COPYRIGHT BOARD CANADA
Re: SOCAN Proposed Tariffs 22.D and 22.G for the Years 2007 to 2012Application for an Interim Tariff pursuant to Section 66.15of the
Copyright Act
APPLICATION BY SOCAN FOR AN INTERIM TARIFFFOR INTERNET USES OF MUSIC COVERED BY SOCAN PROPOSEDTARIFFS 22.D AND 22.G FOR THE YEARS 2007-2012Gowling Lafleur Henderson LLP
Barristers & SolicitorsSuite 2600, 160 Elgin StreetOttawa, OntarioK1P 1C3Gilles M. Daigle(613) 786-0217D. Lynne Watt(613) 786-8695Counsel for SOCAN
Introduction and Summary of Application
SOCAN hereby files an application for an interim tariff, pursuant to section 66.15of the
Copyright Act
(the “
Act
”), for the years 2007 to 2012 for the royaltiesto be paid for the communication to the public by telecommunication of musical works in SOCAN’s repertoire, in connection with audiovisualwebcasts (Tariff 22.D) and user generated content websites (Tariff 22.G).
In the case of both proposed tariffs, the targeted use is the Internet transmissionof movies, television programs and other audiovisual content containingSOCAN’s musical works. As of this writing, SOCAN’s understanding isthat the principal users engaged in proposed Tariff 22.D activities includeNetflix, Apple TV and Sony
. For Tariff 22.G, YouTube is by far theprimary and predominant site offering user generated content in the formof audiovisual material containing SOCAN musical works; another,smaller, example is Vimeo.SOCAN and its members have been without a certified tariff for theseincreasingly popular uses of its repertoire since their inception. Moreover,with Tariff 22.D/G hearings scheduled to commence on June 19, 2012, itwould not be reasonable to expect a decision of the Board and certifiedtariffs until early to mid-year in 2013, depending on the Board’s other exigencies.In the circumstances, it would be unfair and prejudicial to SOCAN and itsmembers to allow large and sophisticated entities such as Netflix, Apple
1
The specific tariffs proposed by SOCAN for these uses of music during the period 2006 to 2012are as follows: SOCAN Tariffs 22.4 (2007-2008) and 22.D (2009-2012) - Audiovisual Webcasts;SOCAN Tariffs 22.7 (2007-2008) and 22.G (2009-2012) - User Generated Content.
2
Approved SOCAN Tariff 22.D is in effect and applies to the use of audiovisual programming, butonly in the case of Canadian conventional television broadcasting and distribution undertakings.The television stations and services falling under Approved SOCAN Tariff 22.D and 22.E will notbe subject to the interim tariff, if approved by the Board, or the final tariff. In the case of Canadianbroadcasting distribution undertakings offering video-on-demand or pay-per-view programming, itis not clear if they are paying royalties for the music in those programs pursuant to ApprovedTariff 22.D or Tariff 17. SOCAN will seek clarification of that issue during the interrogatoryprocess leading to the 2012 hearings.
- 2 -and YouTube, among others, to continue their significant use of SOCAN’smusical works without the payment of any compensation whatsoever for such long periods of time in the past, present and future.Accordingly, SOCAN requests that the Board immediately commence a processfor determining the present application and approving the proposedinterim tariffs on the basis requested.
Background
As the Board is aware, SOCAN is a collective society as defined in section 2 of the
Act
. It administers the public performance and communication rights inthe musical works of its Canadian member composers, authors and musicpublishers, as well as the rights of foreign composers, authors andpublishers. Essentially, SOCAN administers in Canada the performanceand communication rights in the world repertoire of copyright protectedmusic.SOCAN first filed a tariff for the use of musical works on the Internet sixteenyears ago, for the year 1996. The Board conducted the hearing of SOCANTariff 22 for the years 1996-2006 in two phases. The first phase dealt withseveral broad legal issues, a number of which were ultimately appealed tothe Federal Court of Appeal and to the Supreme Court of Canada, whichdetermined those issues in 2004.
The second phase dealt primarily with valuation issues for the years 1996 to2006. On October 18, 2007, the Board issued the first of two Tariff 22decisions, this one dealing with the use of musical works by Online MusicServices (the “22.A Decision”).
On October 24, 2008, the Board releasedthe second decision concerning other Internet uses of SOCAN’s repertoire
3
Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers
, 2004 SCC 45 [2004], 2 SCR 427.
4
Statement of Royalties to be Collected by SOCAN for the Communication to the Public byTelecommunication, in Canada, of Musical or Dramatico-musical Works [Tariff No. 22.A (Internet – Online Music Services) 1996-2006], Dated October 18, 2007.
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