Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)

Marginal note:Fair and equitable

66.501 The Board shall fix royalty and levy rates and any related terms and conditions under this Act that are fair and equitable, in consideration of

• (a) what would have been agreed upon between a willing buyer and a willing seller acting in a competitive market with all relevant information, at arm’s length and free of external constraints;

• (b) the public interest;

• (c) any regulation made under subsection 66.91(1); and

• (d) any other criterion that the Board considers appropriate.

Marginal note:Informal and expeditious

66.502 All matters before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit but, in any case, within any period or no later than any day provided for under this Act.

Marginal note:For greater certainty

66.503 For greater certainty, any person or entity may authorize any other person or entity to act on their behalf in any matter before the Board.

Marginal note:Case manager

• 66.504 (1) The Chair may assign a member, officer or employee of the Board or a person engaged under subsection 66.4(3) to act as a case manager of a matter before the Board.

• Marginal note:Powers

  (2) The case manager may give any directions or make any orders with respect to the case management of the matter, but is not permitted to make a direction or order that is inconsistent with

  • (a) this Act;

  • (b) regulations made under subsection 66.6(1), unless authorized to do so under regulations made under paragraph 66.6(1.1)(b); or

  • (c) regulations made under paragraph 66.91(2)(a) to (c), unless authorized to do so under regulations made under paragraph 66.91(2)(d).

• Marginal note:Deemed direction or order of Board

  (3) A direction given, or an order made, by a case manager is deemed to be a direction or order of the Board, including for the purposes of paragraph 28(1)(j) of the Federal Courts Act.

• Marginal note:Delegation

  (4) The Chair may delegate his or her power under subsection (1) to the Vice-chair.

Marginal note:Variation of decisions

66.52 A decision of the Board respecting royalties or their related terms and conditions that is made under subsection 70(1), 71(2), 76.1(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.

• Marginal note:Case management

  (1.1) The Board may, with the approval of the Governor in Council, make regulations governing the case management of matters before the Board, including regulations

  • (a) governing the directions a case manager may give and the orders they may make; and

  • (b) authorizing a case manager to give a direction or make an order that adapts, restricts or excludes the application of any provision of regulations made under subsection (1) to a matter or any step in a matter.

• Marginal note:Publication of proposed regulations

  (2) A copy of each regulation that the Board proposes to make under subsection (1) or (1.1) shall be published in the Canada Gazette at least 60 days before the regulation’s proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations with respect to the regulation.

• Marginal note:Regulations regarding time

  (2) The Governor in Council may make regulations

  • (a) establishing the day by which, or the period within which, a matter before the Board — and any procedural step in the matter, whether set out in a provision of this Act or not — must be completed;

  • (b) establishing the minimum length of the effective period for the purposes of subsections 68.1(2) and 83(4);

  • (c) establishing a day for the purposes of paragraph 73.4(b); and

  • (d) authorizing the Board or a case manager to give a direction or make an order that adapts, restricts or excludes the application of any provision of regulations made under any of paragraphs (a) to (c) to a matter or any step in a matter.

• Marginal note:Inconsistency or conflict

  (3) Regulations made under subsection (2) prevail over regulations made under subsection 66.6(1) or (1.1) to the extent of an inconsistency or conflict between them.

PART VII.1Collective Administration of Copyright

Collective Societies

Marginal note:Filing of proposed tariffs

• 67 (1) A collective society may file a proposed tariff with the Board for the purpose of establishing royalties with respect to rights the collective society administers under section 3, 15, 18, 19 or 21.

• Marginal note:Mandatory filing for certain royalties

  (2) However, a collective society shall file a proposed tariff with the Board for the purpose of establishing royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

• Marginal note:Entering into agreements

  (3) A collective society may enter into agreements for the purpose of establishing royalties with respect to rights the collective society administers under section 3, 15, 18, 19 or 21, other than royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

Marginal note:Designation of collective society — paragraph 19(2)(a)

67.1 On application by a collective society, the Board may designate the collective society as the sole collective society authorized to collect all royalties referred to in paragraph 19(2)(a) with respect to a sound recording of a musical work.

Marginal note:Requests regarding repertoire

67.2 A collective society shall answer, within a reasonable time, all reasonable requests from any person for information about its repertoire of works, performer’s performances, sound recordings or communication signals.

Tariffs

Proposed Tariffs

Marginal note:Filing

68 A proposed tariff must be filed no later than October 15 of the second calendar year before the calendar year in which the proposed tariff is to take effect or, if a day is established under regulations made under subsection 66.91(2), no later than that day.

Marginal note:Form and content

• 68.1 (1) A proposed tariff must be filed in both official languages and include

  • (a) the acts to which the tariff is to apply;

  • (b) the proposed royalty rates and any related terms and conditions; and

  • (c) the effective period of the proposed tariff.

• Marginal note:Minimum effective period

  (2) A proposed tariff’s effective period must be at least three calendar years or, if a minimum period is established under regulations made under subsection 66.91(2), at least that minimum period.

Marginal note:Publication and notification

68.2 The Board, in the manner that it sees fit,

• (a) shall publish the proposed tariff as well as a notice that any objection to the proposed tariff must be filed within the period set out in subsection 68.3(2); and

• (b) may distribute a notice — or cause it to be distributed or published, on any terms and conditions that the Board sees fit — of the publication of the tariff and of the notice referred to in paragraph (a) to any person affected by the proposed tariff.

Marginal note:Filing of objection

• 68.3 (1) An objection to a proposed tariff may be filed with the Board by

  • (a) an educational institution, if the proposed tariff is filed for the purpose of collecting royalties referred to in subsection 29.7(2) or (3);

  • (b) a retransmitter, as defined in subsection 31(1), if the proposed tariff is filed for the purpose of collecting royalties referred to in paragraph 31(2)(d); or

  • (c) any user, in any other case.

• Marginal note:Time for filing objection

  (2) An objection shall be filed no later than the 30th day after the day on which the Board published the proposed tariff under paragraph 68.2(a) or, if a day is established under the regulations made under subsection 66.91(2), no later than that day.

• Marginal note:Copy to collective society

  (3) The Board shall provide a copy of the filed objection to the collective society.

Marginal note:Reply to objection

• 68.4 (1) The collective society may file a reply to an objection with the Board.

• Marginal note:Copy to be provided

  (2) The Board shall provide a copy of the filed reply to the person or entity that filed the objection.

Withdrawal or Amendment of Proposed Tariff

Marginal note:Request to withdraw or amend

69 A collective society may, before a proposed tariff filed by it has been approved by the Board, make an application to the Board requesting that

• (a) the proposed tariff be withdrawn; or

• (b) a reference to an act set out in the proposed tariff be excluded from the approved tariff for all of the proposed effective period or, despite subsection 68.1(2), for a portion of that period.

Marginal note:Approval by Board

• 69.1 (1) The Board shall approve an application made under section 69 if it is satisfied that

  • (a) the collective society has provided sufficient public notice of its intention to make the application;

  • (b) every person who, in respect of the proposed effective period, has paid royalties that would not be payable if the application were approved has

    • (i) consented to the application,

    • (ii) received a refund of the royalties, or

    • (iii) entered into an agreement under subsection 67(3) that covers the act, repertoire or proposed effective period that is the subject of the application; and

  • (c) in the case of an application made under paragraph 69(b) with respect to a portion of the proposed effective period, the application is not made for the purpose of improperly circumventing the required minimum effective period.

• Marginal note:For greater certainty

  (2) For greater certainty, the approval of an application made under section 69 does not preclude the collective society from filing, in accordance with this Act, a proposed tariff that deals in whole or in part with the act, repertoire or proposed effective period that was the subject of the application.

Approval of Tariffs

Marginal note:Approval

• 70 (1) The Board shall — within the period, if any, that is established under regulations made under subsection 66.91(2) — approve the proposed tariff after making any alterations to the royalty rates and the related terms and conditions, or fixing any new related terms and conditions, that the Board considers appropriate.

• Marginal note:Factors — performances of musical works and sound recordings

  (2) In approving 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 shall ensure that

  • (a) the tariff applies in respect of performer’s performances and sound recordings only in the situations referred to in the provisions of section 20 other than subsections 20(3) and (4);

  • (b) 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

  • (c) the payment of royalties by users under section 19 will be made in a single payment.

• Marginal note:Small cable transmission system

  (3) The Board shall fix a preferential royalty rate for small cable transmission systems in approving a tariff for

  • (a) the performance in public of musical works or dramatico-musical works, of performer’s performances of such works, or of sound recordings embodying such works; or

  • (b) the communication to the public by telecommunication of musical works or dramatico-musical works, other than as described in subsection 31(2), of performer’s performances of such works, or of sound recordings embodying such works.

• Marginal note:Small retransmission systems

  (4) The Board shall fix a preferential royalty rate for small retransmission systems in approving a tariff for royalties referred to in paragraph 31(2)(d).

• Marginal note:For greater certainty

  (5) For greater certainty, the Board may determine, in respect of any tariff that it approves, the portion of the royalties that is to be paid to each collective society.

• Marginal note:No discrimination

  (6) For greater certainty, the Board must not discriminate between owners of copyright on the ground of their nationality or residence in approving a tariff for royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

• Marginal note:Regulations

  (7) The Governor in Council may make regulations defining “small cable transmission system” and “small retransmission system” for the purposes of this section.

Marginal note:Publication of approved tariff

70.1 The Board shall publish the approved tariff in the Canada Gazette and provide a copy of it, together with the reasons for the Board’s decision, to

• (a) the collective society that filed the proposed tariff;

• (b) every collective society that is authorized to collect royalties under the tariff;

• (c) every person or entity that filed an objection under section 68.3; and

• (d) any other person or entity that, in the Board’s opinion, ought to receive the copy and reasons.

Fixing of Royalty Rates in Individual Cases

Marginal note:Application to fix

• 71 (1) If a collective society and a user are unable to agree on royalties to be paid with respect to rights under section 3, 15, 18, 19 or 21, other than royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d), or are unable to agree on any related terms and conditions, the collective society or user may, after giving notice to the other party, apply to the Board to fix the royalty rates or any related terms and conditions, or both.

• Marginal note:Fixing royalties, etc.

  (2) The Board may, for a period that the Board may specify, fix the royalty rates or their related terms and conditions, or both, as the case may be.

• Marginal note:Application of subsections 70(2) and (3)

  (3) Subsections 70(2) and (3) apply, with any necessary modifications, to the fixing of royalty rates or terms and conditions, or both, by the Board under subsection (2).

• Marginal note:For greater certainty

  (4) For greater certainty, the Board may deny an application made under subsection (1) or any part of one.

• Marginal note:Copy of decision and reasons

  (5) The Board shall send a copy of the decision and the reasons for it to the collective society and the user.

• Marginal note:Definition of user

  (6) In this section, user means

  • (a) a user who is not otherwise authorized to do an act referred to in section 3, 15, 18 or 21 in respect of the works, performer’s performances, sound recordings or communication signals included in a collective society’s repertoire; or

  • (b) a user who is required to pay, in respect of sound recordings included in a collective society’s repertoire, a royalty referred to in section 19 that has not otherwise been fixed or agreed on.

Marginal note:Agreement

71.1 The Board shall not proceed with an application under section 71 in respect of any matter in issue on which an agreement has been reached, if a notice is filed with the Board that such an agreement has been reached.

Special Rules Related to Royalty Rates

Marginal note:Special royalty rates

• 72 (1) Subsections (2) and (3) apply despite the tariffs approved by the Board under section 70, or despite the royalty rates fixed under subsection 71(2), 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.

• Marginal note:Wireless transmission systems

  (2) For wireless transmission systems, other than community systems and public transmission systems, broadcasters shall pay

  • (a) $100 on the first $1.25 million of annual advertising revenues in respect of each year; and

  • (b) 100% of the royalties set out in the approved tariff or fixed under subsection 71(2) for that year on any portion of annual advertising revenues exceeding $1.25 million.

• Marginal note:Community systems

  (3) For community systems, broadcasters shall pay royalties of $100 in respect of each year.

• Marginal note:Effect of paying royalties

  (4) The payment of the royalties set out in subsection (2) or (3) fully discharges all liabilities of the system in question in respect of the approved tariffs or the royalties fixed under subsection 71(2).

• Marginal note:Definition of advertising revenues

  (5) The Board may, by regulation, define “advertising revenues” for the purposes of subsection (2).

• Marginal note:Regulations

  (6) The Governor in Council may make regulations defining “community system”, “public transmission system” and “wireless transmission system” for the purposes of this section.

Marginal note:Radio performances in places other than theatres

• 72.1 (1) In respect of public performances by means of any radio receiving set in any place other than a theatre that is ordinarily and regularly used for entertainments to which an admission charge is made, no royalties shall be collectable from the owner or user of the radio receiving set, but the Board shall, in so far as possible, provide for the collection in advance from radio broadcasting stations of royalties appropiate to the conditions produced by the provisions of this subsection and shall fix the amount of the same.

• Marginal note:Expenses to be taken into account

  (2) In fixing royalties under subsection (1), the Board shall take into account all expenses of collection and other outlays, if any, saved or savable by, for or on behalf of the owner of the copyright or performing right concerned or their agents, in consequence of that subsection.

Effects Related to Tariffs and Fixing of Royalty Rates

Permitted Acts and Enforcement

Marginal note:Effect of fixing royalties

73 Without prejudice to any other remedies available to it, the collective society concerned may collect the royalties specified in an approved tariff or fixed by the Board under subsection 71(2) for the applicable period and, in default of their payment, recover them in a court of competent jurisdiction.

Marginal note:Order — compliance with terms and conditions

73.1 Without prejudice to any other remedies available to it, the collective society concerned may apply to a court of competent jurisdiction for an order directing a person to comply with any terms and conditions that are set out in an approved tariff or that are fixed by the Board under subsection 71(2).

Marginal note:Continuation of rights

73.2 If a proposed tariff’s effective period begins before the proposed tariff is approved, and immediately after the expiry of the previous tariff, then, from the start of the effective period of the proposed tariff until the earlier of its approval and the end of its effective period,

• (a) any person authorized under the previous tariff to do an act that is referred to in section 3, 15, 18 or 21 and that is covered by the proposed tariff may do so; and

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

Marginal note:Proceedings barred — tariff

73.3 No proceedings may be brought against a person for the infringement of a right with respect to an act referred to in section 3, 15, 18 or 21 if

• (a) the person has paid or offered to pay the royalties set out in an approved tariff that apply with respect to that act;

• (b) in the case where section 73.2 applies with respect to that act, the person has paid or offered to pay the royalties referred to in paragraph 73.2(b); or

• (c) in the case where no tariff has been approved with respect to that act and section 73.2 does not apply with respect to it, the person has offered to pay the royalties that are included in a proposed tariff and that will apply to that act once the tariff is approved.

Marginal note:Approval of request made under section 69

73.4 If the Board approves an application made under section 69, no proceedings may be brought against a person for the infringement of a right with respect to an act referred to in section 3, 15, 18 or 21 if

• (a) the proposed tariff, if approved, will not apply to the act as a result of the Board’s approval of the application; and

• (b) the act occurs during the effective period set out in the proposed tariff and before the first anniversary of the day on which the collective society made its application under section 69 or, if a day has been established by regulations made under subsection 66.91(2), before that day.

Marginal note:Effect of fixing of royalties

• 73.5 (1) If any royalties or related terms and conditions are fixed under subsection 71(2) in respect of a person, the person may, during the applicable period and on paying or offering to pay the applicable royalties, do the act referred to in section 3, 15, 18 or 21 with respect to which the royalties or related terms and conditions are fixed, subject to those related terms and conditions and to the terms and conditions established by the collective society and the person.

• Marginal note:Authority during application

  (2) If an application is made under subsection 71(1), a person in respect of whom royalties or terms and conditions may be fixed may, until the Board’s final decision on the application, do an act referred to in section 3, 15, 18 or 21 to which the application applies if the person has offered to pay the applicable royalties in accordance with any applicable related terms and conditions.

Effects of Agreement

Marginal note:No application

74 An approved tariff and any royalty rates and related terms and conditions fixed by the Board under subsection 71(2), as well as sections 73.2 to 73.5, do not apply to a person in respect of the matters covered by an agreement referred to in subsection 67(3) that applies to the person.

Claim by Copyright Owner — Particular Royalties

Marginal note:Claims by non-members

• 75 (1) An owner of copyright who does not authorize a collective society to collect, for that person’s benefit, royalties referred to in paragraph 31(2)(d) is, if the work is communicated to the public by telecommunication during a period when an approved tariff that is applicable to that kind of work is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

• Marginal note:Payment to non-members

  (2) An owner of copyright who does not authorize a collective society to collect, for that person’s benefit, royalties referred to in subsection 29.7(2) or (3) is, if such royalties are payable during a period when an approved tariff that is applicable to that kind of work or other subject matter is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

• Marginal note:Exclusion of other remedies

  (3) The entitlement referred to in subsections (1) and (2) is the only remedy of the owner of the copyright for the payment of royalties for the communication, making of the copy or sound recording or performance in public, as the case may be.

• Marginal note:Measures

  (4) The Board may, for the purposes of this section,

  • (a) require a collective society to file with the Board information relating to payments of royalties collected by it to the persons who have authorized it to collect those royalties; and

  • (b) by regulation, establish periods of not less than 12 months within which the entitlements referred to in subsections (1) and (2) must be exercised, beginning on

    • (i) the making of the copy, in the case of royalties referred to in subsection 29.7(2),

    • (ii) the performance in public, in the case of royalties referred to in subsection 29.7(3), or

    • (iii) the communication to the public by telecommunication, in the case of royalties referred to in paragraph 31(2)(d).

Examination of Agreements

Marginal note:Definition of Commissioner

• 76 (1) For the purposes of this section and section 76.1, Commissioner means the Commissioner of Competition appointed under the Competition Act.

• Marginal note:Filing agreement with the Board

  (2) If a collective society enters into an agreement under subsection 67(3) with a user, either party may file a copy of the agreement with the Board within 15 days after it is entered into.

• Marginal note:Non-application of section 45 of Competition Act

  (3) Section 45 of the Competition Act does not apply in respect of any royalties or related terms and conditions arising under an agreement filed in accordance with subsection (2).

• Marginal note:Access by Commissioner

  (4) The Commissioner may have access to the copy of an agreement filed in accordance with subsection (2).

• Marginal note:Request for examination

  (5) If the Commissioner considers that an agreement filed in accordance with subsection (2) is contrary to the public interest, he or she may, after advising the parties, request that the Board examine it.

Marginal note:Examination and fixing of royalty

• 76.1 (1) The Board shall consider a request by the Commissioner to examine an agreement and may, after giving the Commissioner and the parties to the agreement an opportunity to present their arguments, alter the royalties and any related terms and conditions arising under the agreement or fix new related terms and conditions.

• Marginal note:Copy of decision and reasons

  (2) The Board shall send a copy of the decision and the reasons for it to the parties and to the Commissioner.

PART VII.2Certain Applications to Board