PRACTICE |
Judgments and Orders |
Summary Judgment |
Society of Composers, Authors and Music Publishers of Canada v. 1007442 Ontario Ltd.
T-2513-97
2002 FCT 657, Kelen J.
11/6/02
19 pp.
Motion for summary judgment pursuant to rr. 213(1) and 216(2)(a) of Federal Court Rules, 1998 against corporation and director--Defendant corporation running exotic dance club not paying royalty for use of recorded music--Defendant Morey president, director, owner and operator of corporation --Plaintiff seeking declaration defendants infringed copyright, damages, award of defendant's profits from infringement and injunction to stop defendant from using music in which plaintiff owns performing rights--Corporation consenting to summary judgment--Whether, in finding for summary judgment against defendant corporation, reasonable and appropriate to also find summary judgment against Morey-- Test whether plaintiff has shown defendant has no genuine issue for trial--Court will find director or officer liable for "deliberate, willful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it": Mentmore Manufacturing Co., Ltd. et al. v. National Merchandise Manufacturing Co., Inc. et al. (1978), 40 C.P.R. (2d) 164 (F.C.A.)--Licences granted under Copyright Act, Tariff 3.B to allow performances of Society of Composers, Authors and Music Publishers of Canada (SOCAN) copyrighted works in adult entertainment establishments--Dancers paid small fee for table dance--Morey alleging royalty payments not applicable to her club as dancers independent contractors, not paid compensation by club--Copyright Board finding Tariff 3.B open to confusion and misinterpretation--Certifying new tariff, Tariff 3.C, in effect for 1995 for exotic dance clubs--At cross-examination Morey testifying that prior to 1997 believed SOCAN royalty fees based on dancer's payroll and that Tariff did not apply since she did not have payroll--Clear evidence of uncertainty with respect to applicability of Tariff 3.B-- Beyond purview of motion for summary judgment to evaluate impact of Copyright Board's decision and resulting liability of Morey--Evidence of Morey must be assessed by Trial Judge in order to determine her personal liability--Genuine issue for trial--Motion for summary judgment against Morey dismissed --Federal Court Rules, 1998, SOR/98-106, rr. 213(1), 216(2)(a).