Vol. 141, No. 21 — May 26, 2007

COPYRIGHT BOARD

FILE: Reproduction of Sound Recordings

Statement of Proposed Royalties to Be Collected for the Reproduction of Sound Recordings, in Canada, for the Years 2008 to 2011

In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by AVLA Audio-Visual Licensing Agency (AVLA) and the Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (SOPROQ) on March 30, 2007 with respect to royalties they propose to collect, effective January 1, 2008, for the reproduction of sound recordings, in Canada, by commercial radio stations for the years 2008 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 July 25, 2007.

Ottawa, May 26, 2007

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 ROYALTIES TO BE COLLECTED BY
AVLA AUDIO-VISUAL LICENSING AGENCY INC. ("AVLA")
AND SOCIÉTÉ DE GESTION COLLECTIVE DES
DROITS DES PRODUCTEURS DE PHONOGRAMMES
ET DE VIDÉOGRAMMES DU QUÉBEC ("SOPROQ")
FOR THE REPRODUCTION OF SOUND RECORDINGS
IN THE REPERTOIRE OF AVLA OR SOPROQ BY
COMMERCIAL RADIO STATIONS IN 2008-2011

General Provisions

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

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

Short Title

1. This tariff may be cited as the AVLA/SOPROQ Commercial Radio Tariff, 2008-2011.

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's operator but 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 being used shall be included in "gross income";

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

(c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the radio station can establish that it was also paid normal fees for station time and facilities. AVLA or SOPROQ may require the production of the contract granting these 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, which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating radio station subsequently pays out 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)

"company" means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, or a natural person in such person's capacity as trustee, executor, administrator or other legal representative, that owns one or more radio stations by itself or through any affiliate; (société)

"affiliate" means an affiliate as defined in the Canada Business Corporations Act, R.S.C. 1985 c. C-44; (groupe)

"low-use station" means

(a) a station that:

(i) broadcasts sound recordings in the repertoire 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 AVLA and SOPROQ 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 onto a computer hard disk;

(ii) during the reference month, does not use any reproduction kept onto the hard disk of another station within a network; and

(iii) agrees to allow AVLA or SOPROQ 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)

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

"sound recording" means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work; (enregistrement sonore)

"reference month" means the second month before the month for which the royalties are being paid; (mois de référence)

"repertoire" means the repertoire of AVLA and SOPROQ; (répertoire)

"year" means a calendar year. (année)

Application

3. This tariff applies to licences for the following uses of sound recordings in the repertoire by commercial radio stations:

(a) the reproduction of a sound recording, in whole or in part, by any known or to be discovered process, in any format or material form, including the embodiment of a sound recording in a montage, a compilation, a mix or a medley, by a commercial radio station 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 sound recording, in whole or in part, by any known or to be discovered process, in any format or material form, by a commercial radio station 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 paragraphs (a) or (b), so long as the station is licensed pursuant to this tariff.

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

Royalties

5. A low-use station shall pay, on its gross income for the reference month, 0.48 per cent of the station's first $625,000 gross income in a year, 0.96 per cent of the station's next $625,000 gross income in a year and 1.40 per cent on the rest.

6. Any other station shall pay, on its gross income for the reference month, 1.33 per cent of the station's first $625,000 gross income in a year, 2.67 per cent of the stations next $625,000 gross income in a year and 4.00 per cent on the rest.

7. For the purposes of determining royalties payable under sections 5 and 6, where two or more stations, including low-use stations, are owned by the same company, the station shall pay royalties based on the total combined gross income for the year of all of the stations owned by the company.

Administrative Provisions

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

(a) send to AVLA the payment of royalties for that month calculated based on the reference month; and

(b) report to both AVLA and SOPROQ the station's gross income for the reference month.

Information on Repertoire Use

9. (1) Upon receipt of a written request from AVLA and SOPROQ, a radio station shall provide, with respect to each sound recording broadcast by the station, in whole or in part, during the days listed in the request, the following information:

(a) the date and time of the broadcast;

(b) the title of the sound recording, the album title, the year of release of the album, the name of the performers or performing groups and the record label; and

(c) if included in the station's logging system, the Universal Product Code (UPC) of the album and the International Standard Recording Code (ISRC) of the sound recording.

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

(3) AVLA and SOPROQ may request information pursuant to subsection (1) with respect to no more than 14 days in any given year.

Records and Audits

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

(2) A commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the station's gross income, and all records containing information from which the station's ownership by a company can be readily ascertained.

(3) AVLA and SOPROQ may audit the records referred to in subsection (1) or (2) at any time during the period set out in those subsections on reasonable notice and during normal business hours.

(4) AVLA and SOPROQ may audit the recordings kept by 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 ten per cent, the station shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

Confidentiality

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

(2) Information referred to in subsection (1) may be shared

(i) with the Copyright Board;

(ii) in connection with proceedings before the Copyright Board;

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

(iv) if required 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 station, who is not under an apparent duty of confidentiality to the station.

Adjustments

12. (1) A station making a payment under this tariff, that subsequently discovers an error in the payment, shall notify SOPROQ and AVLA of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments in the amount of royalties owed may be made in respect of an error discovered by the station which occurred more than 12 months prior to its discovery.

(2) When an error is discovered by SOPROQ or AVLA at any point in time during the term of this tariff, the collective shall notify the station to which the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

(3) The 12 month limit in subsection (1) shall not apply to an error discovered by AVLA or SOPROQ, including without limitation an error discovered pursuant to subsection (2) or an underpayment discovered through an audit conducted pursuant to subsection 10(3).

Interest on Late Payments

13. 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.

Delivery of Notices and Payments

14. (1) Subject to section 15, anything addressed to AVLA shall be sent to 85 Mowat Avenue, Toronto, Ontario M6K 3E3, email: radioreproduction@avla.ca, fax 416-967-9415, 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 SOPROQ shall be sent to 6420 Saint-Denis Street, Montréal, Quebec H2S 2R7, email: radioreproduction@soproq.org, telephone 514-842-5147, fax 514-842-7762, or to any other address, email address or fax number of which the station has been notified in writing.

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

15. (1) A payment shall be delivered by hand or by postage paid mail.

(2) The information set out in paragraphs 8(b) and 9(1) shall be sent by email.

16. (1) Anything mailed in Canada shall be presumed to have been received three 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:
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