Mining lobbyists adrift on a Rising Tide

The NSW Mineral Council (NSWMC) has failed in their clumsy attempt to squash a small climate change advocacy group. Little known Newcastle protest group Rising Tide raised the hackles of the powerful Australian mining industry lobbyist over a parody of its recent mining PR campaign. When the NSWMC launched a website ad to promote mining, Rising Tide struck back with a parody website pointing out mining’s impact on climate change. The council were not impressed and forced Rising Tide’s ISP to shut down the website twice. Now Rising Tide have taken revenge by re-launching their site offshore and challenging the NSWMC to show just cause for their action.

Founded in 2004, Rising Tide is a small activist group based in Newcastle. They are part of a global grassroots movement campaigning against the root causes of human-induced climate change. Their real website states that Newcastle is “the largest coal port (by export volume) in the world”. Rising Tide is now campaigning against the proposed expansion of Newcastle coal exports. The heavy-handed action by the NSW Mineral Council has given them invaluable publicity and provided a useful filter for alternative opinions to enter the mainstream.

None of this would have happened if the NSW Mineral Council had ignored the parody site. But instead they claimed the site infringed their copyright and brought their full legal force to bear. Although Australian copyright law allows for fair use of an original work when mimicked for parody or caricature, it was modified in 2004 to forces ISP to remove potentially infringing sites whenever challenged.

But Rising Tide refused to be intimidated and moved the site to an off-shore host to keep the information in the public domain. The parody site is now on servers hosted in Afghanistan, which place it outside the jurisdiction of Australian law. The revamped website was officially relaunched yesterday to national media attention. Steve Phillips, spokesperson for Rising Tide Newcastle said, "we have issued a counter-notice rejecting the Minerals Council's spurious claims. The Minerals Council now has ten days in which to take the matter further."

Phillips told Woolly Days that NSWMC abused a clause in the copyright laws that were introduced by the 2004 Free Trade Agreement with the US. This clause is an automatic takedown procedure. If a website is accused of plagiarism, the ISP must remove the website even on suspicion of an infringement and before the claim can be validated by a court decision. In other words, Australian law says that any party accused of plagiarism is guilty until proven innocent.

The drama began on 19 February when the NSW Minerals Council launched an advertising campaign to promote the mining industry. Called “Life. Brought to you by Mining”, the campaign lauded the industry’s contribution to”modern life, from employment and the economy to electricity and consumer items”. NSW Minerals Council Chief Executive Dr Nikki Williams said the campaign would provide much needed balance to the intense debate around mining and the environment. Dr Williams claimed the public discussion on global warming has been “railroaded by agenda driven scaremongering, when what we desperately need is logic, innovation and collaboration”.

NSWMC’s idea of logic, innovation and collaboration was an advertising blitz in the mining regions of Newcastle and Wollongong. It featured billboards, TV commercials, press releases and a website. They used the symbol of an asterisk to highlight what they described as “the countless things which are created with a contribution from mining”. NSW Mineral council‘s website invited their audience to “dig a little deeper and find out all the great things that the mining industry has to offer”.

In response Rising Tide put up a parody site. The parody site was a mirror image of the NSWMC site except for some additional satirical text. Rising Tide’s site stated “the NSW Minerals Council is now running a spin campaign to fool you into thinking that we need the coal mining industry” and they invited their audience to “dig a little deeper and find out the real facts”.

NSWMC dug a little deeper themselves and within 24 hours their lawyers contacted the hosts of the parody website. They cited the relevant clause of the Commonwealth Copyright Regulations and forced the ISP to remove the site. Although the site is probably legal under the Copyright Act's Fair Dealing clause as a parody, the hosts were legally required to remove the site pending a response to the Minerals Council's claim of copyright infringement, which did not specify the articles of alleged copyright.

Rising Tide then relaunched the site with a new and original layout to remove the possibility of copyright infringement. Or so they thought. Once again council lawyers contacted the ISP within 24 hours with a similar claim letter that forced the hosts to remove the site a second time. Undaunted, Rising Tide relaunched their site a third time this week from Afghanistan. They also issued a counter-notice, rejecting the allegations of the council. If the NSWMC does not respond within 10 days, Rising Tide will be able to re-host the site in Australia.

NWSMC's best bet at this stage is to avoid all further response. This is proving a public relations nightmare for the mining lobbyists and any further action on their part will only serve to lift all boats of the Rising Tide.