Prime Minister Malcolm Turnbull has shifted responsibility for copyright from Attorney-General George Brandis to new Communications Minister Mitch Fifield, which could lead to a shift in the online piracy debate.

Responsibility for classification and copyright will move from the Attorney-General’s Department to the Communications Department, after a tumultuous two years under Brandis’ thumb. This includes responsibility for the Copyright Act. The move was announced in an administrative arrangements order after the swearing-in of Turnbull’s new ministry.

Brandis’ two years as the minister responsible for copyright has been a very busy period, despite the fact that when specifically asked before the 2013 election whether he had plans to crack down on online copyright infringement, he said the Coalition had no policy.

In February 2014, in part as a response to the Australian Law Reform Commission’s report on copyright reform for the digital age — a report that specifically avoided talking about online piracy — Brandis announced the government would investigate a “legal incentive” for internet service providers to crack down on their customers downloading “illegal” copies of TV shows, films and music online.

By December, the government announced plans to get the industry to develop a code to require telcos to send out up to three notices per year to copyright-infringing customers, and, after that, to allow rights holders to obtain a court order to get repeat infringers’ details, potentially to allow rights holders to sue.

That voluntary code was registered with the Australian Communications and Media Authority in April, but it still isn’t in effect, essentially because copyright holders and telcos are at a stalemate over who should pay for the scheme and how much it should cost. ISPs suggest the cost per notice is around about $27, but rights holders believe it should only be around $6. If rights holders are forced to pay $27 per notice, it is likely that — like New Zealand’s scheme — it will go largely unused.

In the meantime, the government successfully passed legislation that will allow companies like Foxtel go to court to get ISPs to block piracy websites like The Pirate Bay. The first case, thought to be brought on by Foxtel, is expected within a matter of weeks.

Turnbull, as communications minister, played a key role in negotiating with the telecommunications industry for both the site-blocking legislation and the code. Turnbull introduced the site-blocking legislation into the House of Representatives himself.

Given Turnbull’s need to step in and manage all matters copyright commenced by Brandis, the switch from the AGD to Communications seems logical, particularly given Fifield will also be Arts Minister. The move suggests the government may be rethinking policy on copyright. Turnbull, prior to coming to government, also spoke strongly against many of the moves subsequently taken by the Abbott government, including site-blocking and three-strikes piracy response. He has argued that the easiest means of reducing online copyright infringement is to make content available in a more timely and affordable manner.

“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,” Turnbull said in 2012.

He said at the time that copyright owners needed to recognise the reality that content made available in one region was now available globally. “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.”

The communications industry will be pleased with the change — the view has been that the Attorney-General’s Department has largely fumbled in dealing with telecommunications companies over the matter of piracy, and the other sensitive area, mandatory data retention. Rights holders, however, are unlikely to be happy about the switch. In Brandis, they had an advocate for cracking down on piracy. Documents obtained under freedom of information revealed Brandis only ever met with rights holders, and never met with internet service providers or consumer groups in developing a piracy policy.

Crikey understands that rights holders were also ceaseless in their lobbying of Brandis and former prime minister Tony Abbott to implement a scheme to stop online piracy. No doubt they will be making the same case to Turnbull and Fifield over the coming weeks and months. Crikey attempted to glean an insight into the lobbying of the former prime minister via a freedom of information request, but this request was ignored by Abbott’s office, and no response has been received over seven months since it was filed.

For rights holders, Fifield is an unknown at this point.

Australian Copyright Council executive director Fiona Phillips told Crikey that Fifield still needed to balance the interest of stakeholders in both arts and communications.

“The minister will need to balance the interests and expectations of stakeholders on both the Arts and Communications side of his portfolios. Traditionally the Attorney-General’s portfolio has not had the same direct relationship with stakeholders and so has not had ‘skin in the game’ to the same extent,” she said.

Phillips suggested the AGD could still have some responsibility for administering the Copyright Act while sharing responsibility with Communications.

Internet Australia CEO Laurie Patton said the move from AGD to Communications was “a more realistic approach to internet legislation”. Patton said in a statement:

“Senator Brandis’ ‘site blocking’ legislation is one of a number of ad hoc laws passed by the Abbott government that we believe have little chance of achieving their stated aim but do have the very real likelihood of damaging the integrity and and utility of the internet. A trusted, open and accessible internet is critical to our economic and social development, so it is encouraging to see Mr Turnbull taking action like this so early in his prime ministership.”

The government was due to respond to the ALRC report on copyright reform in full last week, while it was expected that Brandis would respond, after the change of leadership and portfolio responsibilities, it is now expected that Fifield will respond to the report. Then-treasurer Joe Hockey also announced in August that the Productivity Commission would be looking into Australia’s intellectual property arrangements, and would report back to government in August 2016.

In the meantime, it is understood that the copyright code scheme remains at a stalemate over who will actually pay for the scheme. Crikey understands that rights holders involved in the negotiations have not been returning the calls of the internet service provider negotiators.

Peter Fray

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