WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297
Contract; contents; terms; construction and interpretation of terms.
Facts: The Nine Network Australia (Nine) entered into a contract with the WIN Corporation in terms of which Nine granted WIN an exclusive licence to broadcast several of its television channels in the areas covered by the WIN stations. Nine continued to broadcast the same channels by free-to-air transmission in other areas. The dispute arose when Nine started live-streaming the specified channels. The live streaming extended into the areas where WIN operated. WIN contended that it’s ‘exclusive’ right to ‘broadcast’ the specified channels in its areas prevented Nine from live-streaming those same channels into those areas.
Issues: Did the ‘exclusive’ right to ‘broadcast’ granted by Nine to WIN include both free-to-air broadcasting and live-streaming?
Decision: On appeal, the NSW Court of Appeal held that the exclusive licence applied only to free-to-air broadcasting.
Reason: The decision depended on whether the process of live-streaming is within the meaning of the word ‘broadcast’. The court found that there is no single fixed meaning of ‘broadcast’. On analysis, the court found that the agreement in question only granted WIN an exclusive licence to broadcast Nine’s programs by means of free-to-air technology and that the ‘exclusive’ nature of the licence did not extend the agreement to other technologies such as live-streaming. The ‘commercial purpose’ of the agreement did not affect this conclusion.