news Australia’s chief lawmaker has declined and deflected a number of central questions regarding the Federal Government’s policy on online copyright infringement, as the future of the nation’s broad response to the issue of piracy through platforms such as BitTorrent continues to swirl with uncertainty and rumour.

Over the past few months, a number of events have taken place which appear to be signalling the potential for a long-term resolution to the issue of Internet piracy in Australia. For starters, iiNet’s long-running court battle with the Australian Federation Against Copyright Theft has finally hit the High Court and the Federal Department of the Attorney-General has kicked off talks between the ISP industry and content holders.

Amidst these moves, a new player — Movie Rights Group — has arisen and is planning to target thousands of Australians who have allegedly downloaded its clients’ films, using a legal process which both the ISP and content industries appear to approve of, and which the Government has proposed strengthening.

However, as many uncertainties exist as do known quantities. The iiNet court case has not yet been heard in the High Court, the Government’s talks are being held behind closed doors and no record is being kept of the proceedings, and the role of the consumer in the entire decision-making process appears limited. Above the entire issue looms the idea of a ‘strikes’ policy for disconnecting pirates; a system which has already been implemented in France and New Zealand.

In this context, Delimiter sought to put a comprehensive series of questions to the office of the Attorney-General, Robert McClelland, to clarify what the Government’s approach to the issue was. The response in return was sparse.

Although it was specified that the questions were to be answered by the office of the Attorney-General — representing the policy-setting branch of Government — McClelland declined to substantially answer the overwhelming majoriuty of the questions, forwarding most for response to his department, which does not set policy, but only implements it. McCLelland declined to answer questions relating to:

Whether he believed a consumer representative should be present at the talks between ISPs and the content industry

Whether he had personally sought to meet with consumer groups on the issue

Whether he believed sufficient consumer protections were in place to protect from wrongful legal approaches from organisations such as Move Rights Group (a number of wrongful approaches have been made in the US in similar cases)

Whether he believed talks between the ISP and content industries were premature, given the ongoing nature of the iiNet trial

Whether he believed the content industry had done enough to make its offerings available online legally to Australians

Whether he believed a ‘strikes’ policy for disconnecting pirates would conflict with the Government’s NBN plans for universal Internet access

The only question which McCLelland did answer substantially referred to the issue of some of the research he relied upon in a speech he gave to a conference held by the Copyright Council several weeks ago. In the speech, McClelland referred substantially to several reports into the economic consequences of movie piracy, produced by the Australian Content Industry Group and AFACT, in making the case that piracy was a damaging phenomenon.

However, the reports have since their production been discredited by a number of digital rights groups and other online publications. Asked if he was aware of the controversial nature of the reports, McClelland said he acknowledged that both reports outlined a range of economic harm caused by piracy — including gross domestic product losses, jobs foregone and tax losses. However, McClelland “did not endorse or comment on the actual statistics in either report,” the politician noted.

McClelland also gave brief answers to the question of who convened the current industry talks held by his department (noting that it was the department itself and not his office). However, his department has contravened this statement, claiming it was McClelland who requested it initiate the talks.

To all other questions, the Attorney-General’s response was: “It remains the Government’s preference to have an industry-based solution to address online copyright infringement.”

The department

McClelland’s Department of the Attorney-General was quite a bit more responsive than the politician himself when it came to answering central questions about the Government’s policy and approach to the issue of online copyright infringement. However, like McClelland, it also stopped short of providing comprehensive or detailed answers to any of the supplied questions.

On the issue of whether a consumer representative should be present at the joint industry piracy talks, the Department said consumer interests were “very important and will be properly protected”. “The industry will continue to engage with consumer groups and the Department will ensure that consumer protections are integrated into any agreement,” it said. The Department noted it had spoken with consumer groups on the issue of online copyright infringement, but not which groups or when.

On the issue of Australians being targeted legally by organisations like Movie Rights Group, the Department said any industry-based solution to address online copyright infringement would not override consumer protection laws. However, it also noted that “copyright in books, music, films [and] computer games is private property”.

“It is a matter for the copyright owner to decide how to protect their rights in cases of infringement and it would be inappropriate for the Attorney-General or his Department to comment on potential legal proceedings,” the Department wrote.

On the issue of pre-emptive action on the issue before the iiNet High Court case was rectified, the Department said industry stakeholders were aware of the ongoing litigation, and “will no doubt factor this into their negotiations”.

And on the matter of whether it believed the content industry had done enough to explore digital avenues for making its content available to Australians, the department stated: “Online business models for the delivery of content have developed significantly in recent years in relation to both music and film. However, it is a matter for the copyright owner to determine how and when to make their material available to consumers.”

The Attorney-General’s Department has previously declined a Freedom of Information request for the minutes of the last known meeting it hosted between the ISP and content industries on 23 September. For this reason, a new Freedom of Information request has been filed with the Department, seeking the following documents:

A list of all attendees at the meeting

Personal notes of any and all attendees at the meeting from any government agency

Any and all email correspondence related to the calling and conduct of the meeting

Any correspondence between the office of the Secretary of the Department and the Office of the Attorney-General discussing the meeting after it was held.

The full list of questions which Delimiter put the Office of the Attorney-General are as follows:

1. In your speech to the Copyright Council last week, you mentioned several reports into the economic consequences of movie piracy, produced by the Australian Content Industry Group and AFACT. Are you aware that many industry figures consider these reports to be severely discredited, due to what is seen as flawed statistical methodology?

2. The Department of the Attorney-General is currently conducting talks between ISPs and the content industry on the issue of online copyright infringement. Do you believe a consumer representative should be present at these talks?

3. I understand you have met with ISP and content industry representatives regarding online copyright infringement. Can you confirm whether you have met, or sought to meet, with consumer

representatives on this issue?

4. In late August this year, a spokesperson for your office stated the talks had been convened by the Department with a view to advising the office of the Attorney-General on the current state of play with respect to the issue of online copyright infringement. However, since that time, the Department has confirmed the talks may result in an “agreement” between the two sides, and were convened by your office. Can you clarify who convened the talks, and what their aim is?

5. A number of international jurisdictions have implemented a ‘strikes’ policy to curb online copyright infringement. Do you believe implementing such a policy in Australia would conflict with the

Government’s policy aim of providing fast broadband to all Australians under the National Broadband Network?

6. An organisation named Movie Rights Group has signalled its intention to pursue legal action against some 9,000 Australians who allegedly downloaded one of its clients’ films, Kill the Irishman

(more information here). Similar lawsuits in the US have resulted in many innocent consumers (who had not committed online copyright infringement) from being targeted.

Do you believe sufficient consumer protections are in place in Australia to ensure consumers are not unfairly targeted over online copyright infringement?

7. Given that the High Court is currently considering a landmark case regarding online copyright infringement (known popularly as AFACT vs iiNet), are you concerned that any industry or government agreement in this area could pre-empt the High Court’s findings?

8. Australian consumers have repeatedly expressed their discontent with the lack of online entertainment offerings in Australia comparable to the US (for example, Australians do not have access to the Hulu or Netflix platforms). Do you believe the content industry has done enough to explore digital avenues for making their content available to Australians in a timely manner?

Image credits: Paul Brunskill, royalty free