Canada Gazette, Part I, Volume 154, Number 41: Re:Sound Tariff 3.A – Background Music Suppliers (2014-2018)

October 10, 2020

COPYRIGHT BOARD

Re:Sound Tariff 3.A – Background Music Suppliers (2014-2018)

Citation: 2020 CB 015-T
See also: Re:Sound Tariff 3.A (2014-2018), 2020 CB 015

Published pursuant to section 70.1 of the Copyright Act

Lara Taylor
Secretary General
613‑952‑8621 (telephone)
registry-greffe@cb-cda.gc.ca (email)

RE:SOUND TARIFF 3.A – BACKGROUND MUSIC SUPPLIERS (2014-2018)

General Provisions

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

Tariff 3.A

BACKGROUND MUSIC SUPPLIERS

Short Title

• 1. This tariff may be cited as Re:Sound Background Music Suppliers Tariff, 2014-2018.

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 embodying musical works and performers’ performances of such works; (« musique enregistrée »)
• “revenues” means any amount paid to subscribe to a background music service, net of any amount paid by the subscriber for the equipment provided to him; (« recettes »)
• “small cable transmission system” has the meaning attributed to it in sections 3 and 4 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 (Canada Gazette, Part II, Vol. 128, page 4096), amended by SOR/2005-148 (Canada Gazette, Part II, Vol. 139, page 1195); (« petit système de transmission par fil »)
• “year” means a calendar year. (« année »)
• (2) For the purposes of this tariff, related persons shall be deemed not to deal with each other at arm’s length, unless the related person who provides a service of supplying recorded music for the performance in public by an establishment (the “Related Music Supplier”)
  • (a) also provides that service to the public and not only to related persons; and
  • (b) the amount that the Related Music Supplier charges related persons for that service is no less than the lowest amount that the Related Music Supplier charges the public for a similar service.

Application

• 3. This tariff sets for the years 2014 to 2018 the royalties to be paid to Re:Sound, for the benefit of performers and makers, by a background music supplier, for the communication to the public by telecommunication of recorded music in the repertoire of Re:Sound and for the performance in public by an establishment of recorded music in the repertoire of Re:Sound supplied by the background music supplier, including any use of such recorded music with a telephone on hold.

Royalties Payable When Recorded Music is Provided by a Background Music Supplier

• 4. (1) Subject to subsection (4), a background music supplier who communicates recorded music in the repertoire of Re:Sound during a quarter shall pay to Re:Sound 0.97 per cent of revenues received during the quarter, subject to a minimum fee of $0.64 per subscriber per establishment per quarter.
• (2) Subject to subsections (3) and (4), a background music supplier who pays on behalf of subscribers the royalties for the performance in public of recorded music in Re:Sound’s repertoire by the subscribers shall pay to Re:Sound 3.2 per cent of revenues received from those subscribers during the quarter, subject to a minimum fee of $2.15 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 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 60 days after the end of the quarter, a background music supplier making a payment pursuant to section 4 shall pay the royalty for that quarter and shall report the information used to calculate the royalty.
• (2) A background music supplier subject to subsection 4(2) shall provide with its payment the name of each subscriber and the address of each establishment for which the background music supplier is making a payment.
• (3) Information provided pursuant to subsections 5(1) and 5(2) shall be delivered electronically, in plain text format or in any other format agreed upon by Re:Sound and a background music supplier.

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 can be readily ascertained, including the subscription rates 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.
• (4) If the 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 (4), information received pursuant to this tariff shall be treated in confidence, unless the person that 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, to the extent required by the service providers for the service they are contracted to provide;
  • (b) in connection with the collection of royalties or the enforcement of a tariff, with SOCAN;
  • (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 any other collecting body, with royalty claimants and their agents; or
  • (f) if required by law.
• (3) Where confidential information is shared with a service provider pursuant to paragraph (2)(a), that service provider shall sign a confidentiality agreement.
• (4) Subsection (1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than a person subject to this tariff and who is not under an apparent duty of confidentiality to that person with respect to the supplied information.

Adjustments

• 8. (1) A person making a payment under this tariff, who subsequently discovers an error in the payment, shall notify Re:Sound of the error and an appropriate adjustment shall be made to the next payment due following notification.
• (2) When an error is discovered by Re:Sound, Re:Sound shall notify the person to whom the error applies and an appropriate adjustment shall be made to the next payment due following the notification.

Interest on Late Payments

• 9. (1) In the event that a person subject to this tariff does not pay the amount owed under section 4 by the due date, the person shall pay to Re:Sound interest calculated on the amount owed from the due date until the date the amount is received by Re:Sound.
• (2) Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Addresses for Notices, etc.

• 10. (1) Anything addressed to Re:Sound shall be sent to 1235 Bay Street, Suite 900, Toronto, Ontario M5R 3K4, email: licensing@resound.ca, fax number: 416‑962‑7797, or to any other address, email address or fax number of which the sender has been notified in writing.
• (2) Anything addressed to a person subject to this tariff shall be sent to the last address, email address or fax number provided by that person to Re:Sound in writing.

Delivery of Notices and Payments

• 11. (1) A notice 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) 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.