TVJ’s multi-million dollar win against CVM crucial for all media

One of the attorneys for Television Jamaica Limited (TVJ), which has been awarded a total of $16 million (US$125,975) in damages against its free-to-air rival CVM Television Limited in its copyright lawsuit, said the case serves as a reminder that persons should get permission before using protected material.

"The ruling has clarified the circumstances in which exclusive broadcast rights may be used by a non-rights holder. Perhaps the better approach is to make enquiries of the rights holder and paying the appropriate licence fee," Georgia Gibson-Henlin told The Gleaner.

The award of damages to TVJ was handed down on Monday by Supreme Court judge Justice Bryan Sykes. CVM gave notice of filing an appeal and asked for a stay of payment of the award pending a hearing. Justice Sykes ordered that the stay would be granted pending CVM paying the US$125,975 into an interest-bearing account in the names of the attorneys for both parties within 40 days of the January 9 judgment.

If CVM misses the deadline without getting an extension from the court, then there would be no restriction barring TVJ from collecting the award.

TVJ took CVM to court in 2015 over the use of footage from the World Championships, held in Beijing, China. TVJ had exclusive rights to broadcast the championships and argued that CVM breached its broadcast licence when it used certain content in its broadcast of the programme 'Return to the Nest' and online on social media. It also argued that it suffered losses as a result of the airing of the content by CVM.

Justice Sykes heard submissions, and in August 2016 he ruled in TVJ's favour. The matter then went for assessment of damages.

USED MATERIAL

In a statement yesterday, The RJR Communications Group (of which TVJ is a member) cited the ruling as an important legal ruling for all media in Jamaica.

"This is not just a matter of TVJ winning. The judgment guides us all on specifically what we must not do so as not to breach rights that will be held by other broadcasters in Jamaica from time to time. This is as much a decision about what TVJ can do when it does not have rights, as it is about what our competitors can do when TVJ has rights," said RJR Group chief executive officer Gary Allen.

While noting that use of the footage in CVM's flagship news cast at 8 p.m. did not breach Jamaica's copyright laws, on Monday, in his judgment from the lawsuit, Justice Sykes found that their usage during the programme 'Return to the Nest' was in breach of TVJ's exclusive licence.

In addition, Justice Sykes found that a number of footage posted on CVM's social media accounts violated TVJ's exclusive licence because they were not protected by the fair use provision of the Copyright Act.

"The use of the clips was not for the purpose of fair dealing for reporting a current event. This conclusion applies to the entire series of 'Return to the Nest'," he wrote.

"It matters not whether moving images or still were used. TVJ's exclusive licence covered all images ... . It does not matter that CVM did not get the material from TVJ's feed, once it used material covered by TVJ's licence and the fair dealing defence does not apply, then CVM was in breach of TVJ's rights," Sykes continued.

The statement from RJR also noted that the ruling is crucial to other users of copyright content on various platforms in Jamaica, including on cable, online and social media, that have no rights and no agreements, yet go well beyond what is fair dealing.