Legal action has been threatened against Fairfax NZ and NZME by pay TV company Sky TV over how the publishers intend to cover the 2016 Olympics Games.
The three media companies are in a bitter dispute over Games coverage, for which Sky holds the exclusive broadcasting rights.
The two news media publishers last week refused to sign accreditation agreements that would govern how non-rights holders can use Olympics footage online.
After months of negotiations, the agreements were rejected by NZME and Fairfax, which said they did not permit Fair Dealings provisions that would normally allow limited usage of video on websites.
Sky has sent legal letters outlining allegation of intended copyright breaches and threatening to seek an injunction.
Sinead Boucher, executive editor of Fairfax NZ, told Stuff: “We respect Sky has paid a significant sum for the broadcasting rights and all we want is an assurance that we don’t have to sign away our rights under New Zealand law to cover an event of major significance.”
Fair Dealings provisions allow media companies to use copyrighted material to report the news. However, they are broad, ambiguous and rarely tested in court. One example was a 2007 case between Sky and free-to-air broadcaster TV3, which held the broadcasting rights for the Rugby World Cup.
TV3 successfully sought an injunction against Sky, which was using its footage across a range of current affairs and magazine-style programs.
Professor Ursula Cheer, law school dean at Canterbury University and author of Media Law in New Zealand, said Fairfax and NZME could technically still use Sky’s Olympics footage under Fair Dealings provisions.
“Of course they’re taking the risk they will be sued, depending on how much they use and in what programs,” Professor Cheer said.
“If Fairfax used the really important part of Sky’s Olympics coverage, even though it wasn’t everything, they might still not be using it fairly and they might breach the requirements of the Act.”
Shayne Currie, managing editor of NZME, last week said the company couldn’t go to Rio knowing that media rights enshrined in New Zealand law weren’t included in the accreditation agreements.
“If we forfeited our rights to fair use privileges then suddenly this would happen for Rugby World Cups and Cricket World Cups and so forth,” Mr Currie said.
Professor Cheer said it would be a “matter of great regret” if Fair Dealings provisions were changed as a result of the dispute.
“There’s no problem with the law,” she said. “If commercial entities want to then attempt to only deal with other companies on the basis that they give up these rights then they’re perfectly entitled to do that. But then those companies are also perfectly entitled to reject that approach. That is a matter of private commerce.”
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