Vol. 142, No. 17 — April 26, 2008

COPYRIGHT BOARD

FILE: Reproduction of Performers’ Performances

Statement of Proposed Royalties to Be Collected for the Reproduction, in Canada, of Performers’ Performances by 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 ARTISTI on March 31, 2008, with respect to royalties it proposes to collect, effective January 1, 2009, for the reproduction, in Canada, of performers’ performances by commercial radio stations for the years 2009 to 2011.

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 ARTISTI FOR THE REPRODUCTION, IN CANADA, OF PERFORMERS’ PERFORMANCES IN THE REPERTOIRE OF ARTISTI BY COMMERCIAL RADIO STATIONS FOR THE YEARS 2009 TO 2011

General Provisions

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

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

Short Title

1. This tariff may be cited as the ARTISTI Commercial Radio Tariff, 2009-2011.

Definitions

2. In this tariff,

“gross income” means the gross amount paid by any person for the use of one or more broadcasting services or facilities provided by the radio station operator, excluding the following:

(a) income accruing from investments, rents or any other business unrelated to the radio station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the radio station’s broadcasting services and facilities or which results in their use shall be included in the “gross income”;

(b) amounts received for the production of a program that is commissioned by someone other than the radio station and that becomes the property of that other person;

(c) amounts corresponding to the cost paid by the radio station for any exclusive national or provincial broadcast rights to a sporting event, if the radio station can establish that it received normal fees for station time and facilities. ARTISTI may require production of the contract granting those rights, together with the billing or correspondence relating to the use of these rights by other parties;

(d) amounts received by an originating radio station on behalf of a group of radio stations that do not constitute a permanent network and that broadcast a single event, simultaneously or on a delayed basis, where the originating radio station subsequently pays out such amounts received to the other radio stations participating in the broadcast. These amounts paid to each participating radio station are part of that radio station’s “gross income”; (« revenus bruts »)

“low-use station” means

(a) a station that

(i) broadcasts performers’ performances for less than 20 per cent of its total broadcast time (excluding production music) during the reference month, and

(ii) keeps and makes available to ARTISTI complete recordings of its last 90 broadcast days; or

(b) a station that

(i) during the reference month, does not make or keep any reproduction of performers’ performances onto a computer hard disk,

(ii) during the reference month, does not use any reproduction of performers’ performances made or kept onto the computer hard disk of another station within a network, and

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

“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 »)

“performer’s performance” means any performance by a performer of a literary, dramatic or musical work, including an improvisation, whether or not the improvised work is inspired by a pre-existing work, and whether or not the term of copyright protection of the work has expired, provided that the performance was previously fixed in any material form; (« prestation »)

“production music” means music used in interstitial programming such as commercials, public service announcements and jingles; (« musique de production »)

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

“repertoire” means the repertoire of ARTISTI; (« répertoire »)

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

Application

3. This tariff applies to licences for the following uses of performers’ performances in the repertoire by commercial radio stations:

(a) the reproduction of a performer’s performance, in whole or in part, by any known or to be discovered process, in any format or material form, including the embodiment of a performer’s performance in a montage, a compilation, a mix or a medley, for the purpose of using the reproduction in the broadcasting operations of the station or of another station that is part of the same network as the station;

(b) the reproduction of a performer’s performance, in whole or in part, by any known or to be discovered process, in any format or material form, for archival or reference purposes in relation to the station’s broadcasting operations or of another station that is part of the same network as the station; and

(c) the keeping of reproductions made pursuant to paragraph (a) or (b), so long as the station is licensed pursuant to this tariff.

4. This tariff does not authorize the use of any reproduction made pursuant to section 3 in association with a product, service, cause or institution, including in the context of an advertisement of a product, service, cause or institution.

Royalties

5. A low-use station shall pay ARTISTI, on a monthly basis calculated against its gross income for the reference month, 0.06 per cent of the station’s gross revenues.

6. Any other station shall pay ARTISTI, on a monthly basis calculated against its gross income for the reference month, 0.13 per cent of the station’s first $1.25 million gross income in a year and 0.18 per cent of any further gross income received by the station.

Administrative Provisions

7. No later than the first day of each month, the station shall:

(a) pay to ARTISTI the royalties due for that month;

(b) report to ARTISTI the station’s gross income for the reference month.

Information on Repertoire Use

8. (1) Upon receipt of a written request from ARTISTI, a station shall provide the following information regarding all performers’ performances broadcast by the station during the days indicated in the request:

(a) the date and time of the broadcast; and

(b) the name of the performer(s) or group of performers, the title of the work performed, the name of the author and/or composer of the work performed, the title of the album, the name of the producer of the sound recording in which the performer’s performance is embodied and, subject to their availability, the Universal Product Code (UPC) and the International Standard Recording Code (ISRC) of the sound recording in which the performer’s performance is embodied, the catalogue number of the album, the international performer’s number (IPN), the date of first fixation of the performer’s performance, and the place of first publication of the sound recording in which the performer’s performance is embodied.

(2) The information set out in subsection (1) shall be provided to ARTISTI no later than 14 days after receipt of the written request.

(3) ARTISTI may request information pursuant to subsection (1) in respect of a maximum of 14 broadcast days in any given year.

Records and Audits

9. (1) The station shall keep and preserve, for a period of six (6) months after the end of the month to which they relate, records from which the information set out in section 8 can be readily ascertained.

(2) The station shall keep and preserve, for a period of six (6) years after the end of the year to which they relate, records from which the station’s gross income, as well as any income excluded from calculation of gross income pursuant to this tariff, can be readily ascertained.

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

(4) ARTISTI may also audit the broadcast day recordings of a low-use station, on reasonable notice and during normal business hours.

(5) If an audit discloses that royalties due have been understated in any month by more than 10 per cent, the station shall pay all reasonable costs of the audit, within 30 days of the end of the audit.

Confidentiality

10. (1) Subject to subsections (2) and (3), ARTISTI shall treat in confidence information received pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

(2) Notwithstanding subsection (1), information received by ARTISTI pursuant to this tariff may be disclosed:

(a) to the Copyright Board;

(b) in the context of proceedings before the Copyright Board;

(c) to the extent required to effect the distribution of royalties; or

(d) if required by law or by a court of competent jurisdiction.

(3) Subsection (1) does not apply to information that is publicly available, or to information obtained from a third party which is not under a duty of confidentiality to the station.

Adjustments

11. (1) Where a station holding an authorization pursuant to this tariff discovers that an error has been committed in the calculation of royalties due to ARTISTI, such station shall notify ARTISTI as soon as possible. Royalties due for the period subsequent to the period in which the error was notified to ARTISTI shall be adjusted accordingly, unless the error was notified more than twelve (12) months after it was made, in which case no adjustment shall be made.

(2) Where ARTISTI discovers that an error has been committed in the calculation of royalties due to it, ARTISTI shall notify the station. Royalties due to ARTISTI for the period subsequent to the period in which the error was notified to the station shall be adjusted accordingly, without regards to the date of notification of the error.

Interest on Late Payments

12. 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 of Canada 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.

13. (1) Subject to section 15, anything addressed to ARTISTI shall be sent to 1441 René-Lévesque Boulevard W, Suite 400, Montréal, Quebec H3G 1T7, email radiorepro@uniondesartistes.com, fax 514-288-7875, or to any other address, email address or fax number of which the station has been notified in writing.

(2) Subject to section 15, anything addressed to a station shall be sent to the last address, email address or fax number of which ARTISTI has been notified in writing.

Communications and Delivery of Payments

14. (1) Payments to ARTISTI must be delivered by hand or by postage-paid mail.

(2) Information set out in paragraph 7(b) and section 8 shall be sent by email.

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

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

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).