Brandis wrong on copyright and data retention: IP expert

Questions remain over how the government's proposed data retention regime could potentially interact with its crackdown on online copyright violations

Attorney-General George Brandis appears to have erred in his claim that the government's proposed data retention regime couldn't be used to pursue people who engage in online copyright violations, according to an expert on Australian intellectual property law.

The attorney-general last night said that data retention legislation "can't" and "won't" be used to crack down on Internet piracy.

"The mandatory metadata retention regime applies only to the most serious crime — to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis said last night during ABC's Q&A.

The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme."

However, the claim that the breach of copyright is only a "civil wrong" is incorrect, according to Dr Matthew Rimmer. Rimmer, associate professor at the Australian National University College of Law, said that Australian copyright law "has long had criminal offences associated with it".

"If you look at the Attorney-General Department's own basic information on intellectual property, it kind of outlines the range of summary and indictable offences in relation to copyright matters," Rimmer said.

The department's summary guide (PDF) to copyright states: "The Copyright Act contains a number of criminal offence provisions. These include offences in aid of enforcement regimes for technological protection measures (TPM) liability, abuse of rights management information and broadcast decoding devices, unauthorised access to encoded broadcasts, piracy of books, computer software, sound recordings and films, infringements on a commercial scale and other actions that prejudice the economic rights of the copyright owner."

Brandis' claims came in the wake of comments by Australian Federal Police commissioner Andrew Colvin at last week's press conference where the government outlined the data retention legislation.

At the press conference, a journalist asked whether the legislation could be used to target people involved in unauthorised downloads of copyright material. Colvin replied:

I haven't even touched on some of the other range of crimes. Absolutely, I mean any interface, any connection somebody has over the Internet, we need to be able to identify the parties to that connection. Again, not the content, not what may be passing down the Internet. So illegal downloads, piracy… sorry, cyber-crimes, cyber-security, all these matters and our ability to investigate them is absolutely pinned to our ability to retrieve and use metadata.

In an interview the next day, Colvin appeared to back away from his remarks, telling AM host Chris Uhlmann:

I want to be very clear on this. The government's introducing this to address vital needs of national security and law enforcement, not copyright. Copyright is essentially a civil matter. This is about criminal matters.

So we will be using it for criminal matters. The Telecommunications Intercept Act makes it very clear that we can only do this to enforce criminal laws.

Copyright breaches are civil wrongs and that's not what we're interested in.

"The AFP have long had a role in relation to matters of intellectual property," Rimmer said. "If you go to their website, they say that they have a role, particularly in relation to copyright matters and in relation to trade matters."

The government has been "shifting their position day by day in realtion to very basic questions about the relationship between IP and data retention," Rimmer said.

Some of Brandis' comments "seem to be based upon poor understanding of what's currently in the legislation at the moment".

"Copyright breach is tantamount to breach of criminal law and that's been the whole debate for the last decade — the increasing criminalisation of copyright law."

"[Brandis] was in parliament when a number of these offences came into operation," Rimmer added.

"I find it astounding that the attorney-general who's busy demanding a copyright crackdown does not seem to know some of the basic offences in relation to Australian copyright law. I think it's really surprising that he hasn't been properly briefed upon how the current regime operates."

Despite the government introducing the Telecommunications (Interception and Access) Amendment (Data Retention) Bill in the lower house, the parameters of the new data retention regime are still not clear, Rimmer said.

"I think that's why there's such controversy in relation to the relationship between IP and data retention — because the legislative framework that they've set up doesn't properly address those issues," he added.

"It's quite surprising, particularly because there was such controversy about the discussion over the bill in the first place and the inability of the attorney-general to define metadata you might have thought they would be a little bit better organised in terms of putting forward the bill."

Rimmer pointed to comments by lawyer George Williams who has described the legislation as a "shell", with the details of the metadata to be collected filled in later by regulation.

The academic added that a full list of agencies that will be able to access the metadata retained under the legislation is not spelled out. The explanatory memorandum accompanying the bill said that says "bodies who are not a 'criminal law enforcement agency' for the purposes of the TIA Act must be declared by the Minister to be an 'enforcement agency' before they can authorise the disclosure of telecommunications data."

"These amendments will ensure that only authorities and bodies with a demonstrated need to have telecommunications information can authorise the disclosure of this information," the memorandum states.

The data retained under the regime may be available to litigants in civil cases relating to intellectual property, Rimmer added.

Labor 'terribly uncommitted in the debate'

Rimmer said that the Labor Party has so far been "terribly uncommitted in the debate" over data retention.

While the Greens have condemned the legislation, with the party's communications spokesperson Senator Scott Ludlam describing data retention "an outrageous attack on Australians’ fundamental right to privacy", Labor MP Jason Clare has called for "robust scrutiny" of the legislation.

The shadow communications minister issued a statement that said:

Labor has requested that the Government defer debate on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill until 2015 to give adequate time for a thorough consultation process to occur.

This legislation is complex and contentious. It is broader than National Security. It has privacy implications and could also potentially increase the cost of internet bills. It therefore needs to be subject to robust scrutiny over months not weeks.

The Opposition was not consulted before the introduction of the bill...

Shadow Attorney-General Mark Dreyfus and Shadow Minister for Communications Jason Clare this week wrote to Brandis calling on the Government to release an exposure draft of the data retention legislation for public consultation. The Government has rejected that.

This should be subject to robust scrutiny and the Australian public should be given every opportunity to have their say before such a proposal becomes law.

The government has referred the bill to the Parliamentary Joint Committee on Intelligence and Security for review.

Follow Rohan on Twitter: @rohan_p

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