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Copyright Act 1968

  • - C2005C00054
  • In force - Superseded Version
  • View Series
Act No. 63 of 1968 as amended, taking into account amendments up to Act No. 154 of 2004
An Act relating to copyright and the protection of certain performances, and for other purposes
Administered by: Attorney-General's
Registered 17 Jan 2005
Start Date 01 Jan 2005
End Date 30 Jun 2005

Copyright Act 1968

Act No. 63 of 1968 as amended

This compilation was prepared on 1 January 2005
taking into account amendments up to Act No. 154 of 2004

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1................. Short title [see Note 1]................................................................... 1

2................. Commencement [see Note 1]......................................................... 1

4................. Extension to external Territories.................................................... 1

5................. Exclusion of Imperial Copyright Act, 1911................................... 1

6................. Repeal of Copyright Acts.............................................................. 1

7................. Act to bind the Crown................................................................... 2

8................. Copyright not to subsist except by virtue of this Act.................. 2

8A.............. Prerogative rights of the Crown in the nature of copyright........... 2

9................. Operation of other laws................................................................. 2

9A.............. Application of the Criminal Code................................................. 3

Part II—Interpretation                                                                                                         4

10............... Interpretation................................................................................. 4

10AA......... Non‑infringing copy of a sound recording.................................... 21

10AB......... Non‑infringing copy of a computer program................................ 23

10AC......... Non‑infringing copy of an electronic literary or music item......... 23

10AD......... Accessories to imported articles.................................................. 23

10A............ Declarations and notices relating to certain bodies and institutions 24

11............... Residence in a country not affected by temporary absence........ 25

12............... References to Parliament.............................................................. 25

13............... Acts comprised in copyright....................................................... 26

14............... Acts done in relation to substantial part of work or other subject‑matter deemed to be done in relation to the whole..................................................................................................... 26

15............... References to acts done with licence of owner of copyright....... 26

16............... References to partial assignment of copyright............................. 27

17............... Statutory employment................................................................. 27

18............... Libraries established or conducted for profit............................... 27

19............... References to Copyright Act, 1911............................................. 27

20............... Names under which work is published........................................ 27

21............... Reproduction and copying of works and other subject‑matter... 28

22............... Provisions relating to the making of a work or other subject‑matter  29

23............... Sound recordings and records....................................................... 31

24............... References to sounds and visual images embodied in an article... 31

25............... Provisions relating to broadcasting.............................................. 32

27............... Performance................................................................................. 33

28............... Performance of works or other subject‑matter in the course of educational instruction     34

29............... Publication................................................................................... 35

30............... Ownership of copyright for particular purposes........................ 36

30A............ Commercial rental arrangement.................................................... 37

Part III—Copyright in original literary, dramatic, musical and artistic works         39

Division 1—Nature, duration and ownership of copyright in works  39

31............... Nature of copyright in original works.......................................... 39

32............... Original works in which copyright subsists................................ 41

33............... Duration of copyright in original works...................................... 41

34............... Duration of copyright in anonymous and pseudonymous works 42

35............... Ownership of copyright in original works................................... 42

Division 2—Infringement of copyright in works                                          45

36............... Infringement by doing acts comprised in the copyright.............. 45

37............... Infringement by importation for sale or hire................................ 45

38............... Infringement by sale and other dealings....................................... 46

39............... Infringement by permitting place of public entertainment to be used for performance of work        46

39A............ Infringing copies made on machines installed in libraries and archives               47

39B............ Communication by use of certain facilities.................................. 48

Division 3—Acts not constituting infringements of copyright in works                49

40............... Fair dealing for purpose of research or study.............................. 49

41............... Fair dealing for purpose of criticism or review............................ 50

42............... Fair dealing for purpose of reporting news.................................. 50

43............... Reproduction for purpose of judicial proceedings or professional advice          51

43A............ Temporary reproductions made in the course of communication 51

43B............ Temporary reproductions of works as part of a technical process of use          51

44............... Inclusion of works in collections for use by places of education 52

44A............ Importation etc. of books............................................................ 53

44B............ Reproduction of writing on approved label for containers for chemical product               56

44C............ Copyright subsisting in accessories etc. to imported articles...... 56

44D............ Import of non‑infringing copy of sound recording does not infringe copyright in works recorded    56

44E............ Importation and sale etc. of copies of computer programs......... 57

44F............ Importation and sale etc. of copies of electronic literary or music items            58

Division 4—Acts not constituting infringements of copyright in literary, dramatic and musical works                                                                                                                      59

45............... Reading or recitation in public or for a broadcast........................ 59

46............... Performance at premises where persons reside or sleep.............. 59

47............... Reproduction for purpose of broadcasting.................................. 59

47AA......... Reproduction for the purpose of simulcasting............................ 61

47A............ Sound broadcasts by holders of print disability radio licences.... 62

Division 4A—Acts not constituting infringements of copyright in computer programs               65

47AB......... Meaning of computer program.................................................... 65

47B............ Reproduction for normal use or study of computer programs.... 65

47C............ Back‑up copy of computer programs.......................................... 66

47D............ Reproducing computer programs to make interoperable products 67

47E............ Reproducing computer programs to correct errors...................... 68

47F............ Reproducing computer programs for security testing................. 69

47G............ Unauthorised use of copies or information.................................. 70

47H............ Agreements excluding operation of certain provisions................ 70

Division 5—Copying of works in libraries or archives                             71

48............... Interpretation............................................................................... 71

48A............ Copying by Parliamentary libraries for members of Parliament.. 71

49............... Reproducing and communicating works by libraries and archives for users       71

50............... Reproducing and communicating works by libraries or archives for other libraries or archives         75

51............... Reproducing and communicating unpublished works in libraries or archives     79

51AA......... Reproducing and communicating works in Australian Archives. 80

51A............ Reproducing and communicating works for preservation and other purposes   81

52............... Publication of unpublished works kept in libraries or archives... 83

53............... Application of Division to illustrations accompanying articles and other works               84

Division 6—Recording of musical works                                                         86

54............... Interpretation............................................................................... 86

55............... Conditions upon which manufacturer may make records of musical work        87

57............... Provisions relating to royalty where 2 or more works are on the one record     89

59............... Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work..................................................................................................... 89

60............... Records made partly for retail sale and partly for gratuitous disposal               92

61............... Making inquiries in relation to previous records......................... 92

64............... Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records..................................................................................... 93

Division 7—Acts not constituting infringements of copyright in artistic works                94

65............... Sculptures and certain other works in public places.................... 94

66............... Buildings and models of buildings................................................ 94

67............... Incidental filming or televising of artistic works.......................... 94

68............... Publication of artistic works........................................................ 94

70............... Reproduction for purpose of including work in television broadcast 95

72............... Reproduction of part of work in later work............................... 96

73............... Reconstruction of buildings......................................................... 96

Division 8—Designs                                                                                                    97

74............... Corresponding design................................................................... 97

75............... Copyright protection where corresponding design registered..... 97

76............... False registration of industrial designs under the Designs Act 2003 97

77............... Application of artistic works as industrial designs without registration of the designs     98

77A............ Certain reproductions of an artistic work do not infringe copyright  100

Division 9—Works of joint authorship                                                            102

78............... References to all of joint authors............................................... 102

79............... References to any one or more of joint authors......................... 102

80............... References to whichever of joint authors died last.................... 102

81............... Works of joint authorship published under pseudonyms......... 102

82............... Copyright to subsist in joint works without regard to any author who is an unqualified person      103

83............... Inclusion of joint works in collections for use in places of education 103

Part IV—Copyright in subject‑matter other than works                               104

Division 1—Preliminary                                                                                          104

84............... Definitions................................................................................. 104

Division 2—Nature of copyright in subject‑matter other than works 106

85............... Nature of copyright in sound recordings................................... 106

86............... Nature of copyright in cinematograph films.............................. 106

87............... Nature of copyright in television broadcasts and sound broadcasts 107

88............... Nature of copyright in published editions of works.................. 107

Division 3—Subject‑matter, other than works, in which copyright subsists       108

89............... Sound recordings in which copyright subsists........................... 108

90............... Cinematograph films in which copyright subsists..................... 108

91............... Television broadcasts and sound broadcasts in which copyright subsists         108

92............... Published editions of works in which copyright subsists......... 109

Division 4—Duration of copyright in subject‑matter other than works 110

93............... Duration of copyright in sound recordings................................ 110

94............... Duration of copyright in cinematograph films........................... 110

95............... Duration of copyright in television broadcasts and sound broadcasts                110

96............... Duration of copyright in published editions of works.............. 111

Division 5—Ownership of copyright in subject‑matter other than works            112

Subdivision A—Ownership of copyright in subject‑matter other than works 112

97............... Ownership of copyright in sound recordings............................ 112

98............... Ownership of copyright in cinematograph films....................... 112

99............... Ownership of copyright in television broadcasts and sound broadcasts            113

100............. Ownership of copyright in published editions of works........... 113

Subdivision B—Specific provisions relating to the ownership of copyright in pre‑commencement sound recordings of live performances                                                                       113

100AA....... Application................................................................................ 113

100AB....... Definitions................................................................................. 113

100AC....... Application of sections 100AD and 100AE.............................. 114

100AD....... Makers of pre‑commencement sound recordings of live performances              114

100AE....... Ownership of pre‑commencement copyright in sound recordings of live performances    115

100AF....... Former owners may continue to do any act in relation to the copyright            115

100AG....... Actions by new owners of copyright........................................ 116

100AH....... References to the owner of the copyright in a sound recording. 117

Division 6—Infringement of copyright in subject‑matter other than works        118

100A.......... Interpretation............................................................................. 118

101............. Infringement by doing acts comprised in copyright.................. 118

102............. Infringement by importation for sale or hire.............................. 119

103............. Infringement by sale and other dealings..................................... 119

103A.......... Fair dealing for purpose of criticism or review.......................... 120

103B.......... Fair dealing for purpose of reporting news................................ 120

103C.......... Fair dealing for purpose of research or study............................ 120

104............. Acts done for purposes of judicial proceeding.......................... 121

104A.......... Acts done by Parliamentary libraries for members of Parliament 122

104B.......... Infringing copies made on machines installed in libraries and archives               122

105............. Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast            122

106............. Causing sound recording to be heard at guest house or club...... 123

107............. Making of a copy of the sound recording for purpose of broadcasting              123

108............. Copyright in published recording not infringed by public performance if equitable remuneration paid            125

109............. Copyright in published sound recording not infringed by broadcast in certain circumstances           126

110............. Provisions relating to cinematograph films............................... 127

110A.......... Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives  128

110B.......... Copying and communicating sound recordings and cinematograph films for preservation and other purposes................................................................................................... 128

110C.......... Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting        131

111............. Filming or recording broadcasts for private and domestic use... 131

111A.......... Temporary copy made in the course of communication........... 132

111B.......... Temporary copy of subject‑matter as part of a technical process of use           132

112............. Reproductions of editions of work............................................ 133

112A.......... Importation and sale etc. of books............................................. 134

112B.......... Reproduction of writing on approved label for containers for chemical product               137

112C.......... Copyright subsisting in accessories etc. to imported articles.... 137

112D.......... Import of non‑infringing copy of a sound recording does not infringe copyright in the sound recording          138

112DA....... Importation and sale etc. of copies of electronic literary or music items            139

112E.......... Communication by use of certain facilities................................ 139

Division 7—Miscellaneous                                                                                    140

113............. Copyrights to subsist independently........................................ 140

113A.......... Agents may act on behalf of groups of performers................... 140

113B.......... Consent to the use of a sound recording of a live performance. 140

113C.......... Use of published sound recordings when owners cannot be found etc.              141

Part V—Remedies and offences                                                                                142

Division 1—Preliminary                                                                                          142

114............. Interpretation............................................................................. 142

Division 2—Actions by owner of copyright                                                   143

115............. Actions for infringement............................................................ 143

116............. Rights of owner of copyright in respect of infringing copies.... 144

116AAA.... Compensation for acquisition of property................................ 145

Division 2AA—Limitation on remedies available against carriage service providers  147

Subdivision A—Preliminary                                                                                 147

116AA....... Purpose of this Division............................................................ 147

116AB....... Definitions................................................................................. 147

Subdivision B—Relevant activities                                                                      148

116AC....... Category A activity................................................................... 148

116AD....... Category B activity.................................................................... 148

116AE....... Category C activity.................................................................... 148

116AF....... Category D activity................................................................... 148

Subdivision C—Limitations on remedies                                                           149

116AG....... Limitations on remedies............................................................. 149

Subdivision D—Conditions                                                                                    150

116AH....... Conditions.................................................................................. 150

116AI........ Evidence of compliance with conditions.................................... 154

Subdivision E—Regulations                                                                                  154

116AJ........ Regulations................................................................................. 154

Division 2A—Actions in relation to circumvention devices and electronic rights management information                                                                                           155

116A.......... Importation, manufacture etc. of circumvention device and provision etc. of circumvention service                155

116B.......... Removal or alteration of electronic rights management information 158

116C.......... Distribution to the public etc. of works whose electronic rights management information has been removed or altered......................................................................................... 159

116CA....... Distribution and importation of electronic rights management information that has been removed or altered   160

116CB....... Exception relating to national security and law enforcement..... 161

116D.......... Remedies in actions under sections 116A, 116B, 116C and 116CA  161

Division 3—Proceedings where copyright is subject to exclusive licence          162

117............. Interpretation............................................................................. 162

118............. Application................................................................................ 162

119............. Rights of exclusive licensee........................................................ 162

120............. Joinder of owner or exclusive licensee as a party...................... 163

121............. Defences available against exclusive licensee............................. 163

122............. Assessment of damages where exclusive licence granted........... 164

123............. Apportionment of profits between owner and exclusive licensee 164

124............. Separate actions in relation to the same infringement................ 164

125............. Liability for costs....................................................................... 165

Division 4—Proof of facts in civil actions                                                       166

126............. Presumptions as to subsistence and ownership of copyright... 166

126A.......... Evidence in relation to subsistence of copyright....................... 166

126B.......... Evidence in relation to ownership of copyright......................... 167

127............. Presumptions in relation to authorship of work........................ 168

128............. Presumptions in relation to publisher of work.......................... 170

129............. Presumptions where author has died......................................... 170

130............. Evidence in relation to recordings.............................................. 171

130A.......... Acts relating to imported copies of sound recordings............... 172

130B.......... Acts relating to imported copies of computer programs........... 172

130C.......... Acts relating to imported copies of electronic literary or music items               173

131............. Presumption in relation to maker of film................................... 173

Division 4A—Jurisdiction and appeals                                                           174

131A.......... Exercise of jurisdiction............................................................... 174

131B.......... Appeals...................................................................................... 174

131C.......... Jurisdiction of Federal Court of Australia................................. 174

131D.......... Jurisdiction of Federal Magistrates Court................................. 174

Division 5—Offences and summary proceedings                                      175

132............. Offences..................................................................................... 175

132A.......... Presumptions in relation to subsistence and ownership of copyright                185

132B.......... Evidence in relation to sound recordings.................................... 186

133............. Destruction or delivery up of infringing copies etc................... 187

133A.......... Advertisement for supply of infringing copies of works or other subject matter              187

Division 6—Miscellaneous                                                                                    189

134............. Limitation of actions in respect of infringement of copyright... 189

134A.......... Affidavit evidence...................................................................... 189

Division 7—Seizure of imported copies of copyright material            191

134B.......... Interpretation............................................................................. 191

135............. Restriction of importation of copies of works etc..................... 192

135AA....... Security for expenses of seizure................................................ 194

135AB....... Secure storage of seized copies.................................................. 194

135AC....... Notice of seizure........................................................................ 194

135AD....... Inspection, release etc. of seized copies.................................... 196

135AE....... Forfeiture of seized copies by consent...................................... 196

135AF....... Compulsory release of seized copies to the importer............... 197

135AG....... Provision relating to actions for infringement of copyright....... 197

135AH....... Retention of control of seized copies........................................ 198

135AI........ Disposal of seized copies ordered to be forfeited...................... 199

135AJ........ Insufficient security................................................................... 199

135AK....... Immunity of the Commonwealth............................................... 199

Part VAA—Broadcast decoding devices                                                               200

Division 1—Preliminary                                                                                          200

135AL....... Definitions................................................................................. 200

135AM...... Counterclaim.............................................................................. 201

Division 2—Action in relation to broadcast decoding devices           202

135AN....... Actions in relation to the manufacture of and dealing with broadcast decoding devices     202

135ANA.... Actions in relation to the use of broadcast decoding devices..... 204

Division 3—Jurisdiction and appeals                                                               207

135AP....... Exercise of jurisdiction............................................................... 207

135AQ....... Appeals...................................................................................... 207

135AR....... Jurisdiction of Federal Court of Australia................................. 207

135ARA.... Jurisdiction of Federal Magistrates Court................................. 207

Division 4—Offences                                                                                                208

135AS........ Offences..................................................................................... 208

135AT....... Prosecutions............................................................................... 211

135AU....... Destruction etc. of devices......................................................... 211

Part VA—Copying and communication of broadcasts by educational and other institutions          212

Division 1—Preliminary                                                                                          212

135A.......... Interpretation............................................................................. 212

135B.......... Copies and communications of broadcasts................................ 213

135D.......... Operation of collecting society rules......................................... 213

Division 2—Copying and communication of broadcasts                        214

135E.......... Copying and communication of broadcasts by educational institutions etc.      214

135F.......... Making and communication of preview copies......................... 215

135G.......... Remuneration notices................................................................. 217

135H.......... Records notices.......................................................................... 218

135J........... Sampling notices........................................................................ 219

135JA........ Agreed notice............................................................................. 221

135K.......... Marking and record keeping requirements................................. 223

135KA....... Notice requirements in respect of communications................... 224

135L.......... Inspection of records etc............................................................ 225

135M......... Revocation of remuneration notice............................................ 226

135N.......... Request for payment of equitable remuneration........................ 226

Division 3—The collecting society                                                                    227

135P.......... The collecting society................................................................ 227

135Q.......... Revocation of declaration........................................................... 228

135R.......... Annual report and accounts....................................................... 228

135S........... Amendment of rules................................................................... 229

Division 4—Interim copying                                                                                 230

135T.......... Appointment of notice holder................................................... 230

135U.......... Copying before declaration of collecting society....................... 230

135V.......... Preview copies........................................................................... 231

135W......... Notices by administering bodies................................................ 231

135X.......... Marking and record keeping requirements................................. 232

135Y.......... Effect of declaration of collecting society.................................. 232

Division 5—Miscellaneous                                                                                    233

135Z.......... Relevant right holder may authorise copying etc....................... 233

135ZA....... Copyright not to vest in copier................................................. 233

Part VB—Reproducing and communicating works etc. by educational and other institutions       234

Division 1—Preliminary                                                                                          234

135ZB....... Interpretation............................................................................. 234

135ZC....... Eligible items and photographic versions................................... 235

135ZE........ Part does not apply to computer programs............................... 236

135ZF........ Operation of collecting society rules......................................... 236

135ZFA..... Licensed communications.......................................................... 236

Division 2—Reproduction by educational institutions of works that are in hardcopy form        237

135ZGA.... Application of Division............................................................. 237

135ZG....... Multiple reproduction of insubstantial parts of works that are in hardcopy form            237

135ZH....... Copying of printed published editions by educational institutions 238

135ZJ........ Multiple reproduction of printed periodical articles by educational institutions               238

135ZK....... Multiple reproduction of works published in printed anthologies 239

135ZL........ Multiple reproduction of works that are in hardcopy form by educational institutions    239

135ZM...... Application of Division to certain illustrations that are in hardcopy form        240

Division 2A—Reproduction and communication of works that are in electronic form  242

135ZMA... Application of Division............................................................. 242

135ZMB... Multiple reproduction and communication of insubstantial parts of works that are in electronic form            242

135ZMC... Multiple reproduction and communication of periodical articles that are in electronic form by education institutions................................................................................................... 243

135ZMD... Multiple reproduction and communication of works that are in electronic form by educational institutions    244

135ZME.... Application of Division to certain illustrations in electronic form 245

Division 3—Reproduction and communication of works by institutions assisting persons with a print disability                                                                                                 247

135ZN....... Copying published editions by institutions assisting persons with a print disability       247

135ZP........ Multiple reproduction and communication of works by institutions assisting persons with a print disability................................................................................................... 247

135ZQ....... Making of relevant reproductions and relevant communications by institutions assisting persons with a print disability.................................................................................... 249

Division 4—Reproduction and communication of works etc. by institutions assisting persons with an intellectual disability                                                                       252

135ZR....... Copying of published editions by institutions assisting persons with an intellectual disability        252

135ZS........ Copying and communication of eligible items by institutions assisting persons with an intellectual disability................................................................................................... 252

135ZT....... Making of copies etc. for use in making copies or communications for a person with an intellectual disability................................................................................................... 253

Division 5—Equitable remuneration                                                                255

135ZU....... Remuneration notices................................................................. 255

135ZV....... Records notices.......................................................................... 255

135ZW...... Sampling notices........................................................................ 256

135ZWA... Electronic use notices................................................................. 257

135ZX....... Records notices and sampling notices: marking and record‑keeping requirements             259

135ZXA.... Electronic use notices: notice requirements etc.......................... 260

135ZY....... Inspection of records etc............................................................ 260

135ZZ....... Revocation of remuneration notice............................................ 261

135ZZA.... Request for payment of equitable remuneration........................ 261

Division 6—Collecting societies                                                                        263

135ZZB..... Collecting societies..................................................................... 263

135ZZC..... Revocation of declaration........................................................... 264

135ZZD.... Annual report and accounts....................................................... 265

135ZZE..... Amendment of rules................................................................... 265

Division 7—Miscellaneous                                                                                    266

135ZZF..... Rights of copyright owners....................................................... 266

135ZZG.... Copyright not to vest in copier................................................. 266

135ZZH.... Unauthorised use of copies........................................................ 267

Part VC—Retransmission of free‑to‑air broadcasts                                       268

Division 1—Preliminary                                                                                          268

135ZZI...... Definitions................................................................................. 268

135ZZJ...... Operation of collecting society rules......................................... 269

135ZZJA... Application of Part.................................................................... 269

Division 2—Retransmission of free‑to‑air broadcasts                            270

135ZZK.... Retransmission of free‑to‑air broadcasts................................... 270

135ZZL..... Remuneration notices................................................................. 270

135ZZM... Amount of equitable remuneration............................................ 271

135ZZN.... Record system........................................................................... 271

135ZZP..... Inspection of records etc............................................................ 272

135ZZQ.... Identity cards............................................................................. 273

135ZZR..... Revocation of remuneration notice............................................ 273

135ZZS..... Request for payment of equitable remuneration........................ 274

Division 3—Collecting societies                                                                        275

135ZZT..... Collecting societies..................................................................... 275

135ZZU.... Revocation of declaration........................................................... 276

135ZZV..... Annual report and accounts....................................................... 276

135ZZW.... Amendment of rules................................................................... 277

Division 4—Interim retransmissions                                                               278

135ZZX.... Appointment of notice holder................................................... 278

135ZZY..... Retransmitting before declaration of collecting society............. 278

135ZZZ..... Notices by retransmitters.......................................................... 278

135ZZZA.. Record keeping requirements..................................................... 279

135ZZZB.. Effect of declaration of collecting society.................................. 279

Division 5—Miscellaneous                                                                                    281

135ZZZC.. Relevant copyright owner may authorise retransmitting........... 281

135ZZZD.. Copyright not to vest under this Part........................................ 281

135ZZZE.. Licence to retransmit does not authorise copyright infringements 281

Part VI—The Copyright Tribunal                                                                              282

Division 1—Preliminary                                                                                          282

136............. Interpretation............................................................................. 282

137............. Cases to which licence schemes apply..................................... 284

Division 2—Constitution of the Tribunal                                                       285

138............. Constitution of Tribunal............................................................ 285

139............. Appointment of members of Tribunal....................................... 285

140............. Qualifications of members......................................................... 285

141............. Tenure of office.......................................................................... 286

141A.......... Seniority of Deputy Presidents................................................. 286

142............. Acting President......................................................................... 287

143............. Remuneration and allowances.................................................... 287

144............. Oath or affirmation of office...................................................... 287

144A.......... Disclosure of interests by members........................................... 287

144B.......... Removal from office for failure to disclose interest................... 288

145............. Resignation................................................................................. 288

146............. Sittings of the Tribunal.............................................................. 289

147............. President to arrange business of Tribunal.................................. 290

Division 3—Applications and references to the Tribunal                     291

148............. Interpretation............................................................................. 291

149............. Applications to Tribunal for determination of remuneration payable for making recording or film of a work  291

149A.......... Applications to Tribunal under section 47A............................. 291

150............. Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of a copy of the sound recording............................................... 292

151............. Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording.............................................. 292

152............. Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings................................................................................................... 293

152A.......... Applications to Tribunal for determination of amount of royalty payable for recording musical works          299

152B.......... Applications to Tribunal for determination of manner of paying royalty          300

153............. Applications to Tribunal for apportionment of royalty in respect of a record  301

153A.......... Applications to Tribunal under section 135H, subsection 135J(1) or subsection 135JA(1)             302

153B.......... Applications to Tribunal under subsection 135J(3).................. 302

153BA....... Application to the Tribunal under subsection 135JA(3)........... 303

153BB....... Application to the Tribunal under subsection 135ZME(3)...... 303

153C.......... Applications to the Tribunal under section 135ZV or subsection 135ZW(1) or 135ZWA(1)          304

153D.......... Applications to Tribunal under subsection 135ZW(3)............. 304

153DA....... Applications to the Tribunal under subsection 135ZWA(2).... 305

153E.......... Applications to Tribunal under subsection 183(5).................... 305

153F.......... Applications to Tribunal to declare collecting society for government copies   306

153G.......... Applications to Tribunal to revoke a declaration of a collecting society            307

153H.......... Time limit for deciding applications under section 153F or 153G 309

153J........... Amendment and revocation of a declaration on the declaration of another collecting society            309

153K.......... Applications to Tribunal for method of working out payment for government copies     310

153L.......... Applications to Tribunal for review of declarations of certain educational institutions     310

153M......... Applications to the Tribunal under subsection 135ZZM(1).... 311

153N.......... Applications to Tribunal under subsection 135ZZN(3)........... 312

154............. Reference of proposed licence schemes to Tribunal.................. 312

155............. Reference of existing licence schemes to Tribunal..................... 313

156............. Further reference of licence schemes to Tribunal....................... 315

157............. Application to Tribunal in relation to licences.......................... 317

158............. Effect of licence scheme being continued in operation pending order of the Tribunal        318

159............. Effect of order of Tribunal in relation to licences...................... 319

160............. Interim orders............................................................................. 321

161............. Reference of questions of law to Federal Court of Australia..... 322

162............. Agreements or awards not affected............................................ 323

Division 4—Procedure and evidence                                                               324

163............. Proceedings to be in public except in special circumstances...... 324

163A.......... Application may be made to Tribunal by the agent of the copyright owner      324

164............. Procedure................................................................................... 324

165............. Mistakes or errors in orders of the Tribunal.............................. 325

166............. Regulations as to procedure....................................................... 325

167............. Power to take evidence on oath................................................. 326

168............. Evidence in form of written statement....................................... 326

169............. Representation........................................................................... 326

Division 5—Miscellaneous                                                                                    327

170............. Secretary and other staff............................................................ 327

171............. Protection of members, barristers and witnesses....................... 327

172............. Disobedience to summons etc.................................................... 327

173............. Contempt of Tribunal etc.......................................................... 328

174............. Costs of proceedings.................................................................. 328

175............. Proof of orders of Tribunal........................................................ 329

Part VII—The Crown                                                                                                        330

Division 1—Crown copyright                                                                               330

176............. Crown copyright in original works made under direction of Crown.. 330

177............. Crown copyright in original works first published in Australia under direction of Crown                330

178............. Crown copyright in recordings and films made under direction of Crown         330

179............. Provisions relating to ownership of copyright may be modified by agreement  331

180............. Duration of Crown copyright in original works........................ 331

181............. Duration of Crown copyright in recordings and films............... 332

182............. Application of Parts III and IV to copyright subsisting by virtue of this Part  332

182A.......... Copyright in statutory instruments and judgments etc............. 332

Division 2—Use of copyright material for the Crown                             334

182B.......... Definitions................................................................................. 334

182C.......... Relevant collecting society......................................................... 334

183............. Use of copyright material for the services of the Crown........... 335

183A.......... Special arrangements for copying for services of government... 336

183B.......... Payment and recovery of equitable remuneration payable for government copies             337

183C.......... Powers of collecting society to carry out sampling................... 338

183D.......... Annual report and accounts of collecting society...................... 339

183E.......... Alteration of rules of collecting society..................................... 340

Part VIII—Extension or restriction of operation of Act                               341

184............. Application of Act to countries other than Australia................ 341

185............. Denial of copyright to citizens of countries not giving adequate protection to Australian works     343

186............. Application of Act to international organizations..................... 344

187............. Original works made or first published by international organizations              344

188............. Subject‑matter, other than original works, made or first published by international organizations    345

Part IX—Moral rights of authors of literary, dramatic, musical or artistic works and cinematograph films                                                                                                                                    347

Division 1—Preliminary                                                                                          347

189............. Definitions................................................................................. 347

190............. Moral rights conferred on individuals........................................ 349

191............. Director, producer and screenwriter of cinematograph film...... 349

192............. Rights to be additional to other rights........................................ 350

Division 2—Right of attribution of authorship                                            351

193............. Author’s right of attribution of authorship............................... 351

194............. Acts giving rise to right of attribution of authorship................. 351

195............. Nature of the identification of author........................................ 352

195AA....... Identification of author to be clear and reasonably prominent.. 352

195AB....... What is a reasonably prominent identification.......................... 352

Division 3—Right not to have authorship of a work falsely attributed   353

195AC....... Author’s right not to have authorship falsely attributed........... 353

195AD....... Acts of false attribution of authorship of a literary, dramatic or musical work  353

195AE....... Acts of false attribution of authorship of artistic work............. 354

195AF....... Acts of false attribution of authorship of cinematograph film.. 354

195AG....... Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work            355

195AH....... Act of false attribution of authorship of altered cinematograph film  356

Division 4—Right of integrity of authorship of a work                           357

195AI........ Author’s right of integrity of authorship................................... 357

195AJ........ Derogatory treatment of literary, dramatic or musical work..... 357

195AK....... Derogatory treatment of artistic work....................................... 357

195AL....... Derogatory treatment of cinematograph film............................. 358

Division 5—Duration and exercise of moral rights                                  359

195AM...... Duration of moral rights............................................................. 359

195AN....... Exercise of moral rights.............................................................. 359

Division 6—Infringement of moral rights                                                      361

195AO....... Infringement of right of attribution of authorship..................... 361

195AP....... Infringement of right not to have authorship falsely attributed. 361

195AQ....... Infringement of right of integrity of authorship......................... 361

195AR....... No infringement of right of attribution of authorship if it was reasonable not to identify the author                362

195AS........ No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable     364

195AT....... Certain treatment of works not to constitute an infringement of the author’s right of integrity of authorship 365

195AU....... Infringement by importation for sale or other dealing............... 369

195AV....... Infringement by sale and other dealings..................................... 369

195AVA.... Matters to be taken into account............................................... 370

195AVB.... Communication by use of certain facilities................................ 370

195AW...... Author’s consent to act or omission—films or works in films. 370

195AWA... Author’s consent to act or omission—work that is not a film or included in a film           371

195AWB... Consent invalidated by duress or false or misleading statements 372

195AX....... Acts or omissions outside Australia.......................................... 372

Division 7—Remedies for infringements of moral rights                      373

195AY....... Definition etc............................................................................. 373

195AZ....... Actions for infringement of moral rights.................................... 373

195AZA.... Remedies for infringements of moral rights............................... 373

195AZB.... Saving of other rights and remedies............................................ 375

195AZC.... Jurisdiction of courts................................................................. 376

195AZD.... Presumption as to subsistence of copyright.............................. 376

195AZE..... Presumption as to subsistence of moral rights.......................... 376

195AZF..... Presumptions in relation to authorship of work........................ 376

195AZG.... Other presumptions in relation to literary, dramatic, musical or artistic work   377

Division 8—Miscellaneous                                                                                    378

195AZH.... Parts of works............................................................................ 378

195AZI...... Works of joint authorship.......................................................... 378

195AZJ..... Cinematograph films that have more than one principal director 378

195AZK.... Cinematograph films that have more than one principal producer 379

195AZL..... Cinematograph films that have more than one principal screenwriter                379

195AZM... Application—right of attribution of authorship........................ 380

195AZN.... Application—right not to have authorship falsely attributed... 380

195AZO.... Application—right of integrity of authorship........................... 381

Part X—Miscellaneous                                                                                                    382

195A.......... Interpretation............................................................................. 382

195B.......... Review of certain decisions........................................................ 383

196............. Assignments and licences in respect of copyright..................... 384

197............. Prospective ownership of copyright......................................... 385

198............. Copyright to pass under will with unpublished work............... 385

198A.......... Non‑infringement of trade mark in relation to the importation of copyright material        386

199............. Reception of broadcasts............................................................. 386

200............. Use of works and broadcasts for educational purposes............ 388

200AA....... Use of broadcasts by institutions assisting persons with an intellectual disability            389

201............. Delivery of library material to the National Library.................. 389

202............. Groundless threats of legal proceedings..................................... 390

203............. Limitation on power of courts to grant relief in proceedings under this Act      391

203A.......... Retention of declarations in relation to copies made by libraries, archives or institutions 391

203D.......... Arrangement of declarations and records................................... 392

203E.......... Inspection of records and declarations retained by libraries, archives or institutions         392

203F.......... Additional offences in relation to the making and retention of records and declarations    395

203G.......... Additional offences relating to declarations under subsections 116A(3) and 132(5F)       395

203H.......... Notation of certain copies etc.................................................... 396

Part XI—Transitional                                                                                                       400

Division 1—Preliminary                                                                                          400

204............. Interpretation............................................................................. 400

205............. References to making of works, recordings and films................ 401

206............. References in other laws or instruments to copyright............... 401

207............. Application................................................................................ 402

208............. Authorship of photographs....................................................... 402

209............. Publication................................................................................. 402

Division 2—Original works                                                                                   404

210............. Expired copyright not to revive................................................. 404

211............. Original works in which copyright subsists.............................. 404

213............. Ownership of copyright............................................................ 404

214............. Infringement by importation, sale and other dealings................ 406

215............. Recording of musical works....................................................... 406

216............. Publication of artistic works...................................................... 406

217............. Reconstruction of buildings....................................................... 407

218............. Industrial designs....................................................................... 407

219............. Reproduction of work upon payment of royalties.................... 407

Division 3—Subject‑matter other than works                                             410

220............. Sound recordings........................................................................ 410

221............. Cinematograph films.................................................................. 410

222............. Application of Act to dramatic works and photographs comprised in cinematograph films             410

223............. Television broadcasts and sound broadcasts............................. 410

224............. Published editions of works....................................................... 411

225............. Infringement by importation, sale and other dealings................ 411

Division 4—Miscellaneous                                                                                    412

226............. Actions for infringement............................................................ 412

227............. Infringing copies......................................................................... 412

228............. Actions where copyright subject to exclusive licence................ 412

229............. Offences and summary proceedings.......................................... 412

230............. Limitation of actions.................................................................. 412

231............. Restriction of importation of printed copies of works.............. 413

232............. References and applications to Tribunal in relation to licence schemes              413

233............. Duration of Crown copyright in photographs........................... 413

234............. Duration of Crown copyright in recordings............................... 414

235............. Crown copyright in films........................................................... 414

236............. Works made or published by international organizations.......... 414

237............. Subject‑matter, other than original works, made or published by international organizations           414

239............. Assignments and licences........................................................... 415

240............. Bequests..................................................................................... 416

241............. Delivery of library material to National Library........................ 417

242............. Groundless threats of legal proceedings..................................... 417

Division 5—Works made before 1 July, 1912                                             418

243............. Interpretation............................................................................. 418

244............. Application................................................................................ 418

245............. Rights conferred by Copyright Act, 1911................................. 418

246............. Performing rights........................................................................ 418

247............. Contributions to periodicals...................................................... 419

248............. Assignments and licences........................................................... 419

Part XIA—Performers’ protection                                                                            421

Division 1—Preliminary                                                                                          421

248A.......... Interpretation............................................................................. 421

248B.......... Educational purposes................................................................. 425

248C.......... Exempt recordings cease to be exempt recordings in certain circumstances        426

248CA....... Protection period....................................................................... 426

248D.......... Private and domestic use............................................................ 427

248F.......... Application................................................................................ 427

Division 2—Actions by performers                                                                   429

248G.......... What constitutes unauthorised use............................................ 429

248H.......... Copying sound recordings for broadcasting............................... 431

248J........... Actions for unauthorised use..................................................... 431

248K.......... Exercise of jurisdiction............................................................... 433

248L.......... Appeals...................................................................................... 433

248M......... Jurisdiction of Federal Court..................................................... 433

248MA...... Jurisdiction of Federal Magistrates Court................................. 433

248N.......... Right to bring an action not assignable....................................... 433

Division 3—Offences                                                                                                434

248P.......... Offences involving unauthorised recording, broadcasting etc. of performances  434

248Q.......... Other offences in relation to performances................................ 435

248QA....... Further offences relating to sound recordings of certain performances               437

248QB....... Protection against multiple prosecutions for same act.............. 438

248S........... Prosecutions for offences........................................................... 438

248T.......... Destruction or delivery up of unauthorised recordings............. 439

Division 4—Extension of protection to foreign countries                    440

248U.......... Application to foreign countries................................................ 440

248V.......... Denial of protection to citizens of countries not giving adequate protection to Australian performances         441

Part XII—Regulations                                                                                                     442

249............. Regulations................................................................................. 442

The Schedule                                                                                                                          443

Notes                                                                                                                                          445


An Act relating to copyright and the protection of certain performances, and for other purposes

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Copyright Act 1968.

2  Commencement [see Note 1]

                   This Act shall come into operation on a date to be fixed by Proclamation.

4  Extension to external Territories

                   This Act extends to every external Territory.

5  Exclusion of Imperial Copyright Act, 1911

             (1)  This Act operates to the exclusion of the Copyright Act, 1911.

             (2)  For the purposes of section 8 of the Acts Interpretation Act 1901‑1966, the Copyright Act, 1911 shall be deemed to be an Act passed by the Parliament of the Commonwealth and to be repealed by this Act, and the enactment of Part XI shall not be taken to affect the operation of section 8 of the Acts Interpretation Act 1901‑1966 as it operates by virtue of this subsection in relation to matters to which that Part does not apply.

6  Repeal of Copyright Acts

                   The following Acts are repealed:

Copyright Act 1912;

Copyright Act 1933;

Copyright Act 1935;

Copyright Act 1963.

7  Act to bind the Crown

                   Subject to Part VII, this Act binds the Crown but nothing in this Act renders the Crown liable to be prosecuted for an offence.

8  Copyright not to subsist except by virtue of this Act

                   Subject to section 8A, copyright does not subsist otherwise than by virtue of this Act.

8A  Prerogative rights of the Crown in the nature of copyright

             (1)  Subject to subsection (2), this Act does not affect any prerogative right or privilege of the Crown.

             (2)  Where a right or privilege of the Crown by way of copyright subsists in a work or published edition of a work, a person does not infringe that right or privilege by doing, or authorizing the doing of, an act in relation to the work or edition without the licence of the Crown if, assuming that that right or privilege of the Crown did not subsist in the work or edition, but copyright subsisted under this Act in the work or edition and was owned by a person other than the Crown, the person would not infringe the copyright of that owner in the work or edition by doing, or by authorizing the doing of, that act without the licence of the owner.

             (3)  Nothing in subsection (2) shall be taken to limit the duration of the right or privilege of the Crown by way of copyright in a work or published edition of a work.

9  Operation of other laws

             (1)  This Act does not affect the right of, or of a person deriving title directly or indirectly from, the Commonwealth or a State to sell, use or otherwise deal with articles that have been, or are, forfeited under a law of the Commonwealth or of the State.

             (3)  This Act does not affect the operation of the law relating to breaches of trust or confidence.

9A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IIInterpretation

  

10  Interpretation

             (1)  In this Act, unless the contrary intention appears:

accessory, in relation to an article, means one or more of the following:

                     (a)  a label affixed to, displayed on, incorporated into the surface of, or accompanying, the article;

                     (b)  the packaging or container in which the article is packaged or contained;

                     (c)  a label affixed to, displayed on, incorporated into the surface of, or accompanying, the packaging or container in which the article is packaged or contained;

                     (d)  a written instruction, warranty or other information provided with the article;

                     (e)  a record embodying an instructional sound recording, or a copy of an instructional cinematograph film, provided with the article;

but does not include any label, packaging or container on which the olympic symbol (within the meaning of the Olympic Insignia Protection Act 1987) is reproduced.

Note:          See also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

adaptation means:

                     (a)  in relation to a literary work in a nondramatic form a version of the work (whether in its original language or in a different language) in a dramatic form;

                     (b)  in relation to a literary work in a dramatic form a version of the work (whether in its original language or in a different language) in a nondramatic form;

                    (ba)  in relation to a literary work being a computer program—a version of the work (whether or not in the language, code or notation in which the work was originally expressed) not being a reproduction of the work;

                     (c)  in relation to a literary work (whether in a nondramatic form or in a dramatic form):

                              (i)  a translation of the work; or

                             (ii)  a version of the work in which a story or action is conveyed solely or principally by means of pictures; and

                     (d)  in relation to a musical work—an arrangement or transcription of the work.

approved label means a label approved under:

                     (a)  Part 2 of the Agvet Code of a State or of the Northern Territory; or

                     (b)  Part 2 of the Agvet Code of the participating Territories within the meaning of the Agricultural and Veterinary Chemicals Act 1994.

archives means:

                     (a)  archival material in the custody of:

                              (i)  the Australian Archives;

                             (ii)  the Archives Office of New South Wales established by the Archives Act 1960 of the State of New South Wales;

                            (iii)  the Public Record Office established by the Public Records Act 1973 of the State of Victoria; or

                            (iv)  the Archives Office of Tasmania established by the Archives Act 1965 of the State of Tasmania; or

                     (b)  a collection of documents or other material to which this paragraph applies by virtue of subsection (4).

artistic work means:

                     (a)  a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

                     (b)  a building or a model of a building, whether the building or model is of artistic quality or not; or

                     (c)  a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.

Australia includes the external Territories.

Australian protected person means a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948‑1967, is, for the purposes of that Act, under the protection of the Australian Government.

author, in relation to a photograph, means the person who took the photograph.

authorized officer, in relation to a library or archives, means the officer in charge of that library or archives or a person authorized by that officer to act on his or her behalf.

broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

Note:          A broadcasting service does not include the following:

(a)    a service (including a teletext service) that provides only data or only text (with or without associated images); or

(b)    a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service.

building includes a structure of any kind.

calendar year means a period of 12 months commencing on 1 January.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

chemical product has the same meaning as in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.

cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:

                     (a)  of being shown as a moving picture; or

                     (b)  of being embodied in another article or thing by the use of which it can be so shown;

and includes the aggregate of the sounds embodied in a soundtrack associated with such visual images.

circumvention device means a device (including a computer program) having only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an technological protection measure.

circumvention service means a service, the performance of which has only a limited commercially significant purpose, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an technological protection measure.

communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject‑matter, including a performance or live performance within the meaning of this Act.

computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

construction includes erection, and reconstruction has a corresponding meaning.

copy, in relation to a cinematograph film, means any article or thing in which the visual images or sounds comprising the film are embodied.

device includes a plate.

dramatic work includes:

                     (a)  a choreographic show or other dumb show; and

                     (b)  a scenario or script for a cinematograph film;

but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.

drawing includes a diagram, map, chart or plan.

educational institution means:

                    (aa)  an institution at which education is provided at preschool or kindergarten standard;

                     (a)  a school or similar institution at which fulltime primary education or fulltime secondary education is provided or both fulltime primary education and fulltime secondary education are provided;

                     (b)  a university, a college of advanced education or a technical and further education institution;

                     (c)  an institution that conducts courses of primary, secondary or tertiary education by correspondence or on an external study basis;

                     (d)  a school of nursing in relation to which a notice published under subsection 10A(4) is in force;

                     (e)  an undertaking within a hospital, being an undertaking:

                              (i)  that conducts courses of study or training in the provision of medical services, or in the provision of services incidental to the provision of medical services; and

                             (ii)  in relation to which a notice published under subsection 10A(4) is in force;

                      (f)  a teacher education centre in relation to which a notice published under subsection 10A(4) is in force;

                     (g)  an institution in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function of the institution is the provision of courses of study or training for one of the following purposes:

                              (i)  general education;

                             (ii)  the preparation of people for a particular occupation or profession;

                            (iii)  the continuing education of people engaged in a particular occupation or profession;

                            (iv)  the teaching of English to people whose first language is not English;

                     (h)  an undertaking within a body administering an educational institution of a kind referred to in a preceding paragraph of this definition in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function, or one of the principal functions, of the undertaking is the provision of teacher training to people engaged as instructors in educational institutions of a kind referred to in a preceding paragraph of this definition, or of 2 or more such kinds; or

                      (i)  an institution, or an undertaking within a body administering an educational institution of a kind referred to in a preceding paragraph of this definition, in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function, or one of the principal functions, of the institution, or undertaking, is the providing of material to educational institutions of a kind referred to in a preceding paragraph of this definition, or to educational institutions of 2 or more such kinds, and that that activity is undertaken for the purpose of helping those institutions in their teaching purposes.

electronic literary or music item means:

                     (a)  a book in electronic form; or

                     (b)  a periodical publication in electronic form; or

                     (c)  sheet music in electronic form;

regardless of whether there is a printed form.

electronic rights management information, in relation to a work or other subject‑matter, means information that:

                     (a)  is electronic; and

                     (b)  either:

                              (i)  is or was attached to, or is or was embodied in, a copy of the work or subject‑matter; or

                             (ii)  appears or appeared in connection with a communication, or the making available, of the work or subject‑matter; and

                     (c)  either:

                              (i)  identifies the work or subject‑matter, and its author or copyright owner (including such information represented as numbers or codes); or

                             (ii)  identifies or indicates some or all of the terms and conditions on which the work or subject‑matter may be used, or indicates that the use of the work or subject‑matter is subject to terms or conditions (including such information represented as numbers or codes).

engraving includes an etching, lithograph, product of photogravure, woodcut, print or similar work, not being a photograph.

exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorizing the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the copyright would, but for the licence, have the exclusive right to do, and exclusive licensee has a corresponding meaning.

future copyright means copyright to come into existence at a future time or upon the happening of a future event.

infringing copy means:

                     (a)  in relation to a work—a reproduction of the work, or of an adaptation of the work, not being a copy of a cinematograph film of the work or adaptation;

                     (b)  in relation to a sound recording—a copy of the sound recording not being a sound‑track associated with visual images forming part of a cinematograph film;

                     (c)  in relation to a cinematograph film—a copy of the film;

                     (d)  in relation to a television broadcast or a sound broadcast—a copy of a cinematograph film of the broadcast or a record embodying a sound recording of the broadcast; and

                     (e)  in relation to a published edition of a work—a facsimile copy of the edition;

being an article the making of which constituted an infringement of the copyright in the work, recording, film, broadcast or edition or, in the case of an article imported without the licence of the owner of the copyright, would have constituted an infringement of that copyright if the article had been made in Australia by the importer, but does not include:

                      (f)  a non‑infringing book whose importation does not constitute an infringement of that copyright; or

                     (g)  a non‑infringing accessory whose importation does not constitute an infringement of that copyright; or

                     (h)  a non‑infringing copy of a sound recording whose importation does not infringe that copyright; or

                      (i)  a non‑infringing copy of a computer program whose importation does not infringe that copyright; or

                      (j)  a non‑infringing copy of an electronic literary or music item whose importation does not infringe that copyright.

institution includes an educational institution.

institution assisting persons with an intellectual disability means:

                     (a)  an educational institution; or

                     (b)  any other institution which has as its principal function, or one or its principal functions, the provision of assistance to persons with an intellectual disability and in relation to which a declaration under paragraph 10A(1)(d) is in force.

institution assisting persons with a print disability means:

                     (a)  an educational institution; or

                     (b)  any other institution which has as its principal function, or one of its principal functions, the provision of literary or dramatic works to persons with a print disability and in relation to which a declaration under paragraph 10A(1)(c) is in force.

international organization to which this Act applies means an organization that is declared by regulations made for the purposes of section 186 to be an international organization to which this Act applies, and includes:

                     (a)  an organ of, or office within, an organization that is so declared; and

                     (b)  a commission, council or other body established by such an organization or organ.

judicial proceeding means a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath.

law of the Commonwealth includes a law of a Territory.

literary work includes:

                     (a)  a table, or compilation, expressed in words, figures or symbols; and

                     (b)  a computer program or compilation of computer programs.

manuscript, in relation to a literary, dramatic or musical work, means the document embodying the work as initially prepared by the author, whether the document is in hardcopy form, electronic form or any other form.

material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).

non‑infringing accessory means an accessory made in:

                     (a)  a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or

                     (b)  a country that is a member of the World Trade Organization and has a law that provides consistently with the TRIPS Agreement for:

                              (i)  the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and

                             (ii)  the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film;

where:

                     (c)  the making of any copy of a work, or any reproduction of a published edition of a work, that is, or is on, or is embodied in, the accessory; or

                     (d)  the making of any record embodying a sound recording, or any copy of a cinematograph film, that is the accessory;

was authorised by the owner of the copyright in that country in the work, edition, recording or film, as the case may be.

non‑infringing book means a book made (otherwise than under a compulsory licence) in a country specified in regulations made for the purposes of subsection 184(1), being a book whose making did not constitute an infringement of any copyright subsisting in a work, or in a published edition of a work, under a law of that country.

non‑infringing copy:

                     (a)  in relation to a sound recording, has the meaning given by section 10AA; and

                     (b)  in relation to a computer program, has the meaning given by section 10AB; and

                     (c)  in relation to an electronic literary or music item, has the meaning given by section 10AC.

officer in charge means:

                     (a)  in relation to archives—the archivist or other person having, for the time being, immediate care and control of the collection comprising the archives; and

                     (c)  in relation to a library—the librarian or other person having, for the time being, immediate care and control of the collection comprising the library.

person with a print disability means:

                     (a)  a person without sight; or

                     (b)  a person whose sight is severely impaired; or

                     (c)  a person unable to hold or manipulate books or to focus or move his or her eyes; or

                     (d)  a person with a perceptual disability.

photograph means a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography, and photographic has a corresponding meaning.

plate includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance.

prospective owner means:

                     (a)  in relation to a future copyright that is not the subject of an agreement of a kind referred to in subsection 19(1)—the person who will be the owner of the copyright on its coming into existence; or

                     (b)  in relation to a future copyright that is the subject of such an agreement—the person in whom, by virtue of that subsection, the copyright will vest on its coming into existence.

qualifying country means:

                     (a)  a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or

                     (b)  a country that is a member of the World Trade Organization and has a law that provides consistently with the TRIPS Agreement for:

                              (i)  the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and

                             (ii)  the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film.

reception equipment means equipment whose operation, either alone or together with other equipment, enables people to hear or see a work or other subject‑matter that is communicated.

record means a disc, tape, paper or other device in which sounds are embodied.

retransmission, in relation to a broadcast, means a retransmission of the broadcast, where:

                     (a)  the content of the broadcast is unaltered (even if the technique used to achieve retransmission is different to the technique used to achieve the original transmission); and

                     (b)  either:

                              (i)  in any case—the retransmission is simultaneous with the original transmission; or

                             (ii)  if the retransmission is in an area that has, wholly or partly, different local time to the area of the original transmission—the retransmission is delayed until no later than the equivalent local time.

sculpture includes a cast or model made for purposes of sculpture.

simulcasting means simultaneously broadcasting a broadcasting service in both analog and digital form in accordance with the requirements of the Broadcasting Services Act 1992 or of any prescribed legislative provisions relating to digital broadcasting.

sound broadcast means sounds broadcast otherwise than as part of a television broadcast.

sound recording means the aggregate of the sounds embodied in a record.

sound‑track, in relation to visual images forming part of a cinematograph film, means:

                     (a)  the part of any article or thing, being an article or thing in which those visual images are embodied, in which sounds are embodied; or

                     (b)  a disc, tape or other device in which sounds are embodied and which is made available by the maker of the film for use in conjunction with the article or thing in which those visual images are embodied.

sufficient acknowledgement, in relation to a work, means an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknowledgement of his or her name is not to be made, also identifying the author.

technological protection measure means a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject‑matter by either or both of the following means:

                     (a)  by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject‑matter) with the authority of the owner or exclusive licensee of the copyright;

                     (b)  through a copy control mechanism.

television broadcast means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images.

the Australian Broadcasting Commission means the Australian Broadcasting Commission that was established under the Broadcasting and Television Act 1942.

the Australian Broadcasting Corporation means the Australian Broadcasting Corporation established under the Australian Broadcasting Corporation Act 1983.

the Commonwealth includes the Administration of a Territory.

the Copyright Act, 1911 means the Imperial Act known as the Copyright Act, 1911.

the Copyright Tribunal or the Tribunal means the Copyright Tribunal established by Part VI, and includes a member of that Tribunal exercising powers of that Tribunal.

the Crown includes the Crown in right of a State, the Crown in right of the Northern Territory and the Crown in right of Norfolk Island and also includes the Administration of a Territory other than the Northern Territory or Norfolk Island.

the National Librarian has the same meaning as in the National Library Act 1960‑1967.

the National Library means the National Library established under the National Library Act 1960‑1967.

the Special Broadcasting Service means the Special Broadcasting Service that was referred to in section 5 of the Special Broadcasting Service Act 1991.

the Special Broadcasting Service Corporation means the body corporate preserved and continued in existence as the Special Broadcasting Service Corporation under section 5 of the Special Broadcasting Service Act 1991.

to the public means to the public within or outside Australia.

TRIPS Agreement means the Agreement on Trade‑Related Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.

Note:          The English text of the Marrakesh Agreement establishing the World Trade Organization is set out in Australian Treaty Series 1995 No. 8.

will includes a codicil.

work means a literary, dramatic, musical or artistic work.

work of joint authorship means a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors.

writing means a mode of representing or reproducing words, figures or symbols in a visible form, and written has a corresponding meaning.

          (1A)  Without limiting the meaning of the expression educational purposes in this Act, a copy of the whole or a part of a work or other subject‑matter shall be taken, for the purposes of the provision in which the expression appears, to have been made, used or retained, as the case may be, for the educational purposes of an educational institution if:

                     (a)  it is made or retained for use, or is used, in connection with a particular course of instruction provided by the institution; or

                     (b)  it is made or retained for inclusion, or is included, in the collection of a library of the institution.

             (2)  Without limiting the meaning of the expression reasonable portion in this Act, where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of that work, being an edition of not less than 10 pages, a copy of part of that work, as it appears in that edition, shall be taken to contain only a reasonable portion of that work if the pages that are copied in the edition:

                     (a)  do not exceed, in the aggregate, 10% of the number of pages in that edition; or

                     (b)  in a case where the work is divided into chapters exceed, in the aggregate, 10% of the number of pages in that edition but contain only the whole or part of a single chapter of the work.

          (2A)  Without limiting the meaning of the expression reasonable portion in this Act, if a person makes a reproduction of a part of:

                     (a)  a published literary work (other than a computer program or an electronic compilation, such as a database); or

                     (b)  a published dramatic work;

being a work that is in electronic form, the reproduction is taken to contain only a reasonable portion of the work if:

                     (c)  the number of words copied does not exceed, in the aggregate, 10% of the number of words in the work; or

                     (d)  if the work is divided into chapters—the number of words copied exceeds, in the aggregate, 10% of the number of words in the work, but the reproduction contains only the whole or part of a single chapter of the work.

          (2B)  If a published literary or dramatic work is contained in a published edition of the work and is separately available in electronic form, a reproduction of a part of the work is taken to contain only a reasonable portion of the work if it is taken to do so either under subsection (2) or (2A), whether or not it does so under both of them.

          (2C)  If:

                     (a)  a person makes a reproduction of a part of a published literary or dramatic work; and

                     (b)  the reproduction is taken to contain only a reasonable portion of the work under subsection (2) or (2A);

subsection (2) or (2A) does not apply in relation to any subsequent reproduction made by the person of any other part of the same work.

             (3)  In this Act, unless the contrary intention appears:

                     (a)  a reference to the body administering an institution shall be read as:

                              (i)  in a case where the institution is a body corporate—a reference to the institution; or

                             (ii)  in any other case—a reference to the body or person (including the Crown) having ultimate responsibility for the administration of the institution;

                     (b)  a reference to the body administering a library or archives shall be read as a reference to the body (whether incorporated or not), or the person (including the Crown), having ultimate responsibility for the administration of the library or archives;

                     (c)  a reference to a copy of a sound recording shall be read as a reference to a record embodying a sound recording or a substantial part of a sound recording being a record derived directly or indirectly from a record produced upon the making of a sound recording;

                     (e)  a reference to the Crown in right of a State shall be read as including a reference to the Crown in right of the Northern Territory and the Crown in right of Norfolk Island;

                      (f)  a reference to the custodian in charge of the copying records of an educational institution, an institution assisting persons with a print disability or an institution assisting persons with an intellectual disability shall be read as a reference to the person having responsibility for the day‑to‑day administration of the institution;

                     (g)  a reference to the making, by reprographic reproduction, of a copy of a document, or of the whole or a part of a work, shall be read as a reference to the making of a facsimile copy of the document or the whole or that part of the work, being a facsimile copy of any size or form;

                     (h)  a reference to a copy of a work, or of a part of a work, for a person with a print disability is taken to be a reference to:

                              (i)  a record embodying a sound recording of the work, or of the part of the work, being a record made by, or on behalf of, the body administering an institution assisting persons with a print disability and so made for the sole purpose of use in the provision, whether by the institution or otherwise, of assistance to a person or persons with a print disability; or

                             (ii)  a Braille version, large‑print version or photographic version of the work, or of the part of the work, being a Braille version, large‑print version or photographic version, as the case may be, made by, or on behalf of, the body administering an institution assisting persons with a print disability and so made for the sole purpose of use in the provision, whether by the institution or otherwise, of assistance to a person or persons with a print disability;

                    (ha)  a reference to a copy for a person with an intellectual disability, in relation to the whole or a part of an eligible item within the meaning of Part VB, shall be read as a reference to a copy, within the meaning of that Part, of an eligible item, or of a part of an eligible item, as the case may be, made by, or on behalf of, the body administering an institution assisting persons with an intellectual disability, being a copy that is made for the sole purpose of use in the provision, whether by the institution or otherwise, of assistance to a person or persons with an intellectual disability;

                      (j)  a reference to a microform copy of the whole or a part of a work shall be read as a reference to a copy of the whole or a part of the work produced by miniaturizing the graphic symbols of which the work is composed;

                     (k)  a reference to a periodical publication shall be read as a reference to an issue of a periodical publication and a reference to articles contained in the same periodical publication shall be read as a reference to articles contained in the same issue of that periodical publication;

                      (l)  a reference to a record embodying a sound recording shall be read as a reference to:

                              (i)  a record produced upon the making of a sound recording; or

                             (ii)  another record embodying the sound recording directly or indirectly derived from a record so produced;

                    (m)  a reference to a relevant record, or a relevant declaration, in relation to the making, in reliance on a particular section (other than section 49):

                              (i)  of a copy, or a copy for a person with a print disability, of the whole or a part of a work; or

                            (ia)  of a copy for a person with an intellectual disability of the whole or a part of an eligible item; or

                             (ii)  of a copy of a sound recording or a cinematograph film;

                            shall be read as a reference to any record or declaration of a kind referred to in that section that is required by this Act to be made in relation to the making of that copy;

                   (ma)  a reference to a relevant declaration, in relation to the making, in reliance on section 49, of a copy of the whole or a part of a work, shall be read as a reference to:

                              (i)  in a case where the copy is made in reliance on subsection 49(2)—a declaration of the kind referred to in subsection 49(1) that is furnished in relation to the making of the copy;

                             (ii)  in a case where the copy is made in reliance on subsection 49(2C)—a declaration of the kind referred to in paragraph 49(2C)(b) that is made in relation to the making of the copy; or

                            (iii)  in any case—a declaration of the kind referred to in subsection 49(5) that is made in relation to the making of the copy; and

                     (n)  a reference to a State shall be read as including a reference to the Northern Territory and Norfolk Island and a reference to a Territory shall be read as not including a reference to the Northern Territory or Norfolk Island.

             (4)  Where:

                     (a)  a collection of documents or other material of historical significance or public interest that is in the custody of a body, whether incorporated or unincorporated, is being maintained by the body for the purpose of conserving and preserving those documents or other material; and

                     (b)  the body does not maintain and operate the collection for the purpose of deriving a profit;

paragraph (b) of the definition of archives in subsection (1) applies to that collection.

Example:    Museums and galleries are examples of bodies that could have collections covered by paragraph (b) of the definition of archives.

             (5)  For the purposes of the definition of copy in subsection (1), such a copy includes any form (whether visible or not) of storage of a cinematograph film, or a substantial part of a cinematograph film, (whether or not the copy of the film, or a substantial part of the film, can be reproduced).

             (6)  For the purposes of paragraph 10(3)(c), a reference to a copy of a sound recording includes any form (whether visible or not) of storage of the sound recording, or a substantial part of the sound recording, (whether or not the copy of the recording, or a substantial part of the recording, can be reproduced).

10AA  Non‑infringing copy of a sound recording

Minimum requirements

             (1)  A copy of a sound recording is a non‑infringing copy only if it is made by or with the consent of:

                     (a)  the owner of the copyright or related right in the sound recording in the country (the copy country) in which the copy was made; or

                     (b)  the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the copy country did not provide for copyright or a related right in sound recordings when the sound recording was made; or

                     (c)  the maker of the sound recording, if neither the law of the copy country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when the sound recording was made.

Extra requirements for copies of recordings of works subject to Australian copyright

             (2)  If the sound recording is of a work that is a literary, dramatic or musical work in which copyright subsists in Australia, the copy is a non‑infringing copy only if:

                     (a)  copyright subsists in the work under the law of the copy country; and

                     (b)  the making of the copy does not infringe the copyright in the work under the law of the copy country; and

                     (c)  the copy country meets the requirements of subsection (3).

To avoid doubt, the requirements of this subsection are additional to those of subsection (1).

Requirements for copy country

             (3)  The copy country mentioned in subsection (2) must:

                     (a)  be a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or

                     (b)  be a member of the World Trade Organization and have a law that provides consistently with the TRIPS Agreement for:

                              (i)  the ownership and duration of copyright in literary, dramatic and musical works; and

                             (ii)  the owner of the copyright in the work to have rights relating to the reproduction of the work.

Australian copyright may result from Act or regulations

             (4)  For the purposes of subsection (2) it does not matter whether the copyright in the work subsists in Australia as a result of this Act or as a result of the regulations made for the purposes of section 184.

10AB  Non‑infringing copy of a computer program

                   A copy of a computer program is a non‑infringing copy only if:

                     (a)  it is made in a qualifying country; and

                     (b)  its making did not constitute an infringement of any copyright in a work under a law of that country.

10AC  Non‑infringing copy of an electronic literary or music item

                   A copy of an electronic literary or music item is a non‑infringing copy only if:

                     (a)  it is made in a qualifying country; and

                     (b)  its making did not constitute an infringement of any copyright in a work, or in a published edition of a work, under a law of that country.

10AD  Accessories to imported articles

Accessories

             (1)  If a person imports into Australia:

                     (a)  an article that has embodied in it a copy of a computer program; or

                     (b)  an article that has embodied in it a copy of an electronic literary or music item; or

                     (c)  an article that has embodied in it a copy of a sound recording;

a copy of any work or other subject matter (other than a feature film) that is on, embodied in, or included with, the article on its importation is taken to be an accessory to the article.

Note:          See also sections 44C and 112C (about the non‑infringement of copyright in works or other subject matter that are accessories to imported articles).

Definition

             (2)  In this section:

feature film means a cinematograph film that:

                     (a)  is produced wholly or principally:

                              (i)  for exhibition to the public in cinemas or by way of television broadcasting; or

                             (ii)  for sale or rental to the public where it is reasonable to assume that the viewing of the film (without electronic interactive involvement with the film) would be the primary object of any such sale or rental; and

                     (b)  is more than 20 minutes in duration.

Interpretation

             (3)  This section does not limit the meaning of accessory in subsection 10(1).

10A  Declarations and notices relating to certain bodies and institutions

             (1)  The Attorney‑General may, by notice in writing published in the Gazette:

                     (c)  declare an institution to be, for the purposes of this Act, an institution assisting persons with a print disability; or

                     (d)  declare an institution to be, for the purposes of this Act, an institution assisting persons with an intellectual disability.

             (2)  The Attorney‑General may, by notice in writing published in the Gazette, revoke a declaration made under subsection (1).

             (3)  The Attorney‑General shall cause a copy of a notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the notice is published in the Gazette.

             (4)  The body administering an institution may cause to be published in the Gazette a notice that:

                     (a)  sets out full particulars of the name and address of the institution; and

                    (aa)  sets out the principal function or principal functions of the institution or of an undertaking within the body administering the institution; and

                     (b)  contains a statement to the effect that the notice is published for the purposes of this subsection.

             (5)  The body administering an institution may cause to be published in the Gazette a notice revoking a notice published under subsection (4) in relation to the institution.

          (5A)  A collecting society may apply to the Copyright Tribunal for review of a declaration included in a notice published under subsection (4) of this section for the purposes of paragraph (g), (h) or (i) of the definition of educational institution in subsection 10(1).

Note:          For applications to the Tribunal for review see section 153L.

             (6)  In this section, institution includes a school of nursing, an undertaking within a hospital, a teacher education centre and an undertaking within a body administering an educational institution.

11  Residence in a country not affected by temporary absence

                   For the purposes of this Act, a person who, at a material time, was ordinarily resident in a country (including Australia) but was temporarily absent from that country shall be treated as if he or she had been resident in that country at that time.

12  References to Parliament

                   A reference in this Act to a Parliament shall be read as a reference to the Parliament of the Commonwealth or of a State or a legislature of a Territory.

13  Acts comprised in copyright

             (1)  A reference in this Act to an act comprised in the copyright in a work or other subject‑matter shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do.

             (2)  For the purposes of this Act, the exclusive right to do an act in relation to a work, an adaptation of a work or any other subject‑matter includes the exclusive right to authorize a person to do that act in relation to that work, adaptation or other subject‑matter.

14  Acts done in relation to substantial part of work or other subject‑matter deemed to be done in relation to the whole

             (1)  In this Act, unless the contrary intention appears:

                     (a)  a reference to the doing of an act in relation to a work or other subject‑matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject‑matter; and

                     (b)  a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.

             (2)  This section does not affect the interpretation of any reference in sections 32, 177, 180, 187 and 198 to the publication, or absence of publication, of a work.

15  References to acts done with licence of owner of copyright

                   For the purposes of this Act, an act shall be deemed to have been done with the licence of the owner of a copyright if the doing of the act was authorized by a licence binding the owner of the copyright.

16  References to partial assignment of copyright

                   A reference in this Act to a partial assignment of copyright shall be read as a reference to an assignment of copyright that is limited in any way.

17  Statutory employment

                   For the purposes of this Act, the employment of a person, or the employment of a person as an apprentice, under a law of the Commonwealth or of a State but otherwise than under a contract of service or contract of apprenticeship shall be treated as if that employment were employment under a contract of service or employment under a contract of apprenticeship, as the case may be.

18  Libraries established or conducted for profit

                   For the purposes of this Act, a library shall not be taken to be established or conducted for profit by reason only that the library is owned by a person carrying on business for profit.

19  References to Copyright Act, 1911

                   A reference in a provision of this Act to the Copyright Act, 1911, in relation to any time before the commencement of this Act, shall, for the purposes of the application of that provision in relation to a State or a Territory, be read as a reference to the Copyright Act, 1911 as it applied in that State or Territory at that time.

20  Names under which work is published

             (1)  A reference in this Act to the name or names under which a work was published shall be read as a reference to the name or names specified in the work as the name of the author or the names of the authors of the work.

             (2)  For the purposes of this Act, a publication of a work under two or more names shall not be taken to be pseudonymous unless all those names are pseudonyms.

21  Reproduction and copying of works and other subject‑matter

             (1)  For the purposes of this Act, a literary, dramatic or musical work shall be deemed to have been reproduced in a material form if a sound recording or cinematograph film is made of the work, and any record embodying such a recording and any copy of such a film shall be deemed to be a reproduction of the work.

          (1A)  For the purposes of this Act, a work is taken to have been reproduced if it is converted into or from a digital or other electronic machine‑readable form, and any article embodying the work in such a form is taken to be a reproduction of the work.

Note:          The reference to the conversion of a work into a digital or other electronic machine‑readable form includes the first digitisation of the work.

             (2)  Subsections (1) and (1A) apply in relation to an adaptation of a work in the same way as they apply in relation to a work.

             (3)  For the purposes of this Act, an artistic work shall be deemed to have been reproduced:

                     (a)  in the case of a work in a two‑dimensional form—if a version of the work is produced in a three‑dimensional form; or

                     (b)  in the case of a work in a three‑dimensional form—if a version of the work is produced in a two‑dimensional form;

and the version of the work so produced shall be deemed to be a reproduction of the work.

             (4)  The last preceding subsection has effect subject to Division 7 of Part III.

             (5)  For the purposes of this Act, a computer program is taken to have been reproduced if:

                     (a)  an object code version of the program is derived from the program in source code by any process, including compilation; or

                     (b)  a source code version of the program is derived from the program in object code by any process, including decompilation;

and any such version is taken to be a reproduction of the program.

             (6)  For the purposes of this Act, a sound recording or cinematograph film is taken to have been copied if it is converted into or from a digital or other electronic machine‑readable form, and any article embodying the recording or film in such a form is taken to be a copy of the recording or film.

Note:          The reference to the conversion of a sound recording or cinematograph film into a digital or other electronic machine‑readable form includes the first digitisation of the recording or film.

22  Provisions relating to the making of a work or other subject‑matter

Literary, dramatic, musical or artistic works

             (1)  A reference in this Act to the time when, or the period during which, a literary, dramatic, musical or artistic work was made shall be read as a reference to the time when, or the period during which, as the case may be, the work was first reduced to writing or to some other material form.

             (2)  For the purposes of this Act, a literary, dramatic or musical work that exists in the form of sounds embodied in an article or thing shall be deemed to have been reduced to a material form and to have been so reduced at the time when those sounds were embodied in that article or thing.

Sound recordings

             (3)  For the purposes of this Act:

                     (a)  a sound recording, other than a sound recording of a live performance, shall be deemed to have been made at the time when the first record embodying the recording was produced; and

                     (b)  the maker of the sound recording is the person who owned that record at that time.

          (3A)  For the purposes of this Act, the makers of a sound recording of a live performance are:

                     (a)  the person or persons who, at the time of the recording, own the record on which the recording is made; and

                     (b)  the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Note:          A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.

          (3B)  If:

                     (a)  a sound recording of a live performance is made; and

                     (b)  a performer performs in that performance under the terms of his or her employment by another person (the employer) under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken to be a maker instead of that performer.

          (3C)  Subsection (3B) may be excluded or modified by agreement between the performer and the employer.

Cinematograph films

             (4)  For the purposes of this Act:

                     (a)  a reference to the making of a cinematograph film shall be read as a reference to the doing of the things necessary for the production of the first copy of the film; and

                     (b)  the maker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken.

Broadcasts and other communications

             (5)  For the purposes of this Act, a broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered.

             (6)  For the purposes of this Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication.

Definitions

             (7)  In this section:

live performance means:

                     (a)  a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

                     (b)  a performance (including an improvisation) of a musical work or part of such a work; or

                     (c)  the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

                     (d)  a performance of a dance; or

                     (e)  a performance of a circus act or a variety act or any similar presentation or show; or

                      (f)  a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance:

                     (a)  means each person who contributed to the sounds of the performance; and

                     (b)  if the performance includes a performance of a musical work—includes the conductor.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

23  Sound recordings and records

             (1)  For the purposes of this Act, sounds embodied in a sound‑track associated with visual images forming part of cinematograph film shall be deemed not to be a sound recording.

             (2)  A reference in this Act to a record of a work or other subject‑matter shall, unless the contrary intention appears, be read as a reference to a record by means of which the work or other subject‑matter can be performed.

24  References to sounds and visual images embodied in an article

                   For the purposes of this Act, sounds or visual images shall be taken to have been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article or thing.

25  Provisions relating to broadcasting

             (1)  A reference in this Act to broadcasting shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television.

             (2)  A reference in this Act to the doing of an act by the reception of a television broadcast or sound broadcast shall be read as a reference to the doing of that act by means of receiving a broadcast:

                     (a)  from the transmission by which the broadcast is made; or

                     (b)  from a transmission made otherwise than by way of broadcasting, but simultaneously with the transmission referred to in the last preceding paragraph;

whether the reception of the broadcast is directly from the transmission concerned or from a re‑transmission made by any person from any place.

             (3)  Where a record embodying a sound recording or a copy of a cinematograph film is used for the purpose of making a broadcast (in this subsection referred to as the primary broadcast), a person who makes a broadcast (in this subsection referred to as the secondary broadcast) by receiving and making a retransmission of:

                     (a)  the transmission by which the primary broadcast was made; or

                     (b)  a transmission made otherwise than by way of broadcasting but simultaneously with the transmission referred to in the last preceding paragraph;

shall, for the purposes of this Act, be deemed not to have used the record or copy for the purpose of making the secondary broadcast.

             (4)  In this Act:

                     (a)  a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast; and

                     (b)  a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images.

27  Performance

             (1)  Subject to this section, a reference in this Act to performance shall:

                     (a)  be read as including a reference to any mode of visual or aural presentation, whether the presentation is by the use of reception equipment, by the exhibition of a cinematograph film, by the use of a record or by any other means; and

                     (b)  in relation to a lecture, address, speech or sermon—be read as including a reference to delivery;

and a reference in this Act to performing a work or an adaptation of a work has a corresponding meaning.

             (2)  For the purposes of this Act, the communication of a work or other subject‑matter to the public does not constitute:

                     (a)  performance; or

                     (b)  causing visual images to be seen or sounds to be heard.

             (3)  Where visual images or sounds are displayed or emitted by any reception equipment to which they are communicated, the operation of any equipment by which the images or sounds are communicated, directly or indirectly, to the reception equipment shall be deemed not to constitute performance or to constitute causing visual images to be seen or sounds to be heard but, in so far as the display or emission of the images or sounds constitutes a performance, or causes the images to be seen or the sounds to be heard, the performance, or the causing of the images to be seen or sounds to be heard, as the case may be, shall be deemed to be effected by the operation of the reception equipment.

             (4)  Without prejudice to the last two preceding subsections, where a work or an adaptation of a work is performed or visual images are caused to be seen or sounds to be heard by the operation of any equipment referred to in the last preceding subsection or of any equipment for reproducing sounds by the use of a record, being equipment provided by or with the consent of the occupier of the premises where the equipment is situated, the occupier of those premises shall, for the purposes of this Act, be deemed to be the person giving the performance or causing the images to be seen or the sounds to be heard, whether he or she is the person operating the equipment or not.

             (5)  This section does not apply to a performance within the meaning of Part XIA.

28  Performance of works or other subject‑matter in the course of educational instruction

             (1)  Where a literary, dramatic or musical work:

                     (a)  is performed in class, or otherwise in the presence of an audience; and

                     (b)  is so performed by a teacher in the course of giving educational instruction, not being instruction given for profit, or by a student in the course of receiving such instruction;

the performance shall, for the purposes of this Act, be deemed not to be a performance in public if the audience is limited to persons who are taking part in the instruction or are otherwise directly connected with the place where the instruction is given.

             (2)  For the purposes of the last preceding subsection, educational instruction given by a teacher at a place of education that is not conducted for profit shall not be taken to be given for profit by reason only that the teacher receives remuneration for giving the instruction.

             (3)  For the purposes of subsection (1), a person shall not be taken to be directly connected with a place where instruction is given by reason only that he or she is a parent or guardian of a student who receives instruction at that place.

             (4)  The last three preceding subsections apply in relation to sound recordings and cinematograph films in like manner as they apply in relation to literary, dramatic and musical works but, in the application of those subsections in relation to such recordings or films, any reference to performance shall be read as a reference to the act of causing the sounds concerned to be heard or the visual images concerned to be seen.

29  Publication

             (1)  Subject to this section, for the purposes of this Act:

                     (a)  a literary, dramatic, musical or artistic work, or an edition of such a work, shall be deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public;

                     (b)  a cinematograph film shall be deemed to have been published if, but only if, copies of the film have been sold, let on hire, or offered or exposed for sale or hire, to the public; and

                     (c)  a sound recording shall be deemed to have been published if, but only if, records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public.

             (2)  In determining, for the purposes of paragraph (1)(a), whether reproductions of a work or edition have been supplied to the public, section 14 does not apply.

             (3)  For the purposes of this Act, the performance of a literary, dramatic or musical work, the supplying (whether by sale or otherwise) to the public of records of a literary, dramatic or musical work, the exhibition of an artistic work, the construction of a building or of a model of a building, or the supplying (whether by sale or otherwise) to the public of photographs or engravings of a building, of a model of a building or of a sculpture, does not constitute publication of the work.

             (4)  A publication that is merely colourable and is not intended to satisfy the reasonable requirements of the public shall be disregarded for the purposes of this Act except in so far as it may constitute an infringement of copyright or a breach of a duty under Part IX.

             (5)  For the purposes of this Act, a publication in Australia or in any other country shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere, if the two publications took place within a period of not more than thirty days.

             (6)  In determining, for the purposes of any provision of this Act:

                     (a)  whether a work or other subject‑matter has been published;

                     (b)  whether a publication of a work or other subject‑matter was the first publication of the work or other subject‑matter; or

                     (c)  whether a work or other subject‑matter was published or otherwise dealt with in the life‑time of a person;

any unauthorized publication or the doing of any other unauthorized act shall be disregarded.

             (7)  Subject to section 52, a publication or other act shall, for the purposes of the last preceding subsection, be taken to have been unauthorized if, but only if:

                     (a)  copyright subsisted in the work or other subject‑matter and the act concerned was done otherwise than by, or with the licence of, the owner of the copyright; or

                     (b)  copyright did not subsist in the work or other subject‑matter and the act concerned was done otherwise than by, or with the licence of:

                              (i)  the author or, in the case of a sound recording, cinematograph film or edition of a work, the maker or publisher, as the case may be; or

                             (ii)  persons lawfully claiming under the author, maker or publisher.

             (8)  Nothing in either of the last two preceding subsections affects any provisions of this Act relating to the acts comprised in a copyright or to acts constituting infringements of copyrights or any provisions of Part IX.

30  Ownership of copyright for particular purposes

                   In the case of a copyright of which (whether as a result of a partial assignment or otherwise) different persons are the owners in respect of its application to:

                     (a)  the doing of different acts or classes of acts; or

                     (b)  the doing of one or more acts or classes of acts in different countries or at different times;

the owner of the copyright, for any purpose of this Act, shall be deemed to be the person who is the owner of the copyright in respect of its application to the doing of the particular act or class of acts, or to the doing of the particular act or class of acts in the particular country or at the particular time, as the case may be, that is relevant to that purpose, and a reference in this Act to the prospective owner of a future copyright of which different persons are the prospective owners has a corresponding meaning.

30A  Commercial rental arrangement

             (1)  In this Act, the expression commercial rental arrangement, in relation to a work reproduced in a sound recording, signifies an arrangement that has the following features:

                     (a)  however the arrangement is expressed, it is in substance an arrangement under which a copy of the sound recording is made available by a person on terms that it will or may be returned to the person;

                     (b)  the arrangement is made in the course of the conduct of a business;

                     (c)  the arrangement provides for the copy to be made available:

                              (i)  for payment in money or money’s worth; or

                             (ii)  as part of the provision of a service for which payment in money or money’s worth is to be made.

             (2)  In this Act, the expression commercial rental arrangement, in relation to a sound recording or a computer program, signifies an arrangement that has the following features:

                     (a)  however the arrangement is expressed, it is in substance an arrangement under which a copy of the sound recording or computer program is made available by a person on terms that it will or may be returned to the person;

                     (b)  the arrangement is made in the course of the conduct of a business;

                     (c)  the arrangement provides for the copy to be made available:

                              (i)  for payment in money or money’s worth; or

                             (ii)  as part of the provision of a service for which payment in money or money’s worth is to be made.

             (3)  It is not the intention of the Parliament that a lending arrangement should be regarded as a commercial rental arrangement for the purposes of subsection (1) or (2).

             (4)  An arrangement is to be regarded as a lending arrangement if, regardless of the way in which the arrangement is expressed, the true nature of the arrangement is that it is an arrangement for the lending of a copy of a sound recording or computer program under which no amount, other than a deposit to secure the return of the copy, is payable.


 

Part IIICopyright in original literary, dramatic, musical and artistic works

Division 1Nature, duration and ownership of copyright in works

31  Nature of copyright in original works

             (1)  For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

                     (a)  in the case of a literary, dramatic or musical work, to do all or any of the following acts:

                              (i)  to reproduce the work in a material form;

                             (ii)  to publish the work;

                            (iii)  to perform the work in public;

                            (iv)  to communicate the work to the public;

                            (vi)  to make an adaptation of the work;

                           (vii)  to do, in relation to a work that is an adaptation of the first‑mentioned work, any of the acts specified in relation to the first‑mentioned work in subparagraphs (i) to (iv), inclusive; and

                     (b)  in the case of an artistic work, to do all or any of the following acts:

                              (i)  to reproduce the work in a material form;

                             (ii)  to publish the work;

                            (iii)  to communicate the work to the public; and

                     (c)  in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and

                     (d)  in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.

             (2)  The generality of subparagraph (1)(a)(i) is not affected by subparagraph (1)(a)(vi).

             (3)  Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a machine or device in which a computer program is embodied if the program is not able to be copied in the course of the ordinary use of the machine or device.

             (4)  The reference in subsection (3) to a device does not include a device of a kind ordinarily used to store computer programs (for example, a floppy disc, a device of the kind commonly known as a CD ROM, or an integrated circuit).

             (5)  Paragraph (1)(d) does not extend to entry into a commercial rental arrangement if the computer program is not the essential object of the rental.

             (6)  Paragraph (1)(c) does not extend to entry into a commercial rental arrangement if:

                     (a)  the copy of the sound recording concerned was purchased by a person (the record owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

                     (b)  the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and

                     (c)  the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements of the same kind, when the copy was purchased.

             (7)  Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a computer program if:

                     (a)  the copy of the computer program was purchased by a person (the program owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

                     (b)  the commercial rental arrangement is entered into in the ordinary course of a business conducted by the program owner; and

                     (c)  the program owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of computer programs, when the copy was purchased.

32  Original works in which copyright subsists

             (1)  Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

                     (a)  was a qualified person at the time when the work was made; or

                     (b)  if the making of the work extended over a period—was a qualified person for a substantial part of that period.

             (2)  Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

                     (a)  copyright subsists in the work; or

                     (b)  if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work;

if, but only if:

                     (c)  the first publication of the work took place in Australia;

                     (d)  the author of the work was a qualified person at the time when the work was first published; or

                     (e)  the author died before that time but was a qualified person immediately before his or her death.

             (3)  Notwithstanding the last preceding subsection but subject to the remaining provisions of this Act, copyright subsists in:

                     (a)  an original artistic work that is a building situated in Australia; or

                     (b)  an original artistic work that is attached to, or forms part of, such a building.

             (4)  In this section, qualified person means an Australian citizen, an Australian protected person or a person resident in Australia.

33  Duration of copyright in original works

             (1)  This section has effect subject to subsection 32(2) and to section 34.

             (2)  Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.

             (3)  If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:

                     (a)  the work had not been published;

                     (b)  the work had not been performed in public;

                     (c)  the work had not been broadcast; and

                     (d)  records of the work had not been offered or exposed for sale to the public;

the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.

             (4)  A reference in the last preceding subsection to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.

             (5)  If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the end of 70 years after the end of the calendar year in which the engraving is first published.

34  Duration of copyright in anonymous and pseudonymous works

             (1)  Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.

             (2)  Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.

35  Ownership of copyright in original works

             (1)  This section has effect subject to Parts VII and X.

             (2)  Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.

             (3)  The operation of any of the next three succeeding subsections in relation to copyright in a particular work may be excluded or modified by agreement.

             (4)  If a literary, dramatic or artistic work:

                     (a)  is made by the author under the terms of his or her employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship; and

                     (b)  is so made for the purpose of inclusion in a newspaper, magazine or similar periodical;

the following paragraphs apply:

                     (c)  the author is the owner of the copyright only in so far as the copyright relates to:

                              (i)  reproduction of the work for the purpose of inclusion in a book; or

                             (ii)  reproduction of the work in the form of a hard copy facsimile (other than a hard copy facsimile made as part of a process of transmission) made from a paper edition of, or from another hard copy facsimile made from a paper edition of, an issue of the newspaper, magazine or similar periodical, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper, magazine or similar periodical;

                     (d)  except as provided by paragraph (c), the proprietor is the owner of the copyright.

             (5)  Subject to the last preceding subsection, where:

                     (a)  a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

                     (b)  the work is made in pursuance of the agreement;

the first‑mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.

             (6)  Where a literary, dramatic or artistic work to which neither of the last two preceding subsections applies, or a musical work, is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.

             (7)  In this section:

hard copy facsimile, in relation to a literary, dramatic or artistic work, means a facsimile which is in a material form and from which the work is visible to a human being without the use of any device.

private or domestic purpose includes a portrait of family members, a wedding party or children.


 

Division 2Infringement of copyright in works

36  Infringement by doing acts comprised in the copyright

             (1)  Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

          (1A)  In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

                     (a)  the extent (if any) of the person’s power to prevent the doing of the act concerned;

                     (b)  the nature of any relationship existing between the person and the person who did the act concerned;

                     (c)  whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

             (2)  The next three succeeding sections do not affect the generality of this section.

37  Infringement by importation for sale or hire

             (1)  Subject to Division 3, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of:

                     (a)  selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

                     (b)  distributing the article:

                              (i)  for the purpose of trade; or

                             (ii)  for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

                     (c)  by way of trade exhibiting the article in public;

if the importer knew, or ought reasonably to have known, that the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

             (2)  In relation to an accessory to an article that is or includes a copy of a work, being a copy that was made without the licence of the owner of the copyright in the work in the country in which the copy was made, subsection (1) has effect as if the words “the importer knew, or ought reasonably to have known, that” were omitted.

38  Infringement by sale and other dealings

             (1)  Subject to Division 3, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, in Australia, and without the licence of the owner of the copyright:

                     (a)  sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or

                     (b)  by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement.

             (2)  For the purposes of the last preceding subsection, the distribution of any articles:

                     (a)  for the purpose of trade; or

                     (b)  for any other purpose to an extent that affects prejudicially the owner of the copyright concerned;

shall be taken to be the sale of those articles.

39  Infringement by permitting place of public entertainment to be used for performance of work

             (1)  The copyright in a literary, dramatic or musical work is infringed by a person who permits a place of public entertainment to be used for the performance in public of the work, where the performance constitutes an infringement of the copyright in the work.

             (2)  This section does not apply where the person permitting the place to be so used establishes:

                     (a)  that he or she was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright; or

                     (b)  that he or she gave the permission gratuitously, or for a consideration that was only nominal or, if more than nominal, did not exceed a reasonable estimate of the expenses to be incurred by him or her by reason of the use of the place for the performance.

             (3)  In this section, place of public entertainment includes any premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment.

39A  Infringing copies made on machines installed in libraries and archives

                   Where:

                     (a)  a person makes an infringing copy of, or of part of, a work on a machine (including a computer), being a machine installed by or with the approval of the body administering a library or archives on the premises of the library or archives, or outside those premises for the convenience of persons using the library or archives; and

                     (b)  there is affixed to, or in close proximity to, the machine, in a place readily visible to persons using the machine, a notice of the prescribed dimensions and in accordance with the prescribed form;

neither the body administering the library or archives nor the officer in charge of the library or archives shall be taken to have authorized the making of the infringing copy by reason only that the copy was made on that machine.

39B  Communication by use of certain facilities

                   A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.


 

Division 3Acts not constituting infringements of copyright in works

40  Fair dealing for purpose of research or study

             (1)  A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or study does not constitute an infringement of the copyright in the work.

          (1A)  A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.

          (1B)  In subsection (1A) the expression lecture notes means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research.

             (2)  For the purposes of this Act, the matters to which regard shall be had, in determining whether a dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or musical work, being a dealing by way of reproducing the whole or a part of the work or adaptation, constitutes a fair dealing with the work or adaptation for the purpose of research or study include:

                     (a)  the purpose and character of the dealing;

                     (b)  the nature of the work or adaptation;

                     (c)  the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;

                     (d)  the effect of the dealing upon the potential market for, or value of, the work or adaptation; and

                     (e)  in a case where part only of the work or adaptation is reproduced—the amount and substantiality of the part copied taken in relation to the whole work or adaptation.

             (3)  Notwithstanding subsection (2), a dealing with a literary, dramatic or musical work, or with an adaptation of such a work, being a dealing by way of the reproducing, for the purposes of research or study:

                     (a)  if the work or adaptation comprises an article in a periodical publication—of the whole or a part of that work or adaptation; or

                     (b)  in any other case—of not more than a reasonable portion of the work or adaptation;

shall be taken to be a fair dealing with that work or adaptation for the purpose of research or study.

             (4)  Subsection (3) does not apply to a dealing by way of reproducing the whole or a part of an article in a periodical publication if another article in that publication, being an article dealing with a different subject matter, is also reproduced.

41  Fair dealing for purpose of criticism or review

                   A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.

42  Fair dealing for purpose of reporting news

             (1)  A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:

                     (a)  it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

                     (b)  it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.

             (2)  The playing of a musical work in the course of reporting news by means of a communication or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work does not form part of the news being reported.

43  Reproduction for purpose of judicial proceedings or professional advice

             (1)  The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.

             (2)  A fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by:

                     (a)  a legal practitioner; or

                     (b)  a person registered as a patent attorney under the Patents Act 1990; or

                     (c)  a person registered as a trade marks attorney under the Trade Marks Act 1995.

43A  Temporary reproductions made in the course of communication

             (1)  The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication.

             (2)  Subsection (1) does not apply in relation to the making of a temporary reproduction of a work, or an adaptation of a work, as part of the technical process of making a communication if the making of the communication is an infringement of copyright.

43B  Temporary reproductions of works as part of a technical process of use

             (1)  Subject to subsection (2), the copyright in a work is not infringed by the making of a temporary reproduction of the work if the reproduction is incidentally made as a necessary part of a technical process of using a copy of the work.

             (2)  Subsection (1) does not apply to:

                     (a)  the making of a temporary reproduction of a work if the reproduction is made from:

                              (i)  an infringing copy of the work; or

                             (ii)  a copy of the work where the copy is made in another country and would be an infringing copy of the work if the person who made the copy had done so in Australia; or

                     (b)  the making of a temporary reproduction of a work as a necessary part of a technical process of using a copy of the work if that use constitutes an infringement of the copyright in the work.

             (3)  Subsection (1) does not apply to any subsequent use of a temporary reproduction of a work other than as a part of the technical process in which the temporary reproduction was made.

44  Inclusion of works in collections for use by places of education

             (1)  The copyright in a published literary, dramatic, musical or artistic work is not infringed by the inclusion of a short extract from the work, or, in the case of a published literary, dramatic or musical work, from an adaptation of the work, in a collection of literary, dramatic, musical or artistic works contained in a book, sound recording or cinematograph film and intended for use by places of education if:

                     (a)  the collection is described in an appropriate place in the book, on the label of each record embodying the recording or of its container, or in the film, as being intended for use by places of education;

                     (b)  the work or adaptation was not published for the purpose of being used by places of education;

                     (c)  the collection consists principally of matter in which copyright does not subsist; and

                     (d)  a sufficient acknowledgement of the work or adaptation is made.

             (2)  The last preceding subsection does not apply in relation to the copyright in a work if, in addition to the extract concerned, 2 or more other extracts from, or from adaptations of, works (being works in which copyright subsists at the time when the collection is published) by the author of the first‑mentioned work are contained in that collection, or are contained in that collection taken together with every similar collection, if any, of works intended for use by places of education and published by the same publisher within the period of 5 years immediately preceding the publication of the first‑mentioned collection.

44A  Importation etc. of books

             (1)  The copyright in an overseas work first published on or after the commencing day is not infringed by a person who, without the licence of the owner of the copyright, imports a non‑infringing book into Australia for a purpose mentioned in paragraph 37(1)(a), (b) or (c).

             (2)  Subject to this section, the copyright in:

                     (a)  an overseas work first published before the commencing day; or

                     (b)  a work first published in Australia, whether before, on or after the commencing day;

is not infringed by a person who, without the licence of the owner of the copyright, imports a copy (in this subsection called the imported copy) of a hardback or paperback version of a non‑infringing book into Australia for a purpose mentioned in paragraph 37(1)(a), (b) or (c) if:

                     (c)  the person had ordered in writing from the copyright owner, or the owner’s licensee or agent, one or more copies of that version of the book (not being second‑hand copies or more copies than were needed to satisfy the person’s reasonable requirements); and

                     (d)  when the person ordered the imported copy, the original order mentioned in paragraph (c) had not been withdrawn or cancelled by, or with the consent of, the person and:

                              (i)  at least 7 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not notified the person in writing that the original order would be filled within 90 days after it was placed; or

                             (ii)  at least 90 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not filled the order.

             (3)  The copyright in a published work (whether first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports a single copy of a non‑infringing book into Australia if the importation is for the purpose of filling a written order, or a verifiable telephone order, by a customer of the person and:

                     (a)  in the case of a written order, the order contains a statement, signed by the customer; or

                     (b)  in the case of a telephone order, the customer makes a verifiable statement;

to the effect that the customer does not intend to use the book for a purpose mentioned in paragraph 37(1)(a), (b) or (c).

             (4)  The copyright in a published work (whether first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports 2 or more copies of a non‑infringing book into Australia if:

                     (a)  the importation is for the purpose of filling a written order, or a verifiable telephone order, placed with the person by or on behalf of a library, other than a library conducted for the profit (direct or indirect) of a person or organisation; and

                     (b)  in the case of a written order—the order contains a statement, signed by the person placing the order, to the effect that the library does not intend to use any of the books for a purpose mentioned in paragraph 37(1)(a), (b) or (c); and

                     (c)  in the case of a telephone order—the person placing the order makes a verifiable statement to the effect referred to in paragraph (b); and

                     (d)  the number of copies so imported is not more than the number of copies so ordered.

             (5)  Without limiting the ways in which a telephone order under subsection (3) or (4), or a statement under paragraph (3)(b) or (4)(c) relating to such an order, may be verified, such an order or statement is, for the purposes of this section, taken to be verifiable if the person who takes the order, or to whom the statement is made, makes a written note of the details of the order or statement when, or immediately after, the order is placed, or the statement is made, as the case may be.

             (6)  Where:

                     (a)  a book is imported into Australia for a purpose mentioned in paragraph 37(1)(a), (b) or (c); and

                     (b)  the importation does not, under this section, constitute an infringement of copyright in a published work;

                   the use of the book for any such purpose does not constitute an infringement of the copyright in the work and subsection 38(1) does not apply to the book.

             (7)  Subsection (2) does not apply to the importation of a copy of a hardback version of a non‑infringing book into Australia if the copyright owner, or his or her licensee or agent, is able to supply in Australia enough copies of a paperback version of the book to fill any reasonable order.

             (8)  For the purposes of paragraph (2)(d), a copyright owner, licensee or agent is not taken to have filled an order by a person for one or more copies of a version of a book unless and until the copyright owner, licensee or agent sends the copy, or all of the copies, as the case requires, to the person.

             (9)  In this section:

book does not include:

                     (a)  a book whose main content is one or more musical works, with or without any related literary, dramatic or artistic work; or

                     (b)  a manual sold with computer software for use in connection with that software; or

                     (c)  a periodical publication.

commencing day means the day on which the Copyright Amendment Act 1991 commences.

overseas work means a work:

                     (a)  that was first published in a country other than Australia; and

                     (b)  that was not published in Australia within 30 days after its first publication in that other country.

Note:          A work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).

44B  Reproduction of writing on approved label for containers for chemical product

                   The reproduction on a label on a container for a chemical product of any writing appearing on an approved label is not an infringement of any copyright subsisting under this Part in relation to that writing.

44C  Copyright subsisting in accessories etc. to imported articles

             (1)  The copyright in a work a copy of which is, or is on, or embodied in, a non‑infringing accessory to an article is not infringed by importing the accessory with the article.

Note:          See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

             (2)  Section 38 does not apply to a copy of a work, being a copy that is, or is on, or embodied in, a non‑infringing accessory to an article, if the importation of the accessory is not an infringement of copyright in the work.

44D  Import of non‑infringing copy of sound recording does not infringe copyright in works recorded

             (1)  The copyright in a literary, dramatic or musical work is not infringed by a person who:

                     (a)  imports into Australia a non‑infringing copy of a sound recording of the work; or

                     (b)  does an act described in section 38 involving an article that is a non‑infringing copy of a sound recording of the work and has been imported into Australia by anyone.

Note:          In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non‑infringing copy of the sound recording unless the defendant proves it is. See section 130A.

             (2)  This section applies to a copy of a sound recording only if, when the copy is imported into Australia, the sound recording has been published:

                     (a)  in Australia; or

                     (b)  in another country (the publication country) by or with the consent of:

                              (i)  the owner of the copyright or related right in the sound recording in the publication country; or

                             (ii)  the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the publication country did not provide for copyright or a related right in sound recordings when publication occurred; or

                            (iii)  the maker of the sound recording, if neither the law of the publication country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when publication occurred.

Note:          Subsection 29(6) deals with unauthorised publication.

             (3)  In subsection (2):

owner of the copyright or related right in the sound recording means the owner at the time publication of the sound recording occurred.

44E  Importation and sale etc. of copies of computer programs

                   The copyright in a literary work:

                     (a)  that is a computer program; and

                     (b)  that has been published in Australia or a qualifying country;

is not infringed by a person who:

                     (c)  imports into Australia an article that has embodied in it a non‑infringing copy of the program; or

                     (d)  does an act mentioned in section 38 involving an article that has embodied in it a non‑infringing copy of the program and that has been imported into Australia by anyone.

Note:          Section 130B deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

44F  Importation and sale etc. of copies of electronic literary or music items

                   The copyright in a work:

                     (a)  that is, or is part of, an electronic literary or music item; and

                     (b)  that has been published in Australia or a qualifying country;

is not infringed by a person who:

                     (c)  imports into Australia an article that has embodied in it a non‑infringing copy of the electronic literary or music item; or

                     (d)  does an act mentioned in section 38 involving an article that has embodied in it a non‑infringing copy of the electronic literary or music item and that has been imported into Australia by anyone.

Note:          Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.


 

Division 4Acts not constituting infringements of copyright in literary, dramatic and musical works

45  Reading or recitation in public or for a broadcast

                   The reading or recitation in public, or the inclusion in a sound broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work, or from an adaptation of such a work, does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made.

46  Performance at premises where persons reside or sleep

                   Where a literary, dramatic or musical work, or an adaptation of such a work, is performed in public, by the operation of reception equipment or by the use of a record, at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests, the performance does not constitute an infringement of the copyright in the work.

47  Reproduction for purpose of broadcasting

             (1)  Where the broadcasting by a person of a literary, dramatic or musical work, or of an adaptation of such a work, would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work, but the making by the person of a sound recording or a cinematograph film of the work or adaptation would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making by the person of such a recording or film solely for the purpose of the broadcasting of the work or adaptation.

             (2)  The last preceding subsection does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than:

                     (a)  the broadcasting of the work or adaptation in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

                     (b)  the making of further records embodying the recording or further copies of the film for the purpose of the broadcasting of the work or adaptation in such circumstances.

             (3)  Subsection (1) does not apply in relation to a recording or film where a record embodying the recording or a copy of the film is used for the purpose of the broadcasting of the work or adaptation by a person who is not the maker of the recording or film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the recording or film.

             (4)  A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

             (5)  Subsection (1) of this section does not apply in relation to a recording or film unless, before the expiration of the period of 12 months commencing on the day on which any of the records embodying the recording or any of the copies of the film is first used for broadcasting the work or adaptation in accordance with that subsection, or before the expiration of such further period, if any, as is agreed between the maker of the recording or film and the owner of the copyright in the work, all the records embodying the recording or all the copies of the film are destroyed or are delivered, with the consent of the Director‑General of the Australian Archives, to the Australian Archives.

             (6)  The Director‑General of the Australian Archives shall not consent to the delivery to the Australian Archives in accordance with subsection (5) of a record embodying a recording or of a copy of a film unless he or she has certified that the recording or film is of an exceptional documentary character.

             (7)  In this section:

broadcasting does not include simulcasting.

47AA  Reproduction for the purpose of simulcasting

             (1)  If the broadcasting of a literary, dramatic or musical work, or of an adaptation of such a work, would not for any reason constitute an infringement of the copyright in the work, but the making of a sound recording or a cinematograph film of the work or adaptation would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making of such a recording or film solely for the purpose of simulcasting the work or adaptation in digital form.

             (2)  Subsection (1) does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than:

                     (a)  the simulcasting of the work or adaptation in circumstances that do not for any reason constitute an infringement of the copyright in the work; or

                     (b)  the making of further records embodying the recording or further copies of the film for the purpose of simulcasting the work or adaptation in such circumstances.

             (3)  Subsection (1) does not apply in relation to a recording or film unless all records embodying the recording, or all copies of the film, made under that subsection are destroyed on or before the relevant date specified in the regulations.

             (4)  For the purposes of subsection (3), the regulations may specify different dates in relation to different classes of sound recordings or cinematograph films.

47A  Sound broadcasts by holders of print disability radio licences

             (1)  The making of a sound broadcast of, or of an adaptation of, a published literary or dramatic work does not constitute an infringement of copyright in the work if:

                     (a)  the broadcast is made by a person being the holder of a print disability radio licence and is made under the licence; and

                     (b)  there is made by or on behalf of the person, as soon as practicable after the making of the broadcast, a record of the making of the broadcast that:

                              (i)  sets out the time and date of the making of the broadcast;

                             (ii)  identifies the work; and

                            (iii)  contains particulars of such other matters in relation to the work or in relation to the broadcast as are prescribed.

             (2)  For the purposes of paragraph (1)(b), a record of the making of a broadcast:

                     (a)  may be made in writing or in any other manner prescribed by the regulations; and

                     (b)  if it is made in writing, shall be in accordance with the form prescribed by the regulations.

             (3)  Where, at any time before the expiration of the prescribed retention period after the making by a person of a sound broadcast of a literary or dramatic work in reliance on subsection (1), a record made for the purposes of paragraph (1)(b) in relation to the making of the sound broadcast is not retained by the person, the person is guilty of an offence punishable, upon conviction, by a fine not exceeding $500.

          (3A)  Subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  It is a defence to a prosecution of a person under subsection (3) in relation to the retention of a record if the person satisfies the court that he or she took all reasonable precautions, and exercised due diligence, to ensure the retention of the record.

             (5)  A person is not liable to be convicted twice of an offence against subsection (3) in relation to the retention of the same record.

             (6)  The owner of the copyright in a literary or dramatic work, or the agent of such an owner, may notify in writing a person who holds or held a print disability radio licence that the owner or agent wishes to inspect:

                     (a)  all the records of the person made by or on behalf of the person for the purposes of paragraph (1)(b); or

                     (b)  such of those records as relate to the works of a specified author;

on a day specified in the notice, being a day (other than a Saturday, Sunday or public holiday) not less than 7 days after the day on which the notice is given.

             (7)  Where a person who receives a notice under subsection (6) does not allow the owner or agent to inspect the records to which the notice relates during business hours on the day specified in the notice, the person is guilty of an offence punishable, upon conviction, by a fine not exceeding $500.

          (7A)  Subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

          (7B)  Subsection (7) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

             (8)  Where:

                     (a)  a sound broadcast of, or of an adaptation of, a literary or dramatic work is made by a person (in this subsection referred to as the licence holder) being the holder of a print disability radio licence;

                     (b)  by virtue of subsection (1), the making of the sound broadcast does not infringe copyright in the work; and

                     (c)  the owner of the copyright in the work makes a request in writing at any time during the prescribed retention period after the making of the sound broadcast for payment for the making of the sound broadcast;

the licence holder shall pay to the owner of the copyright such an amount by way of equitable remuneration for the making of the sound broadcast as is agreed upon between the owner of the copyright and the licence holder or, in default of agreement, as is determined by the Copyright Tribunal on the application of either the owner of the copyright or the licence holder.

             (9)  Where the Copyright Tribunal has under subsection (8) determined the amount of equitable remuneration payable by a person to the owner of the copyright in a work, the owner of the copyright may recover that amount from the person in a court of competent jurisdiction as a debt due to the owner of the copyright.

           (10)  Nothing in this section affects the right of the owner of the copyright in a literary or dramatic work to grant a licence authorising a person being the holder of a print disability radio licence to make sound broadcasts of, or of adaptations of, the work without infringement of that copyright.

           (11)  In this section:

                     (a)  prescribed retention period means the period prescribed by the regulations for the purposes of this paragraph; and

                     (b)  print disability radio licence means a licence in force under the Broadcasting Services Act 1992 or the Radiocommunications Act 1992, being a licence that was granted for the purpose of authorising the making of sound broadcasts to persons who by reason of old age, disability or literacy problems are unable to handle books or newspapers or to read or comprehend written material.


 

Division 4AActs not constituting infringements of copyright in computer programs

47AB  Meaning of computer program

                   In this Division:

computer program includes any literary work that is:

                     (a)  incorporated in, or associated with, a computer program; and

                     (b)  essential to the effective operation of a function of that computer program.

47B  Reproduction for normal use or study of computer programs

             (1)  Subject to subsection (2), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

                     (a)  the reproduction is incidentally and automatically made as part of the technical process of running a copy of the program for the purposes for which the program was designed; and

                     (b)  the running of the copy is done by, or on behalf of, the owner or licensee of the copy.

             (2)  Subsection (1) does not apply to the making of a reproduction of a computer program:

                     (a)  from an infringing copy of the computer program; or

                     (b)  contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made when the owner or licensee of that copy acquired it.

             (3)  Subject to subsection (4), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

                     (a)  the reproduction is incidentally and automatically made as part of the technical process of running a copy of the program for the purpose of studying the ideas behind the program and the way in which it functions; and

                     (b)  the running of the copy is done by, or on behalf of, the owner or licensee of the copy.

             (4)  Subsection (3) does not apply to the making of a reproduction of a computer program from an infringing copy of the computer program.

             (5)  In this section:

reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b).

47C  Back‑up copy of computer programs

             (1)  Subject to subsection (4), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

                     (a)  the reproduction is made by, or on behalf of, the owner or licensee of the copy (the original copy) from which the reproduction is made; and

                     (b)  the reproduction is made for use only by, or on behalf of, the owner or licensee of the original copy; and

                     (c)  the reproduction is made for any of the following purposes:

                              (i)  to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy and to store the original copy;

                             (ii)  to enable the owner or licensee of the original copy to store the reproduction for use in lieu of the original copy if the original copy is lost, destroyed or rendered unusable;

                            (iii)  to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy, or of another reproduction made under this subsection, if the original copy, or the other reproduction, is lost, destroyed or rendered unusable.

             (2)  Subject to subsection (4), the copyright in a literary work that is a computer program, and in any work or other subject‑matter held together with the program on the same computer system, is not infringed by the making of a reproduction of the program, or of such a work or other subject‑matter if:

                     (a)  the reproduction is made by, or on behalf of, the owner or licensee of the copy (the original copy) from which the reproduction is made; and

                     (b)  the making of the reproduction is part of the normal back‑up copying of data for security purposes.

             (3)  Subsection (1) applies in relation to a reproduction of a work made for a purpose referred to in subparagraph (1)(c)(iii) whether or not other reproductions of the work have previously been made for the same purpose from the same copy.

             (4)  Subsections (1) and (2) do not apply to the making of a reproduction of a computer program:

                     (a)  from an infringing copy of the computer program; or

                     (b)  if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

                     (c)  if a licence to use the original copy, given by, or on behalf of, the owner of the copyright in the computer program to the owner of the original copy when the owner of that copy acquired it, has expired or been terminated.

             (5)  For the purposes of this section, a reference to a copy of a computer program is a reference to any article in which the computer program is reproduced in a material form.

             (6)  In this section:

reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b).

47D  Reproducing computer programs to make interoperable products

             (1)  Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if:

                     (a)  the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original program) used for making the reproduction or adaptation; and

                     (b)  the reproduction or adaptation is made for the purpose of obtaining information necessary to enable the owner or licensee, or a person acting on behalf of the owner or licensee, to make independently another program (the new program), or an article, to connect to and be used together with, or otherwise to interoperate with, the original program or any other program; and

                     (c)  the reproduction or adaptation is made only to the extent reasonably necessary to obtain the information referred to in paragraph (b); and

                     (d)  to the extent that the new program reproduces or adapts the original program, it does so only to the extent necessary to enable the new program to connect to and be used together with, or otherwise to interoperate with, the original program or the other program; and

                     (e)  the information referred to in paragraph (b) is not readily available to the owner or licensee from another source when the reproduction or adaptation is made.

             (2)  Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47E  Reproducing computer programs to correct errors

             (1)  Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making, on or after 23 February 1999, of a reproduction or adaptation of the work if:

                     (a)  the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original copy) used for making the reproduction or adaptation; and

                     (b)  the reproduction or adaptation is made for the purpose of correcting an error in the original copy that prevents it from operating (including in conjunction with other programs or with hardware):

                              (i)  as intended by its author; or

                             (ii)  in accordance with any specifications or other documentation supplied with the original copy; and

                     (c)  the reproduction or adaptation is made only to the extent reasonably necessary to correct the error referred to in paragraph (b); and

                     (d)  when the reproduction or adaptation is made, another copy of the program that does operate as mentioned in paragraph (b) is not available to the owner or licensee within a reasonable time at an ordinary commercial price.

             (2)  Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47F  Reproducing computer programs for security testing

             (1)  Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if:

                     (a)  the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original copy) used for making the reproduction or adaptation; and

                     (b)  the reproduction or adaptation is made for the purpose of:

                              (i)  testing in good faith the security of the original copy, or of a computer system or network of which the original copy is a part; or

                             (ii)  investigating, or correcting, in good faith a security flaw in, or the vulnerability to unauthorised access of, the original copy, or of a computer system or network of which the original copy is a part; and

                     (c)  the reproduction or adaptation is made only to the extent reasonably necessary to achieve a purpose referred to in paragraph (b); and

                     (d)  the information resulting from the making of the reproduction or adaptation is not readily available to the owner or licensee from another source when the reproduction or adaptation is made.

             (2)  Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47G  Unauthorised use of copies or information

             (1)  If:

                     (a)  a reproduction or adaptation of a literary work that is a computer program is made under a prescribed provision; and

                     (b)  the reproduction or adaptation, or any information derived from it, is, without the consent of the owner of the copyright in the computer program, used, or sold or otherwise supplied to a person, for a purpose other than a purpose specified in the prescribed provision;

the prescribed provision does not apply, and is taken never to have applied, to the making of the reproduction or adaptation.

             (2)  For the purposes of this section, sections 47B, 47C, 47D, 47E and 47F are prescribed provisions.

47H  Agreements excluding operation of certain provisions

An agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.


 

Division 5Copying of works in libraries or archives

48  Interpretation

                   In this Division, a reference to an article contained in a periodical publication shall be read as a reference to anything (other than an artistic work) appearing in such a publication.

48A  Copying by Parliamentary libraries for members of Parliament

                   The copyright in a work is not infringed by anything done, for the sole purpose of assisting a person who is a member of a Parliament in the performance of the person’s duties as such a member, by an authorized officer of a library, being a library the principal purpose of which is to provide library services for members of that Parliament.

49  Reproducing and communicating works by libraries and archives for users

             (1)  A person may furnish to the officer in charge of a library or archives:

                     (a)  a request in writing to be supplied with a reproduction of an article, or a part of an article, contained in a periodical publication or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and

                     (b)  a declaration signed by him or her stating:

                              (i)  that he or she requires the reproduction for the purpose of research or study and will not use it for any other purpose; and

                             (ii)  that he or she has not previously been supplied with a reproduction of the same article or other work, or the same part of the article or other work, as the case may be, by an authorized officer of the library or archives.

             (2)  Subject to this section, where a request and declaration referred to in subsection (1) are furnished to the officer in charge of a library or archives, an authorized officer of the library or archives may, unless the declaration contains a statement that to his or her knowledge is untrue in a material particular, make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the person who made the request.

          (2A)  A person may make to an authorized officer of a library or archives:

                     (a)  a request to be supplied with a reproduction of an article, or part of an article, contained in a periodical publication, or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and

                     (b)  a declaration to the effect that:

                              (i)  the person requires the reproduction for the purpose of research or study and will not use it for any other purpose;

                             (ii)  the person has not previously been supplied with a reproduction of the same article or other work, or the same part of the article or other work, as the case may be, by an authorized officer of the library or archives; and

                            (iii)  by reason of the remoteness of the person’s location, the person cannot conveniently furnish to the officer in charge of the library or archives a request and declaration referred to in subsection (1) in relation to the reproduction soon enough to enable the reproduction to be supplied to the person before the time by which the person requires it.

          (2B)  A request or declaration referred to in subsection (2A) is not required to be made in writing.

          (2C)  Subject to this section, where:

                     (a)  a request and declaration referred to in subsection (2A) are made by a person to an authorized officer of a library or archives; and

                     (b)  the authorized officer makes a declaration setting out particulars of the request and declaration made by the person and stating that:

                              (i)  the declaration made by the person, so far as it relates to the matters specified in subparagraphs (2A)(b)(i) and (ii), does not contain a statement that, to the knowledge of the authorized officer, is untrue in a material particular; and

                             (ii)  the authorized officer is satisfied that the declaration made by the person is true so far as it relates to the matter specified in subparagraph (2A)(b)(iii);

an authorized officer of the library or archives may make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the person.

             (3)  Where a charge is made for making and supplying a reproduction to which a request under subsection (1) or (2A) relates, subsection (2) or (2C), as the case may be, does not apply in relation to the request if the amount of the charge exceeds the cost of making and supplying the reproduction.

             (4)  Subsection (2) or (2C) does not apply in relation to a request for a reproduction of, or parts of, 2 or more articles contained in the same periodical publication unless the articles relate to the same subject matter.

             (5)  Subsection (2) or (2C) does not apply to a request for a reproduction of the whole of a work (other than an article contained in a periodical publication), or to a reproduction of a part of such a work that contains more than a reasonable portion of the work unless:

                     (a)  the work forms part of the library or archives collection; and

                     (b)  before the reproduction is made, an authorized officer has, after reasonable investigation, made a declaration stating that he or she is satisfied that a reproduction (not being a second‑hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

          (5A)  If an article contained in a periodical publication, or a published work (other than an article contained in a periodical publication) is acquired, in electronic form, as part of a library or archives collection, the officer in charge of the library or archives may make it available online within the premises of the library or archives in such a manner that users cannot, by using any equipment supplied by the library or archives:

                     (a)  make an electronic reproduction of the article or work; or

                     (b)  communicate the article or work.

             (6)  The copyright in an article contained in a periodical publication is not infringed by the making, in relation to a request under subsection (1) or (2A), of a reproduction of the article, or of a part of the article, in accordance with subsection (2) or (2C), as the case may be, unless the reproduction is supplied to a person other than the person who made the request.

             (7)  The copyright in a published work other than an article contained in a periodical publication is not infringed by the making, in relation to a request under subsection (1) or (2A), of a reproduction of the work, or of a part of the work, in accordance with subsection (2) or (2C), as the case may be, unless the reproduction is supplied to a person other than the person who made the request.

          (7A)  Subsections (6) and (7) do not apply to the making under subsection (2) or (2C) of an electronic reproduction of:

                     (a)  an article, or a part of an article, contained in a periodical publication; or

                     (b)  the whole or part of a published work, other than such an article;

in relation to a request under this section for communication to the person who made the request unless:

                     (c)  before or when the reproduction is communicated to the person, the person is notified in accordance with the regulations:

                              (i)  that the reproduction has been made under this section and that the article or work might be subject to copyright protection under this Act; and

                             (ii)  about such other matters (if any) as are prescribed; and

                     (d)  as soon as practicable after the reproduction is communicated to the person, the reproduction made under subsection (2) or (2C) and held by the library or archives is destroyed.

          (7B)  It is not an infringement of copyright in an article contained in a periodical publication, or of copyright in a published work, to communicate it in accordance with subsection (2), (2C) or (5A).

             (8)  The regulations may exclude the application of subsection (6) or (7) in such cases as are specified in the regulations.

             (9)  In this section:

library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals.

supply includes supply by way of a communication.

50  Reproducing and communicating works by libraries or archives for other libraries or archives

             (1)  The officer in charge of a library may request, or cause another person to request, the officer in charge of another library to supply the officer in charge of the first‑mentioned library with a reproduction of an article, or a part of an article, contained in a periodical publication, or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library:

                     (a)  for the purpose of including the reproduction in the collection of the first‑mentioned library;

                    (aa)  in a case where the principal purpose of the first‑mentioned library is to provide library services for members of a Parliament—for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

                     (b)  for the purpose of supplying the reproduction to a person who has made a request for the reproduction under section 49.

             (2)  Subject to this section, where a request is made by or on behalf of the officer in charge of a library to the officer in charge of another library under subsection (1), an authorized officer of the last‑mentioned library may make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the officer in charge of the first‑mentioned library.

             (3)  Where, under subsection (2), an authorized officer of a library makes, or causes to be made, a reproduction of the whole or part of a work (including an article contained in a periodical publication) and supplies it to the officer in charge of another library in accordance with a request made under subsection (1):

                     (a)  the reproduction shall, for all purposes of this Act, be deemed to have been made on behalf of an authorized officer of the other library for the purpose for which the reproduction was requested; and

                     (b)  an action shall not be brought against the body administering that first‑mentioned library, or against any officer or employee of that library, for infringement of copyright by reason of the making or supplying of that reproduction.

             (4)  Subject to this section, if a reproduction of the whole or a part of an article contained in a periodical publication, or of any other published work, is, by virtue of subsection (3), taken to have been made on behalf of an authorised officer of a library, the copyright in the article or other work is not infringed:

                     (a)  by the making of the reproduction; or

                     (b)  if the work is supplied under subsection (2) by way of a communication—by the making of the communication.

             (5)  The regulations may exclude the application of subsection (4) in such cases as are specified in the regulations.

             (6)  Where a charge is made for making and supplying a reproduction to which a request under subsection (1) relates, subsection (4) does not apply in relation to the request if the amount of the charge exceeds the cost of making and supplying the reproduction.

             (7)  Where:

                     (a)  a reproduction (in this subsection referred to as the relevant reproduction) of, or of a part of, an article, or of the whole or a part of another work, is supplied under subsection (2) to the officer in charge of a library; and

                     (b)  a reproduction of the same article or other work, or of the same part of the article or other work, as the case may be, has previously been supplied under subsection (2) for the purpose of inclusion in the collection of the library;

subsection (4) does not apply to or in relation to the relevant reproduction unless, as soon as practicable after the request under subsection (1) relating to the relevant reproduction is made, an authorized officer of the library makes a declaration:

                     (c)  setting out particulars of the request (including the purpose for which the relevant reproduction was requested); and

                     (d)  stating that the reproduction referred to in paragraph (b) has been lost, destroyed or damaged, as the case requires.

          (7A)  If:

                     (a)  a reproduction is made of the whole of a work (other than an article contained in a periodical publication) or of a part of such a work, being a part that contains more than a reasonable portion of the work; and

                     (b)  the work from which the reproduction is made is in hardcopy form; and

                     (c)  the reproduction is supplied under subsection (2) to the officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

                     (d)  in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

                     (e)  as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration:

                              (i)  setting out particulars of the request (including the purpose for which the reproduction was requested); and

                             (ii)  stating that, after reasonable investigation, the authorized officer is satisfied that a copy (not being a second‑hand copy) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

          (7B)  If:

                     (a)  a reproduction is made of the whole of a work (including an article contained in a periodical publication) or of a part of such a work, whether or not the part contains more than a reasonable portion of the work; and

                     (b)  the work from which the reproduction is made is in electronic form; and

                     (c)  the reproduction is supplied under subsection (2) to the officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

                     (d)  in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

                     (e)  as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration:

                              (i)  setting out particulars of the request (including the purpose for which the reproduction was requested); and

                             (ii)  if the reproduction is of the whole, or of more than a reasonable portion, of a work other than an article—stating that, after reasonable investigation, the authorised officer is satisfied that the work cannot be obtained in electronic form within a reasonable time at an ordinary commercial price; and

                            (iii)  if the reproduction is of a reasonable portion, or less than a reasonable portion, of a work other than an article—stating that, after reasonable investigation, the authorised officer is satisfied that the portion cannot be obtained in electronic form, either separately or together with a reasonable amount of other material, within a reasonable time at an ordinary commercial price; and

                            (iv)  if the reproduction is of the whole or of a part of an article—stating that, after reasonable investigation, the authorised officer is satisfied that the article cannot be obtained on its own in electronic form within a reasonable time at an ordinary commercial price.

          (7C)  If:

                     (a)  a reproduction is made in electronic form by or on behalf of an authorised officer of a library of the whole of a work (including an article contained in a periodical publication) or of a part of such a work; and

                     (b)  the reproduction is supplied under subsection (2) to the officer in charge of another library;

subsection (4) does not apply in relation to the reproduction unless, as soon as practicable after the reproduction is supplied to the other library the reproduction made for the purpose of the supply and held by the first‑mentioned library is destroyed.

             (8)  Subsection (4) does not apply to a reproduction or communication of, or of parts of, 2 or more articles that are contained in the same periodical publication and that have been requested for the same purpose unless the articles relate to the same subject matter.

             (9)  In this section, a reference to a library shall be read as a reference to a library other than a library that is conducted for the profit, direct or indirect of an individual or individuals, and as including a reference to archives.

           (10)  In this section:

supply includes supply by way of a communication.

51  Reproducing and communicating unpublished works in libraries or archives

             (1)  Where, at a time more than 50 years after the end of the calendar year in which the author of a literary, dramatic, musical or artistic work died, copyright subsists in the work but:

                     (a)  the work has not been published; and

                     (b)  a reproduction of the work, or, in the case of a literary, dramatic or musical work, the manuscript of the work, is kept in the collection of a library or archives where it is, subject to any regulations governing that collection, open to public inspection;

the copyright in the work is not infringed:

                     (c)  by the making or communication of a reproduction of the work by a person for the purposes of research or study or with a view to publication; or

                     (d)  by the making or communication of a reproduction of the work by, or on behalf of, the officer in charge of the library or archives if the reproduction is supplied (whether by way of communication or otherwise) to a person who satisfies the officer in charge of the library or archives that the person requires the reproduction for the purposes of research or study, or with a view to publication, and that the person will not use it for any other purpose.

             (2)  If the manuscript, or a reproduction, of an unpublished thesis or other similar literary work is kept in a library of a university or other similar institution, or in an archives, the copyright in the thesis or other work is not infringed by the making or communication of a reproduction of the thesis or other work by or on behalf of the officer in charge of the library or archives if the reproduction is supplied (whether by communication or otherwise) to a person who satisfies an authorized officer of the library or archives that he or she requires the reproduction for the purposes of research or study.

51AA  Reproducing and communicating works in Australian Archives

             (1)  The copyright in a work that is kept in the collection of the Australian Archives, where it is open to public inspection, is not infringed by the making or communication by, or on behalf of, the officer in charge of the Archives:

                     (a)  of a single working copy of the work;

                     (b)  of a single reference copy of the work for supply to the central office of the Archives;

                     (c)  on the written request for a reference copy of the work by an officer of the Archives in a regional office of the Archives, where the officer in charge is satisfied that a reference copy of the work has not been previously supplied to that regional office—of a single reference copy of the work for supply to that regional office;

                     (d)  where the officer in charge is satisfied that a reference copy of the work supplied to a regional office of the Archives is lost, damaged or destroyed and an officer of the Archives in that regional office makes a written request for a replacement copy of the work—of a single replacement copy of the work for supply to that regional office; or

                     (e)  where the officer in charge is satisfied that a reference copy of the work supplied to the central office of the Archives is lost, damaged or destroyed—of a single replacement copy of the work for supply to that central office.

             (2)  In this section:

reference copy, in relation to a work, means a reproduction of the work made from a working copy for supply to the central office, or to a regional office, of the Australian Archives for use by that office in providing access to the work to members of the public.

replacement copy, in relation to a work, means a reproduction of the work made from a working copy for the purpose of replacing a reference copy of the work that is lost, damaged or destroyed.

working copy, in relation to a work, means a reproduction of the work made for the purpose of enabling the Australian Archives to retain the copy and use it for making reference copies and replacement copies of the work.

51A  Reproducing and communicating works for preservation and other purposes

             (1)  Subject to subsection (4), the copyright in a work that forms, or formed, part of the collection of a library or archives is not infringed by the making or communicating, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work:

                     (a)  if the work is held in manuscript form or is an original artistic work—for the purpose of preserving the manuscript or original artistic work, as the case may be, against loss or deterioration or for the purpose of research that is being, or is to be, carried out at the library or archives in which the work is held or at another library or other archives;

                     (b)  if the work is held in the collection in a published form but has been damaged or has deteriorated—for the purpose of replacing the work; or

                     (c)  if the work has been held in the collection in a published form but has been lost or stolen—for the purpose of replacing the work.

             (2)  The copyright in a work that is held in the collection of a library or archives is not infringed by the making, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work for administrative purposes.

             (3)  The copyright in a work that is held in the collection of a library or archives is not infringed by the communication, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work made under subsection (2) to officers of the library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the library or archives with the approval of the body administering the library or archives.

          (3A)  The copyright in an original artistic work that is held in the collection of a library or archives is not infringed in the circumstances described in subsection (3B) by the communication, by or on behalf of the officer in charge of the library or archives, of a preservation reproduction of the work by making it available online to be accessed through the use of a computer terminal:

                     (a)  that is installed within the premises of the library or archives; and

                     (b)  that cannot be used by a person accessing the work to make an electronic copy or a hardcopy of the reproduction, or to communicate the reproduction.

          (3B)  The circumstances in which the copyright in the original artistic work is not infringed because of subsection (3A) are that either:

                     (a)  the work has been lost, or has deteriorated, since the preservation reproduction of the work was made; or

                     (b)  the work has become so unstable that it cannot be displayed without risk of significant deterioration.

             (4)  Subsection (1) does not apply in relation to a work held in published form in the collection of a library or archives unless an authorized officer of the library or archives has, after reasonable investigation, made a declaration stating that he or she is satisfied that a copy (not being a second‑hand copy) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

             (5)  Where a reproduction of an unpublished work is made under subsection (1) by or on behalf of the officer in charge of a library or archives for the purpose of research that is being, or is to be, carried out at another library or archives, the supply or communication of the reproduction by or on behalf of the officer to the other library or archives does not, for any purpose of this Act, constitute the publication of the work.

             (6)  In this section:

preservation reproduction, in relation to an artistic work, means a reproduction of the work made under subsection (1) for the purpose of preserving the work against loss or deterioration.

52  Publication of unpublished works kept in libraries or archives

             (1)  Where:

                     (a)  a published literary, dramatic or musical work (in this section referred to as the new work) incorporates the whole or a part of a work (in this section referred to as the old work) to which subsection 51(1) applied immediately before the new work was published;

                     (b)  before the new work was published, the prescribed notice of the intended publication of the work had been given; and

                     (c)  immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publishers of the new work;

then, for the purposes of this Act, the first publication of the new work, and any subsequent publication of the new work whether in the same or in an altered form, shall, in so far as it constitutes a publication of the old work, be deemed not to be an infringement of the copyright in the old work or an unauthorized publication of the old work.

             (2)  The last preceding subsection does not apply to a subsequent publication of the new work incorporating a part of the old work that was not included in the first publication of the new work unless:

                     (a)  subsection 51(1) would, but for this section, have applied to that part of the old work immediately before that subsequent publication;

                     (b)  before that subsequent publication, the prescribed notice of the intended publication had been given; and

                     (c)  immediately before that subsequent publication, the identity of the owner of the copyright in the old work was not known to the publisher of that subsequent publication.

             (3)  If a work, or part of a work, has been published and, because of this section, the publication is taken not to be an infringement of the copyright in the work, the copyright in the work is not infringed by a person who, after the publication took place:

                     (a)  broadcasts the work, or that part of the work; or

                     (b)  electronically transmits the work, or that part of the work (other than in a broadcast) for a fee payable to the person who made the transmission; or

                     (c)  performs the work, or that part of the work, in public; or

                     (d)  makes a record of the work, or that part of the work.

53  Application of Division to illustrations accompanying articles and other works

                   Where an article, thesis or literary, dramatic or musical work is accompanied by artistic works provided for the purpose of explaining or illustrating the article, thesis or other work (in this section referred to as the illustrations), the preceding sections of this Division apply as if:

                     (a)  where any of those sections provides that the copyright in the article, thesis or work is not infringed—the reference to that copyright included a reference to any copyright in the illustrations;

                     (b)  a reference in section 49, section 50, section 51 or 51A to a reproduction of the article, thesis or work included a reference to a reproduction of the article, thesis or work together with a reproduction of the illustrations;

                     (c)  a reference in section 49 or section 50 to a reproduction of a part of the article or work included a reference to a reproduction of that part of the article or work together with a reproduction of the illustrations that were provided for the purpose of explaining or illustrating that part; and

                     (d)  a reference in section 51A or section 52 to the doing of any act in relation to the work included a reference to the doing of that act in relation to the work together with the illustrations.


 

Division 6Recording of musical works

54  Interpretation

             (1)  For the purposes of this Division:

                     (a)  a reference to a musical work shall be read as a reference to the work in its original form or to an adaptation of the work;

                     (b)  a reference to the owner of the copyright in a literary, dramatic or musical work shall, unless the contrary intention appears, be read as a reference to the person who is entitled to authorize the making in, and the importation into, Australia of records of the work; and

                     (c)  a reference to sale of a record by retail or to retail sale of a record shall be read as not including a reference to:

                              (i)  sale for a consideration not consisting wholly of money; or

                             (ii)  sale by a person not ordinarily carrying on the business of making or selling records.

             (2)  For the purposes of this Division, where a musical work is comprised partly in one record and partly in another record or other records, all the records shall be treated as if they constituted a single record.

             (3)  A reference in this Division to a record of a musical work does not include a reference to a sound‑track associated with visual images forming part of a cinematograph film.

             (4)  Subject to subsection (5), this Division applies to a record of a part of a musical work as it applies to a record of the whole work.

             (5)  Section 55:

                     (a)  does not apply to a record of a whole work unless the previous record referred to in paragraph 55(1)(a) was a record of the whole work; and

                     (b) does not apply to a record of a part of a work unless that previous record was a record of that part of the work.

55  Conditions upon which manufacturer may make records of musical work

             (1)  Subject to this Division, the copyright in a musical work is not infringed by a person (in this section referred to as the manufacturer) who makes, in Australia, a record of the work if:

                     (a)  a record of the work:

                              (i)  has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the work;

                             (ii)  has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the work;

                            (iii)  has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work; or

                            (iv)  has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work;

                     (b)  before the making of the record, the prescribed notice of the intended making of the record was given to the owner of the copyright;

                     (c)  the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by a person other than the manufacturer, or intends to use it for making other records that are to be so sold or supplied; and

                     (d)  where the record is so sold or supplied by the manufacturer:

                              (i)  the sale or supply is made with the licence of the owner of the copyright; and

                             (ii)  the prescribed royalty is paid to the owner of the copyright:

                                        (A)  in the manner agreed between the manufacturer and the owner of the copyright or, failing such agreement, determined by the Copyright Tribunal under section 152B; or

                                        (B)  if no such agreement or determination is in force—in the manner prescribed by the regulations.

             (3)  Subparagraph (1)(d)(i) does not apply in relation to a record of a work (other than a work that was made for the purpose of being performed, or has been performed, in association with a dramatic work or has been included in a cinematograph film) if the sale or supply is made after the expiration of the prescribed period after the earliest of the following dates:

                     (a)  the date of the first making in, or the date of the first importation into, Australia of a previous record of the work in circumstances referred to in subparagraph (1)(a)(i) or (ii);

                     (b)  the date of the first supplying (whether by sale or otherwise) to the public in a country referred to in subparagraph (1)(a)(iii) or (iv) of a previous record of the work made in, or imported into, that country in circumstances referred to in that subparagraph.

             (4)  Regulations prescribing a period for the purposes of the last preceding subsection may prescribe different periods in relation to different classes of records.

             (5)  If, apart from this subsection, the amount of royalty payable in respect of a record under this section would be less than one cent, that amount of royalty is one cent.

             (6)  In this section:

prescribed royalty, in relation to a record of a musical work, means:

                     (a)  such amount of royalty as is agreed between the manufacturer and the owner of the copyright in the work or, failing such agreement, as is determined by the Copyright Tribunal under section 152A; or

                     (b)  if no such agreement or determination is in force—an amount equal to 6.25% of the retail selling price of the record.

57  Provisions relating to royalty where 2 or more works are on the one record

                   Where a record comprises 2 or more musical works, whether or not there is any other matter comprised in the record:

                     (a)  if the record includes a work in which copyright does not subsist or works in which copyrights do not subsist the royalty payable in respect of the record is, subject to the next succeeding paragraph, the amount that bears to the amount that, but for this section, would be the amount of the royalty the same proportion as the number of works in the record in which copyrights subsist bears to the total number of works in the record; and

                     (b)  if the record includes 2 or more works in which copyrights subsist:

                              (i)  subject to this Division, the royalty payable in respect of the record shall not be less than One cent in respect of each work in the record in which copyright subsists; and

                             (ii)  if the owners of the copyrights in the works in the record in which copyrights subsist are different persons there shall be paid to the owner of the copyright in each work, in respect of that work, an amount ascertained by dividing the amount of the royalty payable in respect of the record by the number of works in the record in which copyrights subsist.

59  Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work

             (1)  Where:

                     (a)  a person makes in Australia a record comprising the performance of a musical work in which words are sung, or are spoken incidentally to or in association with the music, whether or not there is any other matter comprised in the record;

                     (b)  copyright does not subsist in that work or, if copyright so subsists, the requirements specified in subsection 55(1) are complied with in relation to that copyright;

                     (c)  the words consist or form part of a literary or dramatic work in which copyright subsists;

                     (d)  a record of the musical work in which those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music:

                              (i)  has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the literary or dramatic work;

                             (ii)  has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the literary or dramatic work;

                            (iii)  has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; or

                            (iv)  has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; and

                     (e)  the like notice was given to the owner of the copyright in the literary or dramatic work as is required by paragraph 55(1)(b) to be given to the owner of the copyright (if any) in the musical work and there is paid to the owner of the copyright in the literary or dramatic work such amount (if any) as is ascertained in accordance with this section;

the making of the record does not constitute an infringement of the copyright in the literary or dramatic work.

             (2)  Where copyright does not subsist in the musical work, the amount to be paid in respect of the literary or dramatic work is an amount equal to the royalty that, but for this section, would have been payable in respect of the musical work if copyright had subsisted in the musical work.

             (3)  Where copyright subsists in the musical work as well as in the literary or dramatic work:

                     (a)  if the copyrights in those works are owned by the same person—an amount is not payable in respect of the literary or dramatic work; or

                     (b)  if the copyrights in those works are owned by different persons—the royalty that, but for this section, would have been payable in respect of the musical work shall be apportioned between them in such manner as they agree, or, in default of the agreement, as is determined by the Copyright Tribunal on the application of either of them.

             (4)  Where the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work do not agree on the manner in which an amount is to be apportioned between them but the person who made the record gives an undertaking in writing to each owner to pay to him or her the portion of that amount that the Tribunal determines to be payable to him or her, then:

                     (a)  paragraph 55(1)(d) and paragraph (1)(e) of this section have effect as if the payments referred to in those paragraphs had been made; and

                     (b)  the person who made the record is liable, when the amount to which an undertaking relates is determined, to pay that amount to the owner of the copyright to whom the undertaking was given and the owner may recover that amount in a court of competent jurisdiction from that person as a debt due to the owner.

             (5)  Regulations made for the purposes of paragraph 55(1)(d) in relation to payments to the owner of the copyright in a musical work have the like effect, with any necessary modifications, for the purposes of paragraph (1)(e) of this section in relation to payments to the owner of the copyright in a literary or dramatic work.

60  Records made partly for retail sale and partly for gratuitous disposal

                   Where a person makes, in Australia, a number of records embodying the same sound recording, being a recording of a musical work or of a musical work and of words consisting or forming part of a literary or dramatic work, with the intention of:

                     (a)  selling by retail, or supplying for sale by retail by another person, a substantial proportion of the records (in this section referred to as the records made for retail sale); and

                     (b)  disposing gratuitously of the remainder of the records or supplying the remainder of the records for gratuitous disposal by another person;

this Division applies in relation to the records other than the records made for retail sale as if:

                     (c)  those records had been made with the intention of selling them by retail or of supplying them for sale by retail by another person;

                     (d)  the gratuitous disposal of those records by the maker of the records, or the supplying of those records by the maker of the records for gratuitous disposal by another person, were a sale of the records by retail; and

                     (e)  the retail selling price of those records were the same as the retail selling price of the records made for retail sale.

61  Making inquiries in relation to previous records

                   Where:

                     (a)  a person makes inquiries, as prescribed, for the purpose of ascertaining whether a record of a musical work, or a record of a musical work in which words consisting or forming part of a literary or dramatic work were sung or spoken, has previously been made in, or imported into, Australia by, or with the licence of, the owner of the copyright in the musical work or in the literary or dramatic work, as the case may be, for the purpose of retail sale or for use in making other records for the purpose of retail sale; and

                     (b)  an answer to those inquiries is not received within the prescribed period;

a record of that musical work, or a record of that work in which those words were sung or spoken, as the case may be, shall, for the purposes of the application of this Division:

                     (c)  in relation to the person who made the inquiries; or

                     (d)  in relation to a person who makes records of the musical work, or records of that work in which those words or substantially the same words are sung or spoken, for the purpose of supplying those records to the person who made the inquiries in pursuance of an agreement entered into between those persons for the making of the records;

be taken to have been previously made in, or imported into, Australia with the licence of the owner of that copyright for the purpose of retail sale or for use in making other records for the purpose of retail sale, as the case may be.

64  Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records

                   For the purpose of any provision of this Act relating to imported articles, in determining whether the making of a record made outside Australia would have constituted an infringement of copyright if the record had been made in Australia by the importer, sections 55 and 59 shall be disregarded.


 

Division 7Acts not constituting infringements of copyright in artistic works

65  Sculptures and certain other works in public places

             (1)  This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of artistic work in section 10.

             (2)  The copyright in a work to which this section applies that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast.

66  Buildings and models of buildings

                   The copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.

67  Incidental filming or televising of artistic works

                   Without prejudice to the last two preceding sections, the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion in the film or broadcast is only incidental to the principal matters represented in the film or broadcast.

68  Publication of artistic works

                   The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph or cinematograph film if, by virtue of section 65, section 66 or section 67, the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.

70  Reproduction for purpose of including work in television broadcast

             (1)  Where the inclusion of an artistic work in a television broadcast made by a person would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of copyright in the work but the making by the person of a cinematograph film of the work would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making by the person of such a film solely for the purpose of the inclusion of the work in a television broadcast.

             (2)  The last preceding subsection does not apply in relation to a film if a copy of the film is used for a purpose other than:

                     (a)  the inclusion of the work in a television broadcast in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

                     (b)  the making of further copies of the film for the purpose of the inclusion of the work in such a broadcast.

             (3)  Subsection (1) does not apply in relation to a film where a copy of the film is used for the purpose of the inclusion of the work in a television broadcast made by a person who is not the maker of the film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the film.

             (4)  A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

             (5)  Subsection (1) does not apply in relation to a film unless, before the expiration of the period of 12 months commencing on the day on which any of the copies of the film is first used for including the work in a television broadcast in accordance with that subsection, or before the expiration of such further period, if any, as is agreed between the maker of the film and the owner of the copyright in the work, all the copies of the film are destroyed or are delivered, with the consent of the Director‑General of the Australian Archives, to the Australian Archives.

             (6)  The Director‑General of the Australian Archives shall not consent to the delivery to the Australian Archives in accordance with subsection (5) of a copy of a film unless he or she has certified that the film is of an exceptional documentary character.

72   Reproduction of part of work in later work

             (1)  The copyright in an artistic work is not infringed by the making of a later artistic work by the same author if, in making the later work, the author does not repeat or imitate the main design of the earlier work.

             (2)  The last preceding subsection has effect notwithstanding that part of the earlier work is reproduced in the later work and that, in reproducing the later work, the author used a mould, cast, sketch, plan, model or study made for the purposes of the earlier work.

73  Reconstruction of buildings

             (1)  Where copyright subsists in a building, the copyright is not infringed by a reconstruction of that building.

             (2)  Where a building has been constructed in accordance with architectural drawings or plans in which copyright subsists and has been so constructed by, or with the licence of, the owner of that copyright, that copyright is not infringed by a later reconstruction of the building by reference to those drawings or plans.


 

Division 8Designs

74  Corresponding design

             (1)  In this Division:

corresponding design, in relation to an artistic work, means visual features of shape or configuration which, when embodied in a product, result in a reproduction of that work, whether or not the visual features constitute a design that is capable of being registered under the Designs Act 2003.

             (2)  For the purposes of subsection (1):

embodied in, in relation to a product, includes woven into, impressed on or worked into the product.

75  Copyright protection where corresponding design registered

                   Subject to section 76, where copyright subsists in an artistic work (whether made before the commencement of this section or otherwise) and a corresponding design is or has been registered under the Designs Act 1906 or the Designs Act 2003 on or after that commencement, it is not an infringement of that copyright to reproduce the work by embodying that, or any other, corresponding design in a product.

76  False registration of industrial designs under the Designs Act 2003

             (1)  This section applies if:

                     (a)  proceedings (copyright proceedings) are brought under this Act in relation to an artistic work in which copyright subsists; and

                     (b)  a corresponding design was registered under the Designs Act 2003; and

                     (c)  the exclusive right in the design had not expired by effluxion of time before the copyright proceedings began; and

                     (d)  it is established in the copyright proceedings that:

                              (i)  none of the persons who are registered owners of the registered design are entitled persons in relation to the design; and

                             (ii)  none of those persons were registered with the knowledge of the owner of the copyright in the artistic work.

             (2)  Subject to subsection (3), for the purposes of the copyright proceedings:

                     (a)  the design is taken never to have been registered under the Designs Act 2003; and

                     (b)  section 75 does not apply in relation to anything done in respect of the design; and

                     (c)  nothing in the Designs Act 2003 constitutes a defence.

             (3)  Ignore subsection (2) if it is established in the copyright proceedings that the act to which the proceedings relate was done:

                     (a)  by an assignee of, or under a licence granted by, the registered owner of the registered design; and

                     (b)  in good faith relying on the registration and without notice of any proceedings (whether or not before a court) to revoke the registration or to rectify the entry in the Register of Designs in relation to the design.

77  Application of artistic works as industrial designs without registration of the designs

             (1)  This section applies where:

                     (a)  copyright subsists in an artistic work (other than a building or a model of a building, or a work of artistic craftsmanship) whether made before the commencement of this section or otherwise;

                     (b)  a corresponding design is or has been applied industrially, whether in Australia or elsewhere, and whether before or after the commencement of this section, by or with the licence of the owner of the copyright in the place of industrial application; and

                     (c)  at any time on or after the commencement of this section, products to which the corresponding design has been so applied (the products made to the corresponding design) are sold, let for hire or offered or exposed for sale or hire, whether in Australia or elsewhere; and

                     (d)  at that time, the corresponding design is not registrable under the Designs Act 2003 or has not been registered under that Act or under the Designs Act 1906.

          (1A)  This section also applies if:

                     (a)  a complete specification that discloses a product made to the corresponding design; or

                     (b)  a representation of a product made to the corresponding design and included in a design application;

is published in Australia, whether or not paragraphs (1)(b) and (c) are satisfied in relation to the corresponding design.

             (2)  It is not an infringement of the copyright in the artistic work to reproduce the work, on or after the day on which:

                     (a)  products made to the corresponding design are first sold, let for hire or offered or exposed for sale or hire; or

                     (b)  a complete specification that discloses a product made to the corresponding design is first published in Australia; or

                     (c)  a representation of a product made to the corresponding design and included in a design application is first published in Australia;

by embodying that, or any other, corresponding design in a product.

             (3)  This section does not apply in relation to any articles or products in respect of which, at the time when they were sold, let for hire or offered or exposed for sale or hire, the corresponding design concerned was excluded from registration by regulations made under the Designs Act 1906 or the Designs Act 2003, and, for the purposes of any proceedings under this Act, a design shall be conclusively presumed to have been so excluded if:

                     (a)  before the commencement of the proceedings, an application for the registration of the design under the Designs Act 1906 in respect of those articles, or under the Designs Act 2003 in respect of those products, had been refused;

                     (b)  the reason, or one of the reasons, given for the refusal was that the design was excluded from registration under that Act by regulations made under that Act; and

                     (c)  when the proceedings were commenced, no appeal against the refusal had been allowed or was pending.

             (4)  The regulations may specify the circumstances in which a design is, for the purposes of this section, to be taken to be applied industrially.

             (5)  In this section:

building or model of a building does not include a portable building such as a shed, a pre‑constructed swimming pool, a demountable building or similar portable building.

complete specification has the same meaning as in the Patents Act 1990.

design application has the same meaning as in the Designs Act 2003.

representation, in relation to a design, has the same meaning as in the Designs Act 2003.

77A  Certain reproductions of an artistic work do not infringe copyright

             (1)  It is not an infringement of copyright in an artistic work to reproduce the artistic work, or communicate that reproduction, if:

                     (a)  the reproduction is derived from a three‑dimensional product that embodies a corresponding design in relation to the artistic work; and

                     (b)  the reproduction is in the course of, or incidental to:

                              (i)  making a product (the non‑infringing product), if the making of the product did not, or would not, infringe the copyright in the artistic work because of the operation of this Division; or

                             (ii)  selling or letting for hire the non‑infringing product, or offering or exposing the non‑infringing product for sale or hire.

             (2)  It is not an infringement of copyright in an artistic work to make a cast or mould embodying a corresponding design in relation to the artistic work, if:

                     (a)  the cast or mould is for the purpose of making products; and

                     (b)  the making of the products would not infringe copyright because of the operation of this Division.


 

Division 9Works of joint authorship

78  References to all of joint authors

                   Subject to this Division, a reference in this Act to the author of a work shall, unless otherwise expressly provided by this Act, be read, in relation to a work of joint authorship, as a reference to all the authors of the work.

79  References to any one or more of joint authors

                   The references in section 32, and in subsection 34(2) to the author of a work shall, in relation to a work of joint authorship, be read as references to any one or more of the authors of the work.

80  References to whichever of joint authors died last

                   The references in sections 33 and 51 to the author of a work shall, in relation to a work of joint authorship other than a work to which the next succeeding section applies, be read as references to the author who died last.

81  Works of joint authorship published under pseudonyms

             (1)  This section applies to a work of joint authorship that was first published under 2 or more names of which one was a pseudonym or 2 or more (but not all) were pseudonyms.

             (2)  This section also applies to a work of joint authorship that was first published under 2 or more names all of which were pseudonyms if, at any time within 70 years after the end of the calendar year in which the work was first published, the identity of one or more (but not all) of the authors was generally known or could be ascertained by reasonable inquiry.

             (3)  The references in section 33 to the author of a work shall, in relation to a work to which this section applies, be read as references to the author whose identity was disclosed or, if the identity of 2 or more of the authors was disclosed, as references to whichever of those authors died last.

             (4)  For the purposes of this section, the identity of an author shall be deemed to have been disclosed if:

                     (a)  one of the names under which the work was published was the name of that author; or

                     (b)  the identity of that author is generally known or can be ascertained by reasonable inquiry.

82  Copyright to subsist in joint works without regard to any author who is an unqualified person

             (1)  Subsection 35(2) has effect, in relation to a work of joint authorship of which one of the authors is an unqualified person, or 2 or more (but not all) of the authors are unqualified persons, as if the author or authors, other than unqualified persons, had alone been the author or authors, as the case may be, of the work.

             (2)  For the purposes of the last preceding subsection, a person is an unqualified person in relation to a work where, if he or she had alone been the author of the work, copyright would not have subsisted in the work by virtue of this Part.

83  Inclusion of joint works in collections for use in places of education

                   The reference in subsection 44(2) to other extracts from, or from adaptations of, works by the author of the extract concerned:

                     (a)  shall be read as including a reference to extracts from, or from adaptations of, works by the author of the extract concerned in collaboration with any other person; or

                     (b)  if the extract concerned is from, or from an adaptation of, a work of joint authorship shall be read as including a reference to extracts from, or from adaptations of, works by any one or more of the authors of the extract concerned, or by any one or more of those authors in collaboration with any other person.


 

Part IVCopyright in subject‑matter other than works

Division 1Preliminary

84  Definitions

                   In this Part:

live performance means:

                     (a)  a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

                     (b)  a performance (including an improvisation) of a musical work or part of such a work; or

                     (c)  the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

                     (d)  a performance of a dance; or

                     (e)  a performance of a circus act or a variety act or any similar presentation or show; or

                      (f)  a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance:

                     (a)  means each person who contributed to the sounds of the performance; and

                     (b)  if the performance includes a performance of a musical work—includes the conductor.

qualified person means:

                     (a)  an Australian citizen, an Australian protected person or a person (other than a body corporate) resident in Australia; or

                     (b)  a body corporate incorporated under a law of the Commonwealth or of a State.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.


 

Division 2Nature of copyright in subject‑matter other than works

85  Nature of copyright in sound recordings

             (1)  For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a sound recording, is the exclusive right to do all or any of the following acts:

                     (a)  to make a copy of the sound recording;

                     (b)  to cause the recording to be heard in public;

                     (c)  to communicate the recording to the public;

                     (d)  to enter into a commercial rental arrangement in respect of the recording.

             (2)  Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a sound recording if:

                     (a)  the copy of the sound recording was purchased by a person (the record owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

                     (b)  the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and

                     (c)  the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of copies of sound recordings, when the copy was purchased.

86  Nature of copyright in cinematograph films

                   For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:

                     (a)  to make a copy of the film;

                     (b)  to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;

                     (c)  to communicate the film to the public.

87  Nature of copyright in television broadcasts and sound broadcasts

                   For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right:

                     (a)  in the case of a television broadcast in so far as it consists of visual images—to make a cinematograph film of the broadcast, or a copy of such a film;

                     (b)  in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds—to make a sound recording of the broadcast, or a copy of such a sound recording; and

                     (c)  in the case of a television broadcast or of a sound broadcast—to re‑broadcast it or communicate it to the public otherwise than by broadcasting it.

88  Nature of copyright in published editions of works

                   For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a published edition of a literary, dramatic, musical or artistic work or of two or more literary, dramatic, musical or artistic works, is the exclusive right to make a facsimile copy of the edition.


 

Division 3Subject‑matter, other than works, in which copyright subsists

89  Sound recordings in which copyright subsists

             (1)  Subject to this Act, copyright subsists in a sound recording of which the maker was a qualified person at the time when the recording was made.

             (2)  Without prejudice to the last preceding subsection, copyright subsists, subject to this Act, in a sound recording if the recording was made in Australia.

             (3)  Without prejudice to the last two preceding subsections, copyright subsists, subject to this Act, in a published sound recording if the first publication of the recording took place in Australia.

90  Cinematograph films in which copyright subsists

             (1)  Subject to this Act, copyright subsists in a cinematograph film of which the maker was a qualified person for the whole or a substantial part of the period during which the film was made.

             (2)  Without prejudice to the last preceding subsection, copyright subsists, subject to this Act, in a cinematograph film if the film was made in Australia.

             (3)  Without prejudice to the last two preceding subsections, copyright subsists, subject to this Act, in a published cinematograph film if the first publication of the film took place in Australia.

91  Television broadcasts and sound broadcasts in which copyright subsists

                   Subject to this Act, copyright subsists in a television broadcast or sound broadcast made from a place in Australia:

                     (a)  under the authority of a licence or a class licence under the Broadcasting Services Act 1992; or

                     (b)  by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

92  Published editions of works in which copyright subsists

             (1)  Subject to this Act, copyright subsists in a published edition of a literary, dramatic, musical or artistic work, or of 2 or more literary, dramatic, musical or artistic works, where:

                     (a)  the first publication of the edition took place in Australia; or

                     (b)  the publisher of the edition was a qualified person at the date of the first publication of the edition.

             (2)  The last preceding subsection does not apply to an edition that reproduces a previous edition of the same work or works.


 

Division 4Duration of copyright in subject‑matter other than works

93  Duration of copyright in sound recordings

                   Copyright subsisting in a sound recording by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the recording is first published.

94  Duration of copyright in cinematograph films

             (1)  Copyright subsisting in a cinematograph film by virtue of subsection 90(1) or (2) continues to subsist until the film is published and, after the publication of the film, until the end of 70 years after the end of the calendar year in which the film was first published.

             (2)  Copyright subsisting in a cinematograph film by virtue only of subsection 90(3) continues to subsist until the end of 70 years after the end of the calendar year in which the film was first published.

95  Duration of copyright in television broadcasts and sound broadcasts

             (1)  Copyright subsisting in a television broadcast or sound broadcast by virtue of this Part continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the broadcast was made.

             (2)  In so far as a television broadcast or sound broadcast is a repetition (whether the first or a subsequent repetition) of a previous television broadcast or sound broadcast to which section 91 applies, and is made by broadcasting visual images or sounds embodied in any article or thing:

                     (a)  if it is made before the expiration of the period of 50 years after the expiration of the calendar year in which the previous broadcast was made—any copyright subsisting in it expires at the expiration of that period; and

                     (b)  if it is made after the expiration of that period—copyright does not subsist in it by virtue of this Part.

96  Duration of copyright in published editions of works

                   Copyright subsisting in a published edition of a work or works by virtue of this Part continues to subsist until the expiration of 25 years after the expiration of the calendar year in which the edition was first published.


 

Division 5Ownership of copyright in subject‑matter other than works

Subdivision AOwnership of copyright in subject‑matter other than works

97  Ownership of copyright in sound recordings

             (1)  This section has effect subject to Parts VII and X.

             (2)  Subject to subsection (3), the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of this Part.

          (2A)  If there is more than one owner of the copyright in a sound recording of a live performance, the owners own the copyright as tenants in common in equal shares.

             (3)  Where:

                     (a)  a person makes, for valuable consideration, an agreement with another person for the making of a sound recording by the other person; and

                     (b)  the recording is made in pursuance of the agreement;

the first‑mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the recording by virtue of this Part.

98  Ownership of copyright in cinematograph films

             (1)  This section has effect subject to Parts VII and X.

             (2)  Subject to the next succeeding subsection, the maker of a cinematograph film is the owner of any copyright subsisting in the film by virtue of this Part.

             (3)  Where:

                     (a)  a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and

                     (b)  the film is made in pursuance of the agreement;

the first‑mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.

99  Ownership of copyright in television broadcasts and sound broadcasts

                   Subject to Parts VII and X, the maker of a television broadcast or sound broadcast is the owner of any copyright subsisting in the broadcast.

100  Ownership of copyright in published editions of works

                   Subject to Parts VII and X, the publisher of an edition of a work or works is the owner of any copyright subsisting in the edition by virtue of this Part.

Subdivision BSpecific provisions relating to the ownership of copyright in pre‑commencement sound recordings of live performances

100AA  Application

                   This Subdivision applies to a sound recording of a live performance if:

                     (a)  copyright subsists in the recording on the day on which this section commences; and

                     (b)  at least one person would become a maker of the recording under paragraph 100AD(1)(b) or subsection 100AD(2).

100AB  Definitions

                   In this Subdivision:

former owner of the copyright in a sound recording of a live performance means a person mentioned in paragraph 100AD(1)(a).

new owner of the copyright in a sound recording of a live performance means the following people:

                     (a)  a person who becomes a maker of a sound recording under paragraph 100AD(1)(b);

                     (b)  if subsection 100AD(2) applies—an employer who becomes a maker of a sound recording under that subsection.

Note:          Other expressions used in this Subdivision are defined in section 84.

100AC  Application of sections 100AD and 100AE

                   Sections 100AD and 100AE have effect subject to Parts VII and X.

100AD  Makers of pre‑commencement sound recordings of live performances

             (1)  For the purpose of section 100AE, the makers of a sound recording of a live performance are:

                     (a)  the person or persons who, immediately before the commencement of this section, owned the copyright subsisting in the recording; and

                     (b)  the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Employer may be a maker of the sound recording

             (2)  If:

                     (a)  a sound recording of a live performance was made; and

                     (b)  a performer performed in that performance under the terms of his or her employment by another person (the employer) under a contract of service or apprenticeship;

then, for the purposes of paragraph (1)(b), the employer is taken to be a maker instead of that performer.

             (3)  Subsection (2) may be excluded or modified by an agreement (whether made before or after the live performance) between the performer and the employer.

100AE  Ownership of pre‑commencement copyright in sound recordings of live performances

Ownership of the copyright

             (1)  On and after the day on which this section commences, all makers of a sound recording of a live performance are owners of any copyright subsisting in the recording by virtue of this Part.

Division of the ownership of the copyright

             (2)  The former owners of the copyright and the new owners of the copyright each own half of the copyright as tenants in common in 2 equal shares.

             (3)  The former owners own their half of the copyright in the same proportions as the whole copyright was owned by them immediately before the commencement of this section.

             (4)  The new owners own their half of the copyright as tenants in common in equal shares.

             (5)  Subsections (3) and (4) do not limit section 196.

             (6)  Subsection (3) does not otherwise affect the terms on which the former owners own their half of the copyright.

Copyright to devolve if a new owner is not alive

             (7)  If a new owner is not alive on the day on which this section commences, then, for the purposes of subsections (2) and (4), that owner is replaced by the person to whom the copyright would have devolved if the new owner had owned the copyright immediately before his or her death. If the copyright would have devolved to more than one person, those persons are to be treated as a single new owner for the purposes of subsections (2) and (4).

100AF  Former owners may continue to do any act in relation to the copyright

             (1)  On and after the day on which this section commences, a former owner of the copyright in a sound recording of a live performance may:

                     (a)  do an act comprised in the copyright; or

                     (b)  do any other act in relation to the copyright;

as if each new owner of the copyright had granted a licence or permission (however described) to the former owner to do the act.

Note:          However, the former owner may still need to obtain the consent of other former owners of the copyright before doing the act.

             (2)  Subsection (1) applies to:

                     (a)  the former owner’s licensees and successors in title; and

                     (b)  any persons who are authorised by the former owner; and

                     (c)  any persons who are authorised by the former owner’s licensees or successors in title;

in the same way as it applies to the former owner.

             (3)  Subsections (1) and (2) may be excluded or modified by an agreement (whether made before or after this section commences) between the former owner and a new owner.

100AG  Actions by new owners of copyright

                   If a new owner of the copyright in a sound recording of a live performance brings an action under this Act in respect of the copyright, the new owner is not entitled to the remedies listed in the table.

 

Actions under this Act

Item

In this case...

the new owner is not entitled to:

1

the action is for an infringement of the copyright under section 115

(a)  damages (other than additional damages); or

(b) an account of profits

2

the action is for conversion or detention under section 116

(a)  damages (other than additional damages); or

(b) an account of profits; or

(c)  any other pecuniary remedy (other than costs); or

(d) delivery up of an infringing copy

3

the action is brought under section 116A, 116B or 116C

(a)  damages (other than additional damages); or

(b) an account of profits

100AH  References to the owner of the copyright in a sound recording

                   A new owner of the copyright in a sound recording of a live performance is taken not to be the owner of the copyright for the purposes of the following provisions:

                     (a)  sections 107, 108 and 109 (in Part IV);

                     (b)  sections 119 and 133 (in Part V);

                     (c)  the definitions of licence and licensor in subsection 136(1), and sections 150, 151, 152, 153E, 153F, 153G, 159 and 163A (in Part VI);

                     (d)  section 183 (in Part VII).

Note:          A new owner of the copyright in a sound recording of a live performance is not a relevant right holder under section 135A, nor a relevant copyright owner under section 135ZB or 135ZZI.


 

Division 6Infringement of copyright in subject‑matter other than works

100A  Interpretation

                   In this Division, audio‑visual item means a sound recording, a cinematograph film, a sound broadcast or a television broadcast.

101  Infringement by doing acts comprised in copyright

             (1)  Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

          (1A)  In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following:

                     (a)  the extent (if any) of the person’s power to prevent the doing of the act concerned;

                     (b)  the nature of any relationship existing between the person and the person who did the act concerned;

                     (c)  whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

             (2)  The next two succeeding sections do not affect the generality of the last preceding subsection.

             (3)  Subsection (1) applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording.

             (4)  Subsection (1) applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.

102  Infringement by importation for sale or hire

             (1)  Subject to sections 112A, 112C, 112D and 112DA, a copyright subsisting by virtue of this Part is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of:

                     (a)  selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

                     (b)  distributing the article:

                              (i)  for the purpose of trade; or

                             (ii)  for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

                     (c)  by way of trade exhibiting the article in public;

if the importer knew, or ought reasonably to have known, that the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

             (2)  In relation to an accessory to an article that is or includes a copy of subject‑matter in which copyright subsists by virtue of this Part, being a copy that was made without the licence of the owner of the copyright in the country in which the copy was made, subsection (1) has effect as if the words “the importer knew, or ought reasonably to have known, that” were omitted.

103  Infringement by sale and other dealings

             (1)  Subject to sections 112A, 112C, 112D and 112DA, a copyright subsisting by virtue of this Part is infringed by a person who, in Australia, and without the licence of the owner of the copyright:

                     (a)  sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or

                     (b)  by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

             (2)  For the purposes of the last preceding subsection, the distribution of any articles:

                     (a)  for the purpose of trade; or

                     (b)  for any other purpose to an extent that affects prejudicially the owner of the copyright concerned;

shall be taken to be the sale of those articles.

103A  Fair dealing for purpose of criticism or review

                   A fair dealing with an audio‑visual item does not constitute an infringement of the copyright in the item or in any work or other audio‑visual item included in the item if it is for the purpose of criticism or review, whether of the first‑mentioned audio‑visual item, another audio‑visual item or a work, and a sufficient acknowledgement of the first‑mentioned audio‑visual item is made.

103B  Fair dealing for purpose of reporting news

             (1)  A fair dealing with an audio‑visual item does not constitute an infringement of the copyright in the item or in any work or other audio‑visual item included in the item if:

                     (a)  it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the first‑mentioned audio‑visual item is made; or

                     (b)  it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.

103C  Fair dealing for purpose of research or study

             (1)  A fair dealing with an audio‑visual item does not constitute an infringement of the copyright in the item or in any work or other audio‑visual item included in the item if it is for the purpose of research or study.

             (2)  For the purposes of this Act, the matters to which regard shall be had in determining whether a dealing with an audio‑visual item constitutes a fair dealing for the purpose of research or study include:

                     (a)  the purpose and character of the dealing;

                     (b)  the nature of the audio‑visual item;

                     (c)  the possibility of obtaining the audio‑visual item within a reasonable time at an ordinary commercial price;

                     (d)  the effect of the dealing upon the potential market for, or value of, the audio‑visual item; and

                     (e)  in a case where part only of the audio‑visual item is
copied—the amount and substantiality of the part copied taken in relation to the whole item.

104  Acts done for purposes of judicial proceeding

                   A copyright subsisting by virtue of this Part is not infringed by anything done:

                     (a)  for the purpose of a judicial proceeding or a report of a judicial proceeding; or

                     (b)  for the purpose of seeking professional advice from:

                              (i)  a legal practitioner; or

                             (ii)  a person registered as a patent attorney under the Patents Act 1990; or

                            (iii)  a person registered as a trade marks attorney under the Trade Marks Act 1995; or

                     (c)  for the purpose of, or in the course of, the giving of professional advice by:

                              (i)  a legal practitioner; or

                             (ii)  a person registered as a patent attorney under the Patents Act 1990; or

                            (iii)  a person registered as a trade marks attorney under the Trade Marks Act 1995.

104A  Acts done by Parliamentary libraries for members of Parliament

                   A copyright subsisting by virtue of this Part is not infringed by anything done, for the sole purpose of assisting a person who is a member of a Parliament in the performance of the person’s duties as such a member, by an authorized officer of a library, being a library the principal purpose of which is to provide library services for members of that Parliament.

104B  Infringing copies made on machines installed in libraries and archives

                   If:

                     (a)  a person makes an infringing copy of, or of part of, an audio‑visual item or a published edition of a work on a machine (including a computer), being a machine installed by or with the approval of the body administering a library or archives on the premises of the library or archives, or outside those premises for the convenience of persons using the library or archives; and

                     (b)  there is affixed to, or in close proximity to, the machine, in a place readily visible to persons using the machine, a notice of the prescribed dimensions and in accordance with the prescribed form;

neither the body administering the library or archives, nor the officer in charge of the library or archives, is taken to have authorised the making of the infringing copy merely because the copy was made on that machine.

105  Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast

                   Copyright subsisting in a sound recording by virtue only of subsection 89(3) is not infringed by the causing of the recording to be heard in public or by the broadcasting of the recording.

106  Causing sound recording to be heard at guest house or club

             (1)  Where a sound recording is caused to be heard in public:

                     (a)  at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests; or

                     (b)  as part of the activities of, or for the benefit of, a club, society or other organization that is not established or conducted for profit and the principal objects of which are charitable or are otherwise concerned with the advancement of religion, education or social welfare;

the act of causing the recording to be so heard does not constitute an infringement of the copyright in the recording.

             (2)  The last preceding subsection does not apply:

                     (a)  in relation to premises of a kind referred to in paragraph (a) of that subsection, if a specific charge is made for admission to the part of the premises where the recording is to be heard; or

                     (b)  in relation to an organization of a kind referred to in paragraph (b) of that subsection, if a charge is made for admission to the place where the recording is to be heard and any of the proceeds of the charge are applied otherwise than for the purposes of the organization.

             (3)  A reference in the last preceding subsection to a specific charge, or a charge, made for admission includes a reference to a specific charge, or a charge, made partly for admission and partly for other purposes.

107  Making of a copy of the sound recording for purpose of broadcasting

             (1)  Where the broadcasting by a person of a sound recording would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the recording but the making by the person of a copy of the sound recording would, apart from this subsection, constitute such an infringement, the copyright in the recording is not infringed by the making by the person of a copy of the sound recording in association with other matter solely for the purpose of the broadcasting of the recording in association with the other matter.

             (2)  The last preceding subsection does not apply in relation to a copy of a sound recording if the copy is used for a purpose other than:

                     (a)  the broadcasting of the recording in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the recording; or

                     (b)  the making of further copies of the sound recording for the purpose of the broadcasting of the recording in such circumstances.

             (3)  Subsection (1) does not apply in relation to a copy of a sound recording where the copy is used for the purpose of the broadcasting of the recording by a person who is not the maker of the copy unless the maker has paid to the owner of the copyright in the recording such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the copy.

             (4)  A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

             (5)  Subsection (1) does not apply in relation to a copy of a sound recording unless, before the expiration of the period of 12 months commencing on the day on which any of the copies made in accordance with that subsection is first used for broadcasting the recording in accordance with that subsection, or before the expiration of such further period, if any, as is agreed between the maker of the copy and the owner of the copyright in the recording, all the copies made in accordance with that subsection are destroyed or are delivered, with the consent of the Director‑General of the Australian Archives, to the Australian Archives.

             (6)  The Director‑General of the Australian Archives shall not consent to the delivery to the Australian Archives in accordance with subsection (5) of a copy of a sound recording unless he or she has certified that the recording is of an exceptional documentary character.

             (7)  In this section:

broadcasting does not include simulcasting.

108  Copyright in published recording not infringed by public performance if equitable remuneration paid

             (1)  The copyright in a sound recording that has been published is not infringed by a person who causes the recording to be heard in public if:

                     (a)  the person has paid to the owner of the copyright in the recording such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the causing of the recording to be heard in public; and

                     (b)  in the case of a recording that was first published outside Australia—the recording has been published in Australia or the prescribed period after the date of the first publication of the recording has expired.

             (2)  A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

             (3)  Regulations prescribing a period for the purposes of paragraph (1)(b) may prescribe different periods in relation to different classes of sound recordings.

109  Copyright in published sound recording not infringed by broadcast in certain circumstances

             (1)  Subject to this section, the copyright in a published sound recording is not infringed by the making of a broadcast (other than a broadcast transmitted for a fee payable to the person who made the broadcast) of that recording if:

                     (a)  where there is no order of the Tribunal in force under section 152 applying to the maker of that broadcast in relation to the time when that broadcast was made—the maker of that broadcast has given an undertaking in writing to the person who is the owner of the copyright in that recording to pay to the owner such amounts (if any) as may be specified in, or determined in accordance with, an order of the Tribunal made under that section in respect of the broadcasting by the maker, during a period within which that broadcast was made, of published sound recordings in which the copyrights are owned by that person and which include that recording; or

                     (b)  where there is an order of the Tribunal in force under that section applying to the maker of that broadcast in relation to the time when that broadcast was made:

                              (i)  the copyright in that recording is owned by a person who is specified in the order as one of the persons among whom the amount specified in, or determined in accordance with, the order is to be divided and the maker of the broadcast makes payments to the person in accordance with the order; or

                             (ii)  the copyright in that recording is owned by a person who is not so specified in the order.

             (2)  The last preceding subsection does not apply in relation to a broadcast of a sound recording if the broadcast was made in accordance with an agreement between the maker of the broadcast and the owner of the copyright in the recording.

             (3)  Subsection (1) does not apply in relation to a broadcast of a sound recording that has not been published in Australia if the broadcast was made before the expiration of the prescribed period after the date of the first publication of the recording.

             (4)  Regulations prescribing a period for the purposes of the last preceding subsection may prescribe different periods in relation to different classes of sound recordings.

             (5)  Subsection (1) does not apply in relation to a broadcast of a sound recording that has not been published in Australia if:

                     (a)  the recording consists of, or includes, a musical work in which copyright subsists;

                     (b)  the musical work was made for the purpose of being performed, or has been performed, in association with a dramatic work or has been included in a cinematograph film; and

                     (c)  records of the musical work have not been supplied (whether by sale or otherwise) to the public in Australia.

             (6)  For the purposes of paragraph (5)(c), a supplying of records of a musical work shall be disregarded if the supplying was done otherwise than by, or with the licence of, the owner of the copyright in the work.

110   Provisions relating to cinematograph films

             (1)  Where the visual images forming part of a cinematograph film consist wholly or principally of images that, at the time when they were first embodied in an article or thing, were means of communicating news, the copyright in the film is not infringed by the causing of the film to be seen or heard, or to be both seen and heard, in public after the expiration of 50 years after the expiration of the calendar year in which the principal events depicted in the film occurred.

             (2)  Where, by virtue of this Part, copyright has subsisted in a cinematograph film, a person who, after that copyright has expired, causes the film to be seen or heard, or to be seen and heard, in public does not, by so doing, infringe any copyright subsisting by virtue of Part III in a literary, dramatic, musical or artistic work.

             (3)  Where the sounds that are embodied in a sound‑track associated with the visual images forming part of a cinematograph film are also embodied in a record, other than such a sound‑track or a record derived directly or indirectly from such a sound‑track, the copyright in the cinematograph film is not infringed by any use made of that record.

110A  Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives

                   Where, at a time more than 50 years after the time at which, or the expiration of the period during which, a sound recording or cinematograph film was made, copyright subsists in the sound recording or cinematograph film but:

                     (a)  the sound recording or cinematograph film has not been published; and

                     (b)  a record embodying the sound recording, or a copy of the cinematograph film, is kept in the collection of a library or archives where it is, subject to any regulations governing that collection, accessible to the public;

the copyright in the sound recording or cinematograph film and in any work or other subject‑matter included in the sound recording or cinematograph film is not infringed:

                     (c)  by the making of a copy or the communication of the sound recording or cinematograph film by a person for the purpose of research or study or with a view to publication; or

                     (d)  by the making of a copy or the communication of the sound recording or cinematograph film by, or on behalf of, the officer in charge of the library or archives if the copy is supplied or communicated to a person who satisfies the officer that he or she requires the copy for the purpose of research or study, or with a view to publication and that he or she will not use it for any other purpose.

110B  Copying and communicating sound recordings and cinematograph films for preservation and other purposes

             (1)  Subject to subsection (3), where a copy of a sound recording, being a sound recording that forms, or formed, part of the collection of a library or archives, is made by or on behalf of the officer in charge of the library or archives:

                     (a)  if the sound recording is held in the collection in the form of a first record—for the purpose of preserving the record against loss or deterioration or for the purpose of research that is being, or is to be, carried out at the library or archives in which the record is held or at another library or archives;

                     (b)  if the sound recording is held in the collection in a published form but has been damaged or has deteriorated—for the purpose of replacing the sound recording; or

                     (c)  if the sound recording has been held in the collection in a published form but has been lost or stolen—for the purpose of replacing the sound recording;

the making of the copy does not infringe copyright in the sound recording or in any work or other subject‑matter included in the sound recording.

             (2)  Subject to subsection (3), where a copy of a cinematograph film, being a cinematograph film that forms, or formed, part of the collection of a library or archives, is made by or on behalf of the officer in charge of the library or archives:

                     (a)  if the cinematograph film is held in the collection in the form of a first copy—for the purpose of preserving the copy against loss or deterioration or for the purpose of research that is being, or is to be, carried out at the library or archives in which the copy is held or at another library or archives;

                     (b)  if the cinematograph film is held in the collection in a published form but has been damaged or has
deteriorated—for the purpose of replacing the cinematograph film; or

                     (c)  if the cinematograph film has been held in the collection in a published form but has been lost or stolen—for the purpose of replacing the cinematograph film;

the making of the copy does not infringe copyright in the cinematograph film or in any work or other subject‑matter included in the cinematograph film.

          (2A)  The copyright in a sound recording or cinematograph film that forms, or formed, part of the collection of a library or archives, or in any work or other subject‑matter included in such a sound recording or film, is not infringed by the communication, by or on behalf of the officer in charge of the library or archives, of a copy of the sound recording or film made under subsection (1) or (2) to officers of the library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the library or archives with the approval of the body administering the library or archives.

          (2B)  If:

                     (a)  a copy of a sound recording or a cinematograph film is made by or on behalf of the officer in charge of a library or archives under this section; and

                     (b)  the copy is made for the purpose of research that is being, or is to be, carried out at another library or archives;

the copyright in the sound recording or film, or in any work or other subject‑matter included in it, is not infringed by the communication, by or on behalf of the officer in charge, of the copy to the other library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the other library or archives with the approval of the body administering the other library or archives.

             (3)  Subsection (1) does not apply in relation to a sound recording, and subsection (2) does not apply in relation to a cinematograph film, held in a published form in the collection of a library or archives unless an authorised officer of the library or archives has, after reasonable investigation, made a declaration stating that he or she is satisfied that a copy (not being a second‑hand copy) of the sound recording or cinematograph film, as the case may be, cannot be obtained within a reasonable time at an ordinary commercial price.

             (4)  Where a copy of an unpublished sound recording or an unpublished cinematograph film is made under subsection (1) or (2) by or on behalf of the officer in charge of a library or archives for the purpose of research that is being, or is to be, carried out at another library or archives, the supply or communication of the copy by or on behalf of the officer to the other library or archives does not, for any purpose of this Act, constitute the publication of the sound recording or cinematograph film or of any work or other subject‑matter included in the sound recording or cinematograph film.

110C  Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting

             (1)  If the broadcasting of a sound recording or a cinematograph film would not for any reason constitute an infringement of the copyright in the recording or film, but the making of a copy of the recording or film would, apart from this section, constitute an infringement of the copyright, the copyright is not infringed by the making of a copy of the recording or film if:

                     (a)  the recording or film from which the copy is made is in analog form; and

                     (b)  the copy is made solely for the purpose of simulcasting the recording or film in digital form.

             (2)  Subsection (1) does not apply in relation to a copy of a recording or film if the copy is used for a purpose other than:

                     (a)  the simulcasting of the recording or film in circumstances that do not for any reason constitute an infringement of the copyright in the recording or film; or

                     (b)  the making of further copies of the recording or film for the purpose of simulcasting the recording or film in such circumstances.

             (3)  Subsection (1) does not apply in relation to a copy of a recording or film unless all copies of the recording or film made under that subsection are destroyed on or before the relevant date specified in the regulations.

             (4)  For the purposes of subsection (3), the regulations may specify different dates in relation to different classes of sound recordings or cinematograph films.

111  Filming or recording broadcasts for private and domestic use

             (1)  The copyright in a television broadcast in so far as it consists of visual images is not infringed by the making of a cinematograph film of the broadcast, or a copy of such a film, for the private and domestic use of the person by whom it is made.

             (2)  The copyright in a sound broadcast, or in a television broadcast in so far as it consists of sounds, is not infringed by the making of a sound recording of the broadcast, or a copy of such a sound recording, for the private and domestic use of the person by whom it is made.

             (3)  For the purposes of this section, a cinematograph film or a copy of such a film, or a sound recording or a copy of such a sound recording, shall be deemed to be made otherwise than for the private and domestic use of the person by whom it is made if it is made for the purpose of:

                     (a)  selling a copy of the film or sound recording, letting it for hire, or by way of trade offering or exposing it for sale or hire;

                     (b)  distributing a copy of the film or sound recording, whether for the purpose of trade or otherwise;

                     (c)  by way of trade exhibiting a copy of the film or sound recording in public;

                     (d)  broadcasting the film or recording; or

                     (e)  causing the film or recording to be seen or heard in public.

111A  Temporary copy made in the course of communication

             (1)  A copyright subsisting under this Part is not infringed by making a temporary copy of an audio‑visual item as part of the technical process of making or receiving a communication.

             (2)  Subsection (1) does not apply in relation to the making of a temporary copy of an audio‑visual item as part of the technical process of making a communication if the making of the communication is an infringement of copyright.

111B  Temporary copy of subject‑matter as part of a technical process of use

             (1)  Subject to subsection (2), the copyright in a subject‑matter is not infringed by the making of a temporary copy of the subject‑matter if the temporary copy is incidentally made as a necessary part of a technical process of using a copy of the subject‑matter.

             (2)  Subsection (1) does not apply to:

                     (a)  the making of a temporary copy of a subject‑matter if the temporary copy is made from:

                              (i)  an infringing copy of the subject‑matter; or

                             (ii)  a copy of the subject‑matter where the copy is made in another country and would be an infringing copy of the subject‑matter if the person who made the copy had done so in Australia; or

                     (b)  the making of a temporary copy of a subject‑matter as a necessary part of a technical process of using a copy of the subject‑matter if that use constitutes an infringement of the copyright in the subject‑matter.

             (3)  Subsection (1) does not apply to any subsequent use of a temporary copy of a subject‑matter other than as a part of the technical process in which the temporary copy was made.

112  Reproductions of editions of work

                   The copyright in a published edition of a work or works is not infringed by the making of a reproduction of the whole or a part of that edition if that reproduction is made in the course of:

                     (a)  where the edition contains one work only:

                              (i)  a dealing with that work, being a dealing that does not, by virtue of section 40, 41, 42, 43 or 44, infringe copyright in that work; or

                             (ii)  the making of a copy (including a copy for a person with a print disability or a copy for a person with an intellectual disability) of the whole or a part of that work, being a copy the making of which does not, by virtue of section 49, 50, 51A, 135ZG, 135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ, 135ZR, 135ZS, 135ZT or 182A, infringe copyright in that work; or

                     (b)  where the edition contains more than one work:

                              (i)  a dealing with one of those works or dealings with some or all of those works, being a dealing that does not, or dealings that do not, by virtue of section 40, 41, 42, 43 or 44, infringe copyright in that work or those works; or

                             (ii)  the making of a copy (including a copy for a person with a print disability or a copy for a person with an intellectual disability) of the whole or a part of one of those works or the making of copies (including copies for persons with a print disability or copies for persons with an intellectual disability) of the whole or parts of some or all of those works, being a copy the making of which does not, or copies the making of which do not, by virtue of section 49, 50, 51A, 135ZG, 135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ, 135ZR, 135ZS, 135ZT or 182A, infringe copyright in that work or in those works.

112A  Importation and sale etc. of books

             (1)  The copyright in an overseas edition first published on or after the commencing day, is not infringed by a person who, without the licence of the owner of the copyright, imports a non‑infringing book into Australia for a purpose mentioned in paragraph 102(1)(a), (b) or (c).

             (2)  Subject to this section, the copyright in:

                     (a)  an overseas edition first published before the commencing day; or

                     (b)  a published edition of a work, being an edition first published in Australia, whether before, on or after the commencing day;

is not infringed by a person who, without the licence of the owner of the copyright, imports a copy (in this subsection called the imported copy) of a hardback or paperback version of a non‑infringing book into Australia for a purpose mentioned in paragraph 102(1)(a), (b) or (c) if:

                     (c)  the person had ordered in writing from the copyright owner, or the owner’s licensee or agent, one or more copies of that version of the book (not being second‑hand copies or more copies than were needed to satisfy the person’s reasonable requirements); and

                     (d)  when the person ordered the imported copy, the original order mentioned in paragraph (c) had not been withdrawn or cancelled by, or with the consent of, the person and:

                              (i)  at least 7 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not notified the person in writing that the original order would be filled within 90 days after it was placed; or

                             (ii)  at least 90 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not filled the order.

             (3)  The copyright in a published edition of a work (whether the edition was first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports a single copy of a non‑infringing book into Australia if the importation is for the purpose of filling a written order, or a verifiable telephone order, by a customer of the person and:

                     (a)  in the case of a written order, the order contains a statement, signed by the customer; or

                     (b)  in the case of a telephone order, the customer makes a verifiable statement;

to the effect that the customer does not intend to use the book for a purpose mentioned in paragraph 102(1)(a), (b) or (c).

             (4)  The copyright in a published edition of a work (whether the edition was first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports 2 or more copies of a non‑infringing book into Australia if:

                     (a)  the importation is for the purpose of filling a written order, or a verifiable telephone order, placed with the person by or on behalf of a library, other than a library conducted for the profit (direct or indirect) of a person or organisation; and

                     (b)  in the case of a written order—the order contains a statement, signed by the person placing the order, to the effect that the library does not intend to use any of the books for a purpose mentioned in paragraph 102(1)(a), (b) or (c); and

                     (c)  in the case of a telephone order—the person placing the order makes a verifiable statement to the effect referred to in paragraph (b); and

                     (d)  the number of copies so imported is not more than the number of copies so ordered.

             (5)  Without limiting the ways in which a telephone order under subsection (3) or (4), or a statement under paragraph (3)(b) or (4)(c) relating to such an order, may be verified, such an order or statement is, for the purposes of this section, taken to be verifiable if the person who takes the order, or to whom the statement is made, makes a written note of the details of the order or statement when, or immediately after, the order is placed, or the statement is made, as the case may be.

             (6)  Where:

                     (a)  a book is imported into Australia for a purpose mentioned in paragraph 102(1)(a), (b) or (c); and

                     (b)  the importation does not, under this section, constitute an infringement of copyright in a published edition of a work;

the use of the book for any such purpose does not constitute an infringement of the copyright in the edition and subsection 103(1) does not apply to the book.

             (7)  Subsection (2) does not apply to the importation of a copy of a hardback version of a non‑infringing book into Australia if the copyright owner, or his or her licensee or agent, is able to supply in Australia enough copies of a paperback version of the book to fill any reasonable order.

             (8)  For the purposes of paragraph (2)(d), a copyright owner, licensee or agent is not taken to have filled an order by a person for one or more copies of a version of a book unless and until the copyright owner, licensee or agent sends the copy, or all of the copies, as the case requires, to the person.

             (9)  In this section:

book does not include:

                     (a)  a book whose main content is one or more musical works, with or without any related literary, dramatic or artistic work; or

                     (b)  a manual sold with computer software for use in connection with that software; or

                     (c)  a periodical publication.

commencing day means the day on which the Copyright Amendment Act 1991 commences.

overseas edition means a published edition of a work, being an edition:

                     (a)  that was first published in a country other than Australia; and

                     (b)  that was not published in Australia within 30 days after its first publication in that other country.

Note:          An edition of a work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).

112B  Reproduction of writing on approved label for containers for chemical product

                   The reproduction on a label on a container for a chemical product of any writing appearing on an approved label is not an infringement of any copyright subsisting under section 92 in relation to that writing.

112C  Copyright subsisting in accessories etc. to imported articles

             (1)  The copyright in:

                     (a)  a published edition of a work a reproduction of which is on, or embodied in, a non‑infringing accessory to an article; or

                     (b)  a cinematograph film a copy of which is a non‑infringing accessory to an article; or

                     (c)  a sound recording a record of which is a non‑infringing accessory to an article;

is not infringed by importing the accessory with the article.

Note:          See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

             (2)  Section 103 does not apply to:

                     (a)  a reproduction of a published edition of a work, being a reproduction that is on, or embodied in, a non‑infringing accessory to an article; or

                     (b)  a copy of a cinematograph film, being a copy that is a non‑infringing accessory to an article; or

                     (c)  a record embodying a sound recording, being a record that is a non‑infringing accessory to an article;

if the importation of the accessory is not an infringement of copyright in the edition, film or recording, as the case may be.

112D  Import of non‑infringing copy of a sound recording does not infringe copyright in the sound recording

             (1)  The copyright in a sound recording is not infringed by a person who:

                     (a)  imports into Australia a non‑infringing copy of the sound recording; or

                     (b)  does an act described in section 103 involving an article that is a non‑infringing copy of the sound recording and has been imported into Australia by anyone.

Note:          In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non‑infringing copy of the sound recording unless the defendant proves it is. See section 130A.

             (2)  This section applies to a copy of a sound recording only if, when the copy is imported into Australia, the sound recording has been published:

                     (a)  in Australia; or

                     (b)  in another country (the publication country) by or with the consent of:

                              (i)  the owner of the copyright or related right in the sound recording in the publication country; or

                             (ii)  the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the publication country did not provide for copyright or a related right in sound recordings when publication occurred; or

                            (iii)  the maker of the sound recording, if neither the law of the publication country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when publication occurred.

Note:          Subsection 29(6) deals with unauthorised publication.

             (3)  In subsection (2):

owner of the copyright or related right in the sound recording means the owner at the time publication of the sound recording occurred.

112DA  Importation and sale etc. of copies of electronic literary or music items

                   If, in relation to a published edition of a work:

                     (a)  the work is, or is part of, an electronic literary or music item; and

                     (b)  the edition has been published in Australia or a qualifying country;

then the copyright in the published edition is not infringed by a person who:

                     (c)  imports into Australia an article that has embodied in it a non‑infringing copy of the electronic literary or music item; or

                     (d)  does an act mentioned in section 103 involving an article that has embodied in it a non‑infringing copy of the electronic literary or music item and that has been imported into Australia by anyone.

Note:          Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

112E  Communication by use of certain facilities

                   A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio‑visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.


 

Division 7Miscellaneous

113  Copyrights to subsist independently

             (1)  Subject to subsection 110(2), where copyright subsists in any subject‑matter by virtue of this Part, nothing in this Part shall be taken to affect the operation of Part III in relation to any literary, dramatic, musical or artistic work from which that subject‑matter is wholly or partly derived, and any copyright subsisting by virtue of this Part is in addition to, and independent of, any copyright subsisting by virtue of Part III.

             (2)  The subsistence of copyright under any provision of this Part does not affect the operation of any other provision of this Part under which copyright can subsist.

113A  Agents may act on behalf of groups of performers

             (1)  This section applies in respect of all members of a group of performers who have an interest in the copyright in a sound recording of a live performance.

             (2)  All members of the group are taken to have granted a licence or permission (however described) to a person:

                     (a)  to do an act comprised in the copyright; or

                     (b)  to do any other act in relation to the copyright;

if an agent of the group, acting within the scope of his or her actual or apparent authority, has granted a licence or permission to the person to do the act.

Note:          The person may still need to obtain the licence or permission of other owners of the copyright before doing the act.

113B  Consent to the use of a sound recording of a live performance

                   A person is taken to have been granted a licence or permission (however described) by a performer to use a sound recording of a live performance if:

                     (a)  the performer has given his or her consent to recording the performance for a particular purpose; and

                     (b)  the recording is used for that purpose in accordance with the terms of the consent.

Note:          The person may still need to obtain the consent of the other owners of the copyright in the sound recording of the live performance before using the sound recording.

113C  Use of published sound recordings when owners cannot be found etc.

             (1)  An owner (the first owner) of the copyright in a sound recording of a live performance that is a published sound recording is taken to have been granted a licence or permission (however described) by another owner of the copyright to do an act comprised in the copyright, or to do any other act in relation to the copyright, if:

                     (a)  the first owner has entered into an agreement with another person to do the act; and

                     (b)  the first owner, after making reasonable inquiries, cannot discover the identity or location of the other owner or a person representing the other owner.

Note:          The first owner may still need to obtain a licence or permission from any other owners of the copyright in the sound recording of the live performance.

             (2)  If the first owner does the act, then the first owner must hold the other owner’s share of any amount received in respect of it on trust for 4 years after the day on which the agreement is entered into (unless the amount is distributed to, or on behalf of, the other owner before then).

             (3)  If during the 4 year period, the other owner is identified and located, the first owner must distribute the amount held on trust to, or on behalf of, the other owner. If at the end of the 4 year period, the other owner remains unidentified or is not located, the first owner may retain the amount.

             (4)  After initially making reasonable inquiries, the first owner is not required to continue making reasonable inquiries during the 4 year period.

             (5)  The other owner cannot prevent the first owner doing the act comprised in the copyright during the term of the agreement if the other owner is identified or located.


 

Part VRemedies and offences

Division 1Preliminary

114  Interpretation

             (1)  In this Part, action means a proceeding of a civil nature between parties, and includes a counterclaim.

             (2)  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.


 

Division 2Actions by owner of copyright

115  Actions for infringement

             (1)  Subject to this Act, the owner of a copyright may bring an action for an infringement of the copyright.

             (2)  Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

             (3)  Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.

             (4)  Where, in an action under this section:

                     (a)  an infringement of copyright is established; and

                     (b)  the court is satisfied that it is proper to do so, having regard to:

                              (i)  the flagrancy of the infringement; and

                            (ia)  the need to deter similar infringements of copyright; and

                            (ib)  the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and

                             (ii)  whether the infringement involved the conversion of a work or other subject‑matter from hardcopy or analog form into a digital or other electronic machine‑readable form; and

                            (iii)  any benefit shown to have accrued to the defendant by reason of the infringement; and

                            (iv)  all other relevant matters;

the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

116  Rights of owner of copyright in respect of infringing copies

             (1)  The owner of the copyright in a work or other subject‑matter may bring an action for conversion or detention in relation to:

                     (a)  an infringing copy; or

                     (b)  a device (including a circumvention device) used or intended to be used for making infringing copies.

          (1A)  In an action for conversion or detention, a court may grant to the owner of the copyright all or any of the remedies that are available in such an action as if:

                     (a)  the owner of the copyright had been the owner of the infringing copy since the time the copy was made; or

                     (b)  the owner of the copyright had been the owner of the device since the time when it was used or intended to be used for making infringing copies.

          (1B)  Any relief granted by a court in an action for conversion or detention is in addition to any relief that the court may grant under section 115.

          (1C)  A court is not to grant any relief to the owner of the copyright in an action for conversion or detention if the relief that the court has granted or proposes to grant under section 115 is, in the opinion of the court, a sufficient remedy.

          (1D)  In deciding whether to grant relief in an action for conversion or detention and in assessing the amount of damages payable, the court may have regard to the following:

                     (a)  the expenses incurred by the defendant, being a person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy;

                     (b)  whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant;

                     (c)  any other matter that the court considers relevant.

           (1E)  If the infringing copy is an article of which only part consists of material that infringes copyright, the court, in deciding whether to grant relief and in assessing the amount of damages payable, may also have regard to the following:

                     (a)  the importance to the market value of the article of the material that infringes the copyright;

                     (b)  the proportion the material that infringes copyright bears to the article;

                     (c)  the extent to which the material that infringes copyright may be separated from the article.

             (2)  A plaintiff is not entitled by virtue of this section to any damages or to any other pecuniary remedy, other than costs, if it is established that, at the time of the conversion or detention:

                     (a)  the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject‑matter to which the action relates;

                     (b)  where the articles converted or detained were infringing copies—the defendant believed, and had reasonable grounds for believing, that they were not infringing copies; or

                     (c)  where an article converted or detained was a device used or intended to be used for making articles—the defendant believed, and had reasonable grounds for believing, that the articles so made or intended to be made were not or would not be, as the case may be, infringing copies.

116AAA  Compensation for acquisition of property

             (1)  This section applies if, apart from this section, subsections 22(3A) and 97(2) and (2A) would result in the acquisition of property from a maker of a sound recording of a live performance by a performer in the performance otherwise than on just terms.

             (2)  There is payable to the maker by the performer such amount of compensation as is agreed on between those persons, or, failing agreement, as is determined by a court of competent jurisdiction.

             (3)  Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.

             (4)  Any compensation payable in a proceeding that is commenced under this section is to be taken into account in assessing any damages or compensation or other remedy to be awarded in a proceeding that is commenced otherwise than under this section and that arises out of the same event or transaction.

             (5)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

maker of a sound recording of a live performance means a person mentioned in paragraph 22(3A)(a).

performer in a live performance means the following people:

                     (a)  a person who becomes a maker of a sound recording under paragraph 22(3A)(b);

                     (b)  if subsection 22(3B) applies—an employer who becomes a maker of a sound recording under that subsection.


 

Division 2AALimitation on remedies available against carriage service providers

Subdivision APreliminary

116AA  Purpose of this Division

             (1)  The purpose of this Division is to limit the remedies that are available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers. A carriage service provider must satisfy certain conditions to take advantage of the limitations.

Note 1:       Subdivision B contains a description of the relevant activities.

Note 2:       Subdivision C contains details of the limitations on remedies.

Note 3:       Subdivision D sets out the conditions that must be satisfied for a carriage service provider to take advantage of the limitations. The limitations are automatic if a carriage service provider complies with the relevant conditions.

             (2)  This Division does not limit the operation of provisions of this Act outside this Division in relation to determining whether copyright has been infringed.

116AB  Definitions

                   In this Division:

caching means the reproduction of copyright material on a system or network controlled or operated by or for a carriage service provider in response to an action by a user in order to facilitate efficient access to that material by that user or other users.

copyright material means:

                     (a)  a work; or

                     (b)  a published edition of a work; or

                     (c)  a sound recording; or

                     (d)  a cinematograph film; or

                     (e)  a television or sound broadcast; or

                      (f)  a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.

industry code means:

                     (a)  an industry code that:

                              (i)  meets any prescribed requirements; and

                              (i)  is registered under Part 6 of the Telecommunications Act 1997; or

                     (b)  an industry code developed in accordance with the regulations.

Subdivision BRelevant activities

116AC  Category A activity

                   A carriage service provider carries out a Category A activity by providing facilities or services for transmitting, routing or providing connections for copyright material, or the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections.

116AD  Category B activity

                   A carriage service provider carries out a Category B activity by caching copyright material through an automatic process. The carriage service provider must not manually select the copyright material for caching.

116AE  Category C activity

                   A carriage service provider carries out a Category C activity by storing, at the direction of a user, copyright material on a system or network controlled or operated by or for the carriage service provider.

116AF  Category D activity

                   A carriage service provider carries out a Category D activity by referring users to an online location using information location tools or technology.

Subdivision CLimitations on remedies

116AG  Limitations on remedies

Relevant conditions must be satisfied

             (1)  A carriage service provider must satisfy the relevant conditions set out in Subdivision D before the limitations in this section apply.

General limitations

             (2)  For infringements of copyright that occur in the course of carrying out any of the categories of activities set out in Subdivision B, a court must not grant relief against a carriage service provider that consists of:

                     (a)  damages or an account of profits; or

                     (b)  additional damages; or

                     (c)  other monetary relief.

Category specific limitations

             (3)  For an infringement of copyright that occurs in the course of the carrying out of a Category A activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

                     (a)  an order requiring the carriage service provider to take reasonable steps to disable access to an online location outside Australia;

                     (b)  an order requiring the carriage service provider to terminate a specified account.

             (4)  For an infringement of copyright that occurs in the course of the carrying out of a Category B, C or D activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

                     (a)  an order requiring the carriage service provider to remove or disable access to infringing copyright material, or to a reference to infringing copyright material;

                     (b)  an order requiring the carriage service provider to terminate a specified account;

                     (c)  some other less burdensome but comparably effective non‑monetary order if necessary.

Relevant matters

             (5)  In deciding whether to make an order of a kind referred to in subsection (3) or (4), a court must have regard to:

                     (a)  the harm that has been caused to the owner or exclusive licensee of the copyright; and

                     (b)  the burden that the making of the order will place on the carriage service provider; and

                     (c)  the technical feasibility of complying with the order; and

                     (d)  the effectiveness of the order; and

                     (e)  whether some other comparably effective order would be less burdensome.

The court may have regard to other matters it considers relevant.

Subdivision DConditions

116AH  Conditions

             (1)  This table sets out the conditions for each of the categories of activities.

 

Conditions

Item

Activity

Conditions

1

All categories

1.   The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.

2.   If there is a relevant industry code in force—the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material.

2

Category A

1.   Any transmission of copyright material in carrying out this activity must be initiated by or at the direction of a person other than the carriage service provider.

2.   The carriage service provider must not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process.

3

Category B

1.   If the copyright material that is cached is subject to conditions on user access at the originating site, the carriage service provider must ensure that access to a significant part of the cached copyright material is permitted only to users who have met those conditions.

2.   If there is a relevant industry code in force—the carriage service provider must comply with the relevant provisions of that code relating to:

(a) updating the cached copyright material; and

(b) not interfering with technology used at the originating site to obtain information about the use of the copyright material.

3.   The service provider must expeditiously remove or disable access to cached copyright material upon notification in the prescribed form that the material has been removed or access to it has been disabled at the originating site.

4.   The carriage service provider must not make substantive modifications to the cached copyright material as it is transmitted to subsequent users. This does not apply to modifications made as part of a technical process.

4

Category C

1.   The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity.

2.   The carriage service provider must expeditiously remove or disable access to copyright material residing on its system or network upon receipt of a notice in the prescribed form that the material has been found to be infringing by a court.

2A. The carriage service provider must act expeditiously to remove or disable access to copyright material residing on its system or network if the carriage service provider:

(a) becomes aware that the material is infringing; or

(b) becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing.

      The carriage service provider does not, in an action relating to this Division, bear any onus of proving a matter referred to in paragraph (a) or (b).

3.   The carriage service provider must comply with the prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network.

5

Category D

1.   The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity.

2.   The carriage service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court.

2A. The carriage service provider must act expeditiously to remove or disable access to a reference residing on its system or network if the carriage service provider:

(a) becomes aware that the copyright material to which it refers is infringing; or

(b) becomes aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing.

      The carriage service provider does not, in an action relating to this Division, bear any onus of proving a matter referred to in paragraph (a) or (b).

3.   The carriage service provider must comply with the prescribed procedure in relation to removing or disabling a reference residing on its system or network.

             (2)  Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).

             (3)  In deciding, for the purposes of condition 1 in table items 4 and 5 in the table in subsection (1), whether a financial benefit is otherwise directly attributable to the infringing activity referred to in that condition, a court must have regard to:

                     (a)  industry practice in relation to the charging of services by carriage service providers, including charging based on level of activity; and

                     (b)  whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice.

The court may have regard to other matters it considers relevant.

             (4)  An act done by a carriage service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 in the table in subsection (1) does not constitute a failure to satisfy condition 2A in that item.

116AI  Evidence of compliance with conditions

                   If a carriage service provider, in an action relating to this Division, points to evidence, as prescribed, that suggests that the carriage service provider has complied with a condition, the court must presume, in the absence of evidence to the contrary, that the carriage service provider has complied with the condition.

Subdivision ERegulations

116AJ  Regulations

             (1)  The regulations may provide that a carriage service provider is not liable for damages or any other civil remedy as a result of action taken in good faith to comply with a condition.

             (2)  The regulations may provide civil remedies for conduct by relevant parties in relation to conditions.

             (3)  The regulations may prescribe offences for conduct by persons issuing notices under the regulations, and prescribe penalties for offences against those regulations. The penalties must not exceed 50 penalty units.

Note:          If a body corporate is convicted of an offence against regulations