Acting Business Editor for the NZ Herald

Olympic Sky TV injunction bid decision to be released today

Great Britain's team ride to win gold in the men's team sprint finals at the Olympics in Rio de Janeiro. Photo / AP
Great Britain's team ride to win gold in the men's team sprint finals at the Olympics in Rio de Janeiro. Photo / AP

A High Court judge will release his decision this afternoon on Sky Television's injunction bid against Fairfax over the media company's use of Olympic video clips.

Court staff have told the Herald that Justice John Fogarty will deliver his ruling at 2:15pm.

Yesterday, Fairfax questioned if Sky had the legal grounds to bring the action. Fairfax's lawyer, David Goddard QC, told the High Court at Auckland that Sky didn't have an exclusive licence for the event under New Zealand's copyright law.

That law, Goddard said, defined an exclusive licence as one that excludes all other persons (including the copyright holder) from exercising rights to something.

Sky's broadcast agreement with the International Olympic Committee, however, still gave the global body rights within New Zealand.

Fairfax opposed Sky's attempt to get an interim injunction, which is aimed at stopping the way the media company is using Olympic Games video clips on its website stuff.co.nz.

Goddard argued Fairfax's use of the video was within the fair dealing terms of this country's copyright laws that make exceptions for the reporting of current events.

Sky, which had paid large amounts for its broadcast rights, would have been aware of those fair dealing rules when negotiating for them, Goddard said.

Sky was seeking orders that Fairfax limit its use to two minutes of footage each day but had agreements with some news organisations like TVNZ that they use six minutes, he told Justice John Fogarty.

We say the way in which Fairfax has taken our footage and used it in the way they have is not reporting for the purpose of current events, it is essentially for entertainment.
Sky TV lawyer Julian Miles

Only on one occasion had Fairfax used more than six minutes per day.

"It would be difficult to describe any of this as outrageous," Goddard said. While Sky had described Fairfax as an "outlier" compared with how other media had used its footage, Goddard described his client's actions as "orthodox".

"We have to ask what is fair dealing now within current media environment?" Goddard said.

Fairfax wants Justice Fogarty to reject the injunction bid and for the dispute to be argued at a full trial.

Goddard said that if Sky got its injunction the case would not go any further. It was better that the injunction be refused and that the fight go to a full trial where the all facts are presented.

Sky Television argued on Wednesday that Fairfax's use of Olympic footage directly competes with its own broadcasts and that it needed an injunction to ensure its copyright "was not eaten away and undermined".

"We say the way in which Fairfax has taken our footage and used it in the way they have is not reporting for the purpose of current events, it is essentially for entertainment," Sky's lawyer Julian Miles QC said.

- NZ Herald

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