Update -- February 19, 2010
Some of the links in the information below are broken. While we work on reviewing the content below, here are updated links:
Off Air Taping Update - October 2001
by Ross Mutton
Educational Program, Work and Other Subject-Matter Record Keeping Regulations
On August 15th the Copyright Board
released the Educational Program, Work and Other
Subject-matter Record-keeping Regulations. See
Regulation SOR/2001-296 in Part II of the Canada Gazette
dated August 15, 2001 which can be found online at:
http://canada.gc.ca/gazette/part2/pdf/g2-13517.pdf
These record keeping provisions (effective September 1,
2001) apply to programming that has been recorded from radio
and television broadcasters that are either viewed for
preview purposes, or are used in the classroom, and are
subject to royalty payments as per changes to the Copyright
Act. The Educational Rights Collective of Canada (ERCC) has
an application before the Copyright Board to determine the
associated applicable tariff rates. The hearing is scheduled
for November 20, 2001. The reproduction of broadcast falls
into two categories:
Radio and Television Programs excluding news and news
commentary - Any program may be recorded and performed
within a thirty day period for evaluation purposes only. The
program may not be used in public performance, which
includes in the classroom. If the program is kept beyond the
thirty day period, a tariff must be paid.
News and News Commentary - Any news or news
commentary program may be recorded and publicly performed
for a period of up to one year from the record date. If the
program is kept beyond the one year period, a tariff must be
paid. News includes any newscast, but not documentaries and
newsmagazine programs. See Appendix 1 of the ERCC
application before the Copyright Board for guidelines on
news and news commentary programs.
In order that users would be in a position to pay the
tariffs following the Copyright Board's decision, it is
necessary to have a record keeping process in place so that
ERCC may track payment to the rights holders. As a result,
the Copyright Board announced the regulations which went
into effect September 1, 2001.
The records are to include institutional information
including a contact name, title of the program, duration,
date and time of broadcast, call sign etc. of the
broadcaster, a record of public performances (a classroom
showing is a public performance), and a record of the date
of destruction. Records are not required for news and news
commentary programs that are erased within 72 hours of the
record date. See the Canada Gazette for a sample
form.
ERCC Tariff Application
The ERCC has significantly altered its tariff
application now before the Board. The following is a summary
of the application. The Copyright Board's decision following
the hearing on November 20, 2001 will be determine the final
terms of the tariff.
Transactional Tariff
- A charge of $2.40 per minute
- Tariff charge covers recording and all subsequent public performances
- As an example, this tariff results in a one-time payment of $72.00 for a 30-minute program, and $144.00 for a 60-minute program
- The radio program tariff is established at 1/12th of the rate for television, at $0.20 per minute
- Recorded programs, for which a tariff has been paid, may be kept indefinitely
Comprehensive Tariff
- Institutions practicing considerable off-air taping may find a comprehensive annual tariff an attractive financial alternative
- Rate of $2.40 per FTE student in K-12
- Rate of $4.80 per FTE student in post-secondary
- Rate covers all recordings within a one-year period
Copies Made Prior to September 1, 2001
- Tariff is effective January 1, 1999. For programs recorded between January 1, 1999 and August 31, 2001, and used in a public performance subject to a tariff, a nominal royalty fee of $1 per program would apply.
- Institutions are expected to provide records to the best of their ability
- If these programs are kept beyond December 31, 2001, the regular tariff fee would then be applied, either under the transactional or comprehensive category
Payment
- From the Educational Program, Work and Other Subject-matter Record-keeping Regulations above, the first payment will be due 30 days after the tariff goes into effect
- Following first payment, payment will be due to ERCC on January 31, May 31 and September 30 of each calendar year
- The ERCC has also proposed in its application that works received and copied from the Internet be included in the tariff. They suggest this may be a meaningful alternative once video-on-demand sites emerge on the World Wide Web. It is unclear whether they refer only to audio and video streaming material that originates with a broadcaster, or whether they are suggesting they would represent material from true video on demand sites. Hopefully that will be clarified at the hearing.
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