Aussie Attorney General Pressured on Three-Strikes Secrecy

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Attorney General George Brandis has been put under pressure over behind-the-scenes discussions on the introduction of a three strikes regime to Australia. A largely awkward exchange with the Green Party in the Senate this week only fueled growing feelings that being transparent on negotiations is not high on the Government's list of priorities.

In a speech back in February, Australia’s Attorney-General George Brandis indicated that the Government had plans to crack down on Internet piracy. Not only was consideration being given to the introduction of a “three strikes” style regime, but ISPs could be required to block access to so-called ‘pirate’ sites.

This week, in a session of the Senate Legal and Constitutional Affairs Legislation Committee, the topic was raised by Senator Scott Ludlam of the Australian Greens. With the Attorney General and his team sat immediately opposite him, Ludlam asked Brandis about current Government copyright policy.

“Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks any effective protection against online piracy,” Brandis said.

“Australia, I’m sorry to say, is the worst offender of any country in the world when it comes to piracy, and i’m very concerned that the legitimate rights and interests of rightsholders and content creators are being compromised by that activity.”

Who is helping Brandis shape his anti-piracy opinions?

“Where are you getting your information from to form your views, who are you consulting and through what vehicle are you forming your views that you’ve just presented to us?” Ludlam asked.

“Well, those are my views. I mean, the views that I expressed in the speech to which you referred, legal and philosophical views in particular,” Brandis said.

Ludlam then asked if consumer groups were being involved in the process, as is the case in the United States “strikes” system.

“Have you spoken to any consumer groups, such as Choice or ACANN, who would probably contest your view that a graduated response or three-strikes or any of those kinds of propositions…..”

A clearly irritated Brandis interrupted, but Ludlam wasn’t giving an inch, continuing:

“….or any of those countries that you’ve just listed at the outset that do have some version of those schemes, that actually they’re not working very well in those jurisdictions and there might be other ways to tackle the problem more effectively, but still preserve artists’ rights to be paid for their work.”

Avoiding answering the question again, Brandis said that he and his colleagues speak to stakeholders all the time.

Answer the question – are consumer groups involved?

“Does that include Choice, for example?” Ludlam persisted.

Brandis said that his team has consulted with “industry leaders” in the United Kingdom and the United States to learn from their experiences. That wasn’t the answer Ludlam was looking for.

“I know industry leaders have very strong views on these things, but i’m asking you about groups like Choice or ACANN or others that might represent consumer interests or the public interest,” he said.

“There is a very strong public interest in the protection of private property and that includes the protection of intellectual property,” Brandis responded evasively.

“So you’re not going to answer the question,” Ludlam said rhetorically.

Clearly irritated with the line of questioning and despite being the one to interrupt, Brandis then gave Ludlam a mini lecture on not interrupting him and proceeded, again, not to answer the question. The Greens Senator wasn’t letting go.

“Have you met with Choice or ACAN in the process of forming your views?” he insisted.

As the exchange continued it became very clear indeed that while Brandis was pretty sharp on how his discussions had gone with “stake holders”, he was vague on any discussions with groups that should be involved to protect the public interest.

Is three-strikes still on the agenda?

Switching towards a member of Brandis’ team, Ludlam asked directly whether or not the Government’s copyright task group was looking at a three-strikes style regime to deal with online piracy?

“Yes, that’s one option,” came the response.

However, while the option is being considered, the Government clearly faces problems. In response to Ludlam asking whether talks were underway between rightsholders and service providers, a member of Brandis’ team gave a one word answer: “No.”

The problem, the Attorney General said, stemmed back from the iiNet ruling in 2012. Since then there had been less willingness on the part of some ISPs to come to the table. However, one ISP has been very helpful lately.

“Earlier in the month I had a very long conversation [with executives from] Telstra. If I may say so publicly I would say that Telstra’s contribution to this issue, and their willingness to work to find a solution to the piracy issue, which is really unaddressed in Australia, has been very commendable,” Brandis said.

“We want to see if the various industry participants can be brought to the table and find themselves in agreement rather than having a solution imposed from on high.”

So who is pulling the strings, who is making the decisions?

And then, just before the end of the session, Brandis undermined confidence in government transparency again in response to Ludlam’s questioning on how the issue would now be progressed.

“The matter is under active consideration right now. I had a meeting with certain decision makers in this matter as recently as 7pm last night,” Brandis said.

So who are those key decision makers?

“I’m not going to be disclosing in a public forum who I meet with, senator,” Brandis told Ludlam.

With anonymous “stake holders” and “decision makers” commanding Brandis’ ear, no consumer groups front and center, and only Telsta, the part-owner of pay TV company Foxtel, worthy of praise on the ISP front, a voluntary agreement on strikes in Australia seems as far away as ever.

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