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Scrum down with Sky and TV3

Scrum down with Sky and TV3

My outstanding rugby memory is of being planted 50mm into the ground by a ball landing on my head while I was walking innocently past a school match on my way to hockey practice. I’ve never been the same since. The Rugby World Cup seems a lot safer – and even I watched the Portugal-All Blacks game. But the best action for me so far has been in the High Court. As you know, there has been a great off-field stoush between TV3 and Sky.

TV3 paid a lot of money to win the tender for the exclusive rights to broadcast the cup games in New Zealand. It entered into agreements with Sky and other channels permitting them to use small amounts of footage in their news reporting. However, after the Cup began, Sky started using the footage in other programmes, including The Cup (a specialist World Cup show), The Crowd Goes Wild on Prime and Reunion. Don’t ask me, I don’t watch any of those, but they look awfully like a really attractive target for the TV advertising dollars which would otherwise have gone to TV3.

Not surprisingly, TV3 applied to the High Court asking for an interim injunction to stop Sky from misusing TV3’s footage. In an injunction application like this one, the court decides only the narrow point of whether an injunction is needed now. If necessary, a full trial can take place later.

Now normally, if you want to use somebody else’s copyright work you need to get their permission. That is how copyright works: the copyright owner gets a monopoly over copying and other uses of the work (for a defined number of years) and everybody else has to obtain a licence in order to deal with the copyright work. Only TV3 had the local licence.

Sky tried to rely on an exception in the Copyright Act 1994 that permits “fair dealing” footage for the purposes of reporting current events. It argued that all of its shows used footage of a match only within the 24 hours after the completion of that match. Therefore, its use of the footage was “fair dealing” for the purposes of reporting the news, even though the footage was used on a non-news magazine style show.

The court wasn’t impressed. Sky was quite open that its audience expected “saturation coverage” and the frequent repetition of cup footage also indicated that saturation was indeed Sky’s aim. On the evidence available, Sky’s use was too frequent, and on too many different programmes for it to fall clearly within the news reporting exception. Justice Helen Winkelman, who managed to write an impressive 39-page judgment on the complex issues in four days, didn’t have a lot of difficulty in finding in TV3’s favour, agreeing that the value of the licence to TV3 would be diluted if its audience and advertising revenue were split.

As you will know, the court granted an injunction preventing Sky from using TV3’s World Cup footage in the three programmes. The injunction also limits the frequency of Sky’s use of TV3 footage (on defined groups of channels), and reinforces the point that reporting the news is the only permitted use.

Don’t hold your breath waiting for the substantive hearing. They rarely follow a timely interim injunction, and as TV3 won at such an early stage in the cup, it might well decide it’s not worth claiming damages. Now that’s a lot more interesting than New Zealand v France, isn’t it!

This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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