Contents
Part I—Preliminary 1
1............................ Short title............................................................................ 1
2............................ Commencement.................................................................. 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........................ 27
10AB..................... Non‑infringing copy of a computer program..................... 28
10AC..................... Non‑infringing copy of an electronic literary or music item 28
10AD.................... Accessories to imported articles........................................ 29
11.......................... Residence in a country not affected by temporary absence 30
12.......................... References to Parliament................................................... 30
13.......................... Acts comprised in copyright............................................. 30
14.......................... Acts done in relation to substantial part of work or other subject‑matter deemed to be done in relation to the whole................................................................................ 30
15.......................... References to acts done with licence of owner of copyright 31
16.......................... References to partial assignment of copyright................... 31
17.......................... Statutory employment....................................................... 31
18.......................... Libraries established or conducted for profit..................... 31
19.......................... References to Copyright Act, 1911................................... 31
20.......................... Names under which work is published............................. 32
21.......................... Reproduction and copying of works and other subject‑matter 32
22.......................... Provisions relating to the making of a work or other subject‑matter 33
23.......................... Sound recordings and records.......................................... 36
24.......................... References to sounds and visual images embodied in an article 36
25.......................... Provisions relating to broadcasting................................... 37
27.......................... Performance...................................................................... 38
28.......................... Performance and communication of works or other subject‑matter in the course of educational instruction.......................................................................................... 39
29.......................... Publication........................................................................ 41
29A....................... Making public................................................................... 43
30.......................... Ownership of copyright for particular purposes............... 44
30A....................... Commercial rental arrangement......................................... 44
Part III—Copyright in original literary, dramatic, musical and artistic works 46
Division 1—Nature, duration and ownership of copyright in works 46
31.......................... Nature of copyright in original works............................... 46
32.......................... Original works in which copyright subsists..................... 48
33.......................... Duration of copyright in original works........................... 49
35.......................... Ownership of copyright in original works........................ 50
Division 2—Infringement of copyright in works 53
36.......................... Infringement by doing acts comprised in the copyright.... 53
37.......................... Infringement by importation for sale or hire..................... 53
38.......................... Infringement by sale and other dealings............................ 54
39.......................... Infringement by permitting place of public entertainment to be used for performance of work 55
39A....................... Infringing copies made on machines installed in libraries and archives 55
39B........................ Communication by use of certain facilities........................ 56
Division 3—Acts not constituting infringements of copyright in works 57
40.......................... Fair dealing for purpose of research or study................... 57
41.......................... Fair dealing for purpose of criticism or review................. 59
41A....................... Fair dealing for purpose of parody or satire...................... 59
42.......................... Fair dealing for purpose of reporting news....................... 59
43.......................... Reproduction for purpose of judicial proceedings or professional advice 60
43A....................... Temporary reproductions made in the course of communication 60
43B........................ Temporary reproductions of works as part of a technical process of use 61
43C........................ Reproducing works in books, newspapers and periodical publications in different form for private use 61
44.......................... Inclusion of works in collections for use by places of education 63
44A....................... Importation etc. of books.................................................. 64
44B........................ Reproduction of writing on approved label for containers for chemical product 67
44BA..................... Acts done in relation to certain medicine........................... 68
44BB..................... Copyright subsisting in works shared for healthcare or related purposes 69
44C........................ Copyright subsisting in accessories etc. to imported articles 70
44D....................... Import of non‑infringing copy of sound recording does not infringe copyright in works recorded 70
44E........................ Importation and sale etc. of copies of computer programs 71
44F........................ Importation and sale etc. of copies of electronic literary or music items 72
Division 4—Acts not constituting infringements of copyright in literary, dramatic and musical works 73
45.......................... Reading or recitation in public or for a broadcast.............. 73
46.......................... Performance at premises where persons reside or sleep... 73
47.......................... Reproduction for purpose of broadcasting........................ 73
47AA.................... Reproduction for the purpose of simulcasting.................. 75
Division 4A—Acts not constituting infringements of copyright in computer programs 77
47AB..................... Meaning of computer program........................................ 77
47B........................ Reproduction for normal use or study of computer programs 77
47C........................ Back‑up copy of computer programs................................ 78
47D....................... Reproducing computer programs to make interoperable products 80
47E........................ Reproducing computer programs to correct errors............ 80
47F........................ Reproducing computer programs for security testing....... 81
47G....................... Unauthorised use of copies or information....................... 82
47H....................... Agreements excluding operation of certain provisions..... 82
Division 4B—Acts not constituting infringements of copyright in artistic works 83
47J......................... Reproducing photograph in different format for private use 83
Division 5—Copying of works in libraries or archives 85
48.......................... Interpretation..................................................................... 85
48A....................... Copying by Parliamentary libraries for members of Parliament 85
49.......................... Reproducing and communicating works by libraries and archives for users 85
50.......................... Reproducing and communicating works by libraries or archives for other libraries or archives 90
51.......................... Reproducing and communicating unpublished works in libraries or archives 96
51AA.................... Reproducing and communicating works in care of National Archives of Australia 97
52.......................... Publication of unpublished works kept in libraries or archives 98
53.......................... Application of Division to illustrations accompanying articles and other works 99
Division 6—Recording of musical works 101
54.......................... Interpretation................................................................... 101
55.......................... Conditions upon which manufacturer may make records of musical work 102
57.......................... Provisions relating to royalty where 2 or more works are on the one record 104
59.......................... Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work............................................................................... 105
60.......................... Records made partly for retail sale and partly for gratuitous disposal 107
61.......................... Making inquiries in relation to previous records............. 108
64.......................... Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records..................................................... 109
Division 7—Acts not constituting infringements of copyright in artistic works 110
65.......................... Sculptures and certain other works in public places........ 110
66.......................... Buildings and models of buildings................................. 110
67.......................... Incidental filming or televising of artistic works............. 110
68.......................... Publication of artistic works........................................... 110
70.......................... Reproduction for purpose of including work in television broadcast 111
72.......................... Reproduction of part of work in later work.................... 112
73.......................... Reconstruction of buildings............................................ 112
Division 8—Designs 114
74.......................... Corresponding design..................................................... 114
75.......................... Copyright protection where corresponding design registered 114
76.......................... False registration of industrial designs under the Designs Act 2003 114
77.......................... Application of artistic works as industrial designs without registration of the designs 115
77A....................... Certain reproductions of an artistic work do not infringe copyright 117
Division 9—Works of joint authorship 119
78.......................... References to all of joint authors..................................... 119
79.......................... References to any one or more of joint authors............... 119
79A....................... References to the identity of none of joint authors being generally known 119
80.......................... References to whichever of joint authors died last.......... 119
81.......................... Works of joint authorship published under pseudonyms 120
82.......................... Copyright to subsist in joint works without regard to any author who is an unqualified person 120
83.......................... Inclusion of joint works in collections for use in places of education 121
Part IV—Copyright in subject‑matter other than works 122
Division 1—Preliminary 122
84.......................... Definitions...................................................................... 122
Division 2—Nature of copyright in subject‑matter other than works 124
85.......................... Nature of copyright in sound recordings........................ 124
86.......................... Nature of copyright in cinematograph films.................... 124
87.......................... Nature of copyright in television broadcasts and sound broadcasts 125
88.......................... Nature of copyright in published editions of works........ 125
Division 3—Subject‑matter, other than works, in which copyright subsists 126
89.......................... Sound recordings in which copyright subsists............... 126
90.......................... Cinematograph films in which copyright subsists.......... 126
91.......................... Television broadcasts and sound broadcasts in which copyright subsists 126
92.......................... Published editions of works in which copyright subsists 127
Division 4—Duration of copyright in subject‑matter other than works 128
93.......................... Duration of copyright in sound recordings and films..... 128
95.......................... Duration of copyright in television broadcasts and sound broadcasts 129
96.......................... Duration of copyright in published editions of works.... 129
Division 5—Ownership of copyright in subject‑matter other than works 130
Subdivision A—Ownership of copyright in subject‑matter other than works 130
97.......................... Ownership of copyright in sound recordings................. 130
98.......................... Ownership of copyright in cinematograph films............. 130
99.......................... Ownership of copyright in television broadcasts and sound broadcasts 132
100........................ Ownership of copyright in published editions of works. 132
Subdivision B—Specific provisions relating to the ownership of copyright in pre‑commencement sound recordings of live performances 132
100AA.................. Application..................................................................... 132
100AB................... Definitions...................................................................... 132
100AC................... Application of sections 100AD and 100AE................... 133
100AD.................. Makers of pre‑commencement sound recordings of live performances 133
100AE................... Ownership of pre‑commencement copyright in sound recordings of live performances 134
100AF................... Former owners may continue to do any act in relation to the copyright 135
100AG.................. Actions by new owners of copyright.............................. 135
100AH.................. References to the owner of the copyright in a sound recording 136
Division 6—Infringement of copyright in subject‑matter other than works 137
100A..................... Interpretation................................................................... 137
101........................ Infringement by doing acts comprised in copyright........ 137
102........................ Infringement by importation for sale or hire................... 138
103........................ Infringement by sale and other dealings.......................... 138
103A..................... Fair dealing for purpose of criticism or review............... 139
103AA.................. Fair dealing for purpose of parody or satire.................... 139
103B...................... Fair dealing for purpose of reporting news..................... 140
103C...................... Fair dealing for purpose of research or study................. 140
104........................ Acts done for purposes of judicial proceeding................ 140
104A..................... Acts done by Parliamentary libraries for members of Parliament 141
104B...................... Infringing copies made on machines installed in libraries and archives 141
104C...................... Copyright subsisting in sound recordings and cinematograph films shared for healthcare or related purposes........................................................................................ 142
105........................ Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast 143
106........................ Causing sound recording to be heard at guest house or club 143
107........................ Making of a copy of the sound recording for purpose of broadcasting 144
108........................ Copyright in published recording not infringed by public performance if equitable remuneration paid 145
109........................ Copyright in published sound recording not infringed by broadcast in certain circumstances 146
109A..................... Copying sound recordings for private and domestic use 148
110........................ Provisions relating to cinematograph films..................... 149
110AA.................. Copying cinematograph film in different format for private use 149
110A..................... Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives........................................................................................ 151
110C...................... Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting 152
111........................ Recording broadcasts for replaying at more convenient time 153
111A..................... Temporary copy made in the course of communication.. 154
111B...................... Temporary copy of subject‑matter as part of a technical process of use 154
112........................ Reproductions of editions of work................................. 155
112A..................... Importation and sale etc. of books.................................. 155
112B...................... Reproduction of writing on approved label for containers for chemical product 159
112C...................... Copyright subsisting in accessories etc. to imported articles 159
112D..................... Import of non‑infringing copy of a sound recording does not infringe copyright in the sound recording........................................................................................ 160
112DA.................. Importation and sale etc. of copies of electronic literary or music items 161
112E...................... Communication by use of certain facilities...................... 161
Division 7—Miscellaneous 162
113........................ Copyrights to subsist independently............................... 162
113A..................... Agents may act on behalf of groups of performers......... 162
113B...................... Consent to the use of a sound recording of a live performance 162
113C...................... Use of published sound recordings when owners cannot be found etc. 163
Part IVA—Uses that do not infringe copyright 165
Division 1—Simplified outline of this Part 165
113D..................... Simplified outline of this Part......................................... 165
Division 2—Access by or for persons with a disability 166
113E...................... Fair dealing for purpose of access by persons with a disability 166
113F...................... Use of copyright material by organisations assisting persons with a disability 166
Division 3—Libraries and archives 167
Subdivision A—Public libraries, parliamentary libraries and archives 167
113G..................... Libraries.......................................................................... 167
113H..................... Preservation.................................................................... 167
113J....................... Research......................................................................... 168
113K...................... Administration of the collection...................................... 169
Subdivision B—Key cultural institutions 169
113L...................... Meaning of key cultural institution................................. 169
113M..................... Preservation.................................................................... 169
Division 4—Educational institutions—statutory licence 171
113N..................... Simplified outline of this Division.................................. 171
113P...................... Copying and communicating works and broadcasts....... 171
113Q..................... Remuneration notices...................................................... 174
113R...................... Equitable remuneration................................................... 175
113S...................... Educational institutions must assist collecting society..... 176
113T...................... Voluntary licences.......................................................... 177
113U..................... Persons acting on behalf of bodies administering educational institutions 178
Division 5—Collecting societies 179
Subdivision A—Declaration of collecting society 179
113V..................... Declaration of collecting society..................................... 179
113W..................... Requirements for declaration of collecting society.......... 181
113X..................... Revocation of declaration................................................ 182
Subdivision B—Operation of collecting society 183
113Y..................... Scope of this Subdivision............................................... 183
113Z...................... Annual report and accounts............................................ 183
113ZA................... Amendment of rules....................................................... 184
113ZB................... Review of distribution arrangement by Copyright Tribunal 184
113ZC................... Operation of collecting society rules............................... 185
Part V—Remedies and offences 186
Division 1—Preliminary 186
114........................ Interpretation................................................................... 186
Division 2—Actions by owner of copyright 187
115........................ Actions for infringement................................................. 187
115A..................... Injunctions relating to online locations outside Australia 189
116........................ Rights of owner of copyright in respect of infringing copies 193
116AAA............... Compensation for acquisition of property....................... 195
Division 2AA—Limitation on remedies available against service providers 196
Subdivision A—Preliminary 196
116AA.................. Purpose of this Division................................................. 196
116AB................... Definitions...................................................................... 196
116ABA................ Definition of service provider......................................... 197
Subdivision B—Relevant activities 198
116AC................... Category A activity......................................................... 198
116AD.................. Category B activity......................................................... 198
116AE................... Category C activity......................................................... 198
116AF................... Category D activity......................................................... 198
Subdivision C—Limitations on remedies 198
116AG.................. Limitations on remedies.................................................. 198
Subdivision D—Conditions 200
116AH.................. Conditions...................................................................... 200
116AI.................... Evidence of compliance with conditions......................... 204
Subdivision E—Regulations 204
116AJ.................... Regulations..................................................................... 204
Division 2A—Actions in relation to technological protection measures and electronic rights management information 206
Subdivision A—Technological protection measures 206
116AK................... Definitions...................................................................... 206
116AL................... Interaction of this Subdivision with Part VAA............... 206
116AM.................. Geographical application................................................. 206
116AN.................. Circumventing an access control technological protection measure 206
116AO.................. Manufacturing etc. a circumvention device for a technological protection measure 210
116AP................... Providing etc. a circumvention service for a technological protection measure 214
116AQ.................. Remedies in actions under this Subdivision.................... 217
Subdivision B—Electronic rights management information 218
116B...................... Removal or alteration of electronic rights management information 218
116C...................... Distribution to the public etc. of works whose electronic rights management information has been removed or altered............................................................................. 219
116CA................... Distribution and importation of electronic rights management information that has been removed or altered........................................................................................ 220
116CB................... Exception relating to national security and law enforcement 221
116D..................... Remedies in actions under this Subdivision.................... 221
Division 3—Proceedings where copyright is subject to exclusive licence 223
117........................ Interpretation................................................................... 223
118........................ Application..................................................................... 223
119........................ Rights of exclusive licensee............................................ 223
120........................ Joinder of owner or exclusive licensee as a party........... 224
121........................ Defences available against exclusive licensee................. 224
122........................ Assessment of damages where exclusive licence granted 225
123........................ Apportionment of profits between owner and exclusive licensee 225
124........................ Separate actions in relation to the same infringement...... 226
125........................ Liability for costs............................................................ 226
Division 4—Proof of facts in civil actions 227
126........................ Presumptions as to subsistence and ownership of copyright 227
126A..................... Presumptions relating to subsistence of copyright.......... 227
126B...................... Presumptions relating to ownership of copyright........... 228
127........................ Presumptions in relation to authorship of work.............. 230
128........................ Presumptions in relation to publisher of work................ 231
129........................ Presumptions where author has died.............................. 231
129A..................... Presumptions relating to computer programs.................. 232
130........................ Presumptions relating to sound recordings..................... 232
130A..................... Acts relating to imported copies of sound recordings..... 234
130B...................... Acts relating to imported copies of computer programs.. 234
130C...................... Acts relating to imported copies of electronic literary or music items 234
131........................ Presumptions relating to films........................................ 235
Division 4A—Jurisdiction and appeals 237
131A..................... Exercise of jurisdiction................................................... 237
131B...................... Appeals........................................................................... 237
131C...................... Jurisdiction of Federal Court of Australia....................... 237
131D..................... Jurisdiction of Federal Circuit and Family Court of Australia (Division 2) 237
Division 5—Offences and summary proceedings 238
Subdivision A—Preliminary 238
132AA.................. Definitions...................................................................... 238
132AB................... Geographical application................................................. 238
Subdivision B—Substantial infringement on a commercial scale 238
132AC................... Commercial‑scale infringement prejudicing copyright owner 238
Subdivision C—Infringing copies 241
132AD.................. Making infringing copy commercially............................ 241
132AE................... Selling or hiring out infringing copy............................... 242
132AF................... Offering infringing copy for sale or hire......................... 244
132AG.................. Exhibiting infringing copy in public commercially......... 246
132AH.................. Importing infringing copy commercially......................... 248
132AI.................... Distributing infringing copy........................................... 251
132AJ.................... Possessing infringing copy for commerce...................... 253
132AK................... Aggravated offence—work etc. converted to digital form 255
132AL................... Making or possessing device for making infringing copy 256
132AM.................. Advertising supply of infringing copy............................ 258
Subdivision D—Airing of works, sound recordings and films 259
132AN.................. Causing work to be performed publicly.......................... 259
132AO.................. Causing recording or film to be heard or seen in public.. 260
Subdivision E—Technological protection measures 261
132APA................ Definitions...................................................................... 261
132APB................ Interaction of this Subdivision with Part VAA............... 261
132APC................ Circumventing an access control technological protection measure 261
132APD................ Manufacturing etc. a circumvention device for a technological protection measure 266
132APE................. Providing etc. a circumvention service for a technological protection measure 270
Subdivision F—Electronic rights management information 274
132AQ.................. Removing or altering electronic rights management information 274
132AR................... Distributing, importing or communicating copies after removal or alteration of electronic rights management information..................................................................... 276
132AS................... Distributing or importing electronic rights management information 279
132AT................... Defences......................................................................... 282
Subdivision G—Evidence 283
132AU.................. Prosecution to prove profit............................................. 283
132A..................... Presumptions in relation to subsistence and ownership of copyright 284
132AAA............... Presumptions relating to computer programs.................. 285
132B...................... Presumptions relating to sound recordings..................... 285
132C...................... Presumptions relating to films........................................ 287
Subdivision H—Extra court orders 288
133........................ Destruction or delivery up of infringing copies etc......... 288
Subdivision I—Procedure and jurisdiction 288
133A..................... Courts in which offences may be prosecuted.................. 288
133B...................... Infringement notices....................................................... 289
Division 6—Miscellaneous 290
134........................ Limitation of actions in respect of infringement of copyright 290
134A..................... Affidavit evidence........................................................... 290
Division 7—Seizure of imported copies of copyright material 292
134B...................... Interpretation................................................................... 292
135........................ Restriction of importation of copies of works etc........... 293
135AA.................. Decision not to seize unless expenses are covered.......... 295
135AB................... Secure storage of seized copies....................................... 296
135AC................... Notice of seizure............................................................. 296
135AD.................. Inspection, release etc. of seized copies.......................... 298
135AE................... Forfeiture of seized copies by consent............................ 299
135AEA................ Claim for release of seized copies................................... 299
135AEB................ Seized copies not claimed are forfeited........................... 299
135AEC................ Late claim for release of seized copies............................ 300
135AED................ Objector to be notified of claim....................................... 300
135AF................... Release of seized copies to importer............................... 300
135AFA................ Copies released but not collected are forfeited................ 302
135AG.................. Provision relating to actions for infringement of copyright 302
135AH.................. Retention of control of seized copies.............................. 303
135AI.................... Disposal of seized copies forfeited to the Commonwealth 303
135AJ.................... Failure to meet Commonwealth’s expenses of seizure.... 304
135AK................... Immunity of the Commonwealth.................................... 305
Part VAA—Unauthorised access to encoded broadcasts 306
Division 1—Preliminary 306
135AL................... Definitions...................................................................... 306
135AM.................. Counterclaim................................................................... 307
135AN.................. This Part does not apply to law enforcement activity etc. 307
Division 2—Actions 308
Subdivision A—Actions relating to unauthorised decoders 308
135AOA............... Making or dealing with unauthorised decoder................ 308
Subdivision B—Actions relating to decoders for subscription broadcasts 309
135AOB................ Making decoder available online..................................... 309
Subdivision C—Actions for unauthorised access to encoded broadcasts 310
135AOC................ Causing unauthorised access.......................................... 310
135AOD............... Unauthorised commercial use of subscription broadcast 311
Subdivision D—Court orders 312
135AOE................ Relief.............................................................................. 312
135AOF................ Destruction of decoder.................................................... 313
Subdivision E—Jurisdiction and appeals 313
135AP................... Exercise of jurisdiction................................................... 313
135AQ.................. Appeals........................................................................... 313
135AR................... Jurisdiction of Federal Court of Australia....................... 313
135AS................... Jurisdiction of Federal Circuit and Family Court of Australia (Division 2) 313
Division 3—Offences 314
Subdivision A—Offences 314
135ASA................ Making unauthorised decoder......................................... 314
135ASB................ Selling or hiring unauthorised decoder........................... 314
135ASC................ Offering unauthorised decoder for sale or hire............... 314
135ASD................ Commercially exhibiting unauthorised decoder in public 315
135ASE................. Importing unauthorised decoder commercially............... 316
135ASF................. Distributing unauthorised decoder.................................. 317
135ASG................ Making unauthorised decoder available online............... 317
135ASH................ Making decoder available online for subscription broadcast 318
135ASI.................. Unauthorised access to subscription broadcast etc.......... 318
135ASJ................. Causing unauthorised access to encoded broadcast etc... 319
Subdivision B—Prosecutions 321
135ATA................ Courts in which offences may be prosecuted.................. 321
Subdivision C—Further orders by court 322
135AU.................. Destruction etc. of unauthorised decoders...................... 322
Part VC—Retransmission of free‑to‑air broadcasts 323
Division 1—Preliminary 323
135ZZI.................. Definitions...................................................................... 323
135ZZJ.................. Operation of collecting society rules............................... 324
135ZZJA............... Application of Part.......................................................... 324
Division 2—Retransmission of free‑to‑air broadcasts 325
135ZZK................. Retransmission of free‑to‑air broadcasts......................... 325
135ZZL................. Remuneration notices...................................................... 325
135ZZM................ Amount of equitable remuneration.................................. 326
135ZZN................. Record system................................................................ 326
135ZZP................. Inspection of records etc................................................. 327
135ZZQ................. Identity cards.................................................................. 328
135ZZR................. Revocation of remuneration notice.................................. 328
135ZZS................. Request for payment of equitable remuneration.............. 329
Division 3—Collecting societies 330
135ZZT................. Collecting societies......................................................... 330
135ZZU................. Revocation of declaration................................................ 332
135ZZV................. Annual report and accounts............................................ 332
135ZZW................ Amendment of rules....................................................... 333
135ZZWA............. Applying to Tribunal for review of distribution arrangement.. 333
Division 4—Interim retransmissions 335
135ZZX................. Appointment of notice holder......................................... 335
135ZZY................. Retransmitting before declaration of collecting society... 335
135ZZZ................. Notices by retransmitters................................................ 335
135ZZZA.............. Record keeping requirements.......................................... 336
135ZZZB............... Effect of declaration of collecting society........................ 336
Division 5—Miscellaneous 338
135ZZZC............... Relevant copyright owner may authorise retransmitting. 338
135ZZZD.............. Copyright not to vest under this Part.............................. 338
135ZZZE............... Licence to retransmit does not authorise copyright infringements 338
Part VD—Re‑broadcasts by satellite BSA licensees 339
Division 1—Preliminary 339
135ZZZF............... Definitions...................................................................... 339
135ZZZG.............. Eligible program and original broadcaster....................... 340
135ZZZH.............. Operation of collecting society rules............................... 340
Division 2—Re‑broadcasts by satellite BSA licensees 341
135ZZZI................ Re‑broadcasts by satellite BSA licensees........................ 341
135ZZZJ................ Remuneration notices...................................................... 343
135ZZZK............... Amount of equitable remuneration.................................. 344
135ZZZL............... Record system................................................................ 345
135ZZZM.............. Revocation of remuneration notice.................................. 345
135ZZZN.............. Request for payment of equitable remuneration.............. 345
Division 3—Collecting societies 347
135ZZZO.............. Collecting societies......................................................... 347
135ZZZP............... Revocation of declaration................................................ 349
135ZZZQ.............. Annual report and accounts............................................ 350
135ZZZR............... Amendment of rules....................................................... 351
135ZZZS............... Applying to Tribunal for review of distribution arrangement.. 351
Division 4—Interim re‑broadcasts 352
135ZZZT............... Appointment of notice holder......................................... 352
135ZZZU.............. Re‑broadcast before declaration of collecting society...... 352
135ZZZV.............. Notices by satellite BSA licensees.................................. 352
135ZZZW.............. Record keeping requirements.......................................... 353
135ZZZX.............. Effect of declaration of collecting society........................ 353
Division 5—Miscellaneous 355
135ZZZY.............. Relevant copyright owner may authorise re‑broadcast.... 355
135ZZZZ............... Copyright not to vest under this Part.............................. 355
135ZZZZA............ Licence to re‑broadcast does not authorise copyright infringements 355
Part VI—Copyright Tribunal of Australia 356
Division 1—Preliminary 356
136........................ Interpretation................................................................... 356
137........................ Cases to which licence schemes apply............................ 358
Division 2—Constitution of the Tribunal 359
138........................ Constitution of Tribunal.................................................. 359
139........................ Appointment of members of Tribunal............................. 359
140........................ Qualifications of members.............................................. 359
141........................ Tenure of office.............................................................. 360
141A..................... Seniority of Deputy Presidents....................................... 360
142........................ Acting President............................................................. 361
143........................ Remuneration and allowances......................................... 361
144........................ Oath or affirmation of office........................................... 361
144A..................... Disclosure of interests by members................................ 361
144B...................... Removal from office for failure to disclose interest........ 362
145........................ Resignation..................................................................... 362
146........................ Sittings of the Tribunal................................................... 363
147........................ President to arrange business of Tribunal....................... 364
Division 3—Applications and references to the Tribunal 365
Subdivision B—Applications relating to Parts III and IV 365
149........................ Applications to Tribunal for determination of remuneration payable for making recording or film of a work........................................................................................ 365
150........................ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of a copy of the sound recording........................ 365
151........................ Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording....................... 366
152........................ Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings........................................................................................ 366
152A..................... Applications to Tribunal for determination of amount of royalty payable for recording musical works 373
152B...................... Applications to Tribunal for determination of manner of paying royalty 374
153........................ Applications to Tribunal for apportionment of royalty in respect of a record 375
Subdivision C—Applications and referrals relating to Part IVA 376
153A..................... Applications and referrals relating to Division 4 of Part IVA 376
Subdivision E—Applications relating to Part VII 378
153DF................... Meaning of copyright material....................................... 378
153E...................... Applications to Tribunal under subsection 183(5).......... 378
153F...................... Applications to Tribunal to declare collecting society for government copies 379
153G..................... Applications to Tribunal to revoke a declaration of a collecting society 381
153H..................... Time limit for deciding applications under section 153F or 153G 382
153J....................... Amendment and revocation of a declaration on the declaration of another collecting society 382
153K...................... Applications to Tribunal for method of working out payment for government copies 383
153KA................... Review of collecting society’s distribution arrangement. 384
Subdivision G—Applications and references relating to Part VC 385
153M..................... Applications to the Tribunal under subsection 135ZZM(1) 385
153N..................... Applications to Tribunal under subsection 135ZZN(3).. 385
153P...................... References relating to declaration of collecting society... 386
153Q..................... References relating to revocation of declaration of collecting society 387
153R...................... Review of collecting society’s distribution arrangement. 387
Subdivision GA—Applications and references relating to Part VD 388
153RA................... Application to the Tribunal to determine amount payable to owner of copyright in a broadcast 388
153S...................... Applications to the Tribunal under paragraph 135ZZZK(1)(b)—equitable remuneration 389
153T...................... Applications to Tribunal under paragraph 135ZZZL(3)(b)—record system 390
153U..................... References relating to declaration of collecting society... 390
153V..................... References relating to revocation of declaration of collecting society 391
153W..................... Review of collecting society’s distribution arrangement. 392
Subdivision H—References and applications relating to licences and licence schemes 393
154........................ Reference of proposed licence schemes to Tribunal........ 393
155........................ Reference of existing licence schemes to Tribunal.......... 394
156........................ Further reference of licence schemes to Tribunal............ 396
157........................ Application to Tribunal in relation to licences................. 398
157A..................... Tribunal must have regard to ACCC guidelines on request 401
157B...................... Tribunal may make ACCC party to reference or application 402
158........................ Effect of licence scheme being continued in operation pending order of the Tribunal 402
159........................ Effect of order of Tribunal in relation to licences............ 403
Subdivision I—General provisions 406
160........................ Interim orders................................................................. 406
161........................ Reference of questions of law to Federal Court of Australia 406
162........................ Agreements or awards not affected................................. 408
Division 4—Procedure and evidence 409
163........................ Proceedings to be in public except in special circumstances 409
163A..................... Application may be made to Tribunal by the agent of the copyright owner 409
164........................ Procedure........................................................................ 409
165........................ Mistakes or errors in orders of the Tribunal................... 410
166........................ Regulations as to procedure............................................ 410
167........................ Power to take evidence on oath....................................... 411
168........................ Evidence in form of written statement............................. 411
169........................ Representation................................................................ 411
Division 4A—Alternative dispute resolution processes 413
169A..................... Referral of proceeding for alternative dispute resolution process 413
169B...................... Directions by President or Deputy President.................. 414
169C...................... Agreement about the terms of a decision etc................... 414
169D..................... Evidence not admissible.................................................. 415
169E...................... Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal........................................................................................ 416
169F...................... Participation by telephone etc.......................................... 416
169G..................... Engagement of persons to conduct alternative dispute resolution processes 417
Division 5—Miscellaneous 418
170........................ Registrar......................................................................... 418
170A..................... Other staff of the Tribunal.............................................. 419
171........................ Protecting persons connected with Tribunal proceedings 419
172........................ Offences by witnesses.................................................... 420
173........................ Offences relating to the Tribunal..................................... 421
174........................ Costs of proceedings...................................................... 423
175........................ Proof of orders of Tribunal............................................. 424
Part VII—The Crown 425
Division 1—Crown copyright 425
176........................ Crown copyright in original works made under direction of Crown 425
177........................ Crown copyright in original works first published in Australia under direction of Crown 425
178........................ Crown copyright in recordings and films made under direction of Crown 425
179........................ Provisions relating to ownership of copyright may be modified by agreement 426
180........................ Duration of Crown copyright in original works, sound recordings and films 426
182........................ Application of Parts III and IV to copyright subsisting by virtue of this Part 426
182A..................... Copyright in statutory instruments and judgments etc.... 427
Division 2—Use of copyright material for the Crown 428
182B...................... Definitions...................................................................... 428
182C...................... Relevant collecting society.............................................. 428
183........................ Use of copyright material for the services of the Crown. 429
183A..................... Special arrangements for copying for services of government 431
183B...................... Payment and recovery of equitable remuneration payable for government copies 432
183C...................... Powers of collecting society to carry out sampling......... 432
183D..................... Annual report and accounts of collecting society............ 433
183E...................... Alteration of rules of collecting society........................... 434
183F...................... Applying to Tribunal for review of distribution arrangement.. 434
Part VIII—Extension or restriction of operation of Act 435
Division 1—Foreign countries 435
184........................ Application of Act to countries other than Australia....... 435
185........................ Denial of copyright to citizens of countries not giving adequate protection to Australian works 437
Division 2—International organizations 439
186........................ Application of Act to international organizations............ 439
187........................ Original works made or first published by international organizations 439
188........................ Subject‑matter, other than original works, made or first published by international organizations 440
188A..................... Duration of international organization copyright............. 441
Part IX—Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films 443
Division 1—Preliminary 443
189........................ Definitions...................................................................... 443
190........................ Moral rights conferred on individuals............................. 448
191........................ Director, producer and screenwriter of cinematograph film 448
191A..................... Staging a performance.................................................... 449
191B...................... Conductor to be treated as a performer........................... 449
192........................ Rights to be additional to other rights............................. 449
Division 2—Right of attribution of authorship 450
193........................ Author’s right of attribution of authorship...................... 450
194........................ Acts giving rise to right of attribution of authorship....... 450
195........................ Nature of the identification of author.............................. 451
195AA.................. Identification of author to be clear and reasonably prominent 451
195AB................... What is a reasonably prominent identification................. 451
Division 2A—Right of attribution of performership 452
195ABA................ Performer’s right of attribution of performership........... 452
195ABB................ Acts giving rise to right of attribution of performership. 452
195ABC................ Nature of the identification of performer......................... 452
195ABD................ Identification of performer to be clear and reasonably prominent or audible 453
195ABE................ What is a reasonably prominent identification................. 453
Division 3—Right not to have authorship of a work falsely attributed 454
195AC................... Author’s right not to have authorship falsely attributed.. 454
195AD.................. Acts of false attribution of authorship of a literary, dramatic or musical work 454
195AE................... Acts of false attribution of authorship of artistic work.... 455
195AF................... Acts of false attribution of authorship of cinematograph film 455
195AG.................. Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work 456
195AH.................. Act of false attribution of authorship of altered cinematograph film 456
Division 3A—Right not to have performership falsely attributed 458
195AHA............... Performer’s right not to have performership falsely attributed 458
195AHB................ Acts of false attribution of performership....................... 458
195AHC................ Act of false attribution of performership of altered recorded performance 460
Division 4—Right of integrity of authorship of a work 462
195AI.................... Author’s right of integrity of authorship......................... 462
195AJ.................... Derogatory treatment of literary, dramatic or musical work 462
195AK................... Derogatory treatment of artistic work............................. 462
195AL................... Derogatory treatment of cinematograph film................... 463
Division 4A—Right of integrity of performership 464
195ALA................ Performer’s right of integrity of performership.............. 464
195ALB................ Derogatory treatment of performance............................. 464
Division 5—Duration and exercise of moral rights 465
Subdivision A—Duration and exercise of moral rights of authors 465
195AM.................. Duration of author’s moral rights................................... 465
195AN.................. Exercise of author’s moral rights.................................... 465
Subdivision B—Duration and exercise of moral rights of performers 466
195ANA............... Duration of performer’s moral rights for recorded performances 466
195ANB................ Exercise of performer’s moral rights.............................. 466
Division 6—Infringement of moral rights 468
Subdivision A—Infringement of moral rights of authors 468
195AO.................. Infringement of right of attribution of authorship........... 468
195AP................... Infringement of right not to have authorship falsely attributed 468
195AQ.................. Infringement of right of integrity of authorship.............. 468
195AR................... No infringement of right of attribution of authorship if it was reasonable not to identify the author 469
195AS................... No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable........................................................................................ 471
195AT................... Certain treatment of works not to constitute an infringement of the author’s right of integrity of authorship........................................................................................ 472
195AU.................. Infringement by importation for sale or other dealing..... 476
195AV.................. Infringement by sale and other dealings.......................... 477
195AVA............... Matters to be taken into account...................................... 477
195AVB................ Communication by use of certain facilities...................... 477
195AW.................. Author’s consent to act or omission—films or works in films 478
195AWA............... Author’s consent to act or omission—work that is not a film or included in a film 479
195AWB............... Consent invalidated by duress or false or misleading statements 480
195AX.................. Acts or omissions outside Australia............................... 480
Subdivision B—Infringement of moral rights of performers 480
195AXA............... Infringement of right of attribution of performership...... 480
195AXB................ Infringement of right not to have performership falsely attributed 481
195AXC................ Infringement of right of integrity of performership......... 481
195AXD............... No infringement of right of attribution of performership if it was reasonable not to identify the performer........................................................................................ 482
195AXE................ No infringement of right of integrity of performership if derogatory treatment or other action was reasonable........................................................................................ 482
195AXF................ Infringement by importation for sale or other dealing..... 484
195AXG............... Infringement by sale and other dealings.......................... 484
195AXH............... Matters to be taken into account...................................... 484
195AXI................. Communication by use of certain facilities...................... 485
195AXJ................. Performer’s consent to act or omission........................... 485
195AXK................ Consent invalidated by duress or false or misleading statements 486
195AXL................ Acts or omissions outside Australia............................... 486
Division 7—Remedies for infringements of moral rights 487
Subdivision A—Remedies for infringement of moral rights of authors 487
195AY.................. Definition etc.................................................................. 487
195AZ................... Actions for infringement of author’s moral rights.......... 487
195AZA................ Remedies for infringements of author’s moral rights...... 487
195AZD................ Presumption as to subsistence of copyright.................... 489
195AZE................. Presumption as to subsistence of author’s moral rights.. 490
195AZF................. Presumptions in relation to authorship of work.............. 490
195AZG................ Other presumptions in relation to literary, dramatic, musical or artistic work 490
Subdivision B—Remedies for infringement of moral rights of performers 490
195AZGA............. Definition etc.................................................................. 490
195AZGB............. Actions for infringement of performer’s moral rights..... 491
195AZGC............. Remedies for infringements of performer’s moral rights 491
195AZGD............. Presumption as to subsistence of copyright.................... 492
195AZGE.............. Presumption as to subsistence of performer’s moral rights 493
195AZGF.............. Presumptions in relation to performership...................... 493
Subdivision C—Miscellaneous 494
195AZGG............. Saving of other rights and remedies................................ 494
195AZGH............. Jurisdiction of courts...................................................... 494
Division 8—Miscellaneous 495
Subdivision A—Miscellaneous provisions about moral rights of authors 495
195AZH................ Parts of works................................................................ 495
195AZI.................. Works of joint authorship............................................... 495
195AZJ................. Cinematograph films that have more than one principal director 495
195AZK................ Cinematograph films that have more than one principal producer 496
195AZL................. Cinematograph films that have more than one principal screenwriter 496
195AZM............... Application—right of attribution of authorship............... 497
195AZN................ Application—right not to have authorship falsely attributed 498
195AZO................ Application—right of integrity of authorship.................. 498
Subdivision B—Miscellaneous provisions about moral rights of performers 499
195AZP................. Parts of performances..................................................... 499
195AZQ................ Performances that have more than one performer........... 499
195AZR................ Application..................................................................... 500
Part X—Miscellaneous 501
Division 1—Interpretation 501
195A..................... Interpretation................................................................... 501
Division 2—Review 502
195B...................... Review of certain decisions............................................ 502
Division 3—National Library of Australia 504
195CA................... Simplified outline............................................................ 504
195CB................... Copy of certain material to be delivered to the Library.... 504
195CC................... Library may request a copy of material available online.. 505
195CD................... Delivering material to the Library................................... 505
195CE................... Meaning of National Library material........................... 507
195CF................... Meaning of available online........................................... 507
195CG................... Infringement notices....................................................... 507
195CH................... Relationship with State and Territory laws..................... 508
195CI.................... Delegation....................................................................... 508
195CJ.................... Legislative instruments................................................... 508
Division 4—Other matters 509
196........................ Assignments and licences in respect of copyright........... 509
197........................ Prospective ownership of copyright............................... 509
198........................ Copyright to pass under will with unpublished work..... 510
199........................ Reception of broadcasts.................................................. 510
200........................ Use of works and broadcasts for educational purposes.. 511
200AAA............... Proxy web caching by educational institutions............... 513
200AB................... Use of works and other subject‑matter for certain purposes 514
202........................ Groundless threats of legal proceedings in relation to copyright infringement 516
202A..................... Groundless threats of legal proceedings in relation to technological protection measures 517
203........................ Limitation on power of courts to grant relief in proceedings under this Act 518
203A..................... Offence—failing to keep declarations relating to copying in library or archives 518
203E...................... Inspection of records and declarations retained in records of libraries and archives 520
203F...................... False and misleading declarations................................... 522
203G..................... Offence—disposing of or destroying certain declarations 522
203H..................... Notation of certain copies etc.......................................... 523
Part XI—Transitional 525
Division 1—Preliminary 525
204........................ Interpretation................................................................... 525
205........................ References to making of works, recordings and films.... 526
206........................ References in other laws or instruments to copyright..... 526
207........................ Application..................................................................... 527
208........................ Authorship of photographs............................................. 527
209........................ Publication...................................................................... 528
Division 2—Original works 529
210........................ Expired copyright not to revive....................................... 529
211........................ Original works in which copyright subsists................... 529
213........................ Ownership of copyright.................................................. 530
214........................ Infringement by importation, sale and other dealings...... 531
215........................ Recording of musical works........................................... 531
216........................ Publication of artistic works........................................... 532
217........................ Reconstruction of buildings............................................ 532
218........................ Industrial designs............................................................ 532
219........................ Reproduction of work upon payment of royalties........... 533
Division 3—Subject‑matter other than works 535
220........................ Sound recordings............................................................ 535
221........................ Cinematograph films....................................................... 535
222........................ Application of Act to dramatic works and photographs comprised in cinematograph films 535
223........................ Television broadcasts and sound broadcasts................... 536
224........................ Published editions of works........................................... 536
225........................ Infringement by importation, sale and other dealings...... 536
Division 4—Miscellaneous 537
226........................ Actions for infringement................................................. 537
227........................ Infringing copies............................................................. 537
228........................ Actions where copyright subject to exclusive licence..... 537
229........................ Offences and summary proceedings............................... 537
230........................ Limitation of actions....................................................... 538
231........................ Restriction of importation of printed copies of works..... 538
232........................ References and applications to Tribunal in relation to licence schemes 538
235........................ Crown copyright in films................................................ 539
236........................ Works made or published by international organizations 539
237........................ Subject‑matter, other than original works, made or published by international organizations 539
239........................ Assignments and licences............................................... 539
240........................ Bequests......................................................................... 541
242........................ Groundless threats of legal proceedings......................... 542
Division 5—Works made before 1 July, 1912 543
243........................ Interpretation................................................................... 543
244........................ Application..................................................................... 543
245........................ Rights conferred by Copyright Act, 1911....................... 543
246........................ Performing rights............................................................ 543
247........................ Contributions to periodicals............................................ 544
248........................ Assignments and licences............................................... 544
Part XIA—Performers’ protection 546
Division 1—Preliminary 546
248A..................... Interpretation................................................................... 546
248B...................... Educational purposes...................................................... 552
248C...................... Exempt recordings cease to be exempt recordings in certain circumstances 552
248CA................... Protection period............................................................. 553
248D..................... Private and domestic use................................................. 554
248F...................... Application..................................................................... 554
Division 2—Actions by performers 556
248G..................... What constitutes unauthorised use.................................. 556
248H..................... Copying sound recordings for broadcasting................... 558
248J....................... Actions for unauthorised use.......................................... 558
248K...................... Exercise of jurisdiction................................................... 560
248L...................... Appeals........................................................................... 560
248M..................... Jurisdiction of Federal Court.......................................... 560
248MA.................. Jurisdiction of Federal Circuit and Family Court of Australia (Division 2) 560
248N..................... Right to bring an action not assignable........................... 560
Division 3—Offences 561
Subdivision A—General offences 561
248P...................... Scope of this Subdivision............................................... 561
248PA................... Unauthorised direct recording during protection period.. 561
248PB................... Unauthorised indirect recording during protection period 562
248PC................... Unauthorised communication to public during 20‑year protection period 563
248PD................... Playing unauthorised recording publicly during 20‑year protection period 565
248PE.................... Possessing equipment to make or copy unauthorised recording 566
248PF.................... Copying unauthorised recording..................................... 567
248PG................... Unauthorised copying of exempt recording.................... 569
248PH................... Unauthorised copying of authorised sound recording.... 570
248PI..................... Selling etc. unauthorised recording................................. 572
248PJ.................... Distributing unauthorised recording............................... 573
248PK................... Commercial possession or import of unauthorised recording 575
248PL.................... Exhibiting unauthorised recording in public by way of trade 577
248PM.................. Importing unauthorised recording for exhibition by way of trade 578
Subdivision B—Acts relating to sound recordings of performances given before 1 July 1995 580
248QA.................. Scope of this Subdivision............................................... 580
248QB................... Possessing equipment for copying unauthorised sound recording 580
248QC................... Copying unauthorised sound recording.......................... 582
248QD.................. Selling etc. unauthorised sound recording...................... 583
248QE................... Distributing unauthorised sound recording..................... 584
248QF................... Commercial possession or import of unauthorised sound recording 586
248QG.................. Exhibiting unauthorised sound recording in public by way of trade 588
248QH.................. Importing unauthorised sound recording for exhibition by way of trade 589
Subdivision C—Prosecution and infringement notices 591
248R...................... Courts in which offences may be prosecuted.................. 591
248S...................... Protection against multiple proceedings for same act...... 591
248SA................... Infringement notices....................................................... 591
Subdivision D—Destruction or delivery up of unauthorised recordings 592
248T...................... Destruction or delivery up of unauthorised recordings... 592
Division 4—Extension of protection to foreign countries 593
248U..................... Application to foreign countries...................................... 593
248V..................... Denial of protection to citizens of countries not giving adequate protection to Australian performances 594
Part XII—Regulations 596
249........................ Regulations..................................................................... 596
The Schedule 599
Endnotes 600
Endnote 1—About the endnotes 600
Endnote 2—Abbreviation key 602
Endnote 3—Legislation history 603
Endnote 4—Amendment history 617
An Act relating to copyright and the protection of certain performances, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Copyright Act 1968.
2 Commencement
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 II—Interpretation
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 non‑dramatic form a version of the work (whether in its original language or in a different language) in a dramatic form;
(b) in relation to a literary work in a dramatic form a version of the work (whether in its original language or in a different language) in a non‑dramatic form;
(ba) in relation to a literary work being a computer program—a version of the work (whether or not in the language, code or notation in which the work was originally expressed) not being a reproduction of the work;
(c) in relation to a literary work (whether in a non‑dramatic form or in a dramatic form):
(i) a translation of the work; or
(ii) a version of the work in which a story or action is conveyed solely or principally by means of pictures; and
(d) in relation to a musical work—an arrangement or transcription of the work.
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.
available online, in relation to National Library material, has the meaning given by section 195CF.
body administering:
(a) an institution—means:
(i) if the institution is a body corporate—the institution; or
(ii) otherwise—the body or person (including the Crown) having ultimate responsibility for administering the institution; or
(b) a library or archives—means:
(i) if the library or archives is an archives covered by paragraph (aa) of the definition of archives—the person having the custody of the archives in accordance with the relevant arrangement mentioned in that paragraph; or
(ii) otherwise—the body (whether incorporated or not) or person (including the Crown) having ultimate responsibility for administering the library or archives.
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.
broadcasts collecting society means the body declared to be a collecting society by a declaration that is in force under section 113V and to which subparagraph 113V(4)(a)(ii) applies.
building includes a structure of any kind.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
chemical product has the same meaning as in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.
cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:
(a) of being shown as a moving picture; or
(b) of being embodied in another article or thing by the use of which it can be so shown;
and includes the aggregate of the sounds embodied in a sound‑track associated with such visual images.
circumvention device 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.
collecting society means:
(a) a works collecting society; or
(b) the broadcasts collecting society; or
(c) a body that a declaration in force under section 135ZZT declares to be a collecting society for the purposes of Part VC; or
(d) a body that a declaration in force under section 135ZZZO declares to be a collecting society for the purposes of Part VD; or
(e) a company that a declaration in force under section 153F declares to be a collecting society for the purposes of Division 2 of Part VII.
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:
(a) of a work—means a reproduction; or
(b) of a sound recording—means a record embodying the sound recording, or a substantial part of the sound recording, derived directly or indirectly from a record produced on the making of the sound recording; or
Note: See also subsection (6).
(c) of a cinematograph film—means any article or thing in which the visual images or sounds comprising the film are embodied; or
Note: See also subsection (5).
(d) of a broadcast—includes:
(i) a record embodying a sound recording of the whole or a part of the broadcast; or
(ii) a copy of a cinematograph film of the whole or a part of the broadcast.
copyright material means anything in which copyright subsists.
Note: This definition does not apply in Subdivision E of Division 3 of Part VI or Division 2 of Part VII (use of copyright material for the Crown): see sections 153DF and 182B.
delivery period has the meaning given by subsection 195CD(2).
device includes a plate.
dramatic work includes:
(a) a choreographic show or other dumb show; and
(b) a scenario or script for a cinematograph film;
but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.
drawing includes a diagram, map, chart or plan.
educational institution means:
(aa) an institution at which education is provided at pre‑school or kindergarten standard; or
(a) a school or similar institution at which full‑time primary education or full‑time secondary education is provided or both full‑time primary education and full‑time secondary education are provided; or
(b) a university, a college of advanced education or a technical and further education institution; or
(c) an institution that conducts courses of primary, secondary or tertiary education by correspondence or on an external study basis; or
(d) a school of nursing; or
(e) an undertaking within a hospital, if the undertaking conducts courses of study or training in the provision of:
(i) medical services; or
(ii) services incidental to the provision of medical services; or
(f) a teacher education centre; or
(g) an institution with the principal function of providing courses of study or training for any 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; or
(h) an undertaking within a body administering an educational institution, if:
(i) the educational institution is of a kind referred to in a preceding paragraph of this definition; and
(ii) 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 mentioned 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, if:
(i) 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 2 or more such kinds; and
(ii) 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).
eligible rights holder has the meaning given by subsection 113V(9).
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.
generally known: without limiting when the identity of the author of a work is generally known, the identity is generally known if it can be ascertained by reasonable enquiry.
government has the meaning given by subsection 182B(1).
government copy has the meaning given by subsection 182B(1).
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.
international agreement means:
(a) a convention to which Australia is a party; or
(b) an agreement or arrangement between Australia and a foreign country, including an agreement, arrangement or understanding between a Minister and an official or authority of a foreign country.
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.
key cultural institution has the meaning given by section 113L.
law of the Commonwealth includes a law of a Territory.
licensed copying or communicating has the meaning given by subsection 113Q(2).
literary work includes:
(a) a table, or compilation, expressed in words, figures or symbols; and
(b) a computer program or compilation of computer programs.
made public has a meaning affected by section 29A.
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).
National Library material has the meaning given by section 195CE.
National Library Minister means the Minister administering the National Library Act 1960.
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.
organisation assisting persons with a disability means:
(a) an educational institution; or
(b) a not‑for‑profit organisation with a principal function of providing assistance to persons with a disability (whether or not the organisation has other principal functions).
original form: a library or archives holds copyright material in original form if the material is held in the collection comprising the library or archives in a form that embodies the material as initially prepared by the author or maker of the material.
Example: A manuscript of a literary, dramatic or musical work.
Note: This definition does not apply in Division 6 of Part III: see subsection 54(6).
Parliament: see section 12.
person with a disability means a person with a disability that causes the person difficulty in reading, viewing, hearing or comprehending copyright material in a particular form.
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 197(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.
record embodying a sound recording means:
(a) a record produced upon the making of the sound recording; or
(b) a record that:
(i) embodies the sound recording; and
(ii) is derived directly or indirectly from a record produced upon the making of the sound recording.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
Registrar means the Registrar of the Tribunal provided for by section 170.
remuneration notice means:
(a) a notice mentioned in section 113Q; or
(b) a notice mentioned in section 135ZZL; or
(c) a notice mentioned in section 135ZZZJ.
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.
rules, of a collecting society, means the constitution of the society.
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 and the Crown in right of the Australian Capital Territory and the Northern Territory and also includes the Administration of a Territory other than the Australian Capital Territory or the Northern Territory.
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.
works collecting society means a body declared to be a collecting society by a declaration that is in force under section 113V and to which subparagraph 113V(4)(a)(i) applies.
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:
(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 Australian Capital Territory and the Northern Territory; 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
(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
(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 Australian Capital Territory and the Northern Territory and a reference to a Territory shall be read as not including a reference to the Australian Capital Territory or the Northern Territory.
(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) A reference to a copy of a cinematograph film includes a reference to 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) A reference to a copy of a sound recording includes a reference to 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).
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, 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.
29A Making public
(1) Without limiting when a work is made public, it is made public when:
(a) the work, or an adaptation of the work, is:
(i) published, performed in public, broadcast or otherwise communicated to the public; or
(ii) if the work is an artistic work—exhibited in public; or
(b) if the work is an artistic work included in a cinematograph film—the film is seen in public; or
(c) if the work is a building—the building has been constructed; or
(d) records of the work, or of an adaptation of the work, are:
(i) offered to the public (whether or not for sale); or
(ii) exposed for sale to the public.
(2) Without limiting when copyright material other than a work is made public, the material is made public when:
(a) it is published; or
(b) if the material is a sound recording—it is:
(i) heard in public; or
(ii) communicated to the public; or
(c) if the material is a cinematograph film—it is:
(i) seen in public (to the extent it consists of visual images); or
(ii) heard in public (to the extent it consists of sounds); or
(iii) communicated to the public; or
(d) copies of the material are:
(i) offered to the public (whether or not for sale); or
(ii) exposed for sale to the public.
(3) Subsections 29(4) to (7) apply, for the purposes of this section, in relation to making public in the same way as those subsections apply in relation to publication.
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 III—Copyright in original literary, dramatic, musical and artistic works
Division 1—Nature, 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 applies to copyright that subsists in a work under this Part.
Works first made public before 1 January 2019
(2) The following table has effect if the work was first made public before 1 January 2019.
| Duration of copyright—works first made public before 1 January 2019 |
| Item | Column 1
If … | Column 2
the copyright continues to subsist until … |
| 1 | no other item of this table applies | 70 years after the calendar year in which the author of the work died. |
| 2 | (a) the work is: (i) a literary work (other than a computer program); or (ii) a dramatic work; or (iii) a musical work; or (iv) an engraving; and (b) the author of the work has died; and (c) the work was not first made public before the author died; and (d) item 3 does not apply | 70 years after the calendar year in which the work was first made public. |
| 3 | the identity of the author of the work is not generally known at any time before the end of 70 years after the calendar year in which the work was first made public | 70 years after the calendar year in which the work was first made public. |
Works never made public, and works first made public on or after 1 January 2019
(3) The following table has effect if the work was not first made public before 1 January 2019.
| Duration of copyright—works not first made public before 1 January 2019 |
| Item | Column 1
If … | Column 2
the copyright continues to subsist until … |
| 1 | no other item of this table applies | 70 years after the calendar year in which the author of the work died. |
| 2 | (a) the identity of the author is not generally known at any time before the end of 70 years after the calendar year in which the work was made; and (b) the work is not first made public before the end of 50 years after the calendar year in which the work was made | 70 years after the calendar year in which the work was made. |
| 3 | (a) the identity of the author is not generally known at any time before the end of 70 years after the calendar year in which the work was first made public; and (b) the work is first made public before the end of 50 years after the calendar year in which the work was made | 70 years after the calendar year in which the work was first made public. |
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 2—Infringement 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 3—Acts 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.
44BA Acts done in relation to certain medicine
(1) The following acts are not an infringement of any copyright subsisting under this Part in a work that is product information approved under section 25AA of the Therapeutic Goods Act 1989 in relation to medicine:
(a) an act that is done under that Act and that is in respect of product information in relation to:
(i) restricted medicine; or
(ii) medicine in respect of which the applicant for the registration of that medicine under that Act has been given a notice of the kind referred to in subparagraph 25(1)(da)(ii) of that Act; or
(iii) medicine in respect of which subsection 25AA(2) or (3) of that Act applies;
(b) an act that is ancillary or incidental to an act referred to in paragraph (a).
(2) The following acts are not an infringement of any copyright subsisting under this Part in a work that is product information approved under section 25AA of the Therapeutic Goods Act 1989 in relation to medicine:
(a) supplying, in Australia, some or all of any product information that is approved under that section in relation to medicine;
(b) reproducing, in Australia, some or all of the information referred to in paragraph (a);
(c) publishing, in Australia, some or all of the information referred to in paragraph (a);
(d) communicating, in Australia, some or all of the information referred to in paragraph (a);
(e) adapting, in Australia, some or all of the information referred to in paragraph (a);
to the extent that the supply, reproduction, publication, communication or adaptation is for a purpose related to the safe and effective use of the medicine referred to in paragraph (a).
(3) An act done in Australia that is ancillary or incidental to a supply, reproduction, publication, communication or adaptation referred to in subsection (2) is not an infringement of any copyright subsisting under this Part in the work referred to in subsection (2).
(4) For the purposes of this section, medicine, product information and restricted medicine have the same meanings as in the Therapeutic Goods Act 1989.
44BB Copyright subsisting in works shared for healthcare or related purposes
(1) The copyright in a work is not infringed by an act comprised in the copyright in the work if:
(a) the act is done, or authorised to be done:
(i) for a purpose for which the collection, use or disclosure of health information is required or authorised under the My Health Records Act 2012; or
(ii) in circumstances in which a permitted general situation exists under item 1 of the table in subsection 16A(1) of the Privacy Act 1988 (serious threat to life, health or safety), or would exist if the act were done, or authorised to be done, by an entity that is an APP entity for the purposes of that Act; or
(iii) in circumstances in which a permitted health situation exists under section 16B of the Privacy Act 1988, or would exist if the act were done, or authorised to be done, by an entity that is an organisation for the purposes of that Act; or
(iv) for any other purpose relating to healthcare, or the communication or management of health information, prescribed by the regulations; and
(b) either:
(i) the work is substantially comprised of health information; or
(ii) the work allows for the storage, retrieval or use of health information and it is reasonably necessary to do the act, or authorise it to be done, in circumstances that would otherwise infringe copyright in the work.
(2) In this section:
healthcare has the same meaning as in the My Health Records Act 2012.
health information has the same meaning as in the My Health Records Act 2012.
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 4—Acts 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.
Division 4A—Acts 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 4B—Acts 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 5—Copying 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 113H(1) (Preservation).
(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 113H(1) (Preservation).
(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 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 113H(1) (Preservation).
(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 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.
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; and
(b) a reference in section 49, section 50 or section 51 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; and
(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 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 6—Recording 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.
Original form
(6) The definition of original form in subsection 10(1) does not apply in this Division.
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 7—Acts 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 8—Designs
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 9—Works 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
A reference in section 32 to the author of a work is taken to be a reference to any one or more of the authors of the work if the work is a work of joint authorship.
79A References to the identity of none of joint authors being generally known
A reference in any of the following provisions to the identity of the author of a work not being generally known is taken to be a reference to the identity of none of the authors of the work being generally known if the work is a work of joint authorship:
(a) item 3 of the table in subsection 33(2);
(b) item 2 or 3 of the table in subsection 33(3).
80 References to whichever of joint authors died last
A reference in any of the following provisions to the author of a work is taken to be a reference to the author who died last if the work is a work of joint authorship to which section 81 does not apply:
(a) item 1 or 2 of the table in subsection 33(2);
(b) item 1 of the table in subsection 33(3);
(c) section 51.
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.
(3) A reference in any of the provisions mentioned in subsection (3A) to the author of the work is taken to be a reference to:
(a) the author whose identity was disclosed; or
(b) if the identity of 2 or more of the authors was disclosed—whichever of those authors died last.
(3A) The provisions are as follows:
(a) item 1 or 2 of the table in subsection 33(2);
(b) item 1 of the table in subsection 33(3).
(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.
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 IV—Copyright in subject‑matter other than works
Division 1—Preliminary
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 2—Nature 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 3—Subject‑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 4—Duration of copyright in subject‑matter other than works
93 Duration of copyright in sound recordings and films
(1) This section applies to copyright that subsists in copyright material under this Part, if the material is:
(a) a sound recording; or
(b) a cinematograph film.
Copyright material first made public before 1 January 2019
(2) The copyright continues to subsist until 70 years after the calendar year in which the copyright material was first made public if the material was first made public before 1 January 2019.
Copyright material never made public, and material first made public on or after 1 January 2019
(3) The following table has effect if the copyright material was not first made public before 1 January 2019.
| Duration of copyright—copyright material not first made public before 1 January 2019 |
| Item | Column 1
If … | Column 2
the copyright continues to subsist until … |
| 1 | the copyright material is first made public before the end of 50 years after the calendar year in which the material was made | 70 years after the calendar year in which the material was first made public. |
| 2 | item 1 does not apply | 70 years after the calendar year in which the copyright material was made. |
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 5—Ownership of copyright in subject‑matter other than works
Subdivision A—Ownership 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 B—Specific 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 an eligible rights holder under subsection 113V(9), nor a relevant copyright owner under section 135ZZI or 135ZZZF.
Division 6—Infringement 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.
104C Copyright subsisting in sound recordings and cinematograph films shared for healthcare or related purposes
(1) The copyright in a cinematograph film or a sound recording is not infringed by an act comprised in the copyright in the film or recording if:
(a) the act is done, or authorised to be done:
(i) for a purpose for which the collection, use or disclosure of health information is required or authorised under the My Health Records Act 2012; or
(ii) in circumstances in which a permitted general situation exists under item 1 of the table in subsection 16A(1) of the Privacy Act 1988 (serious threat to life, health or safety), or would exist if the entity doing the thing were an APP entity for the purposes of that Act; or
(iii) in circumstances in which a permitted health situation exists under section 16B of the Privacy Act 1988, or would exist if the entity doing the thing were an organisation for the purposes of that Act; or
(iv) for any other purpose relating to healthcare, or the communication or management of health information, prescribed by the regulations; and
(b) either:
(i) the film or recording is substantially comprised of health information; or
(ii) the film or recording allows for the storage, retrieval or use of health information and it is reasonably necessary to do the act, or authorise it to be done, in circumstances that would otherwise infringe copyright in the work.
(2) In this section:
healthcare has the same meaning as in the My Health Records Act 2012.
health information has the same meaning as in the My Health Records Act 2012.
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 registered charity;
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 a registered charity 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 registered charity.
(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.
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 othe