Order of the Federal Court of Canada

NEW ERA PUBLICATlONS INTERNATIONAL, ApS
Plaintiff,

- and -

KEY-PORTER BOOKS LIMITED and
RUSSELL MILLER,

Defendants.

REASONS FOR ORDER

This is an application by the plaintiff for an Order granting an interlocutory injunction until the disposition of the trial herein, restraining the defendants from publishing in whole or in part any of the work listed in Schedules A or B of the Statement of Claim; publishing in whole or serial from a book entitled "Bare-Faced Messiah" (the book); publishing, reprinting or distributing any works authored by L. Ron Hubbard.

There is some urgency for a decision in that the defendant Key-Porter Books Limited ("K-PB") intends to publish a first edition of 5000 copies of the book on or about 4

The plaintiff has been in the publishing business for over 18 years and has had a long standing arrangement whereby it publishes the works of L. Ron Hubbard - who died January 24, 1986. This arrangement is assured through a licensing agreement. Mr. Hubbard was founder and guiding philosopher of the Church of Scientology, and as Mr. Carl Heldt - Chairman of the Board of the plaintiff - states - "a man of many achievements as an author, musician, philosopher, research pioneer, educator, photographer ... but perhaps best known as an author. Mr. Hubbard was a prolific writer and his fiction works alone sold more than 23 million copies throughout the world. Of interest to the publisher/plaintiff is that, "By reason of the above goodwill and extremely high repute established internationally by Mr. Hubbard during his lifetime as an author are of no small consequence. Works authored by him are, quite literally, guaranteed to sell and sell in large quantities".

Certainly there is no question that a biography of his life was the ultimate goal of gathering his unpublished writings and an author - Omar V. Garrison, assisted by researcher Gerald Armstrong (an employee of the church) - was selected for the task. After Mr. Hubbard's death, his estate engaged the plaintiff to prepare and publish the biography, and again an exclusive License to publish material contained in the collection of the unpublished works was given to the plaintiff.

Just a word here about Garrison and Armstrong. "On January 81 1980 Gerald Armstrong, at that time a member of the

Church requested permission from Mr. Hubbard to be allowed to compile, protect and preserve Mr. Hubbard's personal papers." This permission was given. Omar V. Garrison entered into an agreement with the predecessor company of the plaintiff under which he was to write a biography of Mr. Hubbard. Armstrong was assigned by the church to assist in research. Armstrong fulfilled this role until December 12, 1981, when he "voluntarily terminated his employment with the Church" and he had furnished Mr. Garrison with a great deal of materials from the Church archives which were in Mr. Garrison's possession, After leaving the Church and "until approximately August 1982, Mr. Armstrong then obtained many of these archival documents from Mr. Garrison, and furnished them to attorneys involved in suing both Mr. Hubbard and the Church". In September 1982, pursuant to a court order in California, "Mr. Armstrong and his counsel surrendered approximately 10,000 documents to the custody of the Clark of Court". (Kenneth David Long affidavit). Later all documents were returned to the Church pursuant to a settlement of some of the issues in the United States. (Long affidavit)

It's also alleged in the affidavit of Kenneth David Long, an executive employed in the legal division of the Church that Mr. Armstrong met the defendant Miller in approximately May of 1986, and that Armstrong believed Miller had archival documents, that he was aware of litigation regarding Armstrong and the Church and would have had or read documents about the church's suit against Armstrong.

In what has to be seen as a massive amount of work Mr. Kenneth David Long has by way of affidavit prepared a "schedule which, on a side by side basis for ease of

comparison, lists out Mr. Hubbard's unpublished documents taken from Church archives and used by Mr. Miller".

Also, later Mr. Long states, "Mr. Miller has also extensively quoted from various of Mr. Hubbard's published writings" and again a schedule was prepared "listing each of Mr. Hubbard's published writings for which passages have been directly taken by Mr. Miller and included in the book, "Bare-Faced Messiah".

Mr. Thomas Best Marketing Director of Key-Porter Books Limited ("K-PB"), in an affidavit filed on behalf of the defendants make the point that K-PB agreed to purchase the Canadian Rights to publish the books, which agreement was made by the Canadian agent for the defendant Miller. On Aug. 5, 1987 approved copies of the book became available and circulated to a limited number of people. He believes the Church obtained a copy by September 29, 1987, and was aware Mr. Miller intended to write the biography as early as February 1986. Advances of $11,250.00 have been paid by K-PB, as well as "film for 1600 pounds from which the book will be printed".

K-PB intends to publish a first edition of 5,000 copies of the Book. Other actions have been taken by K-PB in readiness for publishing.

"TIME IS OF THE ESSENCE in the publishing business" says Mr. Best, and "70% of all books sold in retail markets are sold in the pre-Christmas market."

In a proceeding such as this, one would have preferred more time to consider one's judgment , and certainly

more time to elaborate on the reasons for judgment. However, exingencies of the situation here dictate a quick response: any delay is in effect to the benefit of only the party seeking to postpone publishing altogether, and a judgment delivered after the date established for publishing of course would be most detrimental to the defendants, certainly according to Mr. Best. However, it is clearly necessary to make a quick decision for the benefit of both parties to enable each to pursue future courses of action and to have time available to do so.

The Plaintiff, pursuant to its two agreement earlier referred to, claims an exclusive right in copyright to the publication of certain published and unpublished works authored by the late L. Ron Hubbard. In particular, the plaintiffs maintain a breach of copyright by the defendants because K-PB intends to publish in Canada, without the consent of the plaintiffs or the copyright owner portions of the said works. The specific publication is a book entitled the Bare-Faced Messiah by Russell Miller, which the defendants declare they intend to publish, with the first edition on about December 4 1987.

The Defendant for its part contends there is insufficient evidence produced by the Plaintiff to warrant the discretionary remedy bought. The affidavit of Mr. Long gives no basis for his several contentions vis-a-vis the manner in which the unpublished documents were secured and eventually came into the Church's possession. There is no affidavit from the. executor of the estate and no copy of the will.

There was no cross examination of the affidavits furnished by the plaintiff but argument by counsel for the defendants points to glaring inadequacies in their content to support a motion of this kind. Counsel for the Defendant quotes extensively from the Judgment in Re B and C (MINORS) (CUSTODY) [1985] F.C.R. 134 and particularly pages

Because of this connection to a Church, the question was put along these lines "Why bother to cross examine people like that associated with the Church".

On an interlocutory injunction one must be careful not to usurp the role of the Judge ultimately hearing the trial, and gratuitous comment by me of the possible success or failure of a position held by plaintiff or defendant would do just that. For the purpose of these requests and this Order to be made I do not propose to comment extensively on the arguments raised by both sides because it is unnecessary.

1. The material filed in support of the motion falls far short of the evidence required to sustain the motion.

Although Mr. Long's affidavit contains information about the handling of the documents belonging to or the property of L. Ron Hubbard, it is only based on information and belief with no real source for that belief given. It is secondary evidence whereas primary evidence would or should be available from the executor of the estate, and the person or person who handled the documents. "In 1959," he states "Mrs.

Hubbard placed many of their belongings in storage in Washington D.C.". How does he know that? He also says this particular storage included personal documents such as diaries and letters to his family and friends - how does he know that?

He states "these materials then removed in storage in Washington D.C. until approximately 1976, when they were removed and taken to Church premises in California for continued storage on Mr. Hubbard's behalf." By his own affidavit, made November 18, 1987, he states that he had only been an "employee for 7 years", so could not possibly have first hand knowledge of his allegations. In paragraph 5 he refers to the year 1967 and the years 1959 to 1967. Here again - what is the source of this information?

2. I would also comment that counsel for the defendant has it correct when he maintains the plaintiff is guilty of delay in bringing its motion, and I suggest probably missed its best opportunity when it failed to take action in Britain when the Church launched its suit, for all of the ingredients of this motion could and should have been argued then.

Thirdly, I am satisfied that there are many triable issues requiring a much more extensive hearing than is possible with affidavit evidence and some of that suspect or at least weak and secondary. For example will the defendant be able to make its case of "Fair Dealing" under section 17(2)? Does the plaintiff have copyright on all the material claimed or are some documents already in the public domain as alleged by the Defendant?

For the plaintiffs' part, it argues a presumption in favour of copyright to be rebutted by the defendant. More detailed evidence is clearly required before a determination on that point can be made (i.e. can the defendant secure or provide sufficient evidence to rebut the presumption).

I am satisfied that Russell Miller did seek permission to use some documents, published and unpublished and he was refused, but proceeded in any event. Whether this action was legal is a matter for the trial judge after hearing all the evidence. Mr. Miller may or may not be able to justify that move, but the mere fact he asked permission and was refused is not a sufficient basis to allow the injunction.

At first blush, I was impressed with paragraph 14 of the affidavit of Mr. Carl Heldt - chairman of the board of the plaintiff who made a good case that irreparable harm will be done to the plaintiff. "New Era will have forever lost the right to control the first publication of these unpublished works of L. Ron Hubbard." Why however - if this was of such a great concern - wasn't it argued in Britain, because permission to publish "Bare-Faced Messiah" if permitted would remove this benefit so desired by New Era. It was open to the plaintiff to join with the Church in its action in Britain or to commence a separate action. To date at least , Mr. Miller has the right in Britain to publish his book which removes the plaintiff's "right to control the first publication of these unpublished works of L. Ron Hubbard."

In the light of the determination already made I see no point in considering the "clean hands" argument other than a comment that a good portion of it was really directed to actions by the Church or its attorneys. Certainly more

information on the financial stability of the plaintiff could have been helpful but in the final analysis my reasons for this order did not turn on irreparable damages in any event.

I cannot accept that we have an abuse of the courts' process here because the plaintiff claims a very valuable copyright it is endeavoring to protect, and the publisher should not be tarnished with the avowed determination of the Church to "use" the Courts or harass one in Court.

Much was made of the outlandish, foolish, vicious racist writings of L. Ron Hubbard, but that can hardly be laid at the door of the plaintiff - a publisher seeking to protect a copyright.

For reasons stated earlier the motion is dismissed with costs to the Defendant Key-Porter Books Limited.

TORONTO, ONTARIO.

December 2nd, 1987.

"B. Cullen"
J.F.C.C.