KEY POINTS:
Listening to TV3 chief operating officer Rick Friesen, you would think the broadcaster is some sort of charity. According to him, TV3 paid a large sum for the exclusive television rights to the rugby World Cup "so that all New Zealanders can enjoy this significant event live and free". Extrapolate that line of thought and the broadcaster's ultimately successful pursuit of a permanent injunction against Sky became a matter of TV3 "protecting its interests and the interests of the viewing public".
So much for fantasyland. TV3, indeed, spent a large amount of money to snare the rights. But this was done purely for business reasons. The public interest was far from its mind when it went to great lengths to beat a joint Television New Zealand-Sky bid. Having succeeded, it must now extract maximum value from its coverage, a task that TVNZ found difficult at the 2003 World Cup, and which has been complicated by advertising issues. Keeping its rights in the public eye surely does that process no harm whatsoever.
TV3's high-profile High Court action began with the securing of an interim injunction against Sky to prevent TV3 material being used on its shows, Sports 365 Highlights, The Cup, and Rugby Highlights. Then it sought a permanent injunction against all Sky sports shows for what it said was unauthorised use of its copyright. The nub of TV3's argument was that its agreement with Sky and TVNZ dictated they could broadcast two minutes from every World Cup game in their news programmes, three times a day. It did not allow broadcasting in "magazine-style" formats.
Sky has, of course, been pushing the boundaries. But, as it noted, there may be only shades of difference between what it was doing and TV3 using Sky clips for programmes such as Hyundai Sports Tonight. Indeed, the real issue was the definition of 'news', and how it was presented. During major events such as the World Cup, broadcasters denied the rights to live coverage must try to meet viewer interest by providing analysis, interviews and other background items. Sky, which has a strong background both in live coverage and programmes devoted to analysis, was always going to try to build an audience based on the second option when it missed out on the first.
Most implausibly, TV3 said an injunction against Sky served the interests "every rugby fan in New Zealand". Was it suggesting that an absence of any meaningful coverage except its own was desirable? The public interest lay, in fact, not with TV3 but in competition. Fans benefited from the different slant of Sky's coverage and the different voices used for its analysis. Furthermore, every reference that Sky or TVNZ made to the World Cup drew attention to TV3's exclusive live coverage. Surely it should have been encouraging that sort of promotion, not trying to shut it down.
All that failed to convince Justice Helen Winkelmann, however. She ruled that Sky's use of TV3 footage exceeded the industry conventions for "fair dealing" in such circumstances, and that this eroded TV3's position as the exclusive World Cup broadcaster. The public interest was a consideration, she said, but this could "be adequately provided for at a far less extensive level of use of TV3 footage by Sky".
So much, then, for meeting what Sky clearly saw as a virtually insatiable public interest in the World Cup. So much for competition, albeit one in which TV3, even before its legal success, held all the aces. TV3 will have won few friends among a public that has yet to be won over by its coverage. Or among its rivals, most of whom have far more clout in their sports broadcasting rights arsenals.
