1395047 Ontario Inc. v. New Atlantico Café and Restaurante Inc., 2005 FC 1358

Date: 20051004

Docket: T-568-05

Citation: 2005 FC 1358

BETWEEN:

1395047 ONTARIO INC.

cob FPTV - FESTIVAL PORTUGUESE TELEVISION and

FRANK ALVAREZ

                                                                                                                                            Plaintiffs

                                                                           and

NEW ATLANTICO CAFÉAND RESTAURANTE INC.,

1614724 ONTARIO INC. carrying on business as PORTABRAS

BAR & GRILL also known as PORTO BRAS BAR & GRILL,

MARDILL SPORTS BAR INC., BANDA LIRA de FATIMA C.P.C. INC.

and ZAGROS BAR & LOUNGE INC., and

NORTHERN PORTUGAL CULTURAL CENTRE (OSHAWA)

(ONTARIO)

Defendants

and

PORTUGUESE MUSICAL SOCIETY (EDMONTON), and

278852 ALBERTA LTD. carrying on business as MIMO RESTAURANT AND LOUNGE

(ALBERTA)

Defendants

and

        ASSOCIACAO DOS PAIS, ASSOCIACAO PORTUGUESA ESPIRITO SANTO,

ASSOCIACAO PORTUGUESA DE STE-THERESE and

ASSOCIACAO PORTUGUESA DO WEST ISLAND

(QUEBEC)

Defendants

REASONS FOR ORDER

HUGHES J.

[1]    The Plaintiffs bring this motion for default judgment against certain of the Defendants in this action who have failed to file a Defence or otherwise participate in the action.

[2]    In the amended Statement of Claim the Plaintiffs say as to the rights asserted by them:

1.                   The Plaintiffs state that they are the exclusive copyright and TV rights holder for broadcasts in Canada for all Superliga matches for the 2004/2005 and 2005/2006 seasons, including all copyrights associated therewith.

2.                   The Plaintiffs states that all broadcasts and telecasts of Superliga matches in Canada are transmitted by way of encrypted satellite transmission for use by authorized subscribers to such encrypted satellite transmissions.

3.                   The Plaintiffs state that each Superliga match broadcast is a wholly original work and each telecast is a copyrightable work subject to the Copyright Act, R.S.C. 1985, Ch C-42, s. 21 and the Plaintiff is the owner by assignment of such copyright for use in Canada.

[3]    In the Federal Court, pleadings that are not defended, or if defended, not traversed

are not taken to be true. A plaintiff seeking default judgment is required to prove the essential elements of its claim which it says entitles it to the relief claimed. Thus, on a motion for default judgment, a plaintiff must prove that it owns or, in an appropriate case, is licensed in respect of, a right that has been taken or infringed upon by a defendant.

[4]    As to the rights asserted here, the Plaintiffs provided the affidavit of Da Silva which says, inter alia, in paragraph 1:

FPTV is a multicultural broadcaster whose main focus is Portuguese-related programming in Ontario and throughout Canada. FPTV obtained the exclusive right for all Portuguese Premiere Football League soccer matches ("Superliga") shown in Canada for both residential and commercial use for 2004/2005 and 2005/2006 seasons. FPTV has an exclusive agreement for all of Canada with the exception of those games shown on the RTP International Network. RTP International has the right to broadcast one Superliga match per week. FPTV purchased these rights from the Portuguese rights holder. Attached hereto as Exhibit "A" is a copy of Mr. Alvarez's (without exhibits) sworn April 18, 2005 setting out FPTV's rights and information related to the various Defendants used in support of an interlocutory injunction obtained against each of the Defendants.

[5]    The Plaintiff's also provided the affidavit of Alvarez which says in paragraph 2:

Plaintiffs ("FTPV") purchased the broadcast and copyright for all Portuguese Premier Football League ("Superliga") soccer matches shown in Canada for both residential and commercial use for the 2004-2005 and 2005-2006 seasons. FPTV has an exclusive agreement for all of Canada with the exception of those games shown on the RTP International Networth as RTP International has the right to broadcast one live Superliga match per week. FPTV purchased these rights from Sport TV Portugal S.A. ("Sport TV"), a company incorporated under the laws of Portugal and who is the exclusive owner of all of the international TV rights for the 2004/2005 and 2005/2006 Superliga seasons. Attached hereto as Exhibit "1" is a copy of the contract between FPTV and Sport TV providing FPTV with the exclusive TV rights to all of Canada (the financial payment provisions have been redacted as these are confidential and could be used against FPTV by its competitors in future negotiations.)

[6]    Exhibit "1" to the Alvarez affidavit, being the contract between FTPV and Superliga, says in the "Whereas" provisions:

WHEREAS

-      LICENSOR is the sole and exclusive owner of all the international TV rights of the Portuguese Football League (SUPERLIGA) for the 2004/05 and 2005/06 seasons:

-      LICENSOR is exclusively entitled to broadcast on television, within the TERRITCRY, all of the Portuguese Football League (SUPERLIGA) contracted matches, hereinafter referred to as LEAGUE MATCHES and LEAGUE HIGHTLIGHTS:

-      LICENSEE wishes to be granted the rights to broadcast the matches, within TERRITORY, and the LICENSOR is willing to grant these rights to the LICENSEE subject to certain terms and conditions:

[7]    The grant of rights provision in the agreement, section 2.1 which is the general grant, says:

2. RIGHTS

2.1 LICENSOR grants to the LICENSEE, and the LICENSEE accepts:

§            the exclusive right to receive, decrypt, decompress, transmit, exhibit, display, distribute, sub-distribute, sublicense and broadcast the LEAGUE MATCHES in full length or in part either live or delayed via all forms of television distribution including without limitation via satellite technology along with any other transmission methods or platforms whether now existing or developed in the future, including without limitation broadband or other web based internet protocol technology in the Territory, and to dub any or all of such League MATCHES into any and all languages in connection with the exercise of its RIGHTS hereunder. The RIGHTS are solely for TV purposes.

§            the non-exclusive right to broadcast the LEAGUE HIGHLIGHTS on television in whole or in part within the TERRITORY

[8]    The Agreement does not define the "rights" are, whether or not they are copyright or something else nor does it state how the grantor acquired them.

[9]    The Plaintiffs, in their motion for default judgment seek relief in respect of two claims to rights (1) copyrights and (2) broadcast rights. There is no registration of copyright evident. Section 34.1(a) of the Copyright Act, R.S.C. 1985, c. c-30, provides that in an action such as this, unless the contrary is proved, copyright is presumed to subsist in the work or works at issue. That is the case here, copyright subsists in something. However, proof as to ownership is lacking, there is no evidence as to ownership of copyright before this court. Section 34.1(2) of the Act provides for certain presumptions as to ownership where names appears in association with the work. No evidence as to what name, if anything, appears on the work as broadcast has been placed in the Record.

[10]                        As to the Radiocommuncations Act, R.S.C. 1985, c. R-2, section 18(1)(b) gives a right of action to a "lawful distributor" of a signal which is defined in section 2 to be "a person who has the lawful right in Canada to transmit it and authorize its decoding"

[11]                        What we have here is a contract between the Plaintiff and a party whose rights are unproven, purporting to grant "rights" to the Plaintiffs. There is no proof as to what "rights" if any this grantor had. The chain of title put in evidence before this Court does not go back far enough for a grantee (the Plaintiffs) to have rights, the grantor must have them in the first place and the power to give them to the Plaintiffs. There is no evidence of that here.

[12]                        The Plaintiffs motion is dismissed without prejudice to a further motion brought upon good evidence as to the rights and chain of title. There will be no order as to costs.

"Roger T. Hughes"