unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.

(1)

The EL rights in an eligible layout are not infringed by making:

(a)

a copy or copies of the layout; or

(b)

an integrated circuit in accordance with the layout or with a copy of the layout;

for the private use of the person who does the making.

(2)

A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.

The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.

(1)

The EL rights in an eligible layout are not infringed:

(a)

by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;

(b)

by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);

(c)

by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or

(d)

by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).

(2)

The EL rights in an eligible layout are not infringed:

(a)

by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or

(b)

by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or

(c)

by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or

(d)

by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).

(1)

Where:

(a)

an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and

(b)

a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;

it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.

(2)

In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.

(3)

Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.

(1)

An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:

(a)

the act is for the defence or security of Australia; and

(b)

the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.

(2)

An authorisation may be given before or after the acts in respect of which it is given have been done.

(3)

Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.

(4)

Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.

(5)

Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.

(6)

An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.

(7)

Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.

In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.

(1)

Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.

(2)

Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

(3)

Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.

(4)

Where, in an action for infringement of EL rights:

(a)

an infringement is established; and

(b)

the court is satisfied that it is proper to do so, having regard to:

(i)

the flagrancy of the infringement;

(ii)

any benefit shown to have accrued to the defendant because of the infringement; and

(iii)

all other relevant matters;

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

An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.

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

Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:

(a)

is not entitled to exercise those rights against the owner of the EL rights; and

(b)

those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.

(1)

Where:

(a)

an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and

(b)

the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;

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

(2)

This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.

In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.

Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:

(a)

if the plaintiff is the exclusive licensee-take into account any liabilities to which the licence is subject; and

(b)

whether the plaintiff is the owner of the EL rights or the exclusive licensee-take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.

Where:

(a)

an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and

(b)

an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.

In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:

(a)

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

(b)

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

Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.

In an action under section 27:

(a)

EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and

(b)

where EL rights subsist in the layout-the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.

(1)

In an action under section 27, proof of either or both of the following matters may be given by affidavit:

(a)

the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;

(b)

the ownership, at a particular time, of the EL rights in that layout.

(2)

If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross-examination or the court, in its discretion, permits the affidavit to be used without the person's so appearing.

(1)

If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.

(2)

In subsection (1):