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Filing of proposed
tariffs
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71. (1) Each collective society
that carries on the business of collecting royalties referred to in
subsection 29.6(2), 29.7(2) or (3) or paragraph 31(2)(d)
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shall file with the Board a proposed
tariff, but no other person may file any such tariff.
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Times for filing
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(2) A proposed tariff must be
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(a) in both official languages; and
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(b) filed on or before the March 31 immediately before the
date that the approved tariff ceases to be effective.
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Where no previous
tariff
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(3) A collective society in respect of
which no proposed tariff has been certified pursuant to paragraph
73(1)(d) shall file its proposed tariff on or before the
March 31 immediately before its proposed effective date.
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Effective period of
tariffs
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(4) A proposed tariff must provide that
the royalties are to be effective for periods of one or more
calendar years.
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Publication of
proposed tariffs
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72. (1) As soon as practicable
after the receipt of a proposed tariff filed pursuant to section 71,
the Board shall publish it in the Canada Gazette and shall
give notice that, within sixty days after the publication of the
tariff, prospective retransmitters, educational institutions,
persons with perceptual disabilities or their representatives may
file written objections to the tariff with the Board.
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Board to consider
proposed tariffs and objections
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(2) The Board shall, as soon as
practicable, consider a proposed tariff and any objections thereto
referred to in subsection (1) or raised by the Board, and
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(a) send to the collective society concerned a copy of the
objections so as to permit it to reply; and
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(b) send to the persons who filed the objections a copy of
any reply thereto.
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Certification
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73. (1) On the conclusion of its
consideration of proposed tariffs, the Board shall
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(i) a manner of determining the royalties to be paid by
retransmitters, educational institutions and any person making
more than one copy or sound recording of a literary, musical or
dramatic work in order to accommodate the needs of a person with
a perceptual disability, and
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(ii) such terms and conditions related to those royalties as the
Board considers appropriate;
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(b) determine the portion of the royalties referred to in
paragraph (a) that is to be paid to each collective
society;
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(c) vary the tariffs accordingly; and
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(d) certify the tariffs as the approved tariffs, whereupon
the tariffs become for the purposes of this Act the approved
tariffs.
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No discrimination
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(2) For greater certainty, the Board, in
establishing a manner of determining royalties under paragraph (1)(a)
or in apportioning them under paragraph (1)(b), may not
discriminate between owners of copyright on the ground of their
nationality or residence.
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Publication of
approved tariffs
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(3) The Board shall publish the approved
tariffs in the Canada Gazette as soon as practicable and send
a copy of each approved tariff, together with the reasons for the
Board's decision, to each collective society that filed a proposed
tariff and to any person who filed an objection.
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Special case
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74. (1) The Board shall, in
establishing a manner of determining royalties under paragraph
73(1)(a), ensure that there is a preferential rate for small
retransmission systems.
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Regulations
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(2) The Governor in Council may make
regulations defining ``small retransmission systems'' for the
purpose of subsection (1).
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Effect of fixing
royalties
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75. Without prejudice to any
other remedies available to it, a collective society may, for the
period specified in its approved tariff, collect the royalties
specified in the tariff and, in default of their payment, recover
them in a court of competent jurisdiction.
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Claims by non-members
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76. (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.
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Royalties that may be
recovered
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(2) An owner of copyright who does not
authorize a collective society to collect, for that person's
benefit, royalties referred to in subsection 29.6(2) or 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.
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Exclusion of remedies
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(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.
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Regulations
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(4) The Board may, for the purposes of
this section,
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(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
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(b) by regulation, establish periods of not less than
twelve months within which the entitlements referred to in
subsections (1) and (2) must be exercised, in the case of
royalties referred to in
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(i) paragraph 29.6(2)(a), beginning on the expiration of
the year during which no royalties are payable under that
paragraph,
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(ii) paragraph 29.6(2)(b), beginning on the performance
in public,
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(iii) subsection 29.7(2), beginning on the making of the copy,
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(iv) subsection 29.7(3), beginning on the performance in public,
or
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(v) paragraph 31(2)(d), beginning on the communication to
the public by telecommunication.
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OWNERS
WHO CANNOT BE LOCATED
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Circumstances in which
licence may be issued by Board
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77. (1) Where, on application to
the Board by a person who wishes to obtain a licence to use
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(b) a fixation of a performer's performance,
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(c) a published sound recording, or
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(d) a fixation of a communication signal
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in which copyright subsists, the Board
is satisfied that the applicant has made reasonable efforts to
locate the owner of the copyright and that the owner cannot be
located, the Board may issue to the applicant a licence to do an act
mentioned in section 3, 15, 18 or 21, as the case may be.
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Conditions of licence
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(2) A licence issued under subsection
(1) is non-exclusive and is subject to such terms and conditions as
the Board may establish.
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Payment to owner
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(3) The owner of a copyright may, not
later than five years after the expiration of a licence issued
pursuant to subsection (1) in respect of the copyright, collect the
royalties fixed in the licence or, in default of their payment,
commence an action to recover them in a court of competent
jurisdiction.
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Regulations
|
(4) The Copyright Board may make
regulations governing the issuance of licences under subsection (1).
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Board may determine
compensation
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78. (1) Subject to subsection
(2), for the purposes of subsections 32.4(2), 32.5(2) and 33(2), the
Board may, on application by any of the parties referred to in one
of those provisions, determine the amount of the compensation
referred to in that provision that the Board considers reasonable,
having regard to all the circumstances, including any judgment of a
court in an action between the parties for the enforcement of a
right mentioned in subsection 32.4(3) or 32.5(3).
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Limitation
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(2) The Board shall not
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(a) proceed with an application under subsection (1) where
a notice is filed with the Board that an agreement regarding the
matters in issue has been reached; or
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(b) where a court action between the parties for
enforcement of a right referred to in subsection 32.4(3) or
32.5(3), as the case may be, has been commenced, continue with an
application under subsection (1) until the court action is finally
concluded.
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Interim orders
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(3) Where the Board proceeds with an
application under subsection (1), it may, for the purpose of
avoiding serious prejudice to any party, make an interim order
requiring a party to refrain from doing any act described in the
order until the determination of compensation is made under
subsection (1).
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PART VIII:
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PRIVATE COPYING |
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Interpretation |
Definitions
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79. In this Part,
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"audio recording
medium"
«support audio»
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``audio recording medium'' means a
recording medium, regardless of its material form, onto which a
sound recording may be reproduced and that is of a kind ordinarily
used by individual consumers for that purpose, excluding any
prescribed kind of recording medium;
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``blank audio
recording medium''
« support audio vierge »
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``blank audio recording medium'' means
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(a) an audio recording medium onto which no sounds have
ever been fixed, and
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(b) any other prescribed audio recording medium;
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"collecting
body"
« organisme de perception »
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"collecting body" means the
collective society, or other society, association or corporation,
that is designated as the collecting body under subsection 83(8);
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"eligible
author"
« auteur admissible »
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"eligible author" means an
author of a musical work, whether created before or after the coming
into force of this Part, that is embodied in a sound recording,
whether made before or after the coming into force of this Part, if
copyright subsists in Canada in that musical work;
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"eligible maker''
« producteur admissible »
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"eligible maker'' means a maker of
a sound recording that embodies a musical work, whether the first
fixation of the sound recording occurred before or after the coming
into force of this Part, if
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(a) both the following two conditions are met:
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(i) the maker, at the date of that first fixation, if a
corporation, had its headquarters in Canada or, if a natural
person, was a Canadian citizen or permanent resident of Canada
within the meaning of the Immigration Act, and
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(ii) copyright subsists in Canada in the sound recording, or
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(b) the maker, at the date of that first fixation, if a
corporation, had its headquarters in a country referred to in a
statement published under section 85 or, if a natural person,
was a citizen, subject or permanent resident of such a country;
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``eligible performer''
« artiste-
interprčte admissible »
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"eligible performer'' means the
performer of a performer's performance of a musical work, whether it
took place before or after the coming into force of this Part, if
the performer's performance is embodied in a sound recording and
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(a) both the following two conditions are met:
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(i) the performer was, at the date of the first fixation of
the sound recording, a Canadian citizen or permanent resident
of Canada within the meaning of the Immigration Act,
and
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(ii) copyright subsists in Canada in the performer's
performance, or
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(b) the performer was, at the date of the first fixation
of the sound recording, a citizen, subject or permanent resident
of a country referred to in a statement published under section
85;
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"prescribed'' Version
anglaise seulement
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``prescribed'' means prescribed by
regulations made under this Part.
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Copying for Private Use |
Where no infringement
of copyright
|
80. (1) Subject to subsection
(2), the act of reproducing all or any substantial part of
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(a) a musical work embodied in a sound recording,
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(b) a performer's performance of a musical work embodied in
a sound recording, or
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(c) a sound recording in which a musical work, or a
performer's performance of a musical work, is embodied
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onto an audio recording medium for the
private use of the person who makes the copy does not constitute an
infringement of the copyright in the musical work, the performer's
performance or the sound recording.
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Limitation
|
(2) Subsection (1) does not apply if the
act described in that subsection is done for the purpose of doing
any of the following in relation to any of the things referred to in
paragraphs (1)(a) to (c):
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(a) selling or renting out, or by way of trade exposing or
offering for sale or rental;
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(b) distributing, whether or not for the purpose of trade;
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(c) communicating to the public by telecommunication; or
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(d) performing, or causing to be performed, in public.
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Right of Remuneration |
Right of remuneration
|
81. (1) Subject to and in
accordance with this Part, eligible authors, eligible performers and
eligible makers have a right to receive remuneration from
manufacturers and importers of blank audio recording media in
respect of the reproduction for private use of
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(a) a musical work embodied in a sound recording;
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(b) a performer's performance of a musical work embodied in
a sound recording; or
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(c) a sound recording in which a musical work, or a
performer's performance of a musical work, is embodied.
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Assignment of rights
|
(2) Subsections 13(4) to (7) apply, with
such modifications as the circumstances require, in respect of the
rights conferred by subsection (1) on eligible authors, performers
and makers.
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Levy on Blank Audio Recording Media |
Liability to pay levy
|
82. (1) Every person who, for the
purpose of trade, manufactures a blank audio recording medium in
Canada or imports a blank audio recording medium into Canada
|
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(a) is liable, subject to subsection (2) and section 86, to
pay a levy to the collecting body on selling or otherwise
disposing of those blank audio recording media in Canada; and
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(b) shall, in accordance with subsection 83(8), keep
statements of account of the activities referred to in paragraph (a),
as well as of exports of those blank audio recording media, and
shall furnish those statements to the collecting body.
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No levy for exports
|
(2) No levy is payable where it is a
term of the sale or other disposition of the blank audio recording
medium that the medium is to be exported from Canada, and it is
exported from Canada.
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Filing of proposed
tariffs
|
83. (1) Subject to subsection
(14), each collective society may file with the Board a proposed
tariff for the benefit of those eligible authors, eligible
performers and eligible makers who, by assignment, grant of licence,
appointment of the society as their agent or otherwise, authorize it
to act on their behalf for that purpose, but no person other than a
collective society may file any such tariff.
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Collecting body
|
(2) Without limiting the generality of
what may be included in a proposed tariff, the tariff may include a
suggestion as to whom the Board should designate under paragraph
(8)(d) as the collecting body.
|
Times for filing
|
(3) Proposed tariffs must be in both
official languages and must be filed on or before the March 31
immediately before the date when the approved tariffs cease to be
effective.
|
Where no previous
tariff
|
(4) A collective society in respect of
which no proposed tariff has been certified pursuant to paragraph
(8)(c) shall file its proposed tariff on or before the March
31 immediately before its proposed effective date.
|
Effective period of
levies
|
(5) A proposed tariff must provide that
the levies are to be effective for periods of one or more calendar
years.
|
Publication of
proposed tariffs
|
(6) As soon as practicable after the
receipt of a proposed tariff filed pursuant to subsection (1), the
Board shall publish it in the Canada Gazette and shall give
notice that, within sixty days after the publication of the tariff,
any person may file written objections to the tariff with the Board.
|
Board to consider
proposed tariffs and objections
|
(7) The Board shall, as soon as
practicable, consider a proposed tariff and any objections thereto
referred to in subsection (6) or raised by the Board, and
|
|
(a) send to the collective society concerned a copy of the
objections so as to permit it to reply; and
|
|
(b) send to the persons who filed the objections a copy of
any reply thereto.
|
Duties of Board
|
(8) On the conclusion of its
consideration of the proposed tariff, the Board shall
|
|
(a) establish, in accordance with subsection (9),
|
|
(i) the manner of determining the levies, and
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(ii) such terms and conditions related to those levies as the
Board considers appropriate, including, without limiting the
generality of the foregoing, the form, content and frequency of
the statements of account mentioned in subsection 82(1),
measures for the protection of confidential information
contained in those statements, and the times at which the levies
are payable,
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(b) vary the tariff accordingly,
|
|
(c) certify the tariff as the approved tariff, whereupon
that tariff becomes for the purposes of this Part the approved
tariff, and
|
|
(d) designate as the collecting body the collective society
or other society, association or corporation that, in the Board's
opinion, will best fulfil the objects of sections 82, 84 and 86,
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|
but the Board is not obligated to
exercise its power under paragraph (d) if it has previously
done so, and a designation under that paragraph remains in effect
until the Board makes another designation, which it may do at any
time whatsoever, on application.
|
Factors Board to
consider
|
(9) In exercising its power under
paragraph (8)(a), the Board shall satisfy itself that the
levies are fair and equitable, having regard to any prescribed
criteria.
|
Publication of
approved tariffs
|
(10) The Board shall publish the
approved tariffs in the Canada Gazette as soon as practicable
and shall send a copy of each approved tariff, together with the
reasons for the Board's decision, to the collecting body, to each
collective society that filed a proposed tariff, and to any person
who filed an objection.
|
Authors, etc., not
represented by collective society
|
(11) An eligible author, eligible
performer or eligible maker who does not authorize a collective
society to file a proposed tariff under subsection (1) is entitled,
in relation to
|
|
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|
(b) a performer's performance of a musical work, or
|
|
(c) a sound recording in which a musical work, or a
performer's performance of a musical work, is embodied,
|
|
as the case may be, to be paid by the
collective society that is designated by the Board, of the Board's
own motion or on application, the remuneration referred to in
section 81 if such remuneration is payable during a period when an
approved tariff that is applicable to that kind of work, performer's
performance or sound recording is effective, subject to the same
conditions as those to which a person who has so authorized that
collective society is subject.
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Exclusion of other
remedies
|
(12) The entitlement referred to in
subsection (11) is the only remedy of the eligible author, eligible
performer or eligible maker referred to in that subsection in
respect of the reproducing of sound recordings for private use.
|
Powers of Board
|
(13) The Board may, for the purposes of
subsections (11) and (12),
|
|
(a) require a collective society to file with the Board
information relating to payments of moneys received by the society
pursuant to section 84 to the persons who have authorized it to
file a tariff under subsection (1); and
|
|
(b) by regulation, establish the periods, which shall not
be less than twelve months, beginning when the applicable approved
tariff ceases to be effective, within which the entitlement
referred to in subsection (11) must be exercised.
|
Single proposed tariff
|
(14) Where all the collective societies
that intend to file a proposed tariff authorize a particular person
or body to file a single proposed tariff on their behalf, that
person or body may do so, and in that case this section applies,
with such modifications as the circumstances require, in respect of
that proposed tariff.
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