SKY NETWORK TELEVISION LIMITED V FAIRFAX NEW ZEALAND LIMITED
High Court, Fogarty J, 10 – 12 August 2016,  NZHC 1883
Interim injunction – copyright infringement – fair dealing – s 42 Copyright Act 1994
The plaintiff, Sky Network Television Limited, was the International Olympic Committee’s licensee with rights to broadcast and exhibit the Olympic Games in New Zealand.
The defendant, Fairfax New Zealand Limited, was a media organisation.
The International Olympic Committee had issued a set of News Access Rules which media organisations had to sign up to in order to be accredited media organisations at the Olympic Games. Through agreement with the International Olympic Committee, the plaintiff had the power to issue Supplementary News Access Rules with its approval. The defendant refused to sign up to the plaintiff’s Supplementary News Access Rules which governed the media’s ability to broadcast the plaintiff’s footage of the Olympic Games online.
The Supplementary News Access Rules allowed persons other than the plaintiff to use a total of six minutes of Olympic material per day, with no more than two minutes of Olympic material being used in any one bulletin, and each bulletin being separated by at least two hours. Further, the Olympic material could only be broadcast at least 30 minutes after the conclusion of the live event to which the material related. In the first alternative, the unlicensed party could use a total of three minutes of Olympic material per day, in no more than three bulletins per day, with each bulletin separated by a period of at least three hours. Where the first alternative was used, the material could only be broadcast after the conclusion of the live Olympic event to which the material related. In the second alternative, the unlicensed party could use a total of two minutes of short extracts of Olympic material per day across all digital news services with the exception that the material could only be broadcast at least 30 minutes after the conclusion of the live Olympic event.
The defendant had been streaming footage from Sky’s broadcasts of the Olympic Games on its website www.stuff.co.nz. It claimed that it was entitled to do so under s 42 of the Copyright Act 1994, which provided that fair dealing with a work for the purpose of reporting current events did not infringe copyright.
During the course of the Olympic Games, the plaintiff applied for an interim injunction to limit the defendant’s use of its content.
It was common ground that the defendant’s use of the plaintiff’s material was outside the boundaries of the plaintiff’s Supplementary News Access Rules.
Held, declining the plaintiff’s application for interim relief
(1) Standing of the plaintiff
The fact that the fair dealing provision allowed a person who was not a licensee or an exclusive licensee of a copyright work to make use of a film did not mean that there could be no exclusive licence. It was both the owner of copyright’s rights and the exclusive licensee’s rights that were subject to the fair dealing exception .
The defendant’s argument that the plaintiff could not come to Court without the International Olympic Committee as co-plaintiff overlooked the power of the Court to grant leave. There was no reason for the Court to think that the International Olympic Committee was not supportive of the plaintiff and, the proceedings having been commenced urgently during the Olympic Games, it was unrealistic to expect the International Olympic Committee to turn its mind to litigation in New Zealand. Leave for the plaintiff to bring proceedings was granted , .
(2) Serious question to be tried and balance of convenience
The principal issue in the case was whether the defendant’s conduct could be justified as fair dealing . Fair dealing was a standard the application of which could be and usually was a question of degree . It was impossible for the Court sitting urgently on an application for interim relief to create a bright-line rule to measure whether or not the defendant’s conduct was in breach of fair dealing. Fair dealing was a standard, and not a rule. It could not be applied precisely . However, the Court could identify egregious examples .
Pro Sieben Media AG v Calton UK Television Ltd  1 WLR 605 (EWCA); England and Wales Cricket Board Ltd and Sky UK Ltd v Tixdaq Ltd and Fanatix Ltd  EWHC 575 (Ch) referred to
The Court did not have a reliable understanding as to the extent of use by the defendant of Olympic or Sky material. The Court had received a demonstration which showed that upon viewing of one Olympic video, if the viewer took no steps he or she would then after advertising see a prior news event in a different sport. The submission was made that the viewer could, by waiting through advertisements, see several uploads of Olympic material which had not been taken down. It was not clear the extent to which this was a breach of the Supplementary News Access Rules. However, if there was a blatant disregard for the limits of the relevant News Access Rules and Supplementary News Access Rules to the point where there was gross divergence between the standards in the rules and what the defendant was doing, then the Court would have “seriously considered” granting a mandatory interim injunction against the defendant to prevent that occurring .
Where the granting of an injunction would be likely to end the dispute between the parties, the Court looked for a strong argument in favour of the application. The plaintiff had a strong argument in relation to the defendant’s use of the automatic playlist function on its website, however the defendant had agreed to disable that function . The automatic playlist function was well beyond what was permissible under the supplementary news access rules and outside any sensible interpretation of what was fair dealing under s 42. If this conduct resumed, the Court would grant a mandatory injunction in respect of it .
Red Bull New Zealand Ltd v Drink Red Ltd  NZCA 373 applied.