Journalism, Copyright and Fair Dealing: Media Watch vs The Daily Mail

ABC’s Media Watch has ripped into The Daily Mail over long-standing plagiarism allegations. The programme devoted an entire episode, aired on Monday 5 November 2018, to discuss the topic. In the episode Media Watch cited several journalists alleging rampant abuse.

It is alleged The Daily Mail systematically ‘lifts’ and republishes other journalists’ work. This is said to devalue the original article and stymie the publishers’ attempts to monetise the content.

The Daily Mail refused an interview for the programme, but angrily denied the claims in an email. It too claims to suffer the scourge of plagiarism by online competitors.

The scope of the problem

The advent of online media makes it easy to cut, paste or download content. Social media platforms further encourage users to ‘share’ content with their peers. This liberation of publication poses a challenge to control over a work in digital form. Copyright owners face an online hydra, where stamping out infringement can resemble a virtual game of whack-a-mole.

Loss and Damage

Traditionally, journalism relied upon revenue from advertising. Increased online competition and reduction in traditional print have impacted the traditional model. As a result, many mastheads have turned to paywalls and subscriber content to prop up income.

In some cases, it is alleged The Daily Mail has republished content effectively circumventing the paywall. In others, the allegations relate to theft of ‘exclusive’ content. This is said to springboard off the efforts, risk and expense of investigative journalism.

What is copyright?

Copyright is a ‘bundle’ of legal rights that attach to creative works. In Australia, these are legislated by the Commonwealth Copyright Act 1968.

Copyright applies to “literary” and “artistic” works - such as newspaper articles, blog posts and photographs. It also applies to other creative work, such as sound recordings, films and software.

Copyright is the right to reproduce the work, or to communicate or broadcast it to the public. Copyright also embodies the ability to control (and monetise) proliferation of creative content.

Infringement can occur when a reproduction occurs without the permission of the copyright owner.

Moral Rights

The author of a work also enjoys Moral Rights, which include the right to:

• be identified as the author of their work; and
• have their work treated fairly.

Moral rights are personal to the author.

Fair Dealing

The Copyright Act provides exceptions to infringement, known as “fair dealing.” The doctrine is similar to, but much narrower than, the US concept of “fair use.”

One of the exceptions is “fair dealing for the purpose of reporting news.” This allows a third party to reproduce a limited portion of a copyright work, if the third party is reporting news.

42 Fair dealing for purpose of reporting news

(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:
(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or
(b) it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.

What is “fair dealing” is not an exact science; The phrase is not expressly defined in the legislation. There are multiple considerations to whether the exception will apply, such as:

• the length and substantiality of the content reproduced;
• whether the use is on a commercial basis;
• whether the copyright owner is likely to suffer loss or damage;
• whether there is an attribution of the original work and its author.

Several reviews and proposals have recently been made to reform the “fair dealing” provisions. But so far, no amendments have been passed.

Media Watch rightly acknowledges that The Daily Mail‘s alleged conduct falls into a legal grey-area. Without litigation, it is difficult to know whether the “fair dealing” exception applies to a particular instance.

Litigation is inherently expensive and time-consuming, when compared with the value of a single news article. This makes the pursuit of an alleged infringement problematic.