Summary judgment for the claimant with various Orders including:
an Order for an inquiry as to the damages for infringement of copyright by the unauthorized transmission by the defendant of the musical works;
an Order for payment of all sums found due upon taking such inquiries or account, together with interest; and
an Order that the defendant pay the costs of the application for summary judgment.
The claimant, Copyright Music Organisation of Trinidad and Tobago (COTT), is a collective rights management organization for musical works. Its members assigned to it various rights, including the sole right to broadcast and transmit or authorize the broadcast and transmission of their musical works in Trinidad and Tobago. Also assigned to the claimant were performing rights of works created and protected in foreign territories.
From January 5, 2006, the defendant, transmitted musical works in respect of which the claimant had been assigned certain rights, through its cable television programs on a daily basis.
In December 2009, the claimant commenced proceedings against the defendant for the infringement of copyright in the musical works in its repertoire and following the filing of the Defense, applied for summary judgment on the basis that the defendant failed to set out its case as required by Rule 10.5 of the Civil Proceedings Rules 1998 and, as a result, had no realistic prospect of success on its defense to the claim.
In making its determination on the matter, the court considered whether the defendant had a realistic prospect of success in its Defense. The court found that central to this issue was whether the Defense was properly pleaded in accordance with the reasoning of Mendonca JA in M.I.5 Investigations Ltd. v. Centurion Protective Agency Ltd., Civ. App. No. 244 of 2008. The court found that the statement of case sufficiently established the claimant as the exclusive licensee of musical works and/or that the claimant was a licensing body within the meaning of the Copyright Act. The court also found, regarding the matter of infringement of the claimant’s copyright, that the Defense amounted to an admission of the allegations set out in the claimant’s statement of case and otherwise amounted to a bare denial, general denial or neither admission nor denial of the allegations made by the claimant.
Further, the court found that the defendant failed to discharge its burden of proving that it had a real prospect of success in defending the matter or that there was a compelling reason for a trial of the matter, particularly as there was “absolutely no documentary evidence of any kind whatsoever annexed or referred to in the defence”. The court further found that this was very telling both as to the non-existence of a defense to the claim of infringement, and to the admission of copyright infringement contained in the Defense.
Moreover, considering para. 34.13 of Blackstone’s Civil Practice 2004, the court held that the defendant failed to set up a substantive defense, deny the facts supporting the claimant’s cause of action and present further facts answering the claimant’s cause of action, as a result of which the defendant did not have a real prospect of success in the matter.
In view of its findings, the court granted summary judgment for the claimant with various Orders including:
an Order for an inquiry as to the damages for infringement of copyright by the unauthorized transmission by the defendant of the musical works;
an Order for payment of all sums found due upon taking such inquiries or account, together with interest; and
an Order that the defendant pay the costs of the application for summary judgment.
Cases referred to:
Three Rivers District Council v Governor and Company and Bank of England No. 3 [2001] UKHL 16;
Alfa Telecom Turkey Limited v Cukurova Finance International Limited and Cukurova Holdings, HCVAP 2009/ 001at [21];
Bank of Bermuda Ltd v Pentium, Civil Appeal No 14 of 2003 BVI;
Western United Credit Union Co-operative Society Ltd. v Corrine Ammon, Civil Appeal No. 103 of 2006;
Western United Credit Union Co-operative Society Ltd. v Corrine Ammon, Civil Appeal No. 103 of 2006;
Civil Procedure Rules (United Kingdom);
Swain v Hillman [2001] 1 All ER 91, 92;
Toprise Fashions Ltd. v Nik Nak Clothing Co. Ltd; Nik Nak (1) Ltd, Anjum Ahmed [2009] EWHC 1333 (Comm) at [16];
Federal Republic of Nigeria v Santalina Investment Corp. [2007] EWHC 437 (CH);
ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
Royal Hospital NHS Trust v Hammond (No. 5) [2001] EWCA Civ. 550;
Doncaster Pharmaceuticals Group Ltd. v Bolton Pharmaceutical Co., 100 Ltd. [2007] FSC 63;
M.I.5 Investigations Ltd. v. Centurion Protective Agency Ltd., Civil Appeal No. 244 of 2008;
Jacob and Ors v Millennium Development Corp. Ltd., CV. No. 2007-1668;
Odyssey Television Network Inc. v Triantafillos TT Triantafillou [2004] F.C.J. No. 632, 2004 FC 532 (F.C.);
Inhesion Industrial Co. v Anglo Canadian Mercantile Co. [2000] F.C.J. No. 491 (T.D.) (QL).
Other authorities referred to:
David Bean’s Injunctions, 10th ed. at para. 1:04.
Commercial Litigation: Pre-Emptive Remedies. International Ed. 2005, para. A6-164;