INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42

PART VII

COPYRIGHT BOARD AND COLLECTIVE
ADMINISTRATION OF COPYRIGHT

COPYRIGHT BOARD

Establishment

66. (1) There is hereby established a Board, to be known as the Copyright Board, consisting of not more than five members, including a chairman and a vice-chairman, to be appointed by the Governor in Council.

Service

(2) The members of the Board shall be appointed to serve either full-time or part-time.

Chairman

(3) The chairman must be a judge, either sitting or retired, of a superior, county or district court.

Tenure

(4) Each member of the Board shall hold office during good behaviour for a term not exceeding five years, but may be removed at any time by the Governor in Council for cause.

Re-appointment

(5) A member of the Board is eligible to be re-appointed once only.

Prohibition

(6) A member of the Board shall not be employed in the Public Service within the meaning of the Public Service Staff Relations Act during the member's term of office.

Members deemed public service employees

(7) A full-time member of the Board, other than the chairman, shall be deemed to be employed in

1. the Public Service for the purposes of the Public Service Superannuation Act; and

2. the public service of Canada for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

R.S., 1985, c. C-42, s. 66; R.S., 1985, c. 10 (1st Supp.), s. 1, c. 10 (4th Supp.), s. 12.

Duties of chairman

66.1 (1) The chairman shall direct the work of the Board and apportion its work among the members of the Board.

Absence or incapacity of chairman

(2) If the chairman is absent or incapacitated or if the office of chairman is vacant, the vice-chairman has all the powers and functions of the chairman during the absence, incapacity or vacancy.

Duties of vice-chairman

(3) The vice-chairman is the chief executive officer of the Board and has supervision over and direction of the Board and its staff.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Remuneration and expenses

66.2 The members of the Board shall be paid such remuneration as may be fixed by the Governor in Council and are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties under this Act while absent from their ordinary place of residence.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Conflict of interest prohibited

66.3 (1) A member of the Board shall not, directly or indirectly, engage in any activity, have any interest in a business or accept or engage in any office or employment that is inconsistent with the member's duties.

Termination of conflict of interest

(2) Where a member of the Board becomes aware that he is in a conflict of interest contrary to subsection (1), the member shall, within one hundred and twenty days, terminate the conflict or resign.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Staff

66.4 (1) Such officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with the Public Service Employment Act.

Idem

(2) The officers and employees referred to in subsection (1) shall be deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act.

Technical assistance

(3) The Board may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist in the performance of its duties and the Board may, in accordance with Treasury Board directives, fix and pay the remuneration and expenses of those persons.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Concluding matters after membership expires

66.5 (1) A member of the Board whose term expires may conclude the matters that the member has begun to consider.

Decisions

(2) Matters before the Board shall be decided by a majority of the members of the Board and the presiding member shall have a second vote in the case of a tie.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Interim decisions

66.51 The Board may, on application, make an interim decision.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Variation of decisions

66.52 A decision of the Board respecting royalties or their related terms and conditions that is made under subsection 68(3), sections 68.1 or 70.15 or or subsections 70.2(2), 70.6(1), 73(1) or 83(8) may, on application, be varied by the Board if, in its opinion, there has been a material change in circumstances since the decision was made.

R.S., 1985, c. 10 (4th Supp.), s. 12; 1988, c. 65, s. 64; 1997, c. 24, s. 42.

Regulations

66.6 (1) The Board may, with the approval of the Governor in Council, make regulations governing

1. the practice and procedure in respect of the Board's hearings, including the number of members of the Board that constitutes a quorum;

2. the time and manner in which applications and notices must be made or given;

3. the establishment of forms for the making or giving of applications and notices; and

4. the carrying out of the work of the Board, the management of its internal affairs and the duties of its officers and employees.

Publication of proposed regulations

(2) A copy of each regulation that the Board proposes to make under subsection (1) shall be published in the Canada Gazette at least sixty days before the proposed effective date thereof and a reasonable opportunity shall be given to interested persons to make representations with respect thereto.

Exception

(3) No proposed regulation that has been published pursuant to subsection (2) need again be published under that subsection, whether or not it has been altered as a result of representations made with respect thereto.

R.S., 1985, c. 10 (4th Supp.), s. 12.

General powers, etc.

66.7 (1) The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its decisions and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

Enforcement of decisions

(2) Any decision of the Board may, for the purposes of its enforcement, be made an order of the Federal Court or of any superior court and is enforceable in the same manner as an order thereof.

Procedure

(3) To make a decision of the Board an order of a court, the usual practice and procedure of the court in such matters may be followed or a certified copy of the decision may be filed with the registrar of the court and thereupon the decision becomes an order of the court.

Effect of variation of decision

(4) Where a decision of the Board that has been made an order of a court is  varied by a subsequent decision of the Board, the order of the court shall be deemed to have been varied accordingly and the subsequent decision may, in the same manner, be made an order of the court.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Distribution, publication of notices

66.71 Independently of any other provision of this Act relating to the distribution or publication of information or documents by the Board, the Board may at any time cause to be distributed or published, in any manner and on any terms and conditions that it sees fit, any notice that it sees fit to be distributed or published.

1997, c. 24, s. 43.

Studies

66.8 The Board shall conduct such studies with respect to the exercise of its powers as are requested by the Minister.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Report

66.9 (1) The Board shall, not later than August 31 in each year, submit to the Governor in Council through the Minister an annual report on the Board's activities for the preceding year describing briefly the applications made to the Board, the Board's decisions and any other matter that the Board considers relevant.

Tabling

(2) The Minister shall cause a copy of each annual report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.

R.S., 1985, c. 10 (4th Supp.), s. 12.

Regulations

66.91 The Governor in Council may make regulations issuing policy directions to the Board and establishing general criteria to be applied by the Board or to which the Board must have regard

1. in establishing fair and equitable royalties to be paid pursuant to this Act; and

2. in rendering its decisions in any matter within its jurisdiction.

1997, c. 24, s. 44.

COLLECTIVE ADMINISTRATION OF PERFORMING
RIGHTS AND OF COMMUNICATION RIGHTS

Public access to repertoires

67. Each collective society that carries on

1. the business of granting licences or collecting royalties for the performance in public of musical works, dramatico-musical works, performer's performances of such works, or sound recordings embodying such works, or

2. the business of granting licences or collecting royalties for the communication to the public by telecommunication of musical works, dramatico-musical works, performer's performances of such works, or sound recordings embodying such works, other than the communication of musical works or dramatico-musical works in a manner described in subsection 31(2), must answer within a reasonable time all reasonable requests from the public for information about its repertoire of works, performer's performances or sound recordings, that are in current use.

R.S., 1985, c. C-42, s. 67; R.S., 1985, c. 10 (1st Supp.), s. 1, c. 10 (4th Supp.), s. 12; 1993, c. 23, s. 3; 1997, c. 24, s. 45.

Filing of proposed tariffs

67.1 (1) Each collective society referred to in section 67 shall, on or before the March 31immediately before the date when its last tariff approved pursuant to subsection 68(3) expires, file with the Board a proposed tariff, in both official languages, of all royalties to be collected by the collective society.

Where no previous tariff

(2) A collective society referred to in subsection (1) in respect of which no tariff has been approved pursuant to subsection 68(3) shall file with the Board its proposed tariff, in both official languages, of all royalties to be collected by it, on or before the March 31 immediately before its proposed effective date.

Effective period of tariffs

(3) A proposed tariff must provide that the royalties are to be effective for periods of one or more calendar years.

Prohibition of enforcement

(4) Where a proposed tariff is not filed with respect to the work, performer's performance or sound recording in question, no action may be commenced, without the written consent of the Minister, for

1. the infringement of the rights, referred to in section 3, to perform in public or to communicate to the public by telecommunication, the work, performer's performance or sound recording; or

2. the recovery of royalties referred to in section 19.

Publication of proposed tariffs

(5) As soon as practicable after the receipt of a proposed tariff filed pursuant to subsection (1), the Board shall publish it in the Canada Gazette and shall give notice that, within sixty days after the publication of the tariff, prospective users or their representatives may file written objections to the tariff with the Board.

R.S., 1985, c. 10 (4th Supp.), s. 12; 1997, c. 24, s. 45.

67.2 and 67.3 [Repealed, 1997, c. 24, s. 45]

Board to consider proposed tariffs and objections

68. (1) The Board shall, as soon as practicable, consider a proposed tariff and any objections thereto referred to in subsection 67.1(5) or raised by the Board, and

1. send to the collective society concerned a copy of the objections so as to permit it to reply; and

2. send to the persons who filed the objections a copy of any reply thereto.

Criteria and factors

(2) In examining a proposed tariff for the performance in public or the communication to the public by telecommunication of performer's performances of musical works, or of sound recordings embodying such performer's performances, the Board

1. shall ensure that

   1. the tariff applies in respect of performer's performances and sound recordings only in the situations referred to in subsections 20(1) and (2),

   2. the tariff does not, because of linguistic and content requirements of Canada's broadcasting policy set out in section 3 of the Broadcasting Act, place some users that are subject to that Act at a greater financial disadvantage than others, and

   3. the payment of royalties by users pursuant to section 19 will be made in a single payment; and

2. may take into account any factor that it considers appropriate.

Certification

(3) The Board shall certify the tariffs as approved, with such alterations to the royalties and to the terms and conditions related thereto as the Board considers necessary, having regard to

1. any objections to the tariffs under subsection 67.1(5); and

2. the matters referred to in subsection (2).

Publication of approved tariffs

(4) The Board shall

1. publish the approved tariffs in the Canada Gazette as soon as practicable; and

2. send a copy of each approved tariff, together with the reasons for the Board's decision, to each collective society that filed a proposed tariff and to any person who filed an objection.

R.S., 1985, c. C-42, s. 68; R.S., 1985, c. 10 (4th Supp.), s. 13; 1993, c. 23, s. 5; 1997, c. 24, s. 45.

Special and transitional royalty rates

68.1 (1) Notwithstanding the tariffs approved by the Board under subsection 68(3) for the performance in public or the communication to the public by telecommunication of performer's performances of musical works, or of sound recordings embodying such performer's performances,

1. wireless transmission systems, except community systems and public transmission systems, shall pay royalties as follows:

   1. in respect of each year, $100 on the first 1.25 million dollars of annual advertising revenues, and

   2. on any portion of annual advertising revenues exceeding 1.25 million dollars,

      1. for the first year following the coming into force of this section, thirty-three and one third per cent of the royalties set out in the approved tariff for that year,

      2. for the second year following the coming into force of this section, sixty-six and two thirds per cent of the royalties set out in the approved tariff for that year, and

      3. for the third year following the coming into force of this section, one hundred per cent of the royalties set out in the approved tariff for that year;

2. community systems shall pay royalties of $100 in respect of each year; and

3. public transmission systems shall pay royalties, in respect of each of the first three years following the coming into force of this section, as follows:

   1. for the first year following the coming into force of this section, thirty-three and one third per cent of the royalties set out in the approved tariff for that year,

   2. for the second year following the coming into force of this section, sixty-six and two thirds per cent of the royalties set out in the approved tariff for that year, and

   3. for the third year following the coming into force of this section, one hundred per cent of the royalties set out in the approved tariff for that year.

Effect of paying royalties

(2) The payment of the royalties set out in subsection (1) fully discharges all liabilities of the system in question in respect of the approved tariffs.

Definition of "advertising revenues"

(3) The Board may, by regulation, define "advertising revenues" for the purposes of subsection (1).

Preferential royalty rates

(4) The Board shall, in certifying a tariff as approved under subsection 68(3), ensure that there is a preferential royalty rate for small cable transmission systems.

Regulations

(5) The Governor in Council may make regulations defining "small cable transmission system", "community system", "public transmission system" and "wireless transmission system" for the purposes of this section.

1997, c. 24, s. 45.

Effect of fixing royalties

68.2 (1) Without prejudice to any other remedies available to it, a collective society may, for the period specified in its approved tariff, collect the royalties specified in the tariff and, in default of their payment, recover them in a court of competent jurisdiction.

Proceedings barred if royalties tendered or paid

(2) No proceedings may be brought for

1. the infringement of the right to perform in public or the right to communicate to the public by telecommunication, referred to in section 3, or

2. the recovery of royalties referred to in section 19

against a person who has paid or offered to pay the royalties specified in an approved tariff.

Continuation of rights

(3) Where a collective society files a proposed tariff in accordance with subsection 67.1(1),

1. any person entitled to perform in public or communicate to the public by telecommunication those works, performer's performances or sound recordings pursuant to the previous tariff may do so, even though the royalties set out therein have ceased to be in effect, and

2. the collective society may collect the royalties in accordance with the previous tariff,

until the proposed tariff is approved.

1997, c. 24, s. 45.

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