Wednesday, May 02, 2007

Aussie Court Gives Free Kick to Fair Dealing

One frequently hears that fair dealing provisions in non-U.S. common law countries are more restrictive than U.S. fair use. An April 27th opinion by Judge Allsop in the Federal Court of Australia, permitting the use of up to two minutes of National Rugby League broadcasts under fair dealing challenges that view. The opinion is short on analysis, but sensitive to news reporting interests. Here is an excerpt from an article from the New Zealand Sunday Star Times:

Precedent set for media free-for-all

By MICHAEL DONALDSON - Sunday Star Times | Sunday, 22 April 2007


A court judgment in Australia over the use of online video highlights is being watched carefully by the International Rugby Board in the wake of its controversial decision to limit what news organisations can place on the internet.

Last week in Sydney, telecommunications giants Telstra took a huge hit when they failed to stop Premier Media Group, known as Fox Sports, from broadcasting National Rugby League (NRL) highlights online and onselling the footage.

Telstra paid a lot of money to the NRL for the exclusive rights to show five minutes of footage on their website and 3G mobile phones. They were trying to limit other organisations' usage of the footage to 45 seconds per game and 90 seconds for each round.

The IRB want to do much the same with highlights packages from the Rugby World Cup but have been been more stringent in the limitations they are applying, including telling news websites like tvnz.co.nz or stuff.co.nz they cannot use any video highlights at all unless they pay for them.

In the Sydney case, Premier Media Group argued they had a right to use the NRL footage on their websites as news reporting under the fair dealing provisions of the Copyright Act.

The interim court decision in Sydney means non-rights holders on rival websites can continue to show two minutes of NRL action without penalty and for an unspecified time after the event if they are reporting news.

1 comment:

Mike Clarke said...

William, I thought you might be interested to know that although the interlocutory application for restrictive orders by Telstra was rejected by the court (on a prima facie basis) as blogged by you, the case was recently settled between the parties with Fox Sports agreeing to limit its highlights to 105 seconds (web) and 90 seconds (phone) per 80 minute game. Note an agreed exception to the cap was in cases of extreme newsworthiness. As all parties had mutual and overlapping interests in the Australian NRL competition which would have provided additional motivation for the settlement, the actual limits agreed on are not necessarily generally applicable in isolation from this commercial reality.

I blogged on some interesting twists in the hearing here. I must say your quoted article headline "Precedent set for media free-for-all" does not really reflect the actual situation. No real precedent was set and the position of the court merely affirmed existing interpretation of fair dealing principles in Australia. I can afford Mr Donaldson some dramatic license to sell some papers, but really!

I would only go so far as to agree Telstra may well have paid too much for its "exclusive" if it had not factored in to its considerations the likely use others could make under fair dealing.

Keep up the great blog! Cheers, Mike.