Pay TV network Sky is weighing its options after its bid for an interim injunction against Fairfax NZ was rejected by the New Zealand High Court last week.
Sky holds the exclusive broadcast rights for the Rio Olympics and pursued legal action over the use of its footage on Fairfax’s news site Stuff.co.nz.
Fairfax defended the use under New Zealand’s Fair Dealings provisions, which give media the right to use copyrighted material for the purpose of reporting current affairs.
Justice John Fogarty, who presided over the injunction, dismissed Sky’s case ruling it was impossible to decide what was fair use during such a short hearing of two days, according to Stuff.co.nz.
Fairfax claimed the dismissal of Sky’s injunction as a victory, although the matter could play out differently at trial given the legal ambiguity of the Fair Dealings provisions and the lack of concrete, quantitative parameters that define what exactly is ‘fair’.
Justice Fogarty did note that Stuff’s use of rolling video clips – where Olympic videos are automatically redirected to more Olympic videos, separated by ads – could be judged as unfair use.
Fairfax said it had disabled the feature, but Justice Fogarty cautioned if it reemerged Sky would be within its rights to seek an immediate injunction, according to Stuff.
Both Fairfax and another publisher NZME previously refused to sign Olympic accreditation agreements that dictated how and when Sky’s footage could be used.
The agreements did not enshrine Fair Dealings.
It is unclear whether Sky will also pursue legal action against NZME, which is also using Sky’s footage online.
Sinead Boucher, group executive editor of Fairfax NZ, said the dismissing of Sky’s injunction represented “a great day for press freedom in our country”.
“We strongly believe we are covering the Olympics in Rio fairly and with integrity, and we have been able to defend that position in the High Court over the last three days,” she said last week.
“It was a very aggressive approach by Sky to try to injunct us at short notice with the intent of restricting our news coverage. It was also significant we had strong support in court from TVNZ and NZME who shared our concerns about the right for media to cover events of national significance.
“We acknowledge Sky’s rights. We just want to report the news as we have done for many years and with many Olympics and other events of national significance.”
Some Olympic articles on Stuff include short video clips that are heavy on photos and text, but also use grabs of Sky’s footage.
Fairfax has also been relying on its recently inked video-sharing deal with broadcaster TVNZ, embedding Olympic video interviews from TVNZ’s ONE news into articles on Stuff.
Professor Ursula Cheer, law school dean at Canterbury University and author of Media Law in New Zealand, said the rejection of Sky’s injunction validated Fair Dealings provisions.
“This has been a massive battle between the Titans – how copyright law applies in the internet age to media,” she said.
Prof Ursula said while the Fair Dealings provisions were “not black and white”, it was not possible or desirable to have them defined in a concrete way.
“Copyright law has been around for a very long time and the statue has been amended a number of times and they’ve never looked at changing the definition (of fair dealings) because it is realised that the different types of dealing can vary so much,” she said.
“This is a classic example because we’ve not seen this type of dealing before. So it’s important that there’s room for discretion to be used each time to take all of the context into account.”
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