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NSW SLAPPs/NSW Minerals Council vs Rising Tide

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In February 2007 lawyers for the NSW Minerals Council (NSWMC), the state's peak mining industry lobby group, initiated action to take down a website created by the Newcastle environment group, Rising Tide. The website parodied the mining industry's PR campaign "Life: Brought to you by mining". The NSWMC campaign was launched a little over a month before the New South Wales March 24 state election.

NSWMC's Campaign Blitz

The campaign, which was launched in Newcastle on February 19, 2006, featured billboards, newspaper and TV ads and a website, http://www.nswmining.com.au. Announcing the campaign, which is being undertaken by LOVE Communications, the NSWMC stated that it was "about the industry’s contribution to modern life, from employment and the economy to electricity and consumer items." [1] Newcastle has a major export coal loader and other infrastructure to service the open-cut black coal mining industry operating in the Hunter Valley. The NSWMC's campaign emphasises the benefits of the coal mining industry and in particular the notion of "clean coal".

The NSW Minerals Council ads included:

Environment Products Future
NSWMC Cleaner.jpg
NSWMC City.jpg
NSWMC Jobs.jpg

In response, Rising Tide Newcastle volunteers put up website that mirrored the content of the NSWMC's site but with original text. With 24 hours the web-hosting company, MD Web Hosting, had taken the site down after being contacted by lawyers from the NSWMC.

After the website was taken down, Rising Tide "completely re-made the site, with original layout and images that were either original or used with permission, in order to remove all possibility of copyright infringement." [2] The parody counter-site, showing the destructiveness of mining and coal burning at http://www.miningnsw.com.au.

Environment Products Future
Rising Tide - Mining.jpg
Rising Tide - Propaganda.jpg
Rising Tide - Future.jpg

However, on February 26, Sue Gilchrist and Alicia Howlett, respectively a partner and solicitor for Freehills and acting for the NSWMC, wrote to NetAxxs Information Technology, the company hosting the parody website. Despite changing the images to their own or ones which they had permission to use, this site too was taken down.

Gilchrist and Howlett complained that the use of material from the NSWMC website was a copyright infringement. Citing the section 201 of the Copyright Regulations 1969, the letter requested the company remove the website within 24 hours. "We draw your attention to the "Takedown procedure" required under s.20J of the Regulations and in particular to your specific requirement that, upon receipt of a Notice under regulation 201, the 'carriage service provider must expeditiously remove, or disable access to, the copyright material specified in the notice and residing on its system or network". [3] However, the NSWMC did not specify what materials in particular they claimed copyright over.

Rising Tide then had site re-hosted off-shore and issued a media release detailing the Minerals Council's legal actions. [4]

They also issue a counternotice arguing that the NSWMC's claim of infringement was based on a "mistake in identifying the specified copyright material." They also stated that all the material on their websites was "entirely owned by us, OR used with permission of the respective copyright holder." Material that was "similar" to that on NSWMC's website, they stated was "fair use" under the Copyright Act 1968 - Section 41 (Fair dealing for purpose of criticism or review) and/or Copyright Act 1968 - Section 41A (Fair dealing for the purpose of pardoy or satire). [5] (pdf)

Legal Bloggers Raise Their Eyebrow

Kimberlee Weatherall, a blogger at LawFont and a senior lecturer in law at the University of Queensland expressed concern that the NSW Minerals Council letter did not specify exactly what it was they claimed copyright in. The copyright regulations, she wrote, state that a complainent should "insert sufficient information to enable the carriage service provider to identify the copyright material in respect of which the infringement is claimed." Instead, the NSWMC told the internet service provider to check the two sites and judge for themselves what the NSWMC copyright material was. [6]

She also expressed concern that "this isn’t one of those cases that notice-and-takedown was meant to be provided for: cases, basically, where someone has put up shamelessly infringing material online with no apparent social benefit. The notice here is aimed at some speech which is pretty clearly political, something which at least arguably would be protected under fair dealing defences of criticism and review and/or parody/satire. This is not why the Safe Harbours were put in there, and arguably, it’s an abuse of the process." [7]

At the Freedom to Differ blog, Peter Black, an associate lecturer in law at the Queensland University of Technology, wrote that "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." [8]

NSWMC vs Rising Tide Documents

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