(MINOR CORRECTION APPENDED) By now you know that CTV bought all the rights to the Hockey Night in Canada theme song, composed by Dolores Claman, after CBC failed to come to an agreement with the holder of the rights to that song, Copyright Music & Visuals (“A Division of Absolute Productions Inc.”). From all the evidence I’ve found, it really does appear to be CBC’s fault.
While I will be filing some questions for attribution, which will surely be ignored rather than answered, today I can give you bit more in the way of factual information than you will probably have seen before.
First, CMV has its own site. Principal John Ciccone has published his own side of the story, along with his own timeline of events. Dolores Claman’s daughter Madeleine Morris has a blog, which she has used mostly to provide her own side of the story.
Copyright Music & Visuals filed suit against CBC for copyright infringement in 2004 (yes, that long ago). CMV’s statement of claim, CBC’s defence, and other documents in that proceeding are helpfully available on the Web site of CMV’s lawyer, Kevin Kemp. Most of them are in inconvenient PDF format (e.g., scanned-image PDFs), while a couple are in less-inconvenient PDF format (with live text).
Nonetheless, they’re so short and self-explanatory that you can read them yourself. Note that CBC does not ritually deny every claim – it ritually denies only most claims, claiming it “has no knowledge” of eight other allegations.
But what you probably don’t want to wade through are the transcripts from a deposition held under oath on 2006.03.15&16. (PDFs on Kemp’s site. I have the transcripts in more convenient form if you want them – for research or review, say.)
From an outsider’s perspective, there are two basic issues here:
It does seem that way. CBC used the theme song in a journalistic context, but didn’t credit the source.
You will probably have read that fair dealing in Canadian copyright law is more restrictive than fair use in U.S. copyright law, but “news reporting” is one enumerated fair-dealing purpose for which you may use copyrighted works. If you do so, you have to cite the source. (There are other requirements, chiefly that the portion you use not be substantial. That doesn’t mean it has to be short or long, and it might include the entire work.)
If you don’t cite the source, you haven’t met the test of fair dealing for news reporting. By my reading of the deposition, this is an open-and-shut case against the CBC. (CBC claims its existing licence covered such usage.)
Additionally, by failing to credit the source, CBC has apparently infringed on the moral right of the author (Claman), a serious transgression that CBC would go right to the wall to keep out of a court of law. (I haven’t talked to them about it, but I have enough knowledge to realize that CBC does not want to be the other high-profile precedent in moral-rights infringement along with Michael Snow. Any defence lawyer would go to almost any ethical limit to avoid losing such a case; they wouldn’t even want it to reach trial.)
In particular, while the theme song was licensed for play in Canada, on Canadian Armed Forces bases, and in Canadian embassies and consulates, but only for Hockey Night in Canada, it could also be played in other places and on other shows if advance agreement and payment were agreed upon. The deposition is clear that the song was used for other programs on CBC and in other countries, in both cases without prior agreement.
The deposition does not delve into issues that were reported in the press, like the use of the theme song in ringtones. (The theme song is, however, John Ciccone’s cellphone ringtone.)
The original transcripts were produced by Victory Verbatim Reporting Services; the excerpts below were copy-edited.
Q. Exhibit number 1 has two tabs that contain two separate documents. The first is a television and radio music licence, which agreement was entered into as it appears to be, on the 8th of October, 1998; do you see that document?
A. Yes. [...]
Q. Similarly, did you sign the agreement dated January 23, 2003, between Copyright Music and Visuals, etc., and Canadian Broadcasting Corporation?
A. Yes.
Q. You signed that on or about the 23rd of January?
A. Yes.
Q. And this is the document that governs the relationship between the plaintiffs and the CBC, vis-a-vis the theme from, I believe, September 2002 through August 2007?
(Ciccone later told me they entered into a one-year extension of the agreement that ended in 2007 just to tide everyone over they extended the deal through the final NHL playoff game of 2008.)
A. “In the event, during the term of this agreement or any renewals thereof, licensee is able to broadcast the productions over the air outside of Canada or license such broadcasters, licensor agrees to grant all of the above rights to licensee in that regard [...] for an additional fee to be negotiated in good faith by the parties hereto as soon as possible, before such broadcasts are to commence....”
Q. I think that just confirms that you acknowledged to me a moment ago, doesn’t it?
A. It does, but it says that we have the right to do it, except that we have to negotiate
Q. And that is just what you agreed with, as I understood my question.
Ms Simon: I think the clarification is that there does exist a right, but that there needs to be a fee negotiated for that right, in order to exercise the right.
The deponent: We have the right to broadcast outside of Canada, we just need to negotiate a fee. So it is not as if we don’t have a right to broadcast outside of Canada. We have a right, but we have to negotiate a fee.
Q. by Mr. Kemp: I understand. And my question was, just so that we are clear, and I think it is consistent with what your answer was a moment ago, the question that I had put to you was that CBC does not have a right to use the composition outside of Canada, unless it compensates my clients or the plaintiffs?
A. I think the correct answer to the question is we have a right to use it outside of money for it. But we have a right to, based on this clause.
Q. And if you fail to pay for it, that is not authorized pursuant to the agreement? You acknowledge that is a breach?
A. We have an obligation to pay additional money if we broadcast outside of Canada.
Q. And failure to do so, if the composition is broadcast outside of Canada, would be a breach of the agreement; correct?
A. I would say if we failed to negotiate an agreement, it would be a breach. But in my view, we have tried very hard to negotiate an agreement with this kind of stuff.
Later:
A. If I remember correctly, the document said that we were in breach of the agreement, the Statement of Claim. We can broadcast, we can provide these broadcasts for use outside of the country. What we haven’t been able to do, although there has been a lot of, you know, to-ing and fro-ing, is to agree on exactly what the compensation should be for the further use.
Q. I think you left out a part of the clause there about your entitlement to broadcast outside of Canada; correct?
A. Which part?
Q. Well, that says there is supposed to be an additional fee negotiated before such broadcasts are to commence.
A. Yes.
Q. That is part of the agreement; right?
A. It says that is part of the clause. It says that.
Q. You haven’t done that, have you? CBC did not do that, did they?
A. No, we have tried to do that. [...] I am not sure if you are missing anything in the agreement, but for us to reach an agreement, there has to be a negotiation. The negotiation has to be in good faith, it has to be between two parties and then we have to be able to agree to a fee. And if we can’t agree to the fee, then we end up in the situation that we are in right now.
Q. Well, if you can’t agree to a fee, you have no entitlement to broadcast the composition outside of Canada, do you?
A. Well, I think we do.
Q. Really?
A. I think we have a right to use the agreement. We have a right, based on what is in this contract to make... well, let’s read it: “In the event, during the term of this agreement or any renewals thereof, licensee is able to broadcast the productions over the air outside of Canada or license such broadcasters, licensor agrees to grant all of the above rights to licensee in that regard, mutatis mutandis, for an additional fee to be negotiated in good faith by the parties hereto as soon as possible, before such broadcasts are to commence....”
Q. You adopt that in its entirety, don’t you? That is the term of the agreement?
A. I absolutely do.
Q. Tell me, then, or point to me, please, or show me in your productions, where an additional fee was negotiated between the parties in relation to those extraterritorial broadcasts? I want you to show me where the agreement was reached.
A. Well, I said to you we haven’t been able to reach an agreement.
Q. So you are in breach of the agreement as it relates to extraterritorial use?
A. We are in breach of our... we have not been able to negotiate the fees required.
Q. You have not complied with the terms of the agreement; right?
A. I would say that we have done our best efforts to abide by all the terms of the agreement. We have not been able to conclude this particular part of the agreement. And, to be fair, we have exchange of correspondence where we have made offers and the offers have come back to us with questions. We have tried to provide the answers to those questions and I guess we are where we are today. But in good faith, we really have tried. We have tried. I mean, what can I tell you?
Q. You haven’t done what you were supposed to do.
Still later:
Q. Mr. Agostini, I have a very simple question for you: You knew that in order for the composition to be used outside of Canada, you had to have a deal with the plaintiffs, right?
A. And that is what I tried to do.
Q. But you didn’t have one, did you?
A. No, but I made every effort to try to get the deal.
Q. Given that you knew, you did not have a deal with the plaintiffs, why did you not stop it?
A. Why didn’t I not stop what?
Q. The use of the composition outside of Canada, because you knew you didn’t have a deal with Mr. Ciccone.
A. Because our intent, all along, was to get a deal.
Q. But intent isn’t good enough. He was telling you that you were breaching copyright, and you never said once, “Stop using the composition outside of Canada,” did you?
A. No, because there was no reason to stop using it outside of Canada, because we were trying to work out a deal.
Q. As I understand the 1998 agreement, the use of the composition in the productions, as it is defined in the agreement, was limited to the territory of Canada; is that correct?
A. No, not quite.
Q. Well, I believe there is an Armed Forces exception? [Attribution in original.]
Q. Are you referring to anything else? [Attribution in original.]
A. I am referring to Canadian Forces Bases outside of Canada, as well as Canadian embassies and consulates.
Q. Yes, you are referring to section (c); correct?
A. Yes.
Q. Aside from that, do I understand correctly, that the 1998 agreement limits the use of the composition to Canada and Canada exclusively?
A. The intent of the agreement is for Canada.
Q. And if the composition was used outside of Canada, it is your position, is it, that my clients were entitled to be compensated?
A. Yes. If the composition was used outside of what is included in the grant of rights, yes, we would have to look at and determine what additional monies should be paid to Dolores. The intent was not to use it outside of Canada.
Q. And, in fact, aside from the one exception that you have pointed out, CBC is not entitled to use it outside of Canada?
A. Well, it wasn’t our intent to use it – [...]
Q. Do you agree with me that CBC was not entitled to broadcast the composition or to otherwise licence the composition for broadcast outside of Canada without further compensation being paid to the plaintiffs?
A. I think that would be correct.
But where outside Canada was it used?
Q. You have acknowledged that the composition has been broadcast in the United Kingdom; haven’t you?
A. Yes.
Q. You have acknowledged that the composition has been broadcast in Scandinavia; hasn’t it?
Ms Simon: I really think we should go to the document in question. If you are not able to find it...
Mr. Kemp: I can find it, but I am just trying to understand this witness’ evidence in general terms.
A. Not to my knowledge.
(Possibly also Japan, but that is never really clarified.)
Q. Mr. Agostini, the composition continues to be broadcast in the U.K. to this day, doesn’t it?
A. No.
Q. Well, I guess we will get to that. When did it stop?
A. I would have to provide... I don’t remember off the top of my head. But I understand that it stopped a few years ago. [...]
Q. Now, why did it stop?
A. It stopped because we were very concerned about not having been able to work out a deal with John, so we basically stopped using the theme as part of this broadcast.
Q. Now, when you say “we were very concerned,” who are you referring to?
A. Well, the CBC.
CBC told this U.K. broadcaster “not to use the composition.”
A. Well, because we didn’t have a deal.... We could not negotiate a deal which allowed us to, without concern, allow them to play the theme. So we said for all of the hardship that it is worth, it isn’t worth it. So let’s try to deal with the past and going forward, we are not going to do that anymore.
Q. And without a deal with the plaintiffs, there is a copyright infringement?
A. No, because we have, as I said to you earlier, we had provided an offer. The offer was not accepted. I guess that is where we got to where we are right now, that there has been a lot of to-ing and fro-ing with the hope that this would get resolved and I guess we are where we are right now.
On NHL Center Ice, a digital specialty channel:
Q. What did the agreement with CBC and NHL Center Ice entitle NHL Center Ice to use?
A. It entitled Centre Ice to provide, as part of the Centre Ice package, Hockey Night in Canada telecasts.
Q. And by its very nature, that would include the composition?
A. That is right. And I pointed that out in my note to John, when I wrote to him in July of 2003. [...]
Q. And NHL Center Ice began to use the Hockey Night in Canada broadcast with the composition in 1999?
A. Yes. I don’t know how many, though. I mean, as I say, modestly.
Q. Modestly or immodestly, it doesn’t really matter in the grand scheme of things. They began to use it in 1999.
A. The 1999 season.
Q. Which would be 1999, right?
Ms Simon: No, it goes into 2000.
The deponent: No, it depends when it began in the 1999/2000 season.
Q. by Mr. Kemp: So at the very latest, they were using it in the year 2000?
A. Somewhere in the year 2000, yes. In that season, yes.
Q. Where is your agreement with the plaintiffs in 1999 or 2000 that entitles anybody to use the composition outside of Canada; where is that agreement, because I haven’t been able to find it.
Was an agreement reached concerning this usage on NHL Center Ice?
Q. Where is your negotiation with the plaintiffs before the broadcasts were commenced in the 1999/2000 season? Where?
A. We don’t have that.
Q. And as a result, you did not comply with the terms of the agreement; correct?
A. We did not conclude our negotiations with regards to the additional fees to...
Q. Conclude them? You hadn’t even started them.
A. Yes. I am telling you, we did not conclude the negotiations.
Q. You hadn’t even initiated any negotiations, did you? In 1999/2000?
A. No, in 1999, we didn’t.
Q. Does NHL Center Ice continue to use the Hockey Night in Canada broadcasts?
A. To the best of my knowledge yes.
Q. And at any point in time, has any representative of CBC said to representatives of NHL Center Ice, “Hey, don’t use the composition”?
A. I think that the NHL is well aware of our concerns with regards to not having been able to finalize the negotiations with John with regards to this issue.
Q. Am I to infer from that statement that NHL Center Ice continues to use Hockey Night in Canada broadcasts with the composition?
A. NHL Center Ice continues to take Hockey Night in Canada broadcasts with us right now, yes. I think you asked me the question earlier.
Q. And by extension, that means they continue to use the composition?
A. They take the Hockey Night in Canada feed in its entirety.
Q. And that includes the composition?
A. That includes the composition. [...]
Q. Did you tell them to stop as a result of those issues?
A. I don’t think we told them to stop. We just said that we had very large concerns about trying to redress this matter. And, again, Centre Ice is a very large compilation of hockey games. This is a small component of what Centre Ice does. So for us to stay stop using this to Centre Ice... our hope was that we were going to resolve the matter, which is what we tried to do. And our focus was on trying to resolve the matter. And that is why I sent a note and that is why I put an offer in, to attempt to resolve the matter, as we are required to do in our contract.
Q. You are also supposed to negotiate the additional fee before such broadcasts are to commence; right?
A. Yes, but you have to have a negotiation at some point in time and acknowledge that, okay, there is something we have to do with regards to the past and let us do something now for the future, which was the intent of my note. Because it didn’t refer to just the past, it referred to ongoing seasons.
Q. I gather, in answer to that question, then, the answer is no, nobody from CBC has ever said to NHL Center Ice, “Do not use the composition, that is bad, that is copyright infringement”?
A. I wouldn’t characterize it that way.
Q. I guess not. That is why we are here. You said, and let me rephrase the question, nobody from CBC has said, “Hey, NHL Center Ice, don’t use the composition”?
A. No, I said, and I am going to repeat again, we said to NHL, “This is a problem that John has raised, we want to resolve it. And we need your help to resolve it.”
What about a single hockey game, the Heritage Classic (circa 2003)? It was broadcast on NHL Center Ice, allegedly with the use of the HNIC theme.
Q. So, did CBC enter into any sort of separate agreement with NHL Center Ice related to the Heritage Classic?
A. Not to my knowledge.
Q. And are you aware whether the Heritage Classic has been broadcast in the United States?
A. To my knowledge, in the same way, as part of Centre Ice.
Q. So, the composition has been broadcast in the United States, as far as you know, pursuant to, or as part of the Heritage Classic?
A. In the same way as Centre Ice, as part of the Centre Ice package.
Q. Is that a yes?
A. I am answering the question. I am saying as part of Centre Ice.
Q. Has this composition been broadcast outside of Canada as part of the Heritage Classic?
A. No. The Heritage Classic was broadcast as part of NHL Center Ice.
Q. And that includes the composition?
A. Well, that includes... the Heritage Classic was a Hockey Night in Canada production, which was made available to NHL Center Ice in the same way that... what we have been talking about since yesterday, that other Hockey Night in Canada broadcasts were made available to NHL Center Ice.
Q. And did you say to NHL Center Ice, “Hey, guys! The Heritage Classic includes the composition and we have no right or entitlement to have the composition broadcast outside of Canada.” Did you say that?
A. The Heritage game was made up... was produced by Hockey Night in Canada, was made available to NHL Center Ice in the same way as other Hockey Night in Canada broadcasts were made available to NHL Center Ice.
Q. That wasn’t my question. My question was: Did you say to NHL Center Ice, “By the way, guys, you are not allowed to broadcast the composition as part of the Heritage Classic outside of Canada.” Did you say that? Did anybody at CBC say that?
A. I don’t know if I can answer that, because I... why would anyone at CBC say that?
Q. Because it would be a breach of copyright if it was broadcast out of Canada. That is why CBC would do it.
A. I am going to answer the question in the same way I just answered it, which was, the Heritage game was produced by Hockey Night in Canada. It was made available to NHL Center Ice in the same way that other Hockey Night in Canada broadcasts were made available to NHL Center Ice.
Q. So, the answer is, no. You never told NHL Center Ice...
A. We did not have... I certainly did not have any discussion with anyone at NHL Center Ice on the specifics of the Heritage game because, as far I was concerned, there is no difference with the Heritage game or any other Hockey Night in Canada broadcasts.
Q. That is part of the problem. You didn’t care if the composition was broadcast outside of Canada, did you?
A. Those are your words, not mine.
Q. Okay. Let me ask you: Did you care?
A. Of course I did.
Q. Well then, why didn’t you take steps to tell them not to broadcast it?
A. And I did. I wrote to John and I told him, as I said to you yesterday, what we were trying to do with regards to providing him with additional money for the provision of the Hockey Night in Canada further use of the music. And we did that.
Q. And even though you didn’t have a deal, you said, “Oh, don’t worry. You can broadcast it outside of Canada.”
A. No, I am sorry. As I said to you yesterday, there is a provision in the agreement which allows us to license these games outside of Canada, what we were...
Q. Only if you have a deal.
A. Yes. And what we tried to do is to try to get the deal done.
Q. And you didn’t have a deal.
A. You know that. I told you that yesterday.
Q. You didn’t have a deal.
A. No, we don’t. And we still don’t have a deal.
Q. Yes. And so, you are not allowed to sell it outside of Canada without a deal.
A. Yes.
Q. And you continued to do it, and you did it in the Heritage Classic, right?
A. The Heritage Classic is exactly the same as the others.
Q. Okay. And you haven’t told anybody at NHL Center Ice, “We don’t have a deal with the plaintiffs or Mr. Ciccone, so you are not allowed to broadcast the composition in the Heritage Classic.”
A. No, as I... I have... you know, the correspondence we have had with the NHL, and as counsel said this morning, we have had discussions with the NHL on this matter.... It is not that we did not try...
Yes, apparently – on Royal Canadian Air Farce on 2002.10.11.
A. And it wasn’t cleared?
Q. That is my position.
A. We can check that. We can check that, because, as you know, or John knows very well, if it was used by Royal Canadian Air Farce, they would normally clear it, or they deal with the issue of having to clear music.
(Kemp also claims the composition was used on “a Rick Mercer special” in 2001. Agostini didn’t kow anything about that.)
What about the theme’s use on Hockey Day in Canada specials? Agostini claims those are merely compilations of Hockey Night in Canada games.
Q. ...has CBC taken steps to register a trademark of the words, “Hockey Day in Canada”?
A. Yes.
Q. When did it do that?
A. I don’t remember.
Q. And CBC has determined that that is something that should be identified as separate and distinct from the trademark “Hockey Night in Canada”?
A. No, in addition to “Hockey Night in Canada.”
The HNIC theme was apparently used on curling broadcasts:
Q. Now, are you aware of the Hockey Night in Canada theme having been used as an intro to any of the curling broadcasts in 2003?
A. No. If anything, if it was a sports broadcast which was promoting Hockey Night in Canada coming up tonight, or someone from Hockey Night in Canada appearing on the curling broadcast, that is possible. But it is part of the promotion of Hockey Night in Canada. But to my knowledge, there was no... we would not be using the Hockey Night in Canada theme as part of a theme for curling broadcasts. Curling has its own music.
Q. So to your knowledge, it was never used for that purpose, for the intro to a curling...
A. Listen, I don’t know for sure that something... but it would have been themed to Hockey Night in Canada. There is no reason for us to use the Hockey Night in Canada theme as part of the theme to a curling broadcast.
Later:
Q. [I]t is alleged in the Statement of Claim that the Hockey Night in Canada theme was used in the course of those curling broadcasts, and it was not used in a manner that was promoting the Hockey Night in Canada television broadcast. [...W]e also have reason to believe that the composition was used in this manner by virtue of reports of SOCAN reflecting a broadcast related to curling broadcasts, specifically, on a variety of dates.
Q. I have shown you an excerpt from the DVD which ran for approximately 30 seconds. Do you believe, after having seen that, that it is an accurate replication of what is actually on the VHS that was delivered by your counsel?
A. Yes.
Q. Is that the Hockey Night in Canada theme that is playing in the background of that excerpt?
A. Yes.
Q. Can you describe for me a bit about what The Circus Is in Town is about and when it was produced?
A. The Circus Is in Town is a documentary about Hockey Night in Canada. And it was to celebrate... I think it was part of the 50th anniversary of CBC Television, and we did a documentary produced by CBC Sports, on Hockey Night in Canada.
Q. When was the documentary made?
A. I am going from memory, so I am not going to say, but it was towards the end of the season, which would have been either the 2002 season or the 2003 season.
Q. Toward the end of the ’02/’03 season?
A. Yes, it is either that season or the following season.
Q. Could you please refer me to where in the television and radio music licence, the right or entitlement to use the composition is granted to you for this purpose?
A. This piece was about Hockey Night in Canada, it was a journalistic piece on Hockey Night in Canada. As part of fair dealings, we are allowed to us it as part of Hockey Night in Canada. [...]
Ms Simon: We are of the view that it falls under the synchronization licence, paragraph 5, subsection (l)... If the witness’ evidence is correct as to the timing, then it looks like it does predate the synchronization licence....
Later:
A. But I believe, as I said earlier, that our use of the theme, under fair dealings, for the production of The Circus Is in Town, which was a documentary about Hockey Night in Canada, was absolutely appropriate and legal. And again, it was done for CBC, within the sports department, about Hockey Night in Canada, it was a story about Hockey Night in Canada. My understanding was there is no requirement for it to be written in any contract. And, to make it even clearer, we put it in the second contract, just to make sure that if this ever came up again, that we would have dealt with it. But we didn’t need to have it in the contract.
But was the source of the copyrighted work (the HNIC theme) stated?
Ms Simon: Is the question to the witness: Was Dolores Claman identified as the author of the work within the body of The Circus Is in Town?
Mr. Kemp: Yes.
Ms Simon: Do you know the answer for sure?
The deponent: The answer is when it aired, the credit, and I think that is the point, the credit was not put in the end credits, that is what you are saying.
Ms Simon: Is that your question?
Q. by Mr. Kemp: It is my understanding that Dolores Claman was not anywhere in The Circus Is in Town identified as the author of the work; is that your understanding, as well?
A. Well... [...]
Mr. Kemp: It is my information that it is not, at any point... Dolores Claman is not at any point in the broadcast identified as the author of the work or the composition.
Ms Simon: If you don’t know for sure, we will view it again. I have viewed it, but we will view it again and we will give you our undertaking to answer yes or no. Unless you feel confident that you can give an answer right here and right now.
The deponent: I will answer the question in this manner, and I have to say I do not recall if Dolores’ name was used in the piece.
Later:
Q. Are you telling me it is your belief that there can be fair dealing in circumstances where the author of the work is not mentioned?
A. I think the record shows, clearly in the correspondence, that our producer wrote a note to John saying we were sorry that the credit was not provided and it will be corrected in the next version.
Q. Does that mean that there was an acknowledged breach of copyright?
A. It means that under fair dealing, if we... it is not, in my opinion, a breach of the copyright in terms of our agreement, but in terms of fair dealing, we should have mentioned the name.
Q. So is it your belief and understanding that in order for there to be fair dealing, there has to be mention of the author of the work?
A. That is my understanding.
Q. And there was no mention of the author of the work or the composition in The Circus Is in Town, was there?
Later still, after some research, Ms Simon stated:
I have information that it was aired September 26, 2002. It subsequently was played on November 9, 2002. During the second airing, the song was removed from the airing of the program. No, I apologize. The credits were included for Dolores Claman within the second play.
This statement doesn’t make any sense. (Which exact claim did she get wrong and apologize for?) She immediately continued:
And as far as it fitting into the contract, it does fit into the synchronization license. On further review of the license, we realized that it had been dated to September 1, 2002, therefore, that would govern the airing of the show on September 26, 2002. So, that should cover off the undertaking that was given in that regard.”
While CBC admits it did not credit the source in the first airing, thereby failing to comply with the requirements of fair dealing, CBC also insists that its existing synchronization licence authorized the use of the composition in both airings.
There was a deal with ExpressVu to promote Hockey Night in Canada and ExpressVu. The exact balance of which of those two entities was “promoted” is a matter of dispute.
Mr. Kemp: We say it is a breach of copyright. It is selling Bell ExpressVu’s services, and we are entitled to know the frequency with which that promotional item aired. And I am going to be asking you for ratings of every single game when it aired.
The deponent: Well, listen, we would... if we... we would love to share that with you because it was an experiment that was, again, promoting Hockey Night in Canada for the viewer in a different way.
Q. by Mr. Kemp: And it happened to also be benefitting Bell ExpressVu, didn’t it?
A. Well, as I said before, it was an experiment.
Q. Did you understand it to be part of a promotion that would be designed to sell services of Bell ExpressVu?
A. Really, no.
Q. No?
A. No. It was...
Q. Then why did you need Bell ExpressVu?
A. Because it was distributing the program in a different way, and what we were trying to do is to experiment with providing Hockey Night in Canada to the hockey fan in a different way.