news The Department of the Attorney-General has confirmed talks it is hosting behind closed doors between Internet service providers and the entertainment industry could result in an “agreement” between the two warring sides that would govern how Australians pirating content through platforms such as BitTorrent would be dealt with in future.

In late August this year, the department confirmed it had invited ISPs and content owners to meet with officials to discuss the online copyright infringement landscape. At that time, a spokesperson for Attorney-General Robert McLelland stated the talks had been convened by the Department with a view to advising McLelland on the current state of play with respect to the matter.

However, today the department issued an updated statement changing the way it described the talks, and noting an “an agreement” between the two sides could be on the table. Despite consistent statements by McLelland’s office that the meetings were initiated by the department, it appears the stimulus for the meeting had come from McLelland himself.

“The Attorney-General asked the secretary of his department to convene a meeting with key industry stakeholders to discuss options for an industry response to illegal file sharing,” the department said today. “That meeting was held in Sydney on Friday 23 September.”

“Constructive industry discussions had already taken place, prior to the meeting on Friday, to explore an industry agreement to address the problem of online copyright infringement,” the department continued. “We understand that industry had already engaged with consumer groups in those discussions. Industry has made a lot of progress in their consultations.”

According to The Australian newspaper, a number of the nation’s top telcos, including Telstra, Optus, iiNet and so on were invited to the meeting, although the chief executives of Telstra and Optus met separately with the departmental secretary on the matter. Industry associations also attended, and content owners were represented by organisations like the Australian Federation Against Copyright Theft and the Australian Content Industry Group.

However, so far none of the parties involved have been prepared to state what precisely is being discussed at the meetings, although Delimiter has filed a Freedom of Information request with the department, seeking the minutes of the meeting. The department has acknowledged it will respond to the request before 26 October, although it is yet unclear what its response might be.

The issue is particularly contentious at the moment due to the ongoing court case between iiNet and the Australian Federation Against Copyright Theft, which is slated to hit the High Court, in AFACT’s second appeal following unsuccessful rulings, later this year. AFACT is attempting to hold iiNet responsible for the piracy actions of its users.

In a statement this week, Pirate Party Australia President Rodney Serkowski said it was concerning that the talks were being held behind closed doors and without the involvement of the public. “When meetings are convened in secret and exclude important stakeholders and civil society, it compromises the integrity of our democratic processes,” said Serkowski. His colleague, acting secretary Simon Frew, added:

“It is deeply concerning. To allow big media a free hand in drafting copyright legislation and dictating terms of enforcement without consulting other stakeholders will result in laws that benefit only big media at the expense of artists and consumers.”

Today, the Attorney-General’s Department said that all parties at the meeting had acknowledged that “consumer interests are very important and should be protected”.

“The industry will continue to engage with consumer groups in its discussions and the Department will seek to ensure that consumer protections are integrated into any agreement,” the department stated. “Representatives of Internet Service Providers and copyright owners have agreed to continue talks and to meet with the Department again in a few months. As this is the first meeting , it is envisaged that consumer representatives will be invited to future discussions.”

There is also speculation in the industry that one potential resolution to the issue of online piracy could be the implementation of a so-called ‘strikes’ system, which would see internet users disconnected after content owners had complained a certain amount of times and provided evidence that a certain user was committing copyright infringement online. Such systems have already been implemented in countries such as New Zealand and France.

So far, the ISP industry has resisted implementing such a system in Australia, although a number of ISPs — such as Exetel, for example — have already voluntarily implemented a system whereby the receipt of a certain number of complaints will eventually lead to a request for a customer to churn to another ISP. AFACT has signalled to ISPs that it wants an “automated processing system” for copyright infringement notices to be distributed to ISP customers.

The Pirate Party’s Frew warned there were problems with such a framework. “There are huge civil liberties and human rights issues in any enforcement framework,” he said. “The termination, suspension or limitation of access upon allegation or even violation of copyright, in an ill-conceived attempt to prop up failing business models, at the expense of artists and consumers is completely unacceptable.”

opinion/analysis

Two things disturb me here. Firstly, that these talks are going on behind closed doors, without any input from the public. We’ve seen this approach from the Attorney-General’s Department before (on the issue of data retention of customer information by ISPs for law enforcement). I feel very strongly that the issue of online copyright infringement should be the matter of a public inquiry — and certainly after the iiNet/AFACT case is settled.

Secondly, I am very disturbed that iiNet is attending any talks with AFACT outside of the courtroom. Frankly, any time the pair speak at the moment, given that their case is currently before the High Court, it should only be through their respective lawyers.