Facts

The second plaintiff was the operator of the TV3 free-to-air channel in New Zealand.  It had successfully tendered for the rights to telecast the 2007 Rugby World Cup.  TV3 broadcast telecasts of the matches and, as broadcaster, it acquired copyright in the broadcast.  Under contractual arrangements with Rugby World Cup Limited (“RWCL”) TV3 assigned its copyright to RWCL.  RWCL in turn granted to TV3’s parent company exclusive rights to broadcast the matches in New Zealand by way of television and radio (as well as broadband internet and mobile phones).  In the judgment, the first and second plaintiffs are referred to as TV3.

The defendant, Sky, broadcast to subscriber audiences. It had been an unsuccessful tenderer for the New Zealand broadcast rights to the Rugby World Cup.  Sky began showing excerpts from TV3’s footage.  These excerpts were of short duration - usually no more than a minute.  TV3 sought an injunction to restrain any use by Sky of these excerpts outside particular news programmes. The principal issue in the proceedings was whether Sky’s use of the footage fell within fair dealing for the purpose of reporting current events under s42 Copyright Act 1994.  For the purpose of the hearing Sky did not dispute that use of the excerpts was use of a substantial part of the work. 

Sky used TV3 footage in a number of different programme formats on:

(a)    Its separate channel Prime;

(b)    In a Sky news programme;

(c)    On Sky Sport Channels 1, 2, and 3; and

(d)    On the Rugby Channel. 

No objection was taken by TV3 to the use of Prime News or Sky News but objection was taken to the programmes 365 Headlines, The Cup, Reunion and The Crowd Goes Wild. The Court accepted that Sky Sport 1, 2, and 3 and Sky Sport Highlights were to be taken as a single offering.  By reason for Sky’s programmes and schedules, Sky subscriber viewers would have access to excerpts of TV3 footage from the Rugby World Cup at intervals of no more than 25 minutes.

Held:

Fair dealing for the purpose of reporting current events

(1)   The correct analysis is to address, as a threshold issue, whether the use of copyright material is for the purposes of reporting current events.  In some cases it may be clear that the material is not being used for that purpose and therefore infringing.  In less clear cases the factors relevant to both this threshold issue and whether something is a fair dealing, may be so indistinguishable or so connected that it is necessary to step back and consider the matter as a composite test.

Pro Sieben Media AG v Carlton UK Television [1999] 1 WLR 605 referred to.

(2)    The statutory language “for the purpose of reporting current events” involves an objective test.  The fact that “news” coverage (the statutory term in Australia) is interesting or even entertaining to some people does not negate the fact that it may be news.  There can be an overlap between news coverage and entertainment but at a certain point, use of footage will cross the line into entertainment and therefore fall outside the fair dealing exception [45, 46].  It was artificial to isolate the copyright material from the rest of the programme and to argue that what was determinative was the nature of the report in which the footage was used rather than the nature of the programme. The purpose for which the footage was being used fell to be determined by reference to the content of the programme and the context in which the material was used.  

            Pro Sieben Media AG v Carlton UK Television [1999] 1 WLR 605; Nine Network Australia Pty Limited v Australian Broadcasting Corp (1999) 48 IPR 333; TCN Channel Nine Pty Limited                  v Network Ten Pty Limited[2002] 190 ALR 468; British Broadcasting Corporation v British Satellite Broadcasting Limited (1992) 1 Ch 141 referred to.

(3)    Fair dealing is a question of degree. The degree to which the challenged use competes with the exploitation of copyright by the copyright owner is a very important consideration but not the only consideration.  The extent of use is also relevant but its relevance depends very much on the particular circumstances.  Whether it is necessary to refer to the copyright material to report the current events in question is also a relevant consideration.  The facts that:

(a)    A competitor of the copyright owner wished to attract readers or viewers was probably not a motive that of itself would mean that use of the material by the competitor was not fair;

(b)   The fact that a broadcaster was a rival did not take the case outside fair dealing.  It was a factor and perhaps in some cases  a weighty factor, but no more than a factor. 

Pro Sieben Media AG v Carlton UK Television [1999] 1 WLR 605 followed; Newspaper Licensing Limited v Marks & Spencer Plc [2001] 1 Ch 257; Associated Newspapers Group Plc v Newsgroup Newspapers Limited [1986] RPC 515; British Broadcasting Corporation v British Satellite Broadcasting Limited [1992] 1 Ch 141 referred to.

(4)    The Cup, The Crowd Goes Wild and Reunion were magazine programmes and the footage used in them could not be described as occurring in the context of current events. By contrast, 365 Headlines was a sports news update in format.

(5)    TV3 had a strong case that the use by Sky of the TV3 footage inThe Crowd Goes Wild, 365 Headlines, Reunion and The Cup was not fair dealing.  The footage used in The Crowd Goes Wild, Reunion andThe Cup was not reporting current events.  When considering whether the use was fair, the rate of repetition of TV3’s footage across all of the programmes and the use of that footage in magazine style programmes, unfairly undermined TV3’s ability to exploit its copyright. That factor was not outweighed by the public interest.  Sky was achieving an intensive level of broadcasting of TV3 sourced footage. The use of the material in magazine programmes would inevitably compete with TV3  in a key area that TV3 was targeting. Sky’s coverage went far beyond what was necessary to meet the public interest. 

Balance of convenience

(6)    Damages would not be an adequate remedy for TV3. Continued use of the footage by Sky at the rate and in the manner occurring would diminish the anticipated benefit from TV3’s investment in the exclusive rights as to both the TV3 brand and viewing numbers.  A flow on consequence was a reduction in advertising revenue TV3 might reasonably have expected to earn by virtue of a stronger brand and increased viewer numbers. 

(7)   Sky knowingly took the risk as to validity of its claims.

New Zealand Farmers Co-op Association of Canterbury Limited v Farmers Trading Co Limited No. 1 (1979) 1 TCLR 18 referred to. 

(8)   TV3 had not engaged in disentitling conduct of its own in showing Sky footage on its own programmes. 

 Injunction

(9)    An injunction was granted to restrain the use of TV3 footage in magazine style programmes and in addition:

(a) The defendant should not use TV3 broadcasts in more than three news programmes or sports news programmes in each 24 hour period on each of Sky Sport 1, 2, 3, Sky Sports Highlights and the Rugby Channel;(b)    The defendant should not use the TV3 broadcasts:

•  in less than three hourly intervals (calculated from the start to the start of the programme containing the TV3 broadcast) on the Rugby Channel; and
• at less than three hourly intervals (calculated from the start to the start of the programme containing the TV3 broadcast) on Sky Sport 1, 2, 3, and Sky Sport Highlights, for this purpose to be treated as one.

No orders were made as to the length of TV3 broadcast material that might be used as Sky had a clear understanding of the need to ensure that the excerpts used were to be brief