, but not limited to, advertising included within the simulcast or played upon selecting a link to the simulcast, or on banner adverts on media players and pop-up windows associated with media players whilst the media player is delivering the simulcast, payments associated with syndicated selling, online franchising, associate or affiliate programs, bounty, e-commerce or other revenue including revenue from the sale, design, development, manufacture, rental or installation of receiving devices and any other hardware and accessories used in the reception of the simulcast and also includes the value of any goods or services received from any source as barter in connection with the simulcast including, but not limited to, barter received in exchange for providing advertising time or space;
For greater certainty, simulcasting income includes all income accruing from any allied or subsidiary business that is a necessary adjunct to the simulcast and which results in the use of the simulcast, including the gross amounts received by the service pursuant to a turn-key contract with an advertiser; (« revenu provenant de la diffusion simultanée »)

"subscriber" means a person who is authorized to receive in Canada a signal offered by a service, whether for free or for valuable consideration, excluding a commercial subscriber; (« abonné »)

"subscription" means an account tied to a single receiver that authorizes the subscriber to receive in Canada one signal offered by a service, whether for free or for valuable consideration including free trials, previews offered to existing radio owners, prepaid and lifetime subscriptions, excluding commercial subscriptions. Where multiple subscriptions are combined in a single account, each subscription for a separate receiver shall be counted as a separate subscription; (« abonnement »)

"year" means a calendar year. (« année »)

Application

3. (1) This tariff sets the royalties to be paid each month by a service to communicate to the public by telecommunication in Canada published sound recordings embodying musical works in connection with the operation of the service and simulcasts, for direct reception by subscribers for their private use.

(2) This tariff does not apply to the communication to the public by telecommunication of sound recordings to end-users via the Internet or another digital network except by simulcast, but does permit the use of wireless functionalities (such as a Wi-Fi or Bluetooth functionality) integrated with a satellite radio receiving device that allows the relay of a satellite radio signal to local speakers for subscribers' private use. For greater certainty, any online-only channels and streaming or webcasting with any element of customization or interactivity such as the ability to pause, skip, rewind, fast-forward or indicate a preference for musical genres, artists or songs, is not subject to this tariff, but is subject to Re:Sound Tariff 8.

(3) This tariff does not authorize

(a) any use of a sound recording by a service in connection with its delivery to a commercial subscriber; or
(b) any use by a subscriber of a sound recording transmitted by a service other than a use described in subsection (1).

(4) This tariff does not apply to uses covered by other Re:Sound tariffs, including Re:Sound Tariffs 1.A, 1.C, 3.A, 3.B, 5, 6, and 8, or the SOCAN-Re:Sound Pay Audio Services Tariff.

Royalties

4. (1) For the communication to the public by telecommunication in connection with the operation of the service, a service shall pay to Re:Sound, for each month of the tariff term, 17 per cent of its service revenue for the reference month, subject to a minimum fee of $1.50 per subscription.

(2) In addition to the royalties payable under subsection (1), for the communication to the public by telecommunication by simulcast, a service shall pay to Re:Sound, for each month of the tariff term, the greater of

(a) 17 per cent of its simulcasting income for the reference month; or
(b) $0.00126 for each play of a file in Canada by simulcast,

subject to a minimum annual fee of $500 per channel up to a maximum of $50,000.

(3) The royalties payable under subsection (1) shall be calculated and paid as follows:

(a) For each subscription, including free trials, previews, free, prepaid and lifetime subscriptions, the service shall pay the greater of
- (i) 17 per cent of the total amounts paid for the subscription (including activation and termination fees as well as membership, subscription and all other access and administrative fees), or
- (ii) $1.50 per subscription;

PLUS

(b) 17 per cent of the total amount of all additional service revenue not included in paragraph (a).

Reporting Requirements

5. No later than on the first day of each month of the tariff term, a service shall pay the royalties owing for that month, calculated based on the reference month, and shall provide for the reference month

(a) the total number of subscriptions to the service, broken down into free trials, previews, free subscriptions, prepaid and lifetime subscriptions, and the number of subscriptions at each of the various subscription price points charged by the service during the month;
(b) its service revenue, broken down into amounts paid by subscribers for the service, advertising revenues, sponsorship revenues and other revenues;
(c) its simulcasting income, including the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them;
(d) the total audience of the simulcast relative to the audience of the over-the-air broadcast;
(e) the number of plays of each file by simulcast; and
(f) the total number of plays of all files by simulcast.

Sound Recording and Musical Work Use Information

6. (1) No later than the 14th day of each month, a service shall provide to Re:Sound the full sequential lists of all published sound recordings embodying musical works or parts thereof, broadcast by satellite radio and simulcast during each day of the previous month. For greater clarity, sequential list reporting requires full music use reporting for each day of the month, for 365 days per year. Each entry 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 name of each performer or group to whom the sound recording is credited;
(e) the name of the record label or maker that released the sound recording;
(f) the name of each author of the musical work;
(g) the International Standard Recording Code (ISRC) assigned to the sound recording;
(h) the name of the music publisher associated with the musical work;
(i) the International Standard Musical Work (ISWC) assigned to the musical work;
(j) if the sound recording was released as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
(k) the Global Release Identifier (GRid) assigned to the sound recording and, if applicable, the GRid of the album or bundle in which the sound recording was released;
(l) the running time of the sound recording as broadcast, in minutes and seconds;
(m) the running time of the sound recording as listed on the album, in minutes and seconds; and
(n) any alternative title used to designate the musical work or sound recording.

(2) The information set out in subsection (1) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the service, with a separate field for each piece of information required in subsection (1).

Records and Audits

7. (1) A service 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 6 can be readily ascertained.

(2) A service shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the information set out in section 5 can be readily ascertained.

(3) Re:Sound may audit these records at any time during the period set out in subsection (1) or (2), on reasonable notice and during normal business hours.

(4) Re:Sound shall, upon receipt, supply a copy of the report of the audit to the service that was audited and to any other Canadian collective society with a tariff applicable to satellite radio services.

(5) If an audit discloses that royalties due to Re:Sound have been understated in any month by more than 10 per cent, the service that was audited shall pay the reasonable costs of the audit within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

8. (1) Subject to subsections (2) and (3), information received from a service pursuant to this tariff shall be treated in confidence, unless the service that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from a service pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to satellite radio services;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

9. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the service that occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

10. (1) In the event that a service does not pay the amount owed or provide the report required by section 5 by the due date, the service shall pay to Re:Sound interest calculated on the amount owed from the due date until the date both the amount and the report are received by Re:Sound. 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.

(2) In the event that a service does not provide the music use reporting required by subsection 6(1) within seven days of the due date, upon written notice by Re:Sound, the service shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter.

Addresses for Notices, etc.

11. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: satellite@resound.ca, fax number: 416-962-7797, or to any other address, email address or fax number of which the service has been notified in writing.

(2) Anything addressed to a service shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

12. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 5 shall be provided concurrently to Re:Sound by email.

(2) The information set out in subsection 6(1) shall be sent by email.

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

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

PROPOSED 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 FOR THE YEARS 2019 TO 2023

Tariff No. 6.A

USE OF RECORDED MUSIC TO ACCOMPANY DANCE

Short Title

1. This tariff may be cited as the Re:Sound Dance Tariff, 2019-2023.

Application

2. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2019 to 2023, of published sound recordings embodying musical works, in any indoor or outdoor venue, including nightclubs, dance clubs, bars, restaurants, hotels, halls, clubs, schools, and campuses, for the purposes of dancing or any similar activity.

(2) This tariff does not apply to any venue operated by a not-for-profit religious institution or not-for-profit educational institution, if the dancing is primarily made available to participants under the age of 19.

(3) This tariff does not apply to dancing that is subject to Re:Sound Tariff 6.C (Use of Recorded Music to Accompany Adult Entertainment) or to an event subject to Re:Sound Tariffs 5.A-K (Use of Music to Accompany Live Events), or to dance instruction subject to Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Fitness Activities).

Royalties

3. (1) A venue accommodating no more than 100 patrons shall pay an annual royalty as follows:
	Days of operation
Months of operation	1–3 days	4–7 days
Six months or less	$954	$2,623
More than six months	$2,862	$7,870

(2) A venue accommodating more than 100 patrons shall pay 10 per cent more than the fees set out in subsection (1) for each capacity increase of up to 20 patrons.

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

4. For the purposes of this tariff, the number of patrons that a venue can accommodate is

(a) the number of persons that can be present at any time under the venue's liquor licence;
(b) where the venue is not licensed to serve liquor, the number of persons that can be present at any time under any other document issued by a competent authority for this type of venue; or
(c) otherwise, the total number of persons in attendance.

Reporting Requirements

5. No later than January 31, the operator of the venue shall pay the royalty for that year and shall provide, for that same year,

(a) the name and address of the venue;
(b) the name and contact information of the person operating the venue;
(c) the number of patrons that the venue can accommodate, with supporting documentation; and
(d) the days and months of operation, as used to calculate the royalties.

Records and Audits

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 the information set out in section 5 can be readily ascertained.

(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 that was the subject of the audit and to any other Canadian collective society with a tariff applicable to dancing.

(4) If an audit discloses that royalties owed to Re:Sound during any period have been understated by more than 10 per cent, the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

7. (1) Subject to subsections (2) and (3), information received 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 received pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to dancing;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

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

Adjustments

8. Adjustments in the amount of royalties owed, as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the person subject to this tariff which occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

9. (1) In the event that a person subject to this tariff does not pay the amount owed under the tariff 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) In the event that a person subject to this tariff does not provide the reporting information required under the tariff by the due date, Re:Sound may provide notice of that default ("Default Notice"). If the person does not cure the default within 30 days of receipt of a Default Notice by providing the reporting information that is past due and that is specified in the Default Notice, the person shall pay to Re:Sound interest calculated on the amount payable in respect of the period for which the reporting information is due, from the due date to the date that the reporting information is received by Re:Sound, less any interest paid pursuant to subsection (1).

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 of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

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

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

PROPOSED 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 FOR THE YEARS 2019 TO 2023

Tariff No. 6.C

USE OF RECORDED MUSIC TO ACCOMPANY ADULT ENTERTAINMENT

GENERAL PROVISIONS

Short Title

1. This tariff may be cited as the Re:Sound Adult Entertainment Tariff, 2019-2023.

Definitions

2. In this tariff,

"capacity" means the number of persons that can occupy the establishment (seating and standing), authorized under the establishment's liquor licence or any other document issued by a competent authority for this type of establishment; (« capacité »)

"day" means any period between 6:00 a.m. on one day and 6:00 a.m. the following day during which the establishment operates as an adult entertainment club; (« jour »)

"establishment" means a single location where adult entertainment is performed and includes an adult entertainment club, nightclub, dance club, bar, or hotel; (« établissement »)

"year" means calendar year. (« année »)

Application

3. (1) This tariff sets the royalties to be paid for the performance in public or the communication to the public by telecommunication, in Canada, for the years 2019 to 2023, of published sound recordings embodying musical works to accompany adult entertainment.

(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is subject to another Re:Sound tariff.

Royalties

4. (1) The annual royalty fee payable by the establishment is 6.6¢ per day, multiplied by the establishment's capacity.

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

Royalty Payments and Reporting Requirements

5. (1) No later than January 31, the establishment shall pay the estimated royalties for that year calculated as follows. If the establishment operated in the previous year, the payment will be calculated based on the establishment's capacity and the days of operation during the previous year. If the establishment did not operate during the previous year, or if it was only open for part of the previous year, the payment will be calculated based on the capacity and estimated days of operation for the current year. If an establishment opens after January 31, payment shall be made no later than 30 days after the date the establishment first opened.

(2) Together with the payment and report under subsection (1), the establishment shall provide

(a) the name and address of the establishment;
(b) the name and contact information of the person operating the establishment;
(c) the capacity of the establishment, with supporting documentation; and
(d) the days of operation, as used to calculate the royalties.

(3) No later than January 31 of the following year, the establishment shall provide Re:Sound with a report of the actual days of operation during the previous year and an adjustment of the royalties payable shall be made accordingly. All additional monies owed shall be paid to Re:Sound by January 31. If the royalties due are less than the amount previously paid, Re:Sound shall credit the amount of the overpayment against future payments. No interest is payable with respect to overpayments.

Records and Audits

(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.

Confidentiality

(2) Information received pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to adult entertainment;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties; or
(f) if required by law.

Adjustments

8. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the person subject to this tariff which occurred more than 12 months prior to notification to Re:Sound.

Late Payments and Reporting

Addresses for Notices, etc.

(2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

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

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

PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY RE:SOUND FOR THE COMMUNICATION TO THE PUBLIC BY TELECOMMUNICATION, IN CANADA, OF PUBLISHED SOUND RECORDINGS EMBODYING MUSICAL WORKS FOR THE YEAR 2019

Tariff No. 8

NON-INTERACTIVE AND SEMI-INTERACTIVE STREAMING

Short Title

1. This tariff may be cited as the Re:Sound Non-Interactive and Semi-Interactive Streaming Tariff, 2019.

Definitions

2. In this tariff,

"channel" means an individual program or playlist which a user selects to initiate a communication of a file. For example, if a service offers 10 different musical genres and within each genre, there are a further 10 sub-genres, the selection of each of which initiates the streaming of a different playlist, the service has 100 channels. For semi-interactive streams that permit a user to customize a program or playlist, each such individually customized program or playlist constitutes one channel; (« chaîne »)

"device" means any device capable of receiving and playing a file, including a computer, digital media player, cellular phone, smartphone, or tablet; (« appareil »)

"gross revenues" includes all direct and indirect revenues of a service with respect to its communications in Canada by non-interactive stream, semi-interactive stream and by simulcast (except a simulcast excluded under paragraph 3(1)(a)), including, but not limited to,

(a) user revenues, which mean all payments made by, on behalf of, or to enable, users to access the stream, including, but not limited to, subscriber fees, connect time charges, access or activation fees, administrative fees, account history fees, returned payment fees, invoice fees, cancellation fees and hardware transfer and other transfer fees, whether made directly to the service or to any entity under the same or substantially the same ownership, management or control, or to any other person, firm or corporation including, but not limited to, any partner or co-publisher of the service, pursuant to an agreement or as directed or authorized by any agent or employee of the service; and
(b) sponsor revenue, which means all payments made by or on behalf of sponsors, advertisers, program suppliers, content providers, or others in connection with the stream including, but not limited to, advertising included within the stream or played upon selecting a link to the stream, or on banner adverts on media players and pop-up windows associated with media players whilst the media player is delivering the stream, payments associated with syndicated selling, online franchising, associate or affiliate programs, bounty, e-commerce or other revenue including revenue from the sale, design, development, manufacture, rental or installation of receiving devices and any other hardware and accessories used in the reception of the stream and also includes the value of any goods or services received from any source as barter in connection with the stream including, but not limited to, barter received in exchange for providing advertising time or space;
For greater certainty, gross revenues include all income accruing from any allied or subsidiary business that is a necessary adjunct to the stream and which results in the use of the stream, including the gross amounts received by the service pursuant to a turn-key contract with an advertiser; (« revenus bruts »)

"month" means a calendar month; (« mois »)

"non-commercial service" means any service other than the Canadian Broadcasting Corporation, that is owned and operated by a not-for-profit organization including any campus service and community service, whether or not any part of the service's operating costs are funded by advertising revenues; (« service non commercial »)

"non-interactive stream" refers to a stream over which the recipient is unable to exercise any control over the content or the timing of the stream. For example, the recipient cannot skip or pause the communication of a file or influence the content by indicating a preference for a musical genre, artist or sound recording other than by selecting the channel; (« transmission non interactive»)

"on-demand stream" refers to any stream through which a specific file can be communicated to a member of the public at a place and at a time individually chosen by that member of the public; (« transmission sur demande »)

"play" means the single communication of a file, or a part thereof, to a single person; (« écoute »)

"semi-interactive stream" refers to a stream over which the recipient has the ability to exercise some level of control over the content or the timing of the stream, such as by skipping, pausing, rewinding or fast-forwarding the communication of a file or by indicating a preference for a musical genre, artist or sound recording; (« transmission semi-interactive »)

"service" means a person or organization, including an aggregator, who carries out a stream; (« service »)

"simulcast" means the simultaneous communication of an over-the-air radio, pay audio or satellite radio broadcast via the Internet or another digital network, to a device, which is identical to the original signal and over which the recipient is unable to exercise any control over the content or the timing of the communication. For example, the recipient cannot skip, pause, rewind or fast-forward the communication of a file or influence the content of the communication by indicating a preference for a musical genre, artist or sound recording; (« diffusion simultanée »)

"stream" means the communication in Canada, via the Internet or another digital network, to a device, of one or more files; (« transmission»)

"year" means a calendar year. (« année »)

Application

3. (1) This tariff sets the royalties to be paid by a service, for the year 2019, for the communication to the public by telecommunication of published sound recordings embodying musical works, other than

(a) a simulcast of programming to which the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, Connect/SOPROQ, Artisti), the Pay Audio Services Tariff (SOCAN, Re:Sound) or the Satellite Radio Services Tariff (SOCAN, Re:Sound) apply. For greater certainty, any other simulcasts or non-interactive or semi-interactive streams in Canada are subject to the royalties payable under this tariff including simulcasts by non-Canadian radio stations, non-commercial radio stations, and any stream by a commercial radio station, the Canadian Broadcasting Corporation, a pay audio service or satellite radio service that does not constitute a simulcast within the meaning of this tariff;
(b) an on-demand stream or download;
(c) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) of the Act;
(d) a podcast or transmission of a program previously transmitted (whether or not it has been converted to another audio file format) for playback on a device; and
(e) a communication that is subject to another Re:Sound tariff, including the CBC Radio Tariff (SOCAN, Re:Sound), the Commercial Radio Tariff (SOCAN, Re:Sound, CSI, Connect/SOPROQ, Artisti), the Pay Audio Services Tariff (SOCAN, Re:Sound), the Satellite Radio Services Tariff (SOCAN, Re:Sound), the Background Music Tariff (Re:Sound), or the Background Music Suppliers Tariff (Re:Sound). For greater certainty, an entity that is subject to another Re:Sound tariff is also subject to this tariff with respect to any non-interactive stream or semi-interactive stream with the exception of simulcasts excluded under paragraph (a).

(2) If a service offers an on-demand streaming, download or simulcast service as well as a non-interactive or semi-interactive streaming service, the non-interactive streaming and semi-interactive streaming shall not be treated as part of the on-demand streaming, download or simulcast service.

(3) This tariff is not subject to the special royalty rates set out in section 68.1 of the Act.

ROYALTIES

Non-Commercial Services

4. (1) The royalties payable for all non-interactive streams and semi-interactive streams (other than simulcasts) carried out by a non-commercial service shall be $500 per year.

(2) The royalties payable for all simulcasts carried out by a non-commercial service shall be $500 per year.

(3) The payment made pursuant to subsection (1) and/or (2), shall be accompanied by a description of the streaming and/or simulcast services the service offers or intends to offer as well as documentation to substantiate that the service is a non-commercial service.

(4) Except to the extent required by subsection (3), a non-commercial service is not subject to section 8.

Non-Interactive and Semi-Interactive Streaming other than by Non-commercial Services

5. The royalties payable for any given month by a service including the CBC, other than a non-commercial service, shall be the greater of

(a) 21.75 per cent of its gross revenues for that month; or
(b) $0.00157 for each play of a file in Canada in that month by non-interactive stream, semi-interactive stream, and by simulcast (except a simulcast excluded under paragraph 3(1)(a));

subject to a minimum annual fee of $500 per channel up to a maximum of $50,000.

Date Payable

6. (1) Royalties payable under section 5 are due 14 days after the end of the month for which they are being paid.

(2) Royalties payable under section 4 are due by January 14 of the year for which they are being paid.

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

(4) Minimum fees payable under section 5 are due on the 14th day of January of each year for which they apply, to be credited against the monthly amounts payable under section 5.

REPORTING REQUIREMENTS

Service Identification

7. No later than 14 days after the end of the first month during which a service carries out a stream pursuant to section 3, the service shall provide to Re:Sound the following information:

(a) the name of the service, including
- (i) the name of the corporation or other entity, its jurisdiction, the names of its principal officers and any other trade name under which it carries on business, or
- (ii) the name of the proprietor of an individual proprietorship;
(b) the address of its principal place of business and, if applicable, the address of an office in Canada if the principal place of business is located outside Canada;
(c) the name, address and email of the persons to be contacted for the purposes of notice, for the exchange of data and for the purposes of invoicing and payment;
(d) the name and address of any authorized distributor;
(e) the name and Uniform Resource Locator (URL) from which the stream is or will be offered;
(f) whether the stream is non-interactive and/or semi-interactive;
(g) the date(s) of its first non-interactive and/or semi-interactive stream in Canada; and
(h) the number of channels.

Music Use Information

8. (1) No later than 14 days after the end of each month, a service that is required to pay royalties pursuant to section 5 shall provide to Re:Sound, in relation to each file or part thereof included in a non-interactive and semi-interactive stream and in a simulcast (except a simulcast excluded under paragraph 3(1)(a)) in that month,

(a) the title of the sound recording;
(b) the name of each performer or group to whom the sound recording is credited;
(c) the name of the record label or maker that released the sound recording;
(d) the name of each author of the musical work;
(e) the International Standard Recording Code (ISRC) assigned to the sound recording;
(f) the name of the music publisher associated with the musical work;
(g) the International Standard Musical Work (ISWC) assigned to the musical work;
(h) if the sound recording was released as part of an album, the name, identifier, product catalogue number and Universal Product Code (UPC) assigned to the album, together with the associated disc and track numbers;
(i) the Global Release Identifier (GRid) assigned to the sound recording and, if applicable, the GRid of the album or bundle in which the sound recording was released;
(j) the running time of the sound recording as streamed, in minutes and seconds;
(k) the running time of the sound recording as listed on the album, in minutes and seconds;
(l) any alternative title used to designate the musical work or sound recording; and
(m) in the case of syndicated programming, the cue sheet, with the relevant music use information inserted into the Excel report.

(2) A service shall provide, as part of the information set out in subsection (1), a report setting out, for that month,

(a) the number of plays of each file;
(b) the total number of plays of all files; and
(c) the gross revenues of the service including, where applicable, the total number of subscribers (including both free and paid subscriptions) and the total amounts paid by them.

(3) The information set out in subsections (1) and (2) shall be provided electronically, in Excel format or in any other format agreed upon by Re:Sound and the service, 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.

Adjustments

9. Adjustments to any information provided pursuant to section 7 or 8 shall be provided with the next monthly report provided pursuant to section 8.

10. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the service which occurred more than 12 months prior to notification to Re:Sound.

Records and Audits

11. (1) A service to which section 5 applies shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the calculation of that service's payment under this tariff can be readily ascertained, including the information required under subsections 8(1) and (2).

(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 service that was the subject of the audit and to any other Canadian collective society with a tariff applicable to non-interactive streams, semi-interactive streams or simulcasts.

(4) If an audit discloses that the royalties owed to Re:Sound during any reporting period have been understated by more than 10 per cent, the service that was the subject of the audit shall pay the reasonable costs of the audit to Re:Sound within 30 days of the demand for such payment. The amount of any understatement shall be paid within 30 days of the demand for such payment.

Confidentiality

12. (1) Subject to subsections (2) and (3), information received from a service pursuant to this tariff shall be treated in confidence, unless the service that supplied the information consents in writing to the information being treated otherwise.

(2) Information received from a service pursuant to this tariff may be shared

(a) with Re:Sound's agents and service providers;
(b) in connection with the collection of royalties or the enforcement of a tariff, with any other Canadian collective society that has a tariff applicable to non-interactive streams, semi-interactive streams or simulcasts;
(c) with the Copyright Board;
(d) in connection with proceedings before the Copyright Board, if it is protected by a confidentiality order;
(e) to the extent required to effect the distribution of royalties, with royalty claimants; or
(f) if required by law.

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

Late Payments and Reporting

13. (1) If either the amount owed under section 4 or 5 or report required under subsection 8(2) are not provided by the due date, the service shall pay to Re:Sound interest calculated on the amount payable for the relevant period from the due date until the date both the amount and the report are received by Re:Sound. 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.

(2) In the event that a service does not provide the reporting required by subsection 8(1) within seven days of the due date, upon written notice by Re:Sound, the service shall pay to Re:Sound a late fee based on the number of days from the due date to the date the reporting is received by Re:Sound of

(a) $10.00 per day for the first 30 days after the due date;
(b) $20.00 per day for the next 30 days; and
(c) $50.00 per day thereafter.

Addresses for Notices, etc.

14. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: internet@resound.ca, fax number: 416-962-7797, or to any other address, email address, or fax number of which the service has been notified in writing.

(2) Anything addressed to a service shall be sent to the last address, email address, or fax number of which Re:Sound has been notified in writing.

Delivery of Notices and Payments

15. (1) A notice may be delivered by hand, by postage-paid mail, by fax, by email or by file transfer protocol (FTP). A payment may be made by credit card or delivered by hand, by postage-paid mail or by electronic bank transfer (EBT). Where a payment is delivered by EBT, the associated reporting required under section 8 shall be provided concurrently to Re:Sound by email.

(2) The information set out in section 8 shall be sent by email.

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

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