Vol. 143, No. 19 — May 9, 2009

COPYRIGHT BOARD

FILE: Reprography 2010-2014

Statements of Proposed Royalties to Be Collected for the Reprographic Reproduction, in Canada, of Works in Access Copyright’s Repertoire for the Years 2010-2014

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statements of royalties filed by the Canadian Copyright Licensing Agency (Access Copyright) on March 31, 2009, with respect to the royalties it proposes to collect, effective January 1, 2010, for the reprographic reproduction, in Canada, of works in its repertoire by educational institutions and persons acting under their authority and by employees of provincial and territorial governments.

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 statements 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 8, 2009.

Ottawa, May 9, 2009

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

STATEMENT OF ROYALTIES TO BE COLLECTED BY THE CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)

For the reproduction, in Canada, in 2010, 2011 and 2012 of works in the repertoire of Access Copyright by certain ministries, school boards, educational institutions and persons acting under their authority.

1. Short title

This tariff may be cited as the Access Copyright Elementary and Secondary School Tariff, 2010-2012.

2. Definitions

In this tariff,

“Authorized Purposes” means Copying for any not-for-profit purpose within or in support of the mandate of Educational Institutions in Canada, including:

(a) educational (including testing and examination activities), professional, research, archival, administrative and recreational activities;

(b) communicating with and the provision of information to parents or guardians, school advisory/parent councils and other members of the community served by an Educational Institution;

(c) production of teacher implementation documents, correspondence school and distance learning courses, curriculum documents, workshop packages, provincial examinations and all other similar activities; and

(d) making a reasonable number of Copies for on-site consultation in a Library or loan by a Library. (« Fins autorisées »)

“Choral Work” means a Published Work written to be sung by a choir or other group of singers, with or without any instrumental accompaniment. (« Œuvre chorale »)

“Commercially Available” means that the Published Work is, at the time in question, offered for sale new through one or more then-customary channels of trade in Canada. (« Disponible dans le commerce »)

“Copy” means a reproduction of a Published Work made by any of the following processes:

(a) by reprography, which includes facsimile reproduction by photocopying and xerography;

(b) reproducing onto microform (including microfilm and microfiche);

(c) by typing or word-processing;

(d) reproducing by a machine, device or computer that makes a Digital Copy;

(e) by hand transcription or drawing (including tracing) onto acetate or other media;

(f) by duplicating from a stencil;

(g) by facsimile transmission;

(h) by video telecommunication;

and includes the Digital Copy, but does not include a mechanical reproduction of a musical work. (« Copie »)

“Copying” means making a Copy. (« Copier »)

“Course Pack” means a compilation of materials (bound or otherwise assembled, either at once or gradually over time) that is designed for use by students of an Educational Institution to support a course or unit of study and is either intended, or may reasonably be expected, to be used instead of a Published Work that might otherwise have been purchased. A Course Pack may comprise a variety of types of material, published and unpublished, and may include original content. A compilation that includes Copies taken from fewer than four sources and totalling fewer than twenty (20) pages is not a Course Pack for the purposes of this tariff. (« Recueil de Cours »)

“Digital Copy” means any electronic file of a Published Work. (« Copie numérique »)

“Educational Institution” means a Public Educational Institution and a Private Educational Institution. (« Établissement d’enseignement »)

“Full-time-equivalent Student” means a full-time student or the equivalent of one student qualifying as a full-time student of an Educational Institution. (« Élève équivalent temps plein »)

“FTE Determination Date” means the date as of which the number of Full-time-equivalent Students is calculated for any given year. (« Date de détermination de l’ETP »)

“Grand Right Work” means an opera, operetta, musical play, musical, pantomime, ballet, large choral work or other musical work that, if performed, would last over 20 minutes in duration. (« Œuvre de grand droit »)

“Library” means any collection of Published Works that is operated under the authority of a Licensee and located on the premises of a School Board or Educational Institution and includes any such collection in a resource or learning centre. (« Bibliothèque »)

“Licensee” means any Minister, Ministry, School Board or Private Educational Institution licensed pursuant to this tariff. (« Titulaire de licence »)

“Minister” means the person appointed as responsible for the Ministry in any particular Province or Territory (excluding the Province of Quebec). (« Ministre »)

“Ministry” means:

(a) in respect of the Province of Alberta, Alberta Education;

(b) in respect of the Province of British Columbia, the British Columbia Ministry of Education;

(c) in respect of the Province of Manitoba, Manitoba Education, Citizenship & Youth;

(d) in respect of the Province of New Brunswick, the New Brunswick Department of Education;

(e) in respect of the Province of Newfoundland and Labrador, the Newfoundland and Labrador Department of Education;

(f) in respect of the Northwest Territories, the Northwest Territories Department of Education, Culture and Employment;

(g) in respect of the Province of Nova Scotia, the Nova Scotia Department of Education;

(h) in respect of the Territory of Nunavut, the Nunavut Department of Education;

(i) in respect of the Province of Ontario, the Ontario Ministry of Education;

(j) in respect of the Province of Prince Edward Island, the Prince Edward Island Department of Education;

(k) in respect of the Province of Saskatchewan, the Saskatchewan Ministry of Education; and

(l) in respect of the Government of the Yukon, the Yukon Department of Education;

or any successor or substituted ministry resulting from a reorganization of the government of any particular Province or Territory. (« Ministère »)

“Orchestral or Band Work” means a Published Work scored for multiple musical instruments. (« Œuvre pour orchestre ou groupe musical »)

“Private Educational Institution” means any institution providing primary, elementary or secondary school programming that is not a Public Educational Institution. (« Établissement d’enseignement privé »)

“Published Work” means a literary, dramatic, artistic or musical work protected by copyright in Canada, or a part of such work, of which copies have been issued to the public with the consent or acquiescence of the copyright owner, including but not restricted to books, sheet music, folios, magazines, newspapers, journals and other periodical publications but does not include works created in digital form which do not have a corresponding print version. (« Œuvre publiée »)

“Public Educational Institution” means any institution providing primary, elementary or secondary school programming funded by a Minister, Ministry or School Board and operated under the authority of a Minister, Ministry or School Board. (« Établissement d’enseignement public »)

“Repertoire” means those Published Works published in or outside of Canada by any author or publisher, estate of an author or publisher or other person with a copyright interest in the Published Works who, by assignment, grant of licence or by appointment as an agent or otherwise, has authorized Access Copyright to collectively administer reproduction rights in Published Works and those Published Works published in or outside of Canada by other copyright owners where an agreement between Access Copyright and another reproduction rights collective society authorizes Access Copyright to represent such other copyright owners. (« Répertoire »)

“School Board” means school boards, school districts, divisional education councils, conseils scolaires or similar entities or organizations established by, and operating under, the authority of a Minister or Ministry. (« Commission scolaire »)

“School Year” means the twelve month period of September 1 to August 31. (« Année scolaire »)

“Secure Authentication” means a process of authentication which, at the time of login, identifies each user, whether by user name and password or by some other equally secured method. (« Authentification sécurisée »)

“Year” means a calendar year. (« Année »)

3. Application

Subject to paragraphs 3(a) to (d) and the limitations set out in sections 4 and 5 hereof, School Boards and Educational Institutions, and persons acting under their authority, shall be permitted to make and distribute Copies of Published Works in the Repertoire for Authorized Purposes, and the Ministry, and persons acting under its authority, shall be permitted to make and distribute Copies of Published Works in the Repertoire for inclusion in tests or examinations or in distance education materials, as follows:

(a) Copy up to ten per cent (10%) of a Published Work, provided that such limit may be exceeded in respect of the following portions of a Published Work:

(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);

(vi) one chapter, provided it is no more than twenty per cent (20%) of a book;

(vii) an entire reproduction of a musical work provided that, if taken from a book, forms no more than twenty per cent (20%) of that book; and

(viii) up to one hundred per cent (100%) of reproducibles such as assignment sheets and blackline masters.

(b) Notwithstanding subparagraph 4(a)(i), make Copies up to a cumulative maximum of ten percent (10%) of workcards, if such Copies are made to replace purchased originals and the portion Copied is no longer Commercially Available.

(c) Except as otherwise stated, make and distribute:

(i) the number of Copies that is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies;

(ii) the number of Copies required for administrative purposes, including communication of information to parents, school advisory/parent councils and other members of the community served by an Educational Institution;

(iii) a reasonable number of Copies for on-site consultation in a Library or loan by a Library; and

(iv) a Copy to be used to project, display or interact with an image for presentation to students using, but not limited to, an overhead projector, LCD or plasma monitor or interactive whiteboard.

(d) With respect to musical works, make and distribute:

(i) the number of Copies of a Choral Work which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough sheet music or songbooks containing the Choral Work to supply at least 75% of the largest group of Full-time-equivalent Students singing that Choral Work at any given time in any School Year;

(ii) the number of Copies of an Orchestral or Band Work which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough instrumental parts of the Orchestral or Band Work to supply at least 50% of the largest group of Full-time-equivalent Students playing that Orchestral or Band Work at any given time in any School Year;

(iii) the number of Copies of Commercially Available sheet music, other than sheet music of a Choral Work or an Orchestral or Band Work, which is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies as long as the Educational Institution purchased enough Commercially Available sheet music such that the sheet music could be provided to at least 75% of the largest group of Full-time-equivalent Students using that sheet music at any given time in any School Year;

(iv) the number of Copies that is sufficient to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies of sheet music that is not Commercially Available.

(v) one Copy for archival purposes or to replace copies that are lost, damaged, destroyed or otherwise unusable over time;

(vi) Copies that transpose or adapt a musical work plus a sufficient number of Copies of that transposed or adapted work to permit each student to have one Copy only for his or her personal use and each teacher to have two Copies, subject to subparagraphs 3(d)(i) to (iii) whenever the sheet music or songbook is Commercially Available; and

(vii) a Copy to be used to project, display or interact with an image of the musical work for presentation to students using, but not limited to, an overhead projector, LCD or plasma monitor or interactive whiteboard, subject to subparagraphs 3(d)(i) to (iii).

4. General Limitations

(a) Copies shall not be made of the following categories of work without prior written permission from the rights holder or the rights holder’s legal representative:

(i) workcards, subject to paragraph 3(b);

(ii) instruction manuals and teachers’ guides;

(iii) Grand Right Works; and

(iv) Published Works that contain a notice prohibiting reproduction under a licence from a collective society.

(b) There shall be no cumulative Copying from the same Published Work beyond the limits set out in paragraph 3(a) for one course of study or program in one School Year or over time for retention in files maintained by a Library or any individual making Copies under the authority of a Licensee under this tariff.

(c) Copies shall not be made for or used in a Course Pack.

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

(e) Copies shall only be made from Published Works that are lawfully obtained by the Licensee.

(f) Except as specifically permitted by subparagraph 3(d)(vi), Copies shall be faithful and accurate reproductions of the original Published Work.

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

5. AdditionalLimitations Regarding Digital Copies

(a) 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 which identifies the user’s status as an employee of a Ministry, School Board or a teacher, staff, student or parent or guardian of a student of the Educational Institution.

(b) Digital Copies shall not be shared, emailed or otherwise distributed to any persons other than an employee of a Ministry, School Board or a teacher, staff, student or parent or guardian of a student of the Educational Institution.

(c) Digital Copies shall not be stored, or systematically indexed, with the intention or result of creating an electronic database of Published Works or an educational learning resource.

(d) Where the Licensee is no longer covered by a tariff for the making and distribution of Digital Copies, the Licensee and persons acting under its authority shall immediately cease to use Digital Copies of Published Works in the Repertoire, delete from their hard drives, servers or storage area network, and make reasonable efforts to delete from any other device or medium capable of storing Digital Copies, those Digital Copies and upon written request from Access Copyright shall certify that it has done so.

6. Attribution

The Licensee shall notify all persons entitled to make and distribute Copies under this tariff that, where reasonable under the circumstances, Copies of Published Works in the Repertoire shall include on at least one page:

(a) a credit to the author (including composer, writer, artist, photographer and illustrator) and to the source; and

(b) a notice stating “Copied under licence from Access Copyright. Further reproduction or distribution is prohibited, except as otherwise permitted by law”.

7. Notification of the Terms and Conditions of Copying

Access Copyright shall provide for free, and each Licensee shall affix, within the immediate vicinity of each machine or device used for making Copies in a place and manner that is readily visible to and legible by persons using such machine or device, a notice in the form set out by the Copyright Board.

8. Royalties

(a) The Licensee shall pay an annual royalty to Access Copyright, calculated by multiplying the royalty rate of $15.00 CAD by the number of its Full-time-equivalent Students.

(b) Royalties shall be calculated on an annual basis with reference to Full-time-equivalent Student statistics provided pursuant to paragraph 9(b) of this tariff.

9. Reporting and Payment

(a) Royalties shall be payable in two equal instalments as follows:

(i) the first instalment shall be paid on or before the later of:

(A) April 30 of each Year; and

(B) the 60th day following receipt by the Licensee of an invoice in respect of such payment as required pursuant to paragraph 9(c); and

(ii) the second instalment shall be paid on or before the later of:

(A) October 31 of each Year; and

(B) the 60th day following receipt by the Licensee of an invoice in respect of such payment as required pursuant to paragraph 9(c).

(b) The Licensee shall deliver to Access Copyright a written notice specifying the number of Full-time-equivalent Students, as of the FTE Determination Date, in the current School Year by no later than January 31 of each Year.

(c) Access Copyright shall issue to the Licensee invoices setting out the amounts which are payable by the Licensee on each of the two instalment dates specified in paragraph 9(a).

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

10. Interest

Any amount of an invoice issued under section 9 not received by Access Copyright by its due date shall bear interest from such due date until the date the amount is received. Interest shall be calculated daily at a rate equal to one percent (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.

11. Bibliographic Surveys

(a) Once every School Year, Access Copyright may advise all Licensees of its intention to conduct a bibliographic survey (paper and digital) in Educational Institutions under their authority.

(b) Within ten (10) days of receiving a notice pursuant to paragraph (a), a Licensee shall provide to Access Copyright a list with the name, address, grade levels and enrolment of each Educational Institution that is under its authority.

(c) Within ten (10) days of receiving the last list requested pursuant to paragraph (b), Access Copyright shall provide to each Licensee a list of the Educational Institutions under its authority that Access Copyright intends to include in the survey.

(d) Within ten (10) days of receiving a list pursuant to paragraph (c), a Licensee may advise Access Copyright that an Educational Institution is, on reasonable grounds that shall be provided to Access Copyright, unable to participate in the survey.

(e) Within seven (7) days of receiving a notice pursuant to paragraph (d), Access Copyright may provide to the Licensee the name of another Educational Institution it wishes to survey. Paragraph (d) then applies, with any necessary modifications, in respect of that other institution.

(f) Within ten (10) days after the list of Educational Institutions to be surveyed is finalized, a Licensee shall supply to Access Copyright, with respect to each such institution, the name, address, telephone number and, where available, the email address of the school principal or of the person who will coordinate the survey within the Educational Institution, unless the information was on the list supplied pursuant to paragraph (b).

(g) Within ten (10) days after the list of Educational Institutions to be surveyed is finalized, a Licensee that is not a School Board or a Private Educational Institution shall send to the director of education of each School Board responsible for a Public Educational Institution to be surveyed the list of Public Educational Institutions to be surveyed and the dates of those surveys. The Licensee shall send a copy of the letter to Access Copyright.

(h) No less than fifteen (15) days after the list of Educational Institutions to be surveyed is finalized and no later than thirty (30) days before the survey period for an Educational Institution, Access Copyright shall send to the director of education for each School Board responsible for a Public Educational Institution or to the principal of the Private Educational Institution to be surveyed a letter outlining the Educational Institutions where a survey will occur and the dates of those surveys.

(i) Within five (5) school days of receiving a letter pursuant to paragraph (h), a director of education shall send to the principal of each Educational Institution mentioned in the letter a letter outlining that a survey will occur and the dates of the survey. Within ten (10) school days of receiving a letter pursuant to paragraph (h), a director of education may advise Access Copyright that an Educational Institution is, on reasonable grounds that shall be provided to Access Copyright, unable to participate in the survey.

(j) Within five (5) days of receiving a notice pursuant to paragraph (i), Access Copyright may provide to the director of education the name of another Educational Institution it wishes to survey. Paragraph (i) then applies, with any necessary modifications, in respect of that other Educational Institution.

(k) No less than ten (10) school days before the start of the survey period for an Educational Institution, Access Copyright shall send to the institution a letter outlining the details of the survey.

(l) A paper survey shall last ten (10) consecutive school days. During the survey, an Educational Institution shall make a paper copy of the page of each Copied Published Work that contains the most bibliographic information and shall indicate, on a sticker supplied by Access Copyright and to be affixed to the back of the paper copy, the date the Copy was made, the number of original pages Copied from the work and the number of sets of Copies made.

(m) A digital survey shall last twenty (20) consecutive school days. During the survey, staff at the Educational Institution shall provide Access Copyright with a digital copy of the Digital Copy made of a Published Work. They shall also provide the date the Digital Copy was made, the medium or device on which the Digital Copy is being stored, information on whether the Digital Copy has or will be viewed or accessed by others and, if the Digital Copy has or will be viewed or accessed by others (including presentation in a classroom), the number of people it has or will be viewed or accessed by.

(n) The information set out in paragraphs (l) and (m) shall be provided to Access Copyright no later than fourteen (14) school days after the end of the survey period.

(o) Representatives of Access Copyright may, with the prior authorization of the principal of the Educational Institution being surveyed, monitor the conduct of the survey. The authorization shall not be unreasonably withheld. Before granting the authorization, the principal may require Access Copyright to provide information required by law or pursuant to School Board policy regarding access to Educational Institutions.

(p) An Educational Institution that has participated in a survey during a School Year cannot be surveyed in the next two (2) School Years.

(q) An Educational Institution that unreasonably refuses to participate in the survey, that unreasonably withholds the authorization mentioned in paragraph (o) or that otherwise does not comply with this section ceases to be entitled to the benefit of this tariff until it so complies.

12. Records and Audits

(a) The Licensee shall keep and preserve, for a period of six (6) years after the end of the School Year to which they relate, records (which may include internal audits) from which the royalties due to Access Copyright under this tariff can be readily ascertained.

(b) No more than once per School Year, Access Copyright may audit these records on seven (7) days’ written notice to the Licensee and during normal business hours.

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

(d) If an audit discloses that royalties due have been understated in respect of any instalment payable pursuant to section 9 by more than ten per cent (10%), the Licensee shall pay the reasonable costs of the audit.

13. Adjustments

Adjustments in the amount of royalties owed (including overpayments) as a result of the discovery of an error or otherwise, shall be applied to the next invoice issued by Access Copyright to the Licensee or, if the tariff has expired, paid or refunded within sixty (60) days.

14. Addresses for Notices and Payment

(a) Anything that a Licensee sends to Access Copyright, including notices and payments, shall be sent to:

Executive Director, Access Copyright
The Canadian Copyright Licensing Agency
One Yonge Street, Suite 800
Toronto, Ontario M5E 1E5
Telephone: 416-868-1620
Fax: 416-868-1621
Email: schooltariff@accesscopyright.ca

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

15. Delivery of Notices and Payment

(a) 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.

(b) A notice or payment mailed in Canada shall be presumed to have been received three (3) business days after the day it was mailed.

(c) A notice or payment sent by fax, email or electronic bank transfer shall be presumed to have been received on the first business day following the day it is transmitted.

16. Transitional Provision: Interest Accrued before the Publication of the Tariff

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].

STATEMENT OF ROYALTIES TO BE COLLECTED BY THE CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)

For the reproduction, in Canada, in 2010, 2011, 2012, 2013 and 2014 of works in the repertoire of Access Copyright by employees of Provincial and Territorial Governments.

1. Short title

This tariff may be cited as the Access Copyright Provincial and Territorial Governments Tariff, 2010-2014.

2. Definitions

In this tariff,

“Copy” means a reproduction of a Published Work made by any of the following processes:

(a) reprography, which includes facsimile reproduction by photocopying and xerography;

(b) reproducing onto microform (including microfilm and microfiche);

(c) typing or word-processing without adaptation;

(d) reproducing by a machine, device or computer that makes a Digital Copy;

(e) hand transcription or drawing (including tracing) onto acetate or other media;

(f) duplicating from a stencil;

(g) facsimile transmission;

(h) video telecommunication,

and includes the Digital Copy. (« Copie »)

“Copying” means making a Copy. («Copier »)

“Digital Copy” means any electronic file of a Published Work. (« copie numérique »)

“FTE” means a full-time employee or individual working for the Licensee under contract or a part-time employee or individual working for the Licensee under contract whose combined ordinary working hours are counted in proportion to a full-time employee’s ordinary 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 »)

“Published Work” means a literary, dramatic or artistic copyright work protected by copyright in Canada, or a part of such copyright work, of which copies have been issued to the public with the consent or acquiescence of the copyright owner, including but not limited to books, folios, magazines, newspapers, journals and other periodical publications. (« Œuvre publiée »)

“Repertoire” means those Published Works published in or outside of Canada by any author or publisher, estate of an author or publisher or other person with a copyright interest in the Published Works who, by assignment, grant of licence or by appointment as an agent or otherwise, has authorized Access Copyright to collectively administer reproduction rights in Published Works and those Published Works published in or outside of Canada by other copyright owners where an agreement between Access Copyright and another reproduction rights collective society authorizes Access Copyright to represent such other copyright owners. (« Répertoire »)

“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 »)

“Year” means a calendar year. (« Année »)

3. Application

Subject to sections 4 and 5 hereof, an FTE shall be permitted to make and distribute Copies of Published Works in the Repertoire, for the non-profit purposes of conducting business within the mandate of the Licensee and for purposes of the delivery of government programs and services, including 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 Published Work, then the Licensee shall make reasonable efforts to secure a new replacement of the Published Work within a reasonable period of time.

(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.

4. General Limitations

(a) Copies may only be made from Published Works that are lawfully obtained by the Licensee.

(b) There shall be no intentional cumulative Copying from the same Published Work beyond the limits set out in paragraph 3(a) hereof.

(c) Copies shall not be made as a substitute for Published Works that would ordinarily be purchased.

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

(e) 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.

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

(g) Copies shall be faithful and accurate reproductions of the original Published Work.

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

5. Additional Limitations Regarding Digital Copies

(a) 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 that identifies the user’s status as an FTE.

(b) Digital Copies shall not be stored, or systematically indexed, with the intention or result of creating an electronic database of Published Works.

(c) 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.

(d) Where the Licensee is no longer covered by a tariff for the making and distribution of Digital Copies, the Licensee shall immediately cease to use Digital Copies of Published Works in the Repertoire, delete from their hard drives, servers or storage area networks, and make reasonable efforts to delete from any other device or medium capable of storing Digital Copies, those Digital Copies and upon written request from Access Copyright shall certify that it has done so.

6. Attribution

The Licensee shall notify all persons 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. Further reproduction or distribution is prohibited, except as otherwise permitted by law.”

7. Notification of the Terms and Conditions of Copying

Access Copyright shall provide for free, and each Licensee shall affix, within the immediate vicinity of each machine or device used for making Copies in a place and manner that is readily visible to and legible by persons using such machine or device, a notice in the form set out by the Copyright Board.

8. Royalties

(a) The Licensee shall pay an annual royalty to Access Copyright, calculated by multiplying the royalty rate of CAD $24.00 by the number of its FTEs.

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

9. Reporting and Payment

(a) No later than January 31 of each Year of this tariff, the Licensee shall provide to Access Copyright the number of its FTEs covered by this tariff.

(b) Access Copyright will invoice the Licensee by March 1 of each Year of this tariff and such invoice shall be payable within thirty (30) days of the issue date.

(c) 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.

10. Interest

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

11. Surveying

When requested by Access Copyright, but not more than once a year, the Licensee shall co-operate with Access Copyright in implementing a method of data collection reasonably required to assist Access Copyright in distributing royalties paid by the Licensee under this tariff.

12. Records and Audits

(a) The Licensee shall keep and preserve, for a period of six (6) years, records from which the royalties due to Access Copyright under this tariff can be readily ascertained.

(b) Access Copyright, or its representative, may audit these records on seven (7) days’ written notice to the Licensee and during normal business hours.

(c) If an audit discloses that royalties due pursuant to section 8 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.

(d) 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.

13. Addresses for Notices and Payment

(a) Notices to Access Copyright shall be sent to:

Executive Director, Access Copyright
The Canadian Copyright Licensing Agency
One Yonge Street, Suite 800
Toronto, Ontario M5E 1E5
Telephone: 416-868-1620
Fax: 416-868-1621
Email: governmenttariff@accesscopyright.ca

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

14. Delivery of Notices and Payment

(a) 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.

(b) A notice or payment mailed in Canada shall be presumed to have been received three (3) business days after the day it was mailed.

(c) 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.

15. Transitional Provision: Interest Accrued before the Publication of the Tariff

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].

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).