T-75-96
Between:
SOCIETY OF COMPOSERS AUTHORS et al.,
Applicants,
- and -
THE CONVENTION CENTRE CORPORATION,
Respondents.
Let the attached edited version of the transcript of my Reasons delivered orally from the bench at Winnipeg, Manitoba, on August 12, 1998, be filed to comply with Section 51 of the Federal Court Act.
F.C. Muldoon
Judge
Ottawa, Ontario October 14, 1998
FILE NO. T-75-96
IN THE FEDERAL COURT OF CANADA
BETWEEN:
SOCIETY OF COMPOSERS AUTHORS ET AL.,
Applicants,
- and
THE CONVENTION CENTRE CORPORATION,
Respondents.
Transcript of decision given by Justice Muldoon on Wednesday, the 12th day of August, A.D., 1998.
REPORTED BY:
Sherryl Puchlik, Official Examiner, Q.B.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
WEDNESDAY, AUGUST 12TH, A.D., 1998
THE COURT: The Court is prepared to give a decision on this application by the defendant for summary judgment. The Court will be very brief. It could not possibly give reasons for judgment to equal the volume of material which has been filed.
In summary, the Court finds that the application for summary judgment is premature. Discoveries have not been held in a matter of complexity and great
detail dealing with events and musical works performed at various events. The case cries out for discovery. All is not lost to the parties, however. This has been an exercise which can be of some use to them.
The applicant cites the decision of Mr. Justice Joyal in DeTervagne v. Township of Beloeil, [1993], 3FC 227, a decision of Mr. Justice Joyal as mentioned, for the proposition that the Convention Centre acting as a licensor is not liable for copyright infringement, regardless of whether the licensee paid the necessary royalties to SOCAN for the use of musical works within its repertoire. When events are licensed at the Centre, a contract is signed between the Centre and the organization seeking to rent out space from the Centre. The standard forms of contract have been put before the Court. Each
2
1 contract specifies however, that the licensee is required to
2 pay all royalties and that the Centre will not be
3 responsible for non-payment of royalties regardless of
4 whether the contracts contain such clauses. In DeTervagne,
5 Mr. Justice Joyal indicated that regard must be had to the
6 facts of each case, particularly to the nature of control
7 exercised by the body supplying the means by which the
8 copyright is allegedly infringed.
9 After summarizing the relevant case law, the
10 Australian case law on this question, Mr. Justice Joyal
11 concluded at page 239, this interpretation of the Australian
12 Courts must be rejected in Canada in view of Vigneux, (that
13 is the name of the case), which clearly established that a
14 defendant who simply supplies the means which make the
15 infringement possible, cannot be held liable for authorizing 16 the infringement if he or she had no control over the means 17 in question.
18 Now he continued by examining Canadian case
19 law in this case on this point, and he mentioned a decision
20 of the Supreme Court of Canada in Muzak Corp v. Composers,
21 Authors and Publishers Association of Canada Limited,
22 [1953], 2 SCR 182, that is the leading decision in Canada
23 interpreting the concept of authorization.
24 Mr. Justice Joyal also said that the first
25 principle which was applied in these was that in order to
3
1 "authorize", within the meaning of the Copyright Act, a
2 person must sanction, approve or countenance something more
3 than the mere use of equipment, which might possibly be used
4 in an actual infringement of the copyright.
5 The Court went on at some lengths and quoted
6 the Falcon v. Famous Players Film Company and Lord Banks and
7 Lord Atkin, Mr. Justice Joyal later made the following
8 statement, pages 247 to 248 in which he said, "Having
9 completed the survey of the case law relating specifically
10 to the concept of "authorization", in respect of copyright,
11 I find that each case essentially turns on its facts and
12 that the Court must give judgment on those facts. This
13 means that the case law is not always a faithful servant."
14 In the case at bar, the applicant has not established that
15 it was merely supplying the means by which the copyright was
16 infringed. There is evidence to establish that staff
17 members from the Centre also worked during the licensed
18 event. As Mr. Justice Joyal stated, each case turns on its
19 facts in order to determine the amount of control exercised, 20 and therefore this is not a proper case for summary judgment 21 on that issue.
22 Summary judgment has not been claimed on
23 behalf of the plaintiffs against the defendants for the
24 events for which liability is admitted. That is to say
25 events staged by the Convention Centre. Summary judgment
4
1 cannot be issued in regard to the background music, as this
2 argument was not pleaded in the statement of claim.
3 Finally, summary judgment should not issue in
4 regard to the licensed events as facts are needed to
5 determine the degree of control exercised by the Centre, and
6 those are matters, that is a matter in issue, an issue for
7 trial. What was the relationship between the Centre and its
8 clients? Control is an issue for trial. The issue of the
9 relationship as mentioned and this licensee present a
10 genuine issue for trial. The defendant here was on the
11 scene all the time, and indeed, extracted thirty tickets, or
12 up to thirty tickets, from the licensee. The defendant in
13 making this motion ought to have waited to complete
14 discovery. That discovery should be completed.
15 All in all, the application appears to be
16 premature and therefore, it suffers from a want of merit in
17 the circumstances, so it is dismissed. Insofar as costs are
18 concerned, we've had some spirited argument on both sides.
19 Each side seems to believe that it is right, and that is
20 something about which this judge cannot speak, because the
21 Court's attention is drawn to an application for a summary
22 judgment. I see what was decided by Mr. Justice McKay in
23 Merck and Company v. Apotex, which is reported at [1998], 78
24 CPR (3rd) 376, but this Court has a different view of the
25 matter. In the Court's view, costs in this matter should be
5
1 costs in the cause, since the cause is still preserved to go
2 ahead, if each side believes itself to be right, if there is
3 no possibility of settlement, no possibility of coming to
4 one's senses about a case of this complexity and this high
5 degree of detail, well, then each side will be vindicated no 6 doubt in the ultimate outcome of the trial. Are there any 7 questions?
8 MS. GRELL: No, My Lord, thank you.
9 MR. HACAULT: No, My Lord, just to thank, as
10 counsel always do, for your time and attention.
11 THE COURT: Well, I have given great
12 attention to this, not only today of course, but in reading
13 the material before today, and in giving directions. It's
14 been interesting, but overlong.
15 MS. GRELL: My Lord, I'm just, for your 16 interest, we are in the case management, so that will be the 17 next step.
18 THE COURT: I think you should be under case 19 management indeed.
20 MS. GRELL: It was suspended for the purposes 21 of this motion.
22 THE COURT: Thank you. Court will rise. 23
24 (ADJOURNED GENERALLY AT 5:45 P.M.)
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-75-96
STYLE OF CAUSE: SOCIETY OF COMPOSERS AUTHORS ET AL v. THE CONVENTION CENTRE CORPORATION
PLACE OF HEARING: WINNIPEG
DATE OF HEARING: AUGUST 12, 1998REASONS FOR ORDER OF MULDOON J. DATED: AUGUST 12, 1998
APPEARANCES
MS. EMMA GRELL AND FOR APPLICANTS MS. JANE CLARK
ANTOINE HACAULT FOR RESPONDENTS
SOLICITORS OF RECORD:
GOWLING, STRATHY & HENDERSON FOR APPLICANTS OTTAWA, ONTARIO
THOMPSON DORFMAN SWEATMAN FOR RESPONDENTS WINNIPEG, MANITOBA
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