Brandis and Turnbull working on joint piracy crackdown policy

The Australian Department of Communications and the Attorney-General's Department have been collaborating in secret on an online copyright infringement policy that looks to include a graduated response scheme, ZDNet can reveal.
Written by Josh Taylor, Contributor

Australian Communications Minister Malcolm Turnbull and Attorney-General George Brandis have been meeting to discuss various proposals for how to crack down on Australians downloading copyright-infringing TV shows, movies, and music, including adapting the Spam Act, and graduated responses as proposed by the Communications Alliance.

According to emails (56MB ZIP) between the Department of Communications and the Attorney-General's Department obtained  under Freedom of Information, ZDNet can reveal that the meetings have been ongoing since Brandis gave a speech in February to the Australian Digital Alliance forum outlining that the government was looking at ways to tackle online copyright infringement, including the so-called graduated response scheme that sees action against repeat infringers increase after multiple warnings, including fines, and in some countries, disconnection from the internet.

Brandis, who describes Australia as "the worst offender anywhere in the world" for copyright infringement, last week revealed that a group of four employees in the department are working on a number of proposals for means to deter the number of Australians using applications such as BitTorrent to share copyright-infringing material online, including one proposal for the graduated response scheme.

The heavily-redacted emails obtained by ZDNet between the two departments reveal that the Department of Communications has also been meeting with the Attorney-General's Department, and a number of other stakeholders over proposals to crack down on copyright infringement.

The involvement of the Communications Department is likely required by the government as it works to bring internet service providers on board for any voluntary scheme implemented by the industry, which players such as iiNet are reluctant to join until copyright holders are willing to pay the costs for such a scheme.

As far back as February, the Department of Communication's assistant secretary for digital economy Jacqueline Daly emailed the Attorney-General's Department's assistant secretary for commercial and administrative law, Andrew Walter, asking who would determine whether the industry code proposed by Brandis in his speech would be acceptable, and asking for a copy of Brandis' speech "so we know what to expect."

Ahead of a meeting later in February, Daly told Walter that there was a "counsel of war meeting" to flesh out proposed policy ideas from the Communications Department.

"Would be sooner but we have the usual volume of panics (plus some moral issues) to deal with," she said.

In March, the two offices then agreed there should be a joint comprehensive brief covering options for addressing online copyright infringement for Turnbull and Brandis. The details of the brief are redacted.

Image: screenshot by Josh Taylor/ZDNet


Walter said the Attorney-General's Department had been preparing "a short paper on some of the legal issues" in March.

In late March, Daly said that Brandis and Turnbull were meeting to discuss the ISP-backed Communications Alliance model for reducing online copyright infringement. The Comms Alliance graduated response model would see users sent "education" and warning notices when it is believed that the user has shared infringing content online, such as a TV show, or movie.

But, unlike other models that require the ISP to take action to stop the infringement, the onus is put on the content rights holders to pursue the individual user in the courts.

Rights holders continue to be reluctant to pursue any model that sees legal cases against individual users, and generally oppose any system where ISPs are compensated for implementing a copyright infringement notice scheme.

Daly also said that the Department of Communications was doing "field work" to find out views on different proposed models, and had been looking to see if the Spam Act could be used as a template for a copyright scheme.

The Spam Act and the Do Not Call Register Act has "graduated response" schemes with four stages to ensure compliance. There are two advise and warn stages, a formal Australian Communications and Media Authority (ACMA) investigation stage, and then enforcement, either in the form of a warning, an enforceable undertaking, an infringement notice with a fine, a court injunction, or prosecution in the Federal Court.

According to the emails, rights holders are pushing for a notification scheme and "injunctive relief".

Fair pricing, "big stick" legal redress preferred

As of April, Daly said the Communications Department had seen arguments for a strategy for dealing with copyright infringement that included a "big stick" legal redress and education notices, access to legitimate forms of content, and fair pricing.

Making fair pricing a priority for the scheme would remove the "Australians are getting done over" factor, Daly said.

Image: Screenshot by Josh Taylor/ZDNet


An options paper was prepared for the ministers in April. ZDNet has sought a copy of the paper.

A spokesperson for Brandis said that no decision had been made on a set policy.

"The government is actively considering a range of options to tackle online piracy. No decision has been made."

Turnbull's office declined to comment, directing ZDNet back to Brandis' statement.

It is unclear whether the two ministers agree on the best way forward for dealing with copyright infringement. While Attorney-General George Brandis has seen the High Court ruling in favour of iiNet in its 2012 copyright case brought against it by the content industry as a thorn in his side, Turnbull has been on the record in his support of the ruling. In a 2012 ABC interview, Turnbull welcomed the High Court's judgment that iiNet did not authorise its users' infringement.

"I think the High Court came to the right decision and I really welcome it," he said at the time.

"It is very, very, very difficult if not impossible for someone that is just selling connectivity, just providing bandwidth to then be monitoring what people are doing."

He said at the time that copyright owners needed to recognise that TV shows put to air will be made available globally at once.

"So the owners of that copyright have got to be in a position where it can be released simultaneously theatrically, or in the case of something like that on Pay TV everywhere. But also, it should be for sale through the iTunes store or various other platforms at the same time," he said.

"And if they can download, they will. Now we’re just kidding ourselves — all they are doing is throwing money away by not making it available instantly."

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