19 September 2008

Copyright: Case Note: NFL Enterprises LP v Sotiros and Peter Restaurant Company Ltd

In NFL Enterprises LP v Sotiros and Peter Restaurant Company Ltd. and others, the plaintiffs sued a number of bars and restaurants situated just across the border from Buffalo for infringement of the copyright subsisting in television transmissions of football games in which the Buffalo Bills were playing. The plaintiffs, who claimed the television rights to National Football League games, allowed major networks to televise NFL matches on condition that they did not transmit live pictures of a team’s game to its home city. The networks in turn inserted the condition into their contracts with local television stations. The plaintiffs argued that the programmes could not lawfully be received by the defendants. Still less could they be shown to their customers, most of whom would have crossed from New York State. They applied for summary judgment under the equivalent of CPR Part 24.

The Application for Summary Judgment
Giving unconditional leave to defend, Jerome ACJ held that the plaintiffs’ assignment was specifically restricted to the United States of America and there was no evidence of who, if anybody, was entitled to the rights in Canada. Accordingly, there was a triable issue as to whether the plaintiffs owned the copyright in Canada and, if not, the nature and extent of their licence and the specific subject matter to which it related. Another issue that had to go to trial was whether the defendants had encrypted lawfully the relevant broadcasts. The plaintiffs claimed that they had not but that was disputed by the defendants who argued that their satellite TV subscription contracts allowed them to receive 13 games without restriction.

The Appeal 
The plaintiffs appealed to the Federal Court of Appeal which reversed the decision below. The appellate court found that there was evidence of title and infringement of copyright and breach of statutory duty under the Canadian  radio communications statute before the court before the court which entitled the plaintiffs to summary judgment. Accordingly, they granted declaratory and perpetual injunctive relief and ordered an inquiry as to damages.

First published on the NIPC website in Auguist 1997.

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