International report - Witness credibility and adducing reliable evidence in copyright infringement cases 19 Jul 17
Bereskin & Parr LLP - Canada
The Federal Court in Premium Sports Broadcasting Inc v 9005-5906 Québec Inc (Resto-bar Mirabel) (2017 FC 590) recently dismissed a copyright infringement action on a summary trial motion. The court found that the plaintiff had failed to establish infringement on a balance of probabilities, largely because of contradictory statements made by the plaintiff’s witnesses.
The infringement action was brought by Premium Sports Broadcasting Inc against a Montreal-area bar. Premium Sports held broadcast rights in Canada for Ultimate Fighting Championship (UFC) events. Premium Sports alleged that the bar had broadcast a UFC event. Premium Sports originally sought C$300,000 from the defendants, but dropped that amount to C$15,000 shortly before the summary trial motion was heard. This was after it had settled with or obtained default judgments against a number of other establishments against which Premium Sports had advanced similar copyright infringement claims. The defendant motioned for summary trial.
To support its claim that the defendant was seen broadcasting the fight in question, Premium Sports submitted evidence from an investigator, consisting of the investigator’s affidavit and observation reports, including one amended by the investigator’s supervisor, who also provided an affidavit.
In dismissing Premium Sports’ claim, the judge held that the investigator’s observation reports were “fraught with significant contradictions or inconsistencies”, particularly with regard to the time he had arrived at the bar and the content broadcast when he was present, and therefore could not support Premium Sports’ case on a balance of probabilities.
Premium Sports’ failure to advance credible evidence of the bar having shown the broadcast was fatal to their claim. A copyright owner must still establish the factual basis for infringement on a balance of probabilities, including the occurrence of the act giving rise to the alleged infringement. In this case, Premium Sports was required to prove that the bar had broadcast the fight.
The judge found that Premium Sports had advanced its case as though it had only a prima facie burden in that regard, with the onus shifting to the defendants to prove that they had not broadcast the fight. However, the burden does not shift unless and until the plaintiff successfully establishes the facts forming the foundation of its claim on a balance of probabilities. Only at that point does the defendant bear the burden to show why there was no infringement (eg, fair dealing or another exception applies) on a balance of probabilities.
The decision is a reminder that rights holders seeking to enforce their copyrights bear responsibility for supporting and proving the facts alleged in their claims, including that the acts alleged to underlie the infringement, more likely than not, did occur.
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