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Copyright Act 1968

  • - C2010C00476
  • In force - Superseded Version
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Act No. 63 of 1968 as amended, taking into account amendments up to Act No. 94 of 2010
An Act relating to copyright and the protection of certain performances, and for other purposes
Administered by: Attorney-General's
Registered 09 Jul 2010
Start Date 30 Jun 2010
End Date 26 May 2011
Table of contents.

Copyright Act 1968

Act No. 63 of 1968 as amended

This compilation was prepared on 7 July 2010
taking into account amendments up to Act No. 94 of 2010

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......................................... 24

10AB.... Non‑infringing copy of a computer program.................................... 25

10AC.... Non‑infringing copy of an electronic literary or music item............. 26

10AD.... Accessories to imported articles....................................................... 26

10A....... Declarations and notices relating to certain bodies and institutions. 27

11.......... Residence in a country not affected by temporary absence............. 28

12.......... References to Parliament.................................................................. 28

13.......... Acts comprised in copyright............................................................ 28

14.......... Acts done in relation to substantial part of work or other subject‑matter deemed to be done in relation to the whole.......................................................................................................... 28

15.......... References to acts done with licence of owner of copyright............ 29

16.......... References to partial assignment of copyright................................. 29

17.......... Statutory employment..................................................................... 29

18.......... Libraries established or conducted for profit.................................... 29

19.......... References to Copyright Act, 1911.................................................. 29

20.......... Names under which work is published............................................. 30

21.......... Reproduction and copying of works and other subject‑matter........ 30

22.......... Provisions relating to the making of a work or other subject‑matter 31

23.......... Sound recordings and records........................................................... 34

24.......... References to sounds and visual images embodied in an article........ 34

25.......... Provisions relating to broadcasting................................................... 34

27.......... Performance...................................................................................... 35

28.......... Performance and communication of works or other subject‑matter in the course of educational instruction         36

29.......... Publication........................................................................................ 38

30.......... Ownership of copyright for particular purposes............................. 40

30A....... Commercial rental arrangement......................................................... 40

Part III—Copyright in original literary, dramatic, musical and artistic works         42

Division 1—Nature, duration and ownership of copyright in works  42

31.......... Nature of copyright in original works.............................................. 42

32.......... Original works in which copyright subsists..................................... 44

33.......... Duration of copyright in original works........................................... 44

34.......... Duration of copyright in anonymous and pseudonymous works.... 45

35.......... Ownership of copyright in original works....................................... 45

Division 2—Infringement of copyright in works                                          48

36.......... Infringement by doing acts comprised in the copyright................... 48

37.......... Infringement by importation for sale or hire.................................... 48

38.......... Infringement by sale and other dealings............................................ 49

39.......... Infringement by permitting place of public entertainment to be used for performance of work             50

39A....... Infringing copies made on machines installed in libraries and archives 50

39B....... Communication by use of certain facilities....................................... 51

Division 3—Acts not constituting infringements of copyright in works                52

40.......... Fair dealing for purpose of research or study................................... 52

41.......... Fair dealing for purpose of criticism or review................................. 54

41A....... Fair dealing for purpose of parody or satire..................................... 54

42.......... Fair dealing for purpose of reporting news...................................... 54

43.......... Reproduction for purpose of judicial proceedings or professional advice               55

43A....... Temporary reproductions made in the course of communication.... 55

43B....... Temporary reproductions of works as part of a technical process of use              55

43C....... Reproducing works in books, newspapers and periodical publications in different form for private use              56

44.......... Inclusion of works in collections for use by places of education..... 58

44A....... Importation etc. of books................................................................. 58

44B....... Reproduction of writing on approved label for containers for chemical product    61

44C....... Copyright subsisting in accessories etc. to imported articles........... 62

44D....... Import of non‑infringing copy of sound recording does not infringe copyright in works recorded        62

44E........ Importation and sale etc. of copies of computer programs.............. 63

44F........ Importation and sale etc. of copies of electronic literary or music items                63

Division 4—Acts not constituting infringements of copyright in literary, dramatic and musical works                                                                                                                      65

45.......... Reading or recitation in public or for a broadcast............................. 65

46.......... Performance at premises where persons reside or sleep.................. 65

47.......... Reproduction for purpose of broadcasting....................................... 65

47AA.... Reproduction for the purpose of simulcasting................................. 67

47A....... Sound broadcasts by holders of print disability radio licences........ 67

Division 4A—Acts not constituting infringements of copyright in computer programs               71

47AB.... Meaning of computer program........................................................ 71

47B....... Reproduction for normal use or study of computer programs......... 71

47C....... Back‑up copy of computer programs.............................................. 72

47D....... Reproducing computer programs to make interoperable products.. 73

47E........ Reproducing computer programs to correct errors........................... 74

47F........ Reproducing computer programs for security testing...................... 75

47G....... Unauthorised use of copies or information...................................... 76

47H....... Agreements excluding operation of certain provisions..................... 76

Division 4B—Acts not constituting infringements of copyright in artistic works            77

47J........ Reproducing photograph in different format for private use........... 77

Division 5—Copying of works in libraries or archives                             79

48.......... Interpretation.................................................................................... 79

48A....... Copying by Parliamentary libraries for members of Parliament...... 79

49.......... Reproducing and communicating works by libraries and archives for users            79

50.......... Reproducing and communicating works by libraries or archives for other libraries or archives              84

51.......... Reproducing and communicating unpublished works in libraries or archives          89

51AA.... Reproducing and communicating works in care of National Archives of Australia 90

51A....... Reproducing and communicating works for preservation and other purposes        91

51B....... Making preservation copies of significant works in key cultural institutions’ collections     93

52.......... Publication of unpublished works kept in libraries or archives........ 95

53.......... Application of Division to illustrations accompanying articles and other works   96

Division 6—Recording of musical works                                                         97

54.......... Interpretation.................................................................................... 97

55.......... Conditions upon which manufacturer may make records of musical work             98

57.......... Provisions relating to royalty where 2 or more works are on the one record          100

59.......... Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work........................................................................................................ 100

60.......... Records made partly for retail sale and partly for gratuitous disposal 102

61.......... Making inquiries in relation to previous records............................ 103

64.......... Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records............................................................................................ 104

Division 7—Acts not constituting infringements of copyright in artistic works                105

65.......... Sculptures and certain other works in public places...................... 105

66.......... Buildings and models of buildings.................................................. 105

67.......... Incidental filming or televising of artistic works............................. 105

68.......... Publication of artistic works........................................................... 105

70.......... Reproduction for purpose of including work in television broadcast 106

72.......... Reproduction of part of work in later work................................... 107

73.......... Reconstruction of buildings............................................................ 107

Division 8—Designs                                                                                                  108

74.......... Corresponding design..................................................................... 108

75.......... Copyright protection where corresponding design registered........ 108

76.......... False registration of industrial designs under the Designs Act 2003 108

77.......... Application of artistic works as industrial designs without registration of the designs          109

77A....... Certain reproductions of an artistic work do not infringe copyright 111

Division 9—Works of joint authorship                                                            113

78.......... References to all of joint authors.................................................... 113

79.......... References to any one or more of joint authors.............................. 113

80.......... References to whichever of joint authors died last......................... 113

81.......... Works of joint authorship published under pseudonyms.............. 113

82.......... Copyright to subsist in joint works without regard to any author who is an unqualified person           114

83.......... Inclusion of joint works in collections for use in places of education 114

Part IV—Copyright in subject‑matter other than works                               115

Division 1—Preliminary                                                                                          115

84.......... Definitions...................................................................................... 115

Division 2—Nature of copyright in subject‑matter other than works 117

85.......... Nature of copyright in sound recordings........................................ 117

86.......... Nature of copyright in cinematograph films................................... 117

87.......... Nature of copyright in television broadcasts and sound broadcasts 118

88.......... Nature of copyright in published editions of works...................... 118

Division 3—Subject‑matter, other than works, in which copyright subsists       119

89.......... Sound recordings in which copyright subsists............................... 119

90.......... Cinematograph films in which copyright subsists......................... 119

91.......... Television broadcasts and sound broadcasts in which copyright subsists              119

92.......... Published editions of works in which copyright subsists.............. 120

Division 4—Duration of copyright in subject‑matter other than works 121

93.......... Duration of copyright in sound recordings..................................... 121

94.......... Duration of copyright in cinematograph films............................... 121

95.......... Duration of copyright in television broadcasts and sound broadcasts 121

96.......... Duration of copyright in published editions of works................... 122

Division 5—Ownership of copyright in subject‑matter other than works            123

Subdivision A—Ownership of copyright in subject‑matter other than works 123

97.......... Ownership of copyright in sound recordings................................. 123

98.......... Ownership of copyright in cinematograph films............................ 123

99.......... Ownership of copyright in television broadcasts and sound broadcasts 124

100........ Ownership of copyright in published editions of works............... 125

Subdivision B—Specific provisions relating to the ownership of copyright in pre‑commencement sound recordings of live performances                                                                       125

100AA.. Application..................................................................................... 125

100AB.. Definitions...................................................................................... 125

100AC.. Application of sections 100AD and 100AE.................................. 125

100AD.. Makers of pre‑commencement sound recordings of live performances.. 126

100AE... Ownership of pre‑commencement copyright in sound recordings of live performances        126

100AF... Former owners may continue to do any act in relation to the copyright                127

100AG.. Actions by new owners of copyright............................................. 128

100AH.. References to the owner of the copyright in a sound recording..... 128

Division 6—Infringement of copyright in subject‑matter other than works        130

100A..... Interpretation.................................................................................. 130

101........ Infringement by doing acts comprised in copyright....................... 130

102........ Infringement by importation for sale or hire.................................. 131

103........ Infringement by sale and other dealings.......................................... 131

103A..... Fair dealing for purpose of criticism or review............................... 132

103AA.. Fair dealing for purpose of parody or satire................................... 132

103B..... Fair dealing for purpose of reporting news.................................... 132

103C..... Fair dealing for purpose of research or study................................. 133

104........ Acts done for purposes of judicial proceeding............................... 133

104A..... Acts done by Parliamentary libraries for members of Parliament.. 134

104B..... Infringing copies made on machines installed in libraries and archives 134

105........ Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast 134

106........ Causing sound recording to be heard at guest house or club........... 135

107........ Making of a copy of the sound recording for purpose of broadcasting.. 135

108........ Copyright in published recording not infringed by public performance if equitable remuneration paid 137

109........ Copyright in published sound recording not infringed by broadcast in certain circumstances                138

109A..... Copying sound recordings for private and domestic use................ 139

110........ Provisions relating to cinematograph films..................................... 140

110AA.. Copying cinematograph film in different format for private use.... 141

110A..... Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives       142

110B..... Copying and communicating sound recordings and cinematograph films for preservation and other purposes     143

110BA.. Making preservation copies of significant recordings and films in key cultural institutions’ collections               145

110C..... Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting            147

111........ Recording broadcasts for replaying at more convenient time......... 147

111A..... Temporary copy made in the course of communication................ 148

111B..... Temporary copy of subject‑matter as part of a technical process of use               149

112........ Reproductions of editions of work................................................. 149

112A..... Importation and sale etc. of books................................................. 150

112AA.. Making preservation copies of significant published editions in key cultural institutions’ collections  153

112B..... Reproduction of writing on approved label for containers for chemical product    154

112C..... Copyright subsisting in accessories etc. to imported articles......... 154

112D..... Import of non‑infringing copy of a sound recording does not infringe copyright in the sound recording               155

112DA.. Importation and sale etc. of copies of electronic literary or music items                156

112E...... Communication by use of certain facilities..................................... 156

Division 7—Miscellaneous                                                                                    158

113........ Copyrights to subsist independently............................................. 158

113A..... Agents may act on behalf of groups of performers........................ 158

113B..... Consent to the use of a sound recording of a live performance...... 158

113C..... Use of published sound recordings when owners cannot be found etc.  159

Part V—Remedies and offences                                                                                160

Division 1—Preliminary                                                                                          160

114........ Interpretation.................................................................................. 160

Division 2—Actions by owner of copyright                                                   161

115........ Actions for infringement................................................................. 161

116........ Rights of owner of copyright in respect of infringing copies......... 163

116AAACompensation for acquisition of property..................................... 164

Division 2AA—Limitation on remedies available against carriage service providers  166

Subdivision A—Preliminary                                                                                 166

116AA.. Purpose of this Division................................................................. 166

116AB.. Definitions...................................................................................... 166

Subdivision B—Relevant activities                                                                      167

116AC.. Category A activity........................................................................ 167

116AD.. Category B activity........................................................................ 167

116AE... Category C activity........................................................................ 167

116AF... Category D activity........................................................................ 167

Subdivision C—Limitations on remedies                                                           168

116AG.. Limitations on remedies.................................................................. 168

Subdivision D—Conditions                                                                                    169

116AH.. Conditions...................................................................................... 169

116AI.... Evidence of compliance with conditions........................................ 173

Subdivision E—Regulations                                                                                  173

116AJ... Regulations..................................................................................... 173

Division 2A—Actions in relation to technological protection measures and electronic rights management information                                                                                           174

Subdivision A—Technological protection measures                                        174

116AK.. Definitions...................................................................................... 174

116AL... Interaction of this Subdivision with Part VAA.............................. 174

116AM. Geographical application................................................................ 174

116AN.. Circumventing an access control technological protection measure 174

116AO.. Manufacturing etc. a circumvention device for a technological protection measure                178

116AP... Providing etc. a circumvention service for a technological protection measure       181

116AQ.. Remedies in actions under this Subdivision.................................... 184

Subdivision B—Electronic rights management information                          185

116B..... Removal or alteration of electronic rights management information 185

116C..... Distribution to the public etc. of works whose electronic rights management information has been removed or altered........................................................................................................ 185

116CA.. Distribution and importation of electronic rights management information that has been removed or altered       186

116CB... Exception relating to national security and law enforcement......... 187

116D..... Remedies in actions under this Subdivision.................................... 188

Division 3—Proceedings where copyright is subject to exclusive licence          189

117........ Interpretation.................................................................................. 189

118........ Application..................................................................................... 189

119........ Rights of exclusive licensee............................................................. 189

120........ Joinder of owner or exclusive licensee as a party........................... 190

121........ Defences available against exclusive licensee.................................. 190

122........ Assessment of damages where exclusive licence granted................ 190

123........ Apportionment of profits between owner and exclusive licensee.. 191

124........ Separate actions in relation to the same infringement..................... 191

125........ Liability for costs........................................................................... 192

Division 4—Proof of facts in civil actions                                                       193

126........ Presumptions as to subsistence and ownership of copyright........ 193

126A..... Presumptions relating to subsistence of copyright........................ 193

126B..... Presumptions relating to ownership of copyright.......................... 194

127........ Presumptions in relation to authorship of work............................ 195

128........ Presumptions in relation to publisher of work............................... 196

129........ Presumptions where author has died.............................................. 197

129A..... Presumptions relating to computer programs................................ 197

130........ Presumptions relating to sound recordings..................................... 198

130A..... Acts relating to imported copies of sound recordings.................... 199

130B..... Acts relating to imported copies of computer programs................ 199

130C..... Acts relating to imported copies of electronic literary or music items 200

131........ Presumptions relating to films........................................................ 200

Division 4A—Jurisdiction and appeals                                                           202

131A..... Exercise of jurisdiction.................................................................... 202

131B..... Appeals.......................................................................................... 202

131C..... Jurisdiction of Federal Court of Australia...................................... 202

131D..... Jurisdiction of Federal Magistrates Court...................................... 202

Division 5—Offences and summary proceedings                                      203

Subdivision A—Preliminary                                                                                 203

132AA.. Definitions...................................................................................... 203

132AB.. Geographical application................................................................ 203

Subdivision B—Substantial infringement on a commercial scale                 204

132AC.. Commercial‑scale infringement prejudicing copyright owner......... 204

Subdivision C—Infringing copies                                                                        206

132AD.. Making infringing copy commercially............................................ 206

132AE... Selling or hiring out infringing copy................................................ 207

132AF... Offering infringing copy for sale or hire......................................... 209

132AG.. Exhibiting infringing copy in public commercially......................... 211

132AH.. Importing infringing copy commercially........................................ 213

132AI.... Distributing infringing copy........................................................... 215

132AJ... Possessing infringing copy for commerce....................................... 217

132AK.. Aggravated offence—work etc. converted to digital form.............. 219

132AL... Making or possessing device for making infringing copy............... 220

132AM. Advertising supply of infringing copy........................................... 222

Subdivision D—Airing of works, sound recordings and films                       222

132AN.. Causing work to be performed publicly......................................... 222

132AO.. Causing recording or film to be heard or seen in public.................. 223

Subdivision E—Technological protection measures                                        224

132APA Definitions...................................................................................... 224

132APB Interaction of this Subdivision with Part VAA.............................. 225

132APC Circumventing an access control technological protection measure 225

132APD Manufacturing etc. a circumvention device for a technological protection measure                229

132APE Providing etc. a circumvention service for a technological protection measure       233

Subdivision F—Electronic rights management information                           237

132AQ.. Removing or altering electronic rights management information.... 237

132AR.. Distributing, importing or communicating copies after removal or alteration of electronic rights management information..................................................................................... 239

132AS... Distributing or importing electronic rights management information 241

132AT.. Defences......................................................................................... 244

Subdivision G—Evidence                                                                                        245

132AU.. Prosecution to prove profit............................................................ 245

132A..... Presumptions in relation to subsistence and ownership of copyright 245

132AAAPresumptions relating to computer programs................................ 246

132B..... Presumptions relating to sound recordings..................................... 247

132C..... Presumptions relating to films........................................................ 248

Subdivision H—Extra court orders                                                                      249

133........ Destruction or delivery up of infringing copies etc........................ 249

Subdivision I—Procedure and jurisdiction                                                        250

133A..... Courts in which offences may be prosecuted................................. 250

133B..... Infringement notices....................................................................... 250

Division 6—Miscellaneous                                                                                    251

134........ Limitation of actions in respect of infringement of copyright........ 251

134A..... Affidavit evidence........................................................................... 251

Division 7—Seizure of imported copies of copyright material            253

134B..... Interpretation.................................................................................. 253

135........ Restriction of importation of copies of works etc......................... 254

135AA.. Decision not to seize unless expenses are covered......................... 256

135AB.. Secure storage of seized copies....................................................... 256

135AC.. Notice of seizure............................................................................. 256

135AD.. Inspection, release etc. of seized copies......................................... 258

135AE... Forfeiture of seized copies by consent........................................... 259

135AF... Compulsory release of seized copies to the importer.................... 259

135AG.. Provision relating to actions for infringement of copyright............ 260

135AH.. Retention of control of seized copies............................................. 261

135AI.... Disposal of seized copies ordered to be forfeited.......................... 261

135AJ... Failure to meet Commonwealth’s expenses of seizure................... 261

135AK.. Immunity of the Commonwealth................................................... 262

Part VAA—Unauthorised access to encoded broadcasts                            263

Division 1—Preliminary                                                                                          263

135AL... Definitions...................................................................................... 263

135AM. Counterclaim................................................................................... 264

135AN.. This Part does not apply to law enforcement activity etc............. 264

Division 2—Actions                                                                                                   265

Subdivision A—Actions relating to unauthorised decoders                           265

135AOAMaking or dealing with unauthorised decoder................................ 265

Subdivision B—Actions relating to decoders for subscription broadcasts  266

135AOBMaking decoder available online..................................................... 266

Subdivision C—Actions for unauthorised access to encoded broadcasts     267

135AOCCausing unauthorised access........................................................... 267

135AODUnauthorised commercial use of subscription broadcast............... 268

Subdivision D—Court orders                                                                                269

135AOE Relief............................................................................................... 269

135AOF Destruction of decoder................................................................... 269

Subdivision E—Jurisdiction and appeals                                                            269

135AP... Exercise of jurisdiction.................................................................... 269

135AQ.. Appeals.......................................................................................... 269

135AR.. Jurisdiction of Federal Court of Australia...................................... 270

135AS... Jurisdiction of Federal Magistrates Court...................................... 270

Division 3—Offences                                                                                                271

Subdivision A—Offences                                                                                       271

135ASA Making unauthorised decoder......................................................... 271

135ASB Selling or hiring unauthorised decoder............................................ 271

135ASC Offering unauthorised decoder for sale or hire................................ 271

135ASD Commercially exhibiting unauthorised decoder in public............... 272

135ASE. Importing unauthorised decoder commercially............................... 273

135ASF. Distributing unauthorised decoder.................................................. 273

135ASG Making unauthorised decoder available online............................... 274

135ASH Making decoder available online for subscription broadcast.......... 274

135ASI.. Unauthorised access to subscription broadcast etc........................ 275

135ASJ. Causing unauthorised access to encoded broadcast etc.................. 276

Subdivision B—Prosecutions                                                                               277

135ATA....................................... Courts in which offences may be prosecuted  277

Subdivision C—Further orders by court                                                            278

135AU.. Destruction etc. of unauthorised decoders..................................... 278

Part VA—Copying and communication of broadcasts by educational and other institutions          279

Division 1—Preliminary                                                                                          279

135A..... Interpretation.................................................................................. 279

135B..... Copies and communications of broadcasts..................................... 280

135C..... Extended operation of this Part...................................................... 280

135D..... Operation of collecting society rules.............................................. 281

Division 2—Copying and communication of broadcasts                        282

135E...... Copying and communication of broadcasts by educational institutions etc.           282

135F...... Making and communication of preview copies.............................. 283

135G..... Remuneration notices..................................................................... 285

135H..... Records notices............................................................................... 286

135J...... Sampling notices............................................................................. 287

135JAA Determination of questions relating to this Division or the collecting society’s rules            289

135JA... Agreed notice.................................................................................. 290

135K..... Marking and record keeping requirements...................................... 292

135KA.. Notice requirements in respect of communications........................ 293

135L...... Inspection of records etc................................................................ 294

135M.... Revocation of remuneration notice................................................. 295

135N..... Request for payment of equitable remuneration............................ 295

Division 3—The collecting society                                                                    296

135P...... Declaration of the collecting society............................................... 296

135Q..... Revocation of declaration............................................................... 297

135R..... Annual report and accounts............................................................ 298

135S...... Amendment of rules....................................................................... 298

135SA... Applying to Tribunal for review of distribution arrangement........ 299

Division 4—Interim copying                                                                                 300

135T..... Appointment of notice holder........................................................ 300

135U..... Copying before declaration of collecting society............................ 300

135V..... Preview copies................................................................................ 301

135W.... Notices by administering bodies..................................................... 301

135X..... Marking and record keeping requirements...................................... 302

135Y..... Effect of declaration of collecting society....................................... 302

Division 5—Miscellaneous                                                                                    303

135Z..... Relevant right holder may authorise copying etc........................... 303

135ZA.. Copyright not to vest in copier...................................................... 303

Part VB—Reproducing and communicating works etc. by educational and other institutions       304

Division 1—Preliminary                                                                                          304

135ZB... Interpretation.................................................................................. 304

135ZC... Eligible items and photographic versions....................................... 305

135ZE... Part does not apply to computer programs................................... 306

135ZF... Operation of collecting society rules.............................................. 306

135ZFA Licensed communications............................................................... 306

Division 2—Reproduction by educational institutions of works that are in hardcopy form        307

135ZGA........................................................................ Application of Division  307

135ZG.. Multiple reproduction of insubstantial parts of works that are in hardcopy form 307

135ZH.. Copying of printed published editions by educational institutions 308

135ZJ.... Multiple reproduction of printed periodical articles by educational institutions    308

135ZK.. Multiple reproduction of works published in printed anthologies 309

135ZL... Multiple reproduction of works that are in hardcopy form by educational institutions        309

135ZM. Application of Division to certain illustrations that are in hardcopy form             310

Division 2A—Reproduction and communication of works that are in electronic form  312

135ZMAApplication of Division................................................................. 312

135ZMBMultiple reproduction and communication of insubstantial
parts of works that are in electronic form...................................... 312

135ZMCMultiple reproduction and communication of periodical
articles that are in electronic form by education institutions.......... 314

135ZMDMultiple reproduction and communication of works that are
in electronic form by educational institutions................................ 314

135ZMDAReproduction and communication of works from electronic
anthologies by educational institutions.......................................... 315

135ZME....... Application of Division to certain illustrations in electronic form  316

Division 3—Reproduction and communication of works by institutions assisting persons with a print disability                                                                                                 318

135ZN.. Copying published editions by institutions assisting persons with a print disability            318

135ZP... Multiple reproduction and communication of works by institutions assisting persons with a print disability     318

135ZQ.. Making of relevant reproductions and relevant communications by institutions assisting persons with a print disability........................................................................................................ 320

Division 4—Reproduction and communication of works etc. by institutions assisting persons with an intellectual disability                                                                       323

135ZR... Copying of published editions by institutions assisting persons with an intellectual disability            323

135ZS... Copying and communication of eligible items by institutions assisting persons with an intellectual disability     323

135ZT... Making of copies etc. for use in making copies or communications for a person with an intellectual disability    324

Division 5—Equitable remuneration                                                                326

135ZU.. Remuneration notices..................................................................... 326

135ZV... Records notices............................................................................... 326

135ZW.. Sampling notices............................................................................. 327

135ZWAADetermination of questions relating to this Part or a
collecting society’s rules................................................................. 328

135ZWAElectronic use notices..................................................................... 329

135ZX.. Records notices and sampling notices: marking and record‑keeping requirements  331

135ZXA.................................... Electronic use notices: notice requirements etc.  332

135ZY... Inspection of records etc................................................................ 333

135ZZ... Revocation of remuneration notice................................................. 334

135ZZA Request for payment of equitable remuneration............................ 334

Division 6—Collecting societies                                                                        335

135ZZB Collecting societies......................................................................... 335

135ZZC Revocation of declaration............................................................... 337

135ZZD Annual report and accounts............................................................ 337

135ZZE Amendment of rules....................................................................... 338

135ZZEAApplying to Tribunal for review of distribution arrangement...... 338

Division 7—Miscellaneous                                                                                    339

135ZZF Rights of copyright owners............................................................ 339

135ZZG Copyright not to vest in copier...................................................... 339

135ZZH Unauthorised use of copies............................................................ 339

Part VC—Retransmission of free‑to‑air broadcasts                                       341

Division 1—Preliminary                                                                                          341

135ZZI. Definitions...................................................................................... 341

135ZZJ. Operation of collecting society rules.............................................. 342

135ZZJAApplication of Part........................................................................ 342

Division 2—Retransmission of free‑to‑air broadcasts                            343

135ZZK Retransmission of free‑to‑air broadcasts........................................ 343

135ZZL Remuneration notices..................................................................... 343

135ZZM....................................................... Amount of equitable remuneration  344

135ZZN Record system................................................................................ 344

135ZZP Inspection of records etc................................................................ 345

135ZZQ Identity cards.................................................................................. 346

135ZZR Revocation of remuneration notice................................................. 346

135ZZS. Request for payment of equitable remuneration............................ 347

Division 3—Collecting societies                                                                        348

135ZZT Collecting societies......................................................................... 348

135ZZU Revocation of declaration............................................................... 350

135ZZV Annual report and accounts............................................................ 350

135ZZW............................................................................. Amendment of rules  351

135ZZWAApplying to Tribunal for review of distribution arrangement..... 351

Division 4—Interim retransmissions                                                               352

135ZZX Appointment of notice holder........................................................ 352

135ZZY Retransmitting before declaration of collecting society.................. 352

135ZZZ Notices by retransmitters............................................................... 352

135ZZZARecord keeping requirements........................................................ 353

135ZZZBEffect of declaration of collecting society..................................... 353

Division 5—Miscellaneous                                                                                    355

135ZZZCRelevant copyright owner may authorise retransmitting.............. 355

135ZZZDCopyright not to vest under this Part.......................................... 355

135ZZZELicence to retransmit does not authorise copyright
infringements.................................................................................. 355

Part VD—Re‑broadcasts by satellite BSA licensees                                     356

Division 1—Preliminary                                                                                          356

135ZZZFDefinitions..................................................................................... 356

135ZZZGEligible program and original broadcaster..................................... 357

135ZZZHOperation of collecting society rules............................................ 357

Division 2—Re‑broadcasts by satellite BSA licensees                          358

135ZZZI............................................. Re‑broadcasts by satellite BSA licensees  358

135ZZZJRemuneration notices..................................................................... 360

135ZZZKAmount of equitable remuneration............................................... 361

135ZZZLRecord system............................................................................... 361

135ZZZMRevocation of remuneration notice.............................................. 362

135ZZZNRequest for payment of equitable remuneration.......................... 362

Division 3—Collecting societies                                                                        363

135ZZZOCollecting societies....................................................................... 363

135ZZZPRevocation of declaration.............................................................. 365

135ZZZQAnnual report and accounts.......................................................... 365

135ZZZRAmendment of rules...................................................................... 366

135ZZZSApplying to Tribunal for review of distribution arrangement....... 367

Division 4—Interim re‑broadcasts                                                                    368

135ZZZTAppointment of notice holder...................................................... 368

135ZZZURe‑broadcast before declaration of collecting society................... 368

135ZZZVNotices by satellite BSA licensees................................................ 368

135ZZZWRecord keeping requirements....................................................... 369

135ZZZXEffect of declaration of collecting society..................................... 369

Division 5—Miscellaneous                                                                                    371

135ZZZYRelevant copyright owner may authorise re‑broadcast................ 371

135ZZZZCopyright not to vest under this Part........................................... 371

135ZZZZALicence to re‑broadcast does not authorise copyright
infringements.................................................................................. 371

Part VI—Copyright Tribunal of Australia                                                             372

Division 1—Preliminary                                                                                          372

136........ Interpretation.................................................................................. 372

137........ Cases to which licence schemes apply........................................... 374

Division 2—Constitution of the Tribunal                                                       375

138........ Constitution of Tribunal................................................................. 375

139........ Appointment of members of Tribunal........................................... 375

140........ Qualifications of members.............................................................. 375

141........ Tenure of office.............................................................................. 376

141A..... Seniority of Deputy Presidents...................................................... 376

142........ Acting President............................................................................. 376

143........ Remuneration and allowances......................................................... 377

144........ Oath or affirmation of office........................................................... 377

144A..... Disclosure of interests by members............................................... 377

144B..... Removal from office for failure to disclose interest........................ 378

145........ Resignation..................................................................................... 378

146........ Sittings of the Tribunal................................................................... 378

147........ President to arrange business of Tribunal....................................... 379

Division 3—Applications and references to the Tribunal                     380

Subdivision A—Preliminary                                                                                 380

148........ Interpretation.................................................................................. 380

Subdivision B—Applications relating to Parts III and IV                                380

149........ Applications to Tribunal for determination of remuneration payable for making recording or film of a work       380

149A..... Applications to Tribunal under section 47A.................................. 380

150........ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of a copy of the sound recording........................................................... 381

151........ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording....................................................... 381

152........ Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings     382

152A..... Applications to Tribunal for determination of amount of royalty payable for recording musical works               388

152B..... Applications to Tribunal for determination of manner of paying royalty              389

153........ Applications to Tribunal for apportionment of royalty in respect of a record       390

Subdivision C—Applications and references relating to Part VA                 390

153A..... Applications to Tribunal under section 135H, subsection 135J(1) or subsection 135JA(1)  390

153B..... Applications to Tribunal under subsection 135J(3)....................... 391

153BAAAApplication to the Tribunal under subsection 135JAA(2).......... 392

153BA.. Application to the Tribunal under subsection 135JA(3)............... 392

153BAAApplication to the Tribunal under subsection 135K(2A).............. 392

153BAB References relating to declaration of collecting society.................. 393

153BAC References relating to revocation of declaration of collecting society 394

153BADReview of collecting society’s distribution arrangement................ 394

Subdivision D—Applications and references relating to Part VB                 395

153BB... Application to the Tribunal under subsection 135ZME(3)........... 395

153C..... Applications to the Tribunal under section 135ZV or subsection 135ZW(1) or 135ZWA(1)               396

153D..... Applications to Tribunal under subsection 135ZW(3).................. 396

153DAAApplication to the Tribunal under subsection 135ZWAA(2)........ 397

153DA.. Applications to the Tribunal under subsection 135ZWA(2)......... 397

153DB.. Application to the Tribunal under subsection 135ZX(2A)........... 398

153DC.. References relating to declaration of collecting society.................. 398

153DD.. References relating to revocation of declaration of collecting society 399

153DE... Review of collecting society’s distribution arrangement................ 400

Subdivision E—Applications relating to Part VII                                              400

153E...... Applications to Tribunal under subsection 183(5)........................ 400

153F...... Applications to Tribunal to declare collecting society for government copies        401

153G..... Applications to Tribunal to revoke a declaration of a collecting society 402

153H..... Time limit for deciding applications under section 153F or 153G. 404

153J...... Amendment and revocation of a declaration on the declaration of another collecting society 404

153K..... Applications to Tribunal for method of working out payment for government copies          405

153KA.. Review of collecting society’s distribution arrangement................ 405

Subdivision F—Applications relating to declarations of institutions            406

153L...... Applications to Tribunal for review of declarations of certain educational institutions         406

Subdivision G—Applications and references relating to Part VC                 407

153M.... Applications to the Tribunal under subsection 135ZZM(1)......... 407

153N..... Applications to Tribunal under subsection 135ZZN(3)................ 408

153P...... References relating to declaration of collecting society.................. 408

153Q..... References relating to revocation of declaration of collecting society 409

153R..... Review of collecting society’s distribution arrangement................ 409

Subdivision GA—Applications and references relating to Part VD              410

153RA.. Application to the Tribunal to determine amount payable to owner of copyright in a broadcast          410

153S...... Applications to the Tribunal under paragraph 135ZZZK(1)(b)—equitable remuneration     411

153T..... Applications to Tribunal under paragraph 135ZZZL(3)(b)—record system         412

153U..... References relating to declaration of collecting society.................. 412

153V..... References relating to revocation of declaration of collecting society 413

153W.... Review of collecting society’s distribution arrangement................ 414

Subdivision H—References and applications relating to licences and licence schemes   414

154........ Reference of proposed licence schemes to Tribunal....................... 414

155........ Reference of existing licence schemes to Tribunal.......................... 416

156........ Further reference of licence schemes to Tribunal........................... 418

157........ Application to Tribunal in relation to licences............................... 419

157A..... Tribunal must have regard to ACCC guidelines on request............ 422

157B..... Tribunal may make ACCC party to reference or application........ 423

158........ Effect of licence scheme being continued in operation pending order of the Tribunal             423

159........ Effect of order of Tribunal in relation to licences........................... 424

Subdivision I—General provisions                                                                       426

160........ Interim orders................................................................................. 426

161........ Reference of questions of law to Federal Court of Australia......... 427

162........ Agreements or awards not affected................................................ 428

Division 4—Procedure and evidence                                                               429

163........ Proceedings to be in public except in special circumstances.......... 429

163A..... Application may be made to Tribunal by the agent of the copyright owner          429

164........ Procedure........................................................................................ 429

165........ Mistakes or errors in orders of the Tribunal.................................. 430

166........ Regulations as to procedure............................................................ 430

167........ Power to take evidence on oath...................................................... 431

168........ Evidence in form of written statement........................................... 431

169........ Representation................................................................................ 431

Division 4A—Alternative dispute resolution processes                       432

169A..... Referral of proceeding for alternative dispute resolution process.. 432

169B..... Directions by President or Deputy President................................ 433

169C..... Agreement about the terms of a decision etc.................................. 433

169D..... Evidence not admissible.................................................................. 434

169E...... Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal           435

169F...... Participation by telephone etc........................................................ 435

169G..... Engagement of persons to conduct alternative dispute resolution processes          435

Division 5—Miscellaneous                                                                                    437

170........ Registrar.......................................................................................... 437

170A..... Other staff of the Tribunal............................................................. 438

171........ Protecting persons connected with Tribunal proceedings.............. 438

172........ Offences by witnesses.................................................................... 439

173........ Offences relating to the Tribunal.................................................... 440

174........ Costs of proceedings...................................................................... 442

175........ Proof of orders of Tribunal............................................................. 442

Part VII—The Crown                                                                                                        443

Division 1—Crown copyright                                                                               443

176........ Crown copyright in original works made under direction of Crown 443

177........ Crown copyright in original works first published in Australia under direction of Crown     443

178........ Crown copyright in recordings and films made under direction of Crown              443

179........ Provisions relating to ownership of copyright may be modified by agreement      444

180........ Duration of Crown copyright in original works............................. 444

181........ Duration of Crown copyright in recordings and films.................... 445

182........ Application of Parts III and IV to copyright subsisting by virtue of this Part       445

182A..... Copyright in statutory instruments and judgments etc.................. 445

Division 2—Use of copyright material for the Crown                             447

182B..... Definitions...................................................................................... 447

182C..... Relevant collecting society............................................................. 447

183........ Use of copyright material for the services of the Crown............... 448

183A..... Special arrangements for copying for services of government........ 449

183B..... Payment and recovery of equitable remuneration payable for government copies 450

183C..... Powers of collecting society to carry out sampling........................ 451

183D..... Annual report and accounts of collecting society........................... 452

183E...... Alteration of rules of collecting society.......................................... 453

183F...... Applying to Tribunal for review of distribution arrangement........ 453

Part VIII—Extension or restriction of operation of Act                               454

184........ Application of Act to countries other than Australia.................... 454

185........ Denial of copyright to citizens of countries not giving adequate protection to Australian works          456

186........ Application of Act to international organizations.......................... 457

187........ Original works made or first published by international organizations 457

188........ Subject‑matter, other than original works, made or first published by international organizations        458

Part IX—Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films                                                                                       460

Division 1—Preliminary                                                                                          460

189........ Definitions...................................................................................... 460

190........ Moral rights conferred on individuals............................................. 464

191........ Director, producer and screenwriter of cinematograph film........... 464

191A..... Staging a performance..................................................................... 465

191B..... Conductor to be treated as a performer.......................................... 465

192........ Rights to be additional to other rights............................................ 466

Division 2—Right of attribution of authorship                                            467

193........ Author’s right of attribution of authorship.................................... 467

194........ Acts giving rise to right of attribution of authorship...................... 467

195........ Nature of the identification of author............................................. 468

195AA.. Identification of author to be clear and reasonably prominent....... 468

195AB.. What is a reasonably prominent identification............................... 468

Division 2A—Right of attribution of performership                                 469

195ABAPerformer’s right of attribution of performership.......................... 469

195ABB Acts giving rise to right of attribution of performership................ 469

195ABC Nature of the identification of performer....................................... 469

195ABDIdentification of performer to be clear and reasonably
prominent or audible....................................................................... 470

195ABE What is a reasonably prominent identification............................... 470

Division 3—Right not to have authorship of a work falsely attributed   471

195AC.. Author’s right not to have authorship falsely attributed............... 471

195AD.. Acts of false attribution of authorship of a literary, dramatic or musical work      471

195AE... Acts of false attribution of authorship of artistic work................. 472

195AF... Acts of false attribution of authorship of cinematograph film....... 472

195AG.. Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work                473

195AH.. Act of false attribution of authorship of altered cinematograph film 473

Division 3A—Right not to have performership falsely attributed    474

195AHAPerformer’s right not to have performership falsely attributed..... 474

195AHBActs of false attribution of performership...................................... 474

195AHCAct of false attribution of performership of altered recorded
performance.................................................................................... 476

Division 4—Right of integrity of authorship of a work                           478

195AI.... Author’s right of integrity of authorship....................................... 478

195AJ... Derogatory treatment of literary, dramatic or musical work.......... 478

195AK.. Derogatory treatment of artistic work............................................ 478

195AL... Derogatory treatment of cinematograph film................................. 479

Division 4A—Right of integrity of performership                                     480

195ALA Performer’s right of integrity of performership............................. 480

195ALB Derogatory treatment of performance............................................ 480

Division 5—Duration and exercise of moral rights                                  481

Subdivision A—Duration and exercise of moral rights of authors                481

195AM. Duration of author’s moral rights................................................... 481

195AN.. Exercise of author’s moral rights.................................................... 481

Subdivision B—Duration and exercise of moral rights of performers         482

195ANADuration of performer’s moral rights for recorded
performances.................................................................................. 482

195ANBExercise of performer’s moral rights............................................... 482

Division 6—Infringement of moral rights                                                      484

Subdivision A—Infringement of moral rights of authors                                484

195AO.. Infringement of right of attribution of authorship.......................... 484

195AP... Infringement of right not to have authorship falsely attributed..... 484

195AQ.. Infringement of right of integrity of authorship............................. 484

195AR.. No infringement of right of attribution of authorship if it was reasonable not to identify the author    485

195AS... No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable          487

195AT.. Certain treatment of works not to constitute an infringement of the author’s right of integrity of authorship      488

195AU.. Infringement by importation for sale or other dealing.................... 492

195AV.. Infringement by sale and other dealings.......................................... 492

195AVAMatters to be taken into account.................................................... 492

195AVBCommunication by use of certain facilities..................................... 493

195AW. Author’s consent to act or omission—films or works in films...... 493

195AWAAuthor’s consent to act or omission—work that is not a film
or included in a film........................................................................ 494

195AWBConsent invalidated by duress or false or misleading
statements....................................................................................... 495

195AX.. Acts or omissions outside Australia............................................... 495

Subdivision B—Infringement of moral rights of performers                         495

195AXAInfringement of right of attribution of performership.................... 495

195AXBInfringement of right not to have performership falsely
attributed........................................................................................ 496

195AXCInfringement of right of integrity of performership........................ 496

195AXDNo infringement of right of attribution of performership if it
was reasonable not to identify the performer................................. 496

195AXE No infringement of right of integrity of performership if derogatory treatment or other action was reasonable    497

195AXF Infringement by importation for sale or other dealing.................... 498

195AXGInfringement by sale and other dealings.......................................... 499

195AXHMatters to be taken into account.................................................... 499

195AXI. Communication by use of certain facilities..................................... 499

195AXJ Performer’s consent to act or omission.......................................... 500

195AXKConsent invalidated by duress or false or misleading
statements....................................................................................... 500

195AXL Acts or omissions outside Australia............................................... 501

Division 7—Remedies for infringements of moral rights                      502

Subdivision A—Remedies for infringement of moral rights of authors       502

195AY.. Definition etc.................................................................................. 502

195AZ.. Actions for infringement of author’s moral rights.......................... 502

195AZA............................ Remedies for infringements of author’s moral rights  502

195AZD......................................... Presumption as to subsistence of copyright  504

195AZE Presumption as to subsistence of author’s moral rights................. 504

195AZF Presumptions in relation to authorship of work............................ 505

195AZG Other presumptions in relation to literary, dramatic, musical or artistic work        505

Subdivision B—Remedies for infringement of moral rights of performers 505

195AZGADefinition etc............................................................................... 505

195AZGBActions for infringement of performer’s moral rights.................. 505

195AZGCRemedies for infringements of performer’s moral rights.............. 506

195AZGDPresumption as to subsistence of copyright................................ 507

195AZGEPresumption as to subsistence of performer’s moral rights......... 507

195AZGFPresumptions in relation to performership.................................. 507

Subdivision C—Miscellaneous                                                                             508

195AZGGSaving of other rights and remedies.............................................. 508

195AZGHJurisdiction of courts................................................................... 508

Division 8—Miscellaneous                                                                                    509

Subdivision A—Miscellaneous provisions about moral rights of authors   509

195AZH....................................................................................... Parts of works  509

195AZI. Works of joint authorship.............................................................. 509

195AZJ. Cinematograph films that have more than one principal director... 509

195AZK....... Cinematograph films that have more than one principal producer  510

195AZL Cinematograph films that have more than one principal screenwriter 510

195AZMApplication—right of attribution of authorship............................ 511

195AZN.............. Application—right not to have authorship falsely attributed  511

195AZO...................................... Application—right of integrity of authorship  512

Subdivision B—Miscellaneous provisions about moral rights of performers 512

195AZP Parts of performances..................................................................... 512

195AZQ................................ Performances that have more than one performer  512

195AZR Application..................................................................................... 513

Part X—Miscellaneous                                                                                                    514

195A..... Interpretation.................................................................................. 514

195B..... Review of certain decisions............................................................ 515

196........ Assignments and licences in respect of copyright.......................... 516

197........ Prospective ownership of copyright.............................................. 517

198........ Copyright to pass under will with unpublished work................... 517

198A..... Non‑infringement of trade mark in relation to the importation of copyright material             517

199........ Reception of broadcasts................................................................. 518

200........ Use of works and broadcasts for educational purposes................. 519

200AAAProxy web caching by educational institutions.............................. 520

200AA.. Use of broadcasts by institutions assisting persons with an intellectual disability                521

200AB.. Use of works and other subject‑matter for certain purposes......... 521

201........ Delivery of library material to the National Library...................... 524

202........ Groundless threats of legal proceedings in relation to copyright infringement        525

202A..... Groundless threats of legal proceedings in relation to technological protection measures      526

203........ Limitation on power of courts to grant relief in proceedings under this Act           527

203A..... Offence—failing to keep declarations relating to copying in library or archives     527

203D..... Offence—not arranging declarations chronologically..................... 528

203E...... Inspection of records and declarations retained by libraries, archives or institutions             529

203F...... False and misleading declarations................................................... 531

203G..... Offence—disposing of or destroying certain declarations.............. 531

203H..... Notation of certain copies etc......................................................... 532

Part XI—Transitional                                                                                                       535

Division 1—Preliminary                                                                                          535

204........ Interpretation.................................................................................. 535

205........ References to making of works, recordings and films..................... 536

206........ References in other laws or instruments to copyright.................... 536

207........ Application..................................................................................... 537

208........ Authorship of photographs............................................................ 537

209........ Publication...................................................................................... 537

Division 2—Original works                                                                                   539

210........ Expired copyright not to revive...................................................... 539

211........ Original works in which copyright subsists................................... 539

213........ Ownership of copyright................................................................. 539

214........ Infringement by importation, sale and other dealings..................... 541

215........ Recording of musical works............................................................ 541

216........ Publication of artistic works........................................................... 541

217........ Reconstruction of buildings............................................................ 542

218........ Industrial designs............................................................................ 542

219........ Reproduction of work upon payment of royalties........................ 542

Division 3—Subject‑matter other than works                                             545

220........ Sound recordings............................................................................. 545

221........ Cinematograph films....................................................................... 545

222........ Application of Act to dramatic works and photographs comprised in cinematograph films  545

223........ Television broadcasts and sound broadcasts.................................. 545

224........ Published editions of works........................................................... 546

225........ Infringement by importation, sale and other dealings..................... 546

Division 4—Miscellaneous                                                                                    547

226........ Actions for infringement................................................................. 547

227........ Infringing copies............................................................................. 547

228........ Actions where copyright subject to exclusive licence.................... 547

229........ Offences and summary proceedings............................................... 547

230........ Limitation of actions....................................................................... 547

231........ Restriction of importation of printed copies of works.................. 548

232........ References and applications to Tribunal in relation to licence schemes  548

233........ Duration of Crown copyright in photographs............................... 548

234........ Duration of Crown copyright in recordings................................... 548

235........ Crown copyright in films............................................................... 549

236........ Works made or published by international organizations.............. 549

237........ Subject‑matter, other than original works, made or published by international organizations                549

239........ Assignments and licences............................................................... 549

240........ Bequests......................................................................................... 551

241........ Delivery of library material to National Library............................ 552

242........ Groundless threats of legal proceedings......................................... 552

Division 5—Works made before 1 July, 1912                                             553

243........ Interpretation.................................................................................. 553

244........ Application..................................................................................... 553

245........ Rights conferred by Copyright Act, 1911...................................... 553

246........ Performing rights............................................................................ 553

247........ Contributions to periodicals........................................................... 554

248........ Assignments and licences............................................................... 554

Part XIA—Performers’ protection                                                                            556

Division 1—Preliminary                                                                                          556

248A..... Interpretation.................................................................................. 556

248B..... Educational purposes..................................................................... 561

248C..... Exempt recordings cease to be exempt recordings in certain circumstances            561

248CA.. Protection period............................................................................ 562

248D..... Private and domestic use................................................................ 562

248F...... Application..................................................................................... 563

Division 2—Actions by performers                                                                   564

248G..... What constitutes unauthorised use................................................. 564

248H..... Copying sound recordings for broadcasting................................... 565

248J...... Actions for unauthorised use.......................................................... 566

248K..... Exercise of jurisdiction.................................................................... 567

248L...... Appeals.......................................................................................... 568

248M.... Jurisdiction of Federal Court.......................................................... 568

248MA. Jurisdiction of Federal Magistrates Court...................................... 568

248N..... Right to bring an action not assignable........................................... 568

Division 3—Offences                                                                                                569

Subdivision A—General offences                                                                         569

248P...... Scope of this Subdivision............................................................... 569

248PA... Unauthorised direct recording during protection period................. 569

248PB... Unauthorised indirect recording during protection period.............. 570

248PC... Unauthorised communication to public during 20‑year protection period              571

248PD... Playing unauthorised recording publicly during 20‑year protection period            572

248PE... Possessing equipment to make or copy unauthorised recording.... 573

248PF... Copying unauthorised recording..................................................... 575

248PG... Unauthorised copying of exempt recording.................................... 576

248PH... Unauthorised copying of authorised sound recording.................... 577

248PI.... Selling etc. unauthorised recording.................................................. 579

248PJ.... Distributing unauthorised recording............................................... 580

248PK... Commercial possession or import of unauthorised recording........ 582

248PL... Exhibiting unauthorised recording in public by way of trade......... 584

248PM.. Importing unauthorised recording for exhibition by way of trade.. 585

Subdivision B—Acts relating to sound recordings of performances given before 1 July 1995       586

248QA.. Scope of this Subdivision............................................................... 586

248QB.. Possessing equipment for copying unauthorised sound recording. 587

248QC.. Copying unauthorised sound recording.......................................... 588

248QD.. Selling etc. unauthorised sound recording....................................... 589

248QE... Distributing unauthorised sound recording..................................... 590

248QF... Commercial possession or import of unauthorised sound recording 592

248QG.. Exhibiting unauthorised sound recording in public by way of trade 593

248QH.. Importing unauthorised sound recording for exhibition by way of trade                595

Subdivision C—Prosecution and infringement notices                                   596

248R..... Courts in which offences may be prosecuted................................. 596

248S...... Protection against multiple proceedings for same act..................... 596

248SA... Infringement notices....................................................................... 596

Subdivision D—Destruction or delivery up of unauthorised recordings      597

248T..... Destruction or delivery up of unauthorised recordings.................. 597

Division 4—Extension of protection to foreign countries                    598

248U..... Application to foreign countries..................................................... 598

248V..... Denial of protection to citizens of countries not giving adequate protection to Australian performances             599

Part XII—Regulations                                                                                                     600

249........ Regulations..................................................................................... 600

The Schedule                                                                                                                          602

Notes                                                                                                                                          603


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:

access control technological protection measure means a device, product, technology or component (including a computer program) that:

                     (a)  is used in Australia or a qualifying country:

                              (i)  by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and

                             (ii)  in connection with the exercise of the copyright; and

                     (b)  in the normal course of its operation, controls access to the work or other subject‑matter;

but does not include such a device, product, technology or component to the extent that it:

                     (c)  if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)—controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or

                     (d)  if the work is a computer program that is embodied in a machine or device—restricts the use of goods (other than the work) or services in relation to the machine or device.

For the purposes of this definition, computer program has the same meaning as in section 47AB.

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

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

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

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

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

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

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

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

adaptation means:

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

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

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

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

                              (i)  a translation of the work; or

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

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

alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:

                     (a)  conferencing; and

                     (b)  mediation; and

                     (c)  neutral evaluation; and

                     (d)  case appraisal; and

                     (e)  conciliation; and

                      (f)  procedures or services specified in the regulations;

but does not include:

                     (g)  arbitration; or

                     (h)  court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.

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 National Archives of Australia; or

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

                            (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

                    (aa)  archival material in the custody of a person (other than the National Archives of Australia) in accordance with an arrangement referred to in section 64 of the Archives Act 1983; 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.

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. For the purposes of the application of this definition to a service provided under a satellite BSA licence, assume that there is no conditional access system that relates to the service.

Note:          A broadcasting service does not include the following:

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

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

building includes a structure of any kind.

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

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

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

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

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

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

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

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

circumvention device for a technological protection measure means a device, component or product (including a computer program) that:

                     (a)  is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or

                     (b)  has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or

                     (c)  is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.

For the purposes of this definition, computer program has the same meaning as in section 47AB.

circumvention service for a technological protection measure means a service that:

                     (a)  is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or

                     (b)  has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or

                     (c)  is primarily or solely designed or produced to enable or facilitate the circumvention of the 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.

controls access: a device, product, technology or component (including a computer program) controls access to a work or other subject‑matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the copyright in the work or other subject‑matter, to gain access to the work or other subject‑matter.

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

device includes a plate.

dramatic work includes:

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

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

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

drawing includes a diagram, map, chart or plan.

educational institution means:

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

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

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

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

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

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

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

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

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

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

                              (i)  general education;

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

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

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

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

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

electronic literary or music item means:

                     (a)  a book in electronic form; or

                     (b)  a periodical publication in electronic form; or

                     (c)  sheet music in electronic form;

regardless of whether there is a printed form.

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

                     (a)  is electronic; and

                     (b)  either:

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

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

                     (c)  either:

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

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

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

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

free‑to‑air broadcast means:

                     (a)  a broadcast delivered by a national broadcasting service, commercial broadcasting service or community broadcasting service within the meaning of the Broadcasting Services Act 1992; or

                     (b)  a broadcast delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 that does no more than transmit program material supplied by National Indigenous TV Limited.

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 (which may be an electronic reproduction or copy of the work, recording, film, broadcast or edition) 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.

private and domestic use means private and domestic use on or off domestic premises.

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 includes a disc, tape, paper, electronic file or other device in which sounds are embodied.

Registrar means the Registrar of the Tribunal provided for by section 170.

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.

satellite BSA licence means a commercial television broadcasting licence allocated under section 38C of the Broadcasting Services Act 1992.

satellite BSA licensee means the licensee of a satellite BSA licence.

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)  an access control technological protection measure; or

                     (b)  a device, product, technology or component (including a computer program) that:

                              (i)  is used in Australia or a qualifying country by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and

                             (ii)  in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the copyright;

                            but does not include such a device, product, technology or component to the extent that it:

                            (iii)  if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)—controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or

                            (iv)  if the work is a computer program that is embodied in a machine or device—restricts the use of goods (other than the work) or services in relation to the machine or device.

For the purposes of this definition, computer program has the same meaning as in section 47AB.

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 of Australia provided for 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; and

                     (b)  a reference to the body administering a library or archives is to be read:

                              (i)  in the case of archives covered by paragraph (aa) of the definition of archives in subsection (1)—as a reference to the person having the custody of the archives in accordance with the relevant arrangement referred to in that paragraph; or

                             (ii)  otherwise—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; and

                     (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; and

                     (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; and

                      (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; and

                     (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; and

                     (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; and

                    (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; and

                      (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; and

                     (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; and

                      (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; and

                    (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; and

                   (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; or

                             (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.

          (3A)  For the purposes of this Act, something held in, or forming part of, the collection of any archives covered by paragraph (aa) of the definition of archives in subsection (1) is taken not to be held in, and not to form part of, the collection of the National Archives of Australia.

Note:          Paragraph (aa) of the definition of archives covers archival material in the custody of a person other than the National Archives of Australia under an arrangement referred to in section 64 of the Archives Act 1983.

             (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.

          (6A)  To avoid doubt, for the purposes of subsection (6), a person is not responsible for determining the content of a communication merely because the person takes one or more steps for the purpose of:

                     (a)  gaining access to what is made available online by someone else in the communication; or

                     (b)  receiving the electronic transmission of which the communication consists.

Example:    A person is not responsible for determining the content of the communication to the person of a web page merely because the person clicks on a link to gain access to the page.

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 and communication 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 this section, 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 this section, 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.

             (5)  A communication of a literary, dramatic or musical work, a sound recording or a cinematograph film is taken for the purposes of this Act not to be a communication to the public if the communication is made merely to facilitate:

                     (a)  a performance of the work that, because of this section, is not a performance in public; or

                     (b)  an act of causing sounds forming part of the recording to be heard that, because of this section, is not an act of causing the sound recording to be heard in public; or

                     (c)  an act of causing visual images or sounds forming part of the cinematograph film to be seen or heard that, because of this section, is not an act of causing the film to be seen or heard in public.

             (6)  A communication of a television broadcast or sound broadcast is taken for the purposes of this Act not to be a communication of the broadcast, or of a work or other subject‑matter included in the broadcast, to the public if:

                     (a)  the communication is made merely to facilitate the television broadcast being seen and heard, or the sound broadcast being heard, in class or otherwise in the presence of an audience, in the course of educational instruction that:

                              (i)  is given by a teacher; and

                             (ii)  is not given for profit; and

                     (b)  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.

             (7)  A communication of an artistic work is taken for the purposes of this Act not to be a communication of the work to the public if:

                     (a)  the communication is made merely to facilitate the work being seen in class or otherwise in the presence of an audience, in the course of educational instruction that:

                              (i)  is given by a teacher; and

                             (ii)  is not given for profit; and

                     (b)  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.

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 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.

             (3)  In this section:

article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form.

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)  Despite subsection (2), a reproduction, for the purpose of research or study, of all or part of a literary, dramatic or musical work, or of an adaptation of such a work, contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study.

             (4)  Subsection (3) does not apply if another article in the publication is also reproduced for the purpose of different research or a different course of study.

             (5)  Despite subsection (2), a reproduction, for the purpose of research or study, of not more than a reasonable portion of a work or adaptation that is described in an item of the table and is not contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study. For this purpose, reasonable portion means the amount described in the item.

 

Works, adaptations and reasonable portions

Item

Work or adaptation

Amount that is reasonable portion

1

A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages

(a) 10% of the number of pages in the edition; or

(b) if the work or adaptation is divided into chapters—a single chapter

2

A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work

(a) 10% of the number of words in the work or adaptation; or

(b) if the work or adaptation is divided into chapters—a single chapter

             (6)  Subsection (5) applies to a reproduction of a work or adaptation described in both items of the table in that subsection even if the amount of the work or adaptation reproduced is not more than a reasonable portion (as defined in that subsection) on the basis of only one of those items.

             (7)  If:

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

                     (b)  the reproduction is of not more than a reasonable portion (as defined in subsection (5)) of the work or adaptation;

subsection (5) does not apply in relation to any subsequent reproduction made by the person of any other part of the same work or adaptation.

             (8)  Subsections 10(2), (2A), (2B) and (2C) do not affect subsection (5), (6) or (7) of this section.

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.

41A  Fair dealing for purpose of parody or satire

                   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 parody or satire.

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.

43C  Reproducing works in books, newspapers and periodical publications in different form for private use

             (1)  This section applies if:

                     (a)  the owner of a book, newspaper or periodical publication makes from it a reproduction (the main copy) of a work contained in the book, newspaper or periodical publication; and

                     (b)  the main copy is made for his or her private and domestic use instead of the work as contained in the book, newspaper or periodical publication; and

                     (c)  the main copy embodies the work in a form different from the form in which the work is embodied in the book, newspaper or periodical publication; and

                     (d)  the book, newspaper or periodical publication itself is not an infringing copy of either the work or a published edition of the work; and

                     (e)  at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the work in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the work incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright in the work or a published edition of the work.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

Reproducing work from main copy may infringe copyright

             (5)  Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of another reproduction of the work from the main copy.

Disposal of book etc. may make the main copy an infringing copy

             (6)  Subsection (2) is taken never to have applied if the owner of the book, newspaper or periodical publication disposes of it (in the form from which the main copy was made) to another person.

Status of temporary reproduction

             (7)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the work as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy—the making of the temporary reproduction does not infringe copyright in the work or a published edition of the work; or

                     (b)  if the temporary reproduction is not destroyed at that time—the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the work and the published edition of the work from which the main copy 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.

             (4)  The definition of article in section 38 does not affect this section.

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

             (1)  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.

             (2)  The definition of article in section 38 does not affect this section.

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

             (1)  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.

             (2)  The definition of article in section 38 does not affect this section.


 

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 transferred, with the consent of the Director‑General of the National Archives of Australia, to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia.

             (6)  The Director‑General of the National Archives of Australia must not consent to the transfer to the care of the National Archives of Australia 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 4BActs not constituting infringements of copyright in artistic works

47J  Reproducing photograph in different format for private use

             (1)  This section applies if:

                     (a)  the owner of a photograph (the original photograph) makes a reproduction (the main copy) of it for his or her private and domestic use instead of the original photograph; and

                     (b)  the original photograph itself is not an infringing copy of a work or published edition of a work; and

                     (c)  either:

                              (i)  the original photograph is in hardcopy form and the main copy is in electronic form; or

                             (ii)  the original photograph is in electronic form and the main copy is in hardcopy form; and

                     (d)  at the time the owner makes the main copy, he or she has not made, and is not making, another reproduction of the original photograph that embodies the original photograph in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the original photograph incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright:

                     (a)  in the original photograph; or

                     (b)  in a work, or published edition of a work, included in the original photograph.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

Reproducing main copy may infringe copyright

             (5)  Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of a reproduction of the main copy.

Disposal of original may make the main copy an infringing copy

             (6)  Subsection (2) is taken never to have applied if the owner of the original photograph disposes of it to another person.

Status of temporary reproduction

             (7)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the original photograph as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy—the making of the temporary reproduction does not infringe copyright in the original photograph or a work, or published edition of a work, included in the original photograph; or

                     (b)  if the temporary reproduction is not destroyed at that time—the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the original photograph or a work, or published edition of a work, included in the original photograph.


 

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.

Note:          The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

          (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.

Note:          The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

             (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 are requested for the same research or course of study.

             (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.

       (5AA)  For the purposes of subsection (5), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion.

        (5AB)  For the purposes of paragraph (5)(b), in determining whether a reproduction (not being a second‑hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

                     (a)  the time by which the person requesting the reproduction requires it; and

                     (b)  the time within which a reproduction (not being a second‑hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

                     (c)  whether an electronic reproduction of the work can 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:

archives means an archives all or part of whose collection is accessible to members of the public.

library means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.

supply includes supply by way of a communication.

Note:          Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

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.

Note:          The reproduction could be made from another reproduction of the article or published work in the collection of the other library that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

             (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 (3) 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.

        (7BA)  For the purposes of subsections (7A) and (7B), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion.

        (7BB)  For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii) and (iv), in determining whether a copy of the work, the work, the portion of the work or the article (as appropriate) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

                     (a)  the time by which the person requesting the reproduction under section 49 requires the reproduction; and

                     (b)  the time within which a reproduction (not being a second‑hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

                     (c)  whether the copy, work, portion or article can be obtained 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 (3) 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 all or part of 2 or more articles that are contained in the same periodical publication and that have been requested for the same purpose unless:

                     (a)  the purpose is the one described in paragraph (1)(aa) (assisting a member of a Parliament perform his or her duties); or

                     (b)  the purpose is the one described in paragraph (1)(b) (supplying a reproduction to a person requesting it under section 49 for research or study) and the reproduction of the articles was requested under section 49 for the same research or course of study.

           (10)  In this section:

library means:

                     (a)  a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans; or

                     (b)  a library whose principal purpose is to provide library services for members of a Parliament; or

                     (c)  an archives all or part of whose collection is accessible to members of the public.

supply includes supply by way of a communication.

Note:          Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

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 care of National Archives of Australia

             (1)  The copyright in a work that is kept in the collection of an archives covered by subparagraph (a)(i) or paragraph (aa) of the definition of archives in subsection 10(1), 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; or

                     (b)  of a single reference copy of the work for supply to the central office of the National Archives of Australia; or

                     (c)  on the written request for a reference copy of the work by an officer of the National Archives of Australia 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; or

                     (d)  where the officer in charge is satisfied that a reference copy of the work supplied to a regional office of the National Archives of Australia 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 National Archives of Australia 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 National Archives of Australia 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 National Archives of Australia 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:

                     (a)  stating that he or she is satisfied that a copy (not being a second‑hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

                     (b)  if he or she is satisfied that a copy (not being a second‑hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price—stating why the reproduction should be made from the copy of the work held in the collection.

Note:          Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

             (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:

administrative purposes means purposes directly related to the care or control of the collection.

officers of the library or archives includes volunteers assisting with the care or control of the collection.

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.

51B  Making preservation copies of significant works in key cultural institutions’ collections

             (1)  This section applies in relation to a work held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the work is of historical or cultural significance to Australia.

Manuscript

             (2)  If the work is held in the form of a manuscript, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the manuscript for the purpose of preserving it against loss or deterioration.

Original artistic work

             (3)  If the work is held in the form of an original artistic work, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 comprehensive photographic reproductions of the work from the original artistic work for the purpose of preserving it against loss or deterioration if the officer is satisfied that a photographic reproduction (not being a second‑hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

Published work

             (4)  If the work is held in published form, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the copy held in the collection, for the purpose of preserving the work against loss or deterioration, if the officer is satisfied that:

                     (a)  a copy (not being a second‑hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

                     (b)  if the officer is satisfied that a copy (not being a second‑hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price—it is appropriate that the reproduction should be made from the copy of the work held in the collection.

Electronic copies and commercial availability

             (5)  In determining for the purposes of subsection (3) or (4) whether a reproduction or copy (not being a second‑hand reproduction or copy) of the work, or of a particular edition of the work, cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the work or edition can be obtained within a reasonable time at an ordinary commercial price.

Relationship with the rest of this Division

             (6)  This section does not limit the rest of this Division. The rest of this Division does not limit this section.

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

          (1A)  In this Division:

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

             (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 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.

             (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.

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 transferred, with the consent of the Director‑General of the National Archives of Australia, to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia.

             (6)  The Director‑General of the National Archives of Australia must not consent to the transfer to the care of the National Archives of Australia 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 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.

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

2A

the action is brought under section 116AN, 116AO or 116AP

(a)  damages (other than additional damages); or

(b) an account of profits; or

(c) destruction or delivery up of a circumvention device

3

the action is brought under section 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, 135ZZI or 135ZZZF.


 

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.

             (3)  In this section:

article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form.

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.

103AA  Fair dealing for purpose of parody or satire

                   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 parody or satire.

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 transferred, with the consent of the Director‑General of the National Archives of Australia, to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia.

             (6)  The Director‑General of the National Archives of Australia must not consent to the transfer to the care of the National Archives of Australia 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.

109A  Copying sound recordings for private and domestic use

             (1)  This section applies if:

                     (a)  the owner of a copy (the earlier copy) of a sound recording makes another copy (the later copy) of the sound recording using the earlier copy; and

                     (b)  the sole purpose of making the later copy is the owner’s private and domestic use of the later copy with a device that:

                              (i)  is a device that can be used to cause sound recordings to be heard; and

                             (ii)  he or she owns; and

                     (c)  the earlier copy was not made by downloading over the internet a digital recording of a radio broadcast or similar program; and

                     (d)  the earlier copy is not an infringing copy of the sound recording, a broadcast or a literary, dramatic or musical work included in the sound recording.

             (2)  The making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject‑matter included in the sound recording.

             (3)  Subsection (2) is taken never to have applied if the earlier copy or the later copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise; or

                     (e)  used for causing the sound recording to be heard in public; or

                      (f)  used for broadcasting the sound recording.

Note:          If the earlier or later copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the later copy but also by a dealing with the later copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the earlier copy or the later copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

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.

110AA  Copying cinematograph film in different format for private use

             (1)  This section applies if:

                     (a)  the owner of videotape embodying a cinematograph film in analog form makes a copy (the main copy) of the film in electronic form for his or her private and domestic use instead of the videotape; and

                     (b)  the videotape itself is not an infringing copy of the film or of a broadcast, sound recording, work or published edition of a work; and

                     (c)  at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the film in an electronic form substantially identical to the electronic form in which the film is embodied in the main copy.

For this purpose, disregard a temporary copy of the film incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright in the cinematograph film or in a work or other subject‑matter included in the film.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

Disposal of videotape may make the main copy an infringing copy

             (5)  Subsection (2) is taken never to have applied if the owner of the videotape disposes of it to another person.

Status of temporary copy

             (6)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary copy of the film as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary copy is destroyed at the first practicable time during or after the making of the main copy—the making of the temporary copy does not infringe copyright in the film or in any work or other subject‑matter included in the film; or

                     (b)  if the temporary copy is not destroyed at that time—the making of the temporary copy is taken always to have infringed copyright (if any) subsisting in the film and in any work or other subject‑matter included in the film.

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.

Note:          Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

             (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.

110BA  Making preservation copies of significant recordings and films in key cultural institutions’ collections

             (1)  This section applies in relation to a sound recording or cinematograph film held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the recording or film is of historical or cultural significance to Australia.

First record, or unpublished record, embodying sound recording

             (2)  If the sound recording is held in the form of the first record, or an unpublished record, embodying the recording, copyright in the recording is not infringed by an authorized officer of the library or archives making up to 3 copies of the recording from the record for the purpose of preserving the recording against loss or deterioration.

Published sound recording

             (3)  If the sound recording is held in published form, the copyright in the recording is not infringed by an authorized officer of the library or archives making up to 3 copies of the recording from the published record for the purpose of preserving the recording against loss or deterioration if the officer is satisfied that a copy of the recording (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

First copy, or unpublished copy, of film

             (4)  If the cinematograph film is held in the form of the first copy, or an unpublished copy, of the film, copyright in the film is not infringed by an authorized officer of the library or archives making up to 3 copies of the film from the first copy or unpublished copy for the purpose of preserving the film against loss or deterioration.

Published film

             (5)  If the cinematograph film is held in a published form, copyright in the film is not infringed by an authorized officer of the library or archives making up to 3 copies of the film from the published copy held in the collection, for the purpose of preserving the film against loss or deterioration, if the officer is satisfied that a copy of the film (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

Commercial availability of copy of recording or film

             (6)  For the purposes of subsections (3) and (5), in determining whether a copy (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy can be obtained within a reasonable time at an ordinary commercial price.

Work or other subject‑matter included in recording or film

             (7)  If under this section, copyright in the sound recording or cinematograph film is not infringed by the making of a copy of the recording or film, the making of that copy does not infringe copyright in any work or other subject‑matter included in the recording or film.

Relationship with the rest of this Division

             (8)  This section does not limit any of the other provisions of this Division that provide that an act (however described) does not infringe copyright. Those other provisions do not limit this section.

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  Recording broadcasts for replaying at more convenient time

             (1)  This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

Note:          Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

Making the film or recording does not infringe copyright

             (2)  The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject‑matter included in the broadcast.

Note:          Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

             (3)  Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise; or

                     (e)  used for causing the film or recording to be seen or heard in public; or

                      (f)  used for broadcasting the film or recording.

Note:          If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender’s family or household for the member’s private and domestic use.

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, 51B, 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, 51B, 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).

112AA  Making preservation copies of significant published editions in key cultural institutions’ collections

             (1)  This section applies in relation to a published edition of one or more works held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the edition is of historical or cultural significance to Australia.

Published editions

             (2)  The copyright in the published edition is not infringed by an authorized officer of the library or archives making up to 3 facsimile copies of the edition from the copy held in the collection, for the purpose of preserving the edition against loss or deterioration, if the officer is satisfied that a copy or facsimile copy of the edition (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

             (3)  In determining whether a copy (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the edition can be obtained within a reasonable time at an ordinary commercial price.

Works in published editions

             (4)  If, under this section, copyright in the published edition is not infringed by the making of a facsimile copy of the edition, the making of that copy does not infringe copyright in any of the works in the published edition.

Relationship with the rest of this Division

             (5)  This section does not limit any of the other provisions of this Division that provide that an act (however described) does not infringe copyright. Those other provisions do not limit this section.

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.

             (3)  The definition of article in section 103 does not affect this section.

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.

             (4)  The definition of article in section 103 does not affect this section.

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

             (1)  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.

             (2)  The definition of article in section 103 does not affect this section.

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.

Consideration for relief for electronic commercial infringement

             (5)  Subsection (6) applies to a court hearing an action for infringement of copyright if the court is satisfied that:

                     (a)  the infringement (the proved infringement) occurred (whether as a result of the doing of an act comprised in the copyright, the authorising of the doing of such an act or the doing of another act); and

                     (b)  the proved infringement involved a communication of a work or other subject‑matter to the public; and

                     (c)  because the work or other subject‑matter was communicated to the public, it is likely that there were other infringements (the likely infringements) of the copyright by the defendant that the plaintiff did not prove in the action; and

                     (d)  taken together, the proved infringement and likely infringements were on a commercial scale.

             (6)  The court may have regard to the likelihood of the likely infringements (as well as the proved infringement) in deciding what relief to grant in the action.

             (7)  In determining for the purposes of paragraph (5)(d) whether, taken together, the proved infringement and the likely infringements were on a commercial scale, the following matters are to be taken into account:

                     (a)  the volume and value of any articles that:

                              (i)  are infringing copies that constitute the proved infringement; or

                             (ii)  assuming the likely infringements actually occurred, would be infringing copies constituting those infringements;

                     (b)  any other relevant matter.

             (8)  In subsection (7):

article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form.

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 technological protection measures and electronic rights management information

Subdivision ATechnological protection measures

116AK  Definitions

                   In this Subdivision, computer program has the same meaning as in section 47AB.

116AL  Interaction of this Subdivision with Part VAA

                   This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA).

116AM  Geographical application

             (1)  This Subdivision applies to acts done in Australia.

             (2)  This section does not, by implication, affect the interpretation of any other provision of this Act.

116AN  Circumventing an access control technological protection measure

             (1)  An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:

                     (a)  the work or other subject‑matter is protected by an access control technological protection measure; and

                     (b)  the person does an act that results in the circumvention of the access control technological protection measure; and

                     (c)  the person knows, or ought reasonably to know, that the act would have that result.

Exception—permission

             (2)  Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.

Exception—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Exception—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable:

                              (i)  the person; or

                             (ii)  if the person is a body corporate—an employee of the person;

                            to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (c)  the person or employee is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (d)  the person or employee:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Exception—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Exception—online privacy

             (6)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and

                            (iv)  will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.

Exception—law enforcement and national security

             (7)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Exception—libraries etc.

             (8)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the person is:

                              (i)  a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); or

                             (ii)  a body mentioned in paragraph (a) of the definition of archives in subsection 10(1), or in subsection 10(4); or

                            (iii)  an educational institution; and

                     (c)  the act will be done for the sole purpose of making an acquisition decision in relation to the work or other subject‑matter; and

                     (d)  the work or other subject‑matter will not be otherwise available to the person when the act is done.

Note:          A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Exception—prescribed acts

             (9)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act will not infringe the copyright in a work or other subject‑matter; and

                     (c)  the doing of the act by the person is prescribed by the regulations.

Note:          For the making of regulations prescribing the doing of an act by a person, see section 249.

Burden of proof

           (10)  The defendant bears the burden of establishing the matters referred to in subsections (2) to (9).

116AO  Manufacturing etc. a circumvention device for a technological protection measure

             (1)  An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:

                     (a)  the person does any of the following acts with a device:

                              (i)  manufactures it with the intention of providing it to another person;

                             (ii)  imports it into Australia with the intention of providing it to another person;

                            (iii)  distributes it to another person;

                            (iv)  offers it to the public;

                             (v)  provides it to another person;

                            (vi)  communicates it to another person; and

                     (b)  the person knows, or ought reasonably to know, that the device is a circumvention device for a technological protection measure; and

                     (c)  the work or other subject‑matter is protected by the technological protection measure.

Exception ‑ no promotion, advertising etc.

             (2)  Subsection (1) does not apply to the person if:

                     (a)  the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

                     (b)  both of the following apply:

                              (i)  the person did not do such promoting, advertising or marketing;

                             (ii)  the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

Exception—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Exception—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and

                     (c)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (d)  the researcher is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (e)  the researcher:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Exception—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and

                     (c)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Exception—law enforcement and national security

             (6)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Burden of proof

             (7)  The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).

116AP  Providing etc. a circumvention service for a technological protection measure

             (1)  An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:

                     (a)  the person:

                              (i)  provides a service to another person; or

                             (ii)  offers a service to the public; and

                     (b)  the person knows, or ought reasonably to know, that the service is a circumvention service for a technological protection measure; and

                     (c)  the work or other subject‑matter is protected by the technological protection measure.

Exception ‑ no promotion, advertising etc.

             (2)  Subsection (1) does not apply to the person if:

                     (a)  the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

                     (b)  both of the following apply:

                              (i)  the person did not do such promoting, advertising or marketing;

                             (ii)  the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

Exception—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Exception—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and

                     (c)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (d)  the researcher is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (e)  the researcher:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Exception—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and

                     (c)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Exception—law enforcement and national security

             (6)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Burden of proof

             (7)  The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).

116AQ  Remedies in actions under this Subdivision

             (1)  Without limiting the relief that a court may grant in an action under this Subdivision, the relief may include:

                     (a)  an injunction, subject to such terms, if any, as the court thinks fit; and

                     (b)  damages or an account of profits; and

                     (c)  if the doing of an act, which is the subject of the action, involved a circumvention device—an order that the circumvention device be destroyed or dealt with as specified in the order.

             (2)  In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:

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

                     (b)  the need to deter similar acts; and

                     (c)  the conduct of the defendant after the acts or, if relevant, after the defendant was informed that the defendant had allegedly done an act that would be the subject of an action under this Subdivision; and

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

                     (e)  any other relevant matters.

             (3)  If:

                     (a)  an action has been commenced against a person under this Subdivision; and

                     (b)  the doing of an act by the person, which is the subject of the action, involved a device; and

                     (c)  the device appears to the court to be a circumvention device;

the court may order that the device be delivered up to the court upon such conditions as the court considers appropriate.

             (4)  This section does not, by implication, affect the interpretation of any other provision of this Act.

Subdivision BElectronic rights management information

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 this Subdivision

             (1)  The relief that a court may grant in an action under this Subdivision 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 this Subdivision, 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  Presumptions relating 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 that year and place are presumed to be as stated on the label or mark, unless the contrary is established.

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 that year and place are presumed to be as stated in the certificate or document, unless the contrary is established.

             (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  Presumptions relating 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 person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

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 person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

             (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 matters described in subparagraphs (b)(i), (ii) and (iii) are presumed to be as stated in the document, unless the contrary is established.

             (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 matters described in subparagraphs (b)(i), (ii), (iii) and (iv) are presumed to be as stated in the document, unless the contrary is established.

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.

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.

129A  Presumptions relating to computer programs

             (1)  This section applies to an action under this Part relating to copyright in a literary work that is a computer program if:

                     (a)  articles or things embodying all or part of the program have been supplied (by sale or otherwise) to the public; and

                     (b)  at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.

             (2)  It is presumed that:

                     (a)  the computer program is an original literary work; and

                     (b)  the computer program was first published in the year; and

                     (c)  the person was the owner of copyright in the program when and where the articles, things or containers were labelled or marked;

unless the contrary is established.

             (3)  A presumption about a person under subsection (2) does not imply that the person was the only owner of copyright in the program when and where the articles, things or containers were labelled or marked.

130  Presumptions relating to sound recordings

             (1)  This section applies to an action under this Part relating to copyright in a sound recording if:

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

                     (b)  at the time of the supply, the records or their containers bore a label or other mark.

             (2)  If the label or mark contained a statement described in an item of the table, the matter described in the item is presumed, unless the contrary is established.

 

Statements and matters presumed unless the contrary is established

Item

Statement

Matter presumed

1

A specified person was the maker of the recording

The person was the maker of the recording

2

The recording was first published in a specified year

The recording was first published in the year

3

The recording was first published in a specified country

The recording was first published in the country

             (3)  If the label or mark consisted of the letter “P” in a circle accompanied by a specified year and the name of a person, it is presumed that:

                     (a)  the recording was first published in the year; and

                     (b)  the person was the owner of copyright in the recording when and where the records or containers were labelled or marked;

unless the contrary is established.

             (4)  A presumption about a person under this section does not imply that the person was:

                     (a)  the only maker of the recording; or

                     (b)  the only owner of copyright in the recording when and where the records or containers were labelled or marked.

130A  Acts relating to imported copies of sound recordings

             (1)  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.

             (2)  The definition of article in sections 38 and 103 does not affect this section.

130B  Acts relating to imported copies of computer programs

             (1)  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.

             (2)  The definition of article in section 38 does not affect this section.

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

             (1)  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.

             (2)  The definition of article in sections 38 and 103 does not affect this section.

131  Presumptions relating to films

             (1)  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.

             (2)  Subsection (3) applies to an action under this Part relating to copyright in a cinematograph film, if:

                     (a)  articles or things embodying the film have been supplied commercially; and

                     (b)  at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.

             (3)  It is presumed that:

                     (a)  the film was first made in the year; and

                     (b)  the person was the owner of copyright in the film when and where the articles, things or containers were labelled or marked;

unless the contrary is established.

             (4)  A presumption about a person under subsection (3) does not imply that the person was the only owner of copyright in the film when and where the articles, things or containers were labelled or marked.


 

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

Subdivision APreliminary

132AA  Definitions

                   In this Division:

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, except in Subdivision E, includes distribute by way of communication.

place of public entertainment includes 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, that:

                     (a)  is received by a person; and

                     (b)  results from, or is associated with, the person’s private or domestic use of any copyright material.

132AB  Geographical application

             (1)  Subdivisions B, C, D, E and F apply only to acts done in Australia.

             (2)  This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code.

Subdivision BSubstantial infringement on a commercial scale

132AC  Commercial‑scale infringement prejudicing copyright owner

Indictable offence

             (1)  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.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  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 the person is negligent as to that fact; and

                     (d)  the infringement or infringements occur on a commercial scale and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Determining whether infringements occur on commercial scale

             (5)  In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (1)(d) or (3)(d), the following matters are to be taken into account:

                     (a)  the volume and value of any articles that are infringing copies that constitute the infringement or infringements;

                     (b)  any other relevant matter.

Defence relating to law enforcement and national security

             (6)  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.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence for certain public institutions etc.

             (7)  This section does not apply in respect of anything lawfully done by the following 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:

                              (i)  paragraph (a) of the definition of archives in subsection 10(1); or

                             (ii)  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 1:       A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2:       A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

             (8)  This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

                     (a)  the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

                     (b)  under subsection (7), it would be lawful for the National Archives of Australia to do that thing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

Subdivision CInfringing copies

132AD  Making infringing copy commercially

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person makes an article, with the intention of:

                              (i)  selling it; or

                             (ii)  letting it for hire; or

                            (iii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter when the article is made.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person makes an article, with the intention of:

                              (i)  selling it; or

                             (ii)  letting it for hire; or

                            (iii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter when the article is made and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person makes an article in preparation for, or in the course of:

                              (i)  selling it; or

                             (ii)  letting it for hire; or

                            (iii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter when the article is made.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AE  Selling or hiring out infringing copy

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person sells an article or lets an article for hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the sale or letting.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person sells an article or lets an article for hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the sale or letting and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person sells an article or lets an article for hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the sale or letting.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AF  Offering infringing copy for sale or hire

Indictable offences

             (1)  A person commits an offence if:

                     (a)  the person by way of trade offers or exposes an article for sale or hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure.

             (2)  A person commits an offence if:

                     (a)  the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure.

             (3)  An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

             (4)  A person commits an offence if:

                     (a)  the person by way of trade offers or exposes an article for sale or hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (5)  A person commits an offence if:

                     (a)  the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (6)  An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offences

             (7)  A person commits an offence if:

                     (a)  the person by way of trade offers or exposes an article for sale or hire; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure.

Penalty:  60 penalty units.

             (8)  A person commits an offence if:

                     (a)  the person offers or exposes an article for sale or hire, in preparation for, or in the course of, obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the offer or exposure.

Penalty:  60 penalty units.

             (9)  Subsections (7) and (8) are offences of strict liability.

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

132AG  Exhibiting infringing copy in public commercially

Indictable offences

             (1)  A person commits an offence if:

                     (a)  the person by way of trade exhibits an article in public; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition.

             (2)  A person commits an offence if:

                     (a)  the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition.

             (3)  An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

             (4)  A person commits an offence if:

                     (a)  the person by way of trade exhibits an article in public; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (5)  A person commits an offence if:

                     (a)  the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (6)  An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offences

             (7)  A person commits an offence if:

                     (a)  the person by way of trade exhibits an article in public; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition.

Penalty:  60 penalty units.

             (8)  A person commits an offence if:

                     (a)  the person exhibits an article in public in preparation for, or in the course of, obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the exhibition.

Penalty:  60 penalty units.

             (9)  Subsections (7) and (8) are offences of strict liability.

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

132AH  Importing infringing copy commercially

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person imports an article into Australia, with the intention of doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the import.

             (2)  An offence against this section is punishable on conviction by a fine of not more than 650 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person imports an article into Australia, with the intention of doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the import and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person imports an article into Australia in preparation for, or in the course of, doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the import.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AI  Distributing infringing copy

Indictable offences

             (1)  A person commits an offence if:

                     (a)  the person distributes an article, with the intention of:

                              (i)  trading; or

                             (ii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the distribution.

             (2)  A person commits an offence if:

                     (a)  the person distributes an article; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the distribution; and

                     (d)  the extent of the distribution affects prejudicially the owner of the copyright.

             (3)  An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

             (4)  A person commits an offence if:

                     (a)  the person distributes an article, with the intention of:

                              (i)  trading; or

                             (ii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (5)  A person commits an offence if:

                     (a)  the person distributes an article; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact; and

                     (d)  the extent of the distribution affects prejudicially the owner of the copyright and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (6)  An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (7)  A person commits an offence if:

                     (a)  the person distributes an article in preparation for, or in the course of:

                              (i)  trading; or

                             (ii)  obtaining a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the distribution.

Penalty:  60 penalty units.

             (9)  Subsection (7) is an offence of strict liability.

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

132AJ  Possessing infringing copy for commerce

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person possesses an article, with the intention of doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the possession.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

Note 1:       A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2:       If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person possesses an article, with the intention of doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person possesses an article in preparation for, or in the course of, doing any of the following with the article:

                              (i)  selling it;

                             (ii)  letting it for hire;

                            (iii)  by way of trade offering or exposing it for sale or hire;

                            (iv)  offering or exposing it for sale or hire to obtain a commercial advantage or profit;

                             (v)  distributing it for trade;

                            (vi)  distributing it to obtain a commercial advantage or profit;

                           (vii)  distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;

                           (viii)  by way of trade exhibiting it in public;

                            (ix)  exhibiting it in public to obtain a commercial advantage or profit; and

                     (b)  the article is an infringing copy of a work or other subject‑matter; and

                     (c)  copyright subsists in the work or other subject‑matter at the time of the possession.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AK  Aggravated offence—work etc. converted to digital form

             (1)  An indictable offence against a provision (the basic offence provision) of this Subdivision (except sections 132AL and 132AM) relating to an infringing copy is an aggravated offence if the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.

             (2)  An aggravated offence is punishable on conviction by a fine of not more than 850 penalty units or imprisonment for not more than 5 years, or both.

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).

             (3)  To prove an aggravated offence, the prosecution must prove that the defendant was reckless with respect to the circumstance that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.

Note:          The prosecution must also prove all the physical and fault elements of the offence against the basic offence provision.

             (4)  If the prosecution intends to prove an aggravated offence, the charge must allege that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.

132AL  Making or possessing device for making infringing copy

Indictable offences

             (1)  A person commits an offence if:

                     (a)  the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

                     (b)  copyright subsists in the work or other subject‑matter at the time of the making of the device.

             (2)  A person commits an offence if:

                     (a)  the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and

                     (b)  copyright subsists in the work or other subject‑matter at the time of the possession.

             (3)  An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offences

             (4)  A person commits an offence if:

                     (a)  the person makes a device; and

                     (b)  the device is to be used for copying a work or other subject‑matter; and

                     (c)  the copy will be an infringing copy and the person is negligent as to that fact; and

                     (d)  copyright subsists in the work or other subject‑matter at the time of the making of the device and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (5)  A person commits an offence if:

                     (a)  the person possesses a device; and

                     (b)  the device is to be used for copying a work or other subject‑matter; and

                     (c)  the copy will be an infringing copy and the person is negligent as to that fact; and

                     (d)  copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (6)  To avoid doubt, recklessness is the fault element for the circumstance in paragraphs (4)(b) and (5)(b) that the device is to be used for copying a work or other subject‑matter.

             (7)  An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (8)  A person commits an offence if:

                     (a)  the person makes a device; and

                     (b)  the device is to be used for copying a work or other subject‑matter; and

                     (c)  the copy will be an infringing copy; and

                     (d)  copyright subsists in the work or other subject‑matter at the time of the making of the device.

Penalty:  60 penalty units.

           (10)  Subsection (8) is an offence of strict liability.

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

No need to prove which work etc. is to be copied

           (11)  In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device.

132AM  Advertising supply of infringing copy

Summary offence

             (1)  A person commits an offence if:

                     (a)  the person, by any means, publishes, or causes to be published, an advertisement for the supply in Australia of a copy (whether from within or outside Australia) of a work or other subject‑matter; and

                     (b)  the copy is, or will be, an infringing copy.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

Location of supply of copy by communication resulting in creation of copy

             (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.

Subdivision DAiring of works, sound recordings and films

132AN  Causing work to be performed publicly

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person causes a literary, dramatic or musical work to be performed; and

                     (b)  the performance is in public at a place of public entertainment; and

                     (c)  the performance infringes copyright in the work.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person causes a literary, dramatic or musical work to be performed; and

                     (b)  the performance is in public at a place of public entertainment; and

                     (c)  the performance infringes copyright in the work and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

132AO  Causing recording or film to be heard or seen in public

Indictable offence

             (1)  A person commits an offence if:

                     (a)  the person causes:

                              (i)  a sound recording to be heard; or

                             (ii)  images from a cinematograph film to be seen; or

                            (iii)  sound from a cinematograph film to be heard; and

                     (b)  the hearing or seeing occurs in public at a place of public entertainment; and

                     (c)  causing the hearing or seeing infringes copyright in the recording or film.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  A person commits an offence if:

                     (a)  the person causes:

                              (i)  a sound recording to be heard; or

                             (ii)  images from a cinematograph film to be seen; or

                            (iii)  sound from a cinematograph film to be heard; and

                     (b)  the hearing or seeing occurs in public at a place of public entertainment; and

                     (c)  causing the hearing or seeing infringes copyright in the recording or film and the person is negligent as to that fact.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person causes:

                             (ii)  images from a cinematograph film to be seen; or

                            (iii)  sound from a cinematograph film to be heard; and

                     (b)  the hearing or seeing occurs in public at a place of public entertainment; and

                     (c)  causing the hearing or seeing infringes copyright in the recording or film.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

Subdivision ETechnological protection measures

132APA  Definitions

                   In this Subdivision, computer program has the same meaning as in section 47AB.

132APB  Interaction of this Subdivision with Part VAA

                   This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA).

132APC  Circumventing an access control technological protection measure

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct results in the circumvention of a technological protection measure; and

                     (c)  the technological protection measure is an access control technological protection measure; and

                     (d)  the person engages in the conduct with the intention of obtaining a commercial advantage or profit.

Penalty:  60 penalty units.

Defence—permission

             (2)  Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable:

                              (i)  the person; or

                             (ii)  if the person is a body corporate—an employee of the person;

                            to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (c)  the person or employee is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (d)  the person or employee:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Defence—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—online privacy

             (6)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and

                            (iv)  will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence—law enforcement and national security

             (7)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

             (8)  Subsection (1) does 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:

                              (i)  paragraph (a) of the definition of archives in subsection 10(1); or

                             (ii)  subsection 10(4);

                     (c)  an educational institution;

                     (d)  a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).

Note 1:       A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2:       A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

          (8A)  This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

                     (a)  the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

                     (b)  under subsection (8), it would be lawful for the National Archives of Australia to do that thing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).

Defence—prescribed acts

             (9)  Subsection (1) does not apply to the person if:

                     (a)  the person circumvents the access control technological protection measure to enable the person to do an act; and

                     (b)  the act will not infringe the copyright in a work or other subject‑matter; and

                     (c)  the doing of the act by the person is prescribed by the regulations.

Note 1:       A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

Note 2:       For the making of regulations prescribing the doing of an act by a person, see section 249.

132APD  Manufacturing etc. a circumvention device for a technological protection measure

             (1)  A person commits an offence if:

                     (a)  the person does any of the following acts with a device:

                              (i)  manufactures it with the intention of providing it to another person;

                             (ii)  imports it into Australia with the intention of providing it to another person;

                            (iii)  distributes it to another person;

                            (iv)  offers it to the public;

                             (v)  provides it to another person;

                            (vi)  communicates it to another person; and

                     (b)  the person does the act with the intention of obtaining a commercial advantage or profit; and

                     (c)  the device is a circumvention device for a technological protection measure.

Penalty:  550 penalty units or imprisonment for 5 years, or both.

Defence—no promotion, advertising etc.

             (2)  Subsection (1) does not apply to the person if:

                     (a)  the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

                     (b)  both of the following apply:

                              (i)  the person did not do such promoting, advertising or marketing;

                             (ii)  the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and

                     (c)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (d)  the researcher is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (e)  the researcher:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Defence—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and

                     (c)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—law enforcement and national security

             (6)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

             (7)  Subsection (1) does 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:

                              (i)  paragraph (a) of the definition of archives in subsection 10(1); or

                             (ii)  subsection 10(4);

                     (c)  an educational institution;

                     (d)  a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).

Note 1:       A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2:       A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

             (8)  This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

                     (a)  the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

                     (b)  under subsection (7), it would be lawful for the National Archives of Australia to do that thing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

132APE  Providing etc. a circumvention service for a technological protection measure

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  provides a service to another person; or

                             (ii)  offers a service to the public; and

                     (b)  the person does so with the intention of obtaining a commercial advantage or profit; and

                     (c)  the service is a circumvention service for a technological protection measure.

Penalty:  550 penalty units or imprisonment for 5 years, or both.

Defence—no promotion, advertising etc.

             (2)  Subsection (1) does not apply to the person if:

                     (a)  the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

                     (b)  both of the following apply:

                              (i)  the person did not do such promoting, advertising or marketing;

                             (ii)  the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

             (3)  Subsection (1) does not apply to the person if:

                     (a)  the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and

                     (b)  the act:

                              (i)  relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the original program; and

                           (iia)  relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                            (iii)  will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—encryption research

             (4)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and

                     (c)  the act:

                              (i)  relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

                             (ii)  will not infringe the copyright in the work or other subject‑matter; and

                            (iii)  will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

                     (d)  the researcher is:

                              (i)  engaged in a course of study at an educational institution in the field of encryption technology; or

                             (ii)  employed, trained or experienced in the field of encryption technology; and

                     (e)  the researcher:

                              (i)  has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

                             (ii)  has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Defence—computer security testing

             (5)  Subsection (1) does not apply to the person if:

                     (a)  the technological protection measure is an access control technological protection measure; and

                     (b)  the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and

                     (c)  the act:

                              (i)  relates to a copy of a computer program that is not an infringing copy; and

                             (ii)  will not infringe the copyright in the computer program; and

                            (iii)  will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

                            (iv)  will be done with the permission of the owner of the computer, computer system or computer network.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—law enforcement and national security

             (6)  Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

                     (a)  law enforcement; or

                     (b)  national security; or

                     (c)  performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

             (7)  Subsection (1) does 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:

                              (i)  paragraph (a) of the definition of archives in subsection 10(1); or

                             (ii)  subsection 10(4);

                     (c)  an educational institution;

                     (d)  a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).

Note 1:       A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2:       A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

             (8)  This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

                     (a)  the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

                     (b)  under subsection (7), it would be lawful for the National Archives of Australia to do that thing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

Subdivision FElectronic rights management information

132AQ  Removing or altering electronic rights management information

Indictable offence

             (1)  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 removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  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 removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  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 removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AR  Distributing, importing or communicating copies after removal or alteration of electronic rights management information

Indictable offence

             (1)  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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  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 in preparation for, or in the course of, trading or for obtaining a commercial advantage or profit;

                             (ii)  imports a copy of the work or subject‑matter into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, 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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AS  Distributing or importing electronic rights management information

Indictable offence

             (1)  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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

             (2)  An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.

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).

Summary offence

             (3)  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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

             (4)  An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

Strict liability offence

             (5)  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 in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;

                             (ii)  imports the electronic rights management information into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, 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 act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

Penalty:  60 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

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

132AT  Defences

Law enforcement and national security

             (1)  This Subdivision 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.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code).

Certain public institutions etc.

             (2)  This Subdivision does not apply in respect of anything lawfully done by the following 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:

                              (i)  paragraph (a) of the definition of archives in subsection 10(1); or

                             (ii)  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 1:       A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2:       A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  This Subdivision does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

                     (a)  the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

                     (b)  under subsection (2), it would be lawful for the National Archives of Australia to do that thing.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Subdivision GEvidence

132AU  Prosecution to prove profit

             (1)  This section applies if, in the prosecution of an offence against this Division, either of the following questions is relevant:

                     (a)  whether the defendant intended to obtain a profit;

                     (b)  whether the defendant did something for, in preparation for, or in the course of, obtaining a profit.

             (2)  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.

Note:          For the purposes of this Division, section 132AA defines profit as not including any advantage, benefit, or gain, that:

(a)           is received by a person; and

(b)           results from, or is associated with, the person’s private or domestic use of any copyright material.

132A  Presumptions in relation to subsistence and ownership of copyright

             (1)  This section applies to a prosecution for an offence against this Division, except section 132AM, 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 that year and place are presumed to be as stated on the label or mark, unless the contrary is established.

             (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 person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

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 that year and place are presumed to be as stated in the certificate or document, unless the contrary is established.

             (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 person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

             (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.

132AAA  Presumptions relating to computer programs

             (1)  This section applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a literary work that is a computer program if:

                     (a)  articles or things embodying all or part of the program have been supplied (by sale or otherwise) to the public; and

                     (b)  at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.

             (2)  It is presumed that:

                     (a)  the computer program is an original literary work; and

                     (b)  the computer program was first published in the year; and

                     (c)  the person was the owner of copyright in the program when and where the articles, things or containers were labelled or marked;

unless the contrary is established.

             (3)  A presumption about a person under subsection (2) does not imply that the person was the only owner of copyright in the program when and where the articles, things or containers were labelled or marked.

132B  Presumptions relating to sound recordings

             (1)  This section applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a sound recording if:

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

                     (b)  at the time of the supply, the records or their containers bore a label or other mark.

             (2)  If the label or other mark contained a statement described in an item of the table, the matter described in the item is presumed, unless the contrary is established.

 

Statements and matters to be presumed unless the contrary is established

Item

Statement

Matter presumed

1

A specified person was the maker of the recording

The person was the maker of the recording

2

The recording was first published in a specified year

The recording was first published in the year

3

The recording was first published in a specified country

The recording was first published in the country

             (3)  If the label or mark consisted of the letter “P” in a circle accompanied by a specified year and the name of a person, it is presumed that:

                     (a)  the recording was first published in the year; and

                     (b)  the person was the owner of copyright in the recording when and where the records or containers were labelled or marked;

unless the contrary is established.

             (4)  A presumption about a person under this section does not imply that the person was:

                     (a)  the only maker of the recording; or

                     (b)  the only owner of copyright in the recording when and where the records or containers were labelled or marked.

132C  Presumptions relating to films

Presumption about film maker

             (1)  Subsection (2) applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a cinematograph film if:

                     (a)  copies of the film were made available to the public; and

                     (b)  a person’s name appeared on the copies in such a way as to imply that the person was the maker of the film; and

                     (c)  if the person is not a body corporate—the name is his or her true name or a name by which he or she is commonly known.

             (2)  It is presumed that:

                     (a)  the person is the maker of the film; and

                     (b)  the person made the film in circumstances to which subsection 98(3) does not apply;

unless the contrary is established.

Presumption about time of making and owner of copyright

             (3)  Subsection (4) applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a cinematograph film, if:

                     (a)  articles or things embodying the film have been supplied commercially; and

                     (b)  at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.

             (4)  It is presumed that:

                     (a)  the film was first made in the year; and

                     (b)  the person was the owner of copyright in the film when and where the articles, things or containers were labelled or marked;

unless the contrary is established.

             (5)  A presumption about a person under subsection (4) does not imply that the person was the only owner of copyright in the film when and where the articles, things or containers were labelled or marked.

Subdivision HExtra court orders

133  Destruction or delivery up of infringing copies etc.

             (1)  This section applies if:

                     (a)  a person is charged before a court with an offence against this Division, except section 132AM, whether or not the person is convicted of the offence; and

                     (b)  the person possesses an article that appears to the court to be any of the following:

                              (i)  a circumvention device used or intended to be used in conduct constituting an offence against Subdivision E;

                             (ii)  an infringing copy;

                            (iii)  a device or equipment used or intended to be used for making infringing copies.

             (2)  The court may order that the article be destroyed, delivered up to the owner of the copyright concerned or dealt with as the court thinks fit.

Subdivision IProcedure and jurisdiction

133A  Courts in which offences may be prosecuted

             (1)  Prosecutions for offences against this Division may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.

             (2)  However, the Federal Court of Australia does not have jurisdiction to hear or determine prosecutions for indictable offences, despite section 15C of the Acts Interpretation Act 1901.

             (3)  The Federal Court of Australia has jurisdiction to hear and determine prosecutions of the following offences against this Division:

                     (a)  summary offences;

                     (b)  offences of strict liability.

133B  Infringement notices

             (1)  The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to do both of the following as an alternative to prosecution:

                     (a)  pay a penalty to the Commonwealth;

                     (b)  forfeit to the Commonwealth:

                              (i)  each article (if any) that is alleged to be an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence; and

                             (ii)  each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence.

Note:          Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).

             (2)  The penalty must equal one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.


 

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 116AN, 116AO, 116AP, 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 4 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  Decision not to seize unless expenses are covered

             (1)  Subject to subsection (2), the CEO may decide not to seize the copies under subsection 135(7) unless he or she has been given by the objector (or by one or more of the objectors) a written undertaking acceptable to the CEO to repay to the Commonwealth the expenses of seizing the copies.

             (2)  The CEO may decide not to seize the copies under subsection 135(7) unless he or she has been given by the objector (or one or more of the objectors), instead of an undertaking, security in an amount that the CEO considers sufficient to repay to the Commonwealth the expenses of seizing the copies if:

                     (a)  an amount payable under an undertaking given by the objector (or one or more of the objectors) in relation to other copies has not been paid in accordance with the undertaking; and

                     (b)  the CEO considers it reasonable in all the circumstances to require the security.

             (3)  An undertaking may be withdrawn or varied if the CEO consents in writing to a written request from the objector or objectors to do so.

             (4)  In this section:

expenses of seizing the copies means the expenses that may be incurred by the Commonwealth if the copies were seized.

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