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Bill C-32

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COLLECTIVE ADMINISTRATION OF PERFORMING RIGHTS AND OF COMMUNICATION RIGHTS

Public access to repertoires

67. Each collective society that carries on

    (a) the business of granting licences or collecting royalties for the performance in public of musical works, dramatico-musi cal works, performer's performances of such works, or sound recordings embody ing such works, or

    (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),

must answer within a reasonable time all rea sonable requests from the public for informa tion about its repertoire of works, performer's performances or sound recordings, that are in current use.

Filing of proposed tariffs

67.1 (1) Each collective society referred to in subsection 67(1) 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 royal ties 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

    (a) the infringement of the rights, referred to in section 3, to perform in public or to communicate to the public by telecommu nication, the work, performer's perfor mance or sound recording; or

    (b) 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 subsec tion (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 representa tives may file written objections to the tariff with the Board.

Board to consider proposed tariffs and objections

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

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

    (b) 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 per former's performances of musical works, or of sound recordings embodying such perform er's performances, the Board

    (a) shall ensure that

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

      (ii) the tariff does not, because of linguis tic 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

      (iii) the payment of royalties by users pursuant to section 19 will be made in a single payment; and

    (b) 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 royal ties and to the terms and conditions related thereto as the Board considers necessary, having regard to

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

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

Publication of approved tariffs

(4) The Board shall

    (a) publish the approved tariffs in the Canada Gazette as soon as practicable; and

    (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.

Special and transitional royalty rates

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

    (a) wireless transmission systems, except community systems and public transmis sion systems, shall pay royalties as follows:

      (i) in respect of each year, $100 on the first 1.25 million dollars of annual adver tising revenues, and

      (ii) on any portion of annual advertising revenues exceeding 1.25 million dollars,

        (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,

        (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

        (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;

    (b) community systems shall pay royalties of $100 in respect of each year; and

    (c) public transmission systems shall pay royalties, in respect of each of the first five years following the coming into force of this section, as follows:

      (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,

      (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

      (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.

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 transmis sion system'', ``community system'', ``public transmission system'' and ``wireless transmis sion system'' for the purposes of this section.

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

    (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

    (b) 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),

    (a) any person entitled to perform in public or communicate to the public by telecom munication those works, performer's per formances 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

    (b) the collective society may collect the royalties in accordance with the previous tariff,

until the proposed tariff is approved.

PUBLIC PERFORMANCES IN PLACES OTHER THAN THEATRES

R.S., c. 10 (4th Supp.), s. 16

46. The heading before section 70.1 and sections 70.1 and 70.2 of the Act are replaced by the following:

COLLECTIVE ADMINISTRATION IN RELATION TO RIGHTS UNDER SECTIONS 3, 15, 18 AND 21

Collective Societies

Collective societies

70.1 Sections 70.11 to 70.6 apply in respect of a collective society that operates

    (a) a licensing scheme, applicable in rela tion 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;

    (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;

    (b) a licensing scheme, applicable in rela tion 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

    (c) a licensing scheme, applicable in rela tion 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 commu nication signals.

Public information

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.

Tariff or agreement

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,

    (a) file a proposed tariff with the Board; or

    (b) enter into agreements with users.

Tariffs

Filing of proposed tariffs

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.

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 70.15(1) shall file with the Board its proposed tariff, in both official languages, of all royal ties to be collected by it for issuing licences, on or before the March 31 immediately before its proposed effective date.

Application of certain provisions

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 modifica tions as the circumstances require.

Certification

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 neces sary, having regard to any objections to the tariffs.

Application of certain provisions

(2) Where a tariff is approved under subsec tion (1), subsections 68(4) and 68.2(1) apply, with such modifications as the circumstances require.

Distribution, publication of notices

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

    (a) distributing or publishing a notice, or

    (b) directing another person or body to distribute or publish a notice,

in such manner and on such terms and condi tions as the Board sees fit.

Prohibition of enforcement

70.17 Subject to section 70.19, no proceed ings 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 .

Continuation of rights

70.18 Subject to section 70.19, where a collective society files a proposed tariff in accordance with section 70.13,

    (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

    (b) the collective society may collect the royalties in accordance with the previous tariff,

until the proposed tariff is approved.

Where agreement exists

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.

Agreement

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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