PROPOSED TARIFF
Filed with the Copyright Board by Re:Sound on 2021-10-14 pursuant to subsection 67(1) of the Copyright Act
Proposed Tariff Title: Re:Sound Tariff 3.B – Background Music (2023-2026)
For the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers’ performances of such works.
Proposed Short Title: Re:Sound Background Music Tariff (2023-2026)
Effective Period: 2023-01-01 – 2026-12-31
RE:SOUND TARIFF 3.B – BACKGROUND MUSIC (2023-2026)
GENERAL PROVISIONS All royalties payable under this tariff are exclusive of any federal, provincial or other governmental taxes or levies of any kind.
Short Title 1. This tariff may be cited as the Re:Sound Background Music Tariff (2023-2026).
Definitions 2. In this tariff, “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 ») “recorded music” means published sound recordings embodying musical works and performers’ performances of such works; (« musique enregistrée ») “trunk line” means a telephone line, whether digital or analog, linking telephone switching equipment to the public switched telephone network. (« ligne principale de standard »)
Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021
Application 3. (1) This tariff sets for the years 2023 to 2026, the royalties to be paid to Re:Sound, for the benefit of performers and makers, for the performance in public or the communication to the public by telecommunication of recorded music in an establishment, including any use of such recorded music with a telephone on hold.
(2) This tariff does not apply to a performance in public or a communication to the public by telecommunication for which royalties are paid by a background music supplier.
(3) This tariff does not apply to a performance in public or a communication to the public by telecommunication that is expressly covered by another Re:Sound tariff.
Royalties Payable 4. (1) For the performance in public or communication to the public by telecommunication of recorded music by telephone on hold, the royalty payable shall be $140.93 for the first trunk line and $3.15 for each additional trunk line. (2) In addition to any royalty payable under subsection (1), the royalty payable for the relevant year for the performance in public or communication to the public by telecommunication of recorded music in an establishment shall be calculated as follows:
(a) the number of square metres (square feet) of the area to which the public has access multiplied by the number of days of operation during which background music was played, multiplied by 0.9650¢ (0.0889¢);
(b)if paragraph (a) does not apply, and the capacity of the establishment can be verified, that number, multiplied by the number of days of operation on which recorded music was played, multiplied by 0.5786¢;
(c) if neither paragraphs (a) nor (b) apply and the number of admissions, attendees, or tickets sold for days or events during which recorded music was played can be established with certainty, that number multiplied by 0.3088¢;
(d) if paragraphs (a), (b) and (c) do not apply, the royalty payable for the relevant year shall be $140.93.
(3) In all cases, the minimum annual royalties for all recorded music uses under subsection (2) Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021
shall be $140.93 per establishment.
Reporting Requirements 5. (1) No later than January 31 in the year in which recorded music is played, an establishment making payment pursuant to section 4 shall pay to Re:Sound the estimated royalties payable for that year calculated as follows:
(a) if that establishment played recorded music in the previous year, the establishment shall pay the amount equal to the royalties owed by the establishment to Re:Sound in the previous year; or
(b)if that establishment did not play recorded music in the previous year, the establishment shall provide Re:Sound with an estimate of the number of days of operation that the establishment will play recorded music during the year and shall pay royalties to Re:Sound based on that estimate, calculated in accordance with section 4.
(2) If an establishment making payment pursuant to this section opens after January 31, payment shall be made in accordance with this section no later than 30 days after the date the establishment first opened.
(3) In all cases, the establishment making payment under this section shall report to Re:Sound all information used to calculate the royalty payment.
(4) No later than January 31 of the following year, the establishment shall report to Re:Sound any changes in the actual number of days of operation that the establishment played recorded music in the previous year and any difference in the amount of royalties payable for that year calculated in accordance with section 4.
(5) If the amount owing exceeds the amount previously paid by the establishment to Re:Sound, the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and shall pay the additional royalties owing to Re:Sound by January 31.
(6) If the amount owing is less than the amount of the payment made by the establishment to Re:Sound in the previous year, the establishment shall provide Re:Sound with a report setting out the actual number of days upon which recorded music was used and Re:Sound shall credit the amount of the overpayment to the establishment against future payments.
Records and Audits Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021
6. (1) An establishment subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which the calculation of its payment can be readily ascertained, including information used to determine the choice of calculation, and information required to ascertain the days on which recorded music was used.
(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 establishment that was subject to the audit. and to any other Canadian collective society with a tariff applicable to background music.
(4) If an audit discloses that royalties due to Re:Sound have been understated during any period by more than 10 per cent, the establishment that was the subject of the audit shall pay the reasonable costs of the audit 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) to (4), information received from an establishment pursuant to this tariff shall be treated in confidence, unless the establishment that supplied the information consents in writing to the information being treated otherwise.
(2) Information received from an establishment 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 any other Canadian collective society with a tariff applicable to background music; (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; or (f) if required by law.
(3) Where confidential information is shared with a service provider pursuant to subsection 7(2)(a), that service provider shall sign a confidentiality agreement.
(4) Subsection 7(1) does not apply to information that is publicly available, to aggregated information, or to information obtained from someone other than the establishment that supplied the information and who is not under an apparent duty of confidentiality to the
Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021
establishment with respect to the supplied information.
Adjustments 8. Adjustments in the amount of royalties owed as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments to reduce the amount of royalties owed may be made in respect of an error discovered by the service which occurred more than 12 months prior to notification to Re:Sound. Excess payments are not subject to interest.
Late Payments & Reporting 9. (1) In the event that an establishment subject to this tariff does not pay the amounts owed under section 4 or provide the reporting required under section 5 by the due date, the establishment shall pay to Re:Sound interest calculated on the amount payable for the relevant period from the due date until the date both the amount and the report are 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 an establishment subject to this tariff shall be sent to the last address, email address or fax number of which Re:Sound has been notified 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. Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021
(3) Anything sent by fax, by email, by FTP or by EBT shall be presumed to have been received the day it was transmitted.
Published by the Copyright Board of Canada, in accordance with section 68.2 of the Copyright Act, on 3 November 2021