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Digital Rights, News - Written by Renai LeMay on Thursday, April 17, 2014 12:41 - 17 Comments
Anti-piracy lobbyist enjoys cozy email chats with AGD Secretary
news A key lobbyist for the anti-piracy group originally known as the Australian Federation Against Copyright Theft enjoys a congenial email relationship with the secretary of the Attorney-General’s Department and other senior officials, a Freedom of Information request has revealed, with the lobbyist regularly using the channel to pass on anti-piracy propaganda.
Neil Gane (pictured) is a name well known to those who follow news around digital rights in Australia. The executive has been involved with several representative organisations focused on enforcing intellectual property rights locally, including the Motion Picture Association of America and the Australian Federation Against Copyright Theft, with Gane acting as AFACT’s main spokesperson in its high-profile High Court piracy battle against Internet service provider iiNet. AFACT re-branded its operations to the Australian Screen Association in mid-2013 (PDF), with Gane continuing to lead the group.
However, what the Australian public may not have been aware of is just how close the executive’s links to the Attorney-General’s Department is. The department is the primary body in Australia responsible for overseeing the development of intellectual property law, and has regularly hosted talks between the ISP industry and content owners on intellectual property.
Last week technology media outlet ZDNet released the results of a Freedom of Information request which it had failed with the department. We recommend you click through for ZDNet’s article on the subject.
The returned documents (which you can download in full in ZIP format) include a number of emails sent directly to Gane to senior departmental bureaucrats, especially Matt Minogue, the first assistant secretary of the department’s Civil Law division, but also including Roger Wilkins, the over-arching Departmental Secretary who has held the post since September 2008.
In the emails, sent late last year, Gane includes a number of resources, including articles and reports, that directly support the argument being made by rights holders in Australia such as TV and film studios that new legislation or regulations should be enacted in order to deal with the issue of Internet piracy.
Some examples of the documents sent to the bureaucrats by Gane include:
- A UK Commons report on ‘Supporting the Creative Economy’
- University of Ballarat Research examining advertising on sites which may promote copyright infringement
- An article written by musician Chris Whitten discussing piracy
- An opinion piece by former Queensland Premier Peter Beattie, as part of his role representing cinema owners
- Delimiter coverage of Beattie’s article
- A report on copyright modernisation produced by the Canadian Government
In most cases, Gane has used the documents to push the case by content owners that Australia needs to take a tougher line on Internet piracy.
In one email, Gane wrote, he had attached a Canadian Government ‘request for input’ in which the country was seeking views on what regulations stakeholders felt were warranted in terms of the country’s plans to put in place a ‘notice’ regime for copyright infringement, as has been proposed by various parties in Australia.
“I thought you would find it interesting that the Canadian Government has not succumbed to pressures from the ISP community to incorporate into the document a free-paying structure similar to the NZ or the UK,” wrote Gane.
“It is anticipated that the major ISPs and others will respond with continued advocacy to prescribe fees, and other ways to restrict the application of the regime, but this anticipated statement in the consultation document is a very strong marker of the Canadian Government’s intended direction. Even the fact the request is being made through an informal request to stakeholders, as opposed to the ordinary regulation consultation process, is an indication (according to my Canadian colleagues) of the Government’s direction to move forward expeditiously on this issue.”
News of the close relationship between Gane and Minogue and Wilkins comes as the department and Attorney-General George Brandis appear to be ramping up discussion about Internet piracy issues in Australia.
In In 2011 and 2012, the Attorney-General’s Department hosted talks between the ISP and content industries about the issue of online copyright infringement, with the stimulus for the talks appearing to come from the department itself in the form of departmental secretary Roger Wilkins, and not the Australian Labor Party, which was in power at the time. However, despite the fact that the ISP industry proposed a voluntary industry code to deal with the issue, the talks eventually collapsed, with major ISP iiNet stating that discussing the issue with the content industry was like “talking to a brick wall”.
The 2011 and 2012 talks explicitly blocked consumer representatives from attending the talks. A number of journalists and digital rights groups fought a furious and protracted Freedom of Information battle with the department just to get the most basic information about the meetings, which were held behind closed doors and involved the largest companies in the ISP and content industries. It is still not clear what was discussed, as the department believes disclosure of the agenda to be contrary to the public interest.
After nine months, the department eventually did invite at least one dedicated consumer representative to the talks — the Australian Communications and Consumer Action Network, which the Government directly funds. But at least one of its representatives was quickly forced to step out, due to a conflict of interest which saw them also representing rights holders.
In early February this year, new Coalition Attorney-General George Brandis gave a major speech in which he re-opened the issue. At the time, Brandis appeared to back a scheme proposed by a coalition of most of Australia’s major ISPs in November 2011 which would see the issue of online copyright infringement handled through Australians being issued with warning 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 the behaviour continued. iiNet has subsequently pulled out of the scheme.
However, Brandis subsequently upped the intensity of his discussion on the issue. In late February the Attorney-General threatened to introduce legislation to deal with the issue of Internet piracy in Australia unless the ISP and content industries can agree on a voluntary industry code to deal with the issue.
And several weeks ago other elements of the content industry intensified its public pressure on the issue, telling media and marketing site Mumbrella that all options for dealing with Internet piracy were on the table, from court orders to target pirating users, to ‘three strikes’ mechanisms and website blocks.
The news came as consumer group CHOICE has recently severely criticised Brandis for his comments re-opening the Internet piracy debate, and particularly his mention of a “graduated response” scheme, which could see users hit with a series of warnings before facing penalties for copyright infringement.
“Three strike schemes have proven to be ineffective and costly in other countries. They have also undermined the rights of consumers to due process,” said CHOICE CEO Alan Kirkland in a statement. “If implemented in Australia, these measures would push up the price of internet access without any impact on piracy.”
“Nobody supports internet piracy but punishing consumers is not the answer. The best way to stop piracy is to make it easier for Australians to pay for content like movies and television series at internationally competitive prices. The main driver of piracy is frustration, as Australians look overseas for flexible, affordable and timely content. Piracy in Australia is driven by a market failure, plain and simple. The Government should be embracing the internet as a source of innovation and development, not restricting it.”
Well! If I knew that Neil Gane was forwarding my articles on Internet piracy directly to top-level bureaucrats in the Attorney-General’s Department, I might have been a little more careful how I worded them ;) At the very least it appears as though Gane is a fan of my work, telling Matt Minogue that my piece about Peter Beattie’s comments was “surprisingly balanced”.
Setting this aside, I am quite disturbed by what we are seeing here. We now have direct evidence that the highest level bureaucrats within the Attorney-General’s Department are being fed a constant feed of information from anti-piracy lobbyists such as Neil Gane. At the same time, the department has consistently sought to block consumer representatives and the media from knowing what’s going on with respect to its secretive anti-piracy talks.
I’ve put my view about this previously on the ABC’s The Drum site. I wrote in late February:
“Once again, the Federal Government has decided that something absolutely must be done about the pesky issue of internet piracy of popular TV shows and movies. And once again, it looks like the people most affected by any action on the issue – Australian consumers – are being completely locked out of the conversation.
There is no doubt that the Australian public does have views about internet piracy, and on both sides of the debate. A poll by Essential Media this week found 38 percent of the population, predominantly Coalition voters, supported government action on the issue, while 42 per cent, predominantly Labor and Greens voters, opposed it.
But we’ll never know quite what those views are, especially the nuanced details, unless the Federal Government starts discussing the issue openly and involves consumers and their representatives in these kinds of talks. Massive corporations and government bureaucrats should not be able to decide the future of Australians’ access to content without the ordinary punter having their say too. The only way to characterise that situation would be “undemocratic”.
I wonder if Gane would do me the favour of forwarding my article on the Drum directly to Roger Wilkins and Matt Minogue. Somehow I doubt it.
Image credit: Delimiter
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