In Telstra Corporation Pty Limited v Premier
Media Group Pty Limited [2007] FCA 568, the Federal Court refused to grant Telstra (which had an exclusive license from the NRL to show NRL matches on the internet) an injunction against FoxSports News using NRL match highlights audio-visual footage on its website.
The interim hearing focussed on whether the use was fair dealing under s 103B of the Copyright Act.
There was no dispute that the footage used in each Fox
Sports news report on each NRL match represented a substantial part of whatever
copyright might subsist in the total footage of an individual match. FoxSports said, however, that the relevant footage was a fair dealing with an
audiovisual item for the purpose of or associated with the reporting of news by
means of a communication, and hence within s 103B(1)(b).
The length of each of the footage in relation to each match covers a
range of times but the longest were over two minutes of footage from
the match.
Judge Allsop said:
31 The evidence reveals that in other media, that is free to air television
and pay television, there has been over the years, the use of audio visual
footage of a similar nature to the impugned program. Examples include past and
present programs, such as Channel 10’s "Sports Tonight", SBS’s
"World Sport" and "World Game", Channel 9’s "AFL Footy Show" and Channel
7’s "Sportsworld" and "Sportswatch".
32 Similarly, pay television had broadcast news services that include
sporting news, for instance, "SKY News". The respondents submitted that it is
an integral part of free to air or pay television news services to report on
events by showing relevant video footage of a particular sport, such as rugby
league. Just as events are covered in written match descriptions in print
media. Fox Sports News is a species of that form of sporting news which has for
many years been shown on Australian television, and I accept those submissions.
33 It is unnecessary to compare minutely the length of time taken in these
examples of other media, given the respondents’ evidence as to the
impugned broadcasts. It may be, and I do not make a finding about this now,
that even by these standards, that is the standards of pay television and free
to air television, it will be found, that the respondents have, to put it
bluntly, been a little greedy in what they have taken for the dealing to be fair
as well as newsworthy…
36 I accept that there will be a substantial issue on a final hearing as to
the operation of the internet and mobile phones and telephony, including the
nature and character of their structure, and how the public use them. This will
be important in the assessment of fairness in the fair dealing, in the use of
audio-visual footage and in the delivery of news. At an interlocutory level,
however, I am simply not persuaded that there is a case to distinguish delivery
of such programs on the internet and telephony from free-to-air and pay
television, bearing in mind the clear conduct of Telstra in negotiating the AFL
bargain in December 2005.
UPDATE 22 May: Dispute settled
