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PART
VII:
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COPYRIGHT BOARD AND COLLECTIVE
ADMINISTRATION OF COPYRIGHT |
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| 1988, c. 65, s. 64
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42. Section
66.52 of the Act is replaced by the following:
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| Variation of decisions
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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.
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43. The Act is
amended by adding the following after section 66.7:
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| Distribution,
publication of notices
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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.
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44. The Act is
amended by adding the following after section 66.9:
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| Regulations
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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
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(a) in establishing fair and equitable royalties to be paid
pursuant to this Act; and
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(b) in rendering its decisions in any matter within its
jurisdiction.
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| R.S., c. 10 (4th
Supp.), s. 12; 1993, c. 23, ss. 3 to 5
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45. The heading
before section 67 and sections 67 to 68 of the Act are replaced by
the following:
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| Public access to
repertoires
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67. Each collective society that
carries on
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(a) 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
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(b) 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),
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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.
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| Filing of proposed
tariffs
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67.1 (1) Each collective society
referred to in section 67 shall, on or before the March 31
immediately 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.
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| Where no previous
tariff
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(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.
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| Effective period of
tariffs
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(3) A proposed tariff must provide that
the royalties are to be effective for periods of one or more
calendar years.
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| Prohibition of
enforcement
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(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
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(a) 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
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(b) the recovery of royalties referred to in section 19.
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| Publication of
proposed tariffs
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(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.
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| Board to consider
proposed tariffs and objections
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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
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(a) send to the collective society concerned a copy of the
objections so as to permit it to reply; and
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(b) send to the persons who filed the objections a copy of
any reply thereto.
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| Criteria and factors
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(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
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(i) the tariff applies in respect of performer's performances
and sound recordings only in the situations referred to in
subsections 20(1) and (2),
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(ii) 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
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(iii) the payment of royalties by users pursuant to section 19
will be made in a single payment; and
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(b) may take into account any factor that it considers
appropriate.
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| Certification
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(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
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(a) any objections to the tariffs under subsection 67.1(5);
and
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(b) the matters referred to in subsection (2).
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| Publication of
approved tariffs
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(4) The Board shall
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(a) publish the approved tariffs in the Canada Gazette
as soon as practicable; and
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(b) 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.
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| Special and
transitional royalty rates
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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,
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(a) wireless transmission systems, except community systems
and public transmission systems, shall pay royalties as follows:
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(i) in respect of each year, $100 on the first 1.25 million
dollars of annual advertising revenues, and
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(ii) on any portion of annual advertising revenues exceeding
1.25 million dollars,
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(A) 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,
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(B) 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
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(C) 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;
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(b) community systems shall pay royalties of $100 in
respect of each year; and
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(c) 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:
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(i) 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,
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(ii) 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
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(iii) 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.
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| Effect of paying
royalties
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(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.
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| Definition of
``advertising revenues''
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(3) The Board may, by regulation, define
``advertising revenues'' for the purposes of subsection (1).
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| Preferential royalty
rates
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(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.
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| Regulations
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(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.
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| Effect of fixing
royalties
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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.
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| Proceedings barred if
royalties tendered or paid
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(2) No proceedings may be brought for
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(a) 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
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(b) the recovery of royalties referred to in section 19
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against a person who has paid or offered
to pay the royalties specified in an approved tariff.
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| Continuation of rights
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(3) Where a collective society files a
proposed tariff in accordance with subsection 67.1(1),
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(a) 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
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(b) the collective society may collect the royalties in
accordance with the previous tariff,
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until the proposed tariff is approved.
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PUBLIC
PERFORMANCES IN PLACES OTHER THAN THEATRES
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| R.S., c. 10 (4th
Supp.), s. 16
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46. The heading before section 70.1
and sections 70.1 and 70.2 of the Act are replaced by the following:
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COLLECTIVE ADMINISTRATION IN RELATION
TO RIGHTS UNDER SECTIONS 3, 15, 18 AND 21
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Collective
Societies |
| Collective societies
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70.1 Sections 70.11 to 70.6 apply
in respect of a collective society that operates
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(a) a licensing scheme, applicable in relation to a
repertoire of works of more than one author, pursuant to which the
society sets out the classes of uses for which and the royalties
and terms and conditions on which it agrees to authorize the doing
of an act mentioned in section 3 in respect of those works;
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(a.1) a licensing scheme, applicable in relation to a
repertoire of performer's performances of more than one performer,
pursuant to which the society sets out the classes of uses for
which and the royalties and terms and conditions on which it
agrees to authorize the doing of an act mentioned in section 15 in
respect of those performer's performances;
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(b) a licensing scheme, applicable in relation to a
repertoire of sound recordings of more than one maker, pursuant to
which the society sets out the classes of uses for which and the
royalties and terms and conditions on which it agrees to authorize
the doing of an act mentioned in section 18 in respect of those
sound recordings; or
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(c) a licensing scheme, applicable in relation to a
repertoire of communication signals of more than one broadcaster,
pursuant to which the society sets out the classes of uses for
which and the royalties and terms and conditions on which it
agrees to authorize the doing of an act mentioned in section 21 in
respect of those communication signals.
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| Public information
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70.11 A collective society
referred to in section 70.1 must answer within a reasonable time all
reasonable requests from the public for information about its
repertoire of works, performer's performances, sound recordings or
communication signals.
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| Tariff or agreement
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70.12 A collective society may,
for the purpose of setting out by licence the royalties and terms
and conditions relating to classes of uses,
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(a) file a proposed tariff with the Board; or
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(b) enter into agreements with users.
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Tariffs |
| Filing of proposed
tariffs
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70.13 (1) Each collective society
referred to in section 70.1 may, on or before the March 31
immediately before the date when its last tariff approved pursuant
to subsection 70.15(1) expires, file with the Board a proposed
tariff, in both official languages, of royalties to be collected by
the collective society for issuing licences.
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| Where no previous
tariff
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(2) A collective society referred to in
subsection (1) in respect of which no tariff has been approved
pursuant to subsection 70.15(1) shall file with the Board its
proposed tariff, in both official languages, of all royalties to be
collected by it for issuing licences, on or before the March 31
immediately before its proposed effective date.
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| Application of certain
provisions
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70.14 Where a proposed tariff is
filed under section 70.13, subsections 67.1(3) and (5) and
subsection 68(1) apply, with such modifications as the circumstances
require.
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| Certification
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70.15 (1) 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 any objections to the tariffs.
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| Application of certain
provisions
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(2) Where a tariff is approved under
subsection (1), subsections 68(4) and 68.2(1) apply, with such
modifications as the circumstances require.
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| Distribution,
publication of notices
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70.16 Independently of any other
provision of this Act relating to the distribution or publication of
information or documents by the Board, the Board shall notify
persons affected by a proposed tariff, by
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(a) distributing or publishing a notice, or
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(b) directing another person or body to distribute or
publish a notice,
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in such manner and on such terms and
conditions as the Board sees fit.
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| Prohibition of
enforcement
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70.17 Subject to section 70.19,
no proceedings may be brought for the infringement of a right
referred to in section 3, 15, 18 or 21 against a person who has paid
or offered to pay the royalties specified in an approved tariff.
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| Continuation of rights
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70.18 Subject to section 70.19,
where a collective society files a proposed tariff in accordance
with section 70.13,
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(a) any person authorized by the collective society to do
an act referred to in section 3, 15, 18 or 21, as the case may be,
pursuant to the previous tariff may do so, even though the
royalties set out therein have ceased to be in effect, and
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(b) the collective society may collect the royalties in
accordance with the previous tariff,
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until the proposed tariff is approved.
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| Where agreement exists
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70.19 If there is an agreement
mentioned in paragraph 70.12(b), sections 70.17 and 70.18 do
not apply in respect of the matters covered by the agreement.
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| Agreement
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70.191 An approved tariff does
not apply where there is an agreement between a collective society
and a person authorized to do an act mentioned in section 3, 15, 18
or 21, as the case may be, if the agreement is in effect during the
period covered by the approved tariff.
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Fixing of Royalties in Individual Cases |
| Application to fix
amount of royalty, etc.
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70.2 (1) Where a collective
society and any person not otherwise authorized to do an act
mentioned in section 3, 15, 18 or 21, as the case may be, in respect
of the works, sound recordings or communication signals included in
the collective society's repertoire are unable to agree on the
royalties to be paid for the right to do the act or on their related
terms and conditions, either of them or a representative of either
may, after giving notice to the other, apply to the Board to fix the
royalties and their related terms and conditions.
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| Fixing royalties, etc.
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(2) The Board may fix the royalties and
their related terms and conditions in respect of a licence during
such period of not less than one year as the Board may specify and,
as soon as practicable after rendering its decision, the Board shall
send a copy thereof, together with the reasons therefor, to the
collective society and the person concerned or that person's
representative.
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| R.S., c. 10 (4th
Supp.), s. 16
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47. Section
70.4 of the Act and the heading following it are replaced by the
following:
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| Effect of Board
decision
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70.4 Where any royalties are
fixed for a period pursuant to subsection 70.2(2), the person
concerned may, during the period, subject to the related terms and
conditions fixed by the Board and to the terms and conditions set
out in the scheme and on paying or offering to pay the royalties, do
the act with respect to which the royalties and their related terms
and conditions are fixed and the collective society may, without
prejudice to any other remedies available to it, collect the
royalties or, in default of their payment, recover them in a court
of competent jurisdiction.
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Examination of Agreements |
| R.S., c. 10 (4th
Supp.), s. 16
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48. (1)
Subsection 70.5(2) of the Act is replaced by the following:
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| Filing agreement with
the Board
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(2) Where a collective society concludes
an agreement to grant a licence authorizing a person to do an act
mentioned in section 3, 15, 18 or 21, as the case may be, the
collective society or the person may file a copy of the agreement
with the Board within fifteen days after it is concluded.
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| R.S., c. 10 (4th
Supp.), s. 16
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(2) Subsection
70.5(3) of the French version of the Act is replaced by the
following:
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| Précision
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(3) L'article 45 de la Loi sur la
concurrence ne s'applique pas aux redevances et aux modalités
afférentes objet de toute entente déposée conformément au
paragraphe (2).
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| R.S., c. 10 (4th
Supp.), s. 16
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49. Subsection
70.6(1) of the French version of the Act is replaced by the
following:
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| Examen et fixation
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70.6 (1) Dès que possible, la
Commission procède à l'examen de la demande et, après avoir
donné au directeur et aux parties la possibilité de faire valoir
leurs arguments, elle peut modifier les redevances et les modalités
afférentes objet de l'entente, et en fixer de nouvelles; l'article
70.4 s'applique, compte tenu des adaptations nécessaires, à cette
fixation.
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| R.S., c. 10 (4th
Supp.), s. 16; 1988, c. 65, s. 65; 1993, c. 15, s. 11; 1994, c. 47,
s. 68
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50. The heading
before section 70.61 and sections 70.61 to 71 of the Act are
replaced by the following:
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