Sky loses injunction bid

There were hugs and smiles from Fairfax NZ staff and supporters at the High Court after Justice John Fogarty declined to grant Sky TV [NZX: SKT] an injunction limiting Stuff.co.nz’s use of Olympic video footage.

“We’re happy with today’s ruling – it’s a vindication of our position,” Fairfax group executive editor Sinead Boucher said.

Sky TV, which has sole rights to Olympic video coverage in New Zealand, had sought an injunction requiring Fairfax keep its use of the material within limits specified in news access rules imposed by the International Olympic Committee — for two minutes of footage was fair for websites, and up to six minutes for broadcast TV. Fairfax maintains it can use more under the "fair dealing" provision of the Copyright Act (1994).

In an oral decision, Justice Fogarty said although Sky had an arguable case that Fairfax’s usage of Sky’s video should have been closer to the NAR (news access rules) contract, “it’s not possible for this court to rule on that without a full trial.”

Where Fairfax was using the footage in the context of written news reports and showed the finish of a race or a winning shot, he said, “I do not think it is justifiable on an interim injunction hearing to decide whether or not that conduct goes beyond fair dealing exceptions in the statute.”

The judge said if Fairfax resumed an automatic video rollover function on its website, “justice requires me to impose a mandatory injunction.” But “in all other respects, the plaintiff’s application for interim relief fails.”

Speaking to NBR outside the courtroom, Ms Boucher said it was a good decision for sports fans and recognised the importance of big news events.

“And it’s also a good decision for press freedom.”

“We have no dispute with Sky’s broadcasting rights for the Olympics but we strongly believe in the right of other media to report the Olympics in the fashion that the public would expect,” she said.

“We strongly believe we act fairly and with integrity and were very willing to defend our position.”

Sky declined immediate comment afterwards, preferring to see a written judgment first, but has indicated it will take the issue to trial in an effort to define the extent to which an events rights-holder can enforce copyright over the use of footage and other material for which it has paid to own broadcast rights.

Corporate comms director Kirsty Way did offer the indirect observation that, "It was a shame to lose that interim move but nice to see Stuff drastically reduce their online video once they got into court. Now to see how long that lasts."

If it does proceed to a trial, it will take place months after the Olympics ends, but could set a precedent for re-use of video highlights of future major sports events. However, any precedent could be short-lived. The government is due to review the Copyright Act (1994) next year. The review is scheduled to take place after the TPP is ratified (or not); an issue that is not likely to be resolved until after the US election.

A written version of the judgment was released late Friday; read it here.

With reporting by BusinessDesk.

Click the hamburger symbol top right of our homepage to access the Rich List 2016 and other sections.