COPYRIGHT REGULATIONS

Educational Program, Work and Other Subject-matter Record-keeping Regulations

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REGULATIONS
Copyright Act

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The Copyright Board, pursuant to subsection 29.9(2)^a of the Copyright Act, hereby makes the annexed Educational Program, Work and Other Subject-matter Record-keeping Regulations.

Ottawa, July 18, 2001

P.C. 2001-1404 1 August, 2001

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subsection 29.9(2)^a of the Copyright Act, hereby approves the making by the Copyright Board of the annexed Educational Program, Work and Other Subject-matter Record-keeping Regulations.

^a S.C. 1997, c. 24, s.18(1)

1. The definitions in this section apply in these Regulations.

"Act" means the Copyright Act. (Loi)

"collective society" means a collective society that carries on the business of collecting the royalties referred to in subsection 29.6(2) or 29.7(2) or (3) of the Act under a tariff that has been certified as an approved tariff pursuant to paragraph 73(1)(d) of the Act. (société de gestion)

"copy identifier" means the number or other reference code assigned to the copy of a program, work or subject-matter in accordance with section 3. (code d'identification de l'exemplaire)

"educational institution identifier" means the number or other reference code assigned to an educational institution in accordance with section 4. (code d'identification de l'établissement d'enseignement)

"institution" means an educational institution or a person acting under its authority. (établissement)

2. These Regulations apply in respect of

(a) copies of news programs and news commentary programs that are made pursuant to paragraph 29.6(1)(a) of the Act; and

(b) copies of works and other subject-matter that are made pursuant to paragraph 29.7(1)(a) of the Act.

3. An institution shall assign a number or other reference code to every copy of a program, work or subject-matter that it makes.

4. A collective society may assign a number or other reference code to an educational institution.

5. An institution that makes a copy of a program, work or subject-matter shall mark on the copy, or on its container, the copy identifier and, if applicable, the educational institution identifier.

6. (1) Subject to subsection (2), an institution that makes a copy of a program, work or subject-matter shall complete, in a legible manner, an information record in the form set out in the schedule regarding

(a) the copying of the program, work or subject-matter;

(b) all performances in public of the copy for which royalties are payable under subsection 29.6(2) or 29.7(2) or (3) of the Act; and

(c) the destruction of the copy.

(2) Subsection (1) does not apply to the copy of a program made pursuant to paragraph 29.6(1)(a) of the Act if the copy is destroyed, in a manner that complies with section 7, within 72 hours after the making of the copy.

7. Destruction of a copy of a program, work or subject-matter shall be accomplished by

(a) destroying the medium onto which the program, work or subject-matter was copied; or

(b) erasing the copy of the program, work or subject-matter from the medium.

8. (1) Subject to subsection (2), an institution shall send to each collective society

(a) within 30 days after the date on which the Board first certifies a tariff as an approved tariff pursuant to paragraph 73(1)(d) of the Act, a copy of every information record on which entries have been made during the period between the date on which these Regulations come into force and the date on which the tariff was certified; and

(b) after that, on or before January 31, May 31 and September 30 in each year, a copy of every information record on which entries have been made during the four months preceding the month in which the record is sent.

(2) Once a copy of a program, work or subject-matter has been destroyed, the institution may send the original information record in respect of the copy to a collective society.

9. An institution shall retain the original information record in respect of a copy of a program, work or subject-matter until two years after the copy is destroyed unless, during that time, the institution sends the original information record to a collective society.

10. These Regulations come into force on the 30th day after the day on which they are registered.

Educational Institution identifier (if assigned):
Name and address of institution:
Contact name:

Telephone:

Facsimile:

E-mail:

Copy identifier:
Title of program, work or subject-matter:
Other identifying information:	[e.g. episode title, subject, segment description, song title(s)]

Duration of segment copied:

minutes

Date of broadcast (yy/mm/dd):

Time of broadcast:

Name, network, call sign or other identifier of the broadcaster:

yy/mm/dd

yy/mm/dd

I certify that the copy of the program, work or subject-matter identified above has been destroyed.

Name:		Title:
Signature:		Date of Destruction (yy/mm/dd):

Description

Sections 29.6, 29.7 and 29.9 of the Copyright Act [the "Act"] came into force on January 1, 1999. Since then, educational institutions and persons acting under their authority ["institutions"] can, without the copyright owner's authorization, copy programs and other subject-matter ["programs"] when they are communicated to the public and perform those copies before an audience consisting primarily of students. In a nutshell:

a) institutions can copy and perform news and news commentaries ["news programs"] for one year without having to pay royalties; after that, they must pay the royalties and comply with the conditions set by the Copyright Board ["the Board"] in a tariff;

b) institutions can copy other programs and subject-matter ["other programs"] and keep the copy for assessment purposes for thirty days; if they keep the copy any longer, or if they perform the copy at any time, they must pay the royalties and comply with the conditions set by the Board in a tariff.

Pursuant to subsection 29.9 (2) of the Copyright Act, the Board may make regulations prescribing the information to be kept by an institution in relation to the making, destruction, performance and marking of copies, prescribing the manner and form in which such records must be kept and copies destroyed or marked and respecting the sending of information to collective societies. These Regulations are made pursuant to this power.

Alternatives

The alternative not to impose any requirements on institutions was considered. However, the information is necessary if collective societies are to learn more about the use being made of the copies and to determine the amount of royalties to be paid as well as to whom they should go.

Benefits and Costs

Records are necessary if a collective society is to operate effectively. Using them, a society can determine whether a program is a news program entitled to a longer exemption period, as well as establish the identity of the copyright owner entitled to receive royalties. Were the Board to approve a transactional licence, the records would also help to verify the amount of royalties owed. The reporting frequency requirements ensure a regular flow of that information and the record retention requirements allow verification.

Institutions will incur costs as a result of these requirements. The Regulations alleviate some of those costs by not requiring institutions to keep a record where a copy of a news program is destroyed within 72 hours of its making.

Making the Regulations entails no costs for the Board, for the Federal Public Administration, for the collective societies or for the rights owners.

Consultation

The Board, through a consultant, conducted a series of meetings with several stakeholders with a view to obtaining a consensus on the elements of the Regulations. The Educational Rights Collective of Canada, the National Film Board of Canada, the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, the Association of Canadian Community Colleges, the Association of Universities and Colleges of Canada, the Canadian Association of University Teachers, the Canadian School Boards' Association, the Canadian Teachers' Federation, the Council of Ministers of Education, Canada and the Ministère de l'Éducation du Québec participated in one or more of those meetings.

A consensus was reached on all key elements of the Regulations, with the exception of the timing of the duty to keep records and mark copies. Institutions argued that the duty to keep records does not arise until the first performance of the copy takes place. For this, they relied on the fact that s. 29.9(1)(a) appears to require that a record be kept only when the institution makes a copy and performs it. Were this the case, the person who makes the copy would be required to record (and hence, recall) all the pertinent details of its making only after the first performance, which could be weeks or months later. In the Board's view, such an approach is simply not practical and could not have been intended by Parliament.

News programs that are copied, performed and destroyed within the one-year exemption period are not subject to any royalty payment. Institutions questioned the usefulness of keeping records of such news programs. Collective societies responded that records are necessary to verify that other programs are not being categorized as news programs. Societies and institutions are currently cooperating to establish informal rules for such categorization, which should alleviate to some extent the societies' concern.

Where practical, institutions should be relieved of producing documentation that will never be used by collective societies for distribution purposes. Consequently, institutions will not be required to record information if a news program is destroyed within seventy-two hours of its making (although they will be required to mark the copy or its container). This time period is sufficiently short to allow recall of the pertinent details if the news program is not destroyed, and sufficiently long to allow performance and destruction on Monday of a copy made the previous Friday. Any copy that is kept beyond that period is subject to the record-keeping requirements.

Based on discussions with interested parties, the Board believes that this measure will relieve institutions from having to keep a record for a significant proportion of the copies made pursuant to section 29.6 of the Act.

Comments received following prepublication on March 10, 2001 allowed the Board to identify three issues which required further attention.

First, institutions involved in the field of education asked for a delay of 30 to 60 days between the making of the Regulations and its coming into force, to allow for all measures required to properly apply the Regulations to be put in place. The Educational Rights Collective of Canada did not object to the delay but asked that the Regulations take effect no later than July 1, 2001. In the Board's view, 30 days should be more than sufficient without causing any serious prejudice to copyright holders. However, it is not able to meet the date proposed by the collective society.

Second, it was pointed out that the definition of "collective society" may give rise to some short-term difficulties. The definition is aimed solely at collectives benefiting from a certified tariff, but no tariff has yet been certified. As a result, some uncertainty might exist as to the reporting obligations befalling educational institutions between the date on which the Regulations are made and the date on which the first tariff is certified. Section 8 of the Regulations was amended so as to postpone until one month after the first tariff is certified the date on which institutions are required to file for the first time the information set out in that section.

Third, comments allowed to correct a discrepancy between the French and English versions of the Regulations.

Compliance and Enforcement

An institution that does not comply with the reporting requirements infringes copyright. Such an infringement triggers a number of well-established remedies. Consequently, other enforcement mechanisms are not required.

Contact

Claude Majeau
Secretary General
Copyright Board
56 Sparks Street, Suite 800
Ottawa, Ontario K1A 0C9
Telephone: (613) 952-8621
Facsimile: (613) 952-8630
Electronic mail: majeau.claude@cb-cda.gc.ca