Date: 20051004
Docket: T-1361-05
Citation: 2005 FC 1359
BETWEEN:
EUROSPORT EVENT MANAGEMENT LTD.
Plaintiff
and
650621 B.C. LTD. carrying on business as MALONE'S BAR & GRILL,
and EATS CAFÉ INC. carrying on business as MALONE'S SPORTS GRILL
Defendants
REASONS FOR ORDER
HUGHES J.
[1] The Plaintiff brings this matter 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 its Statement of Claim the Plaintiff say as to the rights asserted by it in respect of the grantor Setanta which is the only grantor at issue:
5. The Plaintiff states that it is the exclusive distributor for the rights to commercial broadcasts in Canada for Eurosport Events including all copyrights associated therewith.
6. Eurosport states that Setanta Sport ("Setanta") is a corporation incorporated pursuant to the laws of the Republic of Ireland and holds the exclusive North American rights to various Eurosport events including telecasts of 2006 Work Cup qualifying and International Friendly Matches involving the European teams The Republic of Ireland, Northern Ireland, Poland, England (away games only), Croatia, Turkey, Greece, and Portugal (away games only). Eurosport states that Setanta provides Eurosport with the exclusive license to exhibit within Canada telecasts of live satellite feeds of Eurosport Events and events involving these teams for commercial establishments including all copyrights associated herewith.
[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 Plaintiff provided affidavits of Keary which says, inter alia, in paragraph 3 of his affidavits of September 27, 2005 and July 21, 2003:
Eurosport obtains the right to broadcast these sport events from Setanta Sport ("Setanta") a company based in Ireland which holds the right to European Cup, F.A. Cup, Community Shield and other matches in Europe and North America. Setanta provides Eurosport with the exclusive broadcast and copyright to these matches for broadcast in Canada to commercial establishments. These various soccer matches are marketed and sold on a game-by-game event basis for different fees paid for the right to broadcast each event. Setanta obtains the rights to the various matches in Europe and North America and then contracts with Eurosprt to market and distribute the event in Canada. Eurosport pays Setanta approximately 50% of the gross revenue generated from the sales of each event sold to commercial establishments in Canada.
[5] Exhibit A to the Keary affidavit of July 21, 2003 provides a copy of Agreement between the Plaintiff and Setanta. It states in the recitals:
RECITALS:
Eurosport is a corporation, incorporated pursuant to the laws of Canada. Setanta is a corporation, incorporated pursuant to the laws of the republic of Ireland.
Setanta warrants and represents that it holds the exclusive North American rights to the live telecast of the above captioned Event(s), and is authorized to grant to Eurosport the exclusive Canadian rights to the live telecast of Event(s).
[6] The grant of an "exclusive license to exhibit" is set out in Article 1:
1. RIGHTS GRANTED
a) Setanta hereby grants and assigns to Eurosport the exclusive licence to exhibit, only with Canada (the "Territory"), the live telecast of the above-captioned soccer match and the accompanying pre-match and post -match commentary (the "Event(s)"), simultaneously with the Event(s), only at commercial, closed-circuit television exhibition outlets, such as arenas, race, tracks, theatres, bars, pubs, clubs, lounges, restaurants, casinos and the like (hereafter "outlets"), each with a fire code occupancy capacity not to exceed five thousand (5,000) persons per outlet located with the Territory.
b) The exhibition rights granted herein do not include transmissions to hotel guestrooms, in flight aircraft or other transportation facilities.
[7] The Plaintiff, in its 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. 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, if anything, appears on the work as broadcast.
[8] 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"
[9] What we have here is a contract between the Plaintiff and a party whose rights are unproven, purporting to grant "rights" to the Plaintiff. 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 Plaintiff) to have rights, the grantor must have them in the first place and the power to give them. There is no evidence of that here.
[10] The Plaintiff's 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"
Toronto, Ontario
October 4, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1361-05
STYLE OF CAUSE: EUROSPORT EVENT MANAGEMENT LTD.
Plaintiff
and
650621 B.C. LTD. carrying on business as
MALONE'S BAR & GRILL, and EATS CAFÈ INC.
carrying on business as MALONE'S SPORTS GRILL
Defendants
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 3, 2005
REASONS FOR ORDER
AND ORDER BY: HUGHES J.
DATED: OCTOBER 4, 2005
APPEARANCES:
Kevin Fisher For the Plaintiff
For the Defendants
SOLICITORS ON THE RECORD:
Basman Smith LLP For the Plaintiff
Toronto, Ontario
(No Solicitors on record) For the Defendants
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