The semi-regular rumblings of legal action against Daily Mail Australia for “plagiarising” have been stirring again. Two News Corp journalists tweeted about the Daily Mail rewriting their stories earlier this week, prompting Marque Lawyers and the ABC’s Media Watch to call out for examples.

These recent complaints aren’t the first time the Daily Mail’s reliance on other outlets’ work has come to a head. Last year, freelancer Ginger Gorman tried invoicing the site for her work, published elsewhere, and then rewritten within hours and published by the Mail. The Mail said in response that its rewrite was “fair use” in reporting the news. And in 2014, shortly after the Daily Mail’s local launch, a public spat with News Corp was settled after both companies accused the other of stealing and rewriting their stories.

Could Daily Mail Australia be sued for breaching copyright?

Queensland University of Technology professor of intellectual property Dr Matthew Rimmer said court action would be an interesting test case, to explore the economic and moral copyright provisions under Australian law. The law protects the expression of facts, not the facts themselves, which complicates any claim over a story that the Mail has rewritten and included a link to.

“In terms of economic rights, they can rely on the defence of fair dealing in Australia,” Rimmer said. The fair dealing provision allows news outlets to use copyright material in order to report the news, and is the one the Daily Mail has cited when original authors including Gorman have complained or invoiced for their work.

Moral copyright lies with the author, and Rimmer said there could be issues with the Daily Mail’s use of stories in relation to false attribution — it gives a byline to its own reporters for stories first reported by other journalists, with just a hyperlink to the original. “There could be legal issues in terms of passing off … authors have the right to protect the honour and reputation of their work,” he said. “There may be issues in terms of whether the original author should’ve been attributed.”

Is it likely to get to court?

While Rimmer said a test case would be useful, most issues raised with the Daily Mail in the past have settled before getting that far. And, as well as the costs and risks of going to court, there could be wider implications for the media at large if the fair use provision was challenged.

“These are complex issues because in some way, all the news entities rely on one another for certain things, often with the defence of fair dealing,” Rimmer said. “You don’t necessarily want to provide that strong protection of copyright that all journalists can’t use copyright material in reporting the news … you do want there to be a certain level of tolerated use in terms of the news ecosystem, particularly where there’s breaking news. You want it to be covered by other news entities apart from the one that broke the story.”

That provision, as well, allows journalists to report on otherwise copyright material. “There are instances in which government have brought actions against journalists for breaching copyright when they’ve reported on confidential documents,” Rimmer said. “Journalists have a very mixed interest — interest in protecting their rights but in terms of accessing other material too.”

What about the ethics?

The Media, Entertainment and Arts Alliance, the journalists’ union, is pretty clear on this one. The 10th clause of its code of ethics, which its members are required to adhere to, is “do not plagiarise”. An MEAA spokesman said it was an issue primarily in the control of the publishers. “The republishing of a journalist’s work by another media outlet with only cursory acknowledgement is unacceptable … Our Journalist Code of Ethics makes it clear that journalists must not plagiarise and journalists must have the right to refuse to plagiarise if they are directed to do so by their publisher.”

What does the Daily Mail say?

Executive editor Lachlan Heywood, also the former editor of News Corp’s Courier Mail, told Crikey that his website is no worse than others: “Original Daily Mail Australia content is often rewritten by our competitors — so perhaps you should put the same questions to them? DMA credits the original source and provides a link, which is best industry practice.”

Repackaging and rewriting stories from other news outlets is standard practice for most of Australia’s news websites, and Rimmer said that would have to be considered in any court action. “Some of the questions to be answered could include, what are good practices in terms of news media, is a hyperlink sufficient? Is naming the author sufficient? How does media acknowledge their sources?” he said.

While Daily Mail Australia does produce original content, it relies on other outlets’ work to fill out its content-heavy homepage. Of Daily Mail Australia’s top six news stories on its homepage on Thursday morning, four were re-writes from other publications: One from News Corp’s Herald Sun, one from News Corp’s The Advertiser and one from News Corp’s The other — disturbing — story was from website Asia One.

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