COPYRIGHT REGULATIONS

Regulations Establishing the Period for Royalty Entitlements of Non-members of Collecting Bodies

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REGULATIONS
Copyright Act

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The Copyright Board, pursuant to paragraph 70.66(3)(b)a of the Copyright Act, hereby makes the annexed Regulations Establishing the Period for Royalty Entitlements of Non-members of Collecting Bodies.

Ottawa, March 18, 1997

REGULATIONS ESTABLISHING THE PERIOD FOR ROYALTY ENTITLEMENTS OF NON-MEMBERS OF COLLECTING BODIES

1. An owner or person claiming under the owner of the right referred to in paragraph 3(1)(f) of the Copyright Act in respect of a work who does not authorize a collecting body to collect, for that person's benefit, royalties for the communication of the work in the manner described in subsection 28.01(2) of the same Act is, if that work is so communicated, entitled to be paid those royalties by the collecting body that is designated by the Board, of its own motion or on application, if this entitlement is exercised

(a) no later than December 31, 1998, where the retransmission occurred before January 1, 1997; and

(b) within two years after the end of the calendar year in which the retransmission occurred, where the retransmission occurred on January 1, 1997 or after.

2. These Regulations come into force on March 19, 1997.

Description

Under the Copyright Act, the right to retransmit a work on a radio or television signal is subject to a compulsory licensing scheme according to which the Copyright Board sets the royalties to be paid to collecting bodies representing the owners of rights in the retransmitted works.

Section 70.66 of the Act provides that a rights owner who does not authorize a collecting body to act on the owner's behalf [a so-called "orphan" owner] can seek payment for the use of the work from the collecting that is designated by the Board for that purpose. Paragraph 70.66(3)(b) also provides that the Board can establish, by regulation, the periods, which shall not be less than twelve months, beginning on the communica-tion of the work, within which this entitlement must be exercised. No regulation to that effect has ever been made.

Alternatives

There are no alternatives. According to the Act, the periods for the exercise of the entitlement can only be set in a regulation.

Without such a regulation, uncertainty exists as to when an orphan owner is no longer able to seek compensation from a collecting body. As a result, the collectives maintain reserves for undetermined periods of time in order to cover the risk of possible claims. This delays the distribution of royalties to members of the collectives.

Benefits and Costs

Once the regulation is made, the time within which the orphan owner can make a claim becomes clear. Once the period within which the entitlement can be exercised has expired, the collective bodies will be able to allocate their reserves amongst their members without having to fear further prosecutions.

Making the regulation entails no costs for the Board, for the Federal Public Administration, for the collecting bodies or for the rights owners. This will reduce the collecting bodies' operating costs, as they will now be able to proceed to the final allocation of their reserve funds.

The regulation has no impact on the environment.

The regulation does not increase the regulatory burden. Instead, it clarifies a situation which, absent a regulation, remains uncertain and creates difficulties for orphan owners and collecting bodies alike.

Consultation

Only the collecting bodies were consulted. They received copy of the proposed regulation and of the regulatory impact analysis statement. The persons consulted made four suggestions:

• specifying the period within which an application for designation of a collecting body must be made or disposed of;
• subjecting the entitlement to some sort of notice process on the part of the Board;
• mandating that the entitlement be exercised using a prescribed form;
• clarifying when the entitlement referred to in subsection 70.66(1) is "exercised".

The Board informed the persons who made those comments that it could not include such provisions in the regulations, since its regulatory power pertains only to "the periods ... within which the entitlement referred to in subsection (1) must be exercised."

In the end, the persons consulted agreed that the object of the regulation would be best achieved if the regulation were drafted as it is now published.

Orphan owners are not known, and are not represented. It was therefore impossible to consult them.

Early notice was provided through the 1996 Federal Regulatory Plan, proposal number CBC/91-673-L.

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