Copyright, speech and the NSW Minerals Council

I received two interesting emails this morning.  The first was from a Ned Haughton, who drew my attention to the efforts of the New South Wales Minerals Council to shut down a satirical website created by climate action group Rising Tide Newcastle.  This is the "offending" site:

And this is the original site:

Upon receiving Ned's email I thought that this would be excellent blogging fodder - an example of how copyright law is being used to suppress speech.  This turned out to be correct when I opened the next email, which happened to be from Kim Weatherall, letting me and a few others know she had returned to the blogosphere to post on this issue at LawFont.  But even though Kim beat me to it, I thought it still warranted a post from me ...

So, Indymedia has the details:

A satirical website created by climate action group Rising Tide Newcastle has twice been shut down this fortnight by powerful coal industry lobby group, the NSW Minerals Council.

The website was conceived as a response to the Minerals Council's “Life. Brought to you by Mining” advertising campaign. The Minerals Council campaign, which argues that mining is inextricable from modern luxury can be viewed at www.nswmining.com.au. Rising Tide members created a parody website at www.miningnsw.com.au in order to present the other side of the story and address the damage wrought by mining to the local and global environment and to the local community.

The parody website has twice been shut down following complaint by the Minerals Council that the site breached copyright law. That claim is hotly contested by the authors of the website, Rising Tide Newcastle, who believe that the coal industry lobby group is simply trying to silence growing public disquiet about the contribution of the export coal industry to climate change.

Read more here.  Apparently, the hosts of the satirical Rising Tide website were contacted by Minerals Council lawyers within 24 hours of the launch of the site, who issued a notice of claimed infringement under Reg 20I of the Copyright Regulations 1969, requiring the website to be taken down under Reg 20J. Rising Tide then completely re-made the site, with original layout and images that were either original or used with permission, in order to remove the possibility of copyright infringement.  The Minerals Council lawyers nevertheless contacted the new website hosts within 24 hours, with a similar notice of claimed infringement, and again had the site removed under Reg 20J.  Even though there was arguably no copyright infringing material on the site, the hosts were required to once again remove the site.  Rising Tide have submitted a counter-notice purusant to Reg 20K, which rejects the allegations of the Minerals Council. The Minerals Council now has a ten period in which they can take the matter further, which would require taking Rising Tide to court over the incident.

Once again, I pretty much agree with Kim that this is a troubling story.  There are two aspects to it that are particularly concerning.  First, this is clearly a situation that would be covered by the fair dealing defence of parody and satire (as well as possibly the fair dealing defence of criticism and review).  This is political speech that is being suppressed by our copyright regulations, which is something that should not happen. As Kim says, "This is not why the Safe Harbours were put in there, and arguably, it’s an abuse of the process."

Second, the Minerals Council lawyers failed to comply with the requirement in Schedule 10 of the Copyright Regulations to "insert sufficient information to enable the carriage service provider to identify the copyright material in respect of which the infringement is claimed":

Content in which our client owns copyright may be viewed on it’s website, http://www.nswmining.com.au. We ask that you compare our client’s website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites.

The Minerals Council is required to identify the copyright material, not the website or host.

Finally, I'd echo Kim's suggestion that maybe we need an Australian version of Chilling Effects.org to track this kind of thing.  I'm aware of a few other instances of copyright laws being used in this way (see, for example, Richard Neville's John Howard speech here), but I suspect it may be more common than we think ...

Comments

[Kimberlee Weatherall]

Ta for the link Pete. Worth noting that on my post at lawfont, the folks from Rising Tide - who are behind the website - are looking for some pro bono legal help, if anyone is interested...

[Jane]

Wouldn't there also be some sort of political free speech argument? Isn't the Copyright Act invalid to the extent that it prevents political free speech as a breach of the Constitution?

[naught101]

Jane: pretty sure the constitution doesn't protect freedom of speech. for that we'd need something like a bill of rights, I think.

there are clauses for free speech in the copyright act though, such as criticism and review, and parody, both of which may apply to this site.

[Jane]

naught101: In fact the Constitution does protect political communication through ss7 and 22 - see for example Lange v ABC before the High Court. It is an implied freedom. But I guess now (after further reflection) that the Copyright Act would be "reasonably appropriate and adapted" to a public purpose (fulfilling our treaty obligations under Berne and TRIPS and also the protection of IP more generally) because of the inclusion of exceptions such as fair dealing for criticism/review and parody/satire (which is the most recent test for invalidity from Coleman v Power etc). Hence, the Act would probably not be struck down.

Just thought I would clear that up - of course the implied freedom of political communication is much narrower than the US "free speech" provision, but should still not be forgotten.

[Bob Burton]

I've created a page on the NSW Minerals Council vs Rising Tide issue. See http://www.sourcewatch.org/index.php?title=NSW_SLAPPs/NSW_Minerals_Council_vs_Rising_Tide SourceWatch is a wiki which means that readers can edit and contribute to the article

[Bob Burton]

While a little different from Chillingeffects.org, there is also a page in Sourcewatch, a wiki, on legal actions against activist groups in Australia (and elsewhere). See http://www.sourcewatch.org/index.php?title=SLAPP%27s_in_Australia