Copyright Legislation Amendment Act 2004
No. 154, 2004
An Act to amend the law relating to copyright, and for related
purposes
[Assented to 15 December 2004]
The Parliament of Australia enacts:
1Â Short
title
                  This Act may be cited as the Copyright
Legislation Amendment Act 2004.
2Â
Commencement
            (1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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15 December 2004
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2. Schedule 1
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The later of:
(a) the start of the day on which this Act receives the Royal
Assent; and
(b) immediately after the commencement of the provisions
covered by table item 2 in the table in section 2 of the US Free
Trade Agreement Implementation Act 2004.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
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1 January 2005
(paragraph (b) applies)
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Note:Â Â Â Â Â Â Â Â Â This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
            (2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3Â
Schedule(s)
                  Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendments
Copyright Act 1968
1Â Subsection 43B(1)
Omit “making of a reproduction”, substitute “making of a
temporary reproduction”.
Note:Â Â Â Â Â Â The heading to section 43B is altered by
omitting “Reproduction” and substituting “Temporary reproductions”.
2Â Subsection 43B(1)
Omit “made as part”, substitute “made as a necessary part”.
3Â Subsection 43B(2)
Repeal the subsection, substitute:
            (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.
4Â Subsection 111B(1)
Omit “making of a reproduction”, substitute “making of a temporary
copy”.
Note:Â Â Â Â Â Â The heading to section 111B is altered by
omitting “Reproduction” and substituting “Temporary copy”.
5Â Subsection 111B(1)
Omit “the reproduction”, substitute “the temporary copy”.
6Â Subsection 111B(1)
Omit “made as part”, substitute “made as a necessary part”.
7Â Subsection 111B(2)
Repeal the subsection, substitute:
            (2) Subsection (1) does not apply to:
                    (a) the making of a temporary copy of
a subject‑matter if the temporary copy is made from:
                             (i) an infringing copy of
the subject‑matter; or
                            (ii) a copy of the subject‑matter
where the copy is made in another country and would be an infringing copy of
the subject‑matter if the person who made the copy had done so in
Australia; or
                    (b) the making of a temporary copy of
a subject‑matter as a necessary part of a technical process of using a
copy of the subject‑matter if that use constitutes an infringement of the
copyright in the subject‑matter.
            (3) Subsection (1) does not apply to any
subsequent use of a temporary copy of a subject‑matter other than as a
part of the technical process in which the temporary copy was made.
8Â Application of items 1 to 7
The amendments made by items 1 to 7 apply in respect of acts
done after the day on which this item commences.
9Â Section 116AB (definition of financial benefit)
Repeal the definition.
10Â Subsection 116AH(1) (table item 4, condition 1)
Omit “A financial benefit is to be regarded as directly
attributable to the infringing activity only if the carriage service provider
knew or ought reasonably to have known that an infringement of copyright was
involved.”.
11Â Subsection 116AH(1) (table item 4, after condition
2)
Insert:
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2A. The
carriage service provider must act expeditiously to remove or disable access
to copyright material residing on its system or network if the carriage
service provider:
(a) becomes aware that the material is infringing; or
(b) becomes aware of facts or circumstances that make it
apparent that the material is likely to be infringing.
The carriage
service provider does not, in an action relating to this Division, bear any
onus of proving a matter referred to in paragraph (a) or (b).
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12Â Subsection 116AH(1) (table item 5, condition 1)
Omit “A financial benefit is to be regarded as directly
attributable to the infringing activity only if the carriage service provider
knew or ought reasonably to have known that an infringement of copyright was
involved.”.
13Â Subsection 116AH(1) (table item 5, after condition
2)
Insert:
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2A. The
carriage service provider must act expeditiously to remove or disable access
to a reference residing on its system or network if the carriage service
provider:
(a) becomes aware that the copyright material to which it
refers is infringing; or
(b) becomes aware of facts or circumstances that make it
apparent that the copyright material to which it refers is likely to be
infringing.
     The carriage service
provider does not, in an action relating to this Division, bear any onus of
proving a matter referred to in paragraph (a) or (b).
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14Â At the end of section 116AH
Add:
            (3) In deciding, for the purposes of
condition 1 in table items 4 and 5 in the table in subsection (1),
whether a financial benefit is otherwise directly attributable to the
infringing activity referred to in that condition, a court must have regard to:
                    (a) industry practice in relation to
the charging of services by carriage service providers, including charging
based on level of activity; and
                    (b) whether the financial benefit was
greater than the benefit that would usually result from charging in accordance
with accepted industry practice.
The court may have regard to other matters it considers
relevant.
            (4) An act done by a carriage service
provider in complying with the prescribed procedure referred to in condition 3
in table item 4 in the table in subsection (1) does not constitute a
failure to satisfy condition 2A in that item.
15Â At the end of section 130
Add:
            (3) To avoid doubt, the acceptance of
evidence admitted under this section in respect of a sound recording does not
imply that another person was not also:
                    (a) a maker of the recording; or
                    (b) an owner of copyright in the
recording in the place and at the time mentioned in subsection (2).
16Â Application of item 15
The amendment made by item 15 applies in respect of sound
recordings embodied wholly or partly in records that are supplied either before
or after this item commences.
17Â Paragraph 132(1)(a)
After “or hire”, insert “or with the intention of obtaining a
commercial advantage or profit”.
18Â Paragraphs 132(1)(b) and (c)
Omit “and”, substitute “or”.
19Â Subparagraph 132(1)(d)(i)
Omit “and”, substitute “or”.
20Â Subparagraph 132(1)(d)(ii)
Omit “and”, substitute “or”.
21Â Subparagraph 132(1)(d)(iii)
Omit “and”, substitute “or”.
22Â Paragraph 132(2)(a)
Omit “and”, substitute “or”.
23Â Paragraph 132(2A)(a)
Omit “and”, substitute “or”.
24Â Paragraph 132(2A)(b)
Omit “and”, substitute “or”.
25Â Paragraph 132(2A)(c)
Omit “and”, substitute “or”.
26Â Subparagraphs 132(5D)(b)(i) and (ii)
Omit “and”, substitute “or”.
27Â Subparagraph 132(5DA)(b)(i)
Omit “and”, substitute “or”.
28Â Subparagraph 132(5DA)(b)(ii)
Omit “trading and”, substitute “trading or”.
29Â Application of items 17 to 28
The amendments made by items 17 to 28 apply in respect of
acts done after the day on which this item commences.
30Â At the end of section 132B
Add:
            (3) To avoid doubt, the acceptance of
evidence admitted under this section in respect of a sound recording does not
imply that another person was not also:
                    (a) a maker of the recording; or
                    (b) an owner of copyright in the
recording in the place and at the time mentioned in subsection (2).
31Â Application of item 30
The amendment made by item 30 applies in respect of sound
recordings embodied wholly or partly in records that are supplied either before
or after this item commences.
32Â Paragraph 135AS(1)(b)
Omit “and”, substitute “or”.
33Â Paragraph 135AS(1)(c)
Omit “and”, substitute “or”.
34Â Paragraph 135AS(1)(d)
Omit “and”, substitute “or”.
35Â Subparagraph 135AS(1)(e)(i)
Omit “and”, substitute “or”.
36Â Subparagraph 135AS(1)(e)(ii)
After “for trading”, insert “or”.
37Â Subparagraph 135AS(1)(e)(iii)
Omit “and”, substitute “or”.
38Â Paragraph 135AS(1A)(d)
Omit “and”, substitute “or”.
39Â After subsection 135AS(1B)
Insert:
Offence in relation to use of encoded broadcast that
has been accessed without authorisation
         (1C) A person commits an offence if:
                    (a) a broadcaster makes an encoded
broadcast; and
                    (b) a broadcast decoding device is
used to gain access to the encoded broadcast; and
                    (c) the access is gained without the
authorisation of the broadcaster; and
                    (d) the person receives the broadcast
that has been accessed by the device; and
                    (e) the person knows the broadcaster
had not authorised the access to the broadcast; and
                     (f) the person uses, or authorises
the use of, the broadcast by way of trade or with the intention of obtaining a
commercial advantage or profit.
Note:Â Â Â Â Â Â Â Â Â See section 135AL for the definition of profit.
40Â Subsection 135AS(4)
Omit “or (1B)”, substitute “, (1B) or (1C)”.
41Â Application of items 32 to 40
The amendments made by items 32 to 40 apply in respect of
encoded broadcasts made after the day on which this item commences.
US Free Trade Agreement Implementation
Act 2004
42Â Item 118 of Schedule 9 (heading)
Omit “for agreements”, substitute “for certain
agreements”.
43Â After paragraph 118(1)(c) of Schedule 9
Insert:
                   (ca) that time is no later than 2 years
from the US FTA commencement day; and
44Â Paragraphs 118(3)(a) and (4)(a) of Schedule 9
Omit “compensation that is reasonable in all of the
circumstances”, substitute “an amount of reasonable compensation”.
45Â After subitem 118(4) of Schedule 9
Insert:
(4A)Â Â Â Â An amount of compensation agreed on or determined
under this item or item 119 of this Schedule may only include compensation
in respect of:
                    (a) costs incurred by the person for
the purposes of doing the act mentioned in paragraph (1)(c); and
                    (b) costs incurred, or that may be
incurred, by the person as a result of not being able to do that act.
46Â Subitem 118(6) of Schedule 9
Omit “pay reasonable compensation”, substitute “pay an amount of
reasonable compensation”.
47Â Paragraph 118(6)(a) of Schedule 9
After “ceased to subsist”, insert “and before the end of 2 years
from the US FTA commencement day”.
48Â Subitem 118(8) of Schedule 9
Insert:
US FTA commencement day means the day on which the
Australia‑United States Free Trade Agreement, done at Washington DC on
18 May 2004, comes into force for Australia.
49Â Subitem 119(1) of Schedule 9
Omit “under item 118 for the determination of reasonable
compensation”, substitute “under item 118 of this Schedule for the
determination of an amount of reasonable compensation”.
50Â Subitem 119(3) of Schedule 9
Omit “the amount of compensation that it considers to be
reasonable in all of the circumstances”, substitute “an amount of reasonable
compensation”.
51Â At the end of subitem 119(3) of Schedule 9
Add:
Note:Â Â Â Â Â Â The amount of compensation may only include
compensation in respect of certain costs: see subitem 118(4A) of this Schedule.
52Â Item 132 of Schedule 9 (heading)
Omit “for agreements”, substitute “for certain
agreements”.
53Â After paragraph 132(1)(c) of Schedule 9
Insert:
                   (ca) that time is no later than 2 years
from the US FTA commencement day; and
54Â Paragraphs 132(3)(a) and (4)(a) of Schedule 9
Omit “compensation that is reasonable in all of the
circumstances”, substitute “an amount of reasonable compensation”.
55Â After subitem 132(4) of Schedule 9
Insert:
(4A)Â Â Â Â An amount of compensation agreed on or determined
under this item or item 133 of this Schedule may only include compensation
in respect of:
                    (a) costs incurred by the person for
the purposes of doing the act mentioned in paragraph (1)(c); and
                    (b) costs incurred, or that may be
incurred, by the person as a result of not being able to do that act.
56Â Subitem 132(6) of Schedule 9
Omit “pay reasonable compensation”, substitute “pay an amount of
reasonable compensation”.
57Â Paragraph 132(6)(a) of Schedule 9
After “ceased to subsist”, insert “and before the end of 2 years
from the US FTA commencement day”.
58Â Subitem 132(8) of Schedule 9
Insert:
US FTA commencement day means the day on which the
Australia‑United States Free Trade Agreement, done at Washington DC on
18 May 2004, comes into force for Australia.
59Â Subitem 133(1) of Schedule 9
Omit “under item 132 for the determination of reasonable
compensation”, substitute “under item 132 of this Schedule for the
determination of an amount of reasonable compensation”.
60Â Subitem 133(3) of Schedule 9
Omit “the amount of compensation that it considers to be
reasonable in all of the circumstances”, substitute “an amount of reasonable
compensation”.
61Â At the end of subitem 133(3) of Schedule 9
Add:
Note:Â Â Â Â Â Â The amount of compensation may only include
compensation in respect of certain costs: see subitem 132(4A) of this Schedule.