Sky TV takes media outlets to court over use of rugby video footage

Wednesday 16th November 2016

Sky Television said it’s still waiting on a date for the High Court action it filed last month against TVNZ, Fairfax, and NZME alleging the media companies breached the pay TV firm’s copyright by their use of rugby video footage.

The case follows Sky’s unsuccessful attempt in August to get an interim injunction limiting Stuff.co.nz’s use of Olympic video footage.

TVNZ referred to the legal action in its submission to the Commerce Commission on the proposed merger between Sky and Vodafone where it said Sky alleged that TVNZ had infringed its copyright by posting video clips from Sky’s broadcasts of rugby matches on the One News Now website.

TVNZ said the use of these clips was for reporting current events and fell under the fair dealing provisions of the Copyright Act, which recognise the public interest in news reporting.

“Sky's conduct represents an attempt by Sky to leverage its monopoly over premium content, in order to effectively foreclose the ability of New Zealanders to access sports news – unless they are prepared to pay a premium subscription to Sky in exchange for such access,” it said in the submission.

The state broadcaster's chief executive, Kevin Kenrick, said today that TVNZ was committed to covering the sports news that matters to New Zealanders and the legal proceeding was the latest attempt from the “Sky corporate box to dictate what is newsworthy and how sports news should be covered in New Zealand.”

Kenrick said as a sports content rights-holder, TVNZ supported rights-holders being able to generate a return on their investment but it doesn’t support restricting New Zealanders' access to legitimate news stories in a timely manner.

“There’s a big difference between short duration video clips being used for news coverage and illegal live streaming of entire matches," he said. “In taking us to court, Sky wants to control New Zealanders’ access to sports news online and limit how One News can tell the news.”

Kenrick said he hoped a resolution could be reached through “good faith” negotiations but was open to a judicial process if that was the only way to reach certainty.

Sky TV spokesperson Kirsty Way said the alleged use of the rugby footage by the media outlets went well beyond fair dealing use and devalued Sky’s substantial investment in rights. She wouldn’t reveal how substantial that investment has been.

Way pointed to one example where up to 10 minutes of rugby footage was screened in a 45-minutee programme.

When asked what how long would be acceptable, Way said that depended on the content. “If it was a 100 metre race, showing 10 seconds would be the whole event,” she said.

Rugby was the country’s biggest sport and one of the “biggest outliers” in terms of fair dealing use, she said.

But Sky hoped that establishing certainty around fair dealing use for rugby would provide a guideline for other sports also covered by its extensive content rights, she said.

In the interim injunction application, Justice John Fogarty ruled it was impossible to decide what was fair use in a short hearing. In an oral decision he said although Sky had an arguable case that Fairfax’s use of Sky video for the Rio Olympics should have been closer to the news access rules contract, it wasn’t possible for the court to rule without a full trial.

Way claimed fair dealing use on the Stuff website dropped dramatically around the time of the injunction hearing but it was “short-lived”.

BusinessDesk.co.nz

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