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

TVNZ CEO Kevin Kenrick says Sky seems to want to limit how One News tells the news

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'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, says TVNZ is 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."

Mr Kenrick says as a sports content rights-holder, TVNZ supports 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 says. "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."

Mr Kenrick says he hopes a resolution can be reached through "good faith" negotiations but was open to a judicial process if that was the only way to reach certainty.

Sky TV spokeswoman Kirsty Way says 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.

Ms 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, Ms Way says that depends on the content. "If it is a 100-metre race, showing 10 seconds would be the whole event," she says.

Rugby is the country's biggest sport and one of the "biggest outliers" in terms of fair dealing use, she says. 

But Sky hopes that establishing certainty around fair dealing use for rugby will provide a guideline for other sports also covered by its extensive content rights.

In the interim injunction application, Justice John Fogarty ruled it is impossible to decide what is fair use in a short hearing. In an oral decision he says although Sky has 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 isn't possible for the court to rule without a full trial.

Ms Way claims fair dealing use on the Stuff website dropped dramatically around the time of the injunction hearing but it was "short-lived."


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