Sky Olympic injunction ruling could take days

Gulnabat Kadyrova, of Turkmenistan, competes in the women's 69kg weightlifting competition at the Olympics in Rio de Janeiro. Photo / AP

Sky Television could have to wait until after the weekend to see whether it wins an injunction against Fairfax over the media company's use of Olympic video.

Justice John Fogarty, who is deciding the injunction bid, has reserved his decision.

He indicated he may deliver it orally tomorrow but said it may not be ready until Monday.

Earlier today, Fairfax questioned if Sky had the legal grounds to bring the injunction.

Fairfax Queen's Counsel David Goddard told the High Court at Auckland that Sky didn't have an exclusive license for the event under New Zealand's copyright law.

That law, Goddard said, defined an exclusive licence as one that excludes all other persons (including the copyright holder) from exercising rights to something.

Sky's broadcast agreement with the International Olympic Committee, however, still gave the global body rights within New Zealand.

Fairfax is opposing Sky's attempt to get an interim injunction, which aimed at stopping the way the media company is using Olympic Games video clips on its website stuff.co.nz.

Goddard argued Fairfax's use of the video was within the fair dealing terms of this country's copyright laws that make exceptions for the reporting of current events.

Sky, which had paid large amounts for its broadcast rights, would have been aware of those fair dealing rules when negotiating for them, Goddard said.

Sky was seeking orders that Fairfax limit its use to two minutes of footage each day but had agreements with some news organisations like TVNZ that they use six minutes, he told Justice John Fogarty.

Only on one occasion had Fairfax used more than six minutes per day.

"It would be difficult to describe any of this as outrageous," Goddard said.

While Sky had described Fairfax as an "outlier" compared to how other media had used its footage, Goddard described his client's actions as "orthodox".

There had been a variety of arrangements over the years as to what constituted fair dealing, he said.

"We have to ask what is fair dealing now within current media environment?" Goddard said.

Fairfax wants Justice Fogarty to reject the injunction bid and for the dispute to be argued at a full trial.

We have to ask what is fair dealing now within current media environment?

Fairfax Queen's Counsel David Goddard

Goddard said that if Sky got its injunction the case would not go any further.

The ruling would influence how future events are treated, Goddard said.

"A line will have been drawn," the QC said.

It was better that the injunction be refused and that the fight go to a full trial where the all facts are presented.

A claim for damages could be made during that trial and also declarations from a judge, Goddard said.

Sky Television argued yesterday that Fairfax's use of Olympic footage directly competes with its own broadcasts and that it needed an injunction to ensure its copyright "was not eaten away and undermined".

Sky's lawyer Julian Miles, QC, said the company had spent millions of dollars for the rights to broadcast the event.

We say the way in which Fairfax has taken our footage and used it in the way they have is not reporting for the purpose of current events, it is essentially for entertainment.

Miles said yesterday that the injunction wasn't an attempt to prevent New Zealanders from watching the Olympics and that Sky had 12 channels devoted to the Games, with about 15 hours of coverage a day being screened on free-to-air Prime Television.

"We say the way in which Fairfax has taken our footage and used it in the way they have is not reporting for the purpose of current events, it is essentially for entertainment," Miles said.

"The exploitation of Sky's footage competes directly with what it paid for," he said.

It damaged Sky's core business and deprived the television network of the full benefit of what it paid for, he said.

"Continuous posting [online] of video clips effectively produces an ongoing highlights package which is the antithesis of news reporting," Miles said.

He said the Fairfax website stuff.co.nz was posting clips of the Games that remain online for as long as the media company chooses.

"You have a continuous mounting montage of highlights," he said.

"It directly competes with continuous filming that Sky has set up on its 12 channels and the free-to-air Prime."

There had already been a dip in the viewer numbers that Sky had anticipated, Miles said.