Vol. 142, No. 17 — April 26, 2008

COPYRIGHT BOARD

FILE: Reproduction of Musical Works

Statement of Proposed Royalties to Be Collected for the Reproduction of Musical Works, in Canada, by Non-Commercial Radio Stations

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by the Canadian Musical Reproduction Rights Agency (CMRRA) on March 31, 2008, with respect to royalties that it proposes to collect, effective January 1, 2009, for the reproduction of musical works, in Canada, by non-commercial radio stations in 2009 and 2010.

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 statement may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than June 25, 2008.

Ottawa, April 26, 2008

CLAUDE MAJEAU
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8621 (telephone)
613-952-8630 (fax)
majeau.claude@cb-cda.gc.ca (email)

STATEMENT OF PROPOSED ROYALTIES TO BE COLLECTED BY THE CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY (CMRRA), FOR THE REPRODUCTION, IN CANADA, OF MUSICAL WORKS IN ITS REPERTOIRE BY NON-COMMERCIAL RADIO STATIONS FOR THE YEARS 2009 and 2010

Tariff No. 3

General Provisions

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

Every CMRRA licence shall subsist according to the terms set out therein. CMRRA shall have the right at any time to terminate a licence for breach of terms or conditions upon 30 days’ notice in writing.

Short Title

1. This tariff may be cited as the CMRRA Non-Commercial Radio Tariff, 2009 and 2010.

Definitions

2. In this tariff,

“copy” means any format or material form on or in which a musical work in the repertoire is fixed by a non-commercial radio station by any known or to be discovered process; (« copie »)

“French non-commercial radio station” means a non-commercial radio station licensed by the Canadian Radio-television and Telecommunications Commission to operate in the French language or in a language other than the French or English languages; (« station de radio non commerciale de langue française »)

“gross operating costs” means all direct expenditures of any kind and nature (whether in money or other form) paid by the non-commercial radio station or on its behalf in connection with the products and services that are subject to the licence covered by this tariff; (« dépenses brutes d’opération »)

“network” means a network within the meaning of the Regulations Prescribing Networks (Copyright Act), SOR/99-348, Canada Gazette, Part II, Vol. 133, No. 19, p. 2166; (« réseau »)

“non-commercial low-use station” means, either

(a) a non-commercial radio station that

(i) broadcasts musical works for less than 20 per cent of its total broadcast time during the year for which the payment is being made, and

(ii) keeps and makes available to CMRRA complete recordings of its last 28 broadcast days; or

(b) a non-commercial radio station that

(i) does not make or keep any reproduction onto a computer hard disk or server,

(ii) does not use any reproduction made or kept onto the computer hard disk or server of another station within a network, and

(iii) agrees to allow CMRRA to verify the conditions set out in subparagraphs (i) and (ii), and does so allow when requested; (« station non commerciale à faible utilisation »)

“non-commercial radio station” means any AM or FM radio station other than a Canadian Broadcasting Corporation radio station, licensed under the Broadcasting Act, S.C. 1991, c. 11, by the Canadian Radio-television and Telecommunications Commission as a station owned or operated by a not-for-profit corporation, whether or not any part of its gross operating costs is funded by advertising revenues, including any campus station, community station or native station that is owned or operated on a not-for-profit basis, or any AM or FM radio station owned or operated by a similar corporation, whether or not this corporation holds a licence from the Canadian Radio-television and Telecommunications Commission; (« station de radio non commerciale »)

“repertoire” means the musical works in CMRRA’s repertoire; (« répertoire »)

“reproduction” means the fixation of a musical work by any known or to be discovered process, in any format or material form, including the fixation on the random access memory (RAM) or hard disk of a computer; (« reproduction »)

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

Licence

3. (1) In consideration of the payment of the royalties set out in section 4 of this tariff, and in consideration of the other terms and conditions set out therein, CMRRA shall grant to a non-commercial radio station, a non-exclusive, non-transferable licence for the calendar years 2009 and 2010, authorizing the reproduction, at any time and as often as desired during the term of the licence, of the musical works in the repertoire by a conventional, over-the-air non-commercial radio station and the use of copies resulting from such reproduction for its radio broadcasting purposes.

(2) The licence shall not authorize a non-commercial radio station to reproduce a musical work in the repertoire, or use a copy resulting from such reproduction, in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.

(3) This tariff does not apply to

(a) any non-commercial audio service that is not a conventional, over-the-air radio broadcasting service; or

(b) transmissions of a musical work in the repertoire on a digital communication network, such as via the Internet.

Royalties

4. In consideration of the licence that shall be granted in accordance with section 3 above by CMRRA, the annual royalties payable to CMRRA by a non-commercial radio station shall be as follows:

(a) ENGLISH NON-COMMERCIAL RADIO STATIONS

(i) 0.14 per cent of the non-commercial radio station’s first $625,000 gross operating costs in the year for which the royalties are being paid,

(ii) 0.28 per cent of the non-commercial radio station’s next $625,000 gross operating costs in the year for which the royalties are being paid,

(iii) 0.42 per cent of any amount of gross operating costs exceeding $1,250,000 in the year for which the royalties are being paid;

(b) FRENCH NON-COMMERCIAL RADIO STATIONS

(i) 0.06 per cent of the non-commercial radio station’s first $625,000 gross operating costs in the year for which the royalties are being paid,

(ii) 0.12 per cent of the non-commercial radio station’s next $625,000 gross operating costs in the year for which the royalties are being paid,

(iii) 0.18 per cent of any amount of gross operating costs exceeding $1,250,000 in the year for which the royalties are being paid;

(c) ENGLISH NON-COMMERCIAL LOW-USE STATIONS

(i) 0.06 per cent of the non-commercial low-use station’s first $625,000 gross operating costs in the year for which the royalties are being paid,

(ii) 0.12 per cent of the non-commercial low-use station’s next $625,000 gross operating costs in the year for which the royalties are being paid,

(iii) 0.18 per cent of any amount of gross operating costs exceeding $1,250,000 in the year for which the royalties are being paid;

(d) FRENCH NON-COMMERCIAL LOW-USE STATIONS

(i) 0.03 per cent of the non-commercial low-use station’s first $625,000 gross operating costs in the year for which the royalties are being paid,

(ii) 0.05 per cent of the non-commercial low-use station’s next $625,000 gross operating costs in the year for which the royalties are being paid,

(iii) 0.08 per cent of any amount of gross operating costs exceeding $1,250,000 in the year for which the royalties are being paid.

Payments, Accounts and Records

5. (1) Royalties payable by a non-commercial radio station to CMRRA for each calendar year shall be due on the 31st day of January of the year following the calendar year for which the royalties are being paid.

(2) With each payment, a non-commercial radio station shall forward to CMRRA a written, certified declaration of the actual gross operating costs of the non-commercial radio station for the year for which the payment is made.

(3) Upon receipt of a written request from CMRRA, a non-commercial radio station shall collect information on the musical contents of its programming (logs), in electronic format where available, indicating, for each musical work broadcast, at least the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album, the record label, the date and time of broadcast and, where available, the Universal Product Code (UPC) and the International Standard Recording Code (ISRC) of the record from which the musical work is taken. CMRRA must give 30 days’ notice for such a request and may formulate such a request no more than once a year, each time for a period of 12 days, which may not necessarily be consecutive. The non-commercial radio station shall then forward the information requested to CMRRA within 15 days of the last day of the period indicated in CMRRA’s request.

(4) Pursuant to subsection (3), a non-commercial radio station that pays less than $2,000 per year in royalties will be required to submit its broadcasting information for a period of only four days, which may not necessarily be consecutive.

(5) A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records and logs from which the information set out in subsection (3) can be readily ascertained.

(6) A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, accounts and records from which the information set out in subsection (2) can be readily ascertained.

(7) CMRRA may audit these accounts, records and logs at any time during the period set out in subsections (5) and (6), on reasonable notice and during normal business hours.

(8) CMRRA shall, upon receipt of a report of an audit, supply a copy of the report to the non-commercial radio station that was the object of the audit.

(9) If an audit discloses that royalties due to CMRRA have been understated in any year by more than 10 per cent, the non-commercial radio station that was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

(10) 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 above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

(11) Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made within 30 days following the conclusion of an agreement to this effect with CMRRA.

Confidentiality

6. (1) Subject to subsections (2) and (3), CMRRA shall treat in confidence information received from a non-commercial radio station pursuant to this tariff, unless the non-commercial radio station consents in writing to the information being treated otherwise.

(2) CMRRA may share information referred to in subsection (1)

(a) with the Copyright Board;

(b) in connection with proceedings before the Board;

(c) to the extent required to effect the distribution of royalties, with its royalty claimants; or

(d) if ordered by law or by a court of law.

(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from someone other than the non-commercial radio station and who is not under an apparent duty of confidentiality to that non-commercial radio station.

Delivery of Notices and Payments

7. (1) All notices and payments to CMRRA shall be sent to 56 Wellesley Street W, Suite 320, Toronto, Ontario M5S 2S3, fax number 416-926-7521, or to any other address or fax number of which the non-commercial radio station has been notified in writing.

(2) All communications from CMRRA to a non-commercial radio station shall be sent to the last address or fax number provided in writing by that non-commercial radio station to CMRRA.

(3) A communication or a notice may be delivered by hand, by postage-paid mail or by fax. A payment must be delivered by hand or by postage-paid mail.

(4) All communications, notices or payments mailed in Canada shall be presumed to have been received four business days after the day they were mailed. All communications or notices sent by fax shall be presumed to have been received the day they were transmitted.

NOTICE:
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