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Senate Estimates: Who's advising Brandis on copyright policy?

Estimates & Committees
Scott Ludlam 28 May 2014

Scott asks the Attorney General and his department who is providing his advice on copyright policy, who he has spoken to and what his departmental task force is investigating.

CHAIR: Senator Ludlam, you have 15 minutes.

Senator LUDLAM: Thank you. Can we bring forward anyone in the room who has expertise around copyright policy. I will probably direct some of these questions to you, Senator Brandis. Given a speech that you made in February and subsequent media commentary around government policy on copyright, can you illuminate us? There was reporting earlier this year, in February, subsequent to your speech to the ADA, I think, that you had taken a couple of propositions to cabinet on graduated response.

Senator Brandis: No, I did not say that. If I saw that reporting at the time, I have forgotten it. In any event it is incorrect. I have taken no submission to that effect. 

Senator LUDLAM: It is actually the second time today I have heard that. Let us start from a clean slate then: what is government's policy and what is happening on copyright policy? 

Senator Brandis: My attitude to this is broadly as is set out in the speech that I gave to the Australian Digital Alliance, which was-as you are probably aware, Senator-only a day or so after the ALRC report was received. 
That report is under consideration. As we said at the time of the election last year, as a matter of fact, the government is of the view that there does need to be reform to copyright. One of the issues- but it is not the only issue which has been exercising my min-is piracy. Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks effective protection against online piracy. Australia, I am sorry to say, is the worst offender of any country in the world when it comes to piracy, and I am very concerned that the legitimate rights and interests of rights holders and content creators are being compromised by that activity. You were not here for the Arts estimates, Senator, but I should tell you that of all the communities who were most concerned about this none is more concerned than arts practitioners-singers and film makers, people in those industries who see the fruit of their creative endeavours being stolen through piracy. So we want to do something about that. 

Senator LUDLAM: The ALRC was precluded from dealing with questions of piracy and illegal file sharing, so it did not address the question at all. 

Senator Brandis: The ALRC reference was a reference of the previous government. 

Senator LUDLAM: Yes, I know. But it did not address the piracy question. I might set aside the ALRC's review for the moment, given that time is short, and concentrate on the piracy question. Where are you getting your information from to form your views? Who are you consulting and through what vehicle are you forming your views, as you have just presented to us? 

Senator Brandis: Those are my views, Senator. The views that I expressed in the speech to which you referred are legal and philosophical views. In particular, I want to stress a point I made in that speech: the principles governing the protection of intellectual property, and the reasons we do that, do not change merely because the platforms change. 

Senator LUDLAM: I was not suggesting that they did. 

Senator Brandis: But you asked me where I got my views from. That is my view. I do not know; I have got that view on the basis of more than 40 years' reading about law and philosophy, I suppose. 

Senator LUDLAM: Have you spoken to any consumer groups, such as CHOICE or ACCAN-who would probably contest your view that a graduated response, or three strikes, or any of those kinds of propositions- 
Senator Brandis: Well, I am very- 

Senator LUDLAM: I had not finished my question, Senator Brandis-or to any of those countries that you just listed at the outset that do have some versions of those schemes? If that is actually not working very well in those jurisdictions then there might be other ways to tackle the problem more effectively that still preserve artists' right to be paid for their work. 

Senator Brandis: Either I, or my office, like Mr Lambie, who has become something of an expert in this field, speak to stakeholders, from all points of view, all the time, and we have been doing that well. Since we have been in government we have been doing it, and before that too, while we were in the opposition. I am very Wednesday, familiar with this debate. I have done a lot of reading about it. You asked about individuals; I doubt that there is a stakeholder group who, at one stage or another, has not either spoken to or communicated with me or my staff. 

Senator LUDLAM: Would that include CHOICE, for example? 

Senator Brandis: Mr Wilkins reminds me that when Mr Wilkins and I were recently in the United States and the United Kingdom, we consulted with industry leaders in those countries to learn from the experience in those jurisdictions as well. 

Senator LUDLAM: I know industry leaders have very strong views on these things. I am asking you about groups like CHOICE or ACCAN or others who might represent the consumer interest or the public interest. 

Senator Brandis: I am sorry, Senator Ludlam; you say 'the public interest'-there is a very strong public interest in the protection of private property, and that includes the protection of intellectual property. 

Senator LUDLAM: Sure. You are not going to answer my question, are you? 

Senator Brandis: You asked what I had done to inform myself about the public interest. 

Senator LUDLAM: I have asked you twice whether you have met with CHOICE. 

Senator Brandis: You keep interrupting me, Senator Ludlam. Let me finish my answer please. If you choose to interrupt me then you cannot expect to get an answer. Let me answer your question. You identify the consumer and the public interest as if it excluded the right of content creators and people in the creative industries to protect the fruits of their intellectual and artistic endeavour, and I challenge that entirely. There is a very strong public interest in Australia doing that. That is an interest that the government is very concerned to protect-not just to protect those individuals but to protect the public interest of all Australians in having a thriving, creative sector. 

Senator LUDLAM: Have you met with CHOICE or ACCAN in the process of forming your views? 

Senator Brandis: I cannot tell you whether my office has done so. I imagine they have. 

Senator LUDLAM: 'Have you?' was the question. 

Senator Brandis: I cannot remember whether I have done. I may well have done because I have been involved in this debate for several years. 

Senator LUDLAM: I am talking about: in the formation of the speech that you gave to the ADA in February. You cannot recall? 

Senator Brandis: No, that is not what I said. I said: I have been involved in this debate for several years and over those several years I have met with numberless stakeholders from all points of view, so I imagine I have but it may have been a while ago. In relation to the preparation of the particular speech about which you asked me, it is really not my practice to write speeches on the back of meetings with stakeholders. If you have read that speech- 

Senator LUDLAM: I have. 

Senator Brandis: you will see that it is a conceptual speech rather than a speech that goes into specific policy detail. 

Senator LUDLAM: Is there a task force or a particular working group or unit-I will let you choose the most appropriate language-within the department that is working on copyright reform at the moment, either the narrow issues that I am questioning you with here or the broader issues? 

Mr Wilkins: There is certainly a group of people who are working on copyright issues. 
Senator LUDLAM: Great. How do we identify that group? What is their formal standing? 

Mr Wilkins: What do you mean by, 'How do we identify them?' 

Senator LUDLAM: What is their formal standing? 

Mr Minogue: It is in the civil law division of the department. Given the comments the Attorney and government have made, we took a group of people offline to basically have the capacity to do some fresh thinking about copyright. It is essentially an internal working group. 

Senator LUDLAM: What is its title? Who is its secretary? 

Mr Minogue: It does not have a secretary. It is just a group within the department. 

Mr Wilkins: It is part of the department. 

Senator LUDLAM: I have been led to believe that there is some kind of formal task group that had been stood up to examine these issues. You are telling me that is not the case? 

Mr Wilkins: I think it is semantics actually. There are a group of people who are working on this stuff.

Senator LUDLAM: And what is the name of that group? 

Mr Walter: They do not really have a formal title. There are four people. They work in my branch. We are calling them the copyright team at the moment, for want of a better phrase. 

Senator LUDLAM: Presumably they are examining, among other things, some of the issues that I have been discussing with the Attorney. 

Senator Brandis: I am not sure what issues you have been discussing, because, although you have been asking me about my views and who I have met with, you actually have not identified any particular issue at all in your question. 

Senator LUDLAM: You have not been paying very close attention. I asked you about graduated response and- 

Senator Brandis: You mentioned graduated response once, as a proposal that is favoured by some. Is that what you mean when you talk about the issues? There are a lot of issues here. I am happy to talk to you about them but- 

Senator LUDLAM: Let us just stick to that one. 

Senator Brandis: Yes. What is your question? 

Senator LUDLAM: Is the task group examining graduated response as a potential solution to piracy or illegal file sharing? 

Mr Wilkins: Yes. That is one option. 

Senator LUDLAM: That was easy, wasn't it? 

Senator Brandis: I don't know why you are being sarcastic towards my officials. 

Senator LUDLAM: Because there seems to be a certain amount of ducking and weaving. 

Senator Brandis: No. There is no ducking and weaving. 

Senator LUDLAM: All right. Let's proceed. 

Senator Brandis: If you ask specific questions, you will get specific answers. 

Senator LUDLAM: I am attempting to. Let's proceed. Under, I think, the previous two or maybe three Attorney-Generals under the former government, there were quite active consultations-which I think you were involved in, Mr Wilkins-between rights holders and internet service providers. Are those talks continuing in any shape? 

Mr Wilkins: And consumers. ACCAN was part of that too. 

Senator LUDLAM: Eventually. Initially they were not. I am reasonably familiar with the history of this one. 

Mr Wilkins: Well, they were part of it, weren't they, then? You know that. 

Senator LUDLAM: Eventually. 

Mr Wilkins: I am not sure what 'eventually' means. 

Senator LUDLAM: One of them had to conflict themselves out, I believe, or maybe both of them. But it is all right. Let's not quibble. Are those talks still afoot? 

Mr Wilkins: No. 

Senator LUDLAM: They are not? 

Senator Brandis: I think, Senator-this is not really a political point-if you have followed this issue you would probably be aware of a decision by the High Court called the iiNet case- 

Senator LUDLAM: I am very well aware of it. 

Senator Brandis: which was delivered in June 2012. I think it is fair to say that, after the High Court delivered that judgement, not quite two years ago, a lot of the pressure on the ISPs to come to the table went away because the ISPs had a very comprehensive victory in the iiNet case. I do not say this about all of the ISPS, but certainly in relation to some of them, I think, both the previous government and the new government have found that, since the iiNet judgement came down, there has been less willingness on the part of some ISPs to come to the table. That being said, I do not want to say that that is the case in relation to all of the ISPs. For example, only earlier in the month I had a very long conversation with Mr Thodey and Mr Shaw from Telstra and, if I may say so publicly, I think 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. 

Senator LUDLAM: Senator Brandis, you did bring quite a sense of urgency to the piracy question in your speech to the ADA, so what- 

Senator Brandis: You might think so. I would not use that word to characterise my speech. I think it is an important issue. It something that the government is addressing, but of course we want to get the right answer. It is a contested policy space and, being a Liberal government, what we want primarily to do is 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 in the way that some would have had it. 

Senator LUDLAM: I would call this a rare moment of agreement between us. So what is the government actually doing to progress the issue, if there are talks afoot? 

Senator Brandis: The matter is under active consideration right now. I had a meeting with certain of the key decision makers in this matter as recently as seven o'clock last night. 

Senator LUDLAM: Who were those key decision makers? 

Senator Brandis: I am not going to be disclosing in a public forum who I meet with, Senator. 

Senator LUDLAM: Well, why bring it up at all? 

Senator Brandis: Because I am using that to illustrate the point- 

CHAIR: Under very active consideration. 

Senator Brandis: that this is a matter- 

Senator LUDLAM: This is an active consideration, okay. 

Senator Brandis: with which I have been seized more than, I think, any other issue in the last fortnight. This is very, very actively being pursued by the government right now. 

Senator LUDLAM: Okay. 


CHAIR: That is your time, Senator Ludlam. We will come back to you later.

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