On June 19, 2010, the Copyright Board published the most recent tariff proposal of the ACTRA Performers' Rights Society ("ACTRA PRS") and the Musicians' Rights Organization Canada ("MROC") in the Canada Gazette. This proposed tariff is entitled the ACTRA PRS/MROC Commercial Radio Tariff, 2011 and authorizes Canadian commercial radio stations to copy performers' performances in the respective repertoires of ACTRA PRS and MROC (the "Proposed Tariff").
The Alliance of Canadian Cinema Television and Radio Artists ("ACTRA") is a collective society that is responsible for collecting and distributing the fees, royalties, residual fees and all other forms of compensation to which its members and permit holders are entitled as a result of their work in the entertainment and related industries.
The Objection Period
Now that the Proposed Tariff for 2011 has been published in the Canada Gazette, in accordance with section 83(6) of the Copyright Act, any person who wishes to object to the Proposed Tariff has 60 days in which to file written objections with the Copyright Board. This means that any objections to the Proposed Tariff must be received by the Copyright Board by no later than August 18, 2010.
ACTRA's Previous 2010 Tariff Proposal
ACTRA and the American Federation of Musicians of the United States and Canada previously proposed a similar tariff for the period of 2010. It was published in the Canada Gazette on May 2, 2009. Like the current 2011 Proposed Tariff, the 2010 proposal featured the same two-tiered rates (by station size), reporting and enforcement provisions. The 2011 Proposed Tariff has the added stipulation that licensees cannot use performers' performances in any advertising relating to a product, service, cause or institution.
ACTRA and MROC's 2011 Tariff Proposal
(a) Proposed Rate
The Proposed Tariff has lower rates for a "low-use station" than "any other station." A "low-use station" is either: one where broadcasts of performers' performances are less than 20% of its total broadcast time in a given month (excluding production music); or one where no reproductions of performers' performances are made. ACTRA and MROC require complete recordings of a station's last 90 broadcast days in order to verify its low-use status.
- Low-use stations: on its gross income for the reference month, the station must pay 0.1% of the station's first $625,000 gross income in a year, 0.21% of the next $625,000 and 0.32% for the remaining gross income.
- Any other station: on its gross income for the reference month, the station must pay 0.3% of the station's first $625,000 gross income in a year, 0.6% of the next $625,000 gross income in a year and 0.91% for the remaining gross income.
The reference month is the second month before the month for which royalties are being paid.
(b) Scope of the Proposed Tariff
The Proposed Tariff allows licensed Canadian commercial radio stations and their affiliates in a network, to use, in whole or in part, repertoire works of "performers' performances." These are previously fixed literary, dramatic or musical works. They include montages, medleys and improvisations, even those inspired by pre-existing works. Further, they include works whose copyright expired. The Proposed Tariff also covers copies made by "any known or to be discovered process." The uses of the works include:
- Reproduction of the work for broadcasting operations;
- Reproduction for archival or reference purposes; and
- Preserving, where licensed specifically to do so, the copies made above.
The Proposed Tariff does not authorize the use of such reproductions in association with a product, service or institution, including in the context of an advertisement. This provision was not featured in the tariff proposed for 2010.
(c) Reporting and Payment Requirements
By the first of the month, stations must report on the gross income for the reference month and resulting royalties. By written notice, ACTRA and MROC may also request that stations provide reports on up to fourteen broadcast days. The reports are highly detailed, and should include details of the performance and work.
The Proposed Tariff requires stations to conduct extensive and detailed bookkeeping. ACTRA and MROC reserve the right to request the reports mentioned above. Accordingly, stations are required to keep their records for six months. The Proposed Tariff requires stations to further keep information on their annual gross income for six years. ACTRA and MROC may conduct audits at any time. A station will be liable to pay the cost of any audit if it is found to have defaulted on 10% or more of the owing royalties.
Within twelve months, the station may voluntarily notify ACTRA and MROC of any warranted adjustments to the royalty payments. Similarly, ACTRA and MROC may notify the stations of any warranted adjustments where reporting errors are made. Otherwise, interest will be charged on royalty adjustments not received within twelve months.