Canada Gazette, Part I, Volume 152, Number 21: COPYRIGHT BOARD

May 26, 2018

COPYRIGHT BOARD

Proposed Statement of Royalties to Be Collected for the Reproduction, Communication to the Public by Telecommunication, Making Available to the Public by Telecommunication, or the Authorization of any Such Act

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the proposed statement of royalties filed by The Canadian Copyright Licensing Agency (Access Copyright) on March 29, 2018, with respect to royalties it proposes to collect for the reproduction, communication to the public by telecommunication, making available to the public by telecommunication in any material form whatsoever, or the authorization of any such act, in Canada, of works in its repertoire by employees of provincial and territorial governments for the years 2019 and 2020.

In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the proposed statement 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 25, 2018.

Ottawa, May 26, 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 THE CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)

For the reproduction, communication to the public by telecommunication, making available to the public by telecommunication in any material form whatsoever, or the authorization of any such act, in Canada, in 2019 and 2020 of works in the repertoire of Access Copyright by employees of provincial and territorial governments.

Short title

1. This tariff may be cited as the Access Copyright Provincial and Territorial Governments Tariff, 2019-2020.

Definitions

2. In this tariff,

"copy" or "copying" means a reproduction, communication to the public by telecommunication, making available to the public by telecommunication in any material form whatsoever, or authorizing any such act, of works in Access Copyright's repertoire, made by or as a consequence of any of the following activities:

• (a) reproducing by a reprographic process, including reproduction by photocopying, microfilming and xerography;
• (b) scanning a paper copy to make a digital copy;
• (c) printing from an electronic file including a digital copy;
• (d) transmission by electronic mail;
• (e) transmission by fax;
• (f) storage of a digital copy on a local storage device or medium;
• (g) posting, uploading or storing a digital copy to a secure network;
• (h) transmitting a digital copy from a secure network and storing it on a local storage device or medium;
• (i) projecting an image using a computer or other device; and
• (j) displaying a digital copy on a computer or other device. (« copie ») or (« copier »)

"digital copy" means a reproduction in any digital form including optical or electronic format. (« copie numérique »)

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

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

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

"secure authentication" means a process of authentication that, at the time of login, identifies each user, whether by user name and password or by some other equally secure method. (« authentification sécurisée »)

"work" means a work in Access Copyright's repertoire which includes published literary, dramatic and artistic works. (« œuvre »)

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

Application

3. Subject to sections 4 and 5 hereof, an FTE shall be permitted to copy works for the purpose of conducting business of the licensee, including for purposes of delivery of government programs and services by means of activities such as, but not limited to, professional, research, archival, communication and administrative activities of the licensee, as follows:

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

General Limitations

4. (1) Copies may only be made from works that are lawfully obtained by the licensee.

(2) There shall be no intentional cumulative copying from the same work beyond the limits set out in paragraph 3(a) hereof.

(3) Copies shall not be made of a work that contains a notice prohibiting reproduction under a licence from a collective society.

(4) Copies shall not be sold for an amount that exceeds the costs of making and distributing such Copies, including an allowance for the royalties payable under this tariff.

(5) Copies shall not be used in advertising products or services.

(6) Copies shall be faithful and accurate reproductions of the original work.

(7) Copies shall not be made or used in a manner that would infringe the moral rights of any author.

Additional Limitations Regarding Digital Copies

5. (1) Digital copies shall not be placed on any computer or computer network on the publicly accessible Internet in such a way as to be made publicly available or accessible otherwise than by secure authentication.

(2) Digital copies shall not be stored, or systematically indexed, with the intention or result of creating an electronic database of works.

(3) Except as provided under subparagraph 3(d)(iii), digital copies shall not be shared, emailed or otherwise distributed to any person other than an FTE.

Attribution

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

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

Royalties

7. (1) The licensee shall pay an annual royalty to Access Copyright, calculated by multiplying the royalty rate of Can$4.00 by the number of its FTEs.

(2) The annual royalty payable under this tariff is exclusive of any federal or provincial taxes.

Reporting and Payment

8. (1) No later than April 15 of each year of this tariff, the licensee shall provide to Access Copyright the number of its FTEs as of March 31 covered by this tariff.

(2) Access Copyright will invoice the licensee by April 30 of each year of this tariff and such invoice shall be payable within thirty (30) days of the issue date.

(3) The licensee shall keep records of all Copies made for external distribution pursuant to subparagraphs 3(d)(ii) and (iii) in a form and manner prescribed by Access Copyright. The licensee shall provide these external distribution records to Access Copyright within thirty (30) days of the end of each quarterly period.

Interest

9. Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one per cent (1%) above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Surveying

10. As requested by Access Copyright, but not more than once, the licensee shall co-operate with Access Copyright in measuring a sample of the licensee's libraries' holdings and circulation. Access Copyright will work with the licensee to ensure compliance with legislative and policy requirements concerning privacy, security and non-disclosure. Access Copyright will only collect this information for the purpose of distributing royalties.

Records and Audits

11. (1) The licensee shall keep and preserve, for a period of six years, records from which the royalties due to Access Copyright under this tariff can be readily ascertained.

(2) No more than once per year, Access Copyright, or its representative, may audit these records on fifteen (15) days' written notice to the licensee and during normal business hours.

(3) Access Copyright shall, upon receipt, supply a copy of the report of the audit to the licensee which was the subject of the audit.

(4) If an audit discloses that royalties due pursuant to this tariff have been understated by more than ten per cent (10%), the licensee shall pay the reasonable costs of the audit within thirty (30) days of the demand for such payment.

(5) In the event that an audit reveals an overpayment, the licensee may reduce the amount due on the next royalty payment by the amount of such overpayment.

Addresses for Notices and Payment

12. (1) Notices to Access Copyright shall be sent to

Access Copyright
The Canadian Copyright Licensing Agency
320 – 56 Wellesley Street West
Toronto, Ontario
M5S 2S3
Telephone: 416-868-1620
Fax: 416-868-1621
Email: governmenttariff@accesscopyright.ca

(2) Notices to the licensee shall be sent to the last address of which Access Copyright has been notified in writing.

Delivery of Notices and Payment

13. (1) A notice may be delivered by hand, by postage-paid mail, fax or email. Payments shall be delivered by hand, by postage-paid mail or by electronic bank transfer.

(2) A notice or payment mailed in Canada shall be presumed to have been received three business days after the day it was mailed.

(3) A notice sent by fax or email shall be presumed to have been received on the first business day following the day it is transmitted.

Transitional Provision: Interest Accrued Before the Publication of the Tariff

14. Any amount payable before [insert date of publication of the tariff] shall be due [insert date immediately following the publication of the tariff] and shall be increased by using the multiplying factor (based on the Bank Rate) set out in the following table [insert table with applicable Bank Rate].