Olympic Coverage Judgment: Sky vs Fairfax NZ

Full judgment: SkyNetworkTvLtdvFairfaxNZltd.pdf

SKY NETWORK TELEVISION LIMITED v FAIRFAX NEW ZEALAND LIMITED [2016] NZHC 1883 [12 August 2016]

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2016-404-1847
[2016] NZHC 1883

UNDER
the Copyright Act 1994

BETWEEN
SKY NETWORK TELEVISION LIMITED
Plaintiff
AND
FAIRFAX NEW ZEALAND LIMITED
Defendant

[…]

Judgment:
12 August 2016

ORAL JUDGMENT OF FOGARTY J

[…]

Introduction

[1] Sky Network Television Ltd (Sky) commenced proceedings three days ago against Fairfax New Zealand Ltd (Fairfax), which was in turn three days after the opening ceremony for the Rio Olympic Games took place.

[2] The International Olympic Committee (IOC) governs the Olympic movement and owns the rights to the Olympic Games, including without limitation, the right to broadcast the Olympic Games.

[3] The IOC acquires this right because the films of the events produced during the Games create a property right, known as copyright. Subject to the need for proof that IOC has not sold this copyright, that is common ground that IOC still has it. There was some discussion about that and I might be overstating this common ground, but certainly I consider it extremely unlikely that the IOC has sold off its valuable copyright to anybody else and as we will see from my reasoning, I think, that is corroborated by the way in which IOC has dealt with Sky.

[4] Fairfax has been streaming footage from Sky’s broadcasts of the Olympic Games on its website www.stuff.co.nz.

[5] Sky seeks an interim injunction against Fairfax to limit the Sky content that it streams on www.stuff.co.nz.

[…]

[48] Although it has a reasonable argument that Fairfax’s behaviour should have been closer to the terms of the SNAR, it is not possible for this Court to make a ruling on that without a full trial. The issue cannot be and has not been fully examined before me. If an injunction were granted it is likely to end the dispute, the Court looks for a strong argument in favour of the application in such a case. I am of the view that such a strong argument is there for the applicant, Sky, in respect of the automatic playlist function.

[49] It is my understanding that Fairfax has agreed that the automatic playlist function, as it was set up before this case, cannot be defended as fair dealing under the Act. Therefore, any future occurrence of it is likely to be met by a mandatory interim injunction and leave is accordingly reserved to the plaintiffs to bring an application at short notice. The reasons are that this conduct is well beyond the SNAR and outside in my view, any sensible interpretation of fair dealing under s 42(2) of the Copyright Act. There is no realistic possibility of relief between now and the games finishing, this leaves only an action for damages, if the matter had to go to a full trial. Therefore, should this conduct resume justice requires me to impose a mandatory injunction in this regard.

[50] In all other respects, the Sky’s application for interim relief fails.

Costs

[51] I reserve costs. I would observe that it is my assessment at present that the conduct of Fairfax has been significantly modified by Sky bringing this application and the hearing of these proceedings. So that for me, a decision whether or not one party or the other obtains costs is likely to be complicated. I would suggest a solution is better negotiated between the parties. Of course, failing agreement an application for costs can be made to this Court by either party.

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