Sky not ruling out more Olympic legal action

United States' Allyson Felix (r) in the women's 400-metre semifinal earlier today. Sky TV sought a court injunction to stop Fairfax Media using video footage on its new website. Photo / AP

Sky Television says it isn't ruling out further legal action against Fairfax after it failed to get a High Court injunction against the media company over its use of Olympic video.

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

Fairfax opposed the bid and argued that its use of Sky's broadcasts fell within fair dealing rules of New Zealand copyright law.

These rules allow media to use copyrighted works - like sports broadcasts - for the reporting of current events.

However, Justice John Fogarty said on Friday it was impossible during a short injunction hearing to decide whether or not Fairfax using video footage of an end of a race or a winning shot went outside fair dealing.

"If this case goes to a substantive hearing, which I doubt, it's the function of the judge to make the call whether the standard of fair dealing applies or not to one or more of [Fairfax's] upload," Justice Fogarty said.

Sky chief executive John Fellet said the company was waiting for the final typed legal ruling before it would make a decision on whether it wanted to file more substantive action against Fairfax.

"It's always on the table," Fellet said.

Since Sky had sought the injunction, Fairfax's use of Olympic video had complied with news access rules, he said.

Those rules can limit, for example, the total amont of footage which can be uploaded each day.

Fairfax, during the hearing last week, wanted Justice Fogarty to reject the injunction bid and for the dispute to be argued at a full trial.

A claim for damages could be made during that trial and also declarations sought from a judge, Fairfax Queen's Counsel David Goddard said.

Fairfax group executive editor Sinead Boucher said on Friday if the matter went to trial then Fairfax would defend itself. She could not immediately be able to be reached for comment today.