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Copyright Act 1968

  • - C2006C00142
  • In force - Superseded Version
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Act No. 63 of 1968 as amended, taking into account amendments up to Act No. 9 of 2006
An Act relating to copyright and the protection of certain performances, and for other purposes
Administered by: Attorney-General's
Registered 13 Apr 2006
Start Date 19 Dec 2005
End Date 10 Dec 2006

Copyright Act 1968

Act No. 63 of 1968 as amended

This compilation was prepared on 30 March 2006
taking into account amendments up to Act No. 9 of 2006

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.................................... 22

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............................................................ 25

14.......... Acts done in relation to substantial part of work or other subject-matter deemed to be done in relation to the whole.......................................................................................................... 25

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

16.......... References to partial assignment of copyright................................. 26

17.......... Statutory employment..................................................................... 26

18.......... Libraries established or conducted for profit.................................... 26

19.......... References to Copyright Act, 1911.................................................. 26

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

21.......... Reproduction and copying of works and other subject-matter........ 27

22.......... Provisions relating to the making of a work or other subject-matter 28

23.......... Sound recordings and records........................................................... 30

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

25.......... Provisions relating to broadcasting................................................... 31

27.......... Performance...................................................................................... 32

28.......... Performance of works or other subject-matter in the course of educational instruction         33

29.......... Publication........................................................................................ 34

30.......... Ownership of copyright for particular purposes............................. 35

30A....... Commercial rental arrangement......................................................... 36

Part III—Copyright in original literary, dramatic, musical and artistic works         38

Division 1—Nature, duration and ownership of copyright in works  38

31.......... Nature of copyright in original works.............................................. 38

32.......... Original works in which copyright subsists..................................... 40

33.......... Duration of copyright in original works........................................... 40

34.......... Duration of copyright in anonymous and pseudonymous works.... 41

35.......... Ownership of copyright in original works....................................... 41

Division 2—Infringement of copyright in works                                          44

36.......... Infringement by doing acts comprised in the copyright................... 44

37.......... Infringement by importation for sale or hire.................................... 44

38.......... Infringement by sale and other dealings............................................ 45

39.......... Infringement by permitting place of public entertainment to be used for performance of work             45

39A....... Infringing copies made on machines installed in libraries and archives 46

39B....... Communication by use of certain facilities....................................... 46

Division 3—Acts not constituting infringements of copyright in works                48

40.......... Fair dealing for purpose of research or study................................... 48

41.......... Fair dealing for purpose of criticism or review................................. 49

42.......... Fair dealing for purpose of reporting news...................................... 49

43.......... Reproduction for purpose of judicial proceedings or professional advice               50

43A....... Temporary reproductions made in the course of communication.... 50

43B....... Temporary reproductions of works as part of a technical process of use              50

44.......... Inclusion of works in collections for use by places of education..... 51

44A....... Importation etc. of books................................................................. 52

44B....... Reproduction of writing on approved label for containers for chemical product    55

44C....... Copyright subsisting in accessories etc. to imported articles........... 55

44D....... Import of non-infringing copy of sound recording does not infringe copyright in works recorded        55

44E........ Importation and sale etc. of copies of computer programs.............. 56

44F........ Importation and sale etc. of copies of electronic literary or music items                56

Division 4—Acts not constituting infringements of copyright in literary, dramatic and musical works                                                                                                                      58

45.......... Reading or recitation in public or for a broadcast............................. 58

46.......... Performance at premises where persons reside or sleep.................. 58

47.......... Reproduction for purpose of broadcasting....................................... 58

47AA.... Reproduction for the purpose of simulcasting................................. 60

47A....... Sound broadcasts by holders of print disability radio licences........ 60

Division 4A—Acts not constituting infringements of copyright in computer programs               64

47AB.... Meaning of computer program........................................................ 64

47B....... Reproduction for normal use or study of computer programs......... 64

47C....... Back-up copy of computer programs.............................................. 65

47D....... Reproducing computer programs to make interoperable products.. 66

47E........ Reproducing computer programs to correct errors........................... 67

47F........ Reproducing computer programs for security testing...................... 68

47G....... Unauthorised use of copies or information...................................... 69

47H....... Agreements excluding operation of certain provisions..................... 69

Division 5—Copying of works in libraries or archives                             70

48.......... Interpretation.................................................................................... 70

48A....... Copying by Parliamentary libraries for members of Parliament...... 70

49.......... Reproducing and communicating works by libraries and archives for users            70

50.......... Reproducing and communicating works by libraries or archives for other libraries or archives              74

51.......... Reproducing and communicating unpublished works in libraries or archives          78

51AA.... Reproducing and communicating works in Australian Archives...... 79

51A....... Reproducing and communicating works for preservation and other purposes        80

52.......... Publication of unpublished works kept in libraries or archives........ 82

53.......... Application of Division to illustrations accompanying articles and other works   83

Division 6—Recording of musical works                                                         84

54.......... Interpretation.................................................................................... 84

55.......... Conditions upon which manufacturer may make records of musical work             85

57.......... Provisions relating to royalty where 2 or more works are on the one record          87

59.......... Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work.......................................................................................................... 87

60.......... Records made partly for retail sale and partly for gratuitous disposal 90

61.......... Making inquiries in relation to previous records.............................. 90

64.......... Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records.............................................................................................. 91

Division 7—Acts not constituting infringements of copyright in artistic works                92

65.......... Sculptures and certain other works in public places........................ 92

66.......... Buildings and models of buildings.................................................... 92

67.......... Incidental filming or televising of artistic works............................... 92

68.......... Publication of artistic works............................................................. 92

70.......... Reproduction for purpose of including work in television broadcast 93

72.......... Reproduction of part of work in later work.................................... 94

73.......... Reconstruction of buildings.............................................................. 94

Division 8—Designs                                                                                                    95

74.......... Corresponding design....................................................................... 95

75.......... Copyright protection where corresponding design registered.......... 95

76.......... False registration of industrial designs under the Designs Act 2003. 95

77.......... Application of artistic works as industrial designs without registration of the designs          96

77A....... Certain reproductions of an artistic work do not infringe copyright 98

Division 9—Works of joint authorship                                                            100

78.......... References to all of joint authors.................................................... 100

79.......... References to any one or more of joint authors.............................. 100

80.......... References to whichever of joint authors died last......................... 100

81.......... Works of joint authorship published under pseudonyms.............. 100

82.......... Copyright to subsist in joint works without regard to any author who is an unqualified person           101

83.......... Inclusion of joint works in collections for use in places of education 101

Part IV—Copyright in subject-matter other than works                               102

Division 1—Preliminary                                                                                          102

84.......... Definitions...................................................................................... 102

Division 2—Nature of copyright in subject-matter other than works 104

85.......... Nature of copyright in sound recordings........................................ 104

86.......... Nature of copyright in cinematograph films................................... 104

87.......... Nature of copyright in television broadcasts and sound broadcasts 105

88.......... Nature of copyright in published editions of works...................... 105

Division 3—Subject-matter, other than works, in which copyright subsists       106

89.......... Sound recordings in which copyright subsists............................... 106

90.......... Cinematograph films in which copyright subsists......................... 106

91.......... Television broadcasts and sound broadcasts in which copyright subsists              106

92.......... Published editions of works in which copyright subsists.............. 107

Division 4—Duration of copyright in subject-matter other than works 108

93.......... Duration of copyright in sound recordings..................................... 108

94.......... Duration of copyright in cinematograph films............................... 108

95.......... Duration of copyright in television broadcasts and sound broadcasts 108

96.......... Duration of copyright in published editions of works................... 109

Division 5—Ownership of copyright in subject-matter other than works            110

Subdivision A—Ownership of copyright in subject-matter other than works 110

97.......... Ownership of copyright in sound recordings................................. 110

98.......... Ownership of copyright in cinematograph films............................ 110

99.......... Ownership of copyright in television broadcasts and sound broadcasts 111

100........ Ownership of copyright in published editions of works............... 112

Subdivision B—Specific provisions relating to the ownership of copyright in pre-commencement sound recordings of live performances                                                                       112

100AA.. Application..................................................................................... 112

100AB.. Definitions...................................................................................... 112

100AC.. Application of sections 100AD and 100AE.................................. 112

100AD.. Makers of pre-commencement sound recordings of live performances.. 113

100AE... Ownership of pre-commencement copyright in sound recordings of live performances        113

100AF... Former owners may continue to do any act in relation to the copyright                114

100AG.. Actions by new owners of copyright............................................. 115

100AH.. References to the owner of the copyright in a sound recording..... 115

Division 6—Infringement of copyright in subject-matter other than works        117

100A..... Interpretation.................................................................................. 117

101........ Infringement by doing acts comprised in copyright....................... 117

102........ Infringement by importation for sale or hire.................................. 118

103........ Infringement by sale and other dealings.......................................... 118

103A..... Fair dealing for purpose of criticism or review............................... 119

103B..... Fair dealing for purpose of reporting news.................................... 119

103C..... Fair dealing for purpose of research or study................................. 119

104........ Acts done for purposes of judicial proceeding............................... 120

104A..... Acts done by Parliamentary libraries for members of Parliament.. 120

104B..... Infringing copies made on machines installed in libraries and archives 121

105........ Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast 121

106........ Causing sound recording to be heard at guest house or club........... 121

107........ Making of a copy of the sound recording for purpose of broadcasting.. 122

108........ Copyright in published recording not infringed by public performance if equitable remuneration paid 124

109........ Copyright in published sound recording not infringed by broadcast in certain circumstances                124

110........ Provisions relating to cinematograph films.................................... 126

110A..... Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives       126

110B..... Copying and communicating sound recordings and cinematograph films for preservation and other purposes     127

110C..... Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting            129

111........ Filming or recording broadcasts for private and domestic use........ 130

111A..... Temporary copy made in the course of communication................ 131

111B..... Temporary copy of subject-matter as part of a technical process of use               131

112........ Reproductions of editions of work................................................. 132

112A..... Importation and sale etc. of books................................................. 132

112B..... Reproduction of writing on approved label for containers for chemical product    135

112C..... Copyright subsisting in accessories etc. to imported articles......... 136

112D..... Import of non-infringing copy of a sound recording does not infringe copyright in the sound recording               136

112DA.. Importation and sale etc. of copies of electronic literary or music items                137

112E...... Communication by use of certain facilities..................................... 138

Division 7—Miscellaneous                                                                                    139

113........ Copyrights to subsist independently............................................. 139

113A..... Agents may act on behalf of groups of performers........................ 139

113B..... Consent to the use of a sound recording of a live performance...... 139

113C..... Use of published sound recordings when owners cannot be found etc.  140

Part V—Remedies and offences                                                                                141

Division 1—Preliminary                                                                                          141

114........ Interpretation.................................................................................. 141

Division 2—Actions by owner of copyright                                                   142

115........ Actions for infringement................................................................. 142

116........ Rights of owner of copyright in respect of infringing copies......... 143

116AAA........................................... Compensation for acquisition of property  144

Division 2AA—Limitation on remedies available against carriage service providers  146

Subdivision A—Preliminary                                                                                 146

116AA.. Purpose of this Division................................................................. 146

116AB.. Definitions...................................................................................... 146

Subdivision B—Relevant activities                                                                      147

116AC.. Category A activity........................................................................ 147

116AD.. Category B activity........................................................................ 147

116AE... Category C activity........................................................................ 147

116AF... Category D activity........................................................................ 147

Subdivision C—Limitations on remedies                                                           148

116AG.. Limitations on remedies.................................................................. 148

Subdivision D—Conditions                                                                                    149

116AH.. Conditions...................................................................................... 149

116AI.... Evidence of compliance with conditions........................................ 153

Subdivision E—Regulations                                                                                  153

116AJ... Regulations..................................................................................... 153

Division 2A—Actions in relation to circumvention devices and electronic rights management information                                                                                           154

116A..... Importation, manufacture etc. of circumvention device and provision etc. of circumvention service     154

116B..... Removal or alteration of electronic rights management information 157

116C..... Distribution to the public etc. of works whose electronic rights management information has been removed or altered........................................................................................................ 158

116CA.. Distribution and importation of electronic rights management information that has been removed or altered       159

116CB... Exception relating to national security and law enforcement......... 160

116D..... Remedies in actions under sections 116A, 116B, 116C and 116CA 160

Division 3—Proceedings where copyright is subject to exclusive licence          161

117........ Interpretation.................................................................................. 161

118........ Application..................................................................................... 161

119........ Rights of exclusive licensee............................................................. 161

120........ Joinder of owner or exclusive licensee as a party........................... 162

121........ Defences available against exclusive licensee.................................. 162

122........ Assessment of damages where exclusive licence granted................ 162

123........ Apportionment of profits between owner and exclusive licensee.. 163

124........ Separate actions in relation to the same infringement..................... 163

125........ Liability for costs........................................................................... 164

Division 4—Proof of facts in civil actions                                                       165

126........ Presumptions as to subsistence and ownership of copyright........ 165

126A..... Evidence in relation to subsistence of copyright............................ 165

126B..... Evidence in relation to ownership of copyright............................. 166

127........ Presumptions in relation to authorship of work............................ 167

128........ Presumptions in relation to publisher of work............................... 168

129........ Presumptions where author has died.............................................. 169

130........ Evidence in relation to recordings................................................... 170

130A..... Acts relating to imported copies of sound recordings.................... 171

130B..... Acts relating to imported copies of computer programs................ 171

130C..... Acts relating to imported copies of electronic literary or music items 171

131........ Presumption in relation to maker of film........................................ 172

Division 4A—Jurisdiction and appeals                                                           173

131A..... Exercise of jurisdiction.................................................................... 173

131B..... Appeals.......................................................................................... 173

131C..... Jurisdiction of Federal Court of Australia...................................... 173

131D..... Jurisdiction of Federal Magistrates Court...................................... 173

Division 5—Offences and summary proceedings                                      174

132........ Offences.......................................................................................... 174

132A..... Presumptions in relation to subsistence and ownership of copyright 183

132B..... Evidence in relation to sound recordings........................................ 184

133........ Destruction or delivery up of infringing copies etc........................ 185

133A..... Advertisement for supply of infringing copies of works or other subject matter   186

Division 6—Miscellaneous                                                                                    187

134........ Limitation of actions in respect of infringement of copyright........ 187

134A..... Affidavit evidence........................................................................... 187

Division 7—Seizure of imported copies of copyright material            189

134B..... Interpretation.................................................................................. 189

135........ Restriction of importation of copies of works etc......................... 190

135AA.. Security for expenses of seizure..................................................... 192

135AB.. Secure storage of seized copies....................................................... 192

135AC.. Notice of seizure............................................................................. 192

135AD.. Inspection, release etc. of seized copies......................................... 193

135AE... Forfeiture of seized copies by consent........................................... 194

135AF... Compulsory release of seized copies to the importer.................... 194

135AG.. Provision relating to actions for infringement of copyright............ 195

135AH.. Retention of control of seized copies............................................. 196

135AI.... Disposal of seized copies ordered to be forfeited.......................... 196

135AJ... Insufficient security........................................................................ 197

135AK.. Immunity of the Commonwealth................................................... 197

Part VAA—Broadcast decoding devices                                                               198

Division 1—Preliminary                                                                                          198

135AL... Definitions...................................................................................... 198

135AM. Counterclaim................................................................................... 199

Division 2—Action in relation to broadcast decoding devices           200

135AN.. Actions in relation to the manufacture of and dealing with broadcast decoding devices         200

135ANA............... Actions in relation to the use of broadcast decoding devices  202

Division 3—Jurisdiction and appeals                                                               205

135AP... Exercise of jurisdiction.................................................................... 205

135AQ.. Appeals.......................................................................................... 205

135AR.. Jurisdiction of Federal Court of Australia...................................... 205

135ARA............................................ Jurisdiction of Federal Magistrates Court  205

Division 4—Offences                                                                                                206

135AS... Offences.......................................................................................... 206

135AT.. Prosecutions................................................................................... 209

135AU.. Destruction etc. of devices............................................................. 209

Part VA—Copying and communication of broadcasts by educational and other institutions          210

Division 1—Preliminary                                                                                          210

135A..... Interpretation.................................................................................. 210

135B..... Copies and communications of broadcasts..................................... 211

135D..... Operation of collecting society rules.............................................. 211

Division 2—Copying and communication of broadcasts                        212

135E...... Copying and communication of broadcasts by educational institutions etc.           212

135F...... Making and communication of preview copies.............................. 213

135G..... Remuneration notices..................................................................... 215

135H..... Records notices............................................................................... 216

135J...... Sampling notices............................................................................. 217

135JA... Agreed notice.................................................................................. 219

135K..... Marking and record keeping requirements...................................... 221

135KA.. Notice requirements in respect of communications........................ 222

135L...... Inspection of records etc................................................................ 222

135M.... Revocation of remuneration notice................................................. 223

135N..... Request for payment of equitable remuneration............................ 224

Division 3—The collecting society                                                                    225

135P...... The collecting society..................................................................... 225

135Q..... Revocation of declaration............................................................... 226

135R..... Annual report and accounts............................................................ 226

135S...... Amendment of rules....................................................................... 227

Division 4—Interim copying                                                                                 228

135T..... Appointment of notice holder........................................................ 228

135U..... Copying before declaration of collecting society............................ 228

135V..... Preview copies................................................................................ 229

135W.... Notices by administering bodies..................................................... 229

135X..... Marking and record keeping requirements...................................... 230

135Y..... Effect of declaration of collecting society....................................... 230

Division 5—Miscellaneous                                                                                    231

135Z..... Relevant right holder may authorise copying etc........................... 231

135ZA.. Copyright not to vest in copier...................................................... 231

Part VB—Reproducing and communicating works etc. by educational and other institutions       232

Division 1—Preliminary                                                                                          232

135ZB... Interpretation.................................................................................. 232

135ZC... Eligible items and photographic versions....................................... 233

135ZE... Part does not apply to computer programs................................... 234

135ZF... Operation of collecting society rules.............................................. 234

135ZFA Licensed communications............................................................... 234

Division 2—Reproduction by educational institutions of works that are in hardcopy form        235

135ZGA........................................................................ Application of Division  235

135ZG.. Multiple reproduction of insubstantial parts of works that are in hardcopy form 235

135ZH.. Copying of printed published editions by educational institutions 236

135ZJ.... Multiple reproduction of printed periodical articles by educational institutions    236

135ZK.. Multiple reproduction of works published in printed anthologies 237

135ZL... Multiple reproduction of works that are in hardcopy form by educational institutions        237

135ZM. Application of Division to certain illustrations that are in hardcopy form             238

Division 2A—Reproduction and communication of works that are in electronic form  240

135ZMA....................................................................... Application of Division  240

135ZMB Multiple reproduction and communication of insubstantial parts of works that are in electronic form 240

135ZMC Multiple reproduction and communication of periodical articles that are in electronic form by education institutions........................................................................................................ 241

135ZMD Multiple reproduction and communication of works that are in electronic form by educational institutions        242

135ZME....... Application of Division to certain illustrations in electronic form  243

Division 3—Reproduction and communication of works by institutions assisting persons with a print disability                                                                                                 245

135ZN.. Copying published editions by institutions assisting persons with a print disability            245

135ZP... Multiple reproduction and communication of works by institutions assisting persons with a print disability     245

135ZQ.. Making of relevant reproductions and relevant communications by institutions assisting persons with a print disability........................................................................................................ 247

Division 4—Reproduction and communication of works etc. by institutions assisting persons with an intellectual disability                                                                       250

135ZR... Copying of published editions by institutions assisting persons with an intellectual disability            250

135ZS... Copying and communication of eligible items by institutions assisting persons with an intellectual disability     250

135ZT... Making of copies etc. for use in making copies or communications for a person with an intellectual disability    251

Division 5—Equitable remuneration                                                                253

135ZU.. Remuneration notices..................................................................... 253

135ZV... Records notices............................................................................... 253

135ZW.. Sampling notices............................................................................. 254

135ZWA........................................................................... Electronic use notices  255

135ZX.. Records notices and sampling notices: marking and record-keeping requirements  257

135ZXA.................................... Electronic use notices: notice requirements etc.  258

135ZY... Inspection of records etc................................................................ 258

135ZZ... Revocation of remuneration notice................................................. 259

135ZZA Request for payment of equitable remuneration............................ 259

Division 6—Collecting societies                                                                        261

135ZZB Collecting societies......................................................................... 261

135ZZC Revocation of declaration............................................................... 262

135ZZD Annual report and accounts............................................................ 262

135ZZE Amendment of rules....................................................................... 263

Division 7—Miscellaneous                                                                                    264

135ZZF Rights of copyright owners............................................................ 264

135ZZG Copyright not to vest in copier...................................................... 264

135ZZH Unauthorised use of copies............................................................ 265

Part VC—Retransmission of free-to-air broadcasts                                       266

Division 1—Preliminary                                                                                          266

135ZZI. Definitions...................................................................................... 266

135ZZJ. Operation of collecting society rules.............................................. 267

135ZZJAApplication of Part........................................................................ 267

Division 2—Retransmission of free-to-air broadcasts                            268

135ZZK Retransmission of free-to-air broadcasts........................................ 268

135ZZL Remuneration notices..................................................................... 268

135ZZM....................................................... Amount of equitable remuneration  269

135ZZN Record system................................................................................ 269

135ZZP Inspection of records etc................................................................ 270

135ZZQ Identity cards.................................................................................. 271

135ZZR Revocation of remuneration notice................................................. 271

135ZZS. Request for payment of equitable remuneration............................ 272

Division 3—Collecting societies                                                                        273

135ZZT Collecting societies......................................................................... 273

135ZZU Revocation of declaration............................................................... 274

135ZZV Annual report and accounts............................................................ 274

135ZZW............................................................................. Amendment of rules  275

Division 4—Interim retransmissions                                                               276

135ZZX Appointment of notice holder........................................................ 276

135ZZY Retransmitting before declaration of collecting society.................. 276

135ZZZ Notices by retransmitters............................................................... 276

135ZZZARecord keeping requirements........................................................ 277

135ZZZBEffect of declaration of collecting society..................................... 277

Division 5—Miscellaneous                                                                                    279

135ZZZCRelevant copyright owner may authorise retransmitting.............. 279

135ZZZDCopyright not to vest under this Part.......................................... 279

135ZZZELicence to retransmit does not authorise copyright
infringements.................................................................................. 279

Part VI—The Copyright Tribunal                                                                              280

Division 1—Preliminary                                                                                          280

136........ Interpretation.................................................................................. 280

137........ Cases to which licence schemes apply.......................................... 282

Division 2—Constitution of the Tribunal                                                       283

138........ Constitution of Tribunal................................................................. 283

139........ Appointment of members of Tribunal........................................... 283

140........ Qualifications of members.............................................................. 283

141........ Tenure of office.............................................................................. 284

141A..... Seniority of Deputy Presidents...................................................... 284

142........ Acting President............................................................................. 284

143........ Remuneration and allowances......................................................... 285

144........ Oath or affirmation of office........................................................... 285

144A..... Disclosure of interests by members............................................... 285

144B..... Removal from office for failure to disclose interest........................ 286

145........ Resignation..................................................................................... 286

146........ Sittings of the Tribunal................................................................... 286

147........ President to arrange business of Tribunal....................................... 287

Division 3—Applications and references to the Tribunal                     288

148........ Interpretation.................................................................................. 288

149........ Applications to Tribunal for determination of remuneration payable for making recording or film of a work       288

149A..... Applications to Tribunal under section 47A.................................. 288

150........ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of a copy of the sound recording........................................................... 289

151........ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording....................................................... 289

152........ Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings     290

152A..... Applications to Tribunal for determination of amount of royalty payable for recording musical works               296

152B..... Applications to Tribunal for determination of manner of paying royalty              297

153........ Applications to Tribunal for apportionment of royalty in respect of a record       298

153A..... Applications to Tribunal under section 135H, subsection 135J(1) or subsection 135JA(1)  298

153B..... Applications to Tribunal under subsection 135J(3)....................... 299

153BA.. Application to the Tribunal under subsection 135JA(3)............... 299

153BB... Application to the Tribunal under subsection 135ZME(3)........... 300

153C..... Applications to the Tribunal under section 135ZV or subsection 135ZW(1) or 135ZWA(1)               300

153D..... Applications to Tribunal under subsection 135ZW(3).................. 301

153DA.. Applications to the Tribunal under subsection 135ZWA(2)......... 301

153E...... Applications to Tribunal under subsection 183(5)........................ 302

153F...... Applications to Tribunal to declare collecting society for government copies        302

153G..... Applications to Tribunal to revoke a declaration of a collecting society 304

153H..... Time limit for deciding applications under section 153F or 153G. 305

153J...... Amendment and revocation of a declaration on the declaration of another collecting society 305

153K..... Applications to Tribunal for method of working out payment for government copies          306

153L...... Applications to Tribunal for review of declarations of certain educational institutions         307

153M.... Applications to the Tribunal under subsection 135ZZM(1)......... 307

153N..... Applications to Tribunal under subsection 135ZZN(3)................ 308

154........ Reference of proposed licence schemes to Tribunal....................... 308

155........ Reference of existing licence schemes to Tribunal.......................... 309

156........ Further reference of licence schemes to Tribunal........................... 311

157........ Application to Tribunal in relation to licences............................... 313

158........ Effect of licence scheme being continued in operation pending order of the Tribunal             315

159........ Effect of order of Tribunal in relation to licences........................... 316

160........ Interim orders................................................................................. 318

161........ Reference of questions of law to Federal Court of Australia......... 318

162........ Agreements or awards not affected................................................ 319

Division 4—Procedure and evidence                                                               320

163........ Proceedings to be in public except in special circumstances.......... 320

163A..... Application may be made to Tribunal by the agent of the copyright owner          320

164........ Procedure........................................................................................ 320

165........ Mistakes or errors in orders of the Tribunal.................................. 321

166........ Regulations as to procedure............................................................ 321

167........ Power to take evidence on oath...................................................... 321

168........ Evidence in form of written statement........................................... 322

169........ Representation................................................................................ 322

Division 5—Miscellaneous                                                                                    323

170........ Secretary and other staff................................................................. 323

171........ Protection of members, barristers and witnesses........................... 323

172........ Disobedience to summons etc........................................................ 323

173........ Contempt of Tribunal etc............................................................... 324

174........ Costs of proceedings...................................................................... 324

175........ Proof of orders of Tribunal............................................................. 325

Part VII—The Crown                                                                                                        326

Division 1—Crown copyright                                                                               326

176........ Crown copyright in original works made under direction of Crown 326

177........ Crown copyright in original works first published in Australia under direction of Crown     326

178........ Crown copyright in recordings and films made under direction of Crown              326

179........ Provisions relating to ownership of copyright may be modified by agreement      327

180........ Duration of Crown copyright in original works............................. 327

181........ Duration of Crown copyright in recordings and films.................... 327

182........ Application of Parts III and IV to copyright subsisting by virtue of this Part       328

182A..... Copyright in statutory instruments and judgments etc.................. 328

Division 2—Use of copyright material for the Crown                             330

182B..... Definitions...................................................................................... 330

182C..... Relevant collecting society............................................................. 330

183........ Use of copyright material for the services of the Crown............... 331

183A..... Special arrangements for copying for services of government........ 332

183B..... Payment and recovery of equitable remuneration payable for government copies 333

183C..... Powers of collecting society to carry out sampling........................ 334

183D..... Annual report and accounts of collecting society........................... 335

183E...... Alteration of rules of collecting society.......................................... 336

Part VIII—Extension or restriction of operation of Act                               337

184........ Application of Act to countries other than Australia.................... 337

185........ Denial of copyright to citizens of countries not giving adequate protection to Australian works          339

186........ Application of Act to international organizations.......................... 340

187........ Original works made or first published by international organizations 340

188........ Subject-matter, other than original works, made or first published by international organizations        341

Part IX—Moral rights of authors of literary, dramatic, musical or artistic works and cinematograph films                                                                                                                                    343

Division 1—Preliminary                                                                                          343

189........ Definitions...................................................................................... 343

190........ Moral rights conferred on individuals............................................. 345

191........ Director, producer and screenwriter of cinematograph film........... 345

192........ Rights to be additional to other rights............................................ 346

Division 2—Right of attribution of authorship                                            347

193........ Author’s right of attribution of authorship.................................... 347

194........ Acts giving rise to right of attribution of authorship...................... 347

195........ Nature of the identification of author............................................. 348

195AA.. Identification of author to be clear and reasonably prominent....... 348

195AB.. What is a reasonably prominent identification............................... 348

Division 3—Right not to have authorship of a work falsely attributed   349

195AC.. Author’s right not to have authorship falsely attributed............... 349

195AD.. Acts of false attribution of authorship of a literary, dramatic or musical work      349

195AE... Acts of false attribution of authorship of artistic work................. 350

195AF... Acts of false attribution of authorship of cinematograph film....... 350

195AG.. Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work                351

195AH.. Act of false attribution of authorship of altered cinematograph film 351

Division 4—Right of integrity of authorship of a work                           352

195AI.... Author’s right of integrity of authorship....................................... 352

195AJ... Derogatory treatment of literary, dramatic or musical work.......... 352

195AK.. Derogatory treatment of artistic work............................................ 352

195AL... Derogatory treatment of cinematograph film................................. 353

Division 5—Duration and exercise of moral rights                                  354

195AM. Duration of moral rights................................................................. 354

195AN.. Exercise of moral rights................................................................... 354

Division 6—Infringement of moral rights                                                      356

195AO.. Infringement of right of attribution of authorship.......................... 356

195AP... Infringement of right not to have authorship falsely attributed..... 356

195AQ.. Infringement of right of integrity of authorship............................. 356

195AR.. No infringement of right of attribution of authorship if it was reasonable not to identify the author    357

195AS... No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable          358

195AT.. Certain treatment of works not to constitute an infringement of the author’s right of integrity of authorship      360

195AU.. Infringement by importation for sale or other dealing.................... 363

195AV.. Infringement by sale and other dealings.......................................... 364

195AVA.......................................................... Matters to be taken into account  364

195AVB Communication by use of certain facilities..................................... 365

195AW. Author’s consent to act or omission—films or works in films...... 365

195AWAAuthor’s consent to act or omission—work that is not a film
or included in a film........................................................................ 366

195AWBConsent invalidated by duress or false or misleading
statements....................................................................................... 367

195AX.. Acts or omissions outside Australia............................................... 367

Division 7—Remedies for infringements of moral rights                      368

195AY.. Definition etc.................................................................................. 368

195AZ.. Actions for infringement of moral rights........................................ 368

195AZA.......................................... Remedies for infringements of moral rights  368

195AZB Saving of other rights and remedies................................................ 370

195AZC Jurisdiction of courts...................................................................... 370

195AZD......................................... Presumption as to subsistence of copyright  371

195AZE Presumption as to subsistence of moral rights............................... 371

195AZF Presumptions in relation to authorship of work............................ 371

195AZG Other presumptions in relation to literary, dramatic, musical or artistic work        372

Division 8—Miscellaneous                                                                                    373

195AZH....................................................................................... Parts of works  373

195AZI. Works of joint authorship.............................................................. 373

195AZJ. Cinematograph films that have more than one principal director... 373

195AZK....... Cinematograph films that have more than one principal producer  374

195AZL Cinematograph films that have more than one principal screenwriter 374

195AZM.................................. Application—right of attribution of authorship  375

195AZN.............. Application—right not to have authorship falsely attributed  375

195AZO...................................... Application—right of integrity of authorship  376

Part X—Miscellaneous                                                                                                    377

195A..... Interpretation.................................................................................. 377

195B..... Review of certain decisions............................................................ 378

196........ Assignments and licences in respect of copyright.......................... 379

197........ Prospective ownership of copyright.............................................. 380

198........ Copyright to pass under will with unpublished work................... 380

198A..... Non-infringement of trade mark in relation to the importation of copyright material             380

199........ Reception of broadcasts................................................................. 381

200........ Use of works and broadcasts for educational purposes................. 382

200AA.. Use of broadcasts by institutions assisting persons with an intellectual disability                383

201........ Delivery of library material to the National Library...................... 383

202........ Groundless threats of legal proceedings......................................... 384

203........ Limitation on power of courts to grant relief in proceedings under this Act           385

203A..... Retention of declarations in relation to copies made by libraries, archives or institutions      385

203D..... Arrangement of declarations and records........................................ 386

203E...... Inspection of records and declarations retained by libraries, archives or institutions             387

203F...... Additional offences in relation to the making and retention of records and declarations         389

203G..... Additional offences relating to declarations under subsections 116A(3) and 132(5F)            390

203H..... Notation of certain copies etc......................................................... 390

Part XI—Transitional                                                                                                       394

Division 1—Preliminary                                                                                          394

204........ Interpretation.................................................................................. 394

205........ References to making of works, recordings and films..................... 395

206........ References in other laws or instruments to copyright.................... 395

207........ Application..................................................................................... 396

208........ Authorship of photographs............................................................ 396

209........ Publication...................................................................................... 396

Division 2—Original works                                                                                   398

210........ Expired copyright not to revive...................................................... 398

211........ Original works in which copyright subsists................................... 398

213........ Ownership of copyright................................................................. 398

214........ Infringement by importation, sale and other dealings..................... 400

215........ Recording of musical works............................................................ 400

216........ Publication of artistic works........................................................... 400

217........ Reconstruction of buildings............................................................ 401

218........ Industrial designs............................................................................ 401

219........ Reproduction of work upon payment of royalties........................ 401

Division 3—Subject-matter other than works                                             404

220........ Sound recordings............................................................................. 404

221........ Cinematograph films....................................................................... 404

222........ Application of Act to dramatic works and photographs comprised in cinematograph films  404

223........ Television broadcasts and sound broadcasts.................................. 404

224........ Published editions of works........................................................... 405

225........ Infringement by importation, sale and other dealings..................... 405

Division 4—Miscellaneous                                                                                    406

226........ Actions for infringement................................................................. 406

227........ Infringing copies............................................................................. 406

228........ Actions where copyright subject to exclusive licence.................... 406

229........ Offences and summary proceedings............................................... 406

230........ Limitation of actions....................................................................... 406

231........ Restriction of importation of printed copies of works.................. 407

232........ References and applications to Tribunal in relation to licence schemes  407

233........ Duration of Crown copyright in photographs............................... 407

234........ Duration of Crown copyright in recordings................................... 407

235........ Crown copyright in films............................................................... 408

236........ Works made or published by international organizations.............. 408

237........ Subject-matter, other than original works, made or published by international organizations                408

239........ Assignments and licences............................................................... 408

240........ Bequests......................................................................................... 410

241........ Delivery of library material to National Library............................ 411

242........ Groundless threats of legal proceedings......................................... 411

Division 5—Works made before 1 July, 1912                                             412

243........ Interpretation.................................................................................. 412

244........ Application..................................................................................... 412

245........ Rights conferred by Copyright Act, 1911...................................... 412

246........ Performing rights............................................................................ 412

247........ Contributions to periodicals........................................................... 413

248........ Assignments and licences............................................................... 413

Part XIA—Performers’ protection                                                                            415

Division 1—Preliminary                                                                                          415

248A..... Interpretation.................................................................................. 415

248B..... Educational purposes..................................................................... 419

248C..... Exempt recordings cease to be exempt recordings in certain circumstances            419

248CA.. Protection period............................................................................ 420

248D..... Private and domestic use................................................................ 421

248F...... Application..................................................................................... 421

Division 2—Actions by performers                                                                   422

248G..... What constitutes unauthorised use................................................. 422

248H..... Copying sound recordings for broadcasting................................... 423

248J...... Actions for unauthorised use.......................................................... 424

248K..... Exercise of jurisdiction.................................................................... 425

248L...... Appeals.......................................................................................... 425

248M.... Jurisdiction of Federal Court.......................................................... 426

248MA. Jurisdiction of Federal Magistrates Court...................................... 426

248N..... Right to bring an action not assignable........................................... 426

Division 3—Offences                                                                                                427

248P...... Offences involving unauthorised recording, broadcasting etc. of performances      427

248Q..... Other offences in relation to performances.................................... 428

248QA.. Further offences relating to sound recordings of certain performances 430

248QB.. Protection against multiple prosecutions for same act................... 431

248S...... Prosecutions for offences............................................................... 431

248T..... Destruction or delivery up of unauthorised recordings.................. 431

Division 4—Extension of protection to foreign countries                    433

248U..... Application to foreign countries..................................................... 433

248V..... Denial of protection to citizens of countries not giving adequate protection to Australian performances             434

Part XII—Regulations                                                                                                     435

249........ Regulations..................................................................................... 435

The Schedule                                                                                                                          436

Notes                                                                                                                                          437


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 non-dramatic 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 non-dramatic 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 non-dramatic 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 sound-track 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 pre-school or kindergarten standard;

                     (a)  a school or similar institution at which full-time primary education or full-time secondary education is provided or both full-time primary education and full-time 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.

             (4)  If the film is not a commissioned film, then the reference in subsection (2) to the maker of the film includes a reference to each director of the film.

             (5)  If a director directed the film under the terms of his or her employment under a contract of service or apprenticeship with another person (the employer), then, in the absence of any agreement to the contrary, the employer is to be substituted for the director for the purposes of subsection (4).

             (6)  If a person becomes an owner of the copyright:

                     (a)  because of the operation of subsection (4); or

                     (b)  because of the operation of subsections (4) and (5);

then the person becomes the owner of the copyright only so far as the copyright consists of the right to include the film in a retransmission of a free-to-air broadcast.

             (7)  In this section:

commissioned film means a film made as mentioned in paragraphs (3)(a) and (b).

director has the same meaning as in Part IX.

free-to-air broadcast has the same meaning as in Part VC.

retransmission means a retransmission (as defined in section 10) to which Part VC applies.

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

                             (ii)  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 made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalty stated above.


 

Division 2AActions in relation to circumvention devices and electronic rights management information

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

             (1)  Subject to subsections (2), (3) and (4), this section applies if:

                     (a)  a work or other subject-matter is protected by a technological protection measure; and

                     (b)  a person does any of the following acts without the permission of the owner or exclusive licensee of the copyright in the work or other subject-matter:

                              (i)  makes a circumvention device capable of circumventing, or facilitating the circumvention of, the technological protection measure;

                             (ii)  sells, lets for hire, or by way of trade offers or exposes for sale or hire or otherwise promotes, advertises or markets, such a circumvention device;

                            (iii)  distributes such a circumvention device for the purpose of trade, or for any other purpose that will affect prejudicially the owner of the copyright;

                            (iv)  exhibits such a circumvention device in public by way of trade;

                             (v)  imports such a circumvention device into Australia for the purpose of:

                                        (A)  selling, letting for hire, or by way of trade offering or exposing for sale or hire or otherwise promoting, advertising or marketing, the device; or

                                        (B)  distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the owner of the copyright; or

                                        (C)  exhibiting the device in public by way of trade;

                            (vi)  makes such a circumvention device available online to an extent that will affect prejudicially the owner of the copyright;

                           (vii)  provides, or by way of trade promotes, advertises or markets, a circumvention service capable of circumventing, or facilitating the circumvention of, the technological protection measure; and

                     (c)  the person knew, or ought reasonably to have known, that the device or service would be used to circumvent, or facilitate the circumvention of, the technological protection measure.

             (2)  This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

             (3)  This section does not apply in relation to the supply of a circumvention device or a circumvention service to a person for use for a permitted purpose if:

                     (a)  the person is a qualified person; and

                     (b)  the person gives the supplier before, or at the time of, the supply a declaration signed by the person:

                              (i)  stating the name and address of the person; and

                             (ii)  stating the basis on which the person is a qualified person; and

                            (iii)  stating the name and address of the supplier of the circumvention device or circumvention service; and

                            (iv)  stating that the device or service is to be used only for a permitted purpose by a qualified person; and

                             (v)  identifying the permitted purpose by reference to one or more of sections 47D, 47E, 47F, 48A, 49, 50, 51A and 183 and Part VB; and

                            (vi)  stating that a work or other subject-matter in relation to which the person proposes to use the device or service for a permitted purpose is not readily available to the person in a form that is not protected by a technological protection measure.

             (4)  This section does not apply in relation to the making or importing of a circumvention device:

                     (a)  for use only for a permitted purpose relating to a work or other subject-matter that is not readily available in a form that is not protected by a technological protection measure; or

                     (b)  for the purpose of enabling a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose.

          (4A)  For the purposes of paragraphs (3)(b) and (4)(a), a work or other subject-matter is taken not to be readily available if it is not available in a form that lets a person do an act relating to it that is not an infringement of copyright in it as a result of section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB.

             (5)  If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person.

             (6)  In an action under subsection (5), it must be presumed that the defendant knew, or ought reasonably to have known, that the circumvention device or service to which the action relates would be used for a purpose referred to in paragraph (1)(c) unless the defendant proves otherwise.

             (7)  For the purposes of this section, a circumvention device or a circumvention service is taken to be used for a permitted purpose only if:

                     (a)  the device or service is used for the purpose of doing an act comprised in the copyright in a work or other subject-matter; and

                     (b)  the doing of the act is not an infringement of the copyright in the work or other subject-matter under section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB.

             (8)  In this section:

qualified person means:

                     (a)  a person referred to in paragraph 47D(1)(a), 47E(1)(a) or 47F(1)(a); or

                     (b)  a person who is an authorized officer for the purposes of section 48A, 49, 50 or 51A; or

                     (c)  a person authorised in writing by the Commonwealth or a State for the purposes of section 183; or

                     (d)  a person authorised in writing by a body administering an institution (within the meaning of Part VB) to do on behalf of the body an act that is not an infringement of copyright because of that Part.

supply means:

                     (a)  in relation to a circumvention device—sell the device, let it for hire, distribute it or make it available online; and

                     (b)  in relation to a circumvention service—provide the service.

             (9)  The defendant bears the burden of establishing the matters referred to in subsections (3), (4) and (4A).

116B  Removal or alteration of electronic rights management information

             (1)  This section applies if:

                     (a)  either:

                              (i)  a person removes, from a copy of a work or other subject-matter in which copyright subsists, any electronic rights management information that relates to the work or other subject-matter; or

                             (ii)  a person alters any electronic rights management information that relates to a work or other subject-matter in which copyright subsists; and

                     (b)  the person does so without the permission of the owner or exclusive licensee of the copyright; and

                     (c)  the person knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter.

             (2)  If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person.

             (3)  In an action under subsection (2), it must be presumed that the defendant knew, or ought reasonably to have known, that the removal or alteration to which the action relates would have the effect referred to in paragraph (1)(c) unless the defendant proves otherwise.

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

             (1)  This section applies if:

                     (a)  a person does any of the following acts in relation to a work or other subject-matter in which copyright subsists without the permission of the owner or exclusive licensee of the copyright:

                              (i)  distributes a copy of the work or other subject-matter to the public;

                             (ii)  imports into Australia a copy of the work or other subject-matter for distribution to the public;

                            (iii)  communicates a copy of the work or other subject-matter to the public; and

                     (b)  either:

                              (i)  any electronic rights management information that relates to the work or other subject-matter has been removed from the copy of the work or subject-matter; or

                             (ii)  any electronic rights management information that relates to the work or other subject-matter has been altered; and

                     (c)  the person knew that the electronic rights management information had been so removed or altered without the permission of the owner or exclusive licensee of the copyright; and

                     (d)  the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter.

             (2)  If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person.

             (3)  In an action under subsection (2), it must be presumed that the defendant:

                     (a)  had the knowledge referred to in paragraph (1)(c); and

                     (b)  knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(d);

unless the defendant proves otherwise.

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

             (1)  This section applies if:

                     (a)  a person does either of the following acts in relation to electronic rights management information that relates to a work or other subject-matter in which copyright subsists:

                              (i)  distributes the electronic rights management information;

                             (ii)  imports into Australia the electronic rights management information for distribution; and

                     (b)  the person does so without the permission of the owner or exclusive licensee of the copyright; and

                     (c)  either:

                              (i)  the information has been removed from a copy of the work or subject-matter without the permission of the owner or exclusive licensee of the copyright; or

                             (ii)  the information has been removed from a copy of the work or subject-matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and

                     (d)  the person knew that the information had been removed or altered without that permission; and

                     (e)  the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright.

             (2)  If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person.

             (3)  In an action under subsection (2), it must be presumed that the defendant:

                     (a)  had the knowledge referred to in paragraph (1)(d); and

                     (b)  knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(e);

unless the defendant proves otherwise.

116CB  Exception relating to national security and law enforcement

                   Sections 116B to 116CA do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

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

             (1)  The relief that a court may grant in an action under section 116A, 116B, 116C or 116CA includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

             (2)  If, in an action under section 116A, 116B, 116C or 116CA, the court is satisfied that it is proper to do so, having regard to:

                     (a)  the flagrancy of the defendant’s actions that are the subject of the action; and

                     (b)  any benefit shown to have accrued to the defendant as a result of those acts; and

                     (c)  any other relevant matters;

the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.


 

Division 3Proceedings where copyright is subject to exclusive licence

117  Interpretation

                   In this Division:

if the licence had been an assignment means if, instead of the licence, there had been granted (subject to conditions corresponding as nearly as practicable with those subject to which the licence was granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorized by the licence, of the acts so authorized.

the other party means:

                     (a)  in relation to the owner of the copyright—the exclusive licensee; and

                     (b)  in relation to the exclusive licensee—the owner of the copyright.

118  Application

                   This Division applies to proceedings in relation to a copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.

119  Rights of exclusive licensee

                   Subject to the succeeding sections of this Division:

                     (a)  except against the owner of the copyright, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, by virtue of section 115 if the licence had been an assignment, and those rights and remedies are concurrent with the rights and remedies of the owner of the copyright under that section;

                     (b)  except against the owner of the copyright, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, by virtue of section 116 if the licence had been an assignment; and

                     (c)  the owner of the copyright does not have any rights of action that he or she would not have, and is not entitled to any remedies that he or she would not be entitled to, by virtue of section 116 if the licence had been an assignment.

120  Joinder of owner or exclusive licensee as a party

             (1)  Where:

                     (a)  an action is brought by the owner of the copyright or by the exclusive licensee; and

                     (b)  the action, in so far as it is brought under section 115, relates, in whole or in part, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;

the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it is brought under that section and relates to that infringement, unless the other party is joined as a plaintiff in the action or added as a defendant.

             (2)  This section does not affect the granting of an interlocutory injunction on the application of the owner of the copyright or of the exclusive licensee.

121  Defences available against exclusive licensee

                   In an action brought by the exclusive licensee by virtue of this Division, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the copyright is available to that defendant as against the exclusive licensee.

122  Assessment of damages where exclusive licence granted

                   Where an action to which section 120 applies is brought and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:

                     (a)  if the plaintiff is the exclusive licensee—take into account any liabilities, in respect of royalties or otherwise, to which the licence is subject; and

                     (b)  whether the plaintiff is the owner of the copyright or the exclusive licensee—take into account any pecuniary remedy already awarded to the other party under section 115 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement, as the case requires.

123  Apportionment of profits between owner and exclusive licensee

                   Where:

                     (a)  an action, in so far as it is brought under section 115, relates, in whole or in part, to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section; and

                     (b)  in that action, whether the owner of the copyright and the exclusive licensee are both parties or not, an account of profits is directed to be taken in respect of that infringement;

then, subject to any agreement of which the court is aware by which the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them in such a manner as the court considers just and shall give such directions as the court considers appropriate for giving effect to that apportionment.

Note:          However, not all owners of the copyright are entitled to an account of profits: see section 100AG.

124  Separate actions in relation to the same infringement

                   In an action brought by the owner of the copyright or by the exclusive licensee:

                     (a)  a judgment or order for the payment of damages in respect of an infringement of copyright shall not be given or made under section 115 if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and

                     (b)  a judgment or order for an account of profits in respect of an infringement of copyright shall not be given or made under that section if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.

Note:          However, not all owners of the copyright are entitled to damages (other than additional damages) or an account of profits: see section 100AG.

125  Liability for costs

                   Where, in an action to which section 120 applies, whether brought by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.


 

Division 4Proof of facts in civil actions

126  Presumptions as to subsistence and ownership of copyright

                   In an action brought by virtue of this Part:

                     (a)  copyright shall be presumed to subsist in the work or other subject-matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject-matter; and

                     (b)  where the subsistence of the copyright is established—the plaintiff shall be presumed to be the owner of the copyright if he or she claims to be the owner of the copyright and the defendant does not put in issue the question of his or her ownership.

126A  Evidence in relation to subsistence of copyright

             (1)  This section applies to an action under this Part in which the defendant puts in issue the question whether copyright subsists in the work or other subject matter to which the action relates.

Labels or marks

             (2)  If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

             (3)  If a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then the certificate or other document is admissible as prima facie evidence of the facts so stated.

             (4)  For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (3) is, unless the contrary intention is established, taken to be such a certificate or document.

126B  Evidence in relation to ownership of copyright

             (1)  This section applies to an action under this Part in which the defendant puts in issue the question of the plaintiff’s ownership of copyright in the work or other subject matter to which the action relates.

Labels or marks

             (2)  If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

             (3)  If a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the certificate or other document is admissible as prima facie evidence of the facts so stated.

             (4)  For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (3) is, unless the contrary intention is established, taken to be such a certificate or document.

Chains of ownership

             (5)  If:

                     (a)  subsection (2) or (3) applies; and

                     (b)  the plaintiff produces a document stating the following:

                              (i)  each subsequent owner of the copyright the subject of the action (including the plaintiff’s ownership);

                             (ii)  the date each subsequent owner became the owner of that copyright;

                            (iii)  a description of the transaction resulting in each subsequent owner becoming the owner of that copyright;

then the document is admissible as prima facie evidence of the facts so stated.

             (6)  If:

                     (a)  neither subsection (2) nor (3) applies; and

                     (b)  the plaintiff produces a document stating the following:

                              (i)  the original owner of the copyright the subject of the action;

                             (ii)  each subsequent owner of that copyright (including the plaintiff’s ownership);

                            (iii)  the date each owner became the owner of that copyright;

                            (iv)  a description of the transaction resulting in each owner becoming the owner of that copyright;

then the document is admissible as prima facie evidence of the facts so stated.

Offence

             (7)  A person is guilty of an offence if:

                     (a)  the person produces a document under subsection (5) or (6); and

                     (b)  the person is reckless as to whether the document is false or misleading.

Penalty:  30 penalty units.

             (8)  Strict liability applies to the element of the offence against subsection (7) that the document is produced under subsection (5) or (6).

Note:          For strict liability, see section 6.1 of the Criminal Code.

127  Presumptions in relation to authorship of work

             (1)  Where a name purporting to be that of the author of a literary, dramatic, musical or artistic work appeared on copies of the work as published or a name purporting to be that of the author of an artistic work appeared on the work when it was made, the person whose name so appeared, if it was his or her true name or a name by which he or she was commonly known, shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the author of the work and to have made the work in circumstances to which subsections 35(4), (5) and (6) do not apply.

             (2)  Where a work is alleged to be a work of joint authorship, the last preceding subsection applies in relation to each person alleged to be one of the authors of the work as if references in that subsection to the author were references to one of the authors.

             (3)  Where, in an action brought by virtue of this Part in relation to a photograph:

                     (a)  it is established that, at the time when the photograph was taken, a person was the owner of the material on which the photograph was taken or, if the ownership of that material as at that time is not established, that a person was the owner of the apparatus by which the photograph was taken; or

                     (b)  neither the ownership as at the time when the photograph was taken of the material on which it was taken nor the ownership as at that time of the apparatus by which it was taken is established but it is established that, at the time of the death of a person, the photograph was owned by the person or, if the ownership of the photograph as at that time is not established, was in the possession or custody of the person;

the person shall be presumed, unless the contrary is established, to have been the person who took the photograph.

             (4)  However, if the owner of the material or apparatus was a body corporate, then paragraph (3)(a) only applies if the presumption is required to determine the ownership of the copyright in the photograph.

Note:          For example, the presumption does not apply if it is required to determine the duration of the copyright in the photograph.

128  Presumptions in relation to publisher of work

                   Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, the last preceding section does not apply, but it is established:

                     (a)  that the work was first published in Australia and was so published during the period of 70 years that ended immediately before the commencement of the calendar year in which the action was brought; and

                     (b)  that a name purporting to be that of the publisher appeared on copies of the work as first published;

then, unless the contrary is established, copyright shall be presumed to subsist in the work and the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication.

129  Presumptions where author has died

             (1)  Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, it is established that the author is dead:

                     (a)  the work shall be presumed to be an original work unless the contrary is established; and

                     (b)  if it is alleged by the plaintiff that a publication specified in the allegation was the first publication of the work, and that it took place in a country and on a date so specified—that publication shall be presumed, unless the contrary is established, to have been the first publication of the work, and to have taken place in that country and on that date.

             (2)  Where:

                     (a)  a literary, dramatic, musical or artistic work has been published;

                     (b)  the publication was anonymous or is alleged by the plaintiff to have been pseudonymous; and

                     (c)  it is not established that the work has ever been published under the true name of the author, or under a name by which he or she was commonly known, or that the identity of the author is generally known or can be ascertained by reasonable inquiry;

paragraphs (1)(a) and (b) apply, in an action brought by virtue of this Part in relation to the work, in like manner as those paragraphs apply where it is established that the author is dead.

130  Evidence in relation to recordings

             (1)  In an action brought by virtue of this Part in relation to copyright in a sound recording, if records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public and, at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark containing a statement:

                     (a)  that a person specified on the label or mark was the maker of the recording;

                     (b)  that the recording was first published in a year specified on the label or mark; or

                     (c)  that the recording was first published in a country specified on the label or mark;

then the label or mark is admissible as prima facie evidence of the facts so stated.

             (2)  In an action brought by virtue of this Part in relation to copyright in a sound recording, if:

                     (a)  records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

                     (b)  at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark consisting of the letter “P” in a circle accompanied by a specified year and the name of a person;

then the label or mark is admissible as prima facie evidence that the recording was first published in that specified year and that the named person was the owner of copyright in the recording in the place and at the time at which the label or mark was affixed to the records or their containers.

             (3)  To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:

                     (a)  a maker of the recording; or

                     (b)  an owner of copyright in the recording in the place and at the time mentioned in subsection (2).

130A  Acts relating to imported copies of sound recordings

                   In an action for infringement of copyright described in section 37, 38, 102 or 103 by an act involving an article that is a copy of a sound recording, it must be presumed that the copy is not a non-infringing copy unless the defendant proves that the copy is a non-infringing copy.

Note 1:       Sections 37 and 38 deal with infringement of copyright in literary, dramatic and musical works (among other things) by commercial importation and dealings involving articles.

Note 2:       Sections 102 and 103 deal with infringement of copyright in sound recordings (among other things) by commercial importation and dealings involving articles.

130B  Acts relating to imported copies of computer programs

                   In an action by a plaintiff for infringement of copyright described in section 37 or 38:

                     (a)  relating to the plaintiff’s copyright in a literary work that is a computer program; and

                     (b)  involving an article that has embodied in it a copy of the program;

it must be presumed, unless the defendant proves otherwise, that the copy is not a non-infringing copy so far as it relates to the plaintiff’s copyright.

Note:          Sections 37 and 38 deal with infringement of copyright in literary works (among other things) by commercial importation and dealings involving articles.

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

                   In an action by a plaintiff for infringement of copyright described in section 37, 38, 102 or 103:

                     (a)  relating to the plaintiff’s copyright in a work, or in a published edition of a work, that is, or is part of, an electronic literary or music item; and

                     (b)  involving an article that has embodied in it a copy of the electronic literary or music item;

it must be presumed, unless the defendant proves otherwise, that the copy is not a non-infringing copy so far as it relates to the plaintiff’s copyright.

Note 1:       Sections 37 and 38 deal with infringement of copyright in a work by commercial importation and dealings involving articles.

Note 2:       Sections 102 and 103 deal with infringement of copyright in a published edition of a work (among other things) by commercial importation and dealings involving articles.

131  Presumption in relation to maker of film

                   Where the name of a person appeared on copies of a cinematograph film as made available to the public in such a way as to imply that the person was the maker of the film and, in the case of a person other than a body corporate, that name was his or her true name or a name by which he or she was commonly known, that person shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the maker of the film and to have made the film in circumstances to which subsection 98(3) does not apply.


 

Division 4AJurisdiction and appeals

131A  Exercise of jurisdiction

                   The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single Judge of the Court.

131B  Appeals

             (1)  Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.

             (2)  An appeal lies from a decision of a court of a State or Territory under this Part:

                     (a)  to the Federal Court of Australia; or

                     (b)  by special leave of the High Court, to the High Court.

131C  Jurisdiction of Federal Court of Australia

                   Jurisdiction is conferred on the Federal Court of Australia with respect to actions under this Part.

131D  Jurisdiction of Federal Magistrates Court

                   Jurisdiction is conferred on the Federal Magistrates Court with respect to civil actions under this Part.


 

Division 5Offences and summary proceedings

132  Offences

Offences relating to infringing copies

             (1)  A person shall not, at a time when copyright subsists in a work:

                     (a)  make an article for sale or hire or with the intention of obtaining a commercial advantage or profit;

                     (b)  sell or let for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offer or expose for sale or hire, an article;

                     (c)  by way of trade, or with the intention of obtaining a commercial advantage or profit, exhibit an article in public; or

                     (d)  import an article into Australia for the purpose of:

                              (i)  selling, letting for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the article;

                             (ii)  distributing the article for the purpose of trade, or with the intention of obtaining a commercial advantage or profit, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or

                            (iii)  by way of trade, or with the intention of obtaining a commercial advantage or profit, exhibiting the article in public;

if the person knows, or ought reasonably to know, the article to be an infringing copy of the work.

Note:          A person who makes an agreement before the US Free Trade Agreement Implementation Act 2004 receives the Royal Assent might not commit an offence under this section: see items 118 and 132 of Schedule 9 to that Act.

             (2)  A person shall not, at a time when copyright subsists in a work, distribute:

                     (a)  for the purpose of trade or with the intention of obtaining a commercial advantage or profit; or

                     (b)  for any other purpose to an extent that affects prejudicially the owner of the copyright;

an article that the person knows, or ought reasonably to know, to be an infringing copy of the work.

          (2A)  A person shall not, at a time when copyright subsists in a work, have in his or her possession an article for the purpose of:

                     (a)  selling, letting for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the article;

                     (b)  distributing the article for the purpose of trade, or with the intention of obtaining a commercial advantage or profit, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or

                     (c)  by way of trade, or with the intention of obtaining a commercial advantage or profit, exhibiting the article in public;

if the person knows, or ought reasonably to know, the article to be an infringing copy of the work.

             (3)  A person shall not, at a time when copyright subsists in a work, make or have in his or her possession a device that the person knows, or ought reasonably to know, is to be used for making infringing copies of the work.

             (4)  The preceding provisions of this section apply in relation to copyright subsisting in any subject-matter by virtue of Part IV in like manner as they apply in relation to copyright subsisting in a work by virtue of Part III.

Offence relating to infringing public performances of literary, dramatic or musical works

             (5)  A person shall not cause a literary, dramatic or musical work to be performed in public at a place of public entertainment, if the person knows, or ought reasonably to know, that copyright subsists in the work and that the performance constitutes an infringement of the copyright.

Offences relating to sound recordings or films heard or seen in public

       (5AA)  A person shall not cause:

                     (a)  a sound recording to be heard in public at a place of public entertainment; or

                     (b)  a cinematograph film, in so far as it consists of visual images, to be seen in public at a place of public entertainment or, in so far as it consists of sounds, to be heard in public at such a place;

if the person knows, or ought reasonably to know, that copyright subsists in the sound recording or the cinematograph film and that the copyright will thereby be infringed.

Offences relating to circumvention services and devices

          (5A)  A person must not provide, or by way of trade promote, advertise or market, a circumvention service if the person knows, or is reckless as to whether, the service will be used to circumvent, or facilitate the circumvention of, a technological protection measure.

          (5B)  A person must not:

                     (a)  make a circumvention device; or

                     (b)  sell, let for hire, or by way of trade offer or expose for sale or hire, or otherwise promote, advertise or market, a circumvention device; or

                     (c)  distribute a circumvention device with the intention of trading, or engaging in any other activity that will affect prejudicially an owner of copyright; or

                     (d)  by way of trade exhibit a circumvention device in public; or

                     (e)  import a circumvention device into Australia with the intention of:

                              (i)  selling, letting for hire, or by way of trade offering or exposing for sale or hire, or otherwise promoting, advertising or marketing, the device; or

                             (ii)  distributing the device for trading, or for engaging in any other activity that will affect prejudicially an owner of copyright; or

                            (iii)  exhibiting the device in public by way of trade; or

                      (f)  make a circumvention device available online to an extent that will affect prejudicially an owner of copyright;

if the person knows, or is reckless as to whether, the device will be used to circumvent, or facilitate the circumvention of, a technological protection measure.

Offences relating to electronic rights management information

          (5C)  A person commits an offence if:

                     (a)  copyright subsists in a work or other subject-matter; and

                     (b)  either:

                              (i)  the person removes, from a copy of the work or subject-matter, any electronic rights management information that relates to the work or subject-matter; or

                             (ii)  the person alters any electronic rights management information that relates to the work or subject-matter; and

                     (c)  the person does so without the permission of the owner or exclusive licensee of the copyright; and

                     (d)  the person is reckless as to whether the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.

          (5D)  A person commits an offence if:

                     (a)  copyright subsists in a work or other subject-matter; and

                     (b)  the person does any of the following acts in relation to the work or subject-matter:

                              (i)  distributes a copy of the work or subject-matter with the intention of trading or obtaining a commercial advantage or profit;

                             (ii)  imports a copy of the work or subject-matter into Australia with the intention of trading or obtaining a commercial advantage or profit;

                            (iii)  communicates a copy of the work or subject-matter to the public; and

                     (c)  the person does so without the permission of the owner or exclusive licensee of the copyright; and

                     (d)  either:

                              (i)  any electronic rights management information that relates to the work or subject-matter has been removed from the copy of the work or subject-matter; or

                             (ii)  any electronic rights management information that relates to the work or subject-matter has been altered;

                            without the permission of the owner or exclusive licensee of the copyright; and

                     (e)  the person knows that the information has been removed or altered without that permission; and

                      (f)  the person is reckless as to whether the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

       (5DA)  A person commits an offence if:

                     (a)  copyright subsists in a work or other subject-matter; and

                     (b)  the person does either of the following acts in relation to electronic rights management information that relates to the work or subject-matter:

                              (i)  distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;

                             (ii)  imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; and

                     (c)  the person does so without the permission of the owner or exclusive licensee of the copyright; and

                     (d)  either:

                              (i)  the information has been removed from a copy of the work or subject-matter without the permission of the owner or exclusive licensee of the copyright; or

                             (ii)  the information has been removed from a copy of the work or subject-matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and

                     (e)  the person knows that the information has been removed or altered without that permission; and

                      (f)  the person is reckless as to whether the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

Offence relating to significant infringement of copyright

        (5DB)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct results in one or more infringements of the copyright in a work or other subject-matter; and

                     (c)  the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and

                     (d)  the infringement or infringements occur on a commercial scale.

        (5DC)  In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (5DB)(d), the following matters are to be taken into account:

                     (a)  the volume of any articles that are infringing copies that constitute the infringement or infringements;

                     (b)  the value of any articles that are infringing copies that constitute the infringement or infringements;

                     (c)  any other relevant matter.

Defence relating to law enforcement and national security

           (5E)  Subsections (5A) to (5DB) do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

Defence for certain public institutions etc.

        (5EA)  Subsections (5C) to (5DB) do not apply in respect of anything lawfully done by the following bodies in performing their functions:

                     (a)  a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);

                     (b)  a body mentioned in paragraph (a) of the definition of archives or in subsection 10(4);

                     (c)  an educational institution;

                     (d)  a public non-commercial broadcaster, including:

                              (i)  a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and

                             (ii)  a body that holds a community broadcasting licence within the meaning of that Act.

Note:          A library that is owned by a person conducting a business for profit might not itself be conducted for profit: see section 18.

Permitted purpose exceptions

           (5F)  Subsections (5A) and (5B) do not apply in relation to the supply of a circumvention device or a circumvention service to a person for use for a permitted purpose if:

                     (a)  the person is a qualified person; and

                     (b)  the person gives the supplier before, or at the time of, the supply a declaration signed by the person:

                              (i)  stating the name and address of the person; and

                             (ii)  stating the basis on which the person is a qualified person; and

                            (iii)  stating the name and address of the supplier of the circumvention device or circumvention service; and

                            (iv)  stating that the device or service is to be used only for a permitted purpose by a qualified person; and

                             (v)  identifying the permitted purpose by reference to one or more of sections 47D, 47E, 47F, 48A, 49, 50, 51A and 183 and Part VB; and

                            (vi)  stating that a work or other subject-matter in relation to which the person proposes to use the device or service for a permitted purpose is not readily available to the person in a form that is not protected by a technological protection measure.

          (5G)  Subsection (5B) does not apply in relation to the making or importing of a circumvention device:

                     (a)  for use only for a permitted purpose relating to a work or other subject-matter that is not readily available in a form that is not protected by a technological protection measure; or

                     (b)  to enable a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose.

        (5GA)  For the purposes of paragraphs (5F)(b) and (5G)(a), a work or other subject-matter is taken not to be readily available if it is not available in a form that lets a person do an act relating to it that is not an infringement of copyright in it as a result of section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB.

          (5H)  For the purposes of this section, a circumvention device or a circumvention service is taken to be used for a permitted purpose only if:

                     (a)  the device or service is used to do an act comprised in the copyright in a work or other subject-matter; and

                     (b)  the act is done with the licence of the owner or exclusive licensee of the copyright, or is not an infringement of the copyright in the work or other subject-matter under section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB.

           (5J)  The only burden of proof that the defendant bears in respect of subsection (5E), (5EA), (5F) or (5G) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act or matter in question was done or existed.

Section applies only in respect of acts done in Australia

             (6)  This section applies only in respect of acts done in Australia.

Penalties

       (6AA)  If:

                     (a)  a person contravenes subsection (1), (2) or (2A); and

                     (b)  the article to which the contravention relates is an infringing copy because it was made by converting a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form;

the person is guilty of an offence punishable on summary conviction by a fine of not more than 850 penalty units and/or imprisonment for not more than 5 years.

        (6AB)  If:

                     (a)  either:

                              (i)  a person contravenes subsection (1) because of the doing of an act referred to in paragraph (1)(a), (b) or (c); or

                             (ii)  a person contravenes subsection (2) or (2A); and

                     (b)  subsection (6AA) does not apply;

the person is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

        (6AC)  If:

                     (a)  a person contravenes subsection (1) because of the doing of an act referred to in paragraph (1)(d); and

                     (b)  subsection (6AA) does not apply;

the person is guilty of an offence punishable on summary conviction by a fine of not more than 650 penalty units and/or imprisonment for not more than 5 years.

          (6A)  A person who contravenes subsection (3), (5), (5AA), (5A), (5B), (5C), (5D), (5DA) or (5DB) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

Note:          A corporation may be fined up to 5 times the amount of the maximum fine. See subsection 4B(3) of the Crimes Act 1914.

Proceedings may be brought in Federal Court etc.

             (7)  Prosecutions for offences against this section may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.

             (8)  Jurisdiction is conferred on the Federal Court of Australia to hear and determine prosecutions for offences against this section.

Definitions

             (9)  In this section:

article includes a reproduction or copy of a work or other subject-matter, being a reproduction or copy in electronic form.

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.

distribute includes distribute by way of communication.

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.

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

qualified person means:

                     (a)  a person referred to in paragraph 47D(1)(a), 47E(1)(a) or 47F(1)(a); or

                     (b)  a person who is an authorised officer for the purposes of section 48A, 49, 50 or 51A; or

                     (c)  a person authorised in writing by the Commonwealth or a State for the purposes of section 183; or

                     (d)  a person authorised in writing by a body administering an institution (within the meaning of Part VB) to do on behalf of the body an act that is not an infringement of copyright because of that Part.

supply means:

                     (a)  in relation to a circumvention device—sell the device, let it for hire, distribute it or make it available online; and

                     (b)  in relation to a circumvention service—provide the service.

           (10)  In the definition of infringing copy in subsection 10(1) as that definition has effect for the purposes of this section, the expression “article” has the meaning given by subsection (9) of this section.

Burden of proof relating to profit

           (11)  In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.

132A  Presumptions in relation to subsistence and ownership of copyright

             (1)  This section applies to a prosecution for an offence against section 132 in relation to a work or other subject matter.

Labels or marks

             (2)  If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then the label or mark is admissible as prima facie evidence of the facts so stated.

             (3)  If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

             (4)  If a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then the certificate or other document is admissible as prima facie evidence of the facts so stated.

             (5)  If a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the certificate or other document is admissible as prima facie evidence of the facts so stated.

             (6)  For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (4) or (5) is, unless the contrary intention is established, taken to be such a certificate or document.

132B  Evidence in relation to sound recordings

             (1)  In a prosecution for an offence against section 132 in relation to a sound recording, if:

                     (a)  records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

                     (b)  at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark containing a statement:

                              (i)  that a person specified on the label or mark was the maker of the recording; or

                             (ii)  that the recording was first published in a year specified on the label or mark; or

                            (iii)  that the recording was first published in a country specified on the label or mark;

then the label or mark is admissible as prima facie evidence of the facts so stated.

             (2)  In a prosecution for an offence against section 132 in relation to a sound recording, if:

                     (a)  records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

                     (b)  at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark consisting of the letter “P” in a circle accompanied by a specified year and the name of a person;

then the label or mark is admissible as prima facie evidence that the recording was first published in that specified year and that the named person was the owner of copyright in the recording in the place and at the time at which the label or mark was affixed to the records or their containers.

             (3)  To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:

                     (a)  a maker of the recording; or

                     (b)  an owner of copyright in the recording in the place and at the time mentioned in subsection (2).

133  Destruction or delivery up of infringing copies etc.

             (4)  The court before which a person is charged with an offence by reason of a contravention of section 132 may, whether the person is convicted of the offence or not, order that any article in the possession of the person that appears to the court to be a circumvention device used or intended to be used in contravention of that section, or to be an infringing copy, or to be a device or recording equipment used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright concerned or otherwise dealt with in such manner as the court thinks fit.

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

             (1)  Where:

                     (a)  a person, by any means, publishes, or causes to be published, in Australia an advertisement for the supply in Australia (whether from within or outside Australia) of a copy of a work or other subject matter; and

                     (b)  the person knows, or ought reasonably to know, that the copy is, or will be, an infringing copy;

the person is guilty of an offence punishable upon conviction by:

                     (c)  a fine not exceeding 15 penalty units and/or imprisonment for not more than 6 months, if the person is an individual; or

                     (d)  a fine not exceeding 150 penalty units, if the person is a body corporate.

             (2)  For the purposes of this section, a communication of a work or other subject matter that, when received and recorded, will result in the creation of a copy of the work or other subject matter is taken to constitute the supply of a copy of the work or other subject matter at the place where the copy will be created.

             (3)  Prosecutions for offences against this section may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.


 

Division 6Miscellaneous

134  Limitation of actions in respect of infringement of copyright

             (1)  An action shall not be brought for an infringement of copyright or in respect of the conversion or detention of an infringing copy, or of a device (including a circumvention device) used or intended to be used for making infringing copies, after the expiration of six years from the time when the infringement took place or the infringing copy or device was made, as the case may be.

             (2)  An action may not be brought under section 116A, 116B, 116C or 116CA in respect of an act done by a person if more than 6 years have elapsed from the time when the act was done.

134A  Affidavit evidence

             (1)  Subject to subsection (2), at the trial of a proceeding, being:

                     (a)  an action brought by virtue of this Part; or

                     (b)  a prosecution for an offence against this Act;

evidence that:

                     (c)  at a particular time, copyright subsisted in the work or other subject-matter to which the proceeding relates; or

                     (d)  at a particular time, copyright in that work or subject-matter was owned by, or exclusively licensed to, a particular person; or

                     (e)  at a particular time, copyright in that work or subject-matter was not owned by, or exclusively licensed to, a particular person; or

                      (f)  a particular act was done without the licence of the owner of the copyright, or of the exclusive licensee of the copyright, in that work or subject-matter;

may be given by affidavit.

             (2)  If a party to a proceeding referred to in subsection (1) desires in good faith that the person who made an affidavit referred to in that subsection that is proposed to be used in the proceeding be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the proceeding unless the person appears as a witness for such cross-examination or the court in which the proceeding is being tried, in its discretion, permits the affidavit to be used without the person so appearing.


 

Division 7Seizure of imported copies of copyright material

134B  Interpretation

                   In this Division:

CEO means the Chief Executive Officer of Customs.

copy, in relation to copyright material, means:

                     (a)  if the copyright material is a work—an article in which the work is embodied; or

                     (b)  if the copyright material is a sound recording, or a sound broadcast as recorded in a sound recording—a record embodying the sound recording; or

                     (c)  if the copyright material is a cinematograph film or a television broadcast as recorded in a cinematograph film—an article in which the visual images or sounds comprising the film are embodied; or

                     (d)  if the copyright material is a published edition of a work—an article in which the edition is embodied.

copyright material means:

                     (a)  a work; or

                     (b)  a sound recording; or

                     (c)  a cinematograph film; or

                     (d)  a published edition of a work; or

                     (e)  a television or sound broadcast as recorded in a cinematograph film or a sound recording.

importer, in relation to copies of copyright material, includes a person who or which is, or holds himself, herself or itself out to be, the owner or importer of the goods comprising the copies.

objector, in relation to particular seized copies, means the person who gave the notice under subsection 135(2) as a result of the giving of which the copies were seized.

owner, in relation to the copyright in copyright material, includes an exclusive licensee of the copyright in the material.

seized copies means copies seized under subsection 135(7).

135  Restriction of importation of copies of works etc.

             (1)  In this section:

                     (a)  a reference to Australia does not include a reference to the external Territories; and

                     (b)  a reference to importation into Australia does not include a reference to importation from such a Territory.

             (2)  A person may give the CEO a written notice stating:

                     (a)  that the person is the owner of the copyright in copyright material; and

                     (b)  that the person objects to the importation into Australia of copies of the copyright material to which this section applies.

             (3)  A notice under subsection (2):

                     (a)  is to be given together with any prescribed document; and

                     (b)  is to be accompanied by the prescribed fee (if any).

             (4)  This section applies to a copy of copyright material if the making of the copy would, if it had been carried out in Australia by the person importing the copy, have constituted an infringement of the copyright in the copyright material.

             (5)  Unless it is revoked under subsection (6) or declared to be ineffective under subsection (6A), a notice under subsection (2) remains in force until:

                     (a)  the end of the period of 2 years commencing on the day on which the notice was given; or

                     (b)  the end of the period for which the copyright in the copyright material to which the notice relates is to subsist;

whichever is the earlier.

             (6)  A notice under subsection (2) may be revoked by written notice given to the CEO by the person who gave the first-mentioned notice or by a subsequent owner of the copyright in the copyright material to which the notice relates.

          (6A)  If the CEO believes, on reasonable grounds, that it is no longer appropriate to give effect to a notice given under subsection (2), the CEO may, by writing, declare the notice to be ineffective.

Note:          Subsection 195B(3) requires the CEO to notify the person who gave the notice of the decision declaring the notice to be ineffective.

             (7)  If:

                     (a)  a notice has been given under subsection (2) in respect of copyright material; and

                     (b)  the notice has not been declared to be ineffective or revoked; and

                     (c)  a person imports copies of the copyright material to which this section applies into Australia for the purpose of:

                              (i)  selling, letting for hire, or by way of trade offering or exposing for sale or hire, the copies; or

                             (ii)  distributing the copies for the purpose of trade; or

                            (iii)  distributing the copies for any other purpose to an extent that will affect prejudicially the owner of the copyright in the copyright material; or

                            (iv)  by way of trade exhibiting the copies in public; and

                     (d)  the copies are subject to the control of the Customs within the meaning of the Customs Act 1901;

the CEO may seize the copies.

             (8)  The regulations may make provision for or in relation to:

                     (a)  the forms of notices under this section; and

                     (b)  the times at which, and the manner in which, notices are to be given; and

                     (c)  the giving of information and evidence to the CEO.

             (9)  The regulations may contain provisions similar to the provisions of this Division in relation to the importation into external Territories (other than importation from Australia or from another such Territory) of copies of copyright material.

           (10)  This Division does not apply to the importation into Australia of copies of copyright material whose importation does not constitute an infringement of copyright because of section 44A, 44D, 44E, 44F, 112A, 112D or 112DA.

        (10A)  This Division does not apply to the importation into Australia of copies of copyright material whose importation does not constitute an infringement of copyright because of section 44C or 112C.

135AA  Security for expenses of seizure

                   The CEO may refuse to seize copies under subsection 135(7) unless:

                     (a)  the objector has deposited with the CEO a sum of money that, in the opinion of the CEO, is sufficient to reimburse the Commonwealth for the reasonable expenses it is likely to incur as a result of the seizure of the copies; or

                     (b)  the objector has given security, to the satisfaction of the CEO, for the reimbursement of the Commonwealth for those expenses.

135AB  Secure storage of seized copies

                   Seized copies must be taken to such secure place as the CEO directs.

135AC  Notice of seizure

             (1)  As soon as is practicable after copies are seized under subsection 135(7), the CEO must give to the importer and the objector, either personally or by post, a written notice identifying the copies and stating that the identified copies have been seized.

             (2)  A notice under subsection (1) must also state:

                     (a)  if it is given to the objector—the name, and (if known) the address of the place of business or residence, of the importer; and

                     (b)  if it is given to the importer—the name, and the address of the place of business or residence, of:

                              (i)  the objector; or

                             (ii)  if the objector has nominated a person to be the objector’s agent or representative for the purposes of this Division—that person; and

                     (c)  in each case—that the copies will be released to the importer unless:

                              (i)  an action for infringement of copyright in relation to the copies is instituted by the objector within a specified period from the day specified in the notice; and

                             (ii)  a written notice stating that the action has been instituted is given to the CEO within that period.

             (3)  The period to be specified for the purposes of subparagraph (2)(c)(i) is the period prescribed for the purposes of that paragraph.

             (4)  The day specified for the purposes of subparagraph (2)(c)(i) must not be earlier than the day on which the notice is given.

             (5)  The objector may, by written notice given to the CEO before the end of the period specified in a notice for the purposes of subparagraph (2)(c)(i) (the retention period), request that the period be extended.

             (6)  Subject to subsection (7), if:

                     (a)  a request is made in accordance with subsection (5); and

                     (b)  the CEO is satisfied that it is reasonable that the request be granted;

the CEO may extend the retention period by such period as is prescribed.

             (7)  A decision on a request made in accordance with subsection (5) must be made within 24 hours after the request is made. However, such a decision cannot be made after the end of the retention period to which the request relates.

             (8)  The CEO may, at any time after the copies are seized, give to the objector:

                     (a)  the name, and the address of the place of business or residence, of the person or body that made the arrangements, on behalf of the importer, for the copies to be brought to Australia or any information that the CEO has, and believes on reasonable grounds may help in identifying and locating that person or body; and

                     (b)  any other information that the CEO has, and believes on reasonable grounds may be relevant for the purpose of identifying and locating the importer.

135AD  Inspection, release etc. of seized copies

             (1)  The CEO may permit the objector or the importer to inspect the seized copies.

             (2)  If the objector gives the CEO the requisite undertakings, the CEO may permit the objector to remove one sample of the seized copies from the custody of the CEO for inspection by the objector.

             (3)  If the importer gives the CEO the requisite undertakings, the CEO may permit the importer to remove one sample of the seized copies from the custody of the CEO for inspection by the importer.

             (4)  The requisite undertakings are undertakings in writing that the person giving the undertaking will:

                     (a)  return the sample copy to the CEO at a specified time that is satisfactory to the CEO; and

                     (b)  take reasonable care to prevent damage to the sample copy.

             (5)  If the CEO permits inspection of the seized copies, or the removal of a sample copy, by the objector in accordance with this section, the Commonwealth is not liable to the importer for any loss or damage suffered by the importer arising out of:

                     (a)  damage to any of the seized copies incurred during that inspection; or

                     (b)  anything done by the objector or any other person to, or in relation to, a sample copy removed from the custody of the CEO or any use made by the objector of such a sample copy.

135AE  Forfeiture of seized copies by consent

             (1)  Subject to subsection (2), the importer may, by written notice to the CEO, consent to the seized copies being forfeited to the Commonwealth.

             (2)  The notice must be given before any action for infringement of copyright in relation to the copies is instituted.

             (3)  If the importer gives such a notice, the copies are forfeited to the Commonwealth and must be disposed of:

                     (a)  in the manner prescribed by the regulations; or

                     (b)  if no manner of disposal is so prescribed—as the CEO directs.

135AF  Compulsory release of seized copies to the importer

             (1)  The CEO must release seized copies (not being copies forfeited to the Commonwealth under section 135AE) to the importer on the expiration of the retention period for the copies if the objector has not, before the expiration of that period:

                     (a)  instituted an action for infringement of the relevant copyright in respect of the copies; and

                     (b)  given written notice to the CEO stating that the action has been instituted.

             (2)  For the purpose of subsection (1), the retention period for seized copies is:

                     (a)  the period specified in a notice given under subsection 135AC(1) in respect of the copies; or

                     (b)  if that period has been extended under subsection 135AC(6), that period as so extended.

             (3)  If:

                     (a)  an action for infringement of copyright has been instituted in respect of seized copies; and

                     (b)  at the end of a period of 3 weeks commencing on the day on which the action was instituted, there is not in force an order of the court in which the action was instituted preventing the release of the copies;

the CEO must release the copies to the importer.

             (4)  If the objector gives written notice to the CEO stating that he or she consents to the release of the seized copies, the CEO must release the copies to the importer.

             (5)  This section has effect subject to section 135AH.

135AG  Provision relating to actions for infringement of copyright

             (1)  In this section, infringement action means an action for an infringement of copyright constituted by the importation of seized copies.

             (2)  The court in which an infringement action is pending may, on the application of a person having a sufficient interest in the subject-matter of the action, allow the person to be joined as a defendant to the action.

             (3)  The CEO is entitled to be heard on the hearing of an infringement action.

             (4)  In addition to any relief that may be granted apart from this section, the court may:

                     (a)  at any time, order that the seized copies be released to the importer subject to such conditions (if any) as the court thinks fit; or

                     (b)  order that the seized copies not be released to the importer before the end of a specified period; or

                     (c)  order that the goods be forfeited to the Commonwealth.

             (5)  A court may not make an order under paragraph (4)(a) if it is satisfied that the CEO is required or permitted, under any other law of the Commonwealth, to retain control of the seized copies.

             (6)  The CEO must comply with an order made under subsection (4).

             (7)  If:

                     (a)  the court decides that the relevant copyright was not infringed by the importation of the seized copies; and

                     (b)  a defendant to the infringement action satisfies the court that he or she has suffered loss or damage as a result of the seizure of the copies;

the court may order the objector to pay to that defendant such amount as the court determines as compensation for any part of that loss or damage that is attributable to a period beginning on or after the day on which the action was commenced.

135AH  Retention of control of seized copies

                   In spite of section 135AF, in a case in which no order has been made under subsection 135AG(4) in relation to seized copies, the CEO is not obliged to release or dispose of the copies if the CEO is required or permitted, under any other law of the Commonwealth, to retain control of the copies.

135AI  Disposal of seized copies ordered to be forfeited

                   If a court orders that seized copies are to be forfeited to the Commonwealth, the copies must be disposed of:

                     (a)  in the manner prescribed by the regulations; or

                     (b)  if no manner of disposal is so prescribed—as the CEO directs.

135AJ  Insufficient security

             (1)  If the reasonable expenses incurred by the Commonwealth in relation to action taken by the CEO under this Division or taken in accordance with an order of a court under this Division exceed the amount deposited, or the amount of the security given, under section 135AA, the amount of the excess is a debt due to the Commonwealth.

             (2)  The debt created by subsection (1) is due:

                     (a)  by the objector; or

                     (b)  if there are 2 or more objectors, by the objectors jointly and severally.

135AK  Immunity of the Commonwealth

                   The Commonwealth is not liable for any loss or damage suffered by a person:

                     (a)  because of the seizure of copies, or the failure of the CEO to seize copies, under this Division; or

                     (b)  because of the release of any seized copies.


 

Part VAABroadcast decoding devices

Division 1Preliminary

135AL  Definitions

                   In this Part:

action means a proceeding of a civil nature between parties, and includes a counterclaim.

broadcast decoding device means a device (including a computer program) that is designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster by circumventing, or facilitating the circumvention of, the technical means or arrangements that protect access in an intelligible form to the broadcast.

broadcaster means a person who makes an encoded broadcast.

channel provider means a person who:

                     (a)  packages a channel (which might include programs produced by the person); and

                     (b)  supplies a broadcaster with the channel; and

                     (c)  carries on a business that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service.

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.

encoded broadcast means:

                     (a)  a broadcast that is made available only to persons who have the prior authorisation of the broadcaster and only on payment by such persons of subscription fees (whether periodically or otherwise); or

                     (b)  a broadcast (other than a radio broadcast or a broadcast to which paragraph (a) applies) delivered by a broadcasting service that is a commercial or national broadcasting service within the meaning of the Broadcasting Services Act 1992;

being a broadcast, access to which in an intelligible form is protected by a technical measure or arrangement (including a computer program).

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

135AM  Counterclaim

                   In the application of this Part in relation to a counterclaim, references to the defendant are to be read as references to the plaintiff.

Division 2Action in relation to broadcast decoding devices

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

Actions in relation to the manufacture of and dealing with broadcast decoding devices

             (1)  Subject to subsection (2), this section applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a person does any of the following acts without the permission of the broadcaster:

                              (i)  makes a broadcast decoding device;

                             (ii)  sells, lets for hire, or by way of trade offers or exposes for sale or hire, a broadcast decoding device;

                            (iii)  distributes (including by exporting from Australia) a broadcast decoding device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster;

                            (iv)  exhibits a broadcast decoding device in public by way of trade;

                             (v)  imports a broadcast decoding device into Australia for the purpose of:

                                        (A)  selling, letting for hire, or by way of trade offering or exposing for sale or hire, the device; or

                                        (B)  distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster; or

                                        (C)  exhibiting the device in public by way of trade;

                            (vi)  makes a broadcast decoding device available online to an extent that will affect prejudicially the broadcaster; and

                     (c)  the person knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.

Exception relating to law enforcement and national security

             (2)  This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

Who may bring an action

             (3)  Subject to subsection (8), if this section applies, the following persons may bring an action against the person mentioned in subsection (1):

                     (a)  any person who has an interest in the copyright in the broadcast;

                     (b)  any person who has an interest in the copyright in any content of the broadcast;

                     (c)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider.

Relief etc.

             (4)  The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

             (5)  If, in an action under this section, the court is satisfied that it is proper to do so, having regard to:

                     (a)  the flagrancy with which the defendant did any of the acts described in paragraph (1)(b); and

                     (b)  any benefit shown to have accrued to the defendant as a result of making or dealing with the relevant broadcast decoding device; and

                     (c)  all other relevant matters;

the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.

             (6)  If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order.

Presumption relating to defendant’s knowledge

             (7)  In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the broadcast decoding device would be used for the purpose referred to in paragraph (1)(c) unless the defendant proves otherwise.

Limitation on bringing actions

             (8)  An action cannot be brought against a person under this section in respect of any act described in paragraph (1)(b) after the expiration of 6 years from the time when the person did the act.

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

Actions in relation to the use of broadcast decoding devices

             (1)  Subject to subsection (2), this subsection applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a person uses, or authorises the use of, a broadcast decoding device to gain access to the encoded broadcast without the authorisation of the broadcaster; and

                     (d)  the person knew, or ought reasonably to have known, that the broadcaster had not authorised the person to gain access to the broadcast by so using, or authorising the use of, the device.

          (1A)  Subject to subsection (2), this subsection applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast without the authorisation of the broadcaster; and

                     (c)  a person distributes (including by communicating), or authorises the distribution of, the broadcast that has been accessed by the device; and

                     (d)  the distribution affects prejudicially a person who may bring an action under subsection (3); and

                     (e)  the person knew that the broadcaster had not authorised the access to the encoded broadcast.

          (1B)  Subject to subsection (2), this subsection applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast without the authorisation of the broadcaster; and

                     (c)  a person receives the broadcast that has been accessed by the device; and

                     (d)  the person knew that the broadcaster had not authorised the access to the encoded broadcast.

Exception relating to law enforcement and national security

             (2)  This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

Who may bring an action

             (3)  Subject to subsection (7), if subsection (1), (1A) or (1B) applies, the following persons may bring an action against the person mentioned in that subsection:

                     (a)  any person who has an interest in the copyright in the broadcast;

                     (b)  any person who has an interest in the copyright in any content of the broadcast;

                     (c)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider.

Relief etc.

             (4)  The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

             (5)  If, in an action under this section, the court is satisfied that it is proper to do so, having regard to:

                     (a)  the flagrancy with which the defendant did an act described in paragraph (1)(b), (1A)(c) or (1B)(c); and

                     (b)  any benefit shown to have accrued to the defendant, or to any trade or business carried on by, or in association with, the defendant, as a result of the use of the broadcast decoding device; and

                     (c)  all other relevant matters;

the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.

             (6)  If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order.

Limitation on bringing actions

             (7)  An action cannot be brought against a person under this section in respect of an act described in paragraph (1)(b), (1A)(c) or (1B)(c) after the expiration of 6 years from the time when the person did the act.


 

Division 3Jurisdiction and appeals

135AP  Exercise of jurisdiction

                   The jurisdiction of the Supreme Court of a State or Territory in an action under the Part is to be exercised by a single Judge of the Court.

135AQ  Appeals

             (1)  Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.

             (2)  An appeal lies from a decision of a court of a State or Territory under this Part:

                     (a)  to the Federal Court of Australia; or

                     (b)  by special leave of the High Court, to the High Court.

135AR  Jurisdiction of Federal Court of Australia

                   Jurisdiction is conferred on the Federal Court of Australia with respect to actions under this Part.

135ARA  Jurisdiction of Federal Magistrates Court

                   Jurisdiction is conferred on the Federal Magistrates Court with respect to civil actions under this Part.


 

Division 4Offences

135AS  Offences

Offences in relation to manufacture of or dealing with broadcast decoding devices

             (1)  A person must not:

                     (a)  make a broadcast decoding device; or

                     (b)  sell, let for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offer or expose for sale or hire, a broadcast decoding device; or

                     (c)  distribute (including by exporting from Australia) a broadcast decoding device with the intention of trading or obtaining a commercial advantage or profit, or with the intention of engaging in any other activity that will affect prejudicially a broadcaster; or

                     (d)  exhibit a broadcast decoding device in public by way of trade or with the intention of obtaining a commercial advantage or profit; or

                     (e)  import a broadcast decoding device into Australia with the intention of:

                              (i)  selling, letting for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the device; or

                             (ii)  distributing the device for trading or with the intention of obtaining a commercial advantage or profit, or for engaging in any other activity that will affect prejudicially a broadcaster; or

                            (iii)  exhibiting the device in public by way of trade or with the intention of obtaining a commercial advantage or profit; or

                      (f)  make a broadcast decoding device available on-line to an extent that will affect prejudicially a broadcaster;

if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.

Note:          See section 135AL for the definition of profit.

Offence in relation to use of broadcast decoding devices for commercial advantage etc.

          (1A)  A person commits an offence if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  the person uses, or authorises the use of, a broadcast decoding device to gain access to the encoded broadcast; and

                     (c)  the access is gained without the authorisation of the broadcaster; and

                     (d)  the person uses, or authorises the use of, the device by way of trade or with the intention of obtaining a commercial advantage or profit.

Note:          See section 135AL for the definition of profit.

Offence in relation to distribution of encoded broadcast that has been accessed without authorisation

          (1B)  A person commits an offence if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast; and

                     (c)  the access is gained without the authorisation of the broadcaster; and

                     (d)  the person distributes (including by communicating), or authorises the distribution of, the broadcast that has been accessed by the device; and

                     (e)  the person knows the broadcaster had not authorised the access to the broadcast; and

                      (f)  the distribution affects prejudicially the following persons:

                              (i)  any person who has an interest in the copyright in the broadcast;

                             (ii)  any person who has an interest in the copyright in any content of the broadcast;

                            (iii)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider.

Offence in relation to use of encoded broadcast that has been accessed without authorisation

          (1C)  A person commits an offence if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast; and

                     (c)  the access is gained without the authorisation of the broadcaster; and

                     (d)  the person receives the broadcast that has been accessed by the device; and

                     (e)  the person knows the broadcaster had not authorised the access to the broadcast; and

                      (f)  the person uses, or authorises the use of, the broadcast by way of trade or with the intention of obtaining a commercial advantage or profit.

Note:          See section 135AL for the definition of profit.

Defence relating to law enforcement and national security

             (2)  This section does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:

                     (a)  the Commonwealth or a State or Territory; or

                     (b)  an authority of the Commonwealth or of a State or Territory.

Burdens of proof

             (3)  The only burden of proof that a defendant bears in respect of subsection (2) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

          (3A)  In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.

Penalty for contravening section

             (4)  A person who contravenes subsection (1), (1A), (1B) or (1C) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

135AT  Prosecutions

             (1)  Prosecutions for offences against section 135AS may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.

             (2)  Jurisdiction is conferred on the Federal Court of Australia to hear and determine prosecutions for offences against section 135AS.

135AU  Destruction etc. of devices

                   The court before which a person is charged with an offence against section 135AS may, whether the person is convicted of the offence or not, order that any article in the possession of the person that appears to the court to be a broadcast decoding device be destroyed or otherwise dealt with in such manner as the court thinks fit.


 

Part VACopying and communication of broadcasts by educational and other institutions

Division 1Preliminary

135A  Interpretation

                   In this Part:

administering body means a body administering an institution.

agreed notice means a remuneration notice specifying that the amount of equitable remuneration payable to the collecting society by the administering body giving the notice is to be assessed on the basis of an agreed system.

collecting society means the body that is, for the time being, declared to be the collecting society under section 135P.

institution means:

                     (a)  an educational institution; or

                     (b)  an institution assisting persons with an intellectual disability.

notice holder means the person who is, for the time being, appointed to be the notice holder under section 135T.

performance has the same meaning as in Part XIA.

performer has the same meaning as in Part XIA.

preview copy means a copy of a broadcast referred to in section 135F.

records notice means a remuneration notice specifying that the amount of equitable remuneration payable to the collecting society by the administering body giving the notice is to be assessed on the basis of a records system.

relevant right holder means:

                     (a)  the owner of the copyright in a work, a sound recording or a cinematograph film (other than a new owner of the copyright in a sound recording of a live performance as defined in section 100AB); or

                     (b)  a performer in a performance.

remuneration notice means a notice referred to in subsection 135G(1).

rules, in relation to the collecting society, means the provisions of the memorandum and articles of association of the society.

sampling notice means a remuneration notice specifying that the amount of equitable remuneration payable to the collecting society by the administering body giving the notice is to be assessed on the basis of a sampling system.

135B  Copies and communications of broadcasts

                   In this Part:

                     (a)  a reference to a copy of a broadcast is a reference to a record embodying a sound recording of the broadcast or a copy of a cinematograph film of the broadcast; and

                     (b)  a reference to the making of a copy of a broadcast is a reference to the making of a copy of the whole or a part of the broadcast; and

                     (c)  a reference to the communication of a copy of a broadcast is a reference to the communication of a copy of the whole or a part of the broadcast.

135D  Operation of collecting society rules

                   This Part applies to the collecting society despite anything in the rules of the society but nothing in this Part affects those rules so far as they can operate together with this Part.


 

Division 2Copying and communication of broadcasts

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

             (1)  The copyright in a broadcast, or in any work, sound recording or cinematograph film included in a broadcast, is not infringed by the making or communication, by or on behalf of an administering body, of a copy of the broadcast if:

                     (a)  a remuneration notice, given by or on behalf of the administering body to the collecting society, is in force;

                     (b)  where the copy or communication is made by, or on behalf of, a body administering an educational institution—the copy or communication is made solely for the educational purposes of the institution or of another educational institution;

                     (c)  where the copy or communication is made by, or on behalf of, a body administering an institution assisting persons with an intellectual disability—the copy or communication is made solely for the purposes of use in the provision of assistance to persons with an intellectual disability by the institution or by another similar institution; and

                     (d)  the administering body complies with subsection 135K(1) or (3), or section 135KA, as the case requires, in relation to the copy or communication.

          (1A)  For the purposes of Part XIA, each performer of a performance is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the following paragraphs are satisfied:

                     (a)  a remuneration notice, given by or on behalf of the administering body to the collecting society, is in force;

                     (b)  if the copy or communication is made by, or on behalf of, a body administering an educational institution—the copy or communication is made solely for the educational purposes of the institution or of another educational institution;

                     (c)  if the copy or communication is made by, or on behalf of, a body administering an institution assisting persons with an intellectual disability—the copy or communication is made solely for the purposes of use in the provision of assistance to persons with an intellectual disability by the institution or by another similar institution;

                     (d)  the administering body complies with subsection 135K(1) or (3), or section 135KA, as the case requires, in relation to the copy or communication.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the copy or communication under Part XIA (performers’ protection).

             (2)  Where a copy, or communication of a copy, of a broadcast referred to in subsection (1) or (1A):

                     (a)  is used for a purpose other than a purpose referred to in paragraph (1)(b) or (c) or (1A)(b) or (c);

                     (b)  is made, sold or otherwise supplied for a financial profit; or

                     (c)  is given to an administering body when there is not in force a remuneration notice given by that body to the collecting society;

with the consent of the administering body by whom, or on whose behalf, it is made, subsection (1) or (1A) does not apply, and shall be taken never to have applied, to the making of the copy or communication.

135F  Making and communication of preview copies

             (1)  The copyright in a broadcast, or in any work, sound recording or cinematograph film included in a broadcast, is not infringed by the making of a preview copy of the broadcast.

          (1A)  For the purposes of Part XIA, each performer of a performance is taken to have authorised the making of a preview copy of a broadcast of the performance.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the preview copy under Part XIA (performers’ protection).

             (2)  A copy of a broadcast is a preview copy if:

                     (a) the copy is made by, or on behalf of, an administering body;

                     (b)  a remuneration notice, given by, or on behalf of, the administering body to the collecting society, is in force; and

                     (c)  the copy is made and used solely for the purpose of enabling that body to decide whether or not the copy should be retained for the educational purposes of the institution administered by it, or for use in the provision of assistance to persons with an intellectual disability by the institution administered by it, as the case may be.

             (3)  Subject to this section, a preview copy shall be destroyed within 14 days after the day on which it was made (in this section called the preview period).

             (4)  A preview copy may be retained after the end of the preview period if:

                     (a)  where the relevant institution is an educational
institution—the copy is retained solely for the educational purposes of the institution; or

                     (b)  where the relevant institution is an institution assisting persons with an intellectual disability—the copy is retained solely for the purpose of use in the provision of assistance to such persons by the institution.

             (5)  Where a preview copy is retained under subsection (4), subsection 135E(1) or (1A) applies in relation to the copy after the end of the preview period as if the copy had been made solely for a purpose referred to in paragraph 135E(1)(b) or (c) or (1A)(b) or (c), as the case requires.

             (6)  Where a preview copy is neither destroyed within the preview period nor retained under subsection (4), subsections (1) and (1A) do not apply, and shall be taken never to have applied, to the making of the copy.

             (7)  The copyright in a broadcast, or in any work, sound recording or cinematograph film included in a broadcast, is not infringed by the communication of a preview copy of the broadcast if:

                     (a)  the communication is made solely to enable an administering body to decide whether or not that copy should be retained:

                              (i)  for the educational purposes of the institution administered by it; or

                             (ii)  for use in the provision of assistance to persons with an intellectual disability by the institution administered by it; and

                     (b)  the communication is made only to the extent necessary for the purpose mentioned in paragraph (a); and

                     (c)  the communication is made within the preview period.

             (8)  For the purposes of Part XIA, each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of the performance if:

                     (a)  the communication is made solely to enable an administering body to decide whether or not that copy should be retained:

                              (i)  for the educational purposes of the institution administered by it; or

                             (ii)  for use in the provision of assistance to persons with an intellectual disability by the institution administered by it; and

                     (b)  the communication is made only to the extent necessary for the purpose mentioned in paragraph (a); and

                     (c)  the communication is made within the preview period.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA (performers’ protection).

135G  Remuneration notices

             (1)  An administering body may, by notice in writing given to the collecting society by it, or on its behalf, undertake to pay equitable remuneration to the society for:

                     (a)  copies of broadcasts made by it, or on its behalf, while the notice is in force; and

                     (b)  communications of such copies made by it, or on its behalf, while the notice is in force.

             (2)  A remuneration notice shall specify whether the amount of equitable remuneration is to be assessed on the basis of a records system, a sampling system or an agreed system.

             (3)  A remuneration notice comes into force on the day on which it is given to the collecting society, or on such later day as is specified in the notice, and remains in force until it is revoked.

135H  Records notices

             (1)  If a records notice is given by, or on behalf of, an administering body, the amount of equitable remuneration payable to the collecting society by the administering body for:

                     (a)  each copy of a broadcast made by, or on behalf of, the administering body while the notice is in force; and

                     (b)  each communication of such a copy of a broadcast made by or on behalf of the administering body while the notice is in force;

is such amount as is determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

          (1A)  If a determination has been made by the Tribunal under subsection (1), either the administering body or the collecting society may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination of the amount of equitable remuneration payable to the collecting society by the administering body for the making, by or on behalf of that body, of a copy of a broadcast and for the communication by, or on behalf of that body, of a copy of the broadcast.

             (2)  For the purposes of subsection (1), different amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to:

                     (a)  different classes of works, performances, sound recordings or cinematograph films included in broadcasts;

                     (b)  different institutions administered by the administering body; or

                     (c)  different classes of students of an institution administered by the administering body.

             (3)  If:

                     (a)  a broadcast is copied by, or on behalf of, an administering body, or is taken under this subsection to have been so copied; and

                     (b)  the copy is communicated by, or on behalf of, the body by being made available online, or is taken under this subsection to have been so communicated; and

                     (c)  the copy remains so available online for longer than the prescribed period;

then, when that period ends:

                     (d)  the broadcast is taken to have been copied again by, or on behalf of, the body; and

                     (e)  the copy mentioned in paragraph (a) is taken to have been communicated again by, or on behalf of, the body by making it available online for a further prescribed period.

             (4)  For the purposes of subsection (1), an amount of equitable remuneration must be determined (whether by agreement or by the Copyright Tribunal) having regard to:

                     (a)  copies and communications to which paragraphs (3)(d) and (e) apply; and

                     (b)  such matters (if any) as are prescribed; and

                     (c)  such other matters (if any) as are relevant in the circumstances.

             (5)  In this section:

prescribed period means the period of 12 months, or if another period is agreed between the relevant administering body and collecting society for the purposes of subsection (3), that other period.

135J  Sampling notices

             (1)  If a sampling notice is given by, or on behalf of, an administering body, the amount of equitable remuneration payable to the collecting society by the administering body for:

                     (a)  copies of broadcasts made by, or on behalf of, the administering body while the notice is in force; and

                     (b)  communications of such copies made by, or on behalf of, the administering body while the notice is in force;

is such annual amount as is determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

          (1A)  If a determination has been made by the Tribunal under subsection (1), either the administering body or the collecting society may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination of the amount of equitable remuneration payable to the collecting society by the administering body for copies of broadcasts made by, or on behalf of, that body and for communications by, or on behalf of, that body of such copies.

          (1B)  If:

                     (a)  a broadcast is copied by, or on behalf of, an administering body, or is taken under this subsection to have been so copied; and

                     (b)  the copy is communicated by, or on behalf of, the body by being made available online, or is taken under this subsection to have been so communicated; and

                     (c)  the copy remains so available online for longer than the prescribed period;

then, when that period ends:

                     (d)  the broadcast is taken to have been copied again by, or on behalf of, the body; and

                     (e)  the copy mentioned in paragraph (a) is taken to have been communicated again by, or on behalf of, the body by making it available online for a further prescribed period.

             (2)  The annual amount referred to in subsection (1) must be determined (whether by agreement or by the Copyright Tribunal) having regard to:

                     (a)  copies and communications to which paragraphs (1B)(d)
and (e) apply; and

                     (b)  the extent to which other copies of broadcasts are made and communicated by, or on behalf of, the administering body in a particular period; and

                     (c)  such matters (if any) as are prescribed; and

                     (d)  such other matters (if any) as are relevant in the circumstances.

             (3)  The extent of copying of broadcasts and the communication of those copies, and any other matters that are necessary or convenient to be assessed by use of a sampling system, shall be assessed by use of a sampling system determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

             (4)  For the purposes of subsection (1), different annual amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different institutions administered by the administering body.

             (5)  Where:

                     (a)  a sampling notice is given by, or on behalf of, an administering body to the collecting society; and

                     (b)  during any period, the administering body does not comply with one or more of the requirements of the sampling system determined under this section in relation to the notice;

sections 135E and 135F do not apply to any copy of a broadcast, or communication of a copy of a broadcast, made by, or on behalf of, the administering body during that period.

             (6)  In this section:

prescribed period means the period of 12 months, or if another period is agreed between the relevant administering body and collecting society for the purposes of subsection (1B), that other period.

135JA  Agreed notice

             (1)  If an agreed notice is given by, or on behalf of an administering body, the amount of equitable remuneration payable to the collecting society by the administering body for:

                     (a)  copies of broadcasts made by, or on behalf of, the administering body while the notice is in force; and

                     (b)  communications of such copies made by, or on behalf of, the administering body while the notice is in force;

is an amount (whether an annual amount or otherwise) determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

             (2)  If a determination has been made by the Tribunal under subsection (1), either the administering body or the collecting society may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination of the amount of equitable remuneration payable to the collecting society by the administering body for copies of broadcasts made and communicated by, or on behalf of, that body.

             (3)  Subject to subsection (5), the matters and processes constituting an agreed system, and any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system, must be determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

             (4)  If:

                     (a)  a broadcast is copied by, or on behalf of, an administering body, or is taken under this subsection to have been so copied; and

                     (b)  the copy is communicated by, or on behalf of, the body by being made available online, or is taken under this subsection to have been so communicated; and

                     (c)  the copy remains so available online for longer than the prescribed period;

then, when that period ends:

                     (d)  the broadcast is taken to have been copied again by, or on behalf of, the body; and

                     (e)  the copy mentioned in paragraph (a) is taken to have been communicated again by, or on behalf of, the body by making it available online for a further prescribed period.

             (5)  An agreed system (whether determined by agreement or by the Copyright Tribunal) must require the assessment of an amount of equitable remuneration by a method or process that takes account of copies and communications to which paragraphs (4)(d) and (e) apply.

             (6)  For the purposes of subsection (1), different amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different institutions administered by the administering body.

             (7)  If:

                     (a)  an agreed notice is given by, or on behalf of, an administering body to the collecting society; and

                     (b)  during any period, the administering body does not comply with one or more of the requirements of the agreed system determined under this section in relation to the notice;

sections 135E and 135F do not apply to any copy of a broadcast, or communication of a copy of a broadcast, made by, or on behalf of, the administering body during that period.

             (8)  In this section:

prescribed period means the period of 12 months or, if another period is agreed between the relevant administering body and collecting society for the purposes of subsection (4), that other period.

135K  Marking and record keeping requirements

             (1)  Where a records notice is given by, or on behalf of, an administering body, the body shall:

                     (a)  mark, or cause to be marked, in accordance with the regulations, each copy in analog form of a broadcast made by it, or on its behalf, while the notice is in force, or any container in which such a copy is kept;

                     (b)  make, or cause to be made, a record of each copying of a broadcast, and each communication of such a copy, carried out by it, or on its behalf, while the notice is in force, being a record containing such particulars as are prescribed;

                     (c)  retain that record for the prescribed retention period after the making of the copy or communication to which it relates; and

                     (d)  send copies of all such records to the collecting society in accordance with the regulations.

             (2)  A record of the kind referred to in paragraph (1)(b):

                     (a)  may be kept in writing or in any other manner prescribed in the regulations; and

                     (b)  if it is kept in writing, shall be in accordance with the prescribed form.

             (3)  Where a sampling notice is given by, or on behalf of, an administering body, the body shall mark, or cause to be marked, in accordance with the regulations, each copy in analog form of a broadcast made by it, or on its behalf, while the notice is in force, or any container in which such a copy is kept.

135KA  Notice requirements in respect of communications

                   If a remuneration notice is given by, or on behalf of, an administering body to a collecting society in respect of communication of copies of broadcasts made by, or on behalf of, the body while the remuneration notice is in force, the body must, except in such circumstances (if any) as are prescribed:

                     (a)  give a notice, in accordance with the regulations, in relation to each such communication made by it, or on its behalf, while the remuneration notice is in force, containing:

                              (i)  statements to the effect that the communication has been made under this Part and that any work or other subject-matter contained in the communication might be subject to copyright or performers’ protection under this Act; and

                             (ii)  such other information or particulars (if any) as are prescribed; and

                     (b)  in the case of each such communication made by it, or on its behalf, while the remuneration notice is in force—take all reasonable steps to ensure that the communication can only be received or accessed by persons entitled to receive or access it (for example, teachers or persons receiving educational instruction or other assistance provided by the relevant institution); and

                     (c)  comply with such other requirements (if any) as are prescribed in relation to each such communication made by it, or on its behalf, while the remuneration notice is in force.

135L  Inspection of records etc.

             (1)  Where a remuneration notice is or has been in force, the collecting society may, in writing, notify the administering body which gave the notice that the society wishes, on a day specified in the notice, being an ordinary working day of the institution specified in the notice not earlier than 7 days after the day on which the notice is given, to do such of the following things as are specified in the notice:

                     (a)  assess the amount of copying of broadcasts and communication of such copies carried out at the premises of the institution;

                     (b)  inspect all the relevant records held at those premises that relate to the making and communication of copies of broadcasts in reliance on section 135E;

                     (c)  inspect such other records held at those premises as are relevant to the assessment of the amount of equitable remuneration payable by the administering body to the society.

             (2)  Where the collecting society gives a notice, a person authorised in writing by the society may, during the ordinary working hours of the relevant institution on the day specified in the notice (but not before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect the records, to which the notice relates and, for that purpose, may enter the premises of the institution.

             (3)  An administering body shall take all reasonable precautions, and exercise reasonable diligence, to ensure that a person referred to in subsection (2) who attends at the premises of an institution administered by the body for the purpose of exercising the powers conferred by that subsection is provided with all reasonable and necessary facilities and assistance for the effective exercise of those powers.

             (4)  An administering body that contravenes subsection (3) is guilty of an offence punishable, on conviction, by a fine not exceeding $500.

135M  Revocation of remuneration notice

                   A remuneration notice may be revoked at any time by the relevant administering body by notice in writing given to the collecting society, and the revocation takes effect at the end of 3 months after the date of the notice or on such later day as is specified in the notice.

135N  Request for payment of equitable remuneration

             (1)  Subject to this section, where a remuneration notice is or has been in force, the collecting society may, by notice in writing given to the administering body which gave the notice, request the body to pay to the society, within a reasonable time after the date of the notice, the amount of equitable remuneration specified in the notice, being an amount payable under section 135H, 135J or 135JA, as the case may be, for copies of broadcasts and communications of such copies made by, or on behalf of, the body while the remuneration notice is or was in force.

             (3)  If an amount specified in a request under subsection (1) is not paid in accordance with the request, it may be recovered from the relevant administering body by the collecting society in the Federal Court of Australia or any other court of competent jurisdiction as a debt due to the society.

             (4)  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under subsection (3).


 

Division 3The collecting society

135P  The collecting society

             (1)  Subject to this section, the Attorney-General may, by notice in the Gazette, declare a body named in the notice to be the collecting society.

             (2)  The Attorney-General shall not name more than one body in a declaration and shall not make a declaration while an earlier declaration is in force.

             (3)  The Attorney-General shall not declare a body to be the collecting society unless:

                     (a)  it is a company limited by guarantee and incorporated under a law in force in a State or Territory relating to companies;

                     (b)  all relevant right holders, or their agents, are entitled to become its members;

                     (c)  its rules prohibit the payment of dividends to its members; and

                     (d)  its rules contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of the collecting society’s members who are relevant right holders or their agents are protected adequately, including, in particular, provisions about:

                              (i)  the collection of amounts of equitable remuneration payable by administering bodies under section 135H, 135J or 135JA;

                             (ii)  the payment of the administrative costs of the society out of amounts collected by it;

                            (iii)  the distribution of amounts collected by it;

                            (iv)  the holding on trust by the society of amounts for relevant right holders who are not its members; and

                             (v)  access to records of the society by its members.

135Q  Revocation of declaration

                   The Attorney-General may, by notice in the Gazette, revoke the declaration of a body as the collecting society if satisfied that the body:

                     (a)  is not functioning adequately as the collecting society;

                     (b)  is not acting in accordance with its rules or in the best interests of those of its members who are relevant right holders or their agents;

                     (c)  has altered its rules so that they no longer comply with paragraphs 135P(3)(c) and (d); or

                     (d)  has refused or failed, without reasonable excuse, to comply with section 135R or 135S.

135R  Annual report and accounts

             (1)  The collecting society shall, as soon as practicable after the end of each financial year, prepare a report of its operations during that financial year and send a copy of the report to the Attorney-General.

             (2)  The Attorney-General shall cause a copy of the report sent to the Attorney-General under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General.

             (3)  The society shall keep accounting records correctly recording and explaining the transactions of the society (including any transactions as trustee) and the financial position of the society.

             (4)  The accounting records shall be kept in such a manner as will enable true and fair accounts of the society to be prepared from time to time and those accounts to be conveniently and properly audited.

             (5)  The society shall, as soon as practicable after the end of each financial year, cause its accounts to be audited by an auditor who is not a member of the society, and shall send to the Attorney-General a copy of its accounts as so audited.

             (6)  The society shall give its members reasonable access to copies of all reports and audited accounts prepared under this section.

             (7)  This section does not affect any obligations of the society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated.

135S  Amendment of rules

                   The collecting society shall, within 21 days after it alters its rules, send a copy of the rules as so altered to the Attorney-General, together with a statement setting out the effect of the alteration and the reasons why it was made.


 

Division 4Interim copying

135T  Appointment of notice holder

                   The Attorney-General may, by notice in the Gazette, appoint a person to be the notice holder for the purposes of this Division.

135U  Copying before declaration of collecting society

             (1)  The copyright in a broadcast, or in any work, sound recording or cinematograph film included in a broadcast, is not infringed by the making, by or on behalf of an administering body, of a copy of the broadcast if:

                     (a)  at the time the copy is made, the first collecting society has not been declared;

                     (b)  a notice given by the administering body to the notice holder under subsection 135W(1) is in force;

                     (c)  where the copy is made by, or on behalf of, a body administering an educational institution—the copy is made solely for the educational purposes of the institution or of another educational institution;

                     (d)  where the copy is made by, or on behalf of a body administering an institution assisting persons with an intellectual disability—the copy is made solely for the purposes of use in the provision of assistance to persons with an intellectual disability by the institution or by another similar institution; and

                     (e)  the administering body complies with paragraphs 135K(1)(a), (b) and (c) or subsection 135K(3), in so far as those provisions apply.

             (2)  Where a copy of a broadcast referred to in subsection (1):

                     (a)  is used for a purpose other than a purpose referred to in paragraph (1)(c) or (d);

                     (b)  is made, sold or otherwise supplied for a financial profit; or

                     (c)  is given to an administering body when there is not in force a notice given by that body to the notice holder under subsection 135W(1);

with the consent of the administering body by whom, or on whose behalf, it is made, subsection (1) does not apply, and shall be taken never to have applied, to the making of the copy.

135V  Preview copies

                   Section 135F applies to the making of preview copies of broadcasts before the first collecting society is declared as if:

                     (a)  the reference in paragraph 135F(2)(b) to a remuneration notice given by an administering body to the collecting society were a reference to a notice under subsection 135W(1) given by the administering body to the notice holder; and

                     (b)  the references in subsection 135F(5) to subsection 135E(1), and paragraphs 135E(1)(b) and (c), were references to subsection 135U(1), and paragraphs 135U(1)(c) and (d), respectively.

135W  Notices by administering bodies

             (1)  An administering body may at any time before the declaration of the first collecting society, by notice in writing given to the notice holder, undertake to pay equitable remuneration to the collecting society, when it is declared, for copies of broadcasts made by, or on behalf of, the administering body while the notice is in force.

             (2)  A notice shall specify whether the amount of equitable remuneration is to be assessed on the basis of a records system or a sampling system.

             (3)  A notice comes into force on the day on which it is given to the notice holder, or on such later day as is specified in the notice, and remains in force until it is revoked.

             (4)  A notice may be revoked at any time by the relevant administering body by notice in writing given to the notice holder, and the revocation takes effect on the date of the notice of revocation or on such later date as is specified in it.

135X  Marking and record keeping requirements

             (1)  Where an administering body gives a notice under subsection 135W(1) that specifies that the amount of equitable remuneration is to be assessed on the basis of a records system, paragraphs 135K(1)(a), (b) and (d) and subsection 135K(2) apply as if:

                     (a)  the reference to the collecting society were a reference to the notice holder; and

                     (b)  references to a records notice were references to the notice under subsection 135W(1).

             (2)  Where an administering body gives a notice under subsection 135W(1) that specifies that the amount of equitable remuneration is to be assessed on the basis of a sampling system, subsection 135K(3) applies as if:

                     (a