Executive Summary: Key Legal and Evidentiary Issues

• Federal Court jurisdiction over copyright claims was challenged on the basis that allegedly infringing activities occurred outside Canada, but the motion failed as it was not plain and obvious that reproduction or performance did not occur in Canada.

• Claims against the Sony Defendants were struck for failing to plead sufficient material facts explaining "who, when, where, how and what" gave rise to their liability.

• Secondary infringement allegations under section 27(2) of the Copyright Act lacked necessary particulars and were struck with leave to amend.

• Authorization claims against QPL for YouTube's activities were found to potentially disclose a cause of action for authorizing reproduction or performance of the videos.

• Ownership of copyright and moral rights allegations were deemed sufficiently pleaded despite defendants' challenge that they were unsupported by material facts.

• Arguments that the claim was scandalous, frivolous, vexatious, or an abuse of process based on timing of copyright registrations and delay in bringing the action were rejected.

Background and parties involved

Carol Rosenstein brought this action both in her personal capacity and as sole trustee of the Bruce Gowers Trust - 1990 against Queen Productions Limited (QPL) and two Sony entities, Sony Music Entertainment and Sony Music Entertainment Canada Inc. The lawsuit concerns copyright infringement in certain music videos featuring the band Queen, referred to as the "Gowers Videos," which are alleged to be available in Canada on YouTube through the "Queen Official" YouTube channel.

The creation of the videos and ownership claims

Bruce Gowers allegedly camera scripted, selected crew and equipment, directed filming, supervised production, and controlled editing to create the videos. He is claimed to have used his skill and judgment, including by using innovative visual techniques, creatively framing, staging, and choosing angles for the shots, and supervising the editing. The plaintiff alleges that Gowers is the sole author and first owner of copyright in the videos pursuant to section 13(1) of the Copyright Act. The Trust, which Gowers set up by deed dated March 8, 1990, and amended on October 1, 2003, includes all intellectual property of Gowers. As the sole residual beneficiary and trustee of the Trust, the plaintiff claims ownership of all intellectual property, including copyrights and moral rights.

The defendants' motion to strike

The defendants filed a motion seeking to strike the plaintiff's Statement of Claim on three grounds: that the Federal Court lacks jurisdiction over the claim; that the claim fails to disclose a reasonable cause of action; and that the claim is scandalous, frivolous, vexatious or otherwise an abuse of process. The plaintiff provided particulars through letters dated February 26, 2025, and April 16, 2025, detailing allegations that QPL authorized and/or induced YouTube to infringe copyrights, provided and uploaded infringing copies either directly or indirectly, and knew that their activities would result in infringement of the plaintiff's copyright in the Gowers Videos, including within Canada.

Jurisdictional analysis

The Court found that it was not plain and obvious that the Federal Court lacks jurisdiction. The defendants argued that allegedly infringing activities did not occur in Canada, but the Court noted that where Canada is the country of reception of an Internet transmission, this can be a sufficient connection for jurisdiction in copyright matters even when the transmission originates from outside Canada. Evidence regarding Google's data centre locations raised similar hearsay admissibility issues for both sides. The Court determined it was not appropriate on a preliminary motion to make factual findings on who did what. Cross-examination of Matilda Beach, who identifies herself as Queen's manager, confirmed that QPL is a profit sharer in the revenue stream from the Queen Official YouTube Channel including from the Videos in Canada, has licensing agreements governing third party use of Queen content including the Gowers Videos on the Queen Official YouTube Channel, and has had and still has oversight as to the management of the Queen Official YouTube Channel.

Claims against the Sony Defendants and secondary infringement

The April Particulars provided details only about QPL's activities, saying nothing about the Sony Defendants. The Court found this insufficient, noting that the pleading must tell the defendant "who, when, where, how and what gave rise to its liability." Similarly, claims regarding secondary infringement lacked the necessary particulars. Both categories of claims were struck but with leave to amend, as it was not apparent that the failure to plead sufficient particulars could not be cured by amendment.

Authorization and ownership issues

The defendants argued that authorizing someone else to authorize an activity that constitutes direct infringement is not actionable. However, the Court found that was not what the Claim alleged, and it was not plain and obvious that QPL authorizing the complained of activities of YouTube fails to disclose a cause of action for authorizing the reproduction or performance of the Videos. Regarding ownership, the Court disagreed with defendants' assertion that allegations were bald and unsupported by material facts, finding it was not plain and obvious that the Claim fails to allege sufficient material facts on ownership of copyright and moral rights.

Abuse of process and delay arguments

The defendants argued the claim was an abuse of process based on the timing of copyright registrations and delay in bringing the action. The Court rejected both arguments. While obtaining a copyright registration immediately prior to, or during litigation, can greatly reduce the weight given to the presumption under section 53(2), this does not mean there is no basis for the plaintiff's claims of copyright ownership in the Videos. The plaintiff has alleged sufficient facts in the Claim which, if established on evidence at trial or other disposition, may be sufficient to establish ownership. Regarding delay, the Court noted that at least some of the allegedly infringing activities are ongoing or recent, with certain activities alleged to have occurred at various points in 2024, and the Claim alleges that Mr. Gowers was not aware until 2019 of the release of the Videos on the Internet. The Court also noted that the defendants have not yet filed a statement of defence, and the three-year limitation period provided for in section 43.1 can only be applied if it is specifically pleaded.

Ruling and outcome

Case Management Judge John C. Cotter granted the defendants' motion to strike in part, with leave to amend. The claims against the Sony Defendants and the claims relating to secondary infringement under section 27(2) of the Copyright Act were struck with leave to amend. The plaintiff was ordered to serve and file a fresh amended statement of claim by February 16, 2026. The confidentiality request regarding answers to questions 76, 77, 78, 180, and 181 to the cross-examination of Matilda Beach held on June 19, 2025, was granted, with those portions to remain sealed. As this was a case of divided success, there was no order as to costs pursuant to the parties' prior agreement on costs.