news The Federal Government would “closely examine” the High Court’s judgement in the long-running copyright infringement case won by ISP iiNet over film and TV studios this morning, Federal Attorney-General Nicola Roxon said this afternoon, as she noted that closed-door talks held by her department with industry on the matter would continue.
The High Court this morning knocked back a final appeal by the studios, represented by the Australian Federation Against Copyright Theft. The studios first took iiNet to court in 2009, claiming iiNet had “authorised” its users to download pirated movies and TV over the Internet. However, the court said today, iiNet had no ability to prevent its customers from infringing copyright, and copyright law was not suited to enforcing the laws of content owners through such platforms. Subsequently, AFACT said the loss illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy.
“The Government will examine the High Court’s decision closely,” said Roxon in a brief statement in response issued this afternoon.
The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings on the issue between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved. Subsequent Attorneys-General (Roxon and her predecessor Robert McClelland) have emphasised their desire for an industry-led solution to the issue.
“Industry stakeholders have been meeting regularly during the last year to develop a code of conduct to address the issue of illegal downloading,” Roxon added this afternoon. “The Attorney-General’s Department will continue to facilitate these discussions and we hope that industry will continue to work together to find a range of solutions to illegal downloading.”
However, the meetings held by the Attorney-General’s Department have been less than transparent, and according to iiNet, have been going around in circles.
The Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department. The moves have led to the Australian Greens filing a motion in the Senate requesting that the documents be released. In addition, representatives of consumer groups have been explicitly barred from attending the talks.
This afternoon, iiNet chief executive Michael Malone reportedly said his company might simply back away from the meetings altogether. “My preference would be to walk away now,” he said at a press conference, according to iTNews.
Another key telco involved in the talks, Telstra, this afternoon said in an emailed statement that it remained open to constructive discussions with rights holders, the industry, consumer groups and Government to seek a response to this issue that “appropriately balances the interests of all stakeholders”.
The sole organisation to publicly reveal any information about the talks has been iiNet. Recently, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”
Separately, a coalition of most of the nation’s major ISPs last year proposed a scheme for handling Internet piracy which would see Australians issued with warning and educational notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if they keep on pirating content online. At the time, AFACT declined to comment on the issue, citing the need for the iiNet trial to go ahead.
Consumer input needed
Today another group associated with copyright issues, the Australian Digital Alliance, which primarily represents universities, libraries and some Internet-focused organisations such as Yahoo and Google, said it didn’t believe the battle between ISPs and the content sector was over yet, stating the High Court had “left open the possibility of a targeted legislative scheme to address unauthorised file sharing issues”.
However, the group’s chairman Derek Whitehead issued a warning that any legislative response to the High Court ruling must be carefully balanced and informed by the needs of consumers, as well as the content industries and ISPs.
“The Attorney-General’s Department has been working on an industry solution with the ISPs and content industries for some time. Consumers should be included in these discussions, because consumers, as end users of copyright material stand to be greatest affected by any legislative or industry outcome,” Whitehead said in a statement.
“The ADA encourages the Government to take wide consultation on this issue, and to ensure that consumer representatives are brought into the discussions,” the ADA statement said. “A fundamental issue to be taken into account in any legislative or industry response is the lack of legitimate content available to consumers in Australia. More needs to be done to make content available in an affordable and accessible way.”
The comments echo statements made in January by the Greens.
“What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Greens Communications Spokesperson, Senator Ludlam said at the time. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.”
Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.