An Act relating to copyright and the protection of certain
performances, and for other purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Copyright
Act 1968.
2
Commencement [see Note 1]
This Act shall come into operation on a
date to be fixed by Proclamation.
4
Extension to external Territories
This Act extends to every external
Territory.
5
Exclusion of Imperial Copyright Act, 1911
(1) This Act operates to the exclusion of the
Copyright Act, 1911.
(2) For the purposes of section 8 of the
Acts Interpretation Act 1901‑1966, the Copyright Act, 1911 shall
be deemed to be an Act passed by the Parliament of the Commonwealth and to be
repealed by this Act, and the enactment of Part XI shall not be taken to
affect the operation of section 8 of the Acts Interpretation Act 1901‑1966
as it operates by virtue of this subsection in relation to matters to which
that Part does not apply.
6
Repeal of Copyright Acts
The following Acts are repealed:
Copyright Act 1912;
Copyright Act 1933;
Copyright Act 1935;
Copyright Act 1963.
7 Act
to bind the Crown
Subject to Part VII, this Act binds
the Crown but nothing in this Act renders the Crown liable to be prosecuted for
an offence.
8
Copyright not to subsist except by virtue of this Act
Subject to section 8A, copyright
does not subsist otherwise than by virtue of this Act.
8A
Prerogative rights of the Crown in the nature of copyright
(1) Subject to subsection (2), this Act
does not affect any prerogative right or privilege of the Crown.
(2) Where a right or privilege of the Crown
by way of copyright subsists in a work or published edition of a work, a person
does not infringe that right or privilege by doing, or authorizing the doing
of, an act in relation to the work or edition without the licence of the Crown
if, assuming that that right or privilege of the Crown did not subsist in the
work or edition, but copyright subsisted under this Act in the work or edition
and was owned by a person other than the Crown, the person would not infringe
the copyright of that owner in the work or edition by doing, or by authorizing
the doing of, that act without the licence of the owner.
(3) Nothing in subsection (2) shall be
taken to limit the duration of the right or privilege of the Crown by way of
copyright in a work or published edition of a work.
9
Operation of other laws
(1) This Act does not affect the right of, or
of a person deriving title directly or indirectly from, the Commonwealth or a
State to sell, use or otherwise deal with articles that have been, or are,
forfeited under a law of the Commonwealth or of the State.
(3) This Act does not affect the operation of
the law relating to breaches of trust or confidence.
9A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part 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.
broadcast means a communication to the public
delivered by a broadcasting service within the meaning of the Broadcasting
Services Act 1992. For the purposes of the application of this definition
to a service provided under a satellite BSA licence, assume that there is no
conditional access system that relates to the service.
Note: A broadcasting service does not include the
following:
(a) a service (including a
teletext service) that provides only data or only text (with or without
associated images); or
(b) a service that makes
programs available on demand on a point‑to‑point basis, including a
dial‑up service.
building includes a structure of any kind.
calendar year means a period of 12 months
commencing on 1 January.
carriage service provider has the same
meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications
Act 1997.
chemical product has the same meaning as in
the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.
cinematograph film means the aggregate of the
visual images embodied in an article or thing so as to be capable by the use of
that article or thing:
(a) of being shown as a moving
picture; or
(b) of
being embodied in another article or thing by the use of which it can be so
shown;
and includes the aggregate of the sounds embodied in a
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.
communicate means make available online or
electronically transmit (whether over a path, or a combination of paths, provided
by a material substance or otherwise) a work or other subject‑matter,
including a performance or live performance within the meaning of this Act.
computer program means a set of statements or
instructions to be used directly or indirectly in a computer in order to bring
about a certain result.
construction includes erection, and reconstruction
has a corresponding meaning.
controls access: a device, product,
technology or component (including a computer program) controls access
to a work or other subject‑matter if it requires the application of
information or a process, with the permission of the owner or exclusive
licensee of the copyright in the work or other subject‑matter, to gain
access to the work or other subject‑matter.
copy, in relation to a cinematograph film,
means any article or thing in which the visual images or sounds comprising the
film are embodied.
device includes a plate.
dramatic work includes:
(a) a choreographic show or other dumb
show; and
(b) a
scenario or script for a cinematograph film;
but does not include a cinematograph film as distinct from
the scenario or script for a cinematograph film.
drawing includes a diagram, map, chart or
plan.
educational
institution means:
(aa) an institution at which education
is provided at pre‑school or kindergarten standard;
(a) a school or similar institution at
which full‑time primary education or full‑time
secondary education is provided or both full‑time primary
education and full‑time secondary education are provided;
(b) a university, a college of
advanced education or a technical and further education institution;
(c) an institution that conducts
courses of primary, secondary or tertiary education by correspondence or on an
external study basis;
(d) a school of nursing in relation to
which a notice published under subsection 10A(4) is in force;
(e) an undertaking within a hospital,
being an undertaking:
(i) that conducts courses
of study or training in the provision of medical services, or in the provision
of services incidental to the provision of medical services; and
(ii) in relation to which a
notice published under subsection 10A(4) is in force;
(f) a teacher education centre in
relation to which a notice published under subsection 10A(4) is in force;
(g) an institution in relation to
which there is in force a notice published under subsection 10A(4) that
includes a declaration that the principal function of the institution is the
provision of courses of study or training for one of the following purposes:
(i) general education;
(ii) the preparation of
people for a particular occupation or profession;
(iii) the continuing
education of people engaged in a particular occupation or profession;
(iv) the teaching of English
to people whose first language is not English;
(h) an undertaking within a body
administering an educational institution of a kind referred to in a preceding
paragraph of this definition in relation to which there is in force a notice
published under subsection 10A(4) that includes a declaration that the principal
function, or one of the principal functions, of the undertaking is the
provision of teacher training to people engaged as instructors in educational
institutions of a kind referred to in a preceding paragraph of this definition,
or of 2 or more such kinds; or
(i) an institution, or an undertaking
within a body administering an educational institution of a kind referred to in
a preceding paragraph of this definition, in relation to which there is in
force a notice published under subsection 10A(4) that includes a declaration
that the principal function, or one of the principal functions, of the
institution, or undertaking, is the providing of material to educational
institutions of a kind referred to in a preceding paragraph of this definition,
or to educational institutions of 2 or more such kinds, and that that activity
is undertaken for the purpose of helping those institutions in their teaching
purposes.
electronic literary or music item means:
(a) a book in electronic form; or
(b) a periodical publication in
electronic form; or
(c) sheet music in electronic form;
regardless of whether there is a printed form.
electronic rights
management information, in relation to a work or other subject‑matter,
means information that:
(a) is electronic; and
(b) either:
(i) is or was attached to,
or is or was embodied in, a copy of the work or subject‑matter; or
(ii) appears or appeared in
connection with a communication, or the making available, of the work or
subject‑matter; and
(c) either:
(i) identifies the work or
subject‑matter, and its author or copyright owner (including such
information represented as numbers or codes); or
(ii) identifies or
indicates some or all of the terms and conditions on which the work or subject‑matter
may be used, or indicates that the use of the work or subject‑matter is
subject to terms or conditions (including such information represented as
numbers or codes).
engraving includes an etching, lithograph,
product of photogravure, woodcut, print or similar work, not being a photograph.
exclusive licence means a licence in writing,
signed by or on behalf of the owner or prospective owner of copyright,
authorizing the licensee, to the exclusion of all other persons, to do an act
that, by virtue of this Act, the owner of the copyright would, but for the
licence, have the exclusive right to do, and exclusive licensee
has a corresponding meaning.
free‑to‑air broadcast means:
(a) a broadcast delivered by a
national broadcasting service, commercial broadcasting service or community
broadcasting service within the meaning of the Broadcasting Services Act
1992; or
(b) a broadcast delivered by a
broadcasting service within the meaning of the Broadcasting Services Act
1992 that does no more than transmit program material supplied by National
Indigenous TV Limited.
future copyright means copyright to come into
existence at a future time or upon the happening of a future event.
infringing copy
means:
(a) in relation to a work—a
reproduction of the work, or of an adaptation of the work, not being a copy of
a cinematograph film of the work or adaptation;
(b) in relation to a sound recording—a
copy of the sound recording not being a sound‑track associated with
visual images forming part of a cinematograph film;
(c) in relation to a cinematograph
film—a copy of the film;
(d) in relation to a television
broadcast or a sound broadcast—a copy of a cinematograph film of the broadcast
or a record embodying a sound recording of the broadcast; and
(e) in
relation to a published edition of a work—a facsimile copy of the edition;
being an article (which may be an electronic reproduction
or copy of the work, recording, film, broadcast or edition) the making of which
constituted an infringement of the copyright in the work, recording, film,
broadcast or edition or, in the case of an article imported without the licence
of the owner of the copyright, would have constituted an infringement of that
copyright if the article had been made in Australia by the importer, but does
not include:
(f) a non‑infringing book whose
importation does not constitute an infringement of that copyright; or
(g) a non‑infringing accessory
whose importation does not constitute an infringement of that copyright; or
(h) a non‑infringing copy of a
sound recording whose importation does not infringe that copyright; or
(i) a non‑infringing copy of a
computer program whose importation does not infringe that copyright; or
(j) a non‑infringing copy of an
electronic literary or music item whose importation does not infringe that
copyright.
institution includes an educational
institution.
institution assisting persons with an intellectual
disability means:
(a) an educational institution; or
(b) any other institution which has as
its principal function, or one or its principal functions, the provision of
assistance to persons with an intellectual disability and in relation to which
a declaration under paragraph 10A(1)(d) is in force.
institution assisting
persons with a print disability means:
(a) an educational institution; or
(b) any other institution which has as
its principal function, or one of its principal functions, the provision of
literary or dramatic works to persons with a print disability and in relation
to which a declaration under paragraph 10A(1)(c) is in force.
international organization to which this Act applies
means an organization that is declared by regulations made for the purposes of
section 186 to be an international organization to which this Act applies,
and includes:
(a) an organ of, or office within, an
organization that is so declared; and
(b) a commission, council or other
body established by such an organization or organ.
judicial proceeding means a proceeding before
a court, tribunal or person having by law power to hear, receive and examine
evidence on oath.
law of the Commonwealth includes a law of a
Territory.
literary work includes:
(a) a table, or compilation, expressed
in words, figures or symbols; and
(b) a computer program or compilation
of computer programs.
manuscript, in relation to a literary,
dramatic or musical work, means the document embodying the work as initially
prepared by the author, whether the document is in hardcopy form, electronic
form or any other form.
material form, in relation to a work or an
adaptation of a work, includes any form (whether visible or not) of storage of
the work or adaptation, or a substantial part of the work or adaptation,
(whether or not the work or adaptation, or a substantial part of the work or
adaptation, can be reproduced).
non‑infringing
accessory means an accessory made in:
(a) a country that is a party to the
International Convention for the Protection of Literary and Artistic Works
concluded at Berne on 9 September 1886 as revised from time to time; or
(b) a country that is a member of the
World Trade Organization and has a law that provides consistently with the
TRIPS Agreement for:
(i) the ownership and
duration of copyright or a related right in works, sound recordings and
cinematograph films; and
(ii) the owner of the
copyright or related right to have rights relating to the reproduction of the
work, sound recording or cinematograph film;
where:
(c) the making of any copy of a work,
or any reproduction of a published edition of a work, that is, or is on, or is
embodied in, the accessory; or
(d) the making of any record embodying
a sound recording, or any copy of a cinematograph film, that is the accessory;
was authorised by the owner of the copyright in that
country in the work, edition, recording or film, as the case may be.
non‑infringing book means a book made
(otherwise than under a compulsory licence) in a country specified in
regulations made for the purposes of subsection 184(1), being a book whose
making did not constitute an infringement of any copyright subsisting in a
work, or in a published edition of a work, under a law of that country.
non‑infringing
copy:
(a) in relation to a sound recording,
has the meaning given by section 10AA; and
(b) in relation to a computer program,
has the meaning given by section 10AB; and
(c) in relation to an electronic
literary or music item, has the meaning given by section 10AC.
officer in charge means:
(a) in relation to archives—the
archivist or other person having, for the time being, immediate care and
control of the collection comprising the archives; and
(c) in relation to a library—the
librarian or other person having, for the time being, immediate care and
control of the collection comprising the library.
person with a print disability means:
(a) a person without sight; or
(b) a person whose sight is severely
impaired; or
(c) a person unable to hold or
manipulate books or to focus or move his or her eyes; or
(d) a person with a perceptual
disability.
photograph means a product of photography or
of a process similar to photography, other than an article or thing in which
visual images forming part of a cinematograph film have been embodied, and
includes a product of xerography, and photographic has a
corresponding meaning.
plate includes a stereotype, stone, block,
mould, matrix, transfer, negative or other similar appliance.
private and domestic use means private and
domestic use on or off domestic premises.
prospective owner means:
(a) in relation to a future copyright
that is not the subject of an agreement of a kind referred to in subsection
19(1)—the person who will be the owner of the copyright on its coming into
existence; or
(b) in relation to a future copyright
that is the subject of such an agreement—the person in whom, by virtue of that
subsection, the copyright will vest on its coming into existence.
qualifying country means:
(a) a country that is a party to the
International Convention for the Protection of Literary and Artistic Works
concluded at Berne on 9 September 1886 as revised from time to time; or
(b) a country that is a member of the
World Trade Organization and has a law that provides consistently with the
TRIPS Agreement for:
(i) the ownership and
duration of copyright or a related right in works, sound recordings and
cinematograph films; and
(ii) the owner of the
copyright or related right to have rights relating to the reproduction of the
work, sound recording or cinematograph film.
reception equipment means equipment whose
operation, either alone or together with other equipment, enables people to
hear or see a work or other subject‑matter that is communicated.
record includes a disc, tape, paper,
electronic file or other device in which sounds are embodied.
Registrar means the Registrar of the Tribunal
provided for by section 170.
retransmission, in relation to a broadcast,
means a retransmission of the broadcast, where:
(a) the content of the broadcast is
unaltered (even if the technique used to achieve retransmission is different to
the technique used to achieve the original transmission); and
(b) either:
(i) in any case—the
retransmission is simultaneous with the original transmission; or
(ii) if the retransmission
is in an area that has, wholly or partly, different local time to the area of
the original transmission—the retransmission is delayed until no later than the
equivalent local time.
satellite BSA licence means a commercial
television broadcasting licence allocated under section 38C of the Broadcasting
Services Act 1992.
satellite BSA licensee means the licensee of
a satellite BSA licence.
sculpture includes a cast or model made for
purposes of sculpture.
simulcasting means simultaneously
broadcasting a broadcasting service in both analog and digital form in
accordance with the requirements of the Broadcasting Services Act 1992
or of any prescribed legislative provisions relating to digital broadcasting.
sound broadcast means sounds broadcast
otherwise than as part of a television broadcast.
sound recording means the aggregate of the
sounds embodied in a record.
sound‑track,
in relation to visual images forming part of a cinematograph film, means:
(a) the part of any article or thing,
being an article or thing in which those visual images are embodied, in which
sounds are embodied; or
(b) a disc, tape or other device in
which sounds are embodied and which is made available by the maker of the film
for use in conjunction with the article or thing in which those visual images
are embodied.
sufficient acknowledgement, in relation to a
work, means an acknowledgement identifying the work by its title or other
description and, unless the work is anonymous or pseudonymous or the author has
previously agreed or directed that an acknowledgement of his or her name is not
to be made, also identifying the author.
technological protection measure means:
(a) an access control technological
protection measure; or
(b) a device, product, technology or
component (including a computer program) that:
(i) is used in Australia
or a qualifying country by, with the permission of, or on behalf of, the owner
or the exclusive licensee of the copyright in a work or other subject‑matter;
and
(ii) in the normal course
of its operation, prevents, inhibits or restricts the doing of an act comprised
in the copyright;
but does not include such a
device, product, technology or component to the extent that it:
(iii) if the work or other
subject‑matter is a cinematograph film or computer program (including a
computer game)—controls geographic market segmentation by preventing the
playback in Australia of a non‑infringing copy of the work or other
subject‑matter acquired outside Australia; or
(iv) if the work is a
computer program that is embodied in a machine or device—restricts the use of
goods (other than the work) or services in relation to the machine or device.
For the purposes of this definition, computer
program has the same meaning as in section 47AB.
television broadcast means visual images
broadcast by way of television, together with any sounds broadcast for
reception along with those images.
the Australian Broadcasting Commission means
the Australian Broadcasting Commission that was established under the Broadcasting
and Television Act 1942.
the Australian Broadcasting Corporation means
the Australian Broadcasting Corporation established under the Australian
Broadcasting Corporation Act 1983.
the Commonwealth includes the Administration
of a Territory.
the Copyright Act, 1911 means the Imperial
Act known as the Copyright Act, 1911.
the Copyright Tribunal or the Tribunal
means the Copyright Tribunal of Australia provided for by Part VI, and
includes a member of that Tribunal exercising powers of that Tribunal.
the Crown includes the Crown in right of a
State, the Crown in right of the Northern Territory and the Crown in right of Norfolk
Island and also includes the Administration of a Territory other than the Northern
Territory or Norfolk Island.
the National Librarian has the same meaning
as in the National Library Act 1960‑1967.
the National Library means the National
Library established under the National Library Act 1960‑1967.
the Special Broadcasting Service means the
Special Broadcasting Service that was referred to in section 5 of the Special
Broadcasting Service Act 1991.
the Special Broadcasting Service Corporation
means the body corporate preserved and continued in existence as the Special
Broadcasting Service Corporation under section 5 of the Special
Broadcasting Service Act 1991.
to the public means to the public within or
outside Australia.
TRIPS Agreement means the Agreement on Trade‑Related
Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh
Agreement establishing the World Trade Organization, done at Marrakesh on 15 April
1994.
Note: The English text of the Marrakesh Agreement
establishing the World Trade Organization is set out in Australian Treaty Series
1995 No. 8.
will includes a codicil.
work means a literary, dramatic, musical or
artistic work.
work of joint authorship means a work that
has been produced by the collaboration of two or more authors and in which the
contribution of each author is not separate from the contribution of the other
author or the contributions of the other authors.
writing means a mode of representing or
reproducing words, figures or symbols in a visible form, and written
has a corresponding meaning.
(1A) Without limiting the meaning of the
expression educational purposes in this Act, a copy of the whole
or a part of a work or other subject‑matter shall be taken, for the
purposes of the provision in which the expression appears, to have been made,
used or retained, as the case may be, for the educational purposes of an
educational institution if:
(a) it is made or retained for use, or
is used, in connection with a particular course of instruction provided by the
institution; or
(b) it is made or retained for inclusion,
or is included, in the collection of a library of the institution.
(2) Without limiting the meaning of the
expression reasonable portion in this Act, where a literary,
dramatic or musical work (other than a computer program) is contained in a published
edition of that work, being an edition of not less than 10 pages, a copy of
part of that work, as it appears in that edition, shall be taken to contain
only a reasonable portion of that work if the pages that are copied in the
edition:
(a) do not exceed, in the aggregate,
10% of the number of pages in that edition; or
(b) in a case where the work is
divided into chapters exceed, in the aggregate, 10% of the number of pages in
that edition but contain only the whole or part of a single chapter of the
work.
(2A) Without limiting the meaning of the
expression reasonable portion in this Act, if a person makes a
reproduction of a part of:
(a) a published literary work (other
than a computer program or an electronic compilation, such as a database); or
(b) a published dramatic work;
being a work that is in electronic form, the reproduction
is taken to contain only a reasonable portion of the work if:
(c) the number of words copied does
not exceed, in the aggregate, 10% of the number of words in the work; or
(d) if the work is divided into
chapters—the number of words copied exceeds, in the aggregate, 10% of the
number of words in the work, but the reproduction contains only the whole or
part of a single chapter of the work.
(2B) If a published literary or dramatic work is
contained in a published edition of the work and is separately available in
electronic form, a reproduction of a part of the work is taken to contain only
a reasonable portion of the work if it is taken to do so either under subsection (2)
or (2A), whether or not it does so under both of them.
(2C) If:
(a) a person makes a reproduction of a
part of a published literary or dramatic work; and
(b) the reproduction is taken to
contain only a reasonable portion of the work under subsection (2) or
(2A);
subsection (2) or (2A) does not apply in relation to
any subsequent reproduction made by the person of any other part of the same
work.
(3) In this
Act, unless the contrary intention appears:
(a) a
reference to the body administering an institution shall be read as:
(i) in a case where the
institution is a body corporate—a reference to the institution; or
(ii) in any other case—a
reference to the body or person (including the Crown) having ultimate
responsibility for the administration of the institution; and
(b) a reference to the body
administering a library or archives is to be read:
(i) in the case of
archives covered by paragraph (aa) of the definition of archives
in subsection (1)—as a reference to the person having the custody of the
archives in accordance with the relevant arrangement referred to in that
paragraph; or
(ii) otherwise—as a
reference to the body (whether incorporated or not), or the person (including
the Crown), having ultimate responsibility for the administration of the
library or archives; and
(c) a reference to a copy of a sound
recording shall be read as a reference to a record embodying a sound recording
or a substantial part of a sound recording being a record derived directly or
indirectly from a record produced upon the making of a sound recording; and
(e) a reference to the Crown in right
of a State shall be read as including a reference to the Crown in right of the
Northern Territory and the Crown in right of Norfolk Island; and
(f) a reference to the custodian in
charge of the copying records of an educational institution, an institution
assisting persons with a print disability or an institution assisting persons
with an intellectual disability shall be read as a reference to the person
having responsibility for the day‑to‑day administration of the
institution; and
(g) a reference to the making, by
reprographic reproduction, of a copy of a document, or of the whole or a part
of a work, shall be read as a reference to the making of a facsimile copy of
the document or the whole or that part of the work, being a facsimile copy of
any size or form; and
(h) a reference to a copy of a work,
or of a part of a work, for a person with a print disability is taken to be a
reference to:
(i) a record embodying a
sound recording of the work, or of the part of the work, being a record made
by, or on behalf of, the body administering an institution assisting persons
with a print disability and so made for the sole purpose of use in the
provision, whether by the institution or otherwise, of assistance to a person
or persons with a print disability; or
(ii) a Braille version,
large‑print version or photographic version of the work, or of the part
of the work, being a Braille version, large‑print version or photographic
version, as the case may be, made by, or on behalf of, the body administering
an institution assisting persons with a print disability and so made for the
sole purpose of use in the provision, whether by the institution or otherwise,
of assistance to a person or persons with a print disability; and
(ha) a reference to a copy for a person
with an intellectual disability, in relation to the whole or a part of an
eligible item within the meaning of Part VB, shall be read as a reference
to a copy, within the meaning of that Part, of an eligible item, or of a part
of an eligible item, as the case may be, made by, or on behalf of, the body
administering an institution assisting persons with an intellectual disability,
being a copy that is made for the sole purpose of use in the provision, whether
by the institution or otherwise, of assistance to a person or persons with an
intellectual disability; and
(j) a reference to a microform copy
of the whole or a part of a work shall be read as a reference to a copy of the
whole or a part of the work produced by miniaturizing the graphic symbols of
which the work is composed; and
(k) a reference to a periodical
publication shall be read as a reference to an issue of a periodical
publication and a reference to articles contained in the same periodical
publication shall be read as a reference to articles contained in the same
issue of that periodical publication; and
(l) a reference to a record embodying
a sound recording shall be read as a reference to:
(i) a record produced upon
the making of a sound recording; or
(ii) another record
embodying the sound recording directly or indirectly derived from a record so
produced; and
(m) a reference to a relevant record,
or a relevant declaration, in relation to the making, in reliance on a
particular section (other than section 49):
(i) of a copy, or a copy
for a person with a print disability, of the whole or a part of a work; or
(ia) of a copy for a person
with an intellectual disability of the whole or a part of an eligible item; or
(ii) of
a copy of a sound recording or a cinematograph film;
shall be read as a reference to
any record or declaration of a kind referred to in that section that is
required by this Act to be made in relation to the making of that copy; and
(ma) a reference to a relevant
declaration, in relation to the making, in reliance on section 49, of a
copy of the whole or a part of a work, shall be read as a reference to:
(i) in a case where the
copy is made in reliance on subsection 49(2)—a declaration of the kind referred
to in subsection 49(1) that is furnished in relation to the making of the copy;
or
(ii) in
a case where the copy is made in reliance on subsection 49(2C)—a declaration of
the kind referred to in paragraph 49(2C)(b) that is made in relation to the
making of the copy; or
(iii) in any case—a
declaration of the kind referred to in subsection 49(5) that is made in
relation to the making of the copy; and
(n) a reference to a State shall be
read as including a reference to the Northern Territory and Norfolk Island and
a reference to a Territory shall be read as not including a reference to the Northern
Territory or Norfolk Island.
(3A) For the purposes of this Act, something
held in, or forming part of, the collection of any archives covered by paragraph (aa)
of the definition of archives in subsection (1) is taken not
to be held in, and not to form part of, the collection of the National Archives
of Australia.
Note: Paragraph (aa) of the definition of archives
covers archival material in the custody of a person other than the
National Archives of Australia under an arrangement referred to in section 64
of the Archives Act 1983.
(4) Where:
(a) a collection of documents or other
material of historical significance or public interest that is in the custody
of a body, whether incorporated or unincorporated, is being maintained by the
body for the purpose of conserving and preserving those documents or other
material; and
(b) the
body does not maintain and operate the collection for the purpose of deriving a
profit;
paragraph (b) of the definition of archives
in subsection (1) applies to that collection.
Example: Museums and galleries are examples of bodies that
could have collections covered by paragraph (b) of the definition of archives.
(5) For the purposes of the definition of copy
in subsection (1), such a copy includes any form (whether visible
or not) of storage of a cinematograph film, or a substantial part of a
cinematograph film, (whether or not the copy of the film, or a substantial part
of the film, can be reproduced).
(6) For the purposes of paragraph 10(3)(c), a
reference to a copy of a sound recording includes any form (whether visible or
not) of storage of the sound recording, or a substantial part of the sound
recording, (whether or not the copy of the recording, or a substantial part of
the recording, can be reproduced).
10AA Non‑infringing
copy of a sound recording
Minimum requirements
(1) A copy of a sound recording is a non‑infringing
copy only if it is made by or with the consent of:
(a) the owner of the copyright or
related right in the sound recording in the country (the copy country)
in which the copy was made; or
(b) the owner of the copyright or
related right in the sound recording in the country (the original recording
country) in which the sound recording was made, if the law of the copy
country did not provide for copyright or a related right in sound recordings
when the sound recording was made; or
(c) the maker of the sound recording,
if neither the law of the copy country nor the law of the original recording
country (whether those countries are different or not) provided for copyright
or a related right in sound recordings when the sound recording was made.
Extra requirements for copies of recordings of works
subject to Australian copyright
(2) If the sound recording is of a work that
is a literary, dramatic or musical work in which copyright subsists in Australia,
the copy is a non‑infringing copy only if:
(a) copyright subsists in the work
under the law of the copy country; and
(b) the making of the copy does not
infringe the copyright in the work under the law of the copy country; and
(c) the copy country meets the
requirements of subsection (3).
To avoid doubt, the requirements of this subsection are additional
to those of subsection (1).
Requirements for copy country
(3) The copy country mentioned in subsection (2)
must:
(a) be a party to the International
Convention for the Protection of Literary and Artistic Works concluded at Berne
on 9 September 1886 as revised from time to time; or
(b) be a member of the World Trade
Organization and have a law that provides consistently with the TRIPS Agreement
for:
(i) the ownership and
duration of copyright in literary, dramatic and musical works; and
(ii) the owner of the
copyright in the work to have rights relating to the reproduction of the work.
Australian copyright may result from Act or regulations
(4) For the purposes of subsection (2)
it does not matter whether the copyright in the work subsists in Australia as a
result of this Act or as a result of the regulations made for the purposes of
section 184.
10AB Non‑infringing
copy of a computer program
A copy of a computer program is a non‑infringing
copy only if:
(a) it is made in a qualifying country;
and
(b) its making did not constitute an
infringement of any copyright in a work under a law of that country.
10AC Non‑infringing
copy of an electronic
literary or music item
A copy of an electronic literary or
music item is a non‑infringing copy only if:
(a) it is made in a qualifying
country; and
(b) its making did not constitute an
infringement of any copyright in a work, or in a published edition of a work,
under a law of that country.
10AD
Accessories to imported articles
Accessories
(1) If a person imports into Australia:
(a) an article that has embodied in it
a copy of a computer program; or
(b) an article that has embodied in it
a copy of an electronic literary or music item; or
(c) an
article that has embodied in it a copy of a sound recording;
a copy of any work or other subject matter (other than a
feature film) that is on, embodied in, or included with, the article on its
importation is taken to be an accessory to the article.
Note: See also sections 44C and 112C (about the
non‑infringement of copyright in works or other subject matter that are
accessories to imported articles).
Definition
(2) In this section:
feature film means a cinematograph film that:
(a) is produced wholly or principally:
(i) for exhibition to the
public in cinemas or by way of television broadcasting; or
(ii) for sale or rental to
the public where it is reasonable to assume that the viewing of the film
(without electronic interactive involvement with the film) would be the primary
object of any such sale or rental; and
(b) is more than 20 minutes in
duration.
Interpretation
(3) This section does not limit the meaning
of accessory in subsection 10(1).
10A
Declarations and notices relating to certain bodies and institutions
(1) The Attorney‑General may, by notice
in writing published in the Gazette:
(c) declare an institution to be, for
the purposes of this Act, an institution assisting persons with a print
disability; or
(d) declare an institution to be, for
the purposes of this Act, an institution assisting persons with an intellectual
disability.
(2) The Attorney‑General may, by notice
in writing published in the Gazette, revoke a declaration made under subsection (1).
(3) The
Attorney‑General shall cause a copy of a notice under subsection (1)
or (2) to be laid before each House of the Parliament within 15 sitting days of
that House after the notice is published in the Gazette.
(4) The body administering an institution may
cause to be published in the Gazette a notice that:
(a) sets out full particulars of the
name and address of the institution; and
(aa) sets out the principal function or
principal functions of the institution or of an undertaking within the body
administering the institution; and
(b) contains a statement to the effect
that the notice is published for the purposes of this subsection.
(5) The body administering an institution may
cause to be published in the Gazette a notice revoking a notice
published under subsection (4) in relation to the institution.
(5A) A collecting society may apply to the
Copyright Tribunal for review of a declaration included in a notice published
under subsection (4) of this section for the purposes of paragraph (g),
(h) or (i) of the definition of educational institution in
subsection 10(1).
Note: For applications to the Tribunal for review
see section 153L.
(6) In this section, institution
includes a school of nursing, an undertaking within a hospital, a teacher
education centre and an undertaking within a body administering an educational
institution.
11
Residence in a country not affected by temporary absence
For the purposes of this Act, a person
who, at a material time, was ordinarily resident in a country (including Australia)
but was temporarily absent from that country shall be treated as if he or she
had been resident in that country at that time.
12
References to Parliament
A reference in this Act to a Parliament
shall be read as a reference to the Parliament of the Commonwealth or of a
State or a legislature of a Territory.
13
Acts comprised in copyright
(1) A reference in this Act to an act
comprised in the copyright in a work or other subject‑matter shall be
read as a reference to any act that, under this Act, the owner of the copyright
has the exclusive right to do.
(2) For the purposes of this Act, the
exclusive right to do an act in relation to a work, an adaptation of a work or
any other subject‑matter includes the exclusive right to authorize a
person to do that act in relation to that work, adaptation or other subject‑matter.
14 Acts
done in relation to substantial part of work or other subject‑matter
deemed to be done in relation to the whole
(1) In this
Act, unless the contrary intention appears:
(a) a reference to the doing of an act
in relation to a work or other subject‑matter shall be read as including
a reference to the doing of that act in relation to a substantial part of the
work or other subject‑matter; and
(b) a reference to a reproduction,
adaptation or copy of a work shall be read as including a reference to a reproduction,
adaptation or copy of a substantial part of the work, as the case may be.
(2) This section does not affect the
interpretation of any reference in sections 32, 177, 180, 187 and 198 to
the publication, or absence of publication, of a work.
15 References
to acts done with licence of owner of copyright
For the purposes of this Act, an act
shall be deemed to have been done with the licence of the owner of a copyright
if the doing of the act was authorized by a licence binding the owner of the
copyright.
16
References to partial assignment of copyright
A reference in this Act to a partial
assignment of copyright shall be read as a reference to an assignment of
copyright that is limited in any way.
17
Statutory employment
For the purposes of this Act, the
employment of a person, or the employment of a person as an apprentice, under a
law of the Commonwealth or of a State but otherwise than under a contract of
service or contract of apprenticeship shall be treated as if that employment
were employment under a contract of service or employment under a contract of
apprenticeship, as the case may be.
18
Libraries established or conducted for profit
For the purposes of this Act, a library
shall not be taken to be established or conducted for profit by reason only
that the library is owned by a person carrying on business for profit.
19
References to Copyright Act, 1911
A reference in a provision of this Act
to the Copyright Act, 1911, in relation to any time before the commencement of
this Act, shall, for the purposes of the application of that provision in
relation to a State or a Territory, be read as a reference to the Copyright
Act, 1911 as it applied in that State or Territory at that time.
20
Names under which work is published
(1) A reference in this Act to the name or
names under which a work was published shall be read as a reference to the name
or names specified in the work as the name of the author or the names of the
authors of the work.
(2) For the purposes of this Act, a
publication of a work under two or more names shall not be taken to be
pseudonymous unless all those names are pseudonyms.
21
Reproduction and copying of works and other subject‑matter
(1) For the purposes of this Act, a literary,
dramatic or musical work shall be deemed to have been reproduced in a material
form if a sound recording or cinematograph film is made of the work, and any
record embodying such a recording and any copy of such a film shall be deemed
to be a reproduction of the work.
(1A) For the purposes of this Act, a work is
taken to have been reproduced if it is converted into or from a digital or
other electronic machine‑readable form, and any article embodying the
work in such a form is taken to be a reproduction of the work.
Note: The reference to the conversion of a work into
a digital or other electronic machine‑readable form includes the first
digitisation of the work.
(2) Subsections (1) and (1A) apply in
relation to an adaptation of a work in the same way as they apply in relation
to a work.
(3) For the purposes of this Act, an artistic
work shall be deemed to have been reproduced:
(a) in the case of a work in a two‑dimensional
form—if a version of the work is produced in a three‑dimensional form; or
(b) in
the case of a work in a three‑dimensional form—if a version of the work
is produced in a two‑dimensional form;
and the version of the work so produced shall be deemed to
be a reproduction of the work.
(4) The last preceding subsection has effect
subject to Division 7 of Part III.
(5) For the purposes of this Act, a computer
program is taken to have been reproduced if:
(a) an object code version of the
program is derived from the program in source code by any process, including
compilation; or
(b) a source code version of the
program is derived from the program in object code by any process, including
decompilation;
and any such version is taken to be a reproduction of the
program.
(6) For the purposes of this Act, a sound
recording or cinematograph film is taken to have been copied if it is converted
into or from a digital or other electronic machine‑readable form, and any
article embodying the recording or film in such a form is taken to be a copy of
the recording or film.
Note: The reference to the conversion of a sound
recording or cinematograph film into a digital or other electronic machine‑readable
form includes the first digitisation of the recording or film.
22
Provisions relating to the making of a work or other subject‑matter
Literary, dramatic, musical or artistic works
(1) A reference in this Act to the time when,
or the period during which, a literary, dramatic, musical or artistic work was
made shall be read as a reference to the time when, or the period during which,
as the case may be, the work was first reduced to writing or to some other
material form.
(2) For the purposes of this Act, a literary,
dramatic or musical work that exists in the form of sounds embodied in an
article or thing shall be deemed to have been reduced to a material form and to
have been so reduced at the time when those sounds were embodied in that
article or thing.
Sound recordings
(3) For the purposes of this Act:
(a) a sound recording, other than a
sound recording of a live performance, shall be deemed to have been made at the
time when the first record embodying the recording was produced; and
(b) the maker of the sound recording
is the person who owned that record at that time.
(3A) For the purposes of this Act, the makers of
a sound recording of a live performance are:
(a) the person or persons who, at the
time of the recording, own the record on which the recording is made; and
(b) the performer or performers who
performed in the performance (other than a performer who is already covered by paragraph (a)).
Note: A performer might be liable to pay
compensation under section 116AAA to a person who owns the record on which
the recording is made.
(3B) If:
(a) a sound recording of a live
performance is made; and
(b) a performer performs in that
performance under the terms of his or her employment by another person (the employer)
under a contract of service or apprenticeship;
then, for the purposes of paragraph (3A)(b), the
employer is taken to be a maker instead of that performer.
(3C) Subsection (3B) may be excluded or
modified by agreement between the performer and the employer.
Cinematograph films
(4) For the purposes of this Act:
(a) a reference to the making of a
cinematograph film shall be read as a reference to the doing of the things
necessary for the production of the first copy of the film; and
(b) the maker of the cinematograph
film is the person by whom the arrangements necessary for the making of the
film were undertaken.
Broadcasts and other communications
(5) For the purposes of this Act, a broadcast
is taken to have been made by the person who provided the broadcasting service
by which the broadcast was delivered.
(6) For the purposes of this Act, a
communication other than a broadcast is taken to have been made by the person
responsible for determining the content of the communication.
(6A) To avoid doubt, for the purposes of subsection (6),
a person is not responsible for determining the content of a communication
merely because the person takes one or more steps for the purpose of:
(a) gaining access to what is made available
online by someone else in the communication; or
(b) receiving the electronic
transmission of which the communication consists.
Example: A person is not responsible for determining the
content of the communication to the person of a web page merely because the
person clicks on a link to gain access to the page.
Definitions
(7) In this section:
live performance means:
(a) a performance (including an
improvisation) of a dramatic work, or part of such a work, including such a
performance given with the use of puppets; or
(b) a performance (including an
improvisation) of a musical work or part of such a work; or
(c) the reading, recitation or
delivery of a literary work, or part of such a work, or the recitation or
delivery of an improvised literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a
variety act or any similar presentation or show; or
(f) a performance of an expression of
folklore;
being a live performance, whether in the presence of an
audience or otherwise.
performer in a live performance:
(a) means each person who contributed
to the sounds of the performance; and
(b) if the performance includes a
performance of a musical work—includes the conductor.
sound recording of a live performance means a
sound recording, made at the time of the live performance, consisting of, or
including, the sounds of the performance.
23
Sound recordings and records
(1) For the purposes of this Act, sounds
embodied in a sound‑track associated with visual images forming part of
cinematograph film shall be deemed not to be a sound recording.
(2) A reference in this Act to a record of a
work or other subject‑matter shall, unless the contrary intention
appears, be read as a reference to a record by means of which the work or other
subject‑matter can be performed.
24
References to sounds and visual images embodied in an article
For the purposes of this Act, sounds or
visual images shall be taken to have been embodied in an article or thing if
the article or thing has been so treated in relation to those sounds or visual
images that those sounds or visual images are capable, with or without the aid
of some other device, of being reproduced from the article or thing.
25
Provisions relating to broadcasting
(1) A reference in this Act to broadcasting
shall, unless the contrary intention appears, be read as a reference to
broadcasting whether by way of sound broadcasting or of television.
(2) A reference in this Act to the doing of
an act by the reception of a television broadcast or sound broadcast shall be
read as a reference to the doing of that act by means of receiving a broadcast:
(a) from the transmission by which the
broadcast is made; or
(b) from
a transmission made otherwise than by way of broadcasting, but simultaneously
with the transmission referred to in the last preceding paragraph;
whether the reception of the broadcast is directly from
the transmission concerned or from a re‑transmission made by any person
from any place.
(3) Where a record embodying a sound recording
or a copy of a cinematograph film is used for the purpose of making a broadcast
(in this subsection referred to as the primary broadcast), a
person who makes a broadcast (in this subsection referred to as the
secondary broadcast) by receiving and making a retransmission of:
(a) the transmission by which the
primary broadcast was made; or
(b) a
transmission made otherwise than by way of broadcasting but simultaneously with
the transmission referred to in the last preceding paragraph;
shall, for the purposes of this Act, be deemed not to have
used the record or copy for the purpose of making the secondary broadcast.
(4) In this
Act:
(a) a
reference to a cinematograph film of a television broadcast shall be read as
including a reference to a cinematograph film, or a photograph, of any of the
visual images comprised in the broadcast; and
(b) a reference to a copy of a
cinematograph film of a television broadcast shall be read as including a
reference to a copy of a cinematograph film, or a reproduction of a photograph,
of any of those images.
27
Performance
(1) Subject to this section, a reference in
this Act to performance shall:
(a) be read as including a reference
to any mode of visual or aural presentation, whether the presentation is by the
use of reception equipment, by the exhibition of a cinematograph film, by the
use of a record or by any other means; and
(b) in
relation to a lecture, address, speech or sermon—be read as including a
reference to delivery;
and a reference in this Act to performing a work or an
adaptation of a work has a corresponding meaning.
(2) For the purposes of this Act, the
communication of a work or other subject‑matter to the public does not
constitute:
(a) performance; or
(b) causing visual images to be seen
or sounds to be heard.
(3) Where visual images or sounds are
displayed or emitted by any reception equipment to which they are communicated,
the operation of any equipment by which the images or sounds are communicated,
directly or indirectly, to the reception equipment shall be deemed not to
constitute performance or to constitute causing visual images to be seen or
sounds to be heard but, in so far as the display or emission of the images or
sounds constitutes a performance, or causes the images to be seen or the sounds
to be heard, the performance, or the causing of the images to be seen or sounds
to be heard, as the case may be, shall be deemed to be effected by the
operation of the reception equipment.
(4) Without
prejudice to the last two preceding subsections, where a work or an adaptation
of a work is performed or visual images are caused to be seen or sounds to be
heard by the operation of any equipment referred to in the last preceding
subsection or of any equipment for reproducing sounds by the use of a record,
being equipment provided by or with the consent of the occupier of the premises
where the equipment is situated, the occupier of those premises shall, for the
purposes of this Act, be deemed to be the person giving the performance or
causing the images to be seen or the sounds to be heard, whether he or she is
the person operating the equipment or not.
(5) This section does not apply to a
performance within the meaning of Part XIA.
28
Performance and communication of works or other subject‑matter in the
course of educational instruction
(1) Where a literary, dramatic or musical
work:
(a) is performed in class, or
otherwise in the presence of an audience; and
(b) is
so performed by a teacher in the course of giving educational instruction, not
being instruction given for profit, or by a student in the course of receiving
such instruction;
the performance shall, for the purposes of this Act, be
deemed not to be a performance in public if the audience is limited to persons
who are taking part in the instruction or are otherwise directly connected with
the place where the instruction is given.
(2) For the purposes of this section,
educational instruction given by a teacher at a place of education that is not
conducted for profit shall not be taken to be given for profit by reason only
that the teacher receives remuneration for giving the instruction.
(3) For the purposes of this section, a
person shall not be taken to be directly connected with a place where
instruction is given by reason only that he or she is a parent or guardian of a
student who receives instruction at that place.
(4) The last three preceding subsections
apply in relation to sound recordings and cinematograph films in like manner as
they apply in relation to literary, dramatic and musical works but, in the
application of those subsections in relation to such recordings or films, any
reference to performance shall be read as a reference to the act of causing the
sounds concerned to be heard or the visual images concerned to be seen.
(5) A communication of a literary, dramatic
or musical work, a sound recording or a cinematograph film is taken for the
purposes of this Act not to be a communication to the public if the
communication is made merely to facilitate:
(a) a performance of the work that,
because of this section, is not a performance in public; or
(b) an act of causing sounds forming
part of the recording to be heard that, because of this section, is not an act
of causing the sound recording to be heard in public; or
(c) an act of causing visual images or
sounds forming part of the cinematograph film to be seen or heard that, because
of this section, is not an act of causing the film to be seen or heard in
public.
(6) A communication of a television broadcast
or sound broadcast is taken for the purposes of this Act not to be a
communication of the broadcast, or of a work or other subject‑matter
included in the broadcast, to the public if:
(a) the communication is made merely
to facilitate the television broadcast being seen and heard, or the sound
broadcast being heard, in class or otherwise in the presence of an audience, in
the course of educational instruction that:
(i) is given by a teacher;
and
(ii) is not given for
profit; and
(b) the audience is limited to persons
who are taking part in the instruction or are otherwise directly connected with
the place where the instruction is given.
(7) A communication of an artistic work is
taken for the purposes of this Act not to be a communication of the work to the
public if:
(a) the communication is made merely
to facilitate the work being seen in class or otherwise in the presence of an
audience, in the course of educational instruction that:
(i) is given by a teacher;
and
(ii) is not given for
profit; and
(b) the audience is limited to persons
who are taking part in the instruction or are otherwise directly connected with
the place where the instruction is given.
29
Publication
(1) Subject to this section, for the purposes
of this Act:
(a) a literary, dramatic, musical or
artistic work, or an edition of such a work, shall be deemed to have been
published if, but only if, reproductions of the work or edition have been
supplied (whether by sale or otherwise) to the public;
(b) a cinematograph film shall be
deemed to have been published if, but only if, copies of the film have been
sold, let on hire, or offered or exposed for sale or hire, to the public; and
(c) a sound recording shall be deemed
to have been published if, but only if, records embodying the recording or a
part of the recording have been supplied (whether by sale or otherwise) to the
public.
(2) In determining, for the purposes of paragraph (1)(a),
whether reproductions of a work or edition have been supplied to the public,
section 14 does not apply.
(3) For the purposes of this Act, the
performance of a literary, dramatic or musical work, the supplying (whether by
sale or otherwise) to the public of records of a literary, dramatic or musical
work, the exhibition of an artistic work, the construction of a building or of
a model of a building, or the supplying (whether by sale or otherwise) to the
public of photographs or engravings of a building, of a model of a building or
of a sculpture, does not constitute publication of the work.
(4) A publication that is merely colourable
and is not intended to satisfy the reasonable requirements of the public shall
be disregarded for the purposes of this Act except in so far as it may
constitute an infringement of copyright or a breach of a duty under Part IX.
(5) For the purposes of this Act, a
publication in Australia or in any other country shall not be treated as being
other than the first publication by reason only of an earlier publication
elsewhere, if the two publications took place within a period of not more than
thirty days.
(6) In determining, for the purposes of any
provision of this Act:
(a) whether a work or other subject‑matter
has been published;
(b) whether a publication of a work or
other subject‑matter was the first publication of the work or other
subject‑matter; or
(c) whether
a work or other subject‑matter was published or otherwise dealt with in
the life‑time of a person;
any unauthorized publication or the doing of any other
unauthorized act shall be disregarded.
(7) Subject to section 52, a publication
or other act shall, for the purposes of the last preceding subsection, be taken
to have been unauthorized if, but only if:
(a) copyright subsisted in the work or
other subject‑matter and the act concerned was done otherwise than by, or
with the licence of, the owner of the copyright; or
(b) copyright did not subsist in the
work or other subject‑matter and the act concerned was done otherwise
than by, or with the licence of:
(i) the author or, in the
case of a sound recording, cinematograph film or edition of a work, the maker
or publisher, as the case may be; or
(ii) persons lawfully
claiming under the author, maker or publisher.
(8) Nothing in either of the last two
preceding subsections affects any provisions of this Act relating to the acts
comprised in a copyright or to acts constituting infringements of copyrights or
any provisions of Part IX.
30
Ownership of copyright for particular purposes
In the case of a copyright of which
(whether as a result of a partial assignment or otherwise) different persons
are the owners in respect of its application to:
(a) the doing of different acts or
classes of acts; or
(b) the
doing of one or more acts or classes of acts in different countries or at
different times;
the owner of the copyright, for any purpose of this Act,
shall be deemed to be the person who is the owner of the copyright in respect
of its application to the doing of the particular act or class of acts, or to
the doing of the particular act or class of acts in the particular country or
at the particular time, as the case may be, that is relevant to that purpose,
and a reference in this Act to the prospective owner of a future copyright of
which different persons are the prospective owners has a corresponding meaning.
30A
Commercial rental arrangement
(1) In this Act, the expression commercial
rental arrangement, in relation to a work reproduced in a sound
recording, signifies an arrangement that has the following features:
(a) however the arrangement is
expressed, it is in substance an arrangement under which a copy of the sound
recording is made available by a person on terms that it will or may be
returned to the person;
(b) the arrangement is made in the
course of the conduct of a business;
(c) the arrangement provides for the
copy to be made available:
(i) for payment in money
or money’s worth; or
(ii) as part of the
provision of a service for which payment in money or money’s worth is to be
made.
(2) In this Act, the expression commercial
rental arrangement, in relation to a sound recording or a computer
program, signifies an arrangement that has the following features:
(a) however the arrangement is
expressed, it is in substance an arrangement under which a copy of the sound
recording or computer program is made available by a person on terms that it
will or may be returned to the person;
(b) the arrangement is made in the
course of the conduct of a business;
(c) the arrangement provides for the
copy to be made available:
(i) for payment in money
or money’s worth; or
(ii) as part of the
provision of a service for which payment in money or money’s worth is to be
made.
(3) It is not the intention of the Parliament
that a lending arrangement should be regarded as a commercial rental
arrangement for the purposes of subsection (1) or (2).
(4) An arrangement is to be regarded as a
lending arrangement if, regardless of the way in which the arrangement is
expressed, the true nature of the arrangement is that it is an arrangement for
the lending of a copy of a sound recording or computer program under which no
amount, other than a deposit to secure the return of the copy, is payable.
Part 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 has effect subject to
subsection 32(2) and to section 34.
(2) Subject to this section, copyright that
subsists in a literary, dramatic, musical or artistic work by virtue of this
Part continues to subsist until the end of 70 years after the end of the
calendar year in which the author of the work died.
(3) If, before the death of the author of a
literary work (other than a computer program) or a dramatic or musical work:
(a) the work had not been published;
(b) the work had not been performed in
public;
(c) the work had not been broadcast;
and
(d) records
of the work had not been offered or exposed for sale to the public;
the copyright in the work continues to subsist until the
end of 70 years after the end of the calendar year in which the work is first
published, performed in public, or broadcast, or records of the work are first
offered or exposed for sale to the public, whichever is the earliest of those
events to happen.
(4) A reference in the last preceding
subsection to the doing of an act in relation to a work shall be read as
including a reference to the doing of that act in relation to an adaptation of
the work.
(5) If, before the death of the author of an
engraving, the engraving had not been published, the copyright in the engraving
continues to subsist until the end of 70 years after the end of the calendar
year in which the engraving is first published.
34
Duration of copyright in anonymous and pseudonymous works
(1) Subject to subsection (2), if the
first publication of a literary, dramatic, musical or artistic work is
anonymous or pseudonymous, any copyright subsisting in the work by virtue of
this Part continues to subsist until the end of the period of 70 years after
the end of the calendar year in which the work was first published.
(2) Subsection (1) does not apply in
relation to a work if, at any time before the end of the period referred to in
that subsection, the identity of the author of the work is generally known or
can be ascertained by reasonable inquiry.
35
Ownership of copyright in original works
(1) This section has effect subject to Parts
VII and X.
(2) Subject to this section, the author of a
literary, dramatic, musical or artistic work is the owner of any copyright
subsisting in the work by virtue of this Part.
(3) The operation of any of the next three
succeeding subsections in relation to copyright in a particular work may be
excluded or modified by agreement.
(4) If a literary, dramatic or artistic work:
(a) is made by the author under the
terms of his or her employment by the proprietor of a newspaper, magazine or
similar periodical under a contract of service or apprenticeship; and
(b) is so made for the purpose of
inclusion in a newspaper, magazine or similar periodical;
the following paragraphs apply:
(c) the
author is the owner of the copyright only in so far as the copyright relates
to:
(i) reproduction
of the work for the purpose of inclusion in a book; or
(ii) reproduction of the
work in the form of a hard copy facsimile (other than a hard copy facsimile
made as part of a process of transmission) made from a paper edition of, or
from another hard copy facsimile made from a paper edition of, an issue of the
newspaper, magazine or similar periodical, but not including reproduction by
the proprietor for a purpose connected with the publication of the newspaper,
magazine or similar periodical;
(d) except as provided by paragraph (c),
the proprietor is the owner of the copyright.
(5) Subject to
the last preceding subsection, where:
(a) a
person makes, for valuable consideration, an agreement with another person for
the taking of a photograph for a private or domestic purpose, the painting or
drawing of a portrait or the making of an engraving by the other person; and
(b) the
work is made in pursuance of the agreement;
the first‑mentioned person is the owner of any
copyright subsisting in the work by virtue of this Part, but, if at the time
the agreement was made that person made known, expressly or by implication, to
the author of the work the purpose for which the work was required, the author
is entitled to restrain the doing, otherwise than for that purpose, of any act
comprised in the copyright in the work.
(6) Where a literary, dramatic or artistic
work to which neither of the last two preceding subsections applies, or a
musical work, is made by the author in pursuance of the terms of his or her
employment by another person under a contract of service or apprenticeship,
that other person is the owner of any copyright subsisting in the work by
virtue of this Part.
(7) In this
section:
hard copy facsimile, in relation to a
literary, dramatic or artistic work, means a facsimile which is in a material
form and from which the work is visible to a human being without the use of any
device.
private or domestic purpose includes a
portrait of family members, a wedding party or children.
Division 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.
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.
47A
Sound broadcasts by holders of print disability radio licences
(1) The making of a sound broadcast of, or of
an adaptation of, a published literary or dramatic work does not constitute an
infringement of copyright in the work if:
(a) the broadcast is made by a person
being the holder of a print disability radio licence and is made under the
licence; and
(b) there is made by or on behalf of
the person, as soon as practicable after the making of the broadcast, a record
of the making of the broadcast that:
(i) sets out the time and
date of the making of the broadcast;
(ii) identifies the work;
and
(iii) contains particulars
of such other matters in relation to the work or in relation to the broadcast
as are prescribed.
(2) For the purposes of paragraph (1)(b),
a record of the making of a broadcast:
(a) may be made in writing or in any
other manner prescribed by the regulations; and
(b) if it is made in writing, shall be
in accordance with the form prescribed by the regulations.
(3) Where, at any time before the expiration
of the prescribed retention period after the making by a person of a sound
broadcast of a literary or dramatic work in reliance on subsection (1), a
record made for the purposes of paragraph (1)(b) in relation to the making
of the sound broadcast is not retained by the person, the person is guilty of
an offence punishable, upon conviction, by a fine not exceeding $500.
(3A) Subsection (3) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) It is a defence to a prosecution of a
person under subsection (3) in relation to the retention of a record if
the person satisfies the court that he or she took all reasonable precautions,
and exercised due diligence, to ensure the retention of the record.
(5) A person is not liable to be convicted
twice of an offence against subsection (3) in relation to the retention of
the same record.
(6) The owner of the copyright in a literary
or dramatic work, or the agent of such an owner, may notify in writing a person
who holds or held a print disability radio licence that the owner or agent
wishes to inspect:
(a) all the records of the person made
by or on behalf of the person for the purposes of paragraph (1)(b); or
(b) such
of those records as relate to the works of a specified author;
on a day specified in the notice, being a day (other than
a Saturday, Sunday or public holiday) not less than 7 days after the day on
which the notice is given.
(7) Where a person who receives a notice
under subsection (6) does not allow the owner or agent to inspect the
records to which the notice relates during business hours on the day specified
in the notice, the person is guilty of an offence punishable, upon conviction,
by a fine not exceeding $500.
(7A) Subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7B) Subsection (7) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal
Code).
(8) Where:
(a) a sound broadcast of, or of an
adaptation of, a literary or dramatic work is made by a person (in this
subsection referred to as the licence holder) being the holder of
a print disability radio licence;
(b) by virtue of subsection (1),
the making of the sound broadcast does not infringe copyright in the work; and
(c) the
owner of the copyright in the work makes a request in writing at any time
during the prescribed retention period after the making of the sound broadcast
for payment for the making of the sound broadcast;
the licence holder shall pay to the owner of the copyright
such an amount by way of equitable remuneration for the making of the sound
broadcast as is agreed upon between the owner of the copyright and the licence
holder or, in default of agreement, as is determined by the Copyright Tribunal
on the application of either the owner of the copyright or the licence holder.
(9) Where the Copyright Tribunal has under subsection (8)
determined the amount of equitable remuneration payable by a person to the
owner of the copyright in a work, the owner of the copyright may recover that
amount from the person in a court of competent jurisdiction as a debt due to
the owner of the copyright.
(10) Nothing in this section affects the right
of the owner of the copyright in a literary or dramatic work to grant a licence
authorising a person being the holder of a print disability radio licence to
make sound broadcasts of, or of adaptations of, the work without infringement
of that copyright.
(11) In this
section:
(a) prescribed retention period
means the period prescribed by the regulations for the purposes of this
paragraph; and
(b) print disability radio
licence means a licence in force under the Broadcasting Services Act
1992 or the Radiocommunications Act 1992, being a licence that was
granted for the purpose of authorising the making of sound broadcasts to
persons who by reason of old age, disability or literacy problems are unable to
handle books or newspapers or to read or comprehend written material.
Division 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
51A(1), to replace the article or published work because it was damaged, had
deteriorated or had been lost or stolen.
(2A) A person may make to an authorized officer
of a library or archives:
(a) a request to be supplied with a
reproduction of an article, or part of an article, contained in a periodical
publication, or of the whole or a part of a published work other than an
article contained in a periodical publication, being a periodical publication
or a published work held in the collection of a library or archives; and
(b) a declaration to the effect that:
(i) the person requires
the reproduction for the purpose of research or study and will not use it for
any other purpose;
(ii) the person has not
previously been supplied with a reproduction of the same article or other work,
or the same part of the article or other work, as the case may be, by an
authorized officer of the library or archives; and
(iii) by reason of the
remoteness of the person’s location, the person cannot conveniently furnish to
the officer in charge of the library or archives a request and declaration
referred to in subsection (1) in relation to the reproduction soon enough
to enable the reproduction to be supplied to the person before the time by
which the person requires it.
(2B) A request or declaration referred to in subsection (2A)
is not required to be made in writing.
(2C) Subject to
this section, where:
(a) a request and declaration referred
to in subsection (2A) are made by a person to an authorized officer of a
library or archives; and
(b) the authorized officer makes a
declaration setting out particulars of the request and declaration made by the
person and stating that:
(i) the declaration made
by the person, so far as it relates to the matters specified in subparagraphs (2A)(b)(i)
and (ii), does not contain a statement that, to the knowledge of the authorized
officer, is untrue in a material particular; and
(ii) the
authorized officer is satisfied that the declaration made by the person is true
so far as it relates to the matter specified in subparagraph (2A)(b)(iii);
an authorized officer of the library or archives may make,
or cause to be made, the reproduction to which the request relates and supply
the reproduction to the person.
Note: The reproduction could be made from another
reproduction of the article or published work in the collection of the library
or archives that was made without infringing copyright because of subsection
51A(1), to replace the article or published work because it was damaged, had
deteriorated or had been lost or stolen.
(3) Where a charge is made for making and
supplying a reproduction to which a request under subsection (1) or (2A)
relates, subsection (2) or (2C), as the case may be, does not apply in
relation to the request if the amount of the charge exceeds the cost of making
and supplying the reproduction.
(4) Subsection (2) or (2C) does not
apply in relation to a request for a reproduction of, or parts of, 2 or more
articles contained in the same periodical publication unless the articles are
requested for the same research or course of study.
(5) Subsection (2) or (2C) does not
apply to a request for a reproduction of the whole of a work (other than an
article contained in a periodical publication), or to a reproduction of a part
of such a work that contains more than a reasonable portion of the work unless:
(a) the work forms part of the library
or archives collection; and
(b) before the reproduction is made,
an authorized officer has, after reasonable investigation, made a declaration
stating that he or she is satisfied that a reproduction (not being a second‑hand
reproduction) of the work cannot be obtained within a reasonable time at an
ordinary commercial price.
(5AA) For the purposes of subsection (5), if
the characteristics of the work are such that subsection 10(2) or (2A) is
relevant to the question whether the reproduction contains only a reasonable
portion of the work, then that question is to be determined solely by reference
to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable
portion.
(5AB) For the purposes of paragraph (5)(b),
in determining whether a reproduction (not being a second‑hand reproduction)
of the work cannot be obtained within a reasonable time at an ordinary
commercial price, the authorized officer must take into account:
(a) the time by which the person
requesting the reproduction requires it; and
(b) the time within which a
reproduction (not being a second‑hand reproduction) of the work at an
ordinary commercial price could be delivered to the person; and
(c) whether an electronic reproduction
of the work can be obtained within a reasonable time at an ordinary commercial
price.
(5A) If an article contained in a periodical
publication, or a published work (other than an article contained in a
periodical publication) is acquired, in electronic form, as part of a library
or archives collection, the officer in charge of the library or archives may
make it available online within the premises of the library or archives in such
a manner that users cannot, by using any equipment supplied by the library or
archives:
(a) make an electronic reproduction of
the article or work; or
(b) communicate the article or work.
(6) The copyright in an article contained in
a periodical publication is not infringed by the making, in relation to a
request under subsection (1) or (2A), of a reproduction of the article, or
of a part of the article, in accordance with subsection (2) or (2C), as
the case may be, unless the reproduction is supplied to a person other than the
person who made the request.
(7) The copyright in a published work other
than an article contained in a periodical publication is not infringed by the
making, in relation to a request under subsection (1) or (2A), of a
reproduction of the work, or of a part of the work, in accordance with subsection (2)
or (2C), as the case may be, unless the reproduction is supplied to a person other
than the person who made the request.
(7A) Subsections (6) and (7) do not apply
to the making under subsection (2) or (2C) of an electronic reproduction
of:
(a) an article, or a part of an
article, contained in a periodical publication; or
(b) the whole or part of a published
work, other than such an article;
in relation to a request under this section for
communication to the person who made the request unless:
(c) before or when the reproduction is
communicated to the person, the person is notified in accordance with the
regulations:
(i) that the reproduction
has been made under this section and that the article or work might be subject
to copyright protection under this Act; and
(ii) about such other
matters (if any) as are prescribed; and
(d) as soon as practicable after the
reproduction is communicated to the person, the reproduction made under subsection (2)
or (2C) and held by the library or archives is destroyed.
(7B) It is not an infringement of copyright in
an article contained in a periodical publication, or of copyright in a
published work, to communicate it in accordance with subsection (2), (2C)
or (5A).
(8) The regulations may exclude the
application of subsection (6) or (7) in such cases as are specified in the
regulations.
(9) In this section:
archives means an archives all or part of
whose collection is accessible to members of the public.
library means a library all or part of whose
collection is accessible to members of the public directly or through
interlibrary loans.
supply includes supply by way of a
communication.
Note: Under section 203F, it is an offence to
make a false or misleading declaration for the purposes of this section.
Sections 203A, 203D and 203G create offences relating to the keeping of
declarations made for the purposes of this section.
50
Reproducing and communicating works by libraries or archives for other
libraries or archives
(1) The officer in charge of a library may
request, or cause another person to request, the officer in charge of another
library to supply the officer in charge of the first‑mentioned library
with a reproduction of an article, or a part of an article, contained in a
periodical publication, or of the whole or a part of a published work other
than an article contained in a periodical publication, being a periodical
publication or a published work held in the collection of a library:
(a) for the purpose of including the
reproduction in the collection of the first‑mentioned library;
(aa) in a case where the principal
purpose of the first‑mentioned library is to provide library services for
members of a Parliament—for the purpose of assisting a person who is a member
of that Parliament in the performance of the person’s duties as such a member;
or
(b) for the purpose of supplying the reproduction
to a person who has made a request for the reproduction under section 49.
(2) Subject to this section, where a request
is made by or on behalf of the officer in charge of a library to the officer in
charge of another library under subsection (1), an authorized officer of
the last‑mentioned library may make, or cause to be made, the
reproduction to which the request relates and supply the reproduction to the
officer in charge of the first‑mentioned library.
Note: The reproduction could be made from another
reproduction of the article or published work in the collection of the other
library that was made without infringing copyright because of subsection
51A(1), to replace the article or published work because it was damaged, had
deteriorated or had been lost or stolen.
(3) Where, under subsection (2), an
authorized officer of a library makes, or causes to be made, a reproduction of
the whole or part of a work (including an article contained in a periodical
publication) and supplies it to the officer in charge of another library in
accordance with a request made under subsection (1):
(a) the reproduction shall, for all
purposes of this Act, be deemed to have been made on behalf of an authorized
officer of the other library for the purpose for which the reproduction was
requested; and
(b) an action shall not be brought
against the body administering that first‑mentioned library, or against
any officer or employee of that library, for infringement of copyright by
reason of the making or supplying of that reproduction.
(4) Subject to this section, if a
reproduction of the whole or a part of an article contained in a periodical
publication, or of any other published work, is, by virtue of subsection (3),
taken to have been made on behalf of an authorised officer of a library, the
copyright in the article or other work is not infringed:
(a) by the making of the reproduction;
or
(b) if the work is supplied under subsection (2)
by way of a communication—by the making of the communication.
(5) The regulations may exclude the
application of subsection (4) in such cases as are specified in the
regulations.
(6) Where a charge is made for making and
supplying a reproduction to which a request under subsection (1) relates, subsection (3)
does not apply in relation to the request if the amount of the charge exceeds
the cost of making and supplying the reproduction.
(7) Where:
(a) a reproduction (in this subsection
referred to as the relevant reproduction) of, or of a part of, an
article, or of the whole or a part of another work, is supplied under subsection (2)
to the officer in charge of a library; and
(b) a
reproduction of the same article or other work, or of the same part of the
article or other work, as the case may be, has previously been supplied under subsection (2)
for the purpose of inclusion in the collection of the library;
subsection (4) does not apply to or in relation to
the relevant reproduction unless, as soon as practicable after the request
under subsection (1) relating to the relevant reproduction is made, an
authorized officer of the library makes a declaration:
(c) setting out particulars of the
request (including the purpose for which the relevant reproduction was
requested); and
(d) stating that the reproduction
referred to in paragraph (b) has been lost, destroyed or damaged, as the
case requires.
(7A) If:
(a) a reproduction is made of the
whole of a work (other than an article contained in a periodical publication)
or of a part of such a work, being a part that contains more than a reasonable
portion of the work; and
(b) the work from which the
reproduction is made is in hardcopy form; and
(c) the reproduction is supplied under
subsection (2) to the officer in charge of a library;
subsection (4) does not apply in relation to the reproduction
unless:
(d) in a case where the principal
purpose of the library is to provide library services for members of a
Parliament—the reproduction is so supplied for the purpose of assisting a
person who is a member of that Parliament in the performance of the person’s
duties as such a member; or
(e) as soon as practicable after the
request under subsection (1) relating to the reproduction is made, an
authorized officer of the library makes a declaration:
(i) setting out
particulars of the request (including the purpose for which the reproduction
was requested); and
(ii) stating that, after
reasonable investigation, the authorized officer is satisfied that a copy (not
being a second‑hand copy) of the work cannot be obtained within a
reasonable time at an ordinary commercial price.
(7B) If:
(a) a reproduction is made of the
whole of a work (including an article contained in a periodical publication) or
of a part of such a work, whether or not the part contains more than a
reasonable portion of the work; and
(b) the work from which the
reproduction is made is in electronic form; and
(c) the reproduction is supplied under
subsection (2) to the officer in charge of a library;
subsection (4) does not apply in relation to the
reproduction unless:
(d) in a case where the principal
purpose of the library is to provide library services for members of a
Parliament—the reproduction is so supplied for the purpose of assisting a
person who is a member of that Parliament in the performance of the person’s duties
as such a member; or
(e) as soon as practicable after the
request under subsection (1) relating to the reproduction is made, an
authorized officer of the library makes a declaration:
(i) setting out
particulars of the request (including the purpose for which the reproduction
was requested); and
(ii) if the reproduction is
of the whole, or of more than a reasonable portion, of a work other than an
article—stating that, after reasonable investigation, the authorised officer is
satisfied that the work cannot be obtained in electronic form within a
reasonable time at an ordinary commercial price; and
(iii) if the reproduction is
of a reasonable portion, or less than a reasonable portion, of a work other
than an article—stating that, after reasonable investigation, the authorised
officer is satisfied that the portion cannot be obtained in electronic form,
either separately or together with a reasonable amount of other material,
within a reasonable time at an ordinary commercial price; and
(iv) if the reproduction is
of the whole or of a part of an article—stating that, after reasonable
investigation, the authorised officer is satisfied that the article cannot be
obtained on its own in electronic form within a reasonable time at an ordinary
commercial price.
(7BA) For the purposes of subsections (7A)
and (7B), if the characteristics of the work are such that subsection 10(2) or
(2A) is relevant to the question whether the reproduction contains only a
reasonable portion of the work, then that question is to be determined solely
by reference to subsection 10(2) or (2A) and not by reference to the ordinary
meaning of reasonable portion.
(7BB) For the purposes of subparagraphs (7A)(e)(ii)
and (7B)(e)(ii), (iii) and (iv), in determining whether a copy of the work, the
work, the portion of the work or the article (as appropriate) cannot be
obtained within a reasonable time at an ordinary commercial price, the
authorized officer must take into account:
(a) the time by which the person
requesting the reproduction under section 49 requires the reproduction;
and
(b) the time within which a
reproduction (not being a second‑hand reproduction) of the work at an
ordinary commercial price could be delivered to the person; and
(c) whether the copy, work, portion or
article can be obtained in electronic form within a reasonable time at an
ordinary commercial price.
(7C) If:
(a) a reproduction is made in
electronic form by or on behalf of an authorised officer of a library of the
whole of a work (including an article contained in a periodical publication) or
of a part of such a work; and
(b) the reproduction is supplied under
subsection (2) to the officer in charge of another library;
subsection (3) does not apply in relation to the
reproduction unless, as soon as practicable after the reproduction is supplied
to the other library the reproduction made for the purpose of the supply and
held by the first‑mentioned library is destroyed.
(8) Subsection (4) does not apply to a
reproduction or communication of all or part of 2 or more articles that are
contained in the same periodical publication and that have been requested for
the same purpose unless:
(a) the purpose is the one described
in paragraph (1)(aa) (assisting a member of a Parliament perform his or
her duties); or
(b) the purpose is the one described
in paragraph (1)(b) (supplying a reproduction to a person requesting it
under section 49 for research or study) and the reproduction of the
articles was requested under section 49 for the same research or course of
study.
(10) In this section:
library means:
(a) a library all or part of whose
collection is accessible to members of the public directly or through
interlibrary loans; or
(b) a library whose principal purpose
is to provide library services for members of a Parliament; or
(c) an archives all or part of whose
collection is accessible to members of the public.
supply includes supply by way of a
communication.
Note: Under section 203F, it is an offence to
make a false or misleading declaration for the purposes of this section.
Sections 203A, 203D and 203G create offences relating to the keeping of
declarations made for the purposes of this section.
51
Reproducing and communicating unpublished works in libraries or archives
(1) Where, at a time more than 50 years after
the end of the calendar year in which the author of a literary, dramatic,
musical or artistic work died, copyright subsists in the work but:
(a) the work has not been published;
and
(b) a
reproduction of the work, or, in the case of a literary, dramatic or musical
work, the manuscript of the work, is kept in the collection of a library or
archives where it is, subject to any regulations governing that collection,
open to public inspection;
the copyright in the work is not infringed:
(c) by the making or communication of
a reproduction of the work by a person for the purposes of research or study or
with a view to publication; or
(d) by the making or communication of
a reproduction of the work by, or on behalf of, the officer in charge of the library
or archives if the reproduction is supplied (whether by way of communication or
otherwise) to a person who satisfies the officer in charge of the library or
archives that the person requires the reproduction for the purposes of research
or study, or with a view to publication, and that the person will not use it
for any other purpose.
(2) If the manuscript, or a reproduction, of
an unpublished thesis or other similar literary work is kept in a library of a
university or other similar institution, or in an archives, the copyright in
the thesis or other work is not infringed by the making or communication of a
reproduction of the thesis or other work by or on behalf of the officer in
charge of the library or archives if the reproduction is supplied (whether by
communication or otherwise) to a person who satisfies an authorized officer of
the library or archives that he or she requires the reproduction for the
purposes of research or study.
51AA
Reproducing and communicating works in care of National Archives of Australia
(1) The copyright in a work that is kept in
the collection of an archives covered by subparagraph (a)(i) or paragraph (aa)
of the definition of archives in subsection 10(1), where it is
open to public inspection, is not infringed by the making or communication by,
or on behalf of, the officer in charge of the archives:
(a) of a single working copy of the
work; or
(b) of a single reference copy of the
work for supply to the central office of the National Archives of Australia; or
(c) on the written request for a
reference copy of the work by an officer of the National Archives of Australia
in a regional office of the Archives, where the officer in charge is satisfied
that a reference copy of the work has not been previously supplied to that
regional office—of a single reference copy of the work for supply to that
regional office; or
(d) where the officer in charge is
satisfied that a reference copy of the work supplied to a regional office of
the National Archives of Australia is lost, damaged or destroyed and an officer
of the Archives in that regional office makes a written request for a
replacement copy of the work—of a single replacement copy of the work for
supply to that regional office; or
(e) where the officer in charge is
satisfied that a reference copy of the work supplied to the central office of
the National Archives of Australia is lost, damaged or destroyed—of a single
replacement copy of the work for supply to that central office.
(2) In this section:
reference copy, in relation to a work, means
a reproduction of the work made from a working copy for supply to the central
office, or to a regional office, of the National Archives of Australia for use
by that office in providing access to the work to members of the public.
replacement copy, in relation to a work,
means a reproduction of the work made from a working copy for the purpose of
replacing a reference copy of the work that is lost, damaged or destroyed.
working copy,
in relation to a work, means a reproduction of the work made for the purpose of
enabling the National Archives of Australia to retain the copy and use it for
making reference copies and replacement copies of the work.
51A
Reproducing and communicating works for preservation and other purposes
(1) Subject to subsection (4), the
copyright in a work that forms, or formed, part of the collection of a library
or archives is not infringed by the making or communicating, by or on behalf of
the officer in charge of the library or archives, of a reproduction of the
work:
(a) if the work is held in manuscript
form or is an original artistic work—for the purpose of preserving the
manuscript or original artistic work, as the case may be, against loss or
deterioration or for the purpose of research that is being, or is to be,
carried out at the library or archives in which the work is held or at another
library or other archives;
(b) if the work is held in the
collection in a published form but has been damaged or has deteriorated—for the
purpose of replacing the work; or
(c) if the work has been held in the
collection in a published form but has been lost or stolen—for the purpose of
replacing the work.
(2) The copyright in a work that is held in
the collection of a library or archives is not infringed by the making, by or
on behalf of the officer in charge of the library or archives, of a
reproduction of the work for administrative purposes.
(3) The copyright in a work that is held in
the collection of a library or archives is not infringed by the communication,
by or on behalf of the officer in charge of the library or archives, of a
reproduction of the work made under subsection (2) to officers of the
library or archives by making it available online to be accessed through the
use of a computer terminal installed within the premises of the library or
archives with the approval of the body administering the library or archives.
(3A) The copyright in an original artistic work
that is held in the collection of a library or archives is not infringed in the
circumstances described in subsection (3B) by the communication, by or on
behalf of the officer in charge of the library or archives, of a preservation
reproduction of the work by making it available online to be accessed through
the use of a computer terminal:
(a) that is installed within the
premises of the library or archives; and
(b) that cannot be used by a person
accessing the work to make an electronic copy or a hardcopy of the
reproduction, or to communicate the reproduction.
(3B) The circumstances in which the copyright in
the original artistic work is not infringed because of subsection (3A) are
that either:
(a) the work has been lost, or has
deteriorated, since the preservation reproduction of the work was made; or
(b) the work has become so unstable that
it cannot be displayed without risk of significant deterioration.
(4) Subsection (1) does not apply in
relation to a work held in published form in the collection of a library or
archives unless an authorized officer of the library or archives has, after
reasonable investigation, made a declaration:
(a) stating that he or she is
satisfied that a copy (not being a second‑hand copy) of the work, or of
the edition in which the work is held in the collection, cannot be obtained
within a reasonable time at an ordinary commercial price; and
(b) if he or she is satisfied that a
copy (not being a second‑hand copy) of another edition of the work can be
obtained within a reasonable time at an ordinary commercial price—stating why
the reproduction should be made from the copy of the work held in the
collection.
Note: Under section 203F, it is an offence to
make a false or misleading declaration for the purposes of this section.
Sections 203A, 203D and 203G create offences relating to the keeping of
declarations made for the purposes of this section.
(5) Where a reproduction of an unpublished
work is made under subsection (1) by or on behalf of the officer in charge
of a library or archives for the purpose of research that is being, or is to
be, carried out at another library or archives, the supply or communication of
the reproduction by or on behalf of the officer to the other library or
archives does not, for any purpose of this Act, constitute the publication of
the work.
(6) In this section:
administrative purposes means purposes
directly related to the care or control of the collection.
officers of the library or archives includes
volunteers assisting with the care or control of the collection.
preservation reproduction, in relation to an
artistic work, means a reproduction of the work made under subsection (1)
for the purpose of preserving the work against loss or deterioration.
51B
Making preservation copies of significant works in key cultural institutions’
collections
(1) This section applies in relation to a
work held in the collection of a library or archives if:
(a) the body administering the library
or archives:
(i) has, under a law of
the Commonwealth or a State or Territory, the function of developing and
maintaining the collection; or
(ii) is prescribed by the
regulations for the purposes of this subparagraph; and
(b) an authorized officer of the
library or archives is satisfied that the work is of historical or cultural
significance to Australia.
Manuscript
(2) If the work is held in the form of a
manuscript, the copyright in the work is not infringed by an authorized officer
of the library or archives making up to 3 reproductions of the work from the
manuscript for the purpose of preserving it against loss or deterioration.
Original artistic work
(3) If the work is held in the form of an
original artistic work, the copyright in the work is not infringed by an
authorized officer of the library or archives making up to 3 comprehensive
photographic reproductions of the work from the original artistic work for the
purpose of preserving it against loss or deterioration if the officer is
satisfied that a photographic reproduction (not being a second‑hand
reproduction) of the work cannot be obtained within a reasonable time at an
ordinary commercial price.
Published work
(4) If the work is held in published form,
the copyright in the work is not infringed by an authorized officer of the
library or archives making up to 3 reproductions of the work from the copy held
in the collection, for the purpose of preserving the work against loss or
deterioration, if the officer is satisfied that:
(a) a copy (not being a second‑hand
copy) of the work, or of the edition in which the work is held in the
collection, cannot be obtained within a reasonable time at an ordinary
commercial price; and
(b) if the officer is satisfied that a
copy (not being a second‑hand copy) of another edition of the work can be
obtained within a reasonable time at an ordinary commercial price—it is
appropriate that the reproduction should be made from the copy of the work held
in the collection.
Electronic copies and commercial availability
(5) In determining for the purposes of subsection (3)
or (4) whether a reproduction or copy (not being a second‑hand
reproduction or copy) of the work, or of a particular edition of the work,
cannot be obtained within a reasonable time at an ordinary commercial price,
the authorized officer must take into account whether an electronic copy of the
work or edition can be obtained within a reasonable time at an ordinary
commercial price.
Relationship with the rest of this Division
(6) This section does not limit the rest of
this Division. The rest of this Division does not limit this section.
52
Publication of unpublished works kept in libraries or archives
(1) Where:
(a) a published literary, dramatic or
musical work (in this section referred to as the new work)
incorporates the whole or a part of a work (in this section referred to as the
old work) to which subsection 51(1) applied immediately before the new
work was published;
(b) before the new work was published,
the prescribed notice of the intended publication of the work had been given;
and
(c) immediately
before the new work was published, the identity of the owner of the copyright
in the old work was not known to the publishers of the new work;
then, for the purposes of this Act, the first publication
of the new work, and any subsequent publication of the new work whether in the
same or in an altered form, shall, in so far as it constitutes a publication of
the old work, be deemed not to be an infringement of the copyright in the old
work or an unauthorized publication of the old work.
(2) The last preceding subsection does not
apply to a subsequent publication of the new work incorporating a part of the
old work that was not included in the first publication of the new work unless:
(a) subsection 51(1) would, but for
this section, have applied to that part of the old work immediately before that
subsequent publication;
(b) before that subsequent
publication, the prescribed notice of the intended publication had been given;
and
(c) immediately before that subsequent
publication, the identity of the owner of the copyright in the old work was not
known to the publisher of that subsequent publication.
(3) If a work, or part of a work, has been
published and, because of this section, the publication is taken not to be an
infringement of the copyright in the work, the copyright in the work is not
infringed by a person who, after the publication took place:
(a) broadcasts the work, or that part
of the work; or
(b) electronically transmits the work,
or that part of the work (other than in a broadcast) for a fee payable to the
person who made the transmission; or
(c) performs the work, or that part of
the work, in public; or
(d) makes a record of the work, or
that part of the work.
53
Application of Division to illustrations accompanying articles and other works
Where an article, thesis or literary,
dramatic or musical work is accompanied by artistic works provided for the
purpose of explaining or illustrating the article, thesis or other work (in
this section referred to as the illustrations), the preceding
sections of this Division apply as if:
(a) where any of those sections
provides that the copyright in the article, thesis or work is not infringed—the
reference to that copyright included a reference to any copyright in the
illustrations;
(b) a reference in section 49,
section 50, section 51 or 51A to a reproduction of the article,
thesis or work included a reference to a reproduction of the article, thesis or
work together with a reproduction of the illustrations;
(c) a reference in section 49 or
section 50 to a reproduction of a part of the article or work included a
reference to a reproduction of that part of the article or work together with a
reproduction of the illustrations that were provided for the purpose of
explaining or illustrating that part; and
(d) a reference in section 51A or
section 52 to the doing of any act in relation to the work included a
reference to the doing of that act in relation to the work together with the
illustrations.
Division 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.
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
The references in section 32, and
in subsection 34(2) to the author of a work shall, in relation to a work of
joint authorship, be read as references to any one or more of the authors of
the work.
80
References to whichever of joint authors died last
The references in sections 33 and
51 to the author of a work shall, in relation to a work of joint authorship
other than a work to which the next succeeding section applies, be read as
references to the author who died last.
81
Works of joint authorship published under pseudonyms
(1) This section applies to a work of joint
authorship that was first published under 2 or more names of which one was a
pseudonym or 2 or more (but not all) were pseudonyms.
(2) This section also applies to a work of
joint authorship that was first published under 2 or more names all of which
were pseudonyms if, at any time within 70 years after the end of the calendar
year in which the work was first published, the identity of one or more (but
not all) of the authors was generally known or could be ascertained by
reasonable inquiry.
(3) The references in section 33 to the
author of a work shall, in relation to a work to which this section applies, be
read as references to the author whose identity was disclosed or, if the
identity of 2 or more of the authors was disclosed, as references to whichever
of those authors died last.
(4) For the purposes of this section, the
identity of an author shall be deemed to have been disclosed if:
(a) one of the names under which the
work was published was the name of that author; or
(b) the identity of that author is
generally known or can be ascertained by reasonable inquiry.
82
Copyright to subsist in joint works without regard to any author who is an
unqualified person
(1) Subsection 35(2) has effect, in relation
to a work of joint authorship of which one of the authors is an unqualified
person, or 2 or more (but not all) of the authors are unqualified persons, as
if the author or authors, other than unqualified persons, had alone been the
author or authors, as the case may be, of the work.
(2) For the purposes of the last preceding
subsection, a person is an unqualified person in relation to a work where, if
he or she had alone been the author of the work, copyright would not have
subsisted in the work by virtue of this Part.
83
Inclusion of joint works in collections for use in places of education
The reference in subsection 44(2) to
other extracts from, or from adaptations of, works by the author of the extract
concerned:
(a) shall be read as including a
reference to extracts from, or from adaptations of, works by the author of the
extract concerned in collaboration with any other person; or
(b) if the extract concerned is from,
or from an adaptation of, a work of joint authorship shall be read as including
a reference to extracts from, or from adaptations of, works by any one or more
of the authors of the extract concerned, or by any one or more of those authors
in collaboration with any other person.
Part 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
Copyright subsisting in a sound
recording by virtue of this Part continues to subsist until the end of 70 years
after the end of the calendar year in which the recording is first published.
94
Duration of copyright in cinematograph films
(1) Copyright subsisting in a cinematograph
film by virtue of subsection 90(1) or (2) continues to subsist until the film
is published and, after the publication of the film, until the end of 70 years
after the end of the calendar year in which the film was first published.
(2) Copyright subsisting in a cinematograph
film by virtue only of subsection 90(3) continues to subsist until the end of
70 years after the end of the calendar year in which the film was first
published.
95
Duration of copyright in television broadcasts and sound broadcasts
(1) Copyright subsisting in a television
broadcast or sound broadcast by virtue of this Part continues to subsist until
the expiration of 50 years after the expiration of the calendar year in which
the broadcast was made.
(2) In so far as a television broadcast or
sound broadcast is a repetition (whether the first or a subsequent repetition)
of a previous television broadcast or sound broadcast to which section 91
applies, and is made by broadcasting visual images or sounds embodied in any
article or thing:
(a) if it is made before the
expiration of the period of 50 years after the expiration of the calendar year
in which the previous broadcast was made—any copyright subsisting in it expires
at the expiration of that period; and
(b) if it is made after the expiration
of that period—copyright does not subsist in it by virtue of this Part.
96
Duration of copyright in published editions of works
Copyright subsisting in a published
edition of a work or works
by virtue of this Part continues to subsist until the expiration of 25 years
after the expiration of the calendar year in which the edition was first
published.
Division 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 a relevant right holder
under section 135A, nor a relevant copyright owner under
section 135ZB, 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.
105
Copyright in certain recordings not infringed by causing recordings to be heard
in public or broadcast
Copyright subsisting in a sound
recording by virtue only of subsection 89(3) is not infringed by the causing of
the recording to be heard in public or by the broadcasting of the recording.
106 Causing sound recording to be heard at guest house
or club
(1) Where a sound recording is caused to be
heard in public:
(a) at premises where persons reside
or sleep, as part of the amenities provided exclusively for residents or
inmates of the premises or for those residents or inmates and their guests; or
(b) as part of the activities of, or
for the benefit of, a club, society or other organization that is not
established or conducted for profit and the principal objects of which are
charitable or are otherwise concerned with the advancement of religion, education
or social welfare;
the act of causing the recording to be so heard does not
constitute an infringement of the copyright in the recording.
(2) The last preceding subsection does not
apply:
(a) in relation to premises of a kind
referred to in paragraph (a) of that subsection, if a specific charge is
made for admission to the part of the premises where the recording is to be
heard; or
(b) in relation to an organization of
a kind referred to in paragraph (b) of that subsection, if a charge is
made for admission to the place where the recording is to be heard and any of
the proceeds of the charge are applied otherwise than for the purposes of the
organization.
(3) A reference in the last preceding
subsection to a specific charge, or a charge, made for admission includes a
reference to a specific charge, or a charge, made partly for admission and
partly for other purposes.
107
Making of a copy of the sound recording for purpose of broadcasting
(1) Where the broadcasting by a person of a
sound recording would not (whether by reason of an assignment or licence or of
the operation of a provision of this Act) constitute an infringement of the
copyright in the recording but the making by the person of a copy of the sound
recording would, apart from this subsection, constitute such an infringement,
the copyright in the recording is not infringed by the making by the person of
a copy of the sound recording in association with other matter solely for the
purpose of the broadcasting of the recording in association with the other
matter.
(2) The last
preceding subsection does not apply in relation to a copy of a sound recording
if the copy is used for a purpose other than:
(a) the
broadcasting of the recording in circumstances that do not (whether by reason
of an assignment or licence or of the operation of a provision of this Act)
constitute an infringement of the copyright in the recording; or
(b) the making of further copies of
the sound recording for the purpose of the broadcasting of the recording in
such circumstances.
(3) Subsection (1) does not apply in
relation to a copy of a sound recording where the copy is used for the purpose
of the broadcasting of the recording by a person who is not the maker of the
copy unless the maker has paid to the owner of the copyright in the recording
such amount as they agree or, in default of agreement, has given an undertaking
in writing to the owner to pay to the owner such amount as is determined by the
Copyright Tribunal, on the application of either of them, to be equitable
remuneration to the owner for the making of the copy.
(4) A person who has given an undertaking
referred to in the last preceding subsection is liable, when the Copyright
Tribunal has determined the amount to which the undertaking relates, to pay that
amount to the owner of the copyright in the recording and the owner may recover
that amount in a court of competent jurisdiction from the person as a debt due
to the owner.
(5) Subsection (1) does not apply in
relation to a copy of a sound recording unless, before the expiration of the
period of 12 months commencing on the day on which any of the copies made in
accordance with that subsection is first used for broadcasting the recording in
accordance with that subsection, or before the expiration of such further
period, if any, as is agreed between the maker of the copy and the owner of the
copyright in the recording, all the copies made in accordance with that
subsection are destroyed or are transferred, with the consent of the Director‑General
of the National Archives of Australia, to the care (within the meaning of the Archives
Act 1983) of the National Archives of Australia.
(6) The Director‑General of the National
Archives of Australia must not consent to the transfer to the care of the
National Archives of Australia in accordance with subsection (5) of a copy
of a sound recording unless he or she has certified that the recording is of an
exceptional documentary character.
(7) In this section:
broadcasting does not include simulcasting.
108
Copyright in published recording not infringed by public performance if
equitable remuneration paid
(1) The copyright in a sound recording that
has been published is not infringed by a person who causes the recording to be
heard in public if:
(a) the person has paid to the owner
of the copyright in the recording such amount as they agree or, in default of
agreement, has given an undertaking in writing to the owner to pay to the owner
such amount as is determined by the Copyright Tribunal, on the application of
either of them, to be equitable remuneration to the owner for the causing of
the recording to be heard in public; and
(b) in the case of a recording that
was first published outside Australia—the recording has been published in Australia
or the prescribed period after the date of the first publication of the
recording has expired.
(2) A person who has given an undertaking
referred to in the last preceding subsection is liable, when the Copyright
Tribunal has determined the amount to which the undertaking relates, to pay
that amount to the owner of the copyright in the recording and the owner may
recover that amount in a court of competent jurisdiction from the person as a
debt due to the owner.
(3) Regulations prescribing a period for the
purposes of paragraph (1)(b) may prescribe different periods in relation
to different classes of sound recordings.
109
Copyright in published sound recording not infringed by broadcast in certain
circumstances
(1) Subject to this section, the copyright in
a published sound recording is not infringed by the making of a broadcast
(other than a broadcast transmitted for a fee payable to the person who made
the broadcast) of that recording if:
(a) where there is no order of the
Tribunal in force under section 152 applying to the maker of that
broadcast in relation to the time when that broadcast was made—the maker of
that broadcast has given an undertaking in writing to the person who is the
owner of the copyright in that recording to pay to the owner such amounts (if
any) as may be specified in, or determined in accordance with, an order of the
Tribunal made under that section in respect of the broadcasting by the maker,
during a period within which that broadcast was made, of published sound
recordings in which the copyrights are owned by that person and which include
that recording; or
(b) where there is an order of the
Tribunal in force under that section applying to the maker of that broadcast in
relation to the time when that broadcast was made:
(i) the copyright in that
recording is owned by a person who is specified in the order as one of the
persons among whom the amount specified in, or determined in accordance with,
the order is to be divided and the maker of the broadcast makes payments to the
person in accordance with the order; or
(ii) the copyright in that
recording is owned by a person who is not so specified in the order.
(2) The last preceding subsection does not
apply in relation to a broadcast of a sound recording if the broadcast was made
in accordance with an agreement between the maker of the broadcast and the
owner of the copyright in the recording.
(3) Subsection (1) does not apply in
relation to a broadcast of a sound recording that has not been published in Australia
if the broadcast was made before the expiration of the prescribed period after
the date of the first publication of the recording.
(4) Regulations prescribing a period for the
purposes of the last preceding subsection may prescribe different periods in
relation to different classes of sound recordings.
(5) Subsection (1) does not apply in
relation to a broadcast of a sound recording that has not been published in Australia
if:
(a) the recording consists of, or
includes, a musical work in which copyright subsists;
(b) the musical work was made for the
purpose of being performed, or has been performed, in association with a
dramatic work or has been included in a cinematograph film; and
(c) records of the musical work have
not been supplied (whether by sale or otherwise) to the public in Australia.
(6) For the purposes of paragraph (5)(c),
a supplying of records of a musical work shall be disregarded if the supplying
was done otherwise than by, or with the licence of, the owner of the copyright
in the work.
109A
Copying sound recordings for private and domestic use
(1) This section applies if:
(a) the owner of a copy (the earlier
copy) of a sound recording makes another copy (the later copy)
of the sound recording using the earlier copy; and
(b) the sole purpose of making the
later copy is the owner’s private and domestic use of the later copy with a
device that:
(i) is a device that can
be used to cause sound recordings to be heard; and
(ii) he or she owns; and
(c) the earlier copy was not made by
downloading over the internet a digital recording of a radio broadcast or
similar program; and
(d) the earlier copy is not an
infringing copy of the sound recording, a broadcast or a literary, dramatic or
musical work included in the sound recording.
(2) The making of the later copy does not
infringe copyright in the sound recording, or in a literary, dramatic or
musical work or other subject‑matter included in the sound recording.
(3) Subsection (2) is taken never to
have applied if the earlier copy or the later copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed
for sale or hire; or
(d) distributed for the purpose of
trade or otherwise; or
(e) used for causing the sound
recording to be heard in public; or
(f) used for broadcasting the sound
recording.
Note: If the earlier or later copy is dealt with as
described in subsection (3), then copyright may be infringed not only by
the making of the later copy but also by a dealing with the later copy.
(4) To avoid doubt, paragraph (3)(d)
does not apply to a loan of the earlier copy or the later copy by the lender to
a member of the lender’s family or household for the member’s private and
domestic use.
110
Provisions relating to cinematograph films
(1) Where the visual images forming part of a
cinematograph film consist wholly or principally of images that, at the time
when they were first embodied in an article or thing, were means of
communicating news, the copyright in the film is not infringed by the causing
of the film to be seen or heard, or to be both seen and heard, in public after
the expiration of 50 years after the expiration of the calendar year in which
the principal events depicted in the film occurred.
(2) Where, by virtue of this Part, copyright
has subsisted in a cinematograph film, a person who, after that copyright has
expired, causes the film to be seen or heard, or to be seen and heard, in
public does not, by so doing, infringe any copyright subsisting by virtue of
Part III in a literary, dramatic, musical or artistic work.
(3) Where the sounds that are embodied in a
sound‑track associated with the visual images forming part of a
cinematograph film are also embodied in a record, other than such a sound‑track
or a record derived directly or indirectly from such a sound‑track, the
copyright in the cinematograph film is not infringed by any use made of that
record.
110AA
Copying cinematograph film in different format for private use
(1) This section applies if:
(a) the owner of videotape embodying a
cinematograph film in analog form makes a copy (the main copy) of
the film in electronic form for his or her private and domestic use instead of
the videotape; and
(b) the videotape itself is not an
infringing copy of the film or of a broadcast, sound recording, work or
published edition of a work; and
(c) at the time the owner makes the
main copy, he or she has not made, and is not making, another copy that
embodies the film in an electronic form substantially identical to the
electronic form in which the film is embodied in the main copy.
For this purpose, disregard a temporary copy of the film
incidentally made as a necessary part of the technical process of making the
main copy.
(2) The making of the main copy is not an
infringement of copyright in the cinematograph film or in a work or other
subject‑matter included in the film.
Dealing with main copy may make it an infringing copy
(3) Subsection (2) is taken never to
have applied if the main copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed
for sale or hire; or
(d) distributed for the purpose of
trade or otherwise.
Note: If the main copy is dealt with as described in
subsection (3), then copyright may be infringed not only by the making of
the main copy but also by the dealing with the main copy.
(4) To avoid doubt, paragraph (3)(d)
does not apply to a loan of the main copy by the lender to a member of the
lender’s family or household for the member’s private and domestic use.
Disposal of videotape may make the main copy an
infringing copy
(5) Subsection (2) is taken never to
have applied if the owner of the videotape disposes of it to another person.
Status of temporary copy
(6) If subsection (2) applies to the
making of the main copy only as a result of disregarding the incidental making
of a temporary copy of the film as a necessary part of the technical process of
making the main copy, then:
(a) if the temporary copy is destroyed
at the first practicable time during or after the making of the main copy—the
making of the temporary copy does not infringe copyright in the film or in any
work or other subject‑matter included in the film; or
(b) if the temporary copy is not
destroyed at that time—the making of the temporary copy is taken always to have
infringed copyright (if any) subsisting in the film and in any work or other
subject‑matter included in the film.
110A
Copying and communicating unpublished sound recordings and cinematograph films
in libraries or archives
Where, at a time more than 50 years
after the time at which, or the expiration of the period during which, a sound
recording or cinematograph film was made, copyright subsists in the sound
recording or cinematograph film but:
(a) the sound recording or
cinematograph film has not been published; and
(b) a
record embodying the sound recording, or a copy of the cinematograph film, is
kept in the collection of a library or archives where it is, subject to any
regulations governing that collection, accessible to the public;
the copyright in the sound recording or cinematograph film
and in any work or other subject‑matter included in the sound recording
or cinematograph film is not infringed:
(c) by the making of a copy or the
communication of the sound recording or cinematograph film by a person for the
purpose of research or study or with a view to publication; or
(d) by the making of a copy or the
communication of the sound recording or cinematograph film by, or on behalf of,
the officer in charge of the library or archives if the copy is supplied or
communicated to a person who satisfies the officer that he or she requires the
copy for the purpose of research or study, or with a view to publication and
that he or she will not use it for any other purpose.
110B
Copying and communicating sound recordings and cinematograph films for preservation
and other purposes
(1) Subject to subsection (3), where a
copy of a sound recording, being a sound recording that forms, or formed, part
of the collection of a library or archives, is made by or on behalf of the
officer in charge of the library or archives:
(a) if the sound recording is held in
the collection in the form of a first record—for the purpose of preserving the
record against loss or deterioration or for the purpose of research that is
being, or is to be, carried out at the library or archives in which the record
is held or at another library or archives;
(b) if the sound recording is held in
the collection in a published form but has been damaged or has deteriorated—for
the purpose of replacing the sound recording; or
(c) if
the sound recording has been held in the collection in a published form but has
been lost or stolen—for the purpose of replacing the sound recording;
the making of the copy does not infringe copyright in the
sound recording or in any work or other subject‑matter included in the
sound recording.
(2) Subject to subsection (3), where a
copy of a cinematograph film, being a cinematograph film that forms, or formed,
part of the collection of a library or archives, is made by or on behalf of the
officer in charge of the library or archives:
(a) if the cinematograph film is held
in the collection in the form of a first copy—for the purpose of preserving the
copy against loss or deterioration or for the purpose of research that is
being, or is to be, carried out at the library or archives in which the copy is
held or at another library or archives;
(b) if
the cinematograph film is held in the collection in a published form but has
been damaged or has
deteriorated—for the purpose of replacing the cinematograph film; or
(c) if
the cinematograph film has been held in the collection in a published form but
has been lost or stolen—for the purpose of replacing the cinematograph film;
the making of the copy does not infringe copyright in the
cinematograph film or in any work or other subject‑matter included in the
cinematograph film.
(2A) The copyright in a sound recording or
cinematograph film that forms, or formed, part of the collection of a library
or archives, or in any work or other subject‑matter included in such a
sound recording or film, is not infringed by the communication, by or on behalf
of the officer in charge of the library or archives, of a copy of the sound
recording or film made under subsection (1) or (2) to officers of the
library or archives by making it available online to be accessed through the
use of a computer terminal installed within the premises of the library or
archives with the approval of the body administering the library or archives.
(2B) If:
(a) a
copy of a sound recording or a cinematograph film is made by or on behalf of
the officer in charge of a library or archives under this section; and
(b) the copy is made for the purpose
of research that is being, or is to be, carried out at another library or
archives;
the copyright in the sound recording or film, or in any
work or other subject‑matter included in it, is not infringed by the
communication, by or on behalf of the officer in charge, of the copy to the
other library or archives by making it available online to be accessed through
the use of a computer terminal installed within the premises of the other
library or archives with the approval of the body administering the other
library or archives.
(3) Subsection (1) does not apply in
relation to a sound recording, and subsection (2) does not apply in
relation to a cinematograph film, held in a published form in the collection of
a library or archives unless an authorised officer of the library or archives
has, after reasonable investigation, made a declaration stating that he or she
is satisfied that a copy (not being a second‑hand copy) of the sound
recording or cinematograph film, as the case may be, cannot be obtained within
a reasonable time at an ordinary commercial price.
Note: Under section 203F, it is an offence to
make a false or misleading declaration for the purposes of this section.
Sections 203A, 203D and 203G create offences relating to the keeping of
declarations made for the purposes of this section.
(4) Where a copy of an unpublished sound
recording or an unpublished cinematograph film is made under subsection (1)
or (2) by or on behalf of the officer in charge of a library or archives for
the purpose of research that is being, or is to be, carried out at another
library or archives, the supply or communication of the copy by or on behalf of
the officer to the other library or archives does not, for any purpose of this
Act, constitute the publication of the sound recording or cinematograph film or
of any work or other subject‑matter included in the sound recording or
cinematograph film.
110BA
Making preservation copies of significant recordings and films in key cultural
institutions’ collections
(1) This section applies in relation to a
sound recording or cinematograph film held in the collection of a library or
archives if:
(a) the body administering the library
or archives:
(i) has, under a law of
the Commonwealth or a State or Territory, the function of developing and
maintaining the collection; or
(ii) is prescribed by the
regulations for the purposes of this subparagraph; and
(b) an authorized officer of the
library or archives is satisfied that the recording or film is of historical or
cultural significance to Australia.
First record, or unpublished record, embodying sound
recording
(2) If the sound recording is held in the
form of the first record, or an unpublished record, embodying the recording,
copyright in the recording is not infringed by an authorized officer of the
library or archives making up to 3 copies of the recording from the record for
the purpose of preserving the recording against loss or deterioration.
Published sound recording
(3) If the sound recording is held in
published form, the copyright in the recording is not infringed by an
authorized officer of the library or archives making up to 3 copies of the
recording from the published record for the purpose of preserving the recording
against loss or deterioration if the officer is satisfied that a copy of the
recording (not being a second‑hand copy) cannot be obtained within a
reasonable time at an ordinary commercial price.
First copy, or unpublished copy, of film
(4) If the cinematograph film is held in the
form of the first copy, or an unpublished copy, of the film, copyright in the
film is not infringed by an authorized officer of the library or archives
making up to 3 copies of the film from the first copy or unpublished copy for
the purpose of preserving the film against loss or deterioration.
Published film
(5) If the cinematograph film is held in a
published form, copyright in the film is not infringed by an authorized officer
of the library or archives making up to 3 copies of the film from the published
copy held in the collection, for the purpose of preserving the film against
loss or deterioration, if the officer is satisfied that a copy of the film (not
being a second‑hand copy) cannot be obtained within a reasonable time at
an ordinary commercial price.
Commercial availability of copy of recording or film
(6) For the purposes of subsections (3)
and (5), in determining whether a copy (not being a second‑hand copy)
cannot be obtained within a reasonable time at an ordinary commercial price,
the authorized officer must take into account whether an electronic copy can be
obtained within a reasonable time at an ordinary commercial price.
Work or other subject‑matter included in
recording or film
(7) If under this section, copyright in the
sound recording or cinematograph film is not infringed by the making of a copy
of the recording or film, the making of that copy does not infringe copyright
in any work or other subject‑matter included in the recording or film.
Relationship with the rest of this Division
(8) This section does not limit any of the
other provisions of this Division that provide that an act (however described)
does not infringe copyright. Those other provisions do not limit this section.
110C
Making of a copy of a sound recording or cinematograph film for the purpose of
simulcasting
(1) If the broadcasting of a sound recording
or a cinematograph film would not for any reason constitute an infringement of
the copyright in the recording or film, but the making of a copy of the
recording or film would, apart from this section, constitute an infringement of
the copyright, the copyright is not infringed by the making of a copy of the
recording or film if:
(a) the recording or film from which
the copy is made is in analog form; and
(b) the copy is made solely for the
purpose of simulcasting the recording or film in digital form.
(2) Subsection (1) does not apply in
relation to a copy of a recording or film if the copy is used for a purpose
other than:
(a) the simulcasting of the recording
or film in circumstances that do not for any reason constitute an infringement
of the copyright in the recording or film; or
(b) the making of further copies of
the recording or film for the purpose of simulcasting the recording or film in
such circumstances.
(3) Subsection (1) does not apply in
relation to a copy of a recording or film unless all copies of the recording or
film made under that subsection are destroyed on or before the relevant date
specified in the regulations.
(4) For the purposes of subsection (3),
the regulations may specify different dates in relation to different classes of
sound recordings or cinematograph films.
111
Recording broadcasts for replaying at more convenient time
(1) This section applies if a person makes a
cinematograph film or sound recording of a broadcast solely for private and
domestic use by watching or listening to the material broadcast at a time more
convenient than the time when the broadcast is made.
Note: Subsection 10(1) defines broadcast
as a communication to the public delivered by a broadcasting service within the
meaning of the Broadcasting Services Act 1992.
Making the film or recording does not infringe
copyright
(2) The making of the film or recording does
not infringe copyright in the broadcast or in any work or other subject‑matter
included in the broadcast.
Note: Even though the making of the film or
recording does not infringe that copyright, that copyright may be infringed if
a copy of the film or recording is made.
Dealing with embodiment of film or recording
(3) Subsection (2) is taken never to
have applied if an article or thing embodying the film or recording is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed
for sale or hire; or
(d) distributed for the purpose of
trade or otherwise; or
(e) used for causing the film or
recording to be seen or heard in public; or
(f) used for broadcasting the film or
recording.
Note: If the article or thing embodying the film or
recording is dealt with as described in subsection (3), then copyright may
be infringed not only by the making of the article or thing but also by the
dealing with the article or thing.
(4) To avoid doubt, paragraph (3)(d)
does not apply to a loan of the article or thing by the lender to a member of
the lender’s family or household for the member’s private and domestic use.
111A
Temporary copy made in the course of communication
(1) A copyright subsisting under this Part is
not infringed by making a temporary copy of an audio‑visual item as part
of the technical process of making or receiving a communication.
(2) Subsection (1) does not apply in
relation to the making of a temporary copy of an audio‑visual item as
part of the technical process of making a communication if the making of the
communication is an infringement of copyright.
111B Temporary
copy of subject‑matter as part of a technical process of use
(1) Subject to subsection (2), the
copyright in a subject‑matter is not infringed by the making of a
temporary copy of the subject‑matter if the temporary copy is
incidentally made as a necessary part of a technical process of using a copy of
the subject‑matter.
(2) Subsection (1)
does not apply to:
(a) the making of a temporary copy of
a subject‑matter if the temporary copy is made from:
(i) an infringing copy of
the subject‑matter; or
(ii) a copy of the subject‑matter
where the copy is made in another country and would be an infringing copy of
the subject‑matter if the person who made the copy had done so in Australia;
or
(b) the making of a temporary copy of
a subject‑matter as a necessary part of a technical process of using a
copy of the subject‑matter if that use constitutes an infringement of the
copyright in the subject‑matter.
(3) Subsection (1) does not apply to any
subsequent use of a temporary copy of a subject‑matter other than as a
part of the technical process in which the temporary copy was made.
112
Reproductions of editions of work
The copyright in a published edition of
a work or works is not infringed by the making of a reproduction of the whole
or a part of that edition if that reproduction is made in the course of:
(a) where the edition contains one
work only:
(i) a dealing with that
work, being a dealing that does not, by virtue of section 40, 41, 42, 43
or 44, infringe copyright in that work; or
(ii) the making of a copy
(including a copy for a person with a print disability or a copy for a person
with an intellectual disability) of the whole or a part of that work, being a
copy the making of which does not, by virtue of section 49, 50, 51A, 51B, 135ZG,
135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ, 135ZR, 135ZS, 135ZT or 182A,
infringe copyright in that work; or
(b) where the edition contains more
than one work:
(i) a dealing with one of
those works or dealings with some or all of those works, being a dealing that
does not, or dealings that do not, by virtue of section 40, 41, 42, 43 or
44, infringe copyright in that work or those works; or
(ii) the making of a copy
(including a copy for a person with a print disability or a copy for a person
with an intellectual disability) of the whole or a part of one of those works
or the making of copies (including copies for persons with a print disability
or copies for persons with an intellectual disability) of the whole or parts of
some or all of those works, being a copy the making of which does not, or
copies the making of which do not, by virtue of section 49, 50, 51A, 51B, 135ZG,
135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ, 135ZR, 135ZS, 135ZT or 182A,
infringe copyright in that work or in those works.
112A
Importation and sale etc. of books
(1) The copyright in an overseas edition
first published on or after the commencing day, is not infringed by a person
who, without the licence of the owner of the copyright, imports a non‑infringing
book into Australia for a purpose mentioned in paragraph 102(1)(a), (b) or (c).
(2) Subject to this section, the copyright
in:
(a) an overseas edition first
published before the commencing day; or
(b) a
published edition of a work, being an edition first published in Australia,
whether before, on or after the commencing day;
is not infringed by a person who, without the licence of
the owner of the copyright, imports a copy (in this subsection called the imported
copy) of a hardback or paperback version of a non‑infringing book
into Australia for a purpose mentioned in paragraph 102(1)(a), (b) or (c) if:
(c) the person had ordered in writing
from the copyright owner, or the owner’s licensee or agent, one or more copies
of that version of the book (not being second‑hand copies or more copies
than were needed to satisfy the person’s reasonable requirements); and
(d) when the person ordered the
imported copy, the original order mentioned in paragraph (c) had not been
withdrawn or cancelled by, or with the consent of, the person and:
(i) at least 7 days had
elapsed since the person placed the original order and the copyright owner,
licensee or agent had not notified the person in writing that the original
order would be filled within 90 days after it was placed; or
(ii) at least 90 days had
elapsed since the person placed the original order and the copyright owner,
licensee or agent had not filled the order.
(3) The copyright in a published edition of a
work (whether the edition was first published before, on or after the
commencing day) is not infringed by a person who, without the licence of the
owner of the copyright, imports a single copy of a non‑infringing book
into Australia if the importation is for the purpose of filling a written
order, or a verifiable telephone order, by a customer of the person and:
(a) in the case of a written order,
the order contains a statement, signed by the customer; or
(b) in
the case of a telephone order, the customer makes a verifiable statement;
to the effect that the customer does not intend to use the
book for a purpose mentioned in paragraph 102(1)(a), (b) or (c).
(4) The copyright in a published edition of a
work (whether the edition was first published before, on or after the
commencing day) is not infringed by a person who, without the licence of the
owner of the copyright, imports 2 or more copies of a non‑infringing book
into Australia if:
(a) the importation is for the purpose
of filling a written order, or a verifiable telephone order, placed with the
person by or on behalf of a library, other than a library conducted for the
profit (direct or indirect) of a person or organisation; and
(b) in the case of a written order—the
order contains a statement, signed by the person placing the order, to the
effect that the library does not intend to use any of the books for a purpose
mentioned in paragraph 102(1)(a), (b) or (c); and
(c) in the case of a telephone
order—the person placing the order makes a verifiable statement to the effect
referred to in paragraph (b); and
(d) the number of copies so imported
is not more than the number of copies so ordered.
(5) Without limiting the ways in which a
telephone order under subsection (3) or (4), or a statement under paragraph (3)(b)
or (4)(c) relating to such an order, may be verified, such an order or
statement is, for the purposes of this section, taken to be verifiable if the
person who takes the order, or to whom the statement is made, makes a written
note of the details of the order or statement when, or immediately after, the
order is placed, or the statement is made, as the case may be.
(6) Where:
(a) a book is imported into Australia
for a purpose mentioned in paragraph 102(1)(a), (b) or (c); and
(b) the
importation does not, under this section, constitute an infringement of
copyright in a published edition of a work;
the use of the book for any such purpose does not
constitute an infringement of the copyright in the edition and subsection
103(1) does not apply to the book.
(7) Subsection (2) does not apply to the
importation of a copy of a hardback version of a non‑infringing book into
Australia if the copyright owner, or his or her licensee or agent, is able to
supply in Australia enough copies of a paperback version of the book to fill
any reasonable order.
(8) For the purposes of paragraph (2)(d),
a copyright owner, licensee or agent is not taken to have filled an order by a
person for one or more copies of a version of a book unless and until the
copyright owner, licensee or agent sends the copy, or all of the copies, as the
case requires, to the person.
(9) In this section:
book does not include:
(a) a book whose main content is one
or more musical works, with or without any related literary, dramatic or
artistic work; or
(b) a manual sold with computer
software for use in connection with that software; or
(c) a periodical publication.
commencing day means the day on which the Copyright
Amendment Act 1991 commences.
overseas edition means a published edition of
a work, being an edition:
(a) that was first published in a
country other than Australia; and
(b) that was not published in Australia
within 30 days after its first publication in that other country.
Note: An edition of a work may, for the purposes of
this Act, be first published in Australia if it is published in Australia
within 30 days of an earlier publication elsewhere. For the meaning of first
publication, see section 29 and, in particular, subsection 29(5).
112AA
Making preservation copies of significant published editions in key cultural
institutions’ collections
(1) This section applies in relation to a
published edition of one or more works held in the collection of a library or
archives if:
(a) the body administering the library
or archives:
(i) has, under a law of
the Commonwealth or a State or Territory, the function of developing and
maintaining the collection; or
(ii) is prescribed by the
regulations for the purposes of this subparagraph; and
(b) an authorized officer of the
library or archives is satisfied that the edition is of historical or cultural
significance to Australia.
Published editions
(2) The copyright in the published edition is
not infringed by an authorized officer of the library or archives making up to
3 facsimile copies of the edition from the copy held in the collection, for the
purpose of preserving the edition against loss or deterioration, if the officer
is satisfied that a copy or facsimile copy of the edition (not being a second‑hand
copy) cannot be obtained within a reasonable time at an ordinary commercial
price.
(3) In determining whether a copy (not being
a second‑hand copy) cannot be obtained within a reasonable time at an
ordinary commercial price, the authorized officer must take into account
whether an electronic copy of the edition can be obtained within a reasonable
time at an ordinary commercial price.
Works in published editions
(4) If, under this section, copyright in the
published edition is not infringed by the making of a facsimile copy of the
edition, the making of that copy does not infringe copyright in any of the
works in the published edition.
Relationship with the rest of this Division
(5) This section does not limit any of the
other provisions of this Division that provide that an act (however described)
does not infringe copyright. Those other provisions do not limit this section.
112B
Reproduction of writing on approved label for containers for chemical product
The reproduction on a label on a
container for a chemical product of any writing appearing on an approved label
is not an infringement of any copyright subsisting under section 92 in
relation to that writing.
112C
Copyright subsisting in accessories etc. to imported articles
(1) The copyright in:
(a) a published edition of a work a
reproduction of which is on, or embodied in, a non‑infringing accessory
to an article; or
(b) a cinematograph film a copy of
which is a non‑infringing accessory to an article; or
(c) a sound recording a record of
which is a non‑infringing accessory to an article;
is not infringed by importing the accessory with the
article.
Note: See the definition of accessory in
subsection 10(1) and see also section 10AD for an expanded meaning of accessory
in relation to certain imported articles.
(2) Section 103
does not apply to:
(a) a reproduction of a published
edition of a work, being a reproduction that is on, or embodied in, a non‑infringing
accessory to an article; or
(b) a copy of a cinematograph film,
being a copy that is a non‑infringing accessory to an article; or
(c) a record embodying a sound
recording, being a record that is a non‑infringing accessory to an
article;
if the importation of the accessory is not an infringement
of copyright in the edition, film or recording, as the case may be.
(3) The definition of article
in section 103 does not affect this section.
112D
Import of non‑infringing copy of a sound recording does not infringe
copyright in the sound recording
(1) The copyright in a sound recording is not
infringed by a person who:
(a) imports into Australia a non‑infringing
copy of the sound recording; or
(b) does an act described in section 103
involving an article that is a non‑infringing copy of the sound recording
and has been imported into Australia by anyone.
Note: In a civil action for infringement of
copyright, a copy of a sound recording is presumed not to be a non‑infringing
copy of the sound recording unless the defendant proves it is. See section 130A.
(2) This
section applies to a copy of a sound recording only if, when the copy is
imported into Australia, the sound recording has been published:
(a) in Australia;
or
(b) in
another country (the publication country) by or with the consent
of:
(i) the owner of the
copyright or related right in the sound recording in the publication country;
or
(ii) the owner of the
copyright or related right in the sound recording in the country (the original
recording country) in which the sound recording was made, if the law of
the publication country did not provide for copyright or a related right in
sound recordings when publication occurred; or
(iii) the maker of the sound
recording, if neither the law of the publication country nor the law of the
original recording country (whether those countries are different or not)
provided for copyright or a related right in sound recordings when publication
occurred.
Note: Subsection 29(6) deals with unauthorised
publication.
(3) In subsection (2):
owner of the copyright or related right in
the sound recording means the owner at the time publication of the sound
recording occurred.
(4) The definition of article
in section 103 does not affect this section.
112DA
Importation and sale etc. of copies of electronic literary or music items
(1) If, in relation to a published edition of
a work:
(a) the work is, or is part of, an
electronic literary or music item; and
(b) the edition has been published in Australia
or a qualifying country;
then the copyright in the published edition is not
infringed by a person who:
(c) imports into Australia an article
that has embodied in it a non‑infringing copy of the electronic literary
or music item; or
(d) does an act mentioned in section 103
involving an article that has embodied in it a non‑infringing copy of the
electronic literary or music item and that has been imported into Australia by
anyone.
Note: Section 130C deals with the burden of
proof a defendant bears in a civil action for infringement of copyright.
(2) The definition of article
in section 103 does not affect this section.
112E
Communication by use of certain facilities
A person (including a carrier or
carriage service provider) who provides facilities for making, or facilitating
the making of, a communication is not taken to have authorised any infringement
of copyright in an audio‑visual item merely because another person uses
the facilities so provided to do something the right to do which is included in
the copyright.
Division 7—Miscellaneous
113
Copyrights to subsist independently
(1) Subject to subsection 110(2), where
copyright subsists in any subject‑matter by virtue of this Part, nothing
in this Part shall be taken to affect the operation of Part III in
relation to any literary, dramatic, musical or artistic work from which that
subject‑matter is wholly or partly derived, and any copyright subsisting
by virtue of this Part is in addition to, and independent of, any copyright
subsisting by virtue of Part III.
(2) The subsistence of copyright under any
provision of this Part does not affect the operation of any other provision of
this Part under which copyright can subsist.
113A
Agents may act on behalf of groups of performers
(1) This section applies in respect of all
members of a group of performers who have an interest in the copyright in a
sound recording of a live performance.
(2) All members of the group are taken to
have granted a licence or permission (however described) to a person:
(a) to do an act comprised in the
copyright; or
(b) to do any other act in relation to
the copyright;
if an agent of the group, acting within the scope of his
or her actual or apparent authority, has granted a licence or permission to the
person to do the act.
Note: The person may still need to obtain the
licence or permission of other owners of the copyright before doing the act.
113B
Consent to the use of a sound recording of a live performance
A person is taken to have been granted a
licence or permission (however described) by a performer to use a sound
recording of a live performance if:
(a) the performer has given his or her
consent to recording the performance for a particular purpose; and
(b) the recording is used for that
purpose in accordance with the terms of the consent.
Note: The person may still need to obtain the
consent of the other owners of the copyright in the sound recording of the live
performance before using the sound recording.
113C
Use of published sound recordings when owners cannot be found etc.
(1) An owner (the first owner)
of the copyright in a sound recording of a live performance that is a published
sound recording is taken to have been granted a licence or permission (however
described) by another owner of the copyright to do an act comprised in the
copyright, or to do any other act in relation to the copyright, if:
(a) the first owner has entered into
an agreement with another person to do the act; and
(b) the first owner, after making
reasonable inquiries, cannot discover the identity or location of the other
owner or a person representing the other owner.
Note: The first owner may still need to obtain a
licence or permission from any other owners of the copyright in the sound
recording of the live performance.
(2) If the first owner does the act, then the
first owner must hold the other owner’s share of any amount received in respect
of it on trust for 4 years after the day on which the agreement is entered into
(unless the amount is distributed to, or on behalf of, the other owner before
then).
(3) If during the 4 year period, the other
owner is identified and located, the first owner must distribute the amount
held on trust to, or on behalf of, the other owner. If at the end of the 4 year
period, the other owner remains unidentified or is not located, the first owner
may retain the amount.
(4) After initially making reasonable
inquiries, the first owner is not required to continue making reasonable
inquiries during the 4 year period.
(5) The other owner cannot prevent the first
owner doing the act comprised in the copyright during the term of the agreement
if the other owner is identified or located.
Part V—Remedies and offences
Division 1—Preliminary
114
Interpretation
(1) In this Part, action means
a proceeding of a civil nature between parties, and includes a counterclaim.
(2) In the application of this Part in
relation to a counterclaim, references to the plaintiff and to the defendant
shall be read as references to the defendant and to the plaintiff,
respectively.
Division 2—Actions by owner of copyright
115
Actions for infringement
(1) Subject to this Act, the owner of a
copyright may bring an action for an infringement of the copyright.
(2) Subject to this Act, the relief that a
court may grant in an action for an infringement of copyright includes an
injunction (subject to such terms, if any, as the court thinks fit) and either
damages or an account of profits.
(3) Where, in an action for infringement of
copyright, it is established that an infringement was committed but it is also
established that, at the time of the infringement, the defendant was not aware,
and had no reasonable grounds for suspecting, that the act constituting the
infringement was an infringement of the copyright, the plaintiff is not
entitled under this section to any damages against the defendant in respect of
the infringement, but is entitled to an account of profits in respect of the
infringement whether any other relief is granted under this section or not.
(4) Where, in an action under this section:
(a) an infringement of copyright is
established; and
(b) the court is satisfied that it is
proper to do so, having regard to:
(i) the flagrancy of the
infringement; and
(ia) the need to deter
similar infringements of copyright; and
(ib) the conduct of the
defendant after the act constituting the infringement or, if relevant, after
the defendant was informed that the defendant had allegedly infringed the
plaintiff’s copyright; and
(ii) whether the
infringement involved the conversion of a work or other subject‑matter
from hardcopy or analog form into a digital or other electronic machine‑readable
form; and
(iii) any benefit shown to
have accrued to the defendant by reason of the infringement; and
(iv) all
other relevant matters;
the court may, in assessing damages for the infringement,
award such additional damages as it considers appropriate in the circumstances.
Consideration for relief for electronic commercial
infringement
(5) Subsection (6) applies to a court
hearing an action for infringement of copyright if the court is satisfied that:
(a) the infringement (the proved
infringement) occurred (whether as a result of the doing of an act
comprised in the copyright, the authorising of the doing of such an act or the
doing of another act); and
(b) the proved infringement involved a
communication of a work or other subject‑matter to the public; and
(c) because the work or other subject‑matter
was communicated to the public, it is likely that there were other
infringements (the likely infringements) of the copyright by the
defendant that the plaintiff did not prove in the action; and
(d) taken together, the proved
infringement and likely infringements were on a commercial scale.
(6) The court may have regard to the
likelihood of the likely infringements (as well as the proved infringement) in
deciding what relief to grant in the action.
(7) In determining for the purposes of paragraph (5)(d)
whether, taken together, the proved infringement and the likely infringements
were on a commercial scale, the following matters are to be taken into account:
(a) the volume and value of any
articles that:
(i) are infringing copies
that constitute the proved infringement; or
(ii) assuming the likely
infringements actually occurred, would be infringing copies constituting those
infringements;
(b) any other relevant matter.
(8) In subsection (7):
article includes a reproduction or copy of a
work or other subject‑matter, being a reproduction or copy in electronic
form.
116
Rights of owner of copyright in respect of infringing copies
(1) The owner of the copyright in a work or
other subject‑matter may bring an action for conversion or detention in
relation to:
(a) an infringing copy; or
(b) a device (including a
circumvention device) used or intended to be used for making infringing copies.
(1A) In an action for conversion or detention, a
court may grant to the owner of the copyright all or any of the remedies that
are available in such an action as if:
(a) the owner of the copyright had
been the owner of the infringing copy since the time the copy was made; or
(b) the owner of the copyright had
been the owner of the device since the time when it was used or intended to be
used for making infringing copies.
(1B) Any relief granted by a court in an action
for conversion or detention is in addition to any relief that the court may
grant under section 115.
(1C) A court is not to grant any relief to the
owner of the copyright in an action for conversion or detention if the relief
that the court has granted or proposes to grant under section 115 is, in
the opinion of the court, a sufficient remedy.
(1D) In deciding whether to grant relief in an
action for conversion or detention and in assessing the amount of damages
payable, the court may have regard to the following:
(a) the expenses incurred by the
defendant, being a person who marketed or otherwise dealt with the infringing
copy, in manufacturing or acquiring the infringing copy;
(b) whether the expenses were incurred
before or after the infringing copy was sold or otherwise disposed of by the
defendant;
(c) any
other matter that the court considers relevant.
(1E) If the infringing copy is an article of
which only part consists of material that infringes copyright, the court, in
deciding whether to grant relief and in assessing the amount of damages
payable, may also have regard to the following:
(a) the importance to the market value
of the article of the material that infringes the copyright;
(b) the proportion the material that
infringes copyright bears to the article;
(c) the extent to which the material
that infringes copyright may be separated from the article.
(2) A plaintiff is not entitled by virtue of
this section to any damages or to any other pecuniary remedy, other than costs,
if it is established that, at the time of the conversion or detention:
(a) the defendant was not aware, and
had no reasonable grounds for suspecting, that copyright subsisted in the work
or other subject‑matter to which the action relates;
(b) where the articles converted or
detained were infringing copies—the defendant believed, and had reasonable
grounds for believing, that they were not infringing copies; or
(c) where an article converted or
detained was a device used or intended to be used for making articles—the
defendant believed, and had reasonable grounds for believing, that the articles
so made or intended to be made were not or would not be, as the case may be,
infringing copies.
116AAA
Compensation for acquisition of property
(1) This section applies if, apart from this
section, subsections 22(3A) and 97(2) and (2A) would result in the acquisition
of property from a maker of a sound recording of a live performance by a
performer in the performance otherwise than on just terms.
(2) There is payable to the maker by the
performer such amount of compensation as is agreed on between those persons,
or, failing agreement, as is determined by a court of competent jurisdiction.
(3) Any
damages or compensation recovered or other remedy given in a proceeding that is
commenced otherwise than under this section is to be taken into account in
assessing compensation payable in a proceeding that is commenced under this
section and that arises out of the same event or transaction.
(4) Any compensation payable in a proceeding
that is commenced under this section is to be taken into account in assessing
any damages or compensation or other remedy to be awarded in a proceeding that
is commenced otherwise than under this section and that arises out of the same
event or transaction.
(5) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
maker of a sound recording of a live
performance means a person mentioned in paragraph 22(3A)(a).
performer in a live performance means the
following people:
(a) a person who becomes a maker of a
sound recording under paragraph 22(3A)(b);
(b) if subsection 22(3B) applies—an
employer who becomes a maker of a sound recording under that subsection.
Division 2AA—Limitation on remedies available against carriage service
providers
Subdivision A—Preliminary
116AA
Purpose of this Division
(1) The purpose of this Division is to limit
the remedies that are available against carriage service providers for
infringements of copyright that relate to the carrying out of certain online
activities by carriage service providers. A carriage service provider must
satisfy certain conditions to take advantage of the limitations.
Note 1: Subdivision B contains a description of the
relevant activities.
Note 2: Subdivision C contains details of the
limitations on remedies.
Note 3: Subdivision D sets out the conditions that must
be satisfied for a carriage service provider to take advantage of the
limitations. The limitations are automatic if a carriage service provider
complies with the relevant conditions.
(2) This Division does not limit the
operation of provisions of this Act outside this Division in relation to
determining whether copyright has been infringed.
116AB
Definitions
In this Division:
caching means the reproduction of copyright
material on a system or network controlled or operated by or for a carriage
service provider in response to an action by a user in order to facilitate
efficient access to that material by that user or other users.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
industry code means:
(a) an industry code that:
(i) meets any prescribed
requirements; and
(ii) is registered under
Part 6 of the Telecommunications Act 1997; or
(b) an industry code developed in
accordance with the regulations.
Subdivision B—Relevant activities
116AC
Category A activity
A carriage service provider carries out
a Category A activity by providing facilities or services for
transmitting, routing or providing connections for copyright material, or the
intermediate and transient storage of copyright material in the course of
transmission, routing or provision of connections.
116AD
Category B activity
A carriage service provider carries out
a Category B activity by caching copyright material through an
automatic process. The carriage service provider must not manually select the
copyright material for caching.
116AE
Category C activity
A carriage service provider carries out
a Category C activity by storing, at the direction of a user,
copyright material on a system or network controlled or operated by or for the
carriage service provider.
116AF
Category D activity
A carriage service provider carries out
a Category D activity by referring users to an online location
using information location tools or technology.
Subdivision C—Limitations on remedies
116AG
Limitations on remedies
Relevant conditions must be satisfied
(1) A carriage service provider must satisfy
the relevant conditions set out in Subdivision D before the limitations in this
section apply.
General limitations
(2) For infringements of copyright that occur
in the course of carrying out any of the categories of activities set out in
Subdivision B, a court must not grant relief against a carriage service
provider that consists of:
(a) damages or an account of profits;
or
(b) additional damages; or
(c) other monetary relief.
Category specific limitations
(3) For an infringement of copyright that
occurs in the course of the carrying out of a Category A activity, the relief
that a court may grant against a carriage service provider is limited to one or
more of the following orders:
(a) an order requiring the carriage
service provider to take reasonable steps to disable access to an online
location outside Australia;
(b) an order requiring the carriage
service provider to terminate a specified account.
(4) For an infringement of copyright that
occurs in the course of the carrying out of a Category B, C or D activity, the
relief that a court may grant against a carriage service provider is limited to
one or more of the following orders:
(a) an order requiring the carriage
service provider to remove or disable access to infringing copyright material,
or to a reference to infringing copyright material;
(b) an order requiring the carriage
service provider to terminate a specified account;
(c) some other less burdensome but
comparably effective non‑monetary order if necessary.
Relevant matters
(5) In deciding whether to make an order of a
kind referred to in subsection (3) or (4), a court must have regard to:
(a) the harm that has been caused to
the owner or exclusive licensee of the copyright; and
(b) the burden that the making of the
order will place on the carriage service provider; and
(c) the technical feasibility of
complying with the order; and
(d) the effectiveness of the order;
and
(e) whether some other comparably
effective order would be less burdensome.
The court may have regard to other matters it considers
relevant.
Subdivision D—Conditions
116AH
Conditions
(1) This table sets out the conditions for
each of the categories of activities.
|
Conditions
|
|
Item
|
Activity
|
Conditions
|
|
1
|
All categories
|
1. The carriage service provider must adopt and reasonably
implement a policy that provides for termination, in appropriate
circumstances, of the accounts of repeat infringers.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant provisions of that
code relating to accommodating and not interfering with standard technical
measures used to protect and identify copyright material.
|
|
2
|
Category A
|
1. Any transmission of copyright material in carrying out
this activity must be initiated by or at the direction of a person other than
the carriage service provider.
2. The carriage service provider must not make substantive
modifications to copyright material transmitted. This does not apply to
modifications made as part of a technical process.
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3
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Category B
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1. If the copyright material that is cached is subject to
conditions on user access at the originating site, the carriage service
provider must ensure that access to a significant part of the cached
copyright material is permitted only to users who have met those conditions.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant provisions of that
code relating to:
(a) updating the cached copyright material; and
(b) not interfering with technology used at the originating
site to obtain information about the use of the copyright material.
3. The service provider must expeditiously remove or
disable access to cached copyright material upon notification in the
prescribed form that the material has been removed or access to it has been
disabled at the originating site.
4. The carriage service provider must not make substantive
modifications to the cached copyright material as it is transmitted to
subsequent users. This does not apply to modifications made as part of a
technical process.
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4
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Category C
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1. The carriage service provider must not receive a
financial benefit that is directly attributable to the infringing activity if
the carriage service provider has the right and ability to control the
activity.
2. The carriage service provider must expeditiously remove
or disable access to copyright material residing on its system or network
upon receipt of a notice in the prescribed form that the material has been
found to be infringing by a court.
2A. The
carriage service provider must act expeditiously to remove or disable access
to copyright material residing on its system or network if the carriage
service provider:
(a) becomes aware that the material is infringing; or
(b) becomes aware of facts or circumstances that make it
apparent that the material is likely to be infringing.
The carriage service provider does not, in an action
relating to this Division, bear any onus of proving a matter referred to in paragraph (a)
or (b).
3. The carriage service provider must comply with the
prescribed procedure in relation to removing or disabling access to copyright
material residing on its system or network.
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5
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Category D
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1. The carriage service provider must not receive a
financial benefit that is directly attributable to the infringing activity if
the carriage service provider has the right and ability to control the
activity.
2. The carriage service provider must expeditiously remove
or disable access to a reference residing on its system or network upon
receipt of a notice in the prescribed form that the copyright material to
which it refers has been found to be infringing by a court.
2A. The
carriage service provider must act expeditiously to remove or disable access
to a reference residing on its system or network if the carriage service
provider:
(a) becomes aware that the copyright material to which it
refers is infringing; or
(b) becomes aware of facts or circumstances that make it
apparent that the copyright material to which it refers is likely to be
infringing.
The carriage service provider does not, in an action
relating to this Division, bear any onus of proving a matter referred to in paragraph (a)
or (b).
3. The carriage service provider must comply with the
prescribed procedure in relation to removing or disabling a reference
residing on its system or network.
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(2) Nothing in the conditions is to be taken
to require a carriage service provider to monitor its service or to seek facts
to indicate infringing activity except to the extent required by a standard
technical measure mentioned in condition 2 in table item 1 in the table in
subsection (1).
(3) In deciding, for the purposes of
condition 1 in table items 4 and 5 in the table in subsection (1),
whether a financial benefit is otherwise directly attributable to the
infringing activity referred to in that condition, a court must have regard to:
(a) industry practice in relation to
the charging of services by carriage service providers, including charging
based on level of activity; and
(b) whether
the financial benefit was greater than the benefit that would usually result
from charging in accordance with accepted industry practice.
The court may have regard to other matters it considers
relevant.
(4) An act done by a carriage service
provider in complying with the prescribed procedure referred to in condition 3
in table item 4 in the table in subsection (1) does not constitute a
failure to satisfy condition 2A in that item.
116AI
Evidence of compliance with conditions
If a carriage service provider, in an
action relating to this Division, points to evidence, as prescribed, that
suggests that the carriage service provider has complied with a condition, the
court must presume, in the absence of evidence to the contrary, that the
carriage service provider has complied with the condition.
Subdivision E—Regulations
116AJ
Regulations
(1) The regulations may provide that a
carriage service provider is not liable for damages or any other civil remedy
as a result of action taken in good faith to comply with a condition.
(2) The regulations may provide civil
remedies for conduct by relevant parties in relation to conditions.
(3) The regulations may prescribe offences
for conduct by persons issuing notices under the regulations, and prescribe
penalties for offences against those regulations. The penalties must not exceed
50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalty stated
above.
Division 2A—Actions in relation to technological protection measures and
electronic rights management information
Subdivision A—Technological protection measures
116AK
Definitions
In this Subdivision, computer
program has the same meaning as in section 47AB.
116AL
Interaction of this Subdivision with Part VAA
This Subdivision does not apply to
encoded broadcasts (within the meaning of Part VAA).
116AM
Geographical application
(1) This Subdivision applies to acts done in Australia.
(2) This section does not, by implication,
affect the interpretation of any other provision of this Act.
116AN
Circumventing an access control technological protection measure
(1) An owner or exclusive licensee of the
copyright in a work or other subject‑matter may bring an action against a
person if:
(a) the work or other subject‑matter
is protected by an access control technological protection measure; and
(b) the person does an act that
results in the circumvention of the access control technological protection
measure; and
(c) the person knows, or ought
reasonably to know, that the act would have that result.
Exception—permission
(2) Subsection (1) does not apply to the
person if the person has the permission of the copyright owner or exclusive
licensee to circumvent the access control technological protection measure.
Exception—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person when the
circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Exception—encryption research
(4) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable:
(i) the person; or
(ii) if the person is a
body corporate—an employee of the person;
to do an act; and
(b) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(c) the person or employee is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(d) the person or employee:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Exception—online privacy
(6) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and disabling an undisclosed capability to collect
or disseminate personally identifying information about the online activities
of a natural person; and
(iv) will not affect the
ability of the person or any other person to gain access to the work or other
subject‑matter or any other work or subject‑matter.
Exception—law enforcement and national security
(7) Subsection (1) does not apply in
relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Exception—libraries etc.
(8) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the person is:
(i) a library (other than
a library that is conducted for the profit, direct or indirect, of an
individual or individuals); or
(ii) a body mentioned in paragraph (a)
of the definition of archives in subsection 10(1), or in
subsection 10(4); or
(iii) an educational
institution; and
(c) the act will be done for the sole
purpose of making an acquisition decision in relation to the work or other
subject‑matter; and
(d) the work or other subject‑matter
will not be otherwise available to the person when the act is done.
Note: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Exception—prescribed acts
(9) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act will not infringe the
copyright in a work or other subject‑matter; and
(c) the doing of the act by the person
is prescribed by the regulations.
Note: For the making of regulations prescribing the
doing of an act by a person, see section 249.
Burden of proof
(10) The defendant bears the burden of
establishing the matters referred to in subsections (2) to (9).
116AO
Manufacturing etc. a circumvention device for a technological protection
measure
(1) An owner or exclusive licensee of the
copyright in a work or other subject‑matter may bring an action against a
person if:
(a) the person does any of the following
acts with a device:
(i) manufactures it with
the intention of providing it to another person;
(ii) imports it into Australia
with the intention of providing it to another person;
(iii) distributes it to
another person;
(iv) offers it to the public;
(v) provides it to another
person;
(vi) communicates it to
another person; and
(b) the person knows, or ought
reasonably to know, that the device is a circumvention device for a
technological protection measure; and
(c) the work or other subject‑matter
is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2) Subsection (1) does not apply to the
person if:
(a) the device is a circumvention
device for the technological protection measure only because it was promoted,
advertised or marketed as having the purpose of circumventing the technological
protection measure; and
(b) both
of the following apply:
(i) the person did not do
such promoting, advertising or marketing;
(ii) the person did not
direct or request (expressly or impliedly) another person to do such promoting,
advertising or marketing.
Exception—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the circumvention device will be
used to circumvent the technological protection measure to enable the doing of
an act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person doing the
act when the circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Exception—encryption research
(4) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention device will be
used to circumvent the access control technological protection measure to
enable a person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(d) the researcher is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention device will be
used to circumvent the access control technological protection measure to
enable the doing of an act; and
(c) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Exception—law enforcement and national security
(6) Subsection (1)
does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of
establishing the matters referred to in subsections (2) to (6).
116AP
Providing etc. a circumvention service for a technological protection measure
(1) An owner or exclusive licensee of the
copyright in a work or other subject‑matter may bring an action against a
person if:
(a) the person:
(i) provides a service to
another person; or
(ii) offers a service to
the public; and
(b) the person knows, or ought
reasonably to know, that the service is a circumvention service for a
technological protection measure; and
(c) the work or other subject‑matter
is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2) Subsection (1) does not apply to the
person if:
(a) the service is a circumvention
service for the technological protection measure only because it was promoted,
advertised or marketed as having the purpose of circumventing the technological
protection measure; and
(b) both of the following apply:
(i) the person did not do
such promoting, advertising or marketing;
(ii) the person did not
direct or request (expressly or impliedly) another person to do such promoting,
advertising or marketing.
Exception—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the circumvention service will be
used to circumvent a technological protection measure to enable the doing of an
act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person doing the
act when the circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Exception—encryption research
(4) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention service will be
used to circumvent the access control technological protection measure to
enable a person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(d) the researcher is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention service will be
used to circumvent the access control technological protection measure to
enable the doing of an act; and
(c) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Exception—law enforcement and national security
(6) Subsection (1)
does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of
establishing the matters referred to in subsections (2) to (6).
116AQ
Remedies in actions under this Subdivision
(1) Without limiting the relief that a court may
grant in an action under this Subdivision, the relief may include:
(a) an injunction, subject to such
terms, if any, as the court thinks fit; and
(b) damages or an account of profits;
and
(c) if the doing of an act, which is
the subject of the action, involved a circumvention device—an order that the
circumvention device be destroyed or dealt with as specified in the order.
(2) In assessing damages, the court may award
such additional damages as it considers appropriate, having regard to:
(a) the flagrancy of the defendant’s
acts that are the subject of the action; and
(b) the need to deter similar acts;
and
(c) the conduct of the defendant after
the acts or, if relevant, after the defendant was informed that the defendant
had allegedly done an act that would be the subject of an action under this
Subdivision; and
(d) any benefit shown to have accrued
to the defendant as a result of those acts; and
(e) any other relevant matters.
(3) If:
(a) an action has been commenced
against a person under this Subdivision; and
(b) the doing of an act by the person,
which is the subject of the action, involved a device; and
(c) the device appears to the court to
be a circumvention device;
the court may order that the device be delivered up to the
court upon such conditions as the court considers appropriate.
(4) This section does not, by implication,
affect the interpretation of any other provision of this Act.
Subdivision B—Electronic rights management information
116B
Removal or alteration of electronic rights management information
(1) This section applies if:
(a) either:
(i) a person removes, from
a copy of a work or other subject‑matter in which copyright subsists, any
electronic rights management information that relates to the work or other
subject‑matter; or
(ii) a person alters any
electronic rights management information that relates to a work or other
subject‑matter in which copyright subsists; and
(b) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(c) the person knew, or ought
reasonably to have known, that the removal or alteration would induce, enable,
facilitate or conceal an infringement of the copyright in the work or other
subject‑matter.
(2) If this section applies, the owner or exclusive
licensee of the copyright may bring an action against the person.
(3) In an action under subsection (2),
it must be presumed that the defendant knew, or ought reasonably to have known,
that the removal or alteration to which the action relates would have the
effect referred to in paragraph (1)(c) unless the defendant proves
otherwise.
116C Distribution
to the public etc. of works whose electronic rights management information has
been removed or altered
(1) This
section applies if:
(a) a person does any of the following
acts in relation to a work or other subject‑matter in which copyright
subsists without the permission of the owner or exclusive licensee of the
copyright:
(i) distributes a copy of
the work or other subject‑matter to the public;
(ii) imports into Australia
a copy of the work or other subject‑matter for distribution to the public;
(iii) communicates a copy of
the work or other subject‑matter to the public; and
(b) either:
(i) any electronic rights
management information that relates to the work or other subject‑matter
has been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or other subject‑matter
has been altered; and
(c) the person knew that the
electronic rights management information had been so removed or altered without
the permission of the owner or exclusive licensee of the copyright; and
(d) the person knew, or ought
reasonably to have known, that the act referred to in paragraph (a) that
was done by the person would induce, enable, facilitate or conceal an
infringement of the copyright in the work or other subject‑matter.
(2) If this section applies, the owner or
exclusive licensee of the copyright may bring an action against the person.
(3) In an action under subsection (2),
it must be presumed that the defendant:
(a) had the knowledge referred to in paragraph (1)(c);
and
(b) knew, or ought reasonably to have
known, that the doing of the act to which the action relates would have the
effect referred to in paragraph (1)(d);
unless the defendant proves otherwise.
116CA
Distribution and importation of electronic rights management information that
has been removed or altered
(1) This section applies if:
(a) a person does either of the following
acts in relation to electronic rights management information that relates to a
work or other subject‑matter in which copyright subsists:
(i) distributes the
electronic rights management information;
(ii) imports into Australia
the electronic rights management information for distribution; and
(b) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(c) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(d) the person knew that the
information had been removed or altered without that permission; and
(e) the person knew, or ought
reasonably to have known, that the act referred to in paragraph (a) that
was done by the person would induce, enable, facilitate or conceal an
infringement of the copyright.
(2) If this section applies, the owner or
exclusive licensee of the copyright may bring an action against the person.
(3) In an action under subsection (2),
it must be presumed that the defendant:
(a) had the knowledge referred to in paragraph (1)(d);
and
(b) knew, or ought reasonably to have
known, that the doing of the act to which the action relates would have the
effect referred to in paragraph (1)(e);
unless the defendant proves otherwise.
116CB
Exception relating to national security and law enforcement
Sections 116B to 116CA do not apply
in respect of anything lawfully done for the purposes of law enforcement or
national security by or on behalf of:
(a) the Commonwealth or a State or
Territory; or
(b) an authority of the Commonwealth
or of a State or Territory.
116D
Remedies in actions under this Subdivision
(1) The relief that a court may grant in an
action under this Subdivision includes an injunction (subject to such terms, if
any, as the court thinks fit) and either damages or an account of profits.
(2) If, in an action under this Subdivision,
the court is satisfied that it is proper to do so, having regard to:
(a) the flagrancy of the defendant’s
actions that are the subject of the action; and
(b) any benefit shown to have accrued
to the defendant as a result of those acts; and
(c) any other relevant matters;
the court may, in assessing damages, award such additional
damages as it considers appropriate in the circumstances.
Division 3—Proceedings where copyright is subject to exclusive licence
117
Interpretation
In this Division:
if the licence had been an assignment means
if, instead of the licence, there had been granted (subject to conditions corresponding
as nearly as practicable with those subject to which the licence was granted)
an assignment of the copyright in respect of its application to the doing, at
the places and times authorized by the licence, of the acts so authorized.
the other party means:
(a) in relation to the owner of the
copyright—the exclusive licensee; and
(b) in relation to the exclusive
licensee—the owner of the copyright.
118
Application
This Division applies to proceedings in
relation to a copyright in respect of which an exclusive licence has been
granted and is in force at the time of the events to which the proceedings
relate.
119
Rights of exclusive licensee
Subject to the succeeding sections of
this Division:
(a) except against the owner of the
copyright, the exclusive licensee has the same rights of action as he or she
would have, and is entitled to the same remedies as he or she would be entitled
to, by virtue of section 115 if the licence had been an assignment, and
those rights and remedies are concurrent with the rights and remedies of the
owner of the copyright under that section;
(b) except
against the owner of the copyright, the exclusive licensee has the same rights
of action as he or she would have, and is entitled to the same remedies as he
or she would be entitled to, by virtue of section 116 if the licence had
been an assignment; and
(c) the owner of the copyright does
not have any rights of action that he or she would not have, and is not
entitled to any remedies that he or she would not be entitled to, by virtue of
section 116 if the licence had been an assignment.
120
Joinder of owner or exclusive licensee as a party
(1) Where:
(a) an action is brought by the owner
of the copyright or by the exclusive licensee; and
(b) the
action, in so far as it is brought under section 115, relates, in whole or
in part, to an infringement in respect of which the owner and the licensee have
concurrent rights of action under that section;
the owner or licensee, as the case may be, is not
entitled, except with the leave of the court, to proceed with the action, in so
far as it is brought under that section and relates to that infringement,
unless the other party is joined as a plaintiff in the action or added as a
defendant.
(2) This section does not affect the granting
of an interlocutory injunction on the application of the owner of the copyright
or of the exclusive licensee.
121
Defences available against exclusive licensee
In an action brought by the exclusive
licensee by virtue of this Division, a defence under this Act that would have
been available to a defendant in the action if the action had been brought by
the owner of the copyright is available to that defendant as against the
exclusive licensee.
122
Assessment of damages where exclusive licence granted
Where an
action to which section 120 applies is brought and the owner of the
copyright and the exclusive licensee are not both plaintiffs in the action, the
court, in assessing damages in respect of an infringement of a kind referred to
in that section, shall:
(a) if the plaintiff is the exclusive
licensee—take into account any liabilities, in respect of royalties or
otherwise, to which the licence is subject; and
(b) whether the plaintiff is the owner
of the copyright or the exclusive licensee—take into account any pecuniary
remedy already awarded to the other party under section 115 in respect of
that infringement, or any right of action exercisable by the other party under
that section in respect of that infringement, as the case requires.
123 Apportionment
of profits between owner and exclusive licensee
Where:
(a) an action, in so far as it is
brought under section 115, relates, in whole or in part, to an
infringement in respect of which the owner of the copyright and the exclusive
licensee have concurrent rights of action under that section; and
(b) in
that action, whether the owner of the copyright and the exclusive licensee are
both parties or not, an account of profits is directed to be taken in respect
of that infringement;
then, subject to any agreement of which the court is aware
by which the application of those profits is determined as between the owner of
the copyright and the exclusive licensee, the court shall apportion the profits
between them in such a manner as the court considers just and shall give such
directions as the court considers appropriate for giving effect to that
apportionment.
Note: However, not all owners of the copyright are
entitled to an account of profits: see section 100AG.
124
Separate actions in relation to the same infringement
In an
action brought by the owner of the copyright or by the exclusive licensee:
(a) a judgment or order for the
payment of damages in respect of an infringement of copyright shall not be
given or made under section 115 if a final judgment or order has been
given or made in favour of the other party directing an account of profits
under that section in respect of the same infringement; and
(b) a judgment or order for an account
of profits in respect of an infringement of copyright shall not be given or
made under that section if a final judgment or order has been given or made in
favour of the other party awarding damages or directing an account of profits
under that section in respect of the same infringement.
Note: However, not all owners of the copyright are
entitled to damages (other than additional damages) or an account of profits:
see section 100AG.
125
Liability for costs
Where, in an action to which section 120
applies, whether brought by the owner of the copyright or by the exclusive
licensee, the other party is not joined as a plaintiff (either at the
commencement of the action or at a later time), but is added as a defendant,
the other party is not liable for any costs in the action unless he or she
enters an appearance and takes part in the proceedings.
Division 4—Proof of facts in civil actions
126
Presumptions as to subsistence and ownership of copyright
In an action brought by virtue of this
Part:
(a) copyright shall be presumed to
subsist in the work or other subject‑matter to which the action relates
if the defendant does not put in issue the question whether copyright subsists
in the work or other subject‑matter; and
(b) where the subsistence of the
copyright is established—the plaintiff shall be presumed to be the owner of the
copyright if he or she claims to be the owner of the copyright and the
defendant does not put in issue the question of his or her ownership.
126A Presumptions
relating to subsistence of copyright
(1) This section applies to an action under
this Part in which the defendant puts in issue the question whether copyright
subsists in the work or other subject matter to which the action relates.
Labels or marks
(2) If a copy of the work or other subject
matter, or the packaging or container in which the copy is packaged or
contained, bears a label or mark stating the year and place of the first
publication, or of the making, of the work or other subject matter, then that
year and place are presumed to be as stated on the label or mark, unless the
contrary is established.
Foreign certificates
(3) If a certificate or other document issued
in a qualifying country in accordance with a law of that country states the
year and place of the first publication, or of the making, of the work or other
subject matter, then that year and place are presumed to be as stated in the
certificate or document, unless the contrary is established.
(4) For the
purposes of this section, a document purporting to be a certificate or document
referred to in subsection (3) is, unless the contrary intention is
established, taken to be such a certificate or document.
126B Presumptions
relating to ownership of copyright
(1) This section applies to an action under
this Part in which the defendant puts in issue the question of the plaintiff’s
ownership of copyright in the work or other subject matter to which the action
relates.
Labels or marks
(2) If a copy of the work or other subject
matter, or the packaging or container in which the copy is packaged or
contained, bears a label or mark stating that a person was the owner of
copyright in the work or other subject matter at a particular time, then the
person is presumed to have been the owner of the copyright at the time, unless
the contrary is established.
Foreign certificates
(3) If a certificate or other document issued
in a qualifying country in accordance with a law of that country states that a
person was the owner of copyright in the work or other subject matter at a
particular time, then the person is presumed to have been the owner of the
copyright at the time, unless the contrary is established.
(4) For the purposes of this section, a
document purporting to be a certificate or document referred to in subsection (3)
is, unless the contrary intention is established, taken to be such a
certificate or document.
Chains of ownership
(5) If:
(a) subsection (2) or (3)
applies; and
(b) the plaintiff produces a document
stating the following:
(i) each subsequent owner
of the copyright the subject of the action (including the plaintiff’s
ownership);
(ii) the date each
subsequent owner became the owner of that copyright;
(iii) a description of the
transaction resulting in each subsequent owner becoming the owner of that
copyright;
then the matters described in subparagraphs (b)(i),
(ii) and (iii) are presumed to be as stated in the document, unless the
contrary is established.
(6) If:
(a) neither subsection (2) nor
(3) applies; and
(b) the plaintiff produces a document
stating the following:
(i) the original owner of the
copyright the subject of the action;
(ii) each subsequent owner
of that copyright (including the plaintiff’s ownership);
(iii) the date each owner
became the owner of that copyright;
(iv) a description of the
transaction resulting in each owner becoming the owner of that copyright;
then the matters described in subparagraphs (b)(i),
(ii), (iii) and (iv) are presumed to be as stated in the document, unless the
contrary is established.
Offence
(7) A person is guilty of an offence if:
(a) the person produces a document
under subsection (5) or (6); and
(b) the person is reckless as to
whether the document is false or misleading.
Penalty: 30 penalty units.
127
Presumptions in relation to authorship of work
(1) Where a name purporting to be that of the
author of a literary, dramatic, musical or artistic work appeared on copies of
the work as published or a name purporting to be that of the author of an
artistic work appeared on the work when it was made, the person whose name so
appeared, if it was his or her true name or a name by which he or she was
commonly known, shall, in an action brought by virtue of this Part, be
presumed, unless the contrary is established, to be the author of the work and
to have made the work in circumstances to which subsections 35(4), (5) and (6)
do not apply.
(2) Where a work is alleged to be a work of
joint authorship, the last preceding subsection applies in relation to each
person alleged to be one of the authors of the work as if references in that
subsection to the author were references to one of the authors.
(3) Where, in an action brought by virtue of
this Part in relation to a photograph:
(a) it is established that, at the
time when the photograph was taken, a person was the owner of the material on
which the photograph was taken or, if the ownership of that material as at that
time is not established, that a person was the owner of the apparatus by which
the photograph was taken; or
(b) neither
the ownership as at the time when the photograph was taken of the material on
which it was taken nor the ownership as at that time of the apparatus by which
it was taken is established but it is established that, at the time of the
death of a person, the photograph was owned by the person or, if the ownership
of the photograph as at that time is not established, was in the possession or
custody of the person;
the person shall be presumed, unless the contrary is
established, to have been the person who took the photograph.
(4) However, if the owner of the material or
apparatus was a body corporate, then paragraph (3)(a) only applies if the
presumption is required to determine the ownership of the copyright in the
photograph.
Note: For example, the presumption does not apply if
it is required to determine the duration of the copyright in the photograph.
128
Presumptions in relation to publisher of work
Where, in an action brought by virtue of
this Part in relation to a literary, dramatic, musical or artistic work, the
last preceding section does not apply, but it is established:
(a) that the work was first published
in Australia and was so published during the period of 70 years that ended
immediately before the commencement of the calendar year in which the action
was brought; and
(b) that
a name purporting to be that of the publisher appeared on copies of the work as
first published;
then, unless the contrary is established, copyright shall
be presumed to subsist in the work and the person whose name so appeared shall
be presumed to have been the owner of that copyright at the time of the
publication.
129
Presumptions where author has died
(1) Where, in an action brought by virtue of
this Part in relation to a literary, dramatic, musical or artistic work, it is
established that the author is dead:
(a) the work shall be presumed to be
an original work unless the contrary is established; and
(b) if it is alleged by the plaintiff
that a publication specified in the allegation was the first publication of the
work, and that it took place in a country and on a date so specified—that
publication shall be presumed, unless the contrary is established, to have been
the first publication of the work, and to have taken place in that country and
on that date.
(2) Where:
(a) a literary, dramatic, musical or
artistic work has been published;
(b) the publication was anonymous or
is alleged by the plaintiff to have been pseudonymous; and
(c) it
is not established that the work has ever been published under the true name of
the author, or under a name by which he or she was commonly known, or that the
identity of the author is generally known or can be ascertained by reasonable
inquiry;
paragraphs (1)(a) and (b) apply, in an action brought
by virtue of this Part in relation to the work, in like manner as those
paragraphs apply where it is established that the author is dead.
129A
Presumptions relating to computer programs
(1) This section applies to an action under
this Part relating to copyright in a literary work that is a computer program
if:
(a) articles or things embodying all
or part of the program have been supplied (by sale or otherwise) to the public;
and
(b) at the time of the supply, the
articles or things, or their containers, bore a label or other mark consisting
of the letter “C” in a circle accompanied by a specified year and the name of a
person.
(2) It is presumed that:
(a) the computer program is an
original literary work; and
(b) the computer program was first
published in the year; and
(c) the person was the owner of
copyright in the program when and where the articles, things or containers were
labelled or marked;
unless the contrary is established.
(3) A presumption about a person under subsection (2)
does not imply that the person was the only owner of copyright in the program
when and where the articles, things or containers were labelled or marked.
130
Presumptions relating to sound recordings
(1) This section applies to an action under
this Part relating to copyright in a sound recording if:
(a) records embodying all or part of
the recording have been supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the
records or their containers bore a label or other mark.
(2) If the label or mark contained a
statement described in an item of the table, the matter described in the item
is presumed, unless the contrary is established.
|
Statements and matters
presumed unless the contrary is established
|
|
Item
|
Statement
|
Matter presumed
|
|
1
|
A specified person was the maker of the recording
|
The person was the maker of the recording
|
|
2
|
The recording was first published in a specified year
|
The recording was first published in the year
|
|
3
|
The recording was first published in a specified country
|
The recording was first published in the country
|
(3) If the label or mark consisted of the
letter “P” in a circle accompanied by a specified year and the name of a
person, it is presumed that:
(a) the recording was first published
in the year; and
(b) the person was the owner of
copyright in the recording when and where the records or containers were labelled
or marked;
unless the contrary is established.
(4) A presumption about a person under this
section does not imply that the person was:
(a) the only maker of the recording;
or
(b) the only owner of copyright in the
recording when and where the records or containers were labelled or marked.
130A
Acts relating to imported copies of sound recordings
(1) In an
action for infringement of copyright described in section 37, 38, 102 or
103 by an act involving an article that is a copy of a sound recording, it must
be presumed that the copy is not a non‑infringing copy unless the
defendant proves that the copy is a non‑infringing copy.
Note 1: Sections 37 and 38 deal with infringement
of copyright in literary, dramatic and musical works (among other things) by
commercial importation and dealings involving articles.
Note 2: Sections 102 and 103 deal with
infringement of copyright in sound recordings (among other things) by
commercial importation and dealings involving articles.
(2) The definition of article in
sections 38 and 103 does not affect this section.
130B
Acts relating to imported copies of computer programs
(1) In an action by a plaintiff for
infringement of copyright described in section 37 or 38:
(a) relating to the plaintiff’s
copyright in a literary work that is a computer program; and
(b) involving an article that has
embodied in it a copy of the program;
it must be presumed, unless the defendant proves
otherwise, that the copy is not a non‑infringing copy so far as it
relates to the plaintiff’s copyright.
Note: Sections 37 and 38 deal with infringement
of copyright in literary works (among other things) by commercial importation
and dealings involving articles.
(2) The definition of article
in section 38 does not affect this section.
130C Acts
relating to imported copies of electronic literary or music items
(1) In an action by a plaintiff for
infringement of copyright described in section 37, 38, 102 or 103:
(a) relating to the plaintiff’s
copyright in a work, or in a published edition of a work, that is, or is part
of, an electronic literary or music item; and
(b) involving an article that has
embodied in it a copy of the electronic literary or music item;
it must be presumed, unless the defendant proves
otherwise, that the copy is not a non‑infringing copy so far as it
relates to the plaintiff’s copyright.
Note 1: Sections 37 and 38 deal with infringement
of copyright in a work by commercial importation and dealings involving
articles.
Note 2: Sections 102 and 103 deal with
infringement of copyright in a published edition of a work (among other things)
by commercial importation and dealings involving articles.
(2) The definition of article
in sections 38 and 103 does not affect this section.
131 Presumptions
relating to films
(1) Where the name of a person appeared on
copies of a cinematograph film as made available to the public in such a way as
to imply that the person was the maker of the film and, in the case of a person
other than a body corporate, that name was his or her true name or a name by
which he or she was commonly known, that person shall, in an action brought by
virtue of this Part, be presumed, unless the contrary is established, to be the
maker of the film and to have made the film in circumstances to which subsection
98(3) does not apply.
(2) Subsection (3)
applies to an action under this Part relating to copyright in a cinematograph
film, if:
(a) articles or things embodying the
film have been supplied commercially; and
(b) at the time of the supply, the
articles or things, or their containers, bore a label or other mark consisting
of the letter “C” in a circle accompanied by a specified year and the name of a
person.
(3) It is presumed that:
(a) the film was first made in the
year; and
(b) the person was the owner of
copyright in the film when and where the articles, things or containers were
labelled or marked;
unless the contrary is established.
(4) A presumption about a person under subsection (3)
does not imply that the person was the only owner of copyright in the film when
and where the articles, things or containers were labelled or marked.
Division 4A—Jurisdiction and appeals
131A
Exercise of jurisdiction
The jurisdiction of the Supreme Court of
a State or Territory in an action under this Part shall be exercised by a
single Judge of the Court.
131B
Appeals
(1) Subject to subsection (2), a
decision of a court of a State or Territory (however constituted) under this
Part is final and conclusive.
(2) An appeal lies from a decision of a court
of a State or Territory under this Part:
(a) to the Federal Court of Australia;
or
(b) by special leave of the High
Court, to the High Court.
131C
Jurisdiction of Federal Court of Australia
Jurisdiction is conferred on the Federal
Court of Australia with respect to actions under this Part.
131D
Jurisdiction of Federal Magistrates Court
Jurisdiction is conferred on the Federal
Magistrates Court with respect to civil actions under this Part.
Division 5—Offences and summary proceedings
Subdivision A—Preliminary
132AA
Definitions
In this Division:
article includes a reproduction or copy of a
work or other subject‑matter, being a reproduction or copy in electronic
form.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
distribute, except in Subdivision E, includes
distribute by way of communication.
place of public entertainment includes
premises that are occupied principally for purposes other than public
entertainment but are from time to time made available for hire for purposes of
public entertainment.
profit does not include any advantage,
benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated
with, the person’s private or domestic use of any copyright material.
132AB
Geographical application
(1) Subdivisions B, C, D, E and F apply only
to acts done in Australia.
(2) This section has effect despite section 14.1
(Standard geographical jurisdiction) of the Criminal Code.
Subdivision B—Substantial infringement on a commercial scale
132AC
Commercial‑scale infringement prejudicing copyright owner
Indictable offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more
infringements of the copyright in a work or other subject‑matter; and
(c) the infringement or infringements
have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements
occur on a commercial scale.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or imprisonment
for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more
infringements of the copyright in a work or other subject‑matter; and
(c) the infringement or infringements
have a substantial prejudicial impact on the owner of the copyright and the
person is negligent as to that fact; and
(d) the infringement or infringements
occur on a commercial scale and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Determining whether infringements occur on commercial
scale
(5) In determining whether one or more
infringements occur on a commercial scale for the purposes of paragraph (1)(d)
or (3)(d), the following matters are to be taken into account:
(a) the volume and value of any
articles that are infringing copies that constitute the infringement or
infringements;
(b) any other relevant matter.
Defence relating to law enforcement and national
security
(6) This section does not apply in respect of
anything lawfully done for the purposes of law enforcement or national security
by or on behalf of:
(a) the Commonwealth or a State or
Territory; or
(b) an authority of the Commonwealth
or of a State or Territory.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
Defence for certain public institutions etc.
(7) This section does not apply in respect of
anything lawfully done by the following in performing their functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in:
(i) paragraph (a) of
the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster, including:
(i) a body that provides a
national broadcasting service within the meaning of the Broadcasting
Services Act 1992; and
(ii) a body that holds a
community broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation
to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
(8) This section does not apply in respect of
anything lawfully done by a person in connection with a work or other subject‑matter
if:
(a) the person has custody of the work
or other subject‑matter under an arrangement referred to in section 64
of the Archives Act 1983; and
(b) under subsection (7), it
would be lawful for the National Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
Subdivision C—Infringing copies
132AD
Making infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person makes an article, with
the intention of:
(i) selling it; or
(ii) letting it for hire;
or
(iii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter when the article is made.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person makes an article, with
the intention of:
(i) selling it; or
(ii) letting it for hire;
or
(iii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter when the article is made and the person is negligent
as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence
against subsection (3) is a summary offence, despite section 4G of
the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes an article in
preparation for, or in the course of:
(i) selling it; or
(ii) letting it for hire;
or
(iii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter when the article is made.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AE
Selling or hiring out infringing copy
Indictable offence
(1) A person commits an offence if:
(a) the person sells an article or
lets an article for hire; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the sale or letting.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person sells an article or
lets an article for hire; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the sale or letting and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person sells an article or
lets an article for hire; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the sale or letting.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AF
Offering infringing copy for sale or hire
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade offers
or exposes an article for sale or hire; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure.
(2) A person
commits an offence if:
(a) the person offers or exposes an
article for sale or hire, with the intention of obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade offers
or exposes an article for sale or hire; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure and the person
is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person commits an offence if:
(a) the person offers or exposes an
article for sale or hire, with the intention of obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure and the person
is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offences
(7) A person commits an offence if:
(a) the person by way of trade offers
or exposes an article for sale or hire; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person offers or exposes an
article for sale or hire, in preparation for, or in the course of, obtaining a
commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences
of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AG
Exhibiting infringing copy in public commercially
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade
exhibits an article in public; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition.
(2) A person commits an offence if:
(a) the person exhibits an article in
public, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade
exhibits an article in public; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person
commits an offence if:
(a) the person exhibits an article in
public, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offences
(7) A person commits an offence if:
(a) the person by way of trade
exhibits an article in public; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person exhibits an article in
public in preparation for, or in the course of, obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences
of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AH
Importing infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person imports an article into
Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the import.
(2) An offence against this section is
punishable on conviction by a fine of not more than 650 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person imports an article into
Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the import and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person imports an article into
Australia in preparation for, or in the course of, doing any of the following
with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the import.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AI
Distributing infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person distributes an article,
with the intention of:
(i) trading; or
(ii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the distribution.
(2) A person commits an offence if:
(a) the person distributes an article;
and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the distribution; and
(d) the extent of the distribution
affects prejudicially the owner of the copyright.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person distributes an article,
with the intention of:
(i) trading; or
(ii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the distribution and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person commits an offence if:
(a) the person distributes an article;
and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the distribution and the person is
negligent as to that fact; and
(d) the extent of the distribution
affects prejudicially the owner of the copyright and the person is negligent as
to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes an article
in preparation for, or in the course of:
(i) trading; or
(ii) obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the distribution.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AJ
Possessing infringing copy for commerce
Indictable offence
(1) A person commits an offence if:
(a) the person possesses an article,
with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the possession.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting
the work or other subject‑matter from a hard copy or analog form into a
digital or other electronic machine‑readable form, there is an aggravated
offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person possesses an article,
with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter and the person is negligent as to that
fact; and
(c) copyright subsists in the work or
other subject‑matter at the time of the possession and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses an article in
preparation for, or in the course of, doing any of the following with the
article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade
offering or exposing it for sale or hire;
(iv) offering or exposing it
for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for
trade;
(vi) distributing it to
obtain a commercial advantage or profit;
(vii) distributing it to an
extent that will affect prejudicially the owner of the copyright in the work or
other subject‑matter of which the article is an infringing copy;
(viii) by way of trade
exhibiting it in public;
(ix) exhibiting it in public
to obtain a commercial advantage or profit; and
(b) the article is an infringing copy
of a work or other subject‑matter; and
(c) copyright subsists in the work or
other subject‑matter at the time of the possession.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AK
Aggravated offence—work etc. converted to digital form
(1) An indictable offence against a provision
(the basic offence provision) of this Subdivision (except
sections 132AL and 132AM) relating to an infringing copy is an aggravated
offence if the infringing copy was made by converting a work or other
subject‑matter from a hard copy or analog form into a digital or other
electronic machine‑readable form.
(2) An aggravated offence is punishable on
conviction by a fine of not more than 850 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
(3) To prove an aggravated offence, the
prosecution must prove that the defendant was reckless with respect to the
circumstance that the infringing copy was made by converting a work or other
subject‑matter from a hard copy or analog form into a digital or other
electronic machine‑readable form.
Note: The prosecution must also prove all the
physical and fault elements of the offence against the basic offence provision.
(4) If the prosecution intends to prove an
aggravated offence, the charge must allege that the infringing copy was made by
converting a work or other subject‑matter from a hard copy or analog form
into a digital or other electronic machine‑readable form.
132AL
Making or possessing device for making infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person makes a device,
intending it to be used for making an infringing copy of a work or other
subject‑matter; and
(b) copyright subsists in the work or
other subject‑matter at the time of the making of the device.
(2) A person commits an offence if:
(a) the person possesses a device,
intending it to be used for making an infringing copy of a work or other
subject‑matter; and
(b) copyright subsists in the work or
other subject‑matter at the time of the possession.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offences
(4) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for
copying a work or other subject‑matter; and
(c) the copy will be an infringing
copy and the person is negligent as to that fact; and
(d) copyright subsists in the work or
other subject‑matter at the time of the making of the device and the
person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person
commits an offence if:
(a) the
person possesses a device; and
(b) the device is to be used for
copying a work or other subject‑matter; and
(c) the copy will be an infringing
copy and the person is negligent as to that fact; and
(d) copyright subsists in the work or
other subject‑matter at the time of the possession and the person is
negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) To avoid doubt, recklessness is the fault
element for the circumstance in paragraphs (4)(b) and (5)(b) that the
device is to be used for copying a work or other subject‑matter.
(7) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(8) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for
copying a work or other subject‑matter; and
(c) the copy will be an infringing
copy; and
(d) copyright subsists in the work or
other subject‑matter at the time of the making of the device.
Penalty: 60 penalty units.
(10) Subsection (8) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
No need to prove which work etc. is to be copied
(11) In a prosecution for an offence against
this section, it is not necessary to prove which particular work or other
subject‑matter is intended to be, or will be, copied using the device.
132AM
Advertising supply of infringing copy
Summary offence
(1) A person commits an offence if:
(a) the person, by any means,
publishes, or causes to be published, an advertisement for the supply in Australia
of a copy (whether from within or outside Australia) of a work or other subject‑matter;
and
(b) the copy is, or will be, an
infringing copy.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Location of supply of copy by communication resulting
in creation of copy
(2) For the purposes of this section, a
communication of a work or other subject‑matter that, when received and
recorded, will result in the creation of a copy of the work or other subject‑matter
is taken to constitute the supply of a copy of the work or other subject‑matter
at the place where the copy will be created.
Subdivision D—Airing of works, sound recordings and films
132AN
Causing work to be performed publicly
Indictable offence
(1) A person commits an offence if:
(a) the person causes a literary,
dramatic or musical work to be performed; and
(b) the performance is in public at a
place of public entertainment; and
(c) the performance infringes
copyright in the work.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person causes a literary,
dramatic or musical work to be performed; and
(b) the performance is in public at a
place of public entertainment; and
(c) the performance infringes
copyright in the work and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
132AO
Causing recording or film to be heard or seen in public
Indictable offence
(1) A person commits an offence if:
(a) the person causes:
(i) a sound recording to
be heard; or
(ii) images from a
cinematograph film to be seen; or
(iii) sound from a
cinematograph film to be heard; and
(b) the hearing or seeing occurs in
public at a place of public entertainment; and
(c) causing the hearing or seeing
infringes copyright in the recording or film.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person causes:
(i) a sound recording to
be heard; or
(ii) images from a
cinematograph film to be seen; or
(iii) sound from a
cinematograph film to be heard; and
(b) the hearing or seeing occurs in
public at a place of public entertainment; and
(c) causing the hearing or seeing
infringes copyright in the recording or film and the person is negligent as to
that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person causes:
(ii) images from a
cinematograph film to be seen; or
(iii) sound from a
cinematograph film to be heard; and
(b) the hearing or seeing occurs in
public at a place of public entertainment; and
(c) causing the hearing or seeing
infringes copyright in the recording or film.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Subdivision E—Technological protection measures
132APA
Definitions
In this Subdivision, computer
program has the same meaning as in section 47AB.
132APB
Interaction of this Subdivision with Part VAA
This Subdivision does not apply to
encoded broadcasts (within the meaning of Part VAA).
132APC
Circumventing an access control technological protection measure
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the
circumvention of a technological protection measure; and
(c) the technological protection
measure is an access control technological protection measure; and
(d) the person engages in the conduct
with the intention of obtaining a commercial advantage or profit.
Penalty: 60 penalty units.
Defence—permission
(2) Subsection (1) does not apply to the
person if the person has the permission of the copyright owner or exclusive
licensee to circumvent the access control technological protection measure.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Defence—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person when the
circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
Defence—encryption research
(4) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable:
(i) the person; or
(ii) if the person is a
body corporate—an employee of the person;
to do an act; and
(b) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(c) the person or employee is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(d) the person or employee:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Defence—computer security testing
(5) Subsection (1)
does not apply to the person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
Defence—online privacy
(6) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and disabling an undisclosed capability to collect
or disseminate personally identifying information about the online activities
of a natural person; and
(iv) will not affect the
ability of the person or any other person to gain access to the work or other
subject‑matter or any other work or subject‑matter.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
Defence—law enforcement and national security
(7) Subsection (1) does not apply in
relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
Defence—libraries etc.
(8) Subsection (1) does not apply in
respect of anything lawfully done by the following bodies in performing their
functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in:
(i) paragraph (a) of
the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster (including a body that provides a national broadcasting service,
within the meaning of the Broadcasting Services Act 1992, and a body
that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
(8A) This section does not apply in respect of
anything lawfully done by a person in connection with a work or other subject‑matter
if:
(a) the person has custody of the work
or other subject‑matter under an arrangement referred to in section 64
of the Archives Act 1983; and
(b) under subsection (8), it
would be lawful for the National Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal
Code).
Defence—prescribed acts
(9) Subsection (1) does not apply to the
person if:
(a) the person circumvents the access
control technological protection measure to enable the person to do an act; and
(b) the act will not infringe the
copyright in a work or other subject‑matter; and
(c) the doing of the act by the person
is prescribed by the regulations.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal
Code).
Note 2: For the making of regulations prescribing the
doing of an act by a person, see section 249.
132APD
Manufacturing etc. a circumvention device for a technological protection
measure
(1) A person commits an offence if:
(a) the person does any of the
following acts with a device:
(i) manufactures it with
the intention of providing it to another person;
(ii) imports it into Australia
with the intention of providing it to another person;
(iii) distributes it to
another person;
(iv) offers it to the
public;
(v) provides it to another
person;
(vi) communicates it to
another person; and
(b) the person does the act with the intention
of obtaining a commercial advantage or profit; and
(c) the device is a circumvention
device for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or
both.
Defence—no promotion, advertising etc.
(2) Subsection (1)
does not apply to the person if:
(a) the device is a circumvention
device for the technological protection measure only because it was promoted,
advertised or marketed as having the purpose of circumventing the technological
protection measure; and
(b) both of the following apply:
(i) the person did not do
such promoting, advertising or marketing;
(ii) the person did not
direct or request (expressly or impliedly) another person to do such promoting,
advertising or marketing.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Defence—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the circumvention device will be
used to circumvent the technological protection measure to enable the doing of
an act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person doing the
act when the circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
Defence—encryption research
(4) Subsection (1)
does not apply to the person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention device will be
used to circumvent the access control technological protection measure to
enable a person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(d) the researcher is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Defence—computer security testing
(5) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention device will be
used to circumvent the access control technological protection measure to
enable the doing of an act; and
(c) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
Defence—law enforcement and national security
(6) Subsection (1) does not apply in
relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
Defence—libraries etc.
(7) Subsection (1) does not apply in
respect of anything lawfully done by the following bodies in performing their
functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in:
(i) paragraph (a) of
the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster (including a body that provides a national broadcasting service,
within the meaning of the Broadcasting Services Act 1992, and a body
that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
(8) This section does not apply in respect of
anything lawfully done by a person in connection with a work or other subject‑matter
if:
(a) the person has custody of the work
or other subject‑matter under an arrangement referred to in section 64
of the Archives Act 1983; and
(b) under subsection (7), it
would be lawful for the National Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
132APE
Providing etc. a circumvention service for a technological protection measure
(1) A person commits an offence if:
(a) the person:
(i) provides a service to
another person; or
(ii) offers a service to
the public; and
(b) the person does so with the
intention of obtaining a commercial advantage or profit; and
(c) the service is a circumvention
service for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or
both.
Defence—no promotion, advertising etc.
(2) Subsection (1) does not apply to the
person if:
(a) the service is a circumvention
service for the technological protection measure only because it was promoted,
advertised or marketed as having the purpose of circumventing the technological
protection measure; and
(b) both of the following apply:
(i) the person did not do
such promoting, advertising or marketing;
(ii) the person did not
direct or request (expressly or impliedly) another person to do such promoting,
advertising or marketing.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Defence—interoperability
(3) Subsection (1) does not apply to the
person if:
(a) the circumvention service will be
used to circumvent a technological protection measure to enable the doing of an
act; and
(b) the act:
(i) relates to a copy of a
computer program (the original program) that is not an infringing
copy and that was lawfully obtained; and
(ii) will not infringe the
copyright in the original program; and
(iia) relates to elements of
the original program that will not be readily available to the person doing the
act when the circumvention occurs; and
(iii) will be done for the
sole purpose of achieving interoperability of an independently created computer
program with the original program or any other program.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
Defence—encryption research
(4) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention service will be
used to circumvent the access control technological protection measure to
enable a person (the researcher) to do an act; and
(c) the
act:
(i) relates to a copy of a
work or other subject‑matter that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the
copyright in the work or other subject‑matter; and
(iii) will be done for the
sole purpose of identifying and analysing flaws and vulnerabilities of
encryption technology; and
(d) the researcher is:
(i) engaged in a course of
study at an educational institution in the field of encryption technology; or
(ii) employed, trained or
experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained
permission from the owner or exclusive licensee of the copyright to do the act;
or
(ii) has made, or will
make, a good faith effort to obtain such permission.
In this subsection, encryption technology means
the scrambling and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Defence—computer security testing
(5) Subsection (1) does not apply to the
person if:
(a) the technological protection
measure is an access control technological protection measure; and
(b) the circumvention service will be
used to circumvent the access control technological protection measure to
enable the doing of an act; and
(c) the act:
(i) relates to a copy of a
computer program that is not an infringing copy; and
(ii) will not infringe the
copyright in the computer program; and
(iii) will be done for the
sole purpose of testing, investigating or correcting the security of a
computer, computer system or computer network; and
(iv) will be done with the
permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
Defence—law enforcement and national security
(6) Subsection (1) does not apply in
relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function,
power or duty;
by or on behalf of the Commonwealth, a State or a
Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
Defence—libraries etc.
(7) Subsection (1) does not apply in
respect of anything lawfully done by the following bodies in performing their
functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in:
(i) paragraph (a) of
the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster (including a body that provides a national broadcasting service,
within the meaning of the Broadcasting Services Act 1992, and a body
that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
(8) This section does not apply in respect of
anything lawfully done by a person in connection with a work or other subject‑matter
if:
(a) the person has custody of the work
or other subject‑matter under an arrangement referred to in section 64
of the Archives Act 1983; and
(b) under subsection (7), it
would be lawful for the National Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
Subdivision F—Electronic rights management information
132AQ
Removing or altering electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) either:
(i) the person removes,
from a copy of the work or subject‑matter, any electronic rights
management information that relates to the work or subject‑matter; or
(ii) the person alters any
electronic rights management information that relates to the work or subject‑matter;
and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will
induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) either:
(i) the person removes,
from a copy of the work or subject‑matter, any electronic rights
management information that relates to the work or subject‑matter; or
(ii) the person alters any
electronic rights management information that relates to the work or subject‑matter;
and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will
induce, enable, facilitate or conceal an infringement of the copyright and the
person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) either:
(i) the person removes,
from a copy of the work or subject‑matter, any electronic rights
management information that relates to the work or subject‑matter; or
(ii) the person alters any
electronic rights management information that relates to the work or subject‑matter;
and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will
induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AR
Distributing, importing or communicating copies after removal or alteration of
electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does any of the
following acts in relation to the work or subject‑matter:
(i) distributes a copy of
the work or subject‑matter with the intention of trading or obtaining a
commercial advantage or profit;
(ii) imports a copy of the
work or subject‑matter into Australia with the intention of trading or
obtaining a commercial advantage or profit;
(iii) communicates a copy of
the work or subject‑matter to the public; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights
management information that relates to the work or subject‑matter has
been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or subject‑matter has
been altered;
without the permission of the
owner or exclusive licensee of the copyright; and
(e) the person knows that the
information has been removed or altered without that permission; and
(f) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does any of the
following acts in relation to the work or subject‑matter:
(i) distributes a copy of
the work or subject‑matter with the intention of trading or obtaining a
commercial advantage or profit;
(ii) imports a copy of the
work or subject‑matter into Australia with the intention of trading or
obtaining a commercial advantage or profit;
(iii) communicates a copy of
the work or subject‑matter to the public; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights
management information that relates to the work or subject‑matter has
been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or subject‑matter has
been altered;
without the permission of the
owner or exclusive licensee of the copyright; and
(e) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright and
the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does any of the
following acts in relation to the work or subject‑matter:
(i) distributes a copy of
the work or subject‑matter in preparation for, or in the course of,
trading or for obtaining a commercial advantage or profit;
(ii) imports a copy of the
work or subject‑matter into Australia in preparation for, or in the
course of, trading or in preparation for, or in the course of, obtaining a
commercial advantage or profit;
(iii) communicates a copy of
the work or subject‑matter to the public; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights
management information that relates to the work or subject‑matter has
been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or subject‑matter has
been altered;
without the permission of the owner
or exclusive licensee of the copyright; and
(e) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AS
Distributing or importing electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does either of the
following acts in relation to electronic rights management information that
relates to the work or subject‑matter:
(i) distributes the
electronic rights management information with the intention of trading or
obtaining a commercial advantage or profit;
(ii) imports the electronic
rights management information into Australia with the intention of trading or
obtaining a commercial advantage or profit; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(e) the person knows that the
information has been removed or altered without that permission; and
(f) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does either of the
following acts in relation to electronic rights management information that
relates to the work or subject‑matter:
(i) distributes the
electronic rights management information with the intention of trading or
obtaining a commercial advantage or profit;
(ii) imports the electronic
rights management information into Australia with the intention of trading or
obtaining a commercial advantage or profit; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(e) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright and
the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does either of the
following acts in relation to electronic rights management information that
relates to the work or subject‑matter:
(i) distributes the
electronic rights management information in preparation for, or in the course
of, trading or in preparation for, or in the course of, obtaining a commercial
advantage or profit;
(ii) imports the electronic
rights management information into Australia in preparation for, or in the
course of, trading or in preparation for, or in the course of, obtaining a
commercial advantage or profit; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(e) the act referred to in paragraph (b)
will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
132AT
Defences
Law enforcement and national security
(1) This Subdivision does not apply in
respect of anything lawfully done for the purposes of law enforcement or
national security by or on behalf of:
(a) the Commonwealth or a State or
Territory; or
(b) an authority of the Commonwealth
or of a State or Territory.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code).
Certain public institutions etc.
(2) This Subdivision does not apply in
respect of anything lawfully done by the following in performing their
functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in:
(i) paragraph (a) of
the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster, including:
(i) a body that provides a
national broadcasting service within the meaning of the Broadcasting
Services Act 1992; and
(ii) a body that holds a community
broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) This Subdivision does not apply in
respect of anything lawfully done by a person in connection with a work or
other subject‑matter if:
(a) the person has custody of the work
or other subject‑matter under an arrangement referred to in section 64
of the Archives Act 1983; and
(b) under subsection (2), it
would be lawful for the National Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
Subdivision G—Evidence
132AU
Prosecution to prove profit
(1) This section applies if, in the
prosecution of an offence against this Division, either of the following questions
is relevant:
(a) whether the defendant intended to
obtain a profit;
(b) whether the defendant did
something for, in preparation for, or in the course of, obtaining a profit.
(2) The burden of proving that any advantage,
benefit or gain does not result from, or is not associated with, any private or
domestic use of any copyright material is on the prosecution.
Note: For the purposes of this Division, section 132AA
defines profit as not including any advantage, benefit, or gain,
that:
(a) is received by a person; and
(b) results from, or is associated with, the
person’s private or domestic use of any copyright material.
132A
Presumptions in relation to subsistence and ownership of copyright
(1) This section applies to a prosecution for
an offence against this Division, except section 132AM, in relation to a
work or other subject matter.
Labels or marks
(2) If a copy of the work or other subject
matter, or the packaging or container in which the copy is packaged or
contained, bears a label or mark stating the year and place of the first
publication, or of the making, of the work or other subject matter, then that
year and place are presumed to be as stated on the label or mark, unless the
contrary is established.
(3) If a copy of the work or other subject
matter, or the packaging or container in which the copy is packaged or
contained, bears a label or mark stating that a person was the owner of
copyright in the work or other subject matter at a particular time, then the
person is presumed to have been the owner of the copyright at the time, unless
the contrary is established.
Foreign certificates
(4) If a certificate or other document issued
in a qualifying country in accordance with a law of that country states the
year and place of the first publication, or of the making, of the work or other
subject matter, then that year and place are presumed to be as stated in the
certificate or document, unless the contrary is established.
(5) If a certificate or other document issued
in a qualifying country in accordance with a law of that country states that a
person was the owner of copyright in the work or other subject matter at a
particular time, then the person is presumed to have been the owner of the
copyright at the time, unless the contrary is established.
(6) For the
purposes of this section, a document purporting to be a certificate or document
referred to in subsection (4) or (5) is, unless the contrary intention is
established, taken to be such a certificate or document.
132AAA
Presumptions relating to computer programs
(1) This section applies to a prosecution for
an offence against this Division, except section 132AM, relating to
copyright in a literary work that is a computer program if:
(a) articles or things embodying all
or part of the program have been supplied (by sale or otherwise) to the public;
and
(b) at the time of the supply, the
articles or things, or their containers, bore a label or other mark consisting
of the letter “C” in a circle accompanied by a specified year and the name of a
person.
(2) It is presumed that:
(a) the computer program is an
original literary work; and
(b) the computer program was first
published in the year; and
(c) the person was the owner of
copyright in the program when and where the articles, things or containers were
labelled or marked;
unless the contrary is established.
(3) A presumption about a person under subsection (2)
does not imply that the person was the only owner of copyright in the program
when and where the articles, things or containers were labelled or marked.
132B
Presumptions relating to sound recordings
(1) This section applies to a prosecution for
an offence against this Division, except section 132AM, relating to
copyright in a sound recording if:
(a) records embodying all or part of
the recording have been supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the
records or their containers bore a label or other mark.
(2) If the label or other mark contained a
statement described in an item of the table, the matter described in the item
is presumed, unless the contrary is established.
|
Statements and matters
to be presumed unless the contrary is established
|
|
Item
|
Statement
|
Matter presumed
|
|
1
|
A specified person was the maker of the recording
|
The person was the maker of the recording
|
|
2
|
The recording was first published in a specified year
|
The recording was first published in the year
|
|
3
|
The recording was first published in a specified country
|
The recording was first published in the country
|
(3) If the label or mark consisted of the
letter “P” in a circle accompanied by a specified year and the name of a
person, it is presumed that:
(a) the recording was first published
in the year; and
(b) the person was the owner of
copyright in the recording when and where the records or containers were
labelled or marked;
unless the contrary is established.
(4) A presumption about a person under this
section does not imply that the person was:
(a) the only maker of the recording;
or
(b) the only owner of copyright in the
recording when and where the records or containers were labelled or marked.
132C
Presumptions relating to films
Presumption about film maker
(1) Subsection (2) applies to a
prosecution for an offence against this Division, except section 132AM,
relating to copyright in a cinematograph film if:
(a) copies of the film were made
available to the public; and
(b) a person’s name appeared on the
copies in such a way as to imply that the person was the maker of the film; and
(c) if the person is not a body
corporate—the name is his or her true name or a name by which he or she is
commonly known.
(2) It is presumed that:
(a) the person is the maker of the
film; and
(b) the person made the film in
circumstances to which subsection 98(3) does not apply;
unless the contrary is established.
Presumption about time of making and owner of copyright
(3) Subsection (4) applies to a
prosecution for an offence against this Division, except section 132AM,
relating to copyright in a cinematograph film, if:
(a) articles or things embodying the
film have been supplied commercially; and
(b) at the time of the supply, the
articles or things, or their containers, bore a label or other mark consisting
of the letter “C” in a circle accompanied by a specified year and the name of a
person.
(4) It is presumed that:
(a) the film was first made in the
year; and
(b) the person was the owner of
copyright in the film when and where the articles, things or containers were
labelled or marked;
unless the contrary is established.
(5) A presumption about a person under subsection (4)
does not imply that the person was the only owner of copyright in the film when
and where the articles, things or containers were labelled or marked.
Subdivision H—Extra court orders
133 Destruction
or delivery up of infringing copies etc.
(1) This section applies if:
(a) a person is charged before a court
with an offence against this Division, except section 132AM, whether or
not the person is convicted of the offence; and
(b) the person possesses an article
that appears to the court to be any of the following:
(i) a circumvention device
used or intended to be used in conduct constituting an offence against
Subdivision E;
(ii) an infringing copy;
(iii) a device or equipment
used or intended to be used for making infringing copies.
(2) The court may order that the article be
destroyed, delivered up to the owner of the copyright concerned or dealt with
as the court thinks fit.
Subdivision I—Procedure and jurisdiction
133A
Courts in which offences may be prosecuted
(1) Prosecutions for offences against this
Division may be brought in the Federal Court of Australia or in any other court
of competent jurisdiction.
(2) However, the Federal Court of Australia
does not have jurisdiction to hear or determine prosecutions for indictable
offences, despite section 15C of the Acts Interpretation Act 1901.
(3) The Federal Court of Australia has
jurisdiction to hear and determine prosecutions of the following offences
against this Division:
(a) summary offences;
(b) offences of strict liability.
133B
Infringement notices
(1) The regulations may make provision
enabling a person who is alleged to have committed an offence of strict
liability against this Division to do both of the following as an alternative
to prosecution:
(a) pay a penalty to the Commonwealth;
(b) forfeit to the Commonwealth:
(i) each article (if any)
that is alleged to be an infringing copy of a work or other subject‑matter
and that is alleged to have been involved in the commission of the offence; and
(ii) each device (if any)
that is alleged to have been made to be used for making an infringing copy of a
work or other subject‑matter and that is alleged to have been involved in
the commission of the offence.
Note: Regulations made for this purpose will make
provision to the effect that a prosecution of an alleged offender will be
avoided if the alleged offender both pays a penalty to the Commonwealth and
forfeits to the Commonwealth all relevant articles and devices (if any).
(2) The penalty must equal one‑fifth of
the maximum fine that a court could impose on the person as a penalty for that
offence.
Division 6—Miscellaneous
134
Limitation of actions in respect of infringement of copyright
(1) An action shall not be brought for an
infringement of copyright or in respect of the conversion or detention of an
infringing copy, or of a device (including a circumvention device) used or
intended to be used for making infringing copies, after the expiration of six years
from the time when the infringement took place or the infringing copy or device
was made, as the case may be.
(2) An action may not be brought under
section 116AN, 116AO, 116AP, 116B, 116C or 116CA in respect of an act done
by a person if more than 6 years have elapsed from the time when the act was
done.
134A
Affidavit evidence
(1) Subject to subsection (2), at the
trial of a proceeding, being:
(a) an action brought by virtue of
this Part; or
(b) a
prosecution for an offence against this Act;
evidence that:
(c) at a particular time, copyright
subsisted in the work or other subject‑matter to which the proceeding
relates; or
(d) at a particular time, copyright in
that work or subject‑matter was owned by, or exclusively licensed to, a
particular person; or
(e) at a particular time, copyright in
that work or subject‑matter was not owned by, or exclusively licensed to,
a particular person; or
(f) a
particular act was done without the licence of the owner of the copyright, or
of the exclusive licensee of the copyright, in that work or subject‑matter;
may be given by affidavit.
(2) If a party
to a proceeding referred to in subsection (1) desires in good faith that
the person who made an affidavit referred to in that subsection that is
proposed to be used in the proceeding be cross‑examined with respect to
the matters in the affidavit, the affidavit may not be used in the proceeding
unless the person appears as a witness for such cross‑examination or the
court in which the proceeding is being tried, in its discretion, permits the
affidavit to be used without the person so appearing.
Division 7—Seizure of imported copies of copyright material
134B
Interpretation
In this Division:
CEO means the Chief Executive Officer of
Customs.
copy, in relation to copyright material,
means:
(a) if the copyright material is a
work—an article in which the work is embodied; or
(b) if the copyright material is a
sound recording, or a sound broadcast as recorded in a sound recording—a record
embodying the sound recording; or
(c) if the copyright material is a
cinematograph film or a television broadcast as recorded in a cinematograph
film—an article in which the visual images or sounds comprising the film are
embodied; or
(d) if the copyright material is a
published edition of a work—an article in which the edition is embodied.
copyright material means:
(a) a work; or
(b) a sound recording; or
(c) a cinematograph film; or
(d) a published edition of a work; or
(e) a television or sound broadcast as
recorded in a cinematograph film or a sound recording.
importer, in relation to copies of copyright
material, includes a person who or which is, or holds himself, herself or
itself out to be, the owner or importer of the goods comprising the copies.
objector, in relation to particular seized
copies, means the person who gave the notice under subsection 135(2) as a
result of the giving of which the copies were seized.
owner, in relation to the copyright in
copyright material, includes an exclusive licensee of the copyright in the
material.
seized copies means copies seized under
subsection 135(7).
135
Restriction of importation of copies of works etc.
(1) In this
section:
(a) a reference to Australia does not
include a reference to the external Territories; and
(b) a reference to importation into Australia
does not include a reference to importation from such a Territory.
(2) A person may give the CEO a written
notice stating:
(a) that the person is the owner of
the copyright in copyright material; and
(b) that the person objects to the
importation into Australia of copies of the copyright material to which this
section applies.
(3) A notice under subsection (2):
(a) is to be given together with any
prescribed document; and
(b) is to be accompanied by the
prescribed fee (if any).
(4) This section applies to a copy of
copyright material if the making of the copy would, if it had been carried out
in Australia by the person importing the copy, have constituted an infringement
of the copyright in the copyright material.
(5) Unless it is revoked under subsection (6)
or declared to be ineffective under subsection (6A), a notice under subsection (2)
remains in force until:
(a) the end of the period of 4 years
commencing on the day on which the notice was given; or
(b) the
end of the period for which the copyright in the copyright material to which
the notice relates is to subsist;
whichever is the earlier.
(6) A notice under subsection (2) may be
revoked by written notice given to the CEO by the person who gave the first‑mentioned
notice or by a subsequent owner of the copyright in the copyright material to
which the notice relates.
(6A) If the CEO believes, on reasonable grounds,
that it is no longer appropriate to give effect to a notice given under subsection (2),
the CEO may, by writing, declare the notice to be ineffective.
Note: Subsection 195B(3) requires the CEO to notify
the person who gave the notice of the decision declaring the notice to be
ineffective.
(7) If:
(a) a notice has been given under subsection (2)
in respect of copyright material; and
(b) the notice has not been declared
to be ineffective or revoked; and
(c) a person imports copies of the
copyright material to which this section applies into Australia for the purpose
of:
(i) selling, letting for
hire, or by way of trade offering or exposing for sale or hire, the copies; or
(ii) distributing the
copies for the purpose of trade; or
(iii) distributing the
copies for any other purpose to an extent that will affect prejudicially the
owner of the copyright in the copyright material; or
(iv) by way of trade
exhibiting the copies in public; and
(d) the
copies are subject to the control of the Customs within the meaning of the Customs
Act 1901;
the CEO may seize the copies.
(8) The regulations may make provision for or
in relation to:
(a) the forms of notices under this
section; and
(b) the times at which, and the manner
in which, notices are to be given; and
(c) the giving of information and
evidence to the CEO.
(9) The regulations may contain provisions
similar to the provisions of this Division in relation to the importation into
external Territories (other than importation from Australia or from another
such Territory) of copies of copyright material.
(10) This Division does not apply to the
importation into Australia of copies of copyright material whose importation
does not constitute an infringement of copyright because of section 44A,
44D, 44E, 44F, 112A, 112D or 112DA.
(10A) This Division does not apply to the
importation into Australia of copies of copyright material whose importation
does not constitute an infringement of copyright because of section 44C or
112C.
135AA
Decision not to seize unless expenses are covered
(1) Subject to subsection (2), the CEO
may decide not to seize the copies under subsection 135(7) unless he or she has
been given by the objector (or by one or more of the objectors) a written
undertaking acceptable to the CEO to repay to the Commonwealth the expenses of
seizing the copies.
(2) The CEO may decide not to seize the copies
under subsection 135(7) unless he or she has been given by the objector (or one
or more of the objectors), instead of an undertaking, security in an amount
that the CEO considers sufficient to repay to the Commonwealth the expenses of
seizing the copies if:
(a) an amount payable under an
undertaking given by the objector (or one or more of the objectors) in relation
to other copies has not been paid in accordance with the undertaking; and
(b) the CEO considers it reasonable in
all the circumstances to require the security.
(3) An undertaking may be withdrawn or varied
if the CEO consents in writing to a written request from the objector or
objectors to do so.
(4) In this section:
expenses of seizing the copies means the
expenses that may be incurred by the Commonwealth if the copies were seized.
135AB
Secure storage of seized copies
Seized copies must be taken to such
secure place as the CEO directs.
135AC
Notice of seizure
(1) As soon as is practicable after copies
are seized under subsection 135(7), the CEO must give to the importer and the
objector, either personally or by post, a written notice identifying the copies
and stating that the identified copies have been seized.
(2) A notice
under subsection (1) must also state:
(a) if it is given to the objector—the
name, and (if known) the address of the place of business or residence, of the
importer; and
(b) if it is given to the importer—the
name, and the address of the place of business or residence, of:
(i) the objector; or
(ii) if the objector has
nominated a person to be the objector’s agent or representative for the
purposes of this Division—that person; and
(c) in
each case—that the copies will be released to the importer unless:
(i) an action for
infringement of copyright in relation to the copies is instituted by the
objector within a specified period from the day specified in the notice; and
(ii) a written notice
stating that the action has been instituted is given to the CEO within that
period.
(3) The period to be specified for the
purposes of subparagraph (2)(c)(i) is the period prescribed for the
purposes of that paragraph.
(4) The day specified for the purposes of subparagraph (2)(c)(i)
must not be earlier than the day on which the notice is given.
(5) The objector may, by written notice given
to the CEO before the end of the period specified in a notice for the purposes
of subparagraph (2)(c)(i) (the retention period), request
that the period be extended.
(6) Subject to
subsection (7), if:
(a) a request is made in accordance
with subsection (5); and
(b) the
CEO is satisfied that it is reasonable that the request be granted;
the CEO may extend the retention period by such period as
is prescribed.
(7) A decision on a request made in
accordance with subsection (5) must be made within 24 hours after the
request is made. However, such a decision cannot be made after the end of the
retention period to which the request relates.
(8) The CEO may, at any time after the copies
are seized, give to the objector:
(a) the name, and the address of the
place of business or residence, of the person or body that made the
arrangements, on behalf of the importer, for the copies to be brought to
Australia or any information that the CEO has, and believes on reasonable
grounds may help in identifying and locating that person or body; and
(b) any other information that the CEO
has, and believes on reasonable grounds may be relevant for the purpose of
identifying and locating the importer.
135AD
Inspection, release etc. of seized copies
(1) The CEO may permit the objector or the
importer to inspect the seized copies.
(2) If the objector gives the CEO the
requisite undertakings, the CEO may permit the objector to remove one sample of
the seized copies from the custody of the CEO for inspection by the objector.
(3) If the importer gives the CEO the
requisite undertakings, the CEO may permit the importer to remove one sample of
the seized copies from the custody of the CEO for inspection by the importer.
(4) The requisite undertakings are undertakings
in writing that the person giving the undertaking will:
(a) return the sample copy to the CEO
at a specified time that is satisfactory to the CEO; and
(b) take reasonable care to prevent
damage to the sample copy.
(5) If the CEO permits inspection of the
seized copies, or the removal of a sample copy, by the objector in accordance
with this section, the Commonwealth is not liable to the importer for any loss
or damage suffered by the importer arising out of:
(a) damage to any of the seized copies
incurred during that inspection; or
(b) anything done by the objector or
any other person to, or in relation to, a sample copy removed from the custody
of the CEO or any use made by the objector of such a sample copy.
135AE
Forfeiture of seized copies by consent
(1) Subject to subsection (2), the
importer may, by written notice to the CEO, consent to the seized copies being
forfeited to the Commonwealth.
(2) The notice must be given before any
action for infringement of copyright in relation to the copies is instituted.
(3) If the importer gives such a notice, the
copies are forfeited to the Commonwealth and must be disposed of:
(a) in the manner prescribed by the
regulations; or
(b) if no manner of disposal is so
prescribed—as the CEO directs.
135AF Compulsory
release of seized copies to the importer
(1) The CEO must release seized copies (not
being copies forfeited to the Commonwealth under section 135AE) to the
importer on the expiration of the retention period for the copies if the
objector has not, before the expiration of that period:
(a) instituted an action for
infringement of the relevant copyright in respect of the copies; and
(b) given written notice to the CEO
stating that the action has been instituted.
(2) For the purpose of subsection (1),
the retention period for seized copies is:
(a) the period specified in a notice
given under subsection 135AC(1) in respect of the copies; or
(b) if that period has been extended
under subsection 135AC(6), that period as so extended.
(3) If:
(a) an action for infringement of
copyright has been instituted in respect of seized copies; and
(b) at
the end of a period of 3 weeks commencing on the day on which the action was
instituted, there is not in force an order of the court in which the action was
instituted preventing the release of the copies;
the CEO must release the copies to the importer.
(4) If the objector gives written notice to
the CEO stating that he or she consents to the release of the seized copies,
the CEO must release the copies to the importer.
(5) This section has effect subject to
section 135AH.
135AG
Provision relating to actions for infringement of copyright
(1) In this section, infringement
action means an action for an infringement of copyright constituted by
the importation of seized copies.
(2) The court in which an infringement action
is pending may, on the application of a person having a sufficient interest in
the subject‑matter of the action, allow the person to be joined as a
defendant to the action.
(3) The CEO is entitled to be heard on the
hearing of an infringement action.
(4) In addition to any relief that may be
granted apart from this section, the court may:
(a) at any time, order that the seized
copies be released to the importer subject to such conditions (if any) as the
court thinks fit; or
(b) order that the seized copies not
be released to the importer before the end of a specified period; or
(c) order that the goods be forfeited
to the Commonwealth.
(5) A court may not make an order under paragraph (4)(a)
if it is satisfied that the CEO is required or permitted, under any other law
of the Commonwealth, to retain control of the seized copies.
(6) The CEO must comply with an order made
under subsection (4).
(7) If:
(a) the court decides that the relevant
copyright was not infringed by the importation of the seized copies; and
(b) a
defendant to the infringement action satisfies the court that he or she has
suffered loss or damage as a result of the seizure of the copies;
the court may order the objector to pay to that defendant
such amount as the court determines as compensation for any part of that loss
or damage that is attributable to a period beginning on or after the day on
which the action was commenced.
135AH
Retention of control of seized copies
In spite of section 135AF, in a
case in which no order has been made under subsection 135AG(4) in relation to
seized copies, the CEO is not obliged to release or dispose of the copies if
the CEO is required or permitted, under any other law of the Commonwealth, to
retain control of the copies.
135AI
Disposal of seized copies ordered to be forfeited
If a court orders that seized copies are
to be forfeited to the Commonwealth, the copies must be disposed of:
(a) in the manner prescribed by the
regulations; or
(b) if no manner of disposal is so
prescribed—as the CEO directs.
135AJ
Failure to meet Commonwealth’s expenses of seizure
(1) If an amount payable under an undertaking
in relation to copies covered by a notice given under section 135 is not
paid in accordance with the undertaking, the CEO may decide not to seize copies
covered by the notice until the amount owing is paid.
(2) An amount not paid under an undertaking:
(a) is a debt due by the objector, or
by the objectors jointly or each of them separately, to the Commonwealth; and
(b) may be recovered by an action
taken in a court of competent jurisdiction.
(3) If the amount paid under an undertaking
in relation to copies covered by a notice given under section 135 is in
accordance with the undertaking but is not sufficient to meet the expenses
incurred by the Commonwealth as a result of the action taken by the CEO under
this Division because of the notice, the amount of the difference between those
expenses and the amount paid:
(a) is a debt due by the objector, or
by the objectors jointly or each of them separately, to the Commonwealth; and
(b) may be recovered by an action
taken in a court of competent jurisdiction.
(4) If security given under subsection
135AA(2) by the objector or objectors who gave notice under section 135 is
not sufficient to meet the expenses incurred by the Commonwealth as a result of
the action taken by the CEO under this Division because of the notice, the
amount of the difference between those expenses and the amount of security:
(a) is a debt due by the objector, or
by the objectors jointly or each of them separately, to the Commonwealth; and
(b) may be recovered by an action
taken in a court of competent jurisdiction.
135AK
Immunity of the Commonwealth
The Commonwealth is not liable for any
loss or damage suffered by a person:
(a) because of the seizure of copies,
or the failure of the CEO to seize copies, under this Division; or
(b) because of the release of any
seized copies.
Part VAA—Unauthorised access to encoded broadcasts
Division 1—Preliminary
135AL
Definitions
In this Part:
action means a proceeding of a civil nature
between parties, including a counterclaim.
broadcaster means a person licensed under the
Broadcasting Services Act 1992 to provide a broadcasting service (as
defined in that Act) by which an encoded broadcast is delivered.
channel provider means a person who:
(a) packages a channel (which might
include programs produced by the person); and
(b) supplies a broadcaster with the
channel; and
(c) carries on a business that
involves the supply of the channel;
where, apart from any breaks for the purposes of the
transmission of incidental matter, the channel is broadcast as part of an
encoded broadcast service.
decoder means a device (including a computer
program) designed or adapted to decrypt, or facilitate the decryption of, an
encoded broadcast.
encoded broadcast means:
(a) a subscription broadcast; or
(b) a broadcast (except a radio
broadcast or subscription broadcast) that is encrypted and is delivered by a
commercial broadcasting service, or a national broadcasting service, within the
meaning of the Broadcasting Services Act 1992.
subscription broadcast means a broadcast that
is encrypted and is made available by the broadcaster only to persons
authorised by the broadcaster to access the broadcast in intelligible form.
unauthorised decoder means a device
(including a computer program) designed or adapted to decrypt, or facilitate
the decryption of, an encoded broadcast without the authorisation of the
broadcaster.
135AM
Counterclaim
In the application of this Part in
relation to a counterclaim, references to the defendant are to be read as
references to the plaintiff.
135AN
This Part does not apply to law enforcement activity etc.
This Part does not apply in relation to
anything lawfully done for the purposes of law enforcement or national security
by or on behalf of:
(a) the Commonwealth or a State or
Territory; or
(b) an authority of the Commonwealth
or of a State or Territory.
Note: A defendant in proceedings for an offence
against this Part bears an evidential burden in relation to the matter in this
section (see subsection 13.3(3) of the Criminal Code).
Division 2—Actions
Subdivision A—Actions relating to unauthorised decoders
135AOA
Making or dealing with unauthorised decoder
(1) A channel provider, or anyone with an
interest in the copyright in either an encoded broadcast or the content of an
encoded broadcast, may bring an action against a person if:
(a) the person does any of the acts
described in subsection (2) with an unauthorised decoder; and
(b) the person knows, or ought
reasonably to know, that the unauthorised decoder will be used to enable
someone to gain access to an encoded broadcast without the authorisation of the
broadcaster.
(2) The acts with the unauthorised decoder
are as follows:
(a) making the unauthorised decoder;
(b) selling the unauthorised decoder
or letting it for hire;
(c) by way of trade, or with the
intention of obtaining a commercial advantage or profit, offering or exposing
the unauthorised decoder for sale or hire;
(d) exhibiting the unauthorised
decoder in public by way of trade or with the intention of obtaining a
commercial advantage or profit;
(e) distributing the unauthorised
decoder (including by exporting it from Australia) for the purpose of trade, or
for a purpose that will prejudicially affect a channel provider or anyone with
an interest in the copyright in either an encoded broadcast or the content of
an encoded broadcast;
(f) importing the unauthorised
decoder into Australia for the purpose of:
(i) selling the
unauthorised decoder or letting it for hire; or
(ii) by way of trade, or
with the intention of obtaining a commercial advantage or profit, offering or
exposing the unauthorised decoder for sale or hire; or
(iii) exhibiting the
unauthorised decoder in public by way of trade or with the intention of
obtaining a commercial advantage or profit; or
(iv) distributing the
unauthorised decoder for the purpose of trade, or for a purpose that will
prejudicially affect a channel provider or anyone with an interest in the
copyright in either an encoded broadcast or the content of an encoded
broadcast;
(g) making the unauthorised decoder
available online to an extent that will prejudicially affect a channel provider
or anyone with an interest in the copyright in either an encoded broadcast or
the content of an encoded broadcast.
(3) The action may be brought only within 6
years of the act.
(4) In an action under this section it must
be presumed that the defendant knew, or ought reasonably to have known, that
the unauthorised decoder would be used as described in paragraph (1)(b),
unless the defendant proves otherwise.
Subdivision B—Actions relating to decoders for subscription broadcasts
135AOB
Making decoder available online
(1) This section permits an action to be
brought against a person if:
(a) a decoder was supplied (to the
person or someone else) by, or with the authorisation of, the broadcaster (the supplying
broadcaster) of a subscription broadcast; and
(b) the person makes the decoder
available online to an extent that will prejudicially affect any of the
following persons (the affected parties):
(i) anyone with an
interest in the copyright in a subscription broadcast by the supplying
broadcaster;
(ii) anyone with an
interest in the copyright in the content of a subscription broadcast by the
supplying broadcaster;
(iii) a channel provider who
supplies the supplying broadcaster with a channel for a subscription broadcast;
and
(c) the person knows, or ought
reasonably to know, that the decoder will be used to enable someone to gain
access to a subscription broadcast without the authorisation of the
broadcaster.
(2) The action may be brought by any of the
affected parties but only within 6 years of the person first making the decoder
available online as described in paragraph (1)(b).
(3) In an action under this section it must
be presumed that the defendant knew, or ought reasonably to have known, that
the decoder would be used as described in paragraph (1)(c), unless the
defendant proves otherwise.
Subdivision C—Actions for unauthorised access to encoded broadcasts
135AOC
Causing unauthorised access
(1) This section permits an action to be
brought against a person if:
(a) without the authorisation of the
broadcaster of an encoded broadcast, the person does an act causing the person
or anyone else to gain access in intelligible form to the broadcast or sounds
or images from the broadcast; and
(b) the access will prejudicially
affect any of the following persons (the affected parties):
(i) anyone with an
interest in the copyright in an encoded broadcast by the broadcaster;
(ii) anyone with an
interest in the copyright in the content of an encoded broadcast by the
broadcaster;
(iii) a channel provider who
supplies the broadcaster with a channel for an encoded broadcast; and
(c) the person knows, or ought
reasonably to know, that the access is not authorised by the broadcaster.
Note: Paragraph (a)—examples of causing a
person to gain access to the broadcast or sounds or images from the broadcast
include:
(a) using, or authorising the use of, a decoder so
the person gains access to the broadcast, sounds or images; and
(b) distributing, or authorising the distribution
of, the sounds or images to the person after they are obtained from the
broadcast using a decoder.
(2) The action may be brought by any of the
affected parties but only within 6 years of the act.
(3) Subsection (1)
does not apply to:
(a) an
act consisting merely of one or more of the following:
(i) starting the playing
of sounds or images in or from the broadcast on a device (for example by
switching the device on);
(ii) listening to sounds in
or from the broadcast and/or seeing images in or from the broadcast;
(iii) distributing the
sounds or images within a single dwelling that is occupied by a single
household and is the subject of an arrangement involving a member of the
household and the broadcaster about authorisation of private access to the
broadcast; or
(b) access to the sounds or images
gained from:
(i) a cinematograph film,
or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film
or recording.
Note: Paragraph (b)—the making of such a film,
recording or copy may be an infringement of copyright: see paragraphs 87(a) and
(b) and section 101.
135AOD
Unauthorised commercial use of subscription broadcast
(1) This section permits an action to be
brought against a person if:
(a) without the authorisation of the
broadcaster of a subscription broadcast, the person uses the broadcast, or
sounds or images from the broadcast, by way of trade or with the intention of
obtaining a commercial advantage or profit; and
(b) the use prejudicially affects any
of the following persons (the affected parties):
(i) anyone with an
interest in the copyright in the broadcast;
(ii) anyone with an
interest in the copyright in any content of the broadcast;
(iii) the channel provider
who supplied the broadcaster with the channel for the broadcast; and
(c) the person knows, or ought
reasonably to know, that the use is not authorised by the broadcaster.
(2) The action may be brought by any of the
affected parties but only within 6 years of the use.
Subdivision D—Court orders
135AOE
Relief
(1) The relief that a court may grant in an
action under this Division includes an injunction (subject to the terms, if
any, the court thinks fit) and either damages or an account of profits.
(2) In assessing damages, the court may award
such additional damages as it considers appropriate, having regard to:
(a) the flagrancy with which the
defendant did any of the relevant acts; and
(b) the need to deter acts similar to
the relevant acts; and
(c) any benefit shown in an action
under Subdivision A or B to have accrued to the defendant as a result of making
or dealing with the decoder; and
(d) any benefit shown in an action
under Subdivision C to have accrued to the defendant or any trade or business
carried on by, or in association with, the defendant; and
(e) all other relevant matters.
135AOF
Destruction of decoder
In an action under this Division, the
court may order that the relevant decoder (if any) be destroyed or dealt with
as specified in the order.
Subdivision E—Jurisdiction and appeals
135AP
Exercise of jurisdiction
The jurisdiction of the Supreme Court of
a State or Territory in an action under the Part is to be exercised by a single
Judge of the Court.
135AQ
Appeals
(1) Subject to subsection (2), a
decision of a court of a State or Territory (however constituted) under this
Part is final and conclusive.
(2) An appeal lies from a decision of a court
of a State or Territory under this Part:
(a) to the Federal Court of Australia;
or
(b) by special leave of the High
Court, to the High Court.
135AR
Jurisdiction of Federal Court of Australia
Jurisdiction is conferred on the Federal
Court of Australia with respect to actions under this Part.
135AS
Jurisdiction of Federal Magistrates Court
Jurisdiction is conferred on the Federal
Magistrates Court with respect to actions under this Part.
Division 3—Offences
Subdivision A—Offences
135ASA
Making unauthorised decoder
(1) A person commits an offence if:
(a) the person makes an unauthorised
decoder; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASB
Selling or hiring unauthorised decoder
(1) A person commits an offence if:
(a) the person sells or lets for hire
an unauthorised decoder; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASC
Offering unauthorised decoder for sale or hire
(1) A person commits an offence if:
(a) with the intention of obtaining a
commercial advantage or profit, the person offers or exposes an unauthorised
decoder for sale or hire; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) A person commits an offence if:
(a) the person offers or exposes an
unauthorised decoder for sale or hire; and
(b) the offer or exposure is by way of
trade; and
(c) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASD
Commercially exhibiting unauthorised decoder in public
(1) A person commits an offence if:
(a) the person exhibits an
unauthorised decoder in public with the intention of obtaining a commercial
advantage or profit; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) A person commits an offence if:
(a) the person exhibits an
unauthorised decoder in public; and
(b) the exhibition is by way of trade;
and
(c) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASE
Importing unauthorised decoder commercially
(1) A person commits an offence if:
(a) the person imports an unauthorised
decoder into Australia with the intention of doing any of the following with
the unauthorised decoder:
(i) selling the
unauthorised decoder;
(ii) letting the
unauthorised decoder for hire;
(iii) offering or exposing
the unauthorised decoder for sale or hire, by way of trade or to obtain a
commercial advantage or profit;
(iv) exhibiting the
unauthorised decoder in public by way of trade or to obtain a commercial
advantage or profit;
(v) distributing the
unauthorised decoder for trade;
(vi) distributing the
unauthorised decoder to obtain a commercial advantage or profit;
(vii) distributing the
unauthorised decoder in preparation for, or in the course of, engaging in an
activity that will prejudicially affect a channel provider or anyone with an interest
in the copyright in either an encoded broadcast or the content of an encoded
broadcast; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASF
Distributing unauthorised decoder
(1) A person commits an offence if:
(a) the person distributes (including
by exporting from Australia) an unauthorised decoder with the intention of:
(i) trading; or
(ii) obtaining a commercial
advantage or profit; or
(iii) engaging in any other
activity that will prejudicially affect a channel provider or anyone with an
interest in the copyright in either an encoded broadcast or the content of an
encoded broadcast; and
(b) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASG
Making unauthorised decoder available online
(1) A person commits an offence if:
(a) the person makes an unauthorised
decoder available online; and
(b) the unauthorised decoder is made
available online to an extent that will prejudicially affect a channel provider
or anyone with an interest in the copyright in either an encoded broadcast or
the content of an encoded broadcast; and
(c) the unauthorised decoder will be
used to enable a person to gain access to an encoded broadcast without the
authorisation of the broadcaster.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASH
Making decoder available online for subscription broadcast
(1) A person commits an offence if:
(a) a decoder was supplied (to the
person or anyone else) by, or with the authorisation of, the broadcaster of a
subscription broadcast; and
(b) the person makes the decoder available
online; and
(c) the decoder is made available
online without the authorisation of the broadcaster; and
(d) the decoder will be used to enable
a person to gain access to a subscription broadcast without the authorisation
of the broadcaster; and
(e) the decoder is made available
online to an extent that will prejudicially affect any of the following:
(i) anyone with an
interest in the copyright in a subscription broadcast by the broadcaster;
(ii) anyone with an
interest in the copyright in the content of a subscription broadcast by the
broadcaster;
(iii) a channel provider who
supplies the broadcaster with a channel for a subscription broadcast.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
135ASI
Unauthorised access to subscription broadcast etc.
A person commits an offence if:
(a) the person does an act; and
(b) the act (either alone or in
conjunction with other acts) results in the person gaining access in
intelligible form to a subscription broadcast or sounds or images from a
subscription broadcast; and
(c) the access is not authorised by
the broadcaster and the person knows that; and
(d) the act does not consist merely of
one or more of the following:
(i) starting the playing
of sounds or images in or from the broadcast on a device (for example by switching
the device on);
(ii) listening to sounds in
or from the broadcast and/or seeing images in or from the broadcast;
(iii) distributing the
sounds or images within a single dwelling that is occupied by a single
household and is the subject of an arrangement involving a member of the
household and the broadcaster about authorisation of private access to the
broadcast; and
(e) the access to the sounds or images
is not gained from:
(i) a cinematograph film,
or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film
or recording.
Note: The making of such a film, recording or copy may
be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
Penalty: 60 penalty units.
135ASJ
Causing unauthorised access to encoded broadcast etc.
(1) A person commits an offence if:
(a) the person does an act; and
(b) the act is done by way of trade;
and
(c) the act results in the person or
anyone else gaining access in intelligible form to an encoded broadcast or
sounds or images from an encoded broadcast; and
(d) the access is not authorised by
the broadcaster; and
(e) the access to the sounds or images
is not gained from:
(i) a cinematograph film,
or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film
or recording.
Note: Paragraph (e)—the making of such a film,
recording or copy may be an infringement of copyright: see paragraphs 87(a) and
(b) and section 101.
(2) A person commits an offence if:
(a) the person does an act with the
intention of obtaining a commercial advantage or profit; and
(b) the act results in the person or
anyone else gaining access in intelligible form to an encoded broadcast or
sounds or images from an encoded broadcast; and
(c) the access is not authorised by
the broadcaster; and
(d) the access to the sounds or images
is not gained from:
(i) a cinematograph film,
or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film
or recording.
Note: Paragraph (e)—the making of such a film,
recording or copy may be an infringement of copyright: see paragraphs 87(a) and
(b) and section 101.
(3) A person commits an offence if:
(a) the person does an act; and
(b) the act results in anyone else
gaining access in intelligible form to an encoded broadcast or sounds or images
from an encoded broadcast; and
(c) the access is not authorised by
the broadcaster and the person knows that; and
(d) the act does not consist merely of
one or more of the following:
(i) starting the playing
of sounds or images in or from the broadcast on a device (for example by
switching the device on);
(ii) distributing the
sounds or images within a single dwelling that is occupied by a single
household and is the subject of an arrangement involving a member of the
household and the broadcaster about authorisation of private access to the
broadcast; and
(e) the access to the sounds or images
is not gained from:
(i) a cinematograph film,
or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film
or recording.
Note: Paragraph (e)—the making of such a film,
recording or copy may be an infringement of copyright: see paragraphs 87(a) and
(b) and section 101.
(4) An offence against subsection (1),
(2) or (3) is punishable on conviction by a fine of not more than 550 penalty
units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Subdivision B—Prosecutions
135ATA
Courts in which offences may be prosecuted
(1) Prosecutions for offences against this
Division may be brought in the Federal Court of Australia or in any other court
of competent jurisdiction.
(2) However, the Federal Court of Australia
does not have jurisdiction to hear or determine prosecutions for indictable
offences, despite section 15C of the Acts Interpretation Act 1901.
(3) The Federal Court of Australia has
jurisdiction to hear and determine prosecutions of summary offences against
this Division.
(4) Also, section 4J (except subsection
4J(2)) of the Crimes Act 1914 applies in relation to the Federal Court
of Australia and an indictable offence against this Division in the way in
which that section would apply if that court were a court of summary
jurisdiction.
Note: Section 4J of the Crimes Act 1914
lets a court of summary jurisdiction try indictable offences in certain
circumstances and subject to limits on the penalties the court can impose.
Subdivision C—Further orders by court
135AU
Destruction etc. of unauthorised decoders
(1) The court trying a person for an offence
against this Division may order that any article in the person’s possession
that appears to the court to be an unauthorised decoder be destroyed or
otherwise dealt with as specified in the order.
(2) The court may make the order whether the
person is convicted of the offence or not.
Part VA—Copying and communication of broadcasts by educational and
other institutions
Division 1—Preliminary
135A
Interpretation
In this Part:
administering body means a body administering
an institution.
agreed notice means a remuneration notice
specifying that the amount of equitable remuneration payable to the collecting
society by the administering body giving the notice is to be assessed on the
basis of an agreed system.
collecting society means the body that is,
for the time being, declared to be the collecting society under section 135P.
institution means:
(a) an educational institution; or
(b) an institution assisting persons
with an intellectual disability.
notice holder means the person who is, for
the time being, appointed to be the notice holder under section 135T.
performance has the same meaning as in Part XIA.
performer has the same meaning as in Part XIA.
preview copy means a copy of a broadcast
referred to in section 135F.
records notice means a remuneration notice
specifying that the amount of equitable remuneration payable to the collecting
society by the administering body giving the notice is to be assessed on the
basis of a records system.
relevant right holder
means:
(a) the owner of the copyright in a
work, a sound recording or a cinematograph film (other than a new owner of the
copyright in a sound recording of a live performance as defined in section 100AB);
or
(b) a performer in a performance.
remuneration notice means a notice referred
to in subsection 135G(1).
rules, in relation to the collecting
society, means the provisions of the memorandum and articles of association of
the society.
sampling notice means a remuneration notice
specifying that the amount of equitable remuneration payable to the collecting
society by the administering body giving the notice is to be assessed on the
basis of a sampling system.
135B
Copies and communications of broadcasts
In this Part:
(a) a reference to a copy of a
broadcast is a reference to a record embodying a sound recording of the
broadcast or a copy of a cinematograph film of the broadcast; and
(b) a reference to the making of a
copy of a broadcast is a reference to the making of a copy of the whole or a part
of the broadcast; and
(c) a reference to the communication
of a copy of a broadcast is a reference to the communication of a copy of the
whole or a part of the broadcast.
135C
Extended operation of this Part
(1) This Part, and the rest of this Act so
far as it relates to this Part or to a provision of this Part, apply in
relation to a communication of the content of a free‑to‑air
broadcast, by the broadcaster making the content available online at or after
the time of the broadcast, in the same way as they apply in relation to the
broadcast.
(2) The
reference to free‑to‑air broadcast in subsection (1) does not
include a reference to a broadcast within the meaning of paragraph (b) of
the definition of free‑to‑air broadcast in subsection
10(1).
135D
Operation of collecting society rules
This Part applies to the collecting
society despite anything in the rules of the society but nothing in this Part
affects those rules so far as they can operate together with this Part.
Division 2—Copying and communication of broadcasts
135E
Copying and communication of broadcasts by educational institutions etc.
(1) The copyright in a broadcast, or in any
work, sound recording or cinematograph film included in a broadcast, is not
infringed by the making or communication, by or on behalf of an administering
body, of a copy of the broadcast if:
(a) a remuneration notice, given by or
on behalf of the administering body to the collecting society, is in force;
(b) where the copy or communication is
made by, or on behalf of, a body administering an educational institution—the
copy or communication is made solely for the educational purposes of the
institution or of another educational institution;
(c) where the copy or communication is
made by, or on behalf of, a body administering an institution assisting persons
with an intellectual disability—the copy or communication is made solely for
the purposes of use in the provision of assistance to persons with an
intellectual disability by the institution or by another similar institution;
and
(d) the administering body complies
with subsection 135K(1) or (3), or section 135KA, as the case requires, in
relation to the copy or communication.
(1A) For the purposes of Part XIA, each
performer of a performance is taken to have authorised an administering body,
or a person on behalf of an administering body, to make or communicate a copy
of a broadcast of the performance if the following paragraphs are satisfied:
(a) a remuneration notice, given by or
on behalf of the administering body to the collecting society, is in force;
(b) if the copy or communication is
made by, or on behalf of, a body administering an educational institution—the
copy or communication is made solely for the educational purposes of the
institution or of another educational institution;
(c) if the copy or communication is
made by, or on behalf of, a body administering an institution assisting persons
with an intellectual disability—the copy or communication is made solely for
the purposes of use in the provision of assistance to persons with an
intellectual disability by the institution or by another similar institution;
(d) the administering body complies
with subsection 135K(1) or (3), or section 135KA, as the case requires, in
relation to the copy or communication.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the copy or communication under
Part XIA (performers’ protection).
(2) Where a copy, or communication of a copy,
of a broadcast referred to in subsection (1) or (1A):
(a) is used for a purpose other than a
purpose referred to in paragraph (1)(b) or (c) or (1A)(b) or (c);
(b) is made, sold or otherwise
supplied for a financial profit; or
(c) is
given to an administering body when there is not in force a remuneration notice
given by that body to the collecting society;
with the consent of the administering body by whom, or on
whose behalf, it is made, subsection (1) or (1A) does not apply, and shall
be taken never to have applied, to the making of the copy or communication.
135F
Making and communication of preview copies
(1) The copyright in a broadcast, or in any
work, sound recording or cinematograph film included in a broadcast, is not
infringed by the making of a preview copy of the broadcast.
(1A) For the purposes of Part XIA, each
performer of a performance is taken to have authorised the making of a preview
copy of a broadcast of the performance.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the preview copy under Part XIA
(performers’ protection).
(2) A copy of a broadcast is a preview copy
if:
(a) the copy is made by, or on behalf
of, an administering body;
(b) a remuneration notice, given by,
or on behalf of, the administering body to the collecting society, is in force;
and
(c) the copy is made and used solely
for the purpose of enabling that body to decide whether or not the copy should
be retained for the educational purposes of the institution administered by it,
or for use in the provision of assistance to persons with an intellectual
disability by the institution administered by it, as the case may be.
(3) Subject to this section, a preview copy
shall be destroyed within 14 days after the day on which it was made (in this
section called the preview period).
(4) A preview copy may be retained after the
end of the preview period if:
(a) where the relevant institution is
an educational
institution—the copy is retained solely for the educational purposes of the
institution; or
(b) where the relevant institution is
an institution assisting persons with an intellectual disability—the copy is
retained solely for the purpose of use in the provision of assistance to such
persons by the institution.
(5) Where a preview copy is retained under subsection (4),
subsection 135E(1) or (1A) applies in relation to the copy after the end of the
preview period as if the copy had been made solely for a purpose referred to in
paragraph 135E(1)(b) or (c) or (1A)(b) or (c), as the case requires.
(6) Where a preview copy is neither destroyed
within the preview period nor retained under subsection (4), subsections (1)
and (1A) do not apply, and shall be taken never to have applied, to the making
of the copy.
(7) The copyright in a broadcast, or in any
work, sound recording or cinematograph film included in a broadcast, is not
infringed by the communication of a preview copy of the broadcast if:
(a) the communication is made solely
to enable an administering body to decide whether or not that copy should be
retained:
(i) for the educational
purposes of the institution administered by it; or
(ii) for use in the
provision of assistance to persons with an intellectual disability by the
institution administered by it; and
(b) the communication is made only to
the extent necessary for the purpose mentioned in paragraph (a); and
(c) the communication is made within
the preview period.
(8) For the purposes of Part XIA, each
performer in a performance is taken to have authorised a communication of a
preview copy of a broadcast of the performance if:
(a) the communication is made solely
to enable an administering body to decide whether or not that copy should be
retained:
(i) for the educational
purposes of the institution administered by it; or
(ii) for use in the
provision of assistance to persons with an intellectual disability by the
institution administered by it; and
(b) the communication is made only to
the extent necessary for the purpose mentioned in paragraph (a); and
(c) the communication is made within
the preview period.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the communication of the preview
copy under Part XIA (performers’ protection).
135G
Remuneration notices
(1) An administering body may, by notice in
writing given to the collecting society by it, or on its behalf, undertake to
pay equitable remuneration to the society for:
(a) copies of broadcasts made by it,
or on its behalf, while the notice is in force; and
(b) communications of such copies made
by it, or on its behalf, while the notice is in force.
(2) A remuneration notice shall specify
whether the amount of equitable remuneration is to be assessed on the basis of
a records system, a sampling system or an agreed system.
(3) A remuneration notice comes into force on
the day on which it is given to the collecting society, or on such later day as
is specified in the notice, and remains in force until it is revoked.
135H
Records notices
(1) If a records notice is given by, or on
behalf of, an administering body, the amount of equitable remuneration payable
to the collecting society by the administering body for:
(a) each copy of a broadcast made by,
or on behalf of, the administering body while the notice is in force; and
(b) each communication of such a copy
of a broadcast made by or on behalf of the administering body while the notice
is in force;
is such amount as is determined by agreement between the
administering body and the collecting society or, failing such agreement, by
the Copyright Tribunal on application made by either of them.
(1A) If a determination has been made by the
Tribunal under subsection (1), either the administering body or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of the amount of equitable remuneration payable to the collecting
society by the administering body for the making, by or on behalf of that body,
of a copy of a broadcast and for the communication by, or on behalf of that
body, of a copy of the broadcast.
(2) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to:
(a) different classes of works,
performances, sound recordings or cinematograph films included in broadcasts;
(b) different institutions
administered by the administering body; or
(c) different classes of students of
an institution administered by the administering body.
(3) If:
(a) a broadcast is copied by, or on
behalf of, an administering body, or is taken under this subsection to have
been so copied; and
(b) the copy is communicated by, or on
behalf of, the body by being made available online, or is taken under this
subsection to have been so communicated; and
(c) the copy remains so available
online for longer than the prescribed period;
then, when that period ends:
(d) the broadcast is taken to have
been copied again by, or on behalf of, the body; and
(e) the copy mentioned in paragraph (a)
is taken to have been communicated again by, or on behalf of, the body by
making it available online for a further prescribed period.
(4) For the purposes of subsection (1),
an amount of equitable remuneration must be determined (whether by agreement or
by the Copyright Tribunal) having regard to:
(a) copies and communications to which
paragraphs (3)(d) and (e) apply; and
(b) such matters (if any) as are
prescribed; and
(c) such other matters (if any) as are
relevant in the circumstances.
(5) In this section:
prescribed period means the period of 12
months, or if another period is agreed between the relevant administering body
and collecting society for the purposes of subsection (3), that other
period.
135J
Sampling notices
(1) If a sampling notice is given by, or on
behalf of, an administering body, the amount of equitable remuneration payable
to the collecting society by the administering body for:
(a) copies of broadcasts made by, or
on behalf of, the administering body while the notice is in force; and
(b) communications of such copies made
by, or on behalf of, the administering body while the notice is in force;
is such annual amount as is determined by agreement
between the administering body and the collecting society or, failing such
agreement, by the Copyright Tribunal on application made by either of them.
(1A) If a determination has been made by the
Tribunal under subsection (1), either the administering body or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of the amount of equitable remuneration payable to the collecting
society by the administering body for copies of broadcasts made by, or on
behalf of, that body and for communications by, or on behalf of, that body of
such copies.
(1B) If:
(a) a broadcast is copied by, or on
behalf of, an administering body, or is taken under this subsection to have
been so copied; and
(b) the copy is communicated by, or on
behalf of, the body by being made available online, or is taken under this
subsection to have been so communicated; and
(c) the copy remains so available
online for longer than the prescribed period;
then, when that period ends:
(d) the broadcast is taken to have
been copied again by, or on behalf of, the body; and
(e) the copy mentioned in paragraph (a)
is taken to have been communicated again by, or on behalf of, the body by
making it available online for a further prescribed period.
(2) The annual amount referred to in subsection (1)
must be determined (whether by agreement or by the Copyright Tribunal) having
regard to:
(a) copies and communications to which
paragraphs (1B)(d)
and (e) apply; and
(b) the extent to which other copies
of broadcasts are made and communicated by, or on behalf of, the administering
body in a particular period; and
(c) such matters (if any) as are
prescribed; and
(d) such other matters (if any) as are
relevant in the circumstances.
(3) The extent of copying of broadcasts and
the communication of those copies, and any other matters that are necessary or
convenient to be assessed by use of a sampling system, shall be assessed by use
of a sampling system determined by agreement between the administering body and
the collecting society or, failing such agreement, by the Copyright Tribunal on
application made by either of them.
(4) For the purposes of subsection (1),
different annual amounts may be determined (whether by agreement or by the
Copyright Tribunal) in relation to different institutions administered by the
administering body.
(4A) To avoid doubt, an annual amount (whether
for one or more institutions administered by the administering body) may be
determined for the purposes of subsection (1) by reference to amounts for
copies and communications that differ on one or both of the following bases:
(a) different classes of works,
performances, sound recordings or cinematograph films included in broadcasts;
(b) different classes of students of
an institution administered by the administering body.
(5) Where:
(a) a sampling notice is given by, or
on behalf of, an administering body to the collecting society; and
(b) during
any period, the administering body does not comply with one or more of the
requirements of the sampling system determined under this section in relation
to the notice;
sections 135E and 135F do not apply to any copy of a
broadcast, or communication of a copy of a broadcast, made by, or on behalf of,
the administering body during that period.
(6) In this section:
prescribed period means the period of 12
months, or if another period is agreed between the relevant administering body
and collecting society for the purposes of subsection (1B), that other
period.
135JAA
Determination of questions relating to this Division or the collecting
society’s rules
(1) This
section applies if:
(a) it is necessary or convenient to
determine a question to facilitate future compliance by an administering body
or the collecting society with this Division or the provisions of the
collecting society’s rules described in paragraph 135P(3)(d); and
(b) the question is not determined by
another provision of this Part or regulations made for the purposes of this
Part; and
(c) determination of the question
affects both the administering body and the collecting society.
Note: An example of such a question might be whether
there should be a particular sampling system to provide information to enable
the collecting society to determine how to distribute amounts it collects.
(2) The question must be determined by
agreement between the collecting society and the administering body or, failing
such agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering
body does not comply with the agreement or order of the Tribunal determining
the question, sections 135E and 135F do not apply to a copy of a
broadcast, or communication of a copy of a broadcast, made by or on behalf of
the administering body during the period.
135JA
Agreed notice
(1) If an agreed notice is given by, or on
behalf of an administering body, the amount of equitable remuneration payable
to the collecting society by the administering body for:
(a) copies of broadcasts made by, or on
behalf of, the administering body while the notice is in force; and
(b) communications of such copies made
by, or on behalf of, the administering body while the notice is in force;
is an amount (whether an annual amount or otherwise)
determined by agreement between the administering body and the collecting
society or, failing such agreement, by the Copyright Tribunal on application
made by either of them.
(2) If a determination has been made by the
Tribunal under subsection (1), either the administering body or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of the amount of equitable remuneration payable to the collecting
society by the administering body for copies of broadcasts made and
communicated by, or on behalf of, that body.
(3) Subject to subsection (5), the
matters and processes constituting an agreed system, and any matters that are
necessary or convenient to be assessed or taken into account for the purposes
of the system, must be determined by agreement between the administering body
and the collecting society or, failing such agreement, by the Copyright
Tribunal on application made by either of them.
(4) If:
(a) a broadcast is copied by, or on
behalf of, an administering body, or is taken under this subsection to have
been so copied; and
(b) the copy is communicated by, or on
behalf of, the body by being made available online, or is taken under this
subsection to have been so communicated; and
(c) the copy remains so available
online for longer than the prescribed period;
then, when that period ends:
(d) the broadcast is taken to have
been copied again by, or on behalf of, the body; and
(e) the copy mentioned in paragraph (a)
is taken to have been communicated again by, or on behalf of, the body by
making it available online for a further prescribed period.
(5) An agreed system (whether determined by
agreement or by the Copyright Tribunal) must require the assessment of an
amount of equitable remuneration by a method or process that takes account of
copies and communications to which paragraphs (4)(d) and (e) apply.
(6) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to different institutions administered by the
administering body.
(7) If:
(a) an agreed notice is given by, or
on behalf of, an administering body to the collecting society; and
(b) during any period, the administering
body does not comply with one or more of the requirements of the agreed system
determined under this section in relation to the notice;
sections 135E and 135F do not apply to any copy of a
broadcast, or communication of a copy of a broadcast, made by, or on behalf of,
the administering body during that period.
(8) In this section:
prescribed period means the period of 12
months or, if another period is agreed between the relevant administering body
and collecting society for the purposes of subsection (4), that other
period.
135K
Marking and record keeping requirements
If records notice is given
(1) Where a records notice is given by, or on
behalf of, an administering body, the body shall:
(a) mark, or cause to be marked, in
accordance with the regulations, each copy in analog form of a broadcast made
by it, or on its behalf, while the notice is in force, or any container in
which such a copy is kept;
(b) make, or cause to be made, a
record of each copying of a broadcast, and each communication of such a copy,
carried out by it, or on its behalf, while the notice is in force, being a
record containing such particulars as are prescribed;
(c) retain that record for the
prescribed retention period after the making of the copy or communication to
which it relates; and
(d) send copies of all such records to
the collecting society in accordance with the regulations.
(2) A record of the kind referred to in paragraph (1)(b):
(a) may be kept in writing or in any
other manner prescribed in the regulations; and
(b) if it is kept in writing, shall be
in accordance with the prescribed form.
(2A) A matter that:
(a) relates to an activity required by
paragraph (1)(b), (c) or (d); and
(b) needs, or is convenient, to be
determined; and
(c) is not determined by subsection (1)
or (2) or regulations made for the purposes of paragraph (1)(b), (c) or
(d) or (2)(a) or (b);
is to be determined by agreement between the administering
body and the collecting society or, failing such agreement, the Copyright
Tribunal on the application of either of them.
(2B) Sections 135E and 135F do not apply to
a copy of a broadcast, or a communication of a copy of a broadcast, made by or
on behalf of the administering body during a period in which:
(a) an agreement, or an order of the
Copyright Tribunal, determining a matter described in subsection (2A) is
in force; and
(b) the body does not comply with the
agreement or order.
If sampling notice is given
(3) Where a sampling notice is given by, or
on behalf of, an administering body, the body shall mark, or cause to be
marked, in accordance with the regulations, each copy in analog form of a
broadcast made by it, or on its behalf, while the notice is in force, or any
container in which such a copy is kept.
135KA
Notice requirements in respect of communications
If a remuneration notice is given by, or
on behalf of, an administering body to a collecting society in respect of
communication of copies of broadcasts made by, or on behalf of, the body while
the remuneration notice is in force, the body must, except in such
circumstances (if any) as are prescribed:
(a) give a notice, in accordance with
the regulations, in relation to each such communication made by it, or on its
behalf, while the remuneration notice is in force, containing:
(i) statements to the
effect that the communication has been made under this Part and that any work
or other subject‑matter contained in the communication might be subject
to copyright or performers’ protection under this Act; and
(ii) such other information
or particulars (if any) as are prescribed; and
(b) in the case of each such
communication made by it, or on its behalf, while the remuneration notice is in
force—take all reasonable steps to ensure that the communication can only be
received or accessed by persons entitled to receive or access it (for example,
teachers or persons receiving educational instruction or other assistance
provided by the relevant institution); and
(c) comply with such other
requirements (if any) as are prescribed in relation to each such communication
made by it, or on its behalf, while the remuneration notice is in force.
135L
Inspection of records etc.
(1) Where a remuneration notice is or has
been in force, the collecting society may, in writing, notify the administering
body which gave the notice that the society wishes, on a day specified in the
notice, being an ordinary working day of the institution specified in the
notice not earlier than 7 days after the day on which the notice is given, to
do such of the following things as are specified in the notice:
(a) assess the amount of copying of
broadcasts and communication of such copies carried out at the premises of the
institution;
(b) inspect all the relevant records
held at those premises that relate to the making and communication of copies of
broadcasts in reliance on section 135E;
(c) inspect such other records held at
those premises as are relevant to the assessment of the amount of equitable
remuneration payable by the administering body to the society.
(2) Where the collecting society gives a
notice, a person authorised in writing by the society may, during the ordinary
working hours of the relevant institution on the day specified in the notice
(but not before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect
the records, to which the notice relates and, for that purpose, may enter the
premises of the institution.
(3) An
administering body shall take all reasonable precautions, and exercise
reasonable diligence, to ensure that a person referred to in subsection (2)
who attends at the premises of an institution administered by the body for the
purpose of exercising the powers conferred by that subsection is provided with
all reasonable and necessary facilities and assistance for the effective
exercise of those powers.
(4) An administering body that contravenes subsection (3)
is guilty of an offence punishable, on conviction, by a fine not exceeding 5 penalty
units.
135M
Revocation of remuneration notice
A remuneration notice may be revoked at
any time by the relevant administering body by notice in writing given to the
collecting society, and the revocation takes effect at the end of 3 months
after the date of the notice or on such later day as is specified in the
notice.
135N
Request for payment of equitable remuneration
(1) Subject to this section, where a
remuneration notice is or has been in force, the collecting society may, by
notice in writing given to the administering body which gave the notice,
request the body to pay to the society, within a reasonable time after the date
of the notice, the amount of equitable remuneration specified in the notice,
being an amount payable under section 135H, 135J or 135JA, as the case may
be, for copies of broadcasts and communications of such copies made by, or on
behalf of, the body while the remuneration notice is or was in force.
(3) If an amount specified in a request under
subsection (1) is not paid in accordance with the request, it may be
recovered from the relevant administering body by the collecting society in the
Federal Court of Australia or any other court of competent jurisdiction as a
debt due to the society.
(4) Jurisdiction is conferred on the Federal
Court of Australia with respect to actions under subsection (3).
Division 3—The collecting society
135P Declaration
of the collecting society
(1) A body may apply to the Minister to be
declared as the collecting society.
(1A) After receiving the application, the
Minister must do one of the following:
(a) declare the body to be the
collecting society, by notice in the Gazette;
(b) refuse to declare the body to be
the collecting society;
(c) refer the application to the
Copyright Tribunal in the way prescribed by the regulations and notify the body
of the referral.
(1B) A declaration made under paragraph (1A)(a)
is not a legislative instrument.
(1C) If the Minister refers the application to
the Copyright Tribunal, the Tribunal may declare the body to be the collecting
society.
Note: Section 153BAB sets out the procedure of
the Copyright Tribunal in dealing with the reference.
(2) Only one body can be declared to be the
collecting society at a time. The body cannot be declared to be the collecting
society while another body is declared to be the collecting society.
(3) The Minister and the Copyright Tribunal
must not declare a body to be the collecting society unless:
(a) it is a company limited by
guarantee and incorporated under a law in force in a State or Territory
relating to companies; and
(b) all relevant right holders, or
their agents, are entitled to become its members; and
(c) its rules prohibit the payment of
dividends to its members; and
(d) its rules contain such other
provisions as are prescribed, being provisions necessary to ensure that the
interests of the collecting society’s members who are relevant right holders or
their agents are protected adequately, including, in particular, provisions
about:
(i) the collection of
amounts of equitable remuneration payable by administering bodies under section 135H,
135J or 135JA; and
(ii) the payment of the
administrative costs of the society out of amounts collected by it; and
(iii) the distribution of
amounts collected by it; and
(iv) the holding on trust by
the society of amounts for relevant right holders who are not its members; and
(v) access to records of
the society by its members.
135Q
Revocation of declaration
(1) This section applies if the Minister is
satisfied that the body declared as the collecting society:
(a) is not functioning adequately as
the collecting society; or
(b) is not acting in accordance with
its rules or in the best interests of those of its members who are relevant
right holders or their agents; or
(c) has altered its rules so that they
no longer comply with paragraphs 135P(3)(c) and (d); or
(d) has refused or failed, without
reasonable excuse, to comply with section 135R or 135S.
(2) The Minister may:
(a) by notice in the Gazette,
revoke the declaration; or
(b) refer the question whether the
declaration should be revoked to the Copyright Tribunal in the way prescribed
by the regulations.
(3) If the Minister refers the question to
the Copyright Tribunal, the Tribunal may revoke the declaration if it is
satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the
body.
Note: Section 153BAC sets out the procedure of
the Copyright Tribunal in dealing with the reference.
135R
Annual report and accounts
(1) The collecting society shall, as soon as
practicable after the end of each financial year, prepare a report of its operations
during that financial year and send a copy of the report to the Minister.
(2) The Minister shall cause a copy of the
report sent to the Minister under subsection (1) to be laid before each
House of the Parliament within 15 sitting days of that House after the receipt
of the report by the Minister.
(3) The society shall keep accounting records
correctly recording and explaining the transactions of the society (including
any transactions as trustee) and the financial position of the society.
(4) The accounting records shall be kept in
such a manner as will enable true and fair accounts of the society to be
prepared from time to time and those accounts to be conveniently and properly
audited.
(5) The society shall, as soon as practicable
after the end of each financial year, cause its accounts to be audited by an
auditor who is not a member of the society, and shall send to the Minister a
copy of its accounts as so audited.
(6) The society shall give its members
reasonable access to copies of all reports and audited accounts prepared under
this section.
(7) This section does not affect any
obligations of the society relating to the preparation and lodging of annual
returns or accounts under the law under which it is incorporated.
135S
Amendment of rules
The collecting society shall, within 21
days after it alters its rules, send a copy of the rules as so altered to the Minister,
together with a statement setting out the effect of the alteration and the
reasons why it was made.
135SA
Applying to Tribunal for review of distribution arrangement
(1) The
collecting society or a member of the collecting society may apply to the
Copyright Tribunal for review of the arrangement adopted, or proposed to be
adopted, by the collecting society for distributing amounts it collects in a
period.
(2) If the Tribunal makes an order under
section 153BAD varying the arrangement or substituting for it another
arrangement, the arrangement reflecting the Tribunal’s order has effect as if
it had been adopted in accordance with the collecting society’s rules, but does
not affect a distribution started before the order was made.
Division 4—Interim copying
135T
Appointment of notice holder
The Attorney‑General may, by
notice in the Gazette, appoint a person to be the notice holder for the
purposes of this Division.
135U
Copying before declaration of collecting society
(1) The copyright in a broadcast, or in any
work, sound recording or cinematograph film included in a broadcast, is not
infringed by the making, by or on behalf of an administering body, of a copy of
the broadcast if:
(a) at the time the copy is made, the
first collecting society has not been declared;
(b) a notice given by the
administering body to the notice holder under subsection 135W(1) is in force;
(c) where the copy is made by, or on
behalf of, a body administering an educational institution—the copy is made
solely for the educational purposes of the institution or of another
educational institution;
(d) where the copy is made by, or on
behalf of a body administering an institution assisting persons with an
intellectual disability—the copy is made solely for the purposes of use in the
provision of assistance to persons with an intellectual disability by the
institution or by another similar institution; and
(e) the administering body complies
with paragraphs 135K(1)(a), (b) and (c) or subsection 135K(3), in so far as
those provisions apply.
(2) Where a copy of a broadcast referred to
in subsection (1):
(a) is used for a purpose other than a
purpose referred to in paragraph (1)(c) or (d);
(b) is made, sold or otherwise
supplied for a financial profit; or
(c) is
given to an administering body when there is not in force a notice given by
that body to the notice holder under subsection 135W(1);
with the consent of the administering body by whom, or on
whose behalf, it is made, subsection (1) does not apply, and shall be
taken never to have applied, to the making of the copy.
135V
Preview copies
Section 135F applies to the making
of preview copies of broadcasts before the first collecting society is declared
as if:
(a) the reference in paragraph
135F(2)(b) to a remuneration notice given by an administering body to the
collecting society were a reference to a notice under subsection 135W(1) given
by the administering body to the notice holder; and
(b) the references in subsection
135F(5) to subsection 135E(1), and paragraphs 135E(1)(b) and (c), were
references to subsection 135U(1), and paragraphs 135U(1)(c) and (d),
respectively.
135W
Notices by administering bodies
(1) An administering body may at any time
before the declaration of the first collecting society, by notice in writing
given to the notice holder, undertake to pay equitable remuneration to the
collecting society, when it is declared, for copies of broadcasts made by, or
on behalf of, the administering body while the notice is in force.
(2) A notice shall specify whether the amount
of equitable remuneration is to be assessed on the basis of a records system or
a sampling system.
(3) A notice comes into force on the day on
which it is given to the notice holder, or on such later day as is specified in
the notice, and remains in force until it is revoked.
(4) A notice may be revoked at any time by
the relevant administering body by notice in writing given to the notice
holder, and the revocation takes effect on the date of the notice of revocation
or on such later date as is specified in it.
135X
Marking and record keeping requirements
(1) Where an administering body gives a notice
under subsection 135W(1) that specifies that the amount of equitable
remuneration is to be assessed on the basis of a records system, paragraphs 135K(1)(a),
(b) and (d) and subsection 135K(2) apply as if:
(a) the reference to the collecting
society were a reference to the notice holder; and
(b) references to a records notice
were references to the notice under subsection 135W(1).
(2) Where an administering body gives a
notice under subsection 135W(1) that specifies that the amount of equitable
remuneration is to be assessed on the basis of a sampling system, subsection 135K(3)
applies as if:
(a) the reference to the collecting
society were a reference to the notice holder; and
(b) references to a sampling notice
were references to the notice under subsection 135W(1).
135Y
Effect of declaration of collecting society
(1) Where the first collecting society is
declared, a notice given by an administering body to the notice holder under
subsection 135W(1) and in force immediately before that declaration shall, on
and after that declaration, be taken, for the purposes of this Part, to be a
records notice or a sampling notice, as the case may be, given by that body to
the collecting society, being a records notice or sampling notice that came
into force on the day on which the notice came into force.
(2) Where a notice is to be taken under this
section to be a records notice, the relevant administering body shall cause
copies of all records made under paragraph 135K(1)(b) on or after the day on
which the notice is taken to have come into force to be sent to the collecting
society within 21 days after the declaration of the collecting society.
Division 5—Miscellaneous
135Z Relevant
right holder may authorise copying etc.
(1) Nothing in this Part affects the right of
the owner of the copyright in a broadcast, or in a work, sound recording or
cinematograph film included in a broadcast, to grant a licence authorising an
administering body to make, or cause to be made, a copy of the broadcast, sound
recording or film, or a reproduction of the work and to communicate, or cause
to be communicated, that copy or reproduction, without infringing that
copyright.
(2) Nothing in this Part affects the right of
a performer in a performance included in a broadcast to authorise an
administering body:
(a) to make, or cause to be made, a
sound recording or a cinematograph film of the performance; and
(b) to communicate, or cause to be
communicated, that recording or film.
135ZA
Copyright not to vest in copier
Despite any other provision of this Act,
the making or communication of a copy of a broadcast by, or on behalf of, an
administering body that is not an infringement of copyright under this Part,
does not vest copyright in any work or other subject‑matter in any person.
Part VB—Reproducing and communicating works etc. by educational and
other institutions
Division 1—Preliminary
135ZB
Interpretation
In this Part:
administering body means a body administering
an institution.
collecting society means a body that is, for
the time being, declared to be a collecting society under section 135ZZB.
electronic use notice means a remuneration
notice specifying that the amount of remuneration payable in respect of
licensed copies in electronic form, or licensed communications, made by, or on
behalf of, the administering body giving the notice is to be assessed on the
basis of an electronic use system.
eligible item has the meaning given by
section 135ZC.
institution means:
(a) an educational institution;
(b) an institution assisting persons
with a print disability; or
(c) an institution assisting persons
with an intellectual disability.
licensed communication means a communication
made by, or on behalf of, a body administering an institution in reliance on
section 135ZMC, 135ZMD, 135ZP or 135ZS.
licensed copy means:
(a) a reproduction of the whole or a
part of the work, being a reproduction that is made by, or on behalf of, a body
administering an educational institution in reliance on section 135ZJ,
135ZK, 135ZL, 135ZMC or 135ZMD;
(b) a record embodying a sound
recording of the whole or a part of a literary or dramatic work, or a Braille
version, a large‑print version, a photographic version or an electronic
version of the whole or a part of such a work, being a record or version made
by, or on behalf of, a body administering an institution assisting persons with
a print disability in reliance on section 135ZP; or
(c) a copy of the whole or a part of
an eligible item, being a copy made by, or on behalf of, a body administering
an institution assisting persons with an intellectual disability in reliance on
section 135ZS.
records notice means a remuneration notice
specifying that the amount of equitable remuneration payable in respect of
licensed copies made in hardcopy form or analog form by, or on behalf of, the
administering body giving the notice is to be assessed on the basis of a
records system.
relevant collecting society, in relation to a
remuneration notice, means the collecting society for the owners of the
copyright in works, or other subject‑matter, of the same kind as that to
which the remuneration notice relates.
relevant copyright owner means the owner of
the copyright in a work or an eligible item other than a work, but does not
include a new owner of the copyright in a sound recording of a live performance
within the meaning of Subdivision B of Division 5 of Part IV.
remuneration notice means a notice referred
to in subsection 135ZU(1).
rules, in relation to a collecting society,
means the provisions of the memorandum and articles of association of the
society.
sampling notice means a remuneration notice
specifying that the amount of equitable remuneration payable in respect of
licensed copies made in hardcopy form or analog form by, or on behalf of, the
administering body giving the notice is to be assessed on the basis of a
sampling system.
135ZC
Eligible items and photographic versions
In this Part:
(a) a reference to an eligible item is
a reference to:
(i) a published literary,
dramatic, musical or artistic work;
(ii) a published sound
recording or cinematograph film; or
(iii) a work referred to in subparagraph (i)
that is included in a sound broadcast;
(b) a reference to a copy of an
eligible item, being a literary, dramatic or musical work, is a reference to
any of the following:
(i) a reproduction of the
work in a material form;
(ii) an adaptation of the
work;
(iii) a reproduction in a
material form of an adaptation of the work;
(c) a reference to a copy of an
eligible item, being an artistic work, is a reference to a reproduction in a
material form of the work;
(d) a reference to a copy of an
eligible item, being a sound recording or a cinematograph film, is a reference
to a copy of the sound recording or cinematograph film; and
(e) a reference to a photographic
version of a work or a part of a work is a reference to a copy of the work or
part of the work produced as a film‑strip, or series of separate
transparencies, designed to meet the needs of persons with a print disability.
135ZE
Part does not apply to computer programs
Nothing in this Part applies in relation
to a literary work, being a computer program or a compilation of computer
programs.
135ZF
Operation of collecting society rules
This Part applies to a collecting
society despite anything in the rules of the society but nothing in this Part
affects those rules so far as they can operate together with this Part.
135ZFA
Licensed communications
For the purposes of this Part, a
reference to a licensed communication of a work, or part of a work, or other
subject‑matter includes a reference to a licensed communication of a
licensed copy of the work or other subject‑matter.
Division 2—Reproduction by educational institutions of works that are in
hardcopy form
135ZGA
Application of Division
(1) This Division applies in relation to the
reproduction of a work (including an article contained in a periodical
publication), or part of a work, and to the copying of a published edition of a
work, or part of such an edition, only if the reproduction or copy is made from
a document that is in hardcopy form.
(2) For the purposes of this Division:
(a) a reference to a reproduction of a
work (including an article contained in a periodical publication), or a part of
a work, is to be read as a reference to a reproduction of that work or part
made from a document that is in hardcopy form; and
(b) a reference to a facsimile copy of
a printed published edition of a work, or part of such an edition, is to be
read as a reference to a facsimile copy of that edition or part made from a
document that is in hardcopy form.
135ZG
Multiple reproduction of insubstantial parts of works that are in hardcopy form
(1) Subject to this section, copyright in a
literary or dramatic work is not infringed by the making of one or more
reproductions of a page or pages of the work in an edition of the work if the
reproduction is carried out on the premises of an educational institution for
the purposes of a course of education provided by it.
(2) Subsection (1) does not apply to the
making of a reproduction of the whole of a work.
(3) Subsection (1) does not apply to the
making of a reproduction of more than 2 of the pages of a work in an edition of
the work unless:
(a) there are more than 200 pages in
the edition; and
(b) the
total number of pages so reproduced does not exceed 1% of the total number of
pages in the edition.
(4) Where:
(a) a person makes, or causes to be
made, a reproduction of a part of a work contained on a page or pages in an
edition; and
(b) subsection (1)
applies to the making of that reproduction;
that subsection does not apply to the making, by or on
behalf of that person, of a reproduction of any other part of that work within
14 days after the day on which the previous reproduction was made.
(5) In this section, a reference to an
edition of a work includes a reference to an edition of works that include that
work.
135ZH
Copying of printed published editions by educational institutions
The copyright in a printed published
edition of a work (being a work in which copyright does not subsist) is not
infringed by the making of one or more facsimile copies of the whole or a part
of the edition, if the copy, or each of the copies, is made in the course of
the making of a reproduction of the whole or a part of the work by, or on
behalf of, a body administering an educational institution for the educational
purposes of that institution or of another educational institution.
135ZJ
Multiple reproduction of printed periodical articles by educational institutions
(1) Subject to this section, the copyright in
an article contained in a printed periodical publication is not infringed by
the making of one or more reproductions of the whole or a part of that article
by, or on behalf of, a body administering an educational institution if:
(a) a remuneration notice, given by or
on behalf of the body to the relevant collecting society, is in force;
(b) the reproduction is carried out
solely for the educational purposes of the institution or of another
educational institution; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each reproduction.
(2) This section does not apply in relation
to reproductions of, or of parts of, 2 or more articles contained in the same
periodical publication unless the articles relate to the same subject‑matter.
135ZK
Multiple reproduction of works published in printed anthologies
The copyright in a literary or dramatic
work, being a work contained in a printed published anthology of works and
comprising not more than 15 pages in that anthology, is not infringed by the
making of one or more reproductions of the whole or part of the work by, or on
behalf of, a body administering an educational institution if:
(a) a remuneration notice given by, or
on behalf of, the body to the relevant collecting society is in force; and
(b) the reproduction is carried out
solely for the educational purposes of the institution or of another
educational institution; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each reproduction.
135ZL
Multiple reproduction of works that are in hardcopy form by educational
institutions
(1) Subject to
this section, the copyright in a literary, dramatic, musical or artistic work
(other than an article contained in a periodical publication) is not infringed
by the making of one or more reproductions of the whole or a part of the work
by, or on behalf of, a body administering an educational institution if:
(a) a remuneration notice, given by or
on behalf of the body to the relevant collecting society, is in force;
(b) the reproduction is carried out
solely for the educational purposes of the institution or of another
educational institution; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each reproduction.
(2) This section does not apply in relation
to reproductions of the whole, or of more than a reasonable portion, of a work
that has been separately published unless the person who makes the
reproductions, or causes the reproductions to be made, for, or on behalf of,
the body is satisfied, after reasonable investigation, that reproductions
(other than second‑hand reproductions) of the work cannot be obtained
within a reasonable time at an ordinary commercial price.
135ZM
Application of Division to certain illustrations that are in hardcopy form
(1) Where an article or other literary,
dramatic or musical work is accompanied by an artistic work or artistic works
provided for the purpose of explaining or illustrating the article or other
work, the preceding sections of this Division apply as if:
(a) where any of those sections
provides that the copyright in the article or other work is not infringed—the
reference to that copyright included a reference to any copyright in that
artistic work or those artistic works;
(b) a reference to a reproduction of
an article or other work included a reference to a reproduction of the article
or other work together with a reproduction of that artistic work or those
artistic works;
(c) a reference to a reproduction of a
part of an article or other work included a reference to a reproduction of that
part of the article or other work together with a reproduction of the artistic
work or artistic works provided for the purpose of explaining or illustrating
that part;
(d) a reference to a reproduction of a
page of a literary or dramatic work in an edition of the work included a
reference to a reproduction of a page in such an edition that contained that
work and an artistic work or artistic works provided for the purpose of
explaining or illustrating that part of that work; and
(e) a
reference to a reproduction of pages of a literary or dramatic work in an
edition of the work included a reference to a reproduction of pages in such an
edition that contained a part of that work and an artistic work or artistic
works provided for the purpose of explaining or illustrating that part of that
work.
(2) If:
(a) any remuneration is paid under
this Part in respect of a page of a document that is:
(i) a reproduction of the
whole or a part of an article (other than a part that is an artistic work)
contained in a periodical publication; or
(ii) a reproduction of the
whole or a part of a literary or dramatic work contained in a published
anthology of works; or
(iii) a reproduction of the
whole or a part of a literary, dramatic or musical work other than an article
contained in a periodical publication; and
(b) the making of the page is not an
infringement of the copyright in the article or work because of section 135ZJ,
135ZK or 135ZL; and
(c) the page includes an artistic work
or artistic works provided for the purpose of explaining or illustrating the
article or work;
the following paragraphs apply:
(d) one‑half of the remuneration
paid in respect of the making of the page is to be paid to the owner, or
divided equally among the owners, of the copyright in the literary, dramatic or
musical work or works which, or a part of which, appear on the page; and
(e) one‑half of that
remuneration is to be paid to the owner, or divided equally among the owners,
of the copyright in the artistic work or artistic works which, or a part of
which, appear on the page.
Division 2A—Reproduction and communication of works that are in
electronic form
135ZMA
Application of Division
(1) This Division applies in relation to the
reproduction of a work (including articles contained in periodical
publications) or part of a work, only if the reproduction is made from an
electronic form of the work.
(2) For the purposes of this Division, a
reference to a reproduction of a work (including an article contained in a
periodical publication), or a part of a work, is to be read as a reference to a
reproduction made from an electronic form of the work or part.
135ZMB
Multiple reproduction and communication of insubstantial parts of works that
are in electronic form
Exception from infringement
(1) Subject to this section, copyright in a published
literary or dramatic work is not infringed by:
(a) the making of one or more
reproductions of a part of the work; or
(b) communicating a part of the work;
if the reproduction or communication is carried out on the
premises of an educational institution for the purposes of a course of study
provided by it.
No exception for more than 2 pages or 1% of the number
of pages
(1A) Subsection (1) does not apply to the
reproduction or communication if all the following circumstances exist:
(a) the published electronic form of
the literary or dramatic work from which the reproduction or communication is
made contains pages whose content is unlikely to change regardless of the
system used to view, reproduce or communicate them;
(b) the reproduction or communication
is of more than 2 of those pages without altering any of their content (in
terms of the work);
(c) there are more than 200 pages in
that form of the work;
(d) the number of pages reproduced or
communicated exceeds 1% of the number of pages in that form of the work.
No exception for more than 1% of words if work is not
paginated
(2) Subsection (1) does not apply to the
reproduction or communication if both the following circumstances exist:
(a) the circumstance in paragraph (1A)(a)
does not exist;
(b) the reproduction or communication
is of more than 1% of the number of words in the work.
No exception for dealing with another part within 14
days
(3) If:
(a) a person makes, or causes to be
made, a reproduction of a part of a work or communicates a part of a work; and
(b) subsection (1) applies to the
making of the reproduction or to the communication;
that subsection does not apply to the making by, or on
behalf of, that person of a reproduction or to the communication by that
person, of any other part of that work within 14 days after the day on which
the previous reproduction or the first communication of the work was made.
No exception for putting another part online at same
time
(4) If:
(a) a person communicates a part of a
work by making the part available online; and
(b) subsection (1) applies to the
communication;
that subsection does not apply to the making available
online by that person of any other part of that work while the part previously
made available online continues to be so available.
Non‑continuous passages are different parts
(5) For the purposes of this section,
passages from the work that are not continuous are all different parts of the
work.
(6) Subsection (5) does not affect by
implication the meaning of a reference outside this section to a part of a
work.
135ZMC
Multiple reproduction and communication of periodical articles that are in
electronic form by education institutions
(1) Subject to this section, the copyright in
an article contained in a periodical publication is not infringed by:
(a) the making of one or more
reproductions of the whole or a part of the article; or
(b) the communication of the whole or
a part of the article;
by, or on behalf of, a body administering an educational
institution if:
(c) a remuneration notice given by, or
on behalf of, the body to the relevant collecting society is in force; and
(d) the reproduction or communication
is carried out solely for the educational purposes of the institution or of
another educational institution; and
(e) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each reproduction or communication.
(2) This section does not apply in relation
to the reproduction or communication of, or of parts of, 2 or more articles
contained in the same periodical publication unless the articles relate to the
same subject‑matter.
135ZMD
Multiple reproduction and communication of works that are in electronic form by
educational institutions
(1) Subject to this section, the copyright in
a literary, dramatic, musical or artistic work (other than an article contained
in a periodical publication) is not infringed by:
(a) the making of one or more
reproductions of the whole or a part of the work; or
(b) the communication of the whole or
a part of the work;
by, or on behalf of, a body administering an educational
institution if:
(c) a remuneration notice given by, or
on behalf of, the body to the relevant collecting society is in force; and
(d) the reproduction or communication
is carried out solely for the educational purposes of the institution or of
another educational institution; and
(e) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each reproduction or communication.
(2) This section does not apply in relation
to the reproduction or communication of:
(a) the whole, or of more than a
reasonable portion of, a literary or dramatic work; or
(b) the whole, or of more than 10% of,
a musical work;
that has been separately published unless the person who
makes the reproduction or communication, or causes it to be made, for, or on
behalf of, the body is satisfied, after reasonable investigation, that the work
is not available in electronic form within a reasonable time at an ordinary
commercial price.
(3) If:
(a) a person communicates a part of a
work by or on behalf of a body administering an educational institution, by
making the part available online; and
(b) subsection (1) applies to the
communication;
that subsection does not apply to the making available
online by, or on behalf of, that body of any other part of that work while the
part previously made available online continues to be so available.
135ZMDA
Reproduction and communication of works from electronic anthologies by
educational institutions
Reproduction or communication of all or
part of a literary or dramatic work does not infringe copyright in the work if:
(a) the work is contained in an
anthology published in electronic form; and
(b) the published electronic form of
the anthology from which the reproduction or communication is made contains
pages whose content is unlikely to change regardless of the system used to
view, reproduce or communicate them; and
(c) the work occupies not more than 15
of those pages; and
(d) the reproduction or communication
is made by or on behalf of a body administering an educational institution; and
(e) a remuneration notice given by or
on behalf of the body to the relevant collecting society is in force; and
(f) the reproduction or communication
is made solely for the educational purposes of the institution or of another
educational institution; and
(g) the body complies with subsection
135ZX(1) or (3) or section 135ZXA in relation to each reproduction or communication.
135ZME
Application of Division to certain illustrations in electronic form
(1) If an article or other literary, dramatic
or musical work that is in electronic form is accompanied by an artistic work
or artistic works in electronic form provided for the purpose of explaining or
illustrating the article or other work, the preceding sections of this Division
apply as if:
(a) where any of those sections
provides that the copyright in the article or other work is not infringed—the
reference to that copyright included a reference to any copyright in the
artistic work or artistic works; and
(b) a reference to a reproduction or
communication of an article or other work included a reference to a
reproduction or communication of the article or other work together with a
reproduction or communication of the artistic work or artistic works; and
(c) a reference to a reproduction or
communication of a part of an article or other work included a reference to a
reproduction or communication of that part of the article or other work
together with a reproduction or communication of the artistic work or artistic
works provided for the purpose of explaining or illustrating that part.
(2) If:
(a) remuneration is paid under this
Part in respect of:
(i) the reproduction or
communication of the whole or part of an article (other than a part that is an
artistic work) contained in a periodical publication; or
(ii) the reproduction or
communication of the whole or part of a literary, dramatic or musical work,
other than an article contained in a periodical publication; and
(b) the reproduction or communication
is not an infringement of the copyright in the article or work because of
section 135ZMC or 135ZMD; and
(c) the
reproduction that is made or communicated includes an artistic work or artistic
works provided for the purpose of explaining or illustrating the article or
work;
the amount of the remuneration must be divided among the
owner or owners of the copyright in the artistic work or artistic works and the
owner or owners of the copyright in the article or other literary, dramatic or
musical work or works.
(3) The division of an amount of remuneration
under subsection (2) is to be carried out as agreed between the relevant
copyright owners or, failing such agreement, as determined by the Copyright
Tribunal on application made by any of them.
Division 3—Reproduction and communication of works by institutions
assisting persons with a print disability
135ZN
Copying published editions by institutions assisting persons with a print
disability
The copyright in a published edition of
a work (being a work in which copyright does not subsist) is not infringed by
the making of one or more facsimile copies of the whole or a part of the
edition if the copy, or each of the copies, is made in the course of the making
of a reproduction of the whole or a part of the work by, or on behalf of, a
body administering an institution assisting persons with a print disability for
use in the provision, whether by the institution or otherwise, of assistance to
such persons.
135ZP
Multiple reproduction and communication of works by institutions assisting
persons with a print disability
(1) The copyright in a literary or dramatic
work is not infringed by the making or communication by, or on behalf of, a
body administering an institution assisting persons with a print disability of
one or more records embodying a sound recording of the work or of a part of the
work if:
(a) a remuneration notice, given by or
on behalf of the body to the relevant collecting society, is in force;
(b) each record is made, or each
communication is carried out solely for the purpose of use in the provision,
whether by the institution or otherwise, of assistance to persons with a print
disability; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each copy or communication.
(2) The copyright in a published literary or
dramatic work is not infringed by the making or communication by, or on behalf
of, a body administering an institution assisting persons with a print
disability, of one or more Braille versions, large‑print versions,
photographic versions or electronic versions of the work or of a part of the
work if:
(a) a remuneration notice given by, or
on behalf of, the body to the relevant collecting society is in force; and
(b) each version is made, or each
communication is carried out, solely for the purpose of the provision, whether
by the institution or otherwise of assistance to persons with a print
disability; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
each version or communication.
(3) Where a sound recording of a work has
been published, subsection (1) does not apply to the making of any record
embodying a sound recording of the work (including a record that is a copy of
that first‑mentioned sound recording) for, or on behalf of, a body
administering an institution assisting persons with a print disability unless
the person who makes that record, or causes that record to be made, is
satisfied, after reasonable investigation, that no new record that embodies
only a sound recording of the work can be obtained within a reasonable time at
an ordinary commercial price.
(4) Where a Braille version of a work has
been separately published, subsection (2) does not apply to the making of
a Braille version of the work, or of a part of the work, unless the person who
makes that version, or causes that version to be made, for, or on behalf of, a
body administering an institution assisting persons with a print disability is
satisfied, after reasonable investigation, that no new copy of a Braille
version of the work, being a version that has been separately published, can be
obtained within a reasonable time at an ordinary commercial price.
(5) Where a large‑print version of a
work has been separately published, subsection (2) does not apply to the
making of a large‑print version of the work, or of a part of the work,
unless the person who makes the version, or causes the version to be made, for,
or on behalf of, a body administering an institution assisting persons with a
print disability is satisfied, after reasonable investigation, that no new copy
of a large‑print version of the work, being a version that has been
separately published, can be obtained within a reasonable time at an ordinary
commercial price.
(6) Where a photographic version of a work
has been separately published, subsection (2) does not apply to the making
of a photographic version of the work, or of a part of the work, unless the
person who makes the version, or causes the version to be made, for, or on
behalf of, a body administering an institution assisting persons with a print
disability is satisfied, after reasonable investigation, that no new copy of a
photographic version of the work, being a version that has been separately
published, can be obtained within a reasonable time at an ordinary commercial
price.
(6A) Subsection (2) does not apply to the
making or communication of an electronic version of the work, or of a part of
the work, unless the person who makes or communicates the version, or causes
the version to be made, or communicated, for, or on behalf of, a body
administering an institution assisting persons with a print disability is
satisfied, after reasonable investigation, that an electronic version of the
work, being a version that has been separately published, is not available
within a reasonable time at an ordinary commercial price.
(7) For the purposes of this section, a
record or a version shall be taken to be a new record or version if it is not
second‑hand.
135ZQ
Making of relevant reproductions and relevant communications by institutions
assisting persons with a print disability
(1) Subject to this section, the copyright in
a published literary or dramatic work is not infringed by the making by, or on
behalf of, a body administering an institution assisting persons with a print
disability, of a relevant reproduction or a relevant communication of the work,
or of a part of the work, if the reproduction or communication is made solely
for use in the making by, or on behalf of that body, of a reproduction or
communication of the work, or of a part of the work, under section 135ZP
for a person with a print disability.
(2) If:
(a) a relevant reproduction or a
relevant communication of a work, or of a part of a work, is made by, or on
behalf of, a body administering an institution assisting persons with a print
disability; and
(b) the reproduction or communication
is used otherwise than for use in the making by, or on behalf of that body, of
a reproduction or communication of the work, or a part of the work, under
section 135ZP for a person with a print disability;
subsection (1) does not apply, and is taken to never
have applied, to the making of the relevant reproduction or relevant
communication.
(3) Subsection (1) does not apply to the
making of a relevant reproduction, being a record embodying a sound recording
in analog form, of a work, or of a part of a work, unless, at the time the
record was made, there was embodied on the record, immediately before the
beginning of that sound recording, a sound recording of the prescribed message.
(4) Subsection (1) does not apply to the
making of a relevant reproduction in hardcopy form of a work, or of a part of a
work, unless the body by whom, or on whose behalf, the relevant reproduction is
made marks it, or causes it to be marked, in accordance with the regulations.
(4A) Subsection (1) is to be taken never to
have applied to the making of a relevant reproduction or relevant communication
of a work, or of a part of a work, if, within 3 months after the relevant
reproduction or relevant communication was made, the body by whom, or on whose
behalf, the relevant reproduction or relevant communication was made has not
given to a collecting society (if any) a notice of the making of the relevant
reproduction or relevant communication.
(4B) The notice referred to in subsection (4A)
must be in writing and must specify:
(a) the name of the body; and
(b) the work, or the part of the work,
reproduced or communicated; and
(c) the date on which the reproduction
or communication was made.
(4C) The copyright in a published literary or
dramatic work is infringed by a person who does any of the acts specified in
section 38 in relation to a relevant reproduction of a work, or of a part
of a work, if the person knows, or ought reasonably to have known, that the
reproduction was made solely for use in the making by, or on behalf of, a body
administering an institution assisting persons with a print disability of a
copy of the work, or of a part of the work, as the case may be, for a person
with a print disability.
(5) In this section:
relevant communication, in relation to a work
or part of a work, means:
(a) the communication of a sound
recording of the work, or part of the work; or
(b) the communication of an electronic
version of the work.
relevant reproduction, in relation to a work
or part of a work, means:
(a) a reproduction of the work, or
part of the work; or
(b) a record embodying a sound
recording of the work, or part of the work; or
(c) a Braille version, a large‑print
version, a photographic version or an electronic version of the work, or part of
the work.
Division 4—Reproduction and communication of works etc. by institutions
assisting persons with an intellectual disability
135ZR
Copying of published editions by institutions assisting persons with an
intellectual disability
The copyright in a published edition of
a work (being a work in which copyright does not subsist) is not infringed by
the making of one or more facsimile copies of the whole or a part of the
edition in the course of making one or more reproductions of the whole or a part
of the work by, or on behalf of, a body administering an institution assisting
persons with an intellectual disability for use in the provision, whether by
the institution or otherwise, of assistance to such persons.
135ZS
Copying and communication of eligible items by institutions assisting persons
with an intellectual disability
(1) The copyright in an eligible item, or in
any work or other subject‑matter included in an eligible item, is not
infringed by the making or communication by, or on behalf of, a body
administering an institution assisting persons with an intellectual disability
of a copy of the whole or a part of the eligible item if:
(a) a remuneration notice, given by or
on behalf of the body to the relevant collecting society, is in force; and
(b) the copying or communication is
carried out solely for the purpose of use in the provision, whether by the
institution or otherwise, of assistance to persons with an intellectual
disability; and
(c) the body complies with subsection
135ZX(1) or (3) or section 135ZXA, as the case requires, in relation to
the copy or communication.
(2) Subsection (1)
does not apply to the making or communication of a copy of the whole or a part
of:
(a) an
eligible item, being a work that has been separately published in a form that
would be suitable for use in the provision of the assistance referred to in
that subsection; or
(b) an
eligible item that is not a work;
unless the person who makes the copy or communication, or
causes the copy or communication to be made, is satisfied after reasonable
investigation that:
(c) in the case of an eligible item
referred to in paragraph (a)—no new copy of the eligible item in a form
suitable for use in the provision of that assistance can be obtained or is
available electronically within a reasonable time at an ordinary commercial
price; or
(d) in the case of an eligible item
referred to in paragraph (b)—no new copy of the eligible item alone can be
obtained or is available electronically within a reasonable time at an ordinary
commercial price.
(3) For the purposes of this section, a copy
shall be taken to be new if it is not second‑hand.
135ZT
Making of copies etc. for use in making copies or communications for a person
with an intellectual disability
(1) Subject to this section, the copyright in
an eligible item or in a television broadcast is not infringed by the making
by, or on behalf of, a body administering an institution assisting persons with
an intellectual disability of a copy or communication of the whole or a part of
the eligible item or broadcast, if the copy or communication is made solely for
use in the making by, or on behalf of, that body of a copy or communication of
the whole or the part of the eligible item or broadcast, as the case may be,
for a person with an intellectual disability.
(2) Where:
(a) a
copy or communication of the whole or a part of an eligible item or a
television broadcast is made by, or on behalf of, a body administering an
institution assisting persons with an intellectual disability; and
(b) the copy or communication is used
otherwise than in the making by, or on behalf of, that body of a copy or
communication of the whole or the part of the eligible item or broadcast, as
the case may be, for a person with an intellectual disability;
subsection (1) does not apply, and shall be taken
never to have applied, to the making of the copy or communication.
(3) Subsection (1) does not apply to the
making of a record embodying a sound recording in analog form of the whole or
part of an eligible item unless, at the time the record was made, there was
embodied on the record, immediately before the beginning of that sound
recording, a sound recording of the prescribed message.
(4) Subsection (1) does not apply to the
making of a copy, in hardcopy form or analog form, of the whole or part of an
eligible item or a television broadcast unless the body by whom, or on whose
behalf, the copy is made, marks it, or causes it to be marked, in accordance
with the regulations.
Division 5—Equitable remuneration
135ZU
Remuneration notices
(1) An administering body may, by notice in
writing given to the relevant collecting society, undertake to pay equitable
remuneration to the society for licensed copies and licensed communications
made by it, or on its behalf, being copies and communications made while the
notice is in force.
(2) A remuneration notice shall specify
whether the amount of equitable remuneration is to be assessed on the basis of
a records system, a sampling system or an electronic use system.
(2A) An administering body may give either a
records notice or a sampling notice in respect of licensed copies made in
hardcopy form or analog form, but may only give an electronic use notice in
respect of licensed copies made in electronic form, or in respect of licensed
communications.
(3) A remuneration notice comes into force on
the day on which it is given to the collecting society, or on such later day as
is specified in the notice, and remains in force until it is revoked.
135ZV
Records notices
(1) Where a records notice is given by, or on
behalf of, an administering body, the amount of equitable remuneration payable
to the relevant collecting society by the administering body for each licensed
copy made by it, or on its behalf, while the notice is in force is such amount
as is determined by agreement between the administering body and that
collecting society or, failing such agreement, by the Copyright Tribunal on
application made by either of them.
(1A) If a determination has been made by the
Tribunal under subsection (1), either the administering body or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of the amount of equitable remuneration payable to the collecting
society by the administering body for each licensed copy made by or on behalf
of that body.
(2) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to:
(a) different classes of works or
eligible items; or
(b) different institutions
administered by the administering body; or
(c) different classes of students of
an institution administered by the administering body.
135ZW Sampling
notices
(1) Where a sampling notice is given by, or
on behalf of, an administering body, the amount of equitable remuneration
payable to the relevant collecting society by the administering body for
licensed copies made by it, or on its behalf, while the notice is in force is
such annual amount as is determined by agreement between the administering body
and that collecting society or, failing such agreement, by the Copyright
Tribunal on application made by either of them.
(1A) If a determination has been made by the
Tribunal under subsection (1), either the administering body or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of the amount of equitable remuneration payable to the collecting
society by the administering body for licensed copies made by or on behalf of that
body.
(2) The annual amount referred to in subsection (1)
shall be determined (whether by agreement or by the Copyright Tribunal) having
regard to the number of licensed copies made by, or on behalf of, the
administering body in a particular period and to such other matters (if any) as
are relevant in the circumstances.
(3) The number of copies referred to in subsection (2),
and any other matters that are necessary or convenient to be assessed by use of
a sampling system, shall be assessed by use of a sampling system determined by
agreement between the administering body and the relevant collecting society
or, failing such agreement, by the Copyright Tribunal on application made by
either of them.
(4) For the purposes of subsection (1),
different annual amounts may be determined (whether by agreement or by the
Copyright Tribunal) in relation to different institutions administered by the
administering body.
(4A) To avoid doubt, an annual amount (whether
for one or more institutions administered by the administering body) may be
determined for the purposes of subsection (1) by reference to amounts for
licensed copies that differ on one or both of the following bases:
(a) different classes of works or
eligible items;
(b) different classes of students of
an institution administered by the administering body.
(5) Where:
(a) a sampling notice is given by, or
on behalf of, an administering body to a collecting society; and
(b) during
any period, the administering body does not comply with one or more of the
requirements of the sampling system determined under this section in relation
to that notice;
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP
and 135ZS do not apply to any reproduction or copy of a work or other subject‑matter
made during that period by, or on behalf of, the administering body, being a
reproduction or copy to which the sampling notice applies.
135ZWAA
Determination of questions relating to this Part or a collecting society’s
rules
(1) This section applies if:
(a) it is necessary or convenient to
determine a question to facilitate future compliance by an administering body
or a collecting society with:
(i) section 135ZJ,
135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA, 135ZP, 135ZQ, 135ZS or 135ZT; or
(ii) this Division; or
(iii) the provisions of a
collecting society’s rules described in paragraph 135ZZB(3)(d); and
(b) the question is not determined by
another provision of this Part or regulations made for the purposes of this
Part; and
(c) determination of the question
affects both the administering body and the collecting society.
Note: An example of such a matter might be a
sampling system to provide information to enable a collecting society to
determine how to distribute amounts it collects.
(2) The question must be determined by
agreement between the collecting society and the administering body or, failing
such agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering
body does not comply with the agreement or order of the Tribunal determining
the question, sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA,
135ZP, 135ZQ, 135ZS and 135ZT do not apply to a reproduction, copy or
communication of a work or other subject‑matter made during that period
by or on behalf of the administering body.
135ZWA
Electronic use notices
(1) If an electronic use notice is given by,
or on behalf of, an administering body, the amount of equitable remuneration
payable to the relevant collecting society by the administering body for
licensed copies and licensed communications made by it, or on its behalf, while
the notice is in force is an amount (whether an amount per year or otherwise)
determined by agreement between the administering body and the collecting
society or, failing such agreement, by the Copyright Tribunal on application
made by either of them.
(2) The matters and processes constituting an
electronic use system, and any matters that are necessary or convenient to be
assessed or taken into account for the purposes of the system, must be
determined by agreement between the administering body and the relevant
collecting society or, failing such agreement, by the Copyright Tribunal on
application made by either of them.
(2A) If:
(a) a work is reproduced by, or on
behalf of, an administering body, or is taken under this subsection to have
been so reproduced; and
(b) the reproduction is communicated
by, or on behalf of, the body by being made available online, or is taken under
this subsection to have been so communicated; and
(c) the reproduction remains so
available online for longer than the prescribed period;
then, when that period ends:
(d) the work is taken to have been
reproduced again by, or on behalf of, the body; and
(e) the reproduction mentioned in paragraph (a)
is taken to have been communicated again by, or on behalf of, the body by
making it available online for a further prescribed period.
(2B) An electronic use system (whether
determined by agreement or by the Copyright Tribunal) must require the
assessment of an amount of equitable remuneration by a method or process that
takes account of reproductions and communications to which paragraphs (2A)(d)
and (e) apply.
(2C) Subject to subsection (2B) but without
limiting subsection (2), an electronic use system (whether determined by
agreement or by the Copyright Tribunal) may be based upon a records system, a
sampling system or any other process or system.
(2D) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to different institutions administered by the
administering body.
(3) If:
(a) an electronic use notice is given
by, or on behalf of, an administering body to a collecting society; and
(b) during any period the
administering body does not comply with one or more of the requirements of the
electronic use system determined under this section in relation to the notice;
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP
and 135ZS do not apply to any reproduction, copy or communication of a work or
other subject‑matter made during that period by, or on behalf of, the
administering body, being a reproduction, copy or communication to which the
electronic use notice applies.
(4) In this
section:
prescribed period means the period of 12
months, or if another is agreed between the relevant administering body and
collecting society for the purposes of subsection (2A), that other period.
135ZX
Records notices and sampling notices: marking and record‑keeping
requirements
If records notice is given
(1) Where a records notice is given by, or on
behalf of, an administering body to a collecting society in respect of licensed
copies made in hardcopy form or analog form, the administering body shall:
(a) mark, or cause to be marked, in
accordance with the regulations, each such licensed copy made by it, or on its
behalf, while the notice is in force, or any container in which such a copy is
kept;
(b) make, or cause to be made, a
record of the making of each such licensed copy that is carried out by it, or
on its behalf, while the notice is in force, being a record containing such
particulars as are prescribed;
(c) retain that record for the
prescribed retention period after the making of the copy to which it relates;
and
(d) send copies of all such records to
the collecting society in accordance with the regulations.
(2) For the purposes of subsection (1),
a record of the making of a licensed copy:
(a) may be kept in writing or in any
other manner prescribed; and
(b) if it is kept in writing, shall be
in accordance with the prescribed form.
(2A) A matter that:
(a) relates to an activity required by
paragraph (1)(b), (c) or (d); and
(b) needs, or is convenient, to be
determined; and
(c) is not determined by subsection (1)
or (2) or regulations made for the purposes of paragraph (1)(b), (c) or
(d) or (2)(a) or (b);
is to be determined by agreement between the administering
body and the collecting society or, failing such agreement, the Copyright
Tribunal on the application of either of them.
(2B) Sections 135ZJ, 135ZK, 135ZL, 135ZMC,
135ZMD, 135ZMDA, 135ZP and 135ZS do not apply to a reproduction or copy of a
work or other subject‑matter made in hardcopy form or analog form by or
on behalf of the administering body during a period in which:
(a) an agreement, or an order of the
Copyright Tribunal, determining a matter described in subsection (2A) is
in force; and
(b) the body does not comply with the
agreement or order.
If sampling notice is given
(3) If a sampling notice is given by, or on
behalf of, an administering body to a collecting society in respect of licensed
copies made in hardcopy form or analog form, the administering body must mark,
or cause to be marked, in accordance with the regulations, each such licensed
copy made by it, or on its behalf, while the notice is in force, or any
container in which such a copy is kept.
Regulations relevant to records notices and sampling
notices
(4) Regulations made for the purposes of paragraph (1)(a)
or (b) or subsection (3) may prescribe different marks or particulars, and
impose different requirements, in relation to different kinds of licensed
copies or different kinds of works or eligible items.
135ZXA
Electronic use notices: notice requirements etc.
If an electronic use notice is given by,
or on behalf of, an administering body to a collecting society, in respect of
licensed copies made in electronic form or licensed communications, the
administering body must:
(a) give a notice, in accordance with
the regulations, in relation to each such copy or communication made by it, or
on its behalf, while the electronic use notice is in force, containing:
(i) statements to the
effect that the copy or communication has been made under this Part and that
any work or other subject‑matter contained in the copy or communication
might be subject to copyright protection under this Act; and
(ii) such other information
or particulars (if any) as are prescribed; and
(b) in the case of each such
communication made by it, or on its behalf, while the electronic use notice is
in force—take all reasonable steps to ensure that the communication can only be
received or accessed by persons entitled to receive or access it (for example,
teachers or persons receiving educational instruction or other assistance
provided by the relevant institution); and
(c) comply
with such other requirements (if any) as are prescribed in relation to each
such copy or communication made by it, or on its behalf, while the electronic
use notice is in force.
135ZY
Inspection of records etc.
(1) Where a remuneration notice is or has
been in force, the relevant collecting society to which the notice was given
may, in writing, notify the administering body which gave the notice that the
society wishes, on a day specified in the notice, being an ordinary working day
of the institution specified in the notice not earlier than 7 days after the
day on which the notice is given to do such of the following things as are
specified in the notice:
(a) assess the amount of licensed
copying or licensed communication carried out at the premises of the
institution;
(b) inspect all the relevant records
held at those premises that relate to the making of licensed copies or licensed
communications;
(c) inspect such other records held at
those premises as are relevant to the assessment of the amount of equitable
remuneration payable by the administering body to the society.
(2) Where a collecting society gives a
notice, a person authorised in writing by the society may, during the ordinary
working hours of the relevant institution on the day specified in the notice
(but not before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect
the records, to which the notice relates and, for that purpose, may enter the
premises of the institution.
(3) An administering body shall take all
reasonable precautions, and exercise reasonable diligence, to ensure that a person
referred to in subsection (2) who attends at the premises of an
institution administered by the body for the purpose of exercising the powers
conferred by that subsection is provided with all reasonable and necessary
facilities and assistance for the effective exercise of those powers.
(4) An administering body that contravenes subsection (3)
is guilty of an offence punishable, on conviction, by a fine not exceeding 5 penalty
units.
135ZZ
Revocation of remuneration notice
A remuneration notice may be revoked at
any time by the relevant administering body by notice in writing given to the
relevant collecting society and the revocation takes effect at the end of 3 months
after the date of the notice or on such later day as is specified in the
notice.
135ZZA
Request for payment of equitable remuneration
(1) Subject to this section, where a
remuneration notice is or has been in force, the relevant collecting society
may, by notice in writing given to the administering body which gave the
notice, request the body to pay to the society, within a reasonable time after
the date of the notice, the amount of equitable remuneration specified in the
notice, being an amount payable under section 135ZV, 135ZW or 135ZWA, as
the case may be, for licensed copies or licensed communications made by, or on
behalf of, the body while the remuneration notice is or was in force.
(3) If an amount specified in a request is
not paid in accordance with the request, it may be recovered from the relevant
administering body by the relevant collecting society in the Federal Court of
Australia or in any other court of competent jurisdiction as a debt due to the
society.
(4) Jurisdiction is conferred on the Federal
Court of Australia with respect to actions under subsection (3).
Division 6—Collecting societies
135ZZB
Collecting societies
(1) A body may apply to the Minister to be
declared as a collecting society for all relevant copyright owners or for
specified classes of relevant copyright owners.
(1A) After receiving the application, the
Minister must do one of the following:
(a) declare the body to be a
collecting society, by notice in the Gazette;
(b) refuse to declare the body to be a
collecting society;
(c) refer the application to the
Copyright Tribunal in the way prescribed by the regulations and notify the body
of the referral.
(1B) A declaration made under paragraph (1A)(a)
is not a legislative instrument.
(1C) If the Minister refers the application to
the Copyright Tribunal, the Tribunal may declare the body to be a collecting
society.
Note: Section 153DC sets out the procedure of
the Copyright Tribunal in dealing with the reference.
(1D) A declaration of the body as a collecting
society must declare the body to be:
(a) the collecting society for all
relevant copyright owners; or
(b) the collecting society for classes
of relevant copyright owners specified in the declaration.
(2) If a body is declared to be the
collecting society for a specified class of copyright owners and another body
is subsequently declared to be the collecting society for that class of
copyright owners:
(a) the first‑mentioned
collecting society ceases to be the collecting society for that class of
copyright owners on the day on which the subsequent declaration is made; and
(b) any remuneration notice given to
that collecting society ceases to be in force to the extent to which it relates
to licensed copies of works or other subject‑matter the copyright owners
of which are included in that class of copyright owners.
(3) The Minister and the Copyright Tribunal
must not declare the body to be the collecting society unless:
(a) it is a company limited by
guarantee and incorporated under a law in force in a State or Territory
relating to companies; and
(b) all persons who are included in a
class of relevant copyright owners to be specified in the declaration, or their
agents, are entitled to become its members; and
(c) its rules prohibit the payment of
dividends to its members; and
(d) its rules contain such other
provisions as are prescribed, being provisions necessary to ensure that the
interests of members of the collecting society who are relevant copyright
owners or their agents are protected adequately, including, in particular,
provisions about:
(i) the collection of
amounts of equitable remuneration payable by administering bodies under section 135ZV,
135ZW or 135ZWA; and
(ii) the payment of the
administrative costs of the collecting society out of amounts collected by it;
and
(iii) the distribution of
amounts collected by the collecting society; and
(iv) the holding on trust by
the collecting society of amounts for relevant copyright owners who are not its
members; and
(v) access to records of
the collecting society by its members.
(4) If the Minister or the Copyright Tribunal
has declared a body to be the collecting society for a specified class of
copyright owners, the Minister and the Copyright Tribunal may refuse to declare
another body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those copyright
owners, having regard to the number of members of the first‑mentioned
society, the scope of its activities and such other considerations as are
relevant.
135ZZC
Revocation of declaration
(1) This section applies if the Minister is
satisfied that a body declared as a collecting society:
(a) is not functioning adequately as a
collecting society; or
(b) is not acting in accordance with
its rules or in the best interests of those of its members who are relevant
copyright owners, or their agents; or
(c) has altered its rules so that they
no longer comply with paragraphs 135ZZB(3)(c) and (d); or
(d) has refused or failed, without
reasonable excuse, to comply with section 135ZZD or 135ZZE.
(2) The Minister may:
(a) by notice in the Gazette,
revoke the declaration; or
(b) refer the question whether the
declaration should be revoked to the Copyright Tribunal in the way prescribed
by the regulations.
(3) If the Minister refers the question to
the Copyright Tribunal, the Tribunal may revoke the declaration if it is
satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the
body.
Note: Section 153DD sets out the procedure of
the Copyright Tribunal in dealing with the reference.
135ZZD
Annual report and accounts
(1) A collecting society shall, as soon as
practicable after the end of each financial year, prepare a report of its
operations during that financial year and send a copy of the report to the Minister.
(2) The Minister shall cause a copy of the
report sent to the Minister under subsection (1) to be laid before each
House of the Parliament within 15 sitting days of that House after the receipt
of the report by the Minister.
(3) A collecting society shall keep
accounting records correctly recording and explaining the transactions of the
society (including any transactions as trustee) and the financial position of
the society.
(4) The accounting records shall be kept in
such a manner as will enable true and fair accounts of the society to be prepared
from time to time and those accounts to be conveniently and properly audited.
(5) A collecting society shall, as soon as
practicable after the end of each financial year, cause its accounts to be
audited by an auditor who is not a member of the society, and shall send to the
Minister a copy of its accounts as so audited.
(6) A collecting society shall give its
members reasonable access to copies of all reports and audited accounts
prepared by it under this section.
(7) This section does not affect any
obligations of a collecting society relating to the preparation and lodging of
annual returns or accounts under the law under which it is incorporated.
135ZZE
Amendment of rules
A collecting society shall, within 21
days after it alters its rules, send a copy of the rules as so altered to the Minister,
together with a statement setting out the effect of the alteration and the
reasons why it was made.
135ZZEA
Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a
collecting society may apply to the Copyright Tribunal for review of the
arrangement adopted, or proposed to be adopted, by the collecting society for
distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153DE
varying the arrangement or substituting for it another arrangement, the
arrangement reflecting the Tribunal’s order has effect as if it had been
adopted in accordance with the collecting society’s rules, but does not affect
a distribution started before the order was made.
Division 7—Miscellaneous
135ZZF
Rights of copyright owners
(1) Nothing in this Part affects the right of
the owner of the copyright in a work to grant a licence authorising the body
administering an educational institution to make, or cause to be made, a copy
or communication of the whole or a part of the work without infringement of
that copyright.
(2) Nothing in this Part affects the right of
the owner of the copyright in a work to grant a licence authorising the body
administering an institution assisting persons with a print disability to do
any of the following without infringement of that copyright:
(a) make, or cause to be made, a sound
recording of, or a Braille, large‑print, photographic or electronic
version of, the whole or a part of the work;
(b) communicate, or cause to be
communicated, the whole or a part of the work.
(3) Nothing in this Part affects the right of
the owner of the copyright in an eligible item to grant a licence authorising
the body administering an institution assisting persons with an intellectual
disability to make, or cause to be made, a copy or communication of the whole
or a part of the eligible item without infringement of that copyright.
135ZZG
Copyright not to vest in copier
Despite any other provision of this Act,
copyright does not vest in the maker of a copy or communication of the whole or
part of a work for a person with a print disability, or of a copy or
communication of the whole or part of an eligible item for a person with an
intellectual disability, merely because of the making of the copy or
communication.
135ZZH
Unauthorised use of copies
(1) Where a copy, record or version of a
work, a sound recording or a cinematograph film, being a copy, record or
version referred to in a prescribed provision of this Part:
(a) is sold or otherwise supplied for
a financial profit;
(b) is used for a purpose other than
the purpose specified in the prescribed provision; or
(c) is
given to an administering body when there is not in force a remuneration notice
given by that body to the relevant collecting society;
with the consent of the administering body by whom, or on
whose behalf, it is made or communicated, the prescribed provision does not
apply, and is taken never to have applied, to the making or communication of
the copy, record or version.
(2) For the purposes of this section,
subsection 135ZG(1), subsection 135ZJ(1), section 135ZK and subsections 135ZL(1),
135ZMB(1), 135ZMC(1), 135ZMD(1), 135ZP(1) and (2) and 135ZS(1) are prescribed
provisions.
Part VC—Retransmission of free‑to‑air broadcasts
Division 1—Preliminary
135ZZI
Definitions
In this Part:
collecting society means a body that is, for
the time being, declared to be a collecting society under section 135ZZT.
delayed retransmission, in relation to a free‑to‑air
broadcast, means a retransmission of the broadcast in an area that has, wholly
or partly, different local time to the area of the original transmission and
that is delayed until no later than the equivalent local time.
notice holder means the person who is, for
the time being, appointed to be the notice holder under section 135ZZX.
relevant collecting society, in relation to a
remuneration notice, means a collecting society for owners of copyright in the
same kind of work or other subject‑matter as that to which the
remuneration notice relates.
relevant copyright owner means the owner of
the copyright in a work, a sound recording or a cinematograph film, but does
not include a new owner of the copyright in a sound recording of a live
performance within the meaning of Subdivision B of Division 5 of Part IV.
remuneration notice means a notice referred
to in section 135ZZL.
retransmitter means a person who makes a
retransmission of a free‑to‑air broadcast.
rules, in relation to a collecting society,
means the provisions of the memorandum and articles of association of the
society.
135ZZJ
Operation of collecting society rules
This Part applies to a collecting
society despite anything in the rules of the society, but nothing in this Part
affects those rules so far as they can operate together with this Part.
135ZZJA
Application of Part
(1) This Part does not apply in relation to a
retransmission of a free‑to‑air broadcast if the retransmission
takes place over the internet.
(2) This Part does not apply in relation to a
re‑transmission by a satellite BSA licensee.
Note: For re‑broadcasts by satellite BSA
licensees, see Part VD.
Division 2—Retransmission of free‑to‑air broadcasts
135ZZK
Retransmission of free‑to‑air broadcasts
(1) The copyright in a work, sound recording
or cinematograph film included in a free‑to‑air broadcast is not
infringed by the retransmission of the broadcast if:
(a) a remuneration notice given by, or
on behalf of, the retransmitter to the relevant collecting society is in force;
and
(b) the free‑to‑air
broadcast was made by a broadcaster specified in the remuneration notice; and
(c) the retransmitter complies with
section 135ZZN.
(2) The copyright in a work, sound recording
or cinematograph film included in a free‑to‑air broadcast is not
infringed by the making of a copy of the broadcast for the sole purpose of
enabling a delayed retransmission of the broadcast to be made.
(3) Subsection (2) does not apply if the
retransmission of the broadcast would infringe the copyright in the broadcast.
(4) If a copy of a broadcast made for the
purpose referred to in subsection (2) is not destroyed within 7 days after
it is made, subsection (2) does not apply, and is taken never to have
applied, in relation to the making of the copy.
(5) In this section, a reference to the
making of a copy of a free‑to‑air broadcast is a reference to
making a cinematograph film or sound recording of the broadcast, or a copy of
such a film or sound recording.
135ZZL
Remuneration notices
(1) A retransmitter may, by notice in writing
given to the relevant collecting society by, or on behalf of, the
retransmitter, undertake to pay equitable remuneration to the society for
retransmissions of free‑to‑air broadcasts by specified
broadcasters, being retransmissions made by, or on behalf of, the retransmitter
while the notice is in force.
(2) A remuneration notice must specify that
the amount of equitable remuneration is to be assessed on the basis of the
records to be kept by the retransmitter under section 135ZZN.
(3) A remuneration notice comes into force on
the day on which it is given to the collecting society, or on such earlier day
as is specified in the notice, and remains in force until it is revoked.
135ZZM
Amount of equitable remuneration
(1) If a retransmitter gives a remuneration
notice to a collecting society, the amount of equitable remuneration payable to
the collecting society for each retransmission made by, or on behalf of, the
retransmitter while the notice is in force is the amount determined by
agreement between the retransmitter and the collecting society or, failing such
agreement, by the Copyright Tribunal on application made by either of them.
(2) If a determination has been made by the
Copyright Tribunal under subsection (1), either the retransmitter or the
collecting society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination payable to the collecting society by the retransmitter for
retransmissions made by, or on behalf of, the retransmitter.
(3) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to different classes of works, sound recordings or
cinematograph films included in retransmissions.
135ZZN
Record system
(1) If a remuneration notice is given to a
collecting society by, or on behalf of, a retransmitter, the retransmitter must
establish and maintain a record system.
(2) The record system must provide for a
record to be kept of the title of each program included in each retransmission
made by, or on behalf of, the retransmitter of each broadcast made by each
broadcaster specified in the remuneration notice.
(3) Subject to
subsection (2), the record system must be determined by agreement between
the retransmitter and the collecting society or, failing such agreement, by the
Copyright Tribunal on application made by either of them.
135ZZP
Inspection of records etc.
(1) If a remuneration notice is or has been
in force, the collecting society to which it was given may, in writing, notify
the relevant retransmitter that the society wishes, on a day specified in the
notice, being an ordinary working day of the retransmitter specified in the
notice, not earlier than 7 days after the day on which the notice is given, to
do such of the following things as are specified in the notice:
(a) assess the number of
retransmissions carried out at the premises of the retransmitter;
(b) inspect all the relevant records
held at those premises that relate to the making of retransmissions in reliance
on section 135ZZK;
(c) inspect such other records held at
those premises as are relevant to the assessment of the amount of equitable
remuneration payable by the retransmitter to the society.
(2) Subject to section 135ZZQ, if a
collecting society gives a notice, a person authorised in writing by the
society may, during the ordinary working hours of the retransmitter on the day
specified in the notice (but not before 10 am or after 3 pm), carry out the
assessment, or inspect the records, to which the notice relates and, for that
purpose, may enter the premises of the retransmitter.
(3) A retransmitter must take all reasonable
precautions, and exercise reasonable diligence, to ensure that a person
referred to in subsection (2) who attends the premises of the
retransmitter for the purpose of exercising the powers conferred by that
subsection is provided with all reasonable and necessary facilities and
assistance for the effective exercise of those powers.
(4) A
retransmitter who contravenes subsection (3) is guilty of an offence
punishable, on conviction, by a fine not exceeding 10 penalty units.
Note: A corporation
may be fined up to 5 times the amount of the maximum fine. See subsection 4B(3)
of the Crimes Act 1914.
135ZZQ
Identity cards
(1) The chief executive officer (however
described) of a collecting society must issue an identity card in the
prescribed form to each person authorised by the society for the purposes of
subsection 135ZZP(2). The identity card must contain a recent photograph of the
authorised person.
(2) If an authorised person who attends or
enters premises for the purpose of exercising powers conferred by subsection
135ZZP(2) fails to produce his or her identity card when asked to do so by a
person apparently in charge of the premises, the authorised person must not
enter or remain on the premises or exercise any other powers under subsection
135ZZP(2) at the premises.
(3) A person is guilty of an offence
punishable on conviction by a fine not exceeding 1 penalty unit if:
(a) the person has been issued with an
identity card; and
(b) the person stops being an
authorised person; and
(c) the person does not, immediately
after he or she stops being an authorised person, return the identity card to
the relevant collecting society.
(4) An authorised person must carry his or
her identity card at all times when exercising powers under subsection
135ZZP(2).
135ZZR
Revocation of remuneration notice
A remuneration notice may be revoked at
any time by the relevant retransmitter by notice in writing given to the
collecting society to which the remuneration notice was given, and the
revocation takes effect at the end of 3 months after the date of the notice, or
on such later day as is specified in it.
135ZZS
Request for payment of equitable remuneration
(1) Subject to this section, where a
remuneration notice is or has been in force, the collecting society to which
the notice was given may, by notice in writing given to the relevant
retransmitter, request the retransmitter to pay to the society, within a
reasonable time after the date of the notice, the amount of equitable
remuneration specified in the notice, being an amount payable under section 135ZZM
for retransmissions made by, or on behalf of, the retransmitter while the
remuneration notice is or was in force.
(2) If an amount specified in a request under
subsection (1) is not paid in accordance with the request, it may be
recovered from the retransmitter by the collecting society in the Federal Court
of Australia or any other court of competent jurisdiction as a debt due to the
society.
Division 3—Collecting societies
135ZZT
Collecting societies
(1) A body may apply to the Minister to be
declared as a collecting society for all relevant copyright owners or for
specified classes of relevant copyright owners.
(1A) After receiving the application, the
Minister must do one of the following:
(a) declare the body to be a
collecting society, by notice in the Gazette;
(b) refuse to declare the body to be a
collecting society;
(c) refer the application to the
Copyright Tribunal in the way prescribed by the regulations and notify the body
of the referral.
(1B) A declaration made under paragraph (1A)(a)
is not a legislative instrument.
(1C) If the Minister refers the application to
the Copyright Tribunal, the Tribunal may declare the body to be a collecting
society.
Note: Section 153P sets out the procedure of
the Copyright Tribunal in dealing with the reference.
(1D) A declaration of the body as a collecting
society must declare the body to be:
(a) the collecting society for all
relevant copyright owners; or
(b) the collecting society for classes
of relevant copyright owners specified in the declaration.
(2) If a body is declared to be the
collecting society for a specified class of copyright owners and another body
is subsequently declared to be the collecting society for that class of
copyright owners:
(a) the first‑mentioned
collecting society ceases to be the collecting society for that class of
copyright owners on the day on which the subsequent declaration is made; and
(b) any remuneration notice given to
that collecting society ceases to be in force to the extent to which it relates
to relevant copyright owners included in that class of copyright owners.
(3) The Minister and the Copyright Tribunal
must not declare a body to be a collecting society unless:
(a) it is a company limited by
guarantee and incorporated under a law in force in a State or Territory
relating to companies; and
(b) all persons who are included in a
class of relevant copyright owners to be specified in the declaration, or their
agents, are entitled to become its members; and
(c) its rules prohibit the payment of
dividends to its members; and
(d) its rules contain such other
provisions as are prescribed, being provisions necessary to ensure that the
interests of members of the collecting society who are relevant copyright
owners, or their agents, are protected adequately, including, in particular,
provisions about:
(i) the collection of
amounts of equitable remuneration payable under section 135ZZM; and
(ii) the payment of the
administrative costs of the collecting society out of amounts collected by it;
and
(iii) the distribution of
amounts collected by the collecting society; and
(iv) the holding on trust by
the collecting society of amounts for relevant copyright owners who are not its
members; and
(v) access to records of
the collecting society by its members.
(4) If the Minister or the Copyright Tribunal
has declared a body to be the collecting society for a specified class of
copyright owners, the Minister and the Copyright Tribunal may refuse to declare
another body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those copyright
owners, having regard to the number of members of the first‑mentioned
society, the scope of its activities and such other considerations as are
relevant.
135ZZU
Revocation of declaration
(1) This section applies if the Minister is
satisfied that a body declared as a collecting society:
(a) is not functioning adequately as a
collecting society; or
(b) is not acting in accordance with
its rules or in the best interests of those of its members who are relevant
copyright owners, or their agents; or
(c) has altered its rules so that they
no longer comply with paragraphs 135ZZT(3)(c) and (d); or
(d) has refused or failed, without reasonable
excuse, to comply with section 135ZZV or 135ZZW.
(2) The Minister may:
(a) by notice in the Gazette,
revoke the declaration; or
(b) refer the question whether the
declaration should be revoked to the Copyright Tribunal in the way prescribed
by the regulations.
(3) If the Minister refers the question to
the Copyright Tribunal, the Tribunal may revoke the declaration if it is
satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the
body.
Note: Section 153Q sets out the procedure of
the Copyright Tribunal in dealing with the reference.
135ZZV
Annual report and accounts
(1) A collecting society must, as soon as
practicable after the end of each financial year, prepare a report of its
operations during that financial year and send a copy of the report to the Minister.
(2) The Minister must cause a copy of the
report sent to the Minister under subsection (1) to be laid before each
House of the Parliament within 15 sitting days of that House after the receipt
of the report by the Minister.
(3) A collecting society must keep accounting
records correctly recording and explaining the transactions of the society
(including any transactions as trustee) and the financial position of the
society.
(4) The
accounting records must be kept in such a manner as will enable true and fair
accounts of the society to be prepared from time to time and those accounts to
be conveniently and properly audited.
(5) A collecting society must, as soon as
practicable after the end of each financial year, cause its accounts to be
audited by an auditor who is not a member of the society, and must send to the Minister
a copy of its accounts as so audited.
(6) A collecting society must give its
members reasonable access to copies of all reports and audited accounts
prepared by it under this section.
(7) This section does not affect any
obligations of a collecting society relating to the preparation and lodging of
annual returns or accounts under the law under which it is incorporated.
135ZZW
Amendment of rules
A collecting society must, within 21
days after it alters its rules, send a copy of the rules as so altered to the Minister,
together with a statement setting out the effect of the alteration and the
reasons why it was made.
135ZZWA
Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a
collecting society may apply to the Copyright Tribunal for review of the
arrangement adopted, or proposed to be adopted, by the collecting society for
distributing amounts it collects in a period.
(2) If the Tribunal makes an order under
section 153R varying the arrangement or substituting for it another
arrangement, the arrangement reflecting the Tribunal’s order has effect as if
it had been adopted in accordance with the collecting society’s rules, but does
not affect a distribution started before the order was made.
Division 4—Interim retransmissions
135ZZX
Appointment of notice holder
The Attorney‑General may, by
notice in the Gazette, appoint a person to be the notice holder for the
purposes of this Division.
135ZZY
Retransmitting before declaration of collecting society
The copyright in any work, sound
recording or cinematograph film included in a retransmission of a free‑to‑air
broadcast is not infringed by the making of the retransmission if:
(a) at the time the retransmission is
made, a collecting society has not been declared; and
(b) a notice given by the
retransmitter by whom, or on whose behalf, the retransmission was made to the
notice holder under subsection 135ZZZ(1) is in force; and
(c) the retransmitter complies with
section 135ZZN.
135ZZZ
Notices by retransmitters
(1) A retransmitter may at any time before
the declaration of the first collecting society, by notice in writing given to
the notice holder by, or on behalf of, the retransmitter, undertake to pay
equitable remuneration to a collecting society, when it is declared, for
retransmissions made by, or on behalf of, the retransmitter while the notice is
in force.
(2) A notice must specify that the amount of
equitable remuneration is to be assessed on the basis of the records to be kept
by the retransmitter under section 135ZZN.
(3) A notice comes into force on the day on
which it is given to the notice holder, or on such later day as is specified in
the notice, and remains in force until it is revoked.
(4) A notice may be revoked at any time by
the retransmitter by notice in writing given to the notice holder, and the
revocation takes effect on the date of the notice of revocation or on such later
date as is specified in it.
135ZZZA
Record keeping requirements
If a retransmitter gives a notice to the
notice holder under section 135ZZZ, sections 135ZZM and 135ZZN apply
as if:
(a) references to a collecting society
were references to the notice holder; and
(b) references to a remuneration
notice were references to a notice under section 135ZZZ.
135ZZZB
Effect of declaration of collecting society
(1) If:
(a) as a result of the declaration of
one or more collecting societies, there is a society for all relevant copyright
owners; and
(b) a notice under section 135ZZZ
was in force immediately before the day on which the declaration came into
force;
then, on and after that day, the notice ceases to have
effect as such a notice, but is taken, for the purposes of this Part, to be a
remuneration notice that:
(c) was given by the relevant
retransmitter to the collecting society, or to each of the collecting
societies, as the case may be; and
(d) came into force on the same day as
the notice came into force.
(2) If:
(a) one or more collecting societies
are declared for one or more, but not for all, classes of relevant copyright
owners; and
(b) a notice was in force immediately
before the day on which the declaration came into force;
then, on and after that day:
(c) the notice ceases to have effect
as such a notice in relation to the relevant copyright owners in the class or
classes of copyright owners for whom a collecting society is declared, but is
taken, for the purposes of this Part, to be a remuneration notice that:
(i) was given by the
relevant retransmitter to the collecting society or to each of the collecting
societies, as the case may be; and
(ii) came into force on the
same day as the notice came into force; and
(d) the notice continues to have
effect as such a notice in relation to all other relevant copyright owners.
(3) When a notice is, under this section,
taken to be a remuneration notice, the relevant retransmitter must cause copies
of all records made under section 135ZZN on or after the day on which the
notice is taken to have come into force to be sent to the relevant collecting
society within 21 days after the declaration of the collecting society.
Division 5—Miscellaneous
135ZZZC
Relevant copyright owner may authorise retransmitting
Nothing in this Part affects the right
of the owner of the copyright in a work, sound recording or cinematograph film
included in a free‑to‑air broadcast to grant a licence authorising
a retransmitter to make, or cause to be made, a retransmission of the free‑to‑air
broadcast without infringing that copyright.
135ZZZD
Copyright not to vest under this Part
Despite any other provision of this Act,
the retransmission of a free‑to‑air broadcast by, or on behalf of,
a retransmitter that is not an infringement of copyright under this Part, does
not vest copyright in any work or other subject‑matter in any person.
135ZZZE
Licence to retransmit does not authorise copyright infringements
The owner of the copyright in a free‑to‑air
broadcast is not taken, for the purpose of this Act, to have authorised the
infringement of copyright in any work, sound recording or cinematograph film
included in the broadcast merely because the owner licences the retransmission
of the broadcast.
Part VD—Re‑broadcasts by satellite BSA licensees
Division 1—Preliminary
135ZZZF
Definitions
In this Part:
collecting society means a body that is, for
the time being, declared to be a collecting society under section 135ZZZO.
commercial television broadcasting licence
has the same meaning as in the Broadcasting Services Act 1992.
eligible program has the meaning given by
section 135ZZZG.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
notice holder means the person who is, for
the time being, appointed to be the notice holder under section 135ZZZT.
original broadcaster has the meaning given by
section 135ZZZG.
relevant collecting society, in relation to a
remuneration notice, means a collecting society for owners of copyright in the
same kind of work or other subject‑matter as that to which the
remuneration notice relates.
relevant copyright owner means the owner of
the copyright in a work, a sound recording or a cinematograph film, but does
not include a new owner of the copyright in a sound recording of a live
performance within the meaning of Subdivision B of Division 5 of Part IV.
remuneration notice means a notice referred
to in section 135ZZZJ.
rules, in relation to a collecting society,
means the provisions of the memorandum and articles of association of the
society.
135ZZZG
Eligible program and original
broadcaster
(2) For the purposes of this Part, if the
following conditions are satisfied in relation to a program:
(a) the program is broadcast by the
licensee of a commercial television broadcasting licence for a regional licence
area (within the meaning of section 43AA of the Broadcasting Services
Act 1992);
(b) the licensee is required to
provide the program to a satellite BSA licensee under section 43AA of that
Act;
then:
(c) the program is an eligible
program; and
(d) the licensee mentioned in paragraph (a)
is the original broadcaster of the eligible program.
(3) For the purposes of this Part, if the
following conditions are satisfied in relation to a program:
(a) the program is broadcast by the
licensee of a commercial television broadcasting licence;
(b) the licensee is required to
provide the program to a satellite BSA licensee under section 43AB or 43AC
of the Broadcasting Services Act 1992;
then:
(c) the program is an eligible
program; and
(d) the licensee mentioned in paragraph (a)
is the original broadcaster of the eligible program.
135ZZZH
Operation of collecting society rules
This Part applies to a collecting
society despite anything in the rules of the society, but nothing in this Part
affects those rules so far as they can operate together with this Part.
Division 2—Re‑broadcasts by satellite BSA licensees
135ZZZI
Re‑broadcasts by satellite BSA licensees
Copyright in a work, sound recording or cinematograph
film included in an eligible program
(1) The copyright in a work, sound recording
or cinematograph film included in a broadcast of an eligible program is not
infringed by the re‑broadcast of the eligible program if:
(a) the eligible program is re‑broadcast
by a satellite BSA licensee; and
(b) the eligible program is re‑broadcast
on a service authorised by the satellite BSA licensee’s satellite BSA licence;
and
(c) the re‑broadcast of the
eligible program complies with the conditions of the satellite BSA licensee’s
satellite BSA licence that are set out in clause 7A of Schedule 2 to
the Broadcasting Services Act 1992; and
(d) a remuneration notice given by the
satellite BSA licensee to the relevant collecting society is in force; and
(e) the original broadcaster of the
eligible program was specified in the remuneration notice; and
(f) the satellite BSA licensee
complies with section 135ZZZL.
Copyright in a broadcast of an eligible program
(2) The copyright in a broadcast of an
eligible program is not infringed by the re‑broadcast of the eligible
program if:
(a) the eligible program is re‑broadcast
by a satellite BSA licensee; and
(b) the eligible program is re‑broadcast
on a service authorised by the satellite BSA licensee’s satellite BSA licence;
and
(c) the re‑broadcast of the
eligible program complies with the conditions of the satellite BSA licensee’s
satellite BSA licence that are set out in clause 7A of Schedule 2 to
the Broadcasting Services Act 1992; and
(d) any of the following conditions is
satisfied:
(i) there is an agreement
in force between the satellite BSA licensee and the owner of the copyright in
the broadcast of the eligible program as to the amount payable by the satellite
BSA licensee to the owner of the copyright for the re‑broadcast of eligible
programs during a particular period;
(ii) if there is no
agreement—there is in force a determination of the Copyright Tribunal under
section 153RA of the amount payable by the satellite BSA licensee to the
owner of the copyright in the broadcast of the eligible program for the re‑broadcast
of eligible programs during a particular period;
(iii) if there is no
agreement or determination—the satellite BSA licensee has given the owner of
the copyright in the broadcast of the eligible program a written undertaking to
pay to the owner of the copyright such amount as is determined by the Copyright
Tribunal under section 153RA for the re‑broadcast of eligible
programs during a particular period; and
(e) the eligible program is re‑broadcast
by the satellite BSA licensee during the period mentioned in whichever of subparagraphs (d)(i),
(ii) or (iii) applies.
Making a copy for the purpose of a re‑broadcast
(3) The copyright in a work, sound recording
or cinematograph film included in a broadcast of an eligible program is not
infringed by the making of a copy of the eligible program if:
(a) the sole purpose of making the
copy is to enable a re‑broadcast of the eligible program at a later time;
and
(b) subsection (1) would apply to
the re‑broadcast of the eligible program at the later time.
(4) The copyright in a broadcast of an
eligible program is not infringed by the making of a copy of the eligible
program if:
(a) the sole purpose of making the
copy is to enable a re‑broadcast of the eligible program at a later time;
and
(b) subsection (2) would apply to
the re‑broadcast of the eligible program at the later time.
(5) If:
(a) a copy of an eligible program is
made for a purpose referred to in subsection (3) or (4); and
(b) under a law of the Commonwealth, the
satellite BSA licensee is required to retain the copy for a period longer than
7 days after the copy is made; and
(c) the copy is not destroyed as soon
as practicable after the end of that period;
subsection (3) or (4), as the case requires, does not
apply, and is taken never to have applied, in relation to the making of the
copy.
(5A) If:
(a) a copy of an eligible program is
made for a purpose referred to in subsection (3) or (4); and
(b) subsection (5) does not
apply; and
(c) the copy is not destroyed within 7
days after it is made;
subsection (3) or (4), as the case requires, does not
apply, and is taken never to have applied, in relation to the making of the
copy.
(6) In this section, a reference to the making
of a copy of an eligible program is a reference to making a
cinematograph film or sound recording of the broadcast of the eligible program,
or a copy of such a film or sound recording.
135ZZZJ
Remuneration notices
(1) A satellite BSA licensee may, by written
notice given to the relevant collecting society, undertake to pay equitable
remuneration to the society for re‑broadcasts of eligible programs
broadcast by specified original broadcasters, where the eligible programs are
re‑broadcast by the satellite BSA licensee while the notice is in force.
(2) A remuneration notice must specify that
the amount of equitable remuneration is to be assessed on the basis of the
records to be kept by the satellite BSA licensee under section 135ZZZL.
(3) A remuneration notice comes into force
on:
(a) the day on which it is given to
the collecting society; or
(b) such earlier day as is specified
in the notice;
and remains in force until it is revoked.
135ZZZK
Amount of equitable remuneration
(1) If a satellite BSA licensee gives a
remuneration notice to a collecting society, the amount of equitable
remuneration payable to the collecting society for re‑broadcasts of
eligible programs by the satellite BSA licensee while the notice is in force is
the amount:
(a) determined by agreement between
the satellite BSA licensee and the collecting society; or
(b) failing such agreement—determined
by the Copyright Tribunal on application made by either of them.
(2) If a determination has been made by the
Copyright Tribunal under subsection (1), either:
(a) the satellite BSA licensee; or
(b) the collecting society;
may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that subsection for a new
determination of amounts payable to the collecting society by the satellite BSA
licensee for re‑broadcasts of eligible programs by the satellite BSA
licensee.
(3) For the purposes of subsection (1),
different amounts may be determined (whether by agreement or by the Copyright
Tribunal) in relation to different classes of:
(a) works; or
(b) sound recordings; or
(c) cinematograph films;
included in re‑broadcasts.
135ZZZL
Record system
(1) If a remuneration notice is given to a
collecting society by a satellite BSA licensee, the satellite BSA licensee must
establish and maintain a record system.
(2) The record system must provide:
(a) for a record to be kept of the
title of each eligible program that is:
(i) broadcast by an
original broadcaster specified in the remuneration notice; and
(ii) re‑broadcast by
the satellite BSA licensee; and
(b) for the collecting society to have
access to such a record.
(3) The record
system must be:
(a) determined by agreement between
the satellite BSA licensee and the collecting society; or
(b) failing such agreement—determined
by the Copyright Tribunal on application made by either of them.
(4) Subsection (3) has effect subject to
subsection (2).
135ZZZM
Revocation of remuneration notice
(1) A remuneration notice may be revoked at
any time by the relevant satellite BSA licensee by written notice given to the
collecting society to which the remuneration notice was given.
(2) The revocation takes effect:
(a) at the end of 3 months after the
date of the notice; or
(b) on such later day as is specified
in the notice.
135ZZZN
Request for payment of equitable remuneration
(1) If a remuneration notice is or has been
in force, the collecting society to which the notice was given may, by written
notice given to the relevant satellite BSA licensee, request the satellite BSA
licensee to pay to the society, within a reasonable time after the date of the
notice, the amount of equitable remuneration specified in the notice.
(2) The amount specified in the notice must
be an amount payable under section 135ZZZK for re‑broadcasts made by
the satellite BSA licensee while the remuneration notice is or was in force.
(3) Subsection (1) has effect subject to
subsection (4).
(4) If an amount specified in a request under
subsection (1) is not paid in accordance with the request, it may be
recovered from the satellite BSA licensee by the collecting society in:
(a) the Federal Court of Australia; or
(b) any other court of competent
jurisdiction;
as a debt due to the society.
Division 3—Collecting societies
135ZZZO
Collecting societies
(1) A body may apply to the Minister to be
declared as a collecting society for:
(a) all relevant copyright owners; or
(b) specified classes of relevant
copyright owners.
(2) After receiving the application, the
Minister must do one of the following:
(a) by notice published in the Gazette,
declare the body to be a collecting society;
(b) refuse to declare the body to be a
collecting society;
(c) both:
(i) refer the application
to the Copyright Tribunal in the way prescribed by the regulations; and
(ii) notify the body of
the referral.
(3) A declaration made under paragraph (2)(a)
is not a legislative instrument.
(4) If the Minister refers the application to
the Copyright Tribunal, the Tribunal may declare the body to be a collecting
society.
Note: Section 153U sets out the procedure of
the Copyright Tribunal in dealing with the reference.
(5) A declaration of the body as a collecting
society must declare the body to be:
(a) the collecting society for all
relevant copyright owners; or
(b) the collecting society for classes
of relevant copyright owners specified in the declaration.
(6) If:
(a) a body is declared to be the
collecting society for a specified class of copyright owners; and
(b) another body is subsequently
declared to be the collecting society for that class of copyright owners:
then:
(c) the first‑mentioned
collecting society ceases to be the collecting society for that class of
copyright owners on the day on which the subsequent declaration is made; and
(d) any remuneration notice given to
that collecting society ceases to be in force to the extent to which it relates
to relevant copyright owners included in that class of copyright owners.
(7) The Minister and the Copyright Tribunal
must not declare a body to be a collecting society unless:
(a) it is:
(i) registered as a
company under Part 2A.2 of the Corporations Act 2001; and
(ii) a company limited by
guarantee; and
(b) all persons who are included in a
class of relevant copyright owners to be specified in the declaration, or their
agents, are entitled to become its members; and
(c) its rules prohibit the payment of
dividends to its members; and
(d) its rules contain such other
provisions as are prescribed, where the provisions are necessary to ensure that
the interests of members of the collecting society who are relevant copyright
owners, or their agents, are protected adequately, including, in particular,
provisions about:
(i) the collection of
amounts of equitable remuneration payable under section 135ZZZK; and
(ii) the payment of the
administrative costs of the collecting society out of amounts collected by it;
and
(iii) the distribution of
amounts collected by the collecting society; and
(iv) the holding on trust by
the collecting society of amounts for relevant copyright owners who are not its
members; and
(v) access to records of
the collecting society by its members.
(8) If the Minister or the Copyright Tribunal
has declared a body to be the collecting society for a specified class of
copyright owners, the Minister and the Copyright Tribunal may refuse to declare
another body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those copyright
owners, having regard to:
(a) the number of members of the first‑mentioned
society; and
(b) the scope of its activities; and
(c) such other considerations as are
relevant.
135ZZZP
Revocation of declaration
(1) This section applies if the Minister is
satisfied that a body declared as a collecting society:
(a) is not functioning adequately as a
collecting society; or
(b) is not acting in accordance with
its rules or in the best interests of those of its members who are relevant
copyright owners, or their agents; or
(c) has altered its rules so that they
no longer comply with paragraphs 135ZZZO(7)(c) and (d); or
(d) has refused or failed, without
reasonable excuse, to comply with section 135ZZZQ or 135ZZZR.
(2) The Minister may:
(a) by notice published in the Gazette,
revoke the declaration; or
(b) refer the question whether the
declaration should be revoked to the Copyright Tribunal in the way prescribed
by the regulations.
(3) If the Minister refers the question to
the Copyright Tribunal, the Tribunal may revoke the declaration if it is
satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the
body.
Note: Section 153V sets out the procedure of
the Copyright Tribunal in dealing with the reference.
135ZZZQ
Annual report and accounts
(1) A collecting society must, as soon as
practicable after the end of each financial year, prepare a report of its
operations during that financial year and send a copy of the report to the
Minister.
(2) The Minister must cause a copy of the
report sent to the Minister under subsection (1) to be tabled in each
House of the Parliament within 15 sitting days of that House after the receipt
of the report by the Minister.
(3) A collecting society must keep accounting
records correctly recording and explaining:
(a) the transactions of the society
(including any transactions as trustee); and
(b) the financial position of the
society.
(4) The accounting records must be kept in
such a manner as will enable:
(a) true and fair accounts of the
society to be prepared from time to time; and
(b) those accounts to be conveniently
and properly audited.
(5) A collecting society must, as soon as
practicable after the end of each financial year:
(a) cause its accounts to be audited
by an auditor who is not a member of the society; and
(b) send to the Minister a copy of its
accounts as so audited.
(6) A collecting society must give its
members reasonable access to copies of all reports and audited accounts
prepared by it under this section.
(7) This section does not affect any
obligations of a collecting society relating to the preparation and lodging of
annual returns or accounts under the Corporations Act 2001.
(8) For the purposes of this section, the
period:
(a) beginning at the commencement of
this section; and
(b) ending at the end of 30 June
2010;
is taken to be a financial year.
135ZZZR
Amendment of rules
A collecting society must, within 21
days after it alters its rules, send a copy of the rules as so altered to the
Minister, together with a statement setting out:
(a) the effect of the alteration; and
(b) the reasons why it was made.
135ZZZS
Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a
collecting society may apply to the Copyright Tribunal for review of the
arrangement adopted, or proposed to be adopted, by the collecting society for
distributing amounts it collects in a period.
(2) If the Tribunal makes an order under
section 153W varying the arrangement or substituting for it another
arrangement, the arrangement reflecting the Tribunal’s order has effect as if
it had been adopted in accordance with the collecting society’s rules, but does
not affect a distribution started before the order was made.
Division 4—Interim re‑broadcasts
135ZZZT
Appointment of notice holder
The Minister may, by notice published in
the Gazette, appoint a person to be the notice holder for the purposes
of this Division.
135ZZZU
Re‑broadcast before declaration of collecting society
The copyright in a work, sound recording
or cinematograph film included in a broadcast of an eligible program is not
infringed by the re‑broadcast of the eligible program if:
(a) the eligible program is re‑broadcast
by a satellite BSA licensee; and
(b) the eligible program is re‑broadcast
on a service authorised by the satellite BSA licensee’s satellite BSA licence;
and
(c) the re‑broadcast of the
eligible program complies with the conditions of the satellite BSA licensee’s
satellite BSA licence that are set out in clause 7A of Schedule 2 to
the Broadcasting Services Act 1992; and
(d) at the time the re‑broadcast
is made, a collecting society has not been declared; and
(e) a notice given by the satellite
BSA licensee to the notice holder under subsection 135ZZZV(1) is in force; and
(f) the satellite BSA licensee
complies with section 135ZZZL.
135ZZZV
Notices by satellite BSA licensees
(1) A satellite BSA licensee may, at any time
before the declaration of the first collecting society, by written notice given
to the notice holder by the satellite BSA licensee, undertake to pay equitable
remuneration to a collecting society, when it is declared, for re‑broadcasts
of eligible programs by the satellite BSA licensee while the notice is in
force.
(2) A notice must specify that the amount of
equitable remuneration is to be assessed on the basis of the records to be kept
by the satellite BSA licensee under section 135ZZZL.
(3) A notice comes into force on:
(a) the day on which it is given to
the notice holder; or
(b) such later day as is specified in
the notice;
and remains in force until it is revoked.
(4) A notice may be revoked at any time by
the satellite BSA licensee by written notice given to the notice holder.
(5) The revocation takes effect:
(a) on the date of the notice of
revocation; or
(b) on such later date as is specified
in the notice of revocation.
135ZZZW
Record keeping requirements
If a satellite BSA licensee gives a
notice to the notice holder under section 135ZZZV, sections 135ZZZK
and 135ZZZL apply as if:
(a) references to a collecting society
were references to the notice holder; and
(b) references to a remuneration
notice were references to a notice under section 135ZZZV.
135ZZZX
Effect of declaration of collecting society
(1) If:
(a) as a result of the declaration of
one or more collecting societies, there is a society for all relevant copyright
owners; and
(b) a notice under section 135ZZZV
was in force immediately before the day on which the declaration came into
force;
then, on and after that day, the notice ceases to have
effect as such a notice, but is taken, for the purposes of this Part, to be a
remuneration notice that:
(c) was given by the relevant
satellite BSA licensee to the collecting society, or to each of the collecting
societies, as the case may be; and
(d) came into force on the same day as
the notice came into force.
(2) If:
(a) one or more collecting societies
are declared for one or more, but not for all, classes of relevant copyright
owners; and
(b) a notice was in force immediately
before the day on which the declaration came into force;
then, on and after that day:
(c) the notice ceases to have effect
as such a notice in relation to the relevant copyright owners in the class or
classes of copyright owners for whom a collecting society is declared, but is
taken, for the purposes of this Part, to be a remuneration notice that:
(i) was given by the
relevant satellite BSA licensee to the collecting society or to each of the
collecting societies, as the case may be; and
(ii) came into force on the
same day as the notice came into force; and
(d) the notice continues to have
effect as such a notice in relation to all other relevant copyright owners.
(3) When a notice is, under this section,
taken to be a remuneration notice, the relevant satellite BSA licensee must
cause copies of all records made under section 135ZZZL on or after the day
on which the notice is taken to have come into force to be sent to the relevant
collecting society within 21 days after the declaration of the collecting
society.
Division 5—Miscellaneous
135ZZZY
Relevant copyright owner may authorise re‑broadcast
(1) Nothing in this Part affects the right of
the owner of the copyright in a broadcast of an eligible program to grant a
licence authorising a satellite BSA licensee to re‑broadcast the eligible
program without infringing that copyright.
(2) Nothing in this Part affects the right of
the owner of the copyright in a work, sound recording or cinematograph film
included in a broadcast of an eligible program to grant a licence authorising a
satellite BSA licensee to re‑broadcast the eligible program without
infringing that copyright.
135ZZZZ
Copyright not to vest under this Part
Despite any other provision of this Act,
the re‑broadcast of an eligible program that is not an infringement of
copyright under this Part does not vest copyright in any work or other subject‑matter
in any person.
135ZZZZA
Licence to re‑broadcast does not authorise copyright infringements
The owner of the copyright in a
broadcast of an eligible program is not taken, for the purposes of this Act, to
have authorised the infringement of copyright in any work, sound recording or
cinematograph film included in the broadcast of the eligible program merely
because the owner licenses the re‑broadcast of the eligible program.
Part VI—Copyright Tribunal of Australia
Division 1—Preliminary
136
Interpretation
(1) In this Part, unless the contrary
intention appears:
Deputy President means a Deputy President of
the Tribunal.
Judge means:
(a) a Judge of a federal court or of
the Supreme Court of a State or Territory; or
(b) a person who has the same
designation and status as a Judge of a federal court.
licence means a licence granted by or on
behalf of the owner or prospective owner of the copyright in a work or other
subject‑matter to do an act comprised in the copyright.
licence scheme means a scheme (including
anything in the nature of a scheme, whether called a scheme or tariff or called
by any other name) formulated by a licensor or licensors and setting out the
classes of cases in which the licensor or each of the licensors is willing, or
the persons on whose behalf the licensor or each of the licensors acts are
willing, to grant licences and the charges (if any) subject to payment of
which, and the conditions subject to which, licences would be granted in those
classes of cases.
licensor means a body corporate for which
both the following conditions are met:
(a) the body is incorporated under a
law in force in a State or Territory relating to companies;
(b) the body’s constitution:
(i) entitles any owner of
copyright, or any owner of copyright of a specified kind, to become a member of
the body; and
(ii) requires the body to
protect the interests of its members connected with copyright; and
(iii) provides that the main
business of the body is granting licences; and
(iv) requires the body to
distribute to its members the proceeds (after deduction of the body’s
administrative expenses) from payments to the body for licences; and
(v) prevents the body from
paying dividends.
member means a member of the Tribunal, and
includes the President and a Deputy President.
order includes an interim order.
organization means an organization or
association of persons whether corporate or unincorporate.
the President means the President of the
Tribunal.
(2) In this Part:
(a) a reference to conditions is a
reference to any conditions other than conditions relating to the payment of a
charge;
(b) a reference to giving an
opportunity to a person or organization of presenting a case is a reference to
giving the person or organization an opportunity, at the option of the person
or organization, of submitting representations in writing, or of being heard,
or of submitting representations in writing and being heard;
(c) a reference to a person who
requires a licence of a particular kind includes a reference to a person who
holds a licence of that kind if the person will, at the expiration of the
period for which the licence was granted, require a renewal of that licence or
a grant of a further licence of the same kind; and
(d) a reference to proceedings for
infringement of copyright includes a reference to a prosecution of an offence
against Subdivision D of Division 5 of Part V.
(3) For the purposes of this Part, a person
shall not be taken not to require a licence to cause a sound recording to be
heard in public by reason only of the operation of section 108.
137
Cases to which licence schemes apply
(1) For the
purposes of this Part, a case shall, subject to the next succeeding subsection,
be deemed to be a case to which a licence scheme applies if, in accordance with
a licence scheme for the time being in operation, a licence would be granted in
that case.
(2) For the purposes of this Part, where, in
accordance with a licence scheme:
(a) the licences that would be granted
would be subject to conditions by virtue of which particular matters would be
excepted from the licences; and
(b) a
case relates to one or more matters falling within such an exception;
that case shall be deemed not to be a case to which the
scheme applies.
Division 2—Constitution of the Tribunal
138
Constitution of Tribunal
The Copyright Tribunal established by
the section for which this section was substituted by section 138 of the Statute
Law (Miscellaneous Amendments) Act (No. 1) 1982 continues in existence
as the Copyright Tribunal of Australia but shall consist of a President, and
such number of Deputy Presidents and other members as are appointed in
accordance with this Division.
139
Appointment of members of Tribunal
A member of the Tribunal shall be
appointed by the Governor‑General.
140
Qualifications of members
(1) A person shall not be appointed as the
President unless he or she is a Judge of the Federal Court of Australia.
(1A) A person is not to be appointed as a Deputy
President unless he or she is, or has been, a Judge of a federal court or of
the Supreme Court of a State or Territory.
(2) A person shall not be appointed as a
member (other than the President or a Deputy President) unless:
(a) he or she is or has been a Judge;
(b) he or she is enrolled as a legal
practitioner of the High Court, of another federal court or of the Supreme
Court of a State or Territory and has been so enrolled for not less than 5
years;
(c) he or she has had experience, for
not less than 5 years, at a high level in industry, commerce, business, public
administration, education or the practice of a profession;
(d) he or she has obtained a degree of
a university, or an educational qualification of a similar standing, after
studies in the field of law, economics or public administration; or
(e) he or she has, in the opinion of
the Governor‑General, special knowledge or skill relevant to the duties
of a member.
141
Tenure of office
(1) Subject to this section, a member holds
office for such period, not exceeding 7 years, as is specified in the
instrument of his or her appointment, but is eligible for re‑appointment.
(2) Where a member who is a Judge ceases to
be a Judge, he or she ceases to hold office as a member, but he or she is eligible
for appointment as a member (other than the President).
(3) The Governor‑General may terminate
the appointment of a member (other than a member who is a Judge) for physical
or mental incapacity.
(4) The Governor‑General shall
terminate the appointment of a member (other than a member who is a Judge) if:
(a) the member is guilty of
misbehaviour; or
(b) the member becomes bankrupt,
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors, compounds with his or her creditors or makes an assignment of his or
her remuneration for their benefit.
141A
Seniority of Deputy Presidents
(1) The Deputy Presidents have seniority as
Deputy Presidents according to the dates of their first appointment to the
Tribunal, or, if 2 or more Deputy Presidents were appointed on the same day,
according to the precedence assigned to them in their instruments of
appointment.
(2) At any time when only one person is
holding office as a Deputy President, any reference in this Part to ‘the senior
Deputy President’ is to be taken to be a reference to the Deputy President.
142
Acting President
The
Governor‑General may appoint the senior Deputy President available to act
in the office of President:
(a) during
a vacancy in that office; or
(b) during any period when the person
holding that office is absent from duty or from Australia or is, for any other
reason, unable to perform the functions of that office.
143
Remuneration and allowances
(1) Subject to this section, a member shall
be paid such remuneration as is determined by the Remuneration Tribunal but, if
no determination of that remuneration by the Tribunal is in operation, the
member shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as
are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
(4) A member who is a Judge is not, while he
or she receives salary or annual allowance as a Judge, entitled to remuneration
under this Act.
144
Oath or affirmation of office
(1) A member shall, before proceeding to
discharge the duties of his or her office, take an oath or make an affirmation
in accordance with the form of oath or affirmation in the Schedule to this Act.
(2) An oath or affirmation shall be taken or
made before a justice or judge of a federal court or of the Supreme Court of a
State.
144A
Disclosure of interests by members
(1) Where a member is, or is to be, the
Tribunal, or a member of the Tribunal, as constituted for the purposes of a
proceeding and the member has or acquires any interest, pecuniary or otherwise,
that could conflict with the proper performance of his or her functions in
relation to that proceeding:
(a) he or she shall disclose the
interest to the parties to the proceeding; and
(b) except with the consent of all the
parties to the proceeding, he or she shall not take part in the proceeding.
(2) Where the President becomes aware that a
member is, or is to be, the Tribunal, or a member of the Tribunal, as
constituted for the purposes of a proceeding and that the member has, in
relation to that proceeding, such an interest as is mentioned under subsection (1):
(a) if the President considers that
the member should not take part, or should not continue to take part, in the
proceeding—he or she shall give a direction to the member accordingly; or
(b) in any other case—he or she shall
cause the interest of the member to be disclosed to the parties to the
proceeding.
(3) In this section:
(a) a reference to a proceeding shall
be read as a reference to a proceeding by way of an inquiry by, or an
application or reference to, the Tribunal under this Act; and
(b) a reference to a party to a
proceeding, being an inquiry conducted by the Tribunal in pursuance of section 148,
shall be read as a reference to a person or organization recognized by the
Tribunal as a party to the inquiry.
144B
Removal from office for failure to disclose interest
Where the Governor‑General is
satisfied that a member (other than a member who is a Judge) has failed,
without reasonable excuse, to make a disclosure that he or she is, under
subsection 144A(1), required to make, the Governor‑General shall remove
that member from office.
145
Resignation
A member may resign the office of member
by giving a signed notice of resignation to the Governor‑General.
146
Sittings of the Tribunal
(1) Sittings of the Tribunal shall be held at
such places and times as the President determines.
(2) Subject to the next succeeding
subsection, the Tribunal shall be constituted by a single member.
(3) If a party to an application or reference
requests that the Tribunal be constituted by more than one member for the
purposes of the application or reference, the Tribunal must, for the purposes
of the application or reference, be constituted by not less than 2 members of
whom one must be the President or a Deputy President.
(3A) Nothing in subsection (3) prevents a
single member from exercising the powers of the Tribunal in relation to matters
of procedure.
(4) At a proceeding before the Tribunal
constituted by more than one member:
(a) if the President is one of the
members constituting the Tribunal—he or she shall preside; and
(b) in any other case—the senior
Deputy President who is present is to preside.
(5) Where the Tribunal constituted by more
than one member is divided in opinion on a question, the question shall be
decided according to the decision of the majority, if there is a majority, but
if the Tribunal as so constituted is equally divided in opinion, the question shall
be decided according to the opinion of the President or, if he or she is not
one of the members constituting the Tribunal, according to the opinion of the
senior Deputy President who is present.
(6) The
Tribunal constituted by a member or members may sit and exercise the powers of
the Tribunal notwithstanding that the Tribunal constituted by another member or
other members is at the same time sitting and exercising those powers.
(7) The exercise of the powers of the
Tribunal is not affected by a vacancy or vacancies in the membership of the
Tribunal.
(8) Where the hearing of any proceeding has
been commenced before the Tribunal constituted by 2 or more members and one or
more of those members has ceased to be a member or has ceased to be available
for the purposes of the proceeding, the remaining member or members may
continue the hearing of the proceeding if the remaining member, or one of the
remaining members, is the President or a Deputy President.
147
President to arrange business of Tribunal
The President may give directions as to
the arrangement of the business of the Tribunal and, subject to subsection
146(2) or (3), as to the constitution of the Tribunal for the purposes of
particular proceedings.
Division 3—Applications and references to the Tribunal
Subdivision A—Preliminary
148
Interpretation
In this Division:
copyright material, government and government
copy have the same meanings as in Division 2 of Part VII.
Subdivision B—Applications relating to Parts III and IV
149
Applications to Tribunal for determination of remuneration payable for making
recording or film of a work
(1) This section applies where an application
is made to the Tribunal in pursuance of subsection 47(3) or 70(3) for the
determination of an equitable remuneration to be paid to the owner of the
copyright in a work for the making of a sound recording or cinematograph film
of the work or of an adaptation of the work.
(2) The parties to an application in relation
to which this section applies are:
(a) the owner of the copyright in the
work; and
(b) the maker of the recording or
film.
(3) Where an application in relation to which
this section applies is made to the Tribunal, the Tribunal shall consider the
application and, after giving to the parties to the application an opportunity
of presenting their cases, shall make an order determining the amount that it
considers to be equitable remuneration to the owner of the copyright for the
making of the recording or film.
149A
Applications to Tribunal under section 47A
(1) This section applies to any application
made to the Tribunal under subsection 47A(8) for the determining of an amount
payable by a person or body by way of equitable remuneration to an owner of
copyright.
(2) The parties to an application to which this
section applies are the person or body, and the owner of the copyright,
referred to in subsection (1).
(3) Where an application to which this
section applies is made to the Tribunal, the Tribunal shall consider the
application and, after giving the parties to the application opportunities of
presenting their cases, shall make an order determining the amount that it
considers to be payable by the person or body by way of equitable remuneration
to the owner of the copyright.
150
Applications to Tribunal for determination of remuneration payable to owner of
copyright in recording for making of a copy of the sound recording
(1) This section applies where an application
is made to the Tribunal in pursuance of subsection 107(3) for the determination
of an equitable remuneration to be paid to the owner of the copyright in a
sound recording for the making of a copy of the sound recording.
(2) The parties to an application in relation
to which this section applies are:
(a) the owner of the copyright in the
sound recording; and
(b) the maker of the copy of the sound
recording.
(3) Where an application in relation to which
this section applies is made to the Tribunal, the Tribunal shall consider the
application and, after giving to the parties to the application an opportunity
of presenting their cases, shall make an order determining the amount that it
considers to be equitable remuneration to the owner of the copyright for the
making of the copy of the sound recording.
151
Applications to Tribunal for determination of remuneration payable to owner of
copyright in recording in respect of public playing of the recording
(1) This section applies where an application
is made to the Tribunal in pursuance of subsection 108(1) for the determination
of an equitable remuneration to be paid to the owner of the copyright in a
sound recording for the causing of the recording to be heard in public.
(2) The parties to an application in relation
to which this section applies are:
(a) the owner of the copyright in the
recording; and
(b) the person who caused the
recording to be heard in public.
(3) Where an application in relation to which
this section applies is made to the Tribunal, the Tribunal shall consider the
application and, after giving to the parties to the application an opportunity
of presenting their cases, shall make an order determining the amount that it
considers to be equitable remuneration to the owner of the copyright for the
causing of the recording to be heard in public.
152
Applications to Tribunal for determination of amounts payable for broadcasting
published sound recordings
(1) In this
section, unless the contrary intention appears:
Australia does not include the external
Territories.
broadcaster means:
(a) the Australian Broadcasting
Corporation; or
(aa) the Special Broadcasting Service
Corporation; or
(b) the holder of a licence allocated
by the Australian Communications and Media Authority under the Broadcasting
Services Act 1992; or
(c) a person making a broadcast under
the authority of a class licence determined by the Australian Communications
and Media Authority under the Broadcasting Services Act 1992.
broadcasting does not include broadcasting by
a transmission for a fee payable to the person who made the broadcast.
(1A) For the purposes of the application of this
section in relation to a period before the commencement of this subsection,
this section has effect as if any act or thing done during that period by the
Australian Broadcasting Commission had been done by the Australian Broadcasting
Corporation and any earnings of the Australian Broadcasting Commission during
that period were earnings of the Australian Broadcasting Corporation.
(1B) In its application in relation to a period
before the commencement of this subsection, this section has effect as if any
act or thing done during that period by the Special Broadcasting Service had
been done by the Special Broadcasting Service Corporation and any earnings of
the Special Broadcasting Service during that period were earnings of the Special
Broadcasting Service Corporation.
(2) Subject to this section, an application
may be made to the Tribunal for an order determining, or making provision for
determining, the amount payable by a broadcaster to the owners of copyrights in
published sound recordings in respect of the broadcasting, during a period
specified in the application, of those recordings by that broadcaster.
(3) An application under the last preceding
subsection may be made by the broadcaster or by the owner of a copyright in a
published sound recording.
(4) The parties to an application under subsection (2)
are:
(a) the person making the application;
and
(b) such organizations or persons as
apply to the Tribunal to be made parties to the application and, in accordance
with the next succeeding subsection, are made parties to the application.
(5) Where an organization (whether claiming
to be representative of broadcasters or of the owners of copyrights in
published sound recordings or not) or a person (whether a broadcaster or the
owner of a copyright in a published sound recording or not) applies to the
Tribunal to be made a party to an application under this section, and the
Tribunal is satisfied that the organization or person has a substantial
interest in the matter that is the subject of the application, the Tribunal
may, if it thinks fit, make that organization or person a party to the
application.
(6) The Tribunal shall consider an
application under subsection (2) and, after giving the parties to the
application an opportunity of presenting their cases, shall make an order:
(a) determining, or making provision
for determining, the amount payable by the broadcaster to the owners of
copyrights in published sound recordings in respect of the broadcasting, during
the period to which the order applies, by the broadcaster of those recordings;
(b) specifying
as the persons among whom that amount is to be divided such of the persons who
were, or were represented by, parties to the application as the Tribunal is
satisfied are the owners of copyrights in published sound recordings; and
(c) specifying as the respective
shares in that amount of the persons among whom that amount is to be divided
and as the times at which those shares are to be paid such shares and times as
those persons agree or, in default of agreement, as the Tribunal thinks
equitable.
(7) In so making an order in relation to a
broadcaster, the Tribunal shall take into account all relevant matters,
including the extent to which the broadcaster uses, for the purposes of
broadcasting, records embodying sound recordings (other than recordings in
relation to which section 105 applies) in which copyrights subsist, being
copyrights owned by persons who are, or are represented by, parties to the
application.
(8) The Tribunal
must not make an order that would require a broadcaster who is:
(a) the holder of a licence allocated
by the Australian Communications and Media Authority under the Broadcasting
Services Act 1992 that authorises the holder to broadcast radio programs;
or
(b) a person authorised by a class
licence determined by that Authority under that Act to broadcast radio
programs;
to pay, in respect of the broadcasting of published sound
recordings during the period covered by the order, an amount exceeding 1% of
the amount determined by the Tribunal to be the gross earnings of the
broadcaster during the period equal to the period covered by the order that
ended on the last 30 June that occurred before the period covered by the
order.
(9) If a
broadcaster that is:
(a) the holder of a licence allocated
by the Australian Communications and Media Authority under the Broadcasting
Services Act 1992 that authorises the holder to broadcast radio programs;
or
(b) a person authorised by a class
licence determined by that Authority under that Act to broadcast radio
programs;
has, with the permission of that Authority, adopted an
accounting period ending on a day other than 30 June, the reference in subsection (8)
to 30 June is, in relation to that broadcaster, a reference to that other
day.
(10) Subsection (8) does not apply to an
order in relation to a broadcaster unless:
(a) the broadcaster establishes to the
satisfaction of the Tribunal the amount of the gross earnings of the
broadcaster during the period in respect of which those earnings are to be
determined; and
(b) the broadcaster carried on the
transmission of programmes by way of sound broadcasting throughout the whole of
that period.
(11) Where an application is made to the
Tribunal under subsection (2) in relation to the Australian Broadcasting
Corporation, the Tribunal:
(a) shall make separate orders in
respect of sound broadcasts by the Corporation of published sound recordings
and in respect of television broadcasts by the Corporation of such recordings;
and
(b) shall not make an order that would
require the Corporation to pay, in respect of sound broadcasts of published
sound recordings during the period in relation to which the order applies, an
amount exceeding the sum of:
(i) in respect of each
complete year included in that period the amount ascertained by multiplying one‑half
of One cent by the number equal to the number of persons comprised in the
estimated population of Australia as last set out in statistics published by
the Commonwealth Statistician before the making of the order; and
(ii) in respect of each
part of a year included in that period—the amount that bears to the amount
ascertained in accordance with the last preceding subparagraph in relation to a
complete year the same proportion as that part of a year bears to a complete
year.
(12) A person who is not specified in an order
in force under subsection (6) as one of the persons among whom the amount
specified in, or determined in accordance with, the order is to be divided may,
before the expiration of the period to which the order applies, apply to the
Tribunal for an amendment of the order so as to specify him or her as one of
those persons.
(13) The parties to an application under the
last preceding subsection for an amendment of an order are:
(a) the person making the application;
(b) the broadcaster in relation to
whom the order applies;
(c) the persons specified in the order
as the persons among whom the amount specified in, or determined in accordance
with, the order is to be divided; and
(d) such organizations or persons as
apply to the Tribunal to be made parties to the application and, in accordance
with subsection (5), are made parties to the application.
(14) The Tribunal shall consider an application
under subsection (12) for an amendment of an order in force under subsection (6)
(in this subsection referred to as the principal order) and,
after giving the parties to the application an opportunity of presenting their
cases, shall, if it is satisfied that the applicant is the owner of the
copyright or copyrights in one or more published sound recordings, make an
order amending the principal order so as to:
(a) specify the applicant as one of
the persons among whom the amount specified in, or determined in accordance
with, the principal order is to be divided; and
(b) specify as the share of the
applicant in that amount and as the times at which that share is to be paid
such share and times as the applicant and the other persons among whom that
amount is to be divided agree or, in default of agreement, as the Tribunal
thinks equitable and make any consequential alterations in respect of the
shares of those other persons.
(15) An order of the Tribunal made under subsection (6)
in relation to a broadcaster applies in relation to the period commencing on
the date specified in the order and ending on 30 June next succeeding the
date of making of the order.
(16) The date that may be so specified in an
order of the Tribunal made under subsection (6) in relation to a
broadcaster may be a date before the date of making of the order or before the
date of making of the application but shall not be a date before the date of
expiration of the period in relation to which the last preceding order (if any)
of the Tribunal made under that subsection in relation to that broadcaster
applied or before the date of commencement of this Act.
(17) An order of the Tribunal made under subsection (14)
amending an order of the Tribunal made under subsection (6) applies in
relation to the period commencing on the date of making of the amending order
and ending on the date of expiration of the period in relation to which the
order that is being amended applies.
(18) Where an order of the Tribunal is in force
under this section, the broadcaster in relation to whom the order applies is
liable to pay to each of the persons specified in the order as the persons
among whom the amount specified in, or determined in accordance with, the order
is to be divided the share so specified in relation to that person and is so
liable to pay that share at the times so specified and that person may recover
any amount that is not paid in accordance with the order in a court of
competent jurisdiction from the broadcaster as a debt due to the person.
(19) For the purposes of this section, the
gross earnings of a broadcaster in respect of a period are the gross earnings
of the broadcaster during that period in respect of the broadcasting by the
broadcaster of advertisements or other matter, including the gross earnings of
the broadcaster during that period in respect of the provision by the
broadcaster of, or otherwise in respect of, matter broadcast by the
broadcaster.
(20) Where, in connexion with a transaction,
any consideration is paid or given otherwise than in cash, the money value of
that consideration shall, for the purposes of the last preceding subsection, be
deemed to have been paid or given.
(21) Where the Tribunal is of the opinion that:
(a) an amount, or part of an amount,
earned during any period by a person other than a broadcaster would, if the
broadcaster and that person were the same person, form part of the gross
earnings of the broadcaster in respect of that period for the purposes of this
section; and
(b) a relationship exists between the
broadcaster and the other person (whether by reason of any shareholding or of
any agreement or arrangement, or for any other reason) of such a kind that the
amount or the part of the amount, as the case may be, should, for the purposes
of this section, be treated as part of the gross earnings of the broadcaster in
respect of that period;
the Tribunal may so treat the amount or the part of the
amount, as the case may be.
152A
Applications to Tribunal for determination of amount of royalty payable for
recording musical works
(1) In this section:
manufacturer has the same meaning as in
section 55.
(2) Subject to this section, an application
may be made to the Tribunal for an order determining, or making provision for
determining, the amount of royalty payable by the manufacturer of a record of a
musical work to the owner of the copyright in the work during a period
specified in the application.
(3) An application may be made by the
manufacturer or the owner of the copyright in the musical work recorded by the
manufacturer.
(4) The parties to an application are:
(a) the manufacturer and the owner of
the copyright in the musical work; and
(b) any organisations or persons who
are made parties to the application.
(5) Where an application is made under subsection (2),
the Tribunal shall consider the application and, after giving the parties an
opportunity of presenting their cases, make an order determining, or making
provision for determining, an equitable amount of royalty payable by the
manufacturer of the record of the musical work to the owner of the copyright in
the work during the period specified in the order.
(6) Where an organisation (whether claiming
to represent manufacturers or the owners of copyrights in musical works or not)
or a person (whether a manufacturer or the owner of the copyright in a musical
work or not) applies to the Tribunal to be made a party to an application under
this section, the Tribunal may, if it thinks fit, make that organisation or
person a party to the application if the Tribunal is satisfied that the
organisation or person has a substantial interest in the application.
(7) The period
that may be specified in an order under subsection (5) in relation to a
manufacturer may be a period beginning before the date of making of the order
or before the date of making of the application but shall not be a period
beginning before:
(a) the end of the period specified in
the last preceding order (if any) made under that subsection in relation to
that manufacturer; or
(b) the commencement of this section.
(8) Where an order is in force under this
section, the manufacturer in relation to whom the order applies is liable to
pay to the person specified in the order the amount of royalty so specified at
the times so specified and that person may recover the amount, if it is not
paid in accordance with the order, in a court of competent jurisdiction from
the manufacturer as a debt due to the person.
152B
Applications to Tribunal for determination of manner of paying royalty
(1) In this section:
manufacturer has the same meaning as in
section 55.
(2) An application may be made to the
Tribunal for an order determining the manner in which amounts of royalty
payable by the manufacturer of a record of a musical work to the owner of the
copyright in the work are to be paid.
(3) An application may be made by the
manufacturer or the owner of the copyright in the musical work recorded by the
manufacturer.
(4) The
parties to an application are:
(a) the manufacturer and the owner of
the copyright in the musical work; and
(b) any organisations or persons who
are made parties to the application.
(5) Where an organisation (whether claiming
to represent manufacturers or the owners of copyrights in musical works or not)
or a person (whether a manufacturer or the owner of the copyright in a musical
work or not) applies to the Tribunal to be made a party to an application under
this section, the Tribunal may, if it thinks fit, make that organisation or
person a party to the application if the Tribunal is satisfied that the
organisation or person has a substantial interest in the application.
(6) Where an application is made under subsection (2),
the Tribunal shall consider the application and, after giving the parties an
opportunity of presenting their cases, make an order determining the manner in
which amounts of royalty payable by the manufacturer of the record of the
musical work to the owner of the copyright in the work are to be paid.
153
Applications to Tribunal for apportionment of royalty in respect of a record
(1) This section applies where an application
is made to the Tribunal in pursuance of paragraph 59(3)(b) for an apportionment
of an amount payable in respect of a record between the owner of the copyright
in a musical work and the owner of the copyright in a literary or dramatic
work.
(2) The
parties to an application in relation to which this section applies are:
(a) the owner of the copyright in the
musical work; and
(b) the owner of the copyright in the
literary or dramatic work.
(3) Where an application in relation to which
this section applies is made to the Tribunal, the Tribunal shall consider the
application and, after giving to the parties to the application an opportunity
of presenting their cases, shall make an order apportioning the amount to which
the application relates between the parties in such manner as it thinks
equitable.
Subdivision C—Applications and references relating to Part VA
153A
Applications to Tribunal under section 135H, subsection 135J(1) or
subsection 135JA(1)
(1) The parties to an application to the
Tribunal under section 135H, subsection 135J(1) or subsection 135JA(1) for
the determination of the amount of equitable remuneration payable to the
collecting society by an administering body for the making or communication, by
or on behalf of that body, of a copy of a broadcast are the society and the
body.
(2) Where an application is made to the
Tribunal under section 135H, subsection 135J(1) or subsection 135JA(1),
the Tribunal shall consider the application and, after giving the parties to
the application the opportunity of presenting their cases, shall make an order
determining the amount that it considers to be equitable remuneration for the
making and communicating of copies of broadcasts.
(3) In making an order, the Tribunal:
(a) shall have regard to the extent to
which copies of broadcasts are made and communicated by, or on behalf of, the
administering body solely for the purpose of enabling the material included in
the broadcasts to be heard, or seen and heard, as the case may be, at times
more convenient than the times when the broadcasts were made; and
(b) may have regard to such other
matters (if any) as are prescribed.
(4) An order may be expressed to have effect
in relation to copies of broadcasts, and to communications of such copies, made
in reliance on section 135E before the day on which the order is made.
(5) In this section, administering body
and collecting society have the same meanings as in Part VA.
153B
Applications to Tribunal under subsection 135J(3)
(1) The parties to an application to the
Tribunal under subsection 135J(3) for the determination of a sampling system
are the collecting society and the administering body concerned.
(2) Where an application is made to the
Tribunal under subsection 135J(3), the Tribunal shall consider the application
and, after giving the parties to the application an opportunity of presenting
their cases, shall make an order determining the sampling system.
(3) In this section, administering body
and collecting society have the same meanings as in Part VA.
153BAAA
Application to the Tribunal under subsection 135JAA(2)
(1) The parties to an application to the
Tribunal under subsection 135JAA(2) for the determination of a question are the
collecting society and the administering body concerned.
(2) If an application is made to the Tribunal
under subsection 135JAA(2), the Tribunal must consider the application and,
after giving the parties to the application an opportunity of presenting their
cases, must make an order determining the question.
(3) In determining the question, the Tribunal
must have regard to such matters (if any) as are prescribed.
(4) In this section:
administering body has the same meaning as in
Part VA.
collecting society has the same meaning as in
Part VA.
153BA
Application to the Tribunal under subsection 135JA(3)
(1) The parties to an application to the
Tribunal under subsection 135JA(3) for the determination of an agreed system
are the collecting society and the administering body concerned.
(2) If an application is made to the Tribunal
under subsection 135JA(3), the Tribunal must consider the application and,
after giving the parties to the application an opportunity of presenting their
cases, must make an order determining the agreed system.
(3) In determining an agreed system, the
Tribunal must have regard to such matters (if any) as are prescribed.
(4) In this section:
administering body and collecting
society have the same meanings as in Part VA.
153BAA
Application to the Tribunal under subsection 135K(2A)
(1) The parties to an application to the
Tribunal under subsection 135K(2A) for the determination of a matter are the
collecting society and the administering body concerned.
(2) If an application is made to the Tribunal
under subsection 135K(2A) for the determination of a matter, the Tribunal must
consider the application and, after giving the parties to the application an
opportunity of presenting their cases, must make an order determining the
matter.
(3) In determining a matter described in
subsection 135K(2A), the Tribunal must have regard to such matters (if any) as
are prescribed.
(4) In this section:
administering body has the same meaning as in
Part VA.
collecting society has the same meaning as in
Part VA.
153BAB
References relating to declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135P an application of a
body to be declared the collecting society.
(2) The parties to the reference are the
applicant and any person made a party by the Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the applicant should
be declared to be the collecting society (including whether subsection 135P(2)
prevents the applicant from being declared to be the collecting society because
another body is declared to be the collecting society).
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) declare the applicant to be the
collecting society under section 135P; or
(b) reject the application.
(5) If the Tribunal declares the applicant to
be the collecting society under section 135P, the Registrar must publish
notice of the declaration in the Gazette.
153BAC
References relating to revocation of declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135Q the question whether
the declaration of a body as the collecting society should be revoked.
(2) The parties to the reference are:
(a) the Minister; and
(b) the collecting society; and
(c) any person made a party by the
Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the declaration of the
collecting society should be revoked.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) revoke the declaration of the
collecting society under section 135Q; or
(b) refuse to revoke the declaration.
(5) If the Tribunal revokes the declaration
of the collecting society:
(a) the revocation must specify the
day on which it takes effect; and
(b) the Registrar must publish notice
of the revocation in the Gazette.
153BAD
Review of collecting society’s distribution arrangement
(1) This section has effect if an application
is made to the Tribunal under section 135SA for review of an arrangement
adopted, or proposed to be adopted, by the collecting society for distributing
amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is
not the applicant); and
(c) a member of the collecting
society, or an organization claiming to be representative of members of the
collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the
collecting society, or an organization claiming to be representative of members
of the collecting society, a party to the application if:
(a) the member or organization asks to
be made a party; and
(b) the Tribunal is satisfied that the
member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the
application, give the parties an opportunity of presenting their cases then
make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement
another arrangement for distributing amounts the collecting society collects in
the period.
(5) In this section:
collecting society has the same meaning as in
Part VA.
Subdivision D—Applications and references relating to Part VB
153BB
Application to the Tribunal under subsection 135ZME(3)
(1) The parties to an application to the
Tribunal under subsection 135ZME(3) for the determination of the division of an
amount of remuneration are the relevant copyright owners.
(2) If an application is made to the Tribunal
for a determination under subsection 135ZME(3), the Tribunal must consider the
application and, after giving the parties to the application an opportunity to
present their cases, must make an order determining the division of the amount
to which the application relates between the parties in such manner as it
thinks equitable.
(3) In making an order, the Tribunal may have
regard to such matters (if any) as are prescribed.
153C
Applications to the Tribunal under section 135ZV or subsection 135ZW(1) or
135ZWA(1)
(1) The parties to an application to the
Tribunal under section 135ZV or subsection 135ZW(1) or 135ZWA(1) for the
determination of the amount of equitable remuneration payable to a collecting
society by an administering body for the making, by or on behalf of that body,
of licensed copies or licensed communications are the society and the body.
(2) Where an application is made to the
Tribunal under section 135ZV or subsection 135ZW(1) or 135ZWA(1), the
Tribunal shall consider the application and, after giving the parties to the
application the opportunity of presenting their cases, shall make an order
determining the amount that it considers to be equitable remuneration for the
making of a licensed copy or licensed communication.
(3) In making an order, the Tribunal may have
regard to such matters (if any) as are prescribed.
(4) An order may be expressed to have effect
in relation to licensed copies made before the day on which the order is made.
(5) In this
section:
administering body, collecting society,
licensed communication and licensed copy have the
same meanings as in Part VB.
153D
Applications to Tribunal under subsection 135ZW(3)
(1) The parties to an application to the
Tribunal under subsection 135ZW(3) for the determination of a sampling system to
be used for the purpose of assessing the number of licensed copies made by, or
on behalf of, an administering body, or any other relevant matters, are the
relevant collecting society and the body.
(2) Where an application is made to the
Tribunal under subsection 135ZW(3), the Tribunal shall consider the application
and, after giving the parties to the application an opportunity of presenting
their cases, shall make an order determining the sampling process.
(3) In this section, administering body,
collecting society and licensed copy have the same
meanings as in Part VB.
153DAA
Application to the Tribunal under subsection 135ZWAA(2)
(1) The parties to an application to the
Tribunal under subsection 135ZWAA(2) for the determination of a question are
the collecting society and the administering body concerned.
(2) If an application is made to the Tribunal
under subsection 135ZWAA(2), the Tribunal must consider the application and,
after giving the parties to the application an opportunity of presenting their
cases, must make an order determining the question.
(3) In determining the question, the Tribunal
must have regard to such matters (if any) as are prescribed.
(4) In this section:
administering body has the same meaning as in
Part VB.
collecting society has the same meaning as in
Part VB.
153DA
Applications to the Tribunal under subsection 135ZWA(2)
(1) The parties to an application to the
Tribunal under subsection 135ZWA(2) for the determination of an electronic use system
to be used in relation to licensed copies or licensed communications made by,
or on behalf of, an administering body, or any other relevant matters, are the
relevant collecting society and the body.
(2) If an application is made to the Tribunal
for a determination under subsection 135ZWA(2), the Tribunal must consider the
application and, after giving the parties to the application an opportunity to
present their cases, must make an order determining the matter that is the
subject of the application.
(3) In making an order, the Tribunal may have
regard to such matters (if any) as are prescribed.
(4) In this
section:
administering body, collecting society,
licensed communication and licensed copy have the
same meanings as in Part VB.
153DB
Application to the Tribunal under subsection 135ZX(2A)
(1) The parties to an application to the
Tribunal under subsection 135ZX(2A) for the determination of a matter are the
relevant collecting society and the administering body concerned.
(2) If an application is made to the Tribunal
under subsection 135ZX(2A) for the determination of a matter, the Tribunal must
consider the application and, after giving the parties to the application an
opportunity of presenting their cases, must make an order determining the
matter.
(3) In determining a matter described in
subsection 135ZX(2A), the Tribunal must have regard to such matters (if any) as
are prescribed.
(4) In this section:
administering body has the same meaning as in
Part VB.
relevant collecting society has the same
meaning as in Part VB.
153DC
References relating to declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135ZZB an application of a
body to be declared a collecting society.
(2) The parties to the reference are the
applicant and any person made a party by the Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in either or both of the following questions:
(i) whether the applicant
should be declared to be a collecting society for all relevant copyright owners
(as defined in Part VB) or a particular class of relevant copyright
owners;
(ii) whether another body
should cease to be the collecting society for any of the relevant copyright
owners (as defined in Part VB) if the applicant is declared to be a
collecting society.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) declare the applicant to be a
collecting society under section 135ZZB; or
(b) reject the application.
(5) If the Tribunal declares the applicant to
be the collecting society under section 135ZZB, the Registrar must publish
notice of the declaration in the Gazette.
153DD
References relating to revocation of declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135ZZC the question whether
the declaration of a body as a collecting society should be revoked.
(2) The parties to the reference are:
(a) the Minister; and
(b) the collecting society; and
(c) any person made a party by the
Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the declaration of the
collecting society should be revoked.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) revoke the declaration of the
collecting society under section 135ZZC; or
(b) refuse to revoke the declaration.
(5) If the Tribunal revokes the declaration
of the collecting society:
(a) the revocation must specify the
day on which it takes effect; and
(b) the Registrar must publish notice
of the revocation in the Gazette.
153DE
Review of collecting society’s distribution arrangement
(1) This section has effect if an application
is made to the Tribunal under section 135ZZEA for review of an arrangement
adopted, or proposed to be adopted, by a collecting society for distributing
amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is
not the applicant); and
(c) a member of the collecting
society, or an organization claiming to be representative of members of the
collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the
collecting society, or an organization claiming to be representative of members
of the collecting society, a party to the application if:
(a) the member or organization asks to
be made a party; and
(b) the Tribunal is satisfied that the
member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the
application, give the parties an opportunity of presenting their cases then
make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement
another arrangement for distributing amounts the collecting society collects in
the period.
(5) In this section:
collecting society has the same meaning as in
Part VB.
Subdivision E—Applications relating to Part VII
153E
Applications to Tribunal under subsection 183(5)
(1) The parties to an application to the
Tribunal under subsection 183(5) for the fixing of the terms for the doing of
an act comprised in a copyright where the act is done for the services of the
Commonwealth or a State are:
(a) the Commonwealth or the State, as
the case may be; and
(b) the owner of the copyright.
(2) If an
application is made to the Tribunal under subsection 183(5), the Tribunal is to
consider the application and, after giving the parties to the application an
opportunity of presenting their cases, is to make an order fixing the terms for
the doing of the act.
153F
Applications to Tribunal to declare collecting society for government copies
(1) A company
limited by guarantee may apply to the Tribunal for a declaration that the
company be a collecting society for the purposes of Division 2 of Part VII.
(2) The parties to the application are the
applicant and any person made a party by the Tribunal.
(3) The
Tribunal may make a person a party if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in either or both of the following questions:
(i) whether the applicant
should be declared to be a collecting society;
(ii) whether any current
declaration of a company as a collecting society should be revoked.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) declare the applicant to be a
collecting society for the purposes of Division 2 of Part VII; or
(b) reject the application.
(5) A declaration of a company as a
collecting society for the purposes of Division 2 of Part VII may be
a declaration in relation to:
(a) all government copies; or
(b) a specified class of government
copies.
(6) The Tribunal may only declare the
applicant to be a collecting society if the Tribunal is satisfied:
(a) that the applicant is a company
limited by guarantee incorporated under a law in force in a State or Territory
relating to companies; and
(b) in the case of an application for
a declaration in relation to all government copies, that the applicant’s rules
permit the owner, or the agent of the owner, of the copyright in any copyright
material to become a member; and
(c) in the case of an application for
a declaration in relation to a class of government copies, that the applicant’s
rules permit the owner, or the agent of the owner, of the copyright in any
copyright material a reproduction of which in accordance with section 183
would be within that class to become a member; and
(d) that the applicant’s rules
prohibit the payment of dividends to its members; and
(e) that the applicant’s rules contain
such provisions about all of the following matters as are adequate for the
protection of its members:
(i) the collection of
remuneration payable under section 183A;
(ii) the payment of
administrative costs of the collecting society out of remuneration it collects;
(iii) the distribution of
remuneration the collecting society collects;
(iv) the collecting society
holding on trust remuneration for owners of copyright in copyright material who
are not members of the society;
(v) access to the
collecting society’s records by its members; and
(f) that the applicant’s rules
contain such other provisions as are required by the regulations to be included
for the protection of members of the society.
(7) A declaration must specify the day on
which it takes effect.
(8) If the Tribunal makes a declaration under
this section, the Registrar must publish the declaration in the Gazette.
153G
Applications to Tribunal to revoke a declaration of a collecting society
(1) Any of the following persons may apply to
the Tribunal for the revocation of a declaration under section 153F:
(a) the collecting society;
(b) a member of the collecting
society;
(c) a government.
(2) The
parties to an application are:
(a) the applicant for revocation of
the declaration; and
(b) if the collecting society is not
the applicant for revocation of the declaration—the collecting society; and
(c) any person made a party by the
Tribunal.
(3) The
Tribunal may make a person a party if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the declaration of the
collecting society should be revoked.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) revoke the declaration of the
collecting society; or
(b) reject the application.
(5) The Tribunal may only revoke the
declaration of a company as the collecting society if the Tribunal is satisfied
that the company:
(a) is not functioning adequately as
the collecting society; or
(b) is not acting in accordance with
its rules or in the best interests of its members who own copyright in
copyright material or who are agents of copyright owners; or
(c) has altered its rules so that they
no longer comply with any one or more of paragraphs 153F(6)(b) to (f); or
(d) has contravened section 183D
or 183E (dealing with reporting and accounting, and alteration of rules).
(6) A revocation must specify the day on
which it takes effect.
(7) If the Tribunal revokes the declaration
of the collecting society, the Registrar must publish notice of the revocation
in the Gazette.
153H
Time limit for deciding applications under section 153F or 153G
(1) The
Tribunal must make its decision on an application under section 153F or
153G within 6 months after the conclusion of the hearing of the application.
(2) The 6 months time limit in subsection (1)
does not apply if the Tribunal thinks that the matter cannot be dealt with
properly within that period of 6 months, whether because of its complexity or
because of other special circumstances.
(3) If subsection (2) applies, the
Tribunal must tell the applicant before the end of the 6 months period that the
matter cannot be dealt with properly within that period.
153J
Amendment and revocation of a declaration on the declaration of another
collecting society
(1) If:
(a) a declaration (the previous
declaration) is in force under section 153F; and
(b) the Tribunal, under that section,
declares another company to be the collecting society for the purposes of
Division 2 of Part VII in relation to a class of government copies
that includes some of the government copies to which the previous declaration relates;
the Tribunal must amend the previous declaration so as to
exclude from the government copies to which it relates all government copies to
which the declaration of the company referred to in paragraph (b) relates.
(2) An amendment of a declaration under subsection (1)
takes effect when the declaration of the company referred to in paragraph (1)(b)
takes effect.
(3) If:
(a) a declaration (the previous
declaration) is in force under section 153F; and
(b) the Tribunal makes another
declaration under that section in relation to:
(i) all government copies;
or
(ii) a class of government
copies that includes all government copies to which the previous declaration
relates;
the Tribunal must revoke the previous declaration.
(4) The revocation of a declaration under subsection (3)
takes effect when the declaration referred to in paragraph (3)(b) takes
effect.
(5) The Registrar must publish in the Gazette
notice of an amendment or revocation made under this section.
153K
Applications to Tribunal for method of working out payment for government
copies
(1) A collecting society or a government may
apply to the Tribunal for an order determining the method for working out
remuneration payable under subsection 183A(2) for government copies made for
the services of the government in a particular period.
(2) The parties to an application are the
collecting society and the government.
(3) After giving each party an opportunity of
presenting its case, the Tribunal must make an order determining the method.
Note: Subsection 183A(3) sets out matters that the
method must provide for. Subsection 183A(4) sets out matters that the method
may provide for.
(4) An order may also specify how and when
payments of the amount worked out using the method determined are to be made.
153KA
Review of collecting society’s distribution arrangement
(1) This section has effect if an application
is made to the Tribunal under section 183F for review of an arrangement
adopted, or proposed to be adopted, by a collecting society for distributing
amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is
not the applicant); and
(c) a member of the collecting
society, or an organization claiming to be representative of members of the
collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the
collecting society, or an organization claiming to be representative of members
of the collecting society, a party to the application if:
(a) the member or organization asks to
be made a party; and
(b) the Tribunal is satisfied that the
member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the
application, give the parties an opportunity of presenting their cases then
make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement
another arrangement for distributing amounts the collecting society collects in
the period.
(5) In this section:
collecting society has the same meaning as in
Division 2 of Part VII.
Subdivision F—Applications relating to declarations of institutions
153L
Applications to Tribunal for review of declarations of certain educational
institutions
(1) This
section applies where an application is made to the Tribunal under subsection
10A(5A) for review of a declaration included in a notice published under
subsection 10A(4) for the purposes of paragraph (g), (h) or (i) of the
definition of educational institution in subsection 10(1).
(2) The parties to the application are:
(a) the collecting society that made
the application; and
(b) the body administering the
institution that caused the notice to be published.
(3) After giving each party an opportunity to
present its case, the Tribunal must:
(a) confirm the declaration; or
(b) set aside the notice.
(4) If the
Tribunal sets aside the notice, the Tribunal must cause to be published in the Gazette
a notice that:
(a) sets out full particulars of the
name and address of the institution; and
(b) contains a statement to the effect
that the notice previously published by the body administering the institution
under subsection 10A(4) has been set aside.
Upon publication of the Tribunal’s notice, the notice
published under subsection 10A(4) ceases to have effect for the purposes of paragraph (g),
(h) or (i) of the definition of educational institution in
subsection 10(1).
(5) The Tribunal may only set aside a notice
if it determines that the principal function, or the principal functions, as
the case may be, of the institution concerned are not as described in the
declaration included in the notice.
Subdivision G—Applications and references relating to Part VC
153M
Applications to the Tribunal under subsection 135ZZM(1)
(1) The parties to an application to the
Tribunal under subsection 135ZZM(1) for the determination of the amount of equitable
remuneration payable to a collecting society by a retransmitter for the making,
by or on behalf of the retransmitter, of a retransmission of a free‑to‑air
broadcast are the society and the retransmitter.
(2) On an application to the Tribunal under
subsection 135ZZM(1), the Tribunal must consider the application and, after
giving the parties an opportunity to present their cases, make an order
determining the amount that it considers to be equitable remuneration for the
making of retransmissions of free‑to‑air broadcasts.
(3) In making an order, the Tribunal may have
regard to such matters (if any) as are prescribed.
(4) An order may be expressed to have effect
in relation to retransmissions of free‑to‑air broadcasts made in
reliance on section 135ZZK before the day on which the order is made.
(5) In this section, collecting society
and retransmitter have the same meanings as in Part VC.
153N
Applications to Tribunal under subsection 135ZZN(3)
(1) The parties to an application to the
Tribunal under subsection 135ZZN(3) for the determination of a record system
are the collecting society and the retransmitter concerned.
(2) On an application to the Tribunal under
subsection 135ZZN(3), the Tribunal must consider the application and, after
giving the parties an opportunity to present their cases, make an order
determining the record system.
(3) In this section, collecting society
and retransmitter have the same meanings as in Part VC.
153P
References relating to declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135ZZT an application of a
body to be declared a collecting society.
(2) The parties to the reference are the
applicant and any person made a party by the Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in either or both of the following questions:
(i) whether the applicant
should be declared to be a collecting society for all relevant copyright owners
(as defined in Part VC) or a particular class of relevant copyright
owners;
(ii) whether another body
should cease to be the collecting society for any of the relevant copyright
owners (as defined in Part VC) if the applicant is declared to be a
collecting society.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) declare the applicant to be a
collecting society under section 135ZZT; or
(b) reject the application.
(5) If the Tribunal declares the applicant to
be the collecting society under section 135ZZT, the Registrar must publish
notice of the declaration in the Gazette.
153Q
References relating to revocation of declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135ZZU the question whether
the declaration of a body as a collecting society should be revoked.
(2) The parties to the reference are:
(a) the Minister; and
(b) the collecting society; and
(c) any person made a party by the
Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the declaration of the
collecting society should be revoked.
(4) After giving each party an opportunity of
presenting its case, the Tribunal must:
(a) revoke the declaration of the
collecting society under section 135ZZU; or
(b) refuse to revoke the declaration.
(5) If the Tribunal revokes the declaration
of the collecting society:
(a) the revocation must specify the
day on which it takes effect; and
(b) the Registrar must publish notice
of the revocation in the Gazette.
153R
Review of collecting society’s distribution arrangement
(1) This section has effect if an application
is made to the Tribunal under section 135ZZWA for review of an arrangement
adopted, or proposed to be adopted, by a collecting society for distributing
amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is
not the applicant); and
(c) a member of the collecting
society, or an organization claiming to be representative of members of the
collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the
collecting society, or an organization claiming to be representative of members
of the collecting society, a party to the application if:
(a) the member or organization asks to
be made a party; and
(b) the Tribunal is satisfied that the
member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the
application, give the parties an opportunity of presenting their cases then
make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement
another arrangement for distributing amounts the collecting society collects in
the period.
(5) In this section:
collecting society has the same meaning as in
Part VC.
Subdivision GA—Applications and references relating to Part VD
153RA
Application to the Tribunal to determine amount payable to owner of copyright
in a broadcast
(1) Either:
(a) a satellite BSA licensee; or
(b) a person (the copyright
owner) who is, or will be, the owner of the copyright in the broadcast
of an eligible program;
may apply to the Tribunal for an order determining the
amount payable by the satellite BSA licensee to the copyright owner for the re‑broadcast
by the satellite BSA licensee, during the period specified in the application,
of eligible programs, where the copyright owner owns the copyright in the
broadcast of the eligible programs.
(2) The parties to an application under subsection (1)
are:
(a) the satellite BSA licensee; and
(b) the copyright owner.
(3) On an application to the Tribunal under subsection (1),
the Tribunal must consider the application and, after giving the parties an
opportunity to present their cases, make an order determining the amount that
it considers to be equitable remuneration for re‑broadcasts of eligible
programs during the period specified in the order, where the copyright owner
owns the copyright in the broadcast of the eligible programs.
(4) In this section:
eligible program has the same meaning as in
Part VD.
153S
Applications to the Tribunal under paragraph 135ZZZK(1)(b)—equitable
remuneration
(1) The parties to an application to the
Tribunal under paragraph 135ZZZK(1)(b) for the determination of the amount of
equitable remuneration payable to a collecting society by a satellite BSA
licensee for re‑broadcasts by the satellite BSA licensee of eligible
programs are:
(a) the society; and
(b) the satellite BSA licensee.
(2) On an application to the Tribunal under
paragraph 135ZZZK(1)(b), the Tribunal must consider the application and, after
giving the parties an opportunity to present their cases, make an order
determining the amount that it considers to be equitable remuneration for the
re‑broadcast of eligible programs.
(3) In making an order, the Tribunal may have
regard to such matters (if any) as are prescribed.
(4) An order may be expressed to have effect
in relation to re‑broadcasts of eligible programs in reliance on section 135ZZZI
before the day on which the order is made.
(5) In this section:
collecting society has the same meaning as in
Part VD.
eligible program has the same meaning as in
Part VD.
153T
Applications to Tribunal under paragraph 135ZZZL(3)(b)—record system
(1) The parties to an application to the
Tribunal under paragraph 135ZZZL(3)(b) for the determination of a record system
are:
(a) the collecting society concerned;
and
(b) the satellite BSA licensee
concerned.
(2) On an application to the Tribunal under
paragraph 135ZZZL(3)(b), the Tribunal must consider the application and, after
giving the parties an opportunity to present their cases, make an order
determining the record system.
(3) In this section:
collecting society has the same meaning as in
Part VD.
153U
References relating to declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under section 135ZZZO an application of a
body to be declared a collecting society.
(2) The parties to the reference are the
applicant and any person made a party by the Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in either or both of the following questions:
(i) whether the applicant
should be declared to be a collecting society for all relevant copyright owners
(as defined in Part VD) or a particular class of relevant copyright
owners;
(ii) whether another body
should cease to be the collecting society for any of the relevant copyright
owners (as defined in Part VD) if the applicant is declared to be a
collecting society.
(4) After giving each party an opportunity to
present its case, the Tribunal must:
(a) declare the applicant to be a
collecting society under section 135ZZZO; or
(b) reject the application.
(5) If the Tribunal declares the applicant to
be the collecting society under section 135ZZZO, the Registrar must
publish notice of the declaration in the Gazette.
153V
References relating to revocation of declaration of collecting society
(1) This section has effect if the Minister
refers to the Copyright Tribunal under paragraph 135ZZZP(2)(b) the question
whether the declaration of a body as a collecting society should be revoked.
(2) The parties to the reference are:
(a) the Minister; and
(b) the collecting society; and
(c) any person made a party by the
Tribunal.
(3) The Tribunal may make a person a party
if:
(a) the person asks to be made a
party; and
(b) the Tribunal thinks that the
person has a sufficient interest in the question whether the declaration of the
collecting society should be revoked.
(4) After giving each party an opportunity to
present its case, the Tribunal must:
(a) revoke the declaration of the
collecting society under subsection 135ZZZP(3); or
(b) refuse to revoke the declaration.
(5) If the Tribunal revokes the declaration
of the collecting society:
(a) the revocation must specify the
day on which it takes effect; and
(b) the Registrar must publish notice
of the revocation in the Gazette.
153W
Review of collecting society’s distribution arrangement
(1) This section has effect if an application
is made to the Tribunal under section 135ZZZS for review of an arrangement
adopted, or proposed to be adopted, by a collecting society for distributing
amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is
not the applicant); and
(c) a member of the collecting
society, or an organisation claiming to be representative of members of the
collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the
collecting society, or an organisation claiming to be representative of members
of the collecting society, a party to the application if:
(a) the member or organisation asks to
be made a party; and
(b) the Tribunal is satisfied that the
member or organisation has a substantial interest in the arrangement.
(4) The Tribunal must consider the
application, give the parties an opportunity to present their cases then make
an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement
another arrangement for distributing amounts the collecting society collects in
the period.
(5) In this section:
collecting society has the same meaning as in
Part VD.
Subdivision H—References and applications relating to licences and licence
schemes
154
Reference of proposed licence schemes to Tribunal
(1) Where a licensor proposes to bring a
licence scheme into operation, he or she may refer the scheme to the Tribunal.
(2) The parties to a reference under this
section are:
(a) the licensor referring the scheme;
and
(b) such organizations or persons (if
any) as apply to the Tribunal to be made parties to the reference and, in
accordance with the next succeeding subsection, are made parties to the
reference; and
(c) the Australian Competition and
Consumer Commission, if the Tribunal makes the Commission a party to the
reference under section 157B.
(3) Where an organization (whether claiming
to be representative of persons requiring licences or not) or a person (whether
requiring a licence or not) applies to the Tribunal to be made a party to a
reference, and the Tribunal is satisfied that the organization or person has a
substantial interest in the operation of the scheme to which the reference
relates, the Tribunal may, if it thinks fit, make that organization or person a
party to the reference.
(4) The Tribunal shall consider a scheme
referred under this section and, after giving to the parties to the reference
an opportunity of presenting their cases, shall make such order, confirming or
varying the scheme or substituting for the scheme another scheme proposed by
one of the parties, as the Tribunal considers reasonable in the circumstances.
(5) An order (other than an interim order) of
the Tribunal under this section may, notwithstanding anything contained in the
licence scheme to which it relates, be made so as to be in force either
indefinitely or for such period as the Tribunal thinks fit.
(6) Where a licence scheme has been referred
to the Tribunal under this section, the licensor may do either or both of the
following things:
(a) bring the scheme into operation
before the Tribunal makes an order in pursuance of the reference;
(b) withdraw the reference at any time
before the Tribunal makes an order in pursuance of the reference, whether the
scheme has been brought into operation or not.
(7) The scheme reflecting the Tribunal’s
order:
(a) comes into operation when the
order is made, if the scheme referred to the Tribunal had not already come into
operation; and
(b) operates as long as the order
remains in force.
This subsection has effect despite anything in the scheme
referred to the Tribunal.
Note: Depending on
the Tribunal’s order, the scheme reflecting the order will be the scheme
confirmed by the order, the scheme as varied by the order or the scheme
substituted by the order for the scheme referred to the Tribunal.
155
Reference of existing licence schemes to Tribunal
(1) Where, at any time while a licence scheme
is in operation, a dispute arises with respect to the terms of the scheme
between the licensor operating the scheme and:
(a) an organization claiming to be
representative of persons requiring licences in cases included in a class of
cases to which the scheme applies; or
(b) any
person claiming that he or she requires a licence in a case included in a class
of cases to which the scheme applies;
the licensor, organization or person concerned may refer
the scheme to the Tribunal in so far as the scheme relates to cases included in
that class.
(2) The parties to a reference under this
section are:
(a) the licensor, organization or
person referring the scheme; and
(b) if the reference is not made by
the licensor operating the scheme—that licensor; and
(c) such other organizations or
persons (if any) as apply to the Tribunal to be made parties to the reference
and, in accordance with the next succeeding subsection, are made parties to the
reference; and
(d) the Australian Competition and
Consumer Commission, if the Tribunal makes the Commission a party to the
reference under section 157B.
(3) Where an organization (whether claiming
to be representative of persons requiring licences or not) or a person (whether
requiring a licence or not) applies to the Tribunal to be made a party to a
reference, and the Tribunal is satisfied that the organization or person has a
substantial interest in the matter in dispute, the Tribunal may, if it thinks
fit, make that organization or person a party to the reference.
(4) The Tribunal shall not begin to consider
a reference under this section by an organization unless the Tribunal is
satisfied that the organization is reasonably representative of the class of
persons that it claims to represent.
(5) The Tribunal must consider the matter in
dispute, give the parties an opportunity of presenting their cases then make an
order that the Tribunal considers reasonable in the circumstances doing one of
the following to the scheme so far as it relates to the relevant class:
(a) confirming it;
(b) varying it;
(c) substituting for it another scheme
proposed by one of the parties.
This subsection has effect to subsection (4).
(6) An order (other than an interim order) of
the Tribunal under this section may, notwithstanding anything contained in the
licence scheme to which it relates, be made so as to be in force either
indefinitely or for such period as the Tribunal thinks fit.
(7) A reference of a licence scheme to the
Tribunal under this section may be withdrawn at any time before an order is made
in pursuance of the reference.
(8) Where a licence scheme has been referred
to the Tribunal under this section, the scheme remains in operation,
notwithstanding anything contained in the scheme, until the Tribunal makes an
order in pursuance of the reference.
(9) The last preceding subsection does not
apply in relation to a reference with respect to any period after the reference
has been withdrawn or after the Tribunal has refused to begin to consider the
reference in pursuance of subsection (4).
(10) The scheme reflecting the Tribunal’s order
operates as long as the order remains in force, despite anything in the scheme
referred to the Tribunal.
Note: Depending on the Tribunal’s order, the scheme
reflecting the order will be the scheme confirmed by the order, the scheme as
varied by the order or the scheme substituted by the order for the scheme
referred to the Tribunal.
156
Further reference of licence schemes to Tribunal
(1) Where the Tribunal has made an order
(other than an interim order) under either of the last two preceding sections
with respect to a licence scheme, then, subject to the next succeeding
subsection, at any time while the order remains in force:
(a) the licensor operating the scheme;
(b) any organization claiming to be
representative of persons requiring licences in cases included in the class of
cases to which the order applies; or
(c) any
person claiming that he or she requires a licence in a case included in that
class;
may refer the scheme reflecting the order to the Tribunal
in so far as it relates to cases included in that class.
(2) A scheme shall not, except with the leave
of the Tribunal, be referred to the Tribunal under the last preceding
subsection at a time earlier than:
(a) where the order concerned was made
so as to be in force indefinitely or for a period exceeding 15 months—the
expiration of the period of 12 months commencing on the date on which the order
was made; or
(b) where the order concerned was made
so as to be in force for a period not exceeding 15 months—the commencement of
the period of 3 months ending on the date of expiration of the order.
(3) The parties to a reference under this
section are:
(a) the licensor, organization or
person referring the scheme; and
(b) if the reference is not made by
the licensor operating the scheme—that licensor; and
(c) such other organizations or
persons (if any) as apply to the Tribunal to be made parties to the reference
and, in accordance with the provisions applicable in that behalf by virtue of subsection (5),
are made parties to the reference; and
(d) the Australian Competition and
Consumer Commission, if the Tribunal makes the Commission a party to the
reference under section 157B.
(4) The Tribunal must consider the matter in
dispute, give the parties an opportunity of presenting their cases then make an
order that the Tribunal considers reasonable in the circumstances doing one of
the following to the scheme so far as it is referred to the Tribunal under subsection (1):
(a) confirming it;
(b) varying it;
(c) substituting for it another scheme
proposed by one of the parties.
This subsection has effect to subsection (5).
(5) Subsections 155(3), (4), and (6) to (10)
inclusive apply for the purposes of this section.
(6) The preceding subsections of this section
have effect in relation to orders made under this section in like manner as
they have effect in relation to orders made under either of the last two
preceding sections.
(7) Nothing in
this section prevents a licence scheme in respect of which an order has been
made under either of the last two preceding sections from being again referred
to the Tribunal under that section:
(a) in so far as the scheme relates to
cases included in a class of cases to which the order does not apply—at any
time; and
(b) in so far as the scheme relates to
cases included in the class of cases to which the order applied while it was in
force—after the expiration of the order.
157
Application to Tribunal in relation to licences
Refusal or failure to grant licence under licence
scheme
(1) A person who claims, in a case to which a
licence scheme applies, that the licensor operating the scheme has refused or
failed to grant him or her a licence in accordance with the scheme, or to
procure the grant to him or her of such a licence, may apply to the Tribunal
under this section.
Licence scheme sets unreasonable charges or conditions
for case
(2) A person who claims, in a case to which a
licence scheme applies, that he or she requires a licence but that the grant of
a licence in accordance with the scheme would, in that case, be subject to the
payment of charges, or to conditions, that are not reasonable in the
circumstances of the case may apply to the Tribunal under this section.
No licence scheme and licensor refuses or fails to
grant reasonable licence
(3) A person who claims that he or she
requires a licence in a case to which a licence scheme does not apply
(including a case where a licence scheme has not been formulated or is not in
operation) and:
(a) that a licensor has refused or
failed to grant the licence, or to procure the grant of the licence, and that
in the circumstances it is unreasonable that the licence should not be granted;
or
(b) that
a licensor proposes that the licence should be granted subject to the payment
of charges, or to conditions, that are unreasonable;
may apply to the Tribunal under this section.
(4) An organization that claims that it is
representative of persons requiring licences in cases to which a licence scheme
does not apply (including cases where a licence scheme has not been formulated
or is not in operation) and:
(a) that a licensor has refused or
failed to grant the licences, or to procure the grant of the licences, and that
in the circumstances it is unreasonable that the licences should not be
granted; or
(b) that
a licensor proposes that the licences should be granted subject to the payment
of charges, or to conditions, that are unreasonable;
may apply to the Tribunal under this section.
Other parties to application
(5) Where an organization
(whether claiming to be representative of persons requiring licences or not) or
a person (whether requiring a licence or not) applies to the Tribunal to be
made a party to an application under any of the preceding subsections of this
section, and the Tribunal is satisfied that the organization or person has a
substantial interest in the matter in dispute, the Tribunal may, if it thinks
fit, make that organization or person a party to the application.
Note: Under section 157B, the Tribunal may also
make the Australian Competition and Consumer Commission a party to the
application.
Letting parties present their cases
(6) The Tribunal must give the applicant, the
licensor concerned and each other party (if any) to the application an
opportunity of presenting their cases.
Order dealing with application under subsection (1)
(6A) If the Tribunal is satisfied that the claim
of an applicant under subsection (1) is well‑founded, the Tribunal
must either:
(a) make an order specifying, in
respect of the matters specified in the order, the charges, if any, and the
conditions, that the Tribunal considers to be applicable in accordance with the
licence scheme in relation to the applicant; or
(b) order that the applicant be
granted a licence in the terms proposed by the applicant, the licensor
concerned or another party to the application.
Order dealing with application under subsection (2)
or (3)
(6B) If the Tribunal is satisfied that the claim
of an applicant under subsection (2) or (3) is well‑founded, the
Tribunal must either:
(a) make an order specifying, in
respect of the matters specified in the order, the charges, if any, and the
conditions, that the Tribunal considers reasonable in the circumstances in
relation to the applicant; or
(b) order that the applicant be
granted a licence in the terms proposed by the applicant, the licensor
concerned or another party to the application.
Order dealing with application under subsection (4)
(6C) If the Tribunal is satisfied that the claim
of an applicant under subsection (4) is well‑founded, the Tribunal
must either:
(a) make an order specifying, in
respect of the matters specified in the order, the charges, if any, and the
conditions, that the Tribunal considers reasonable in the circumstances in
relation to persons who:
(i) are specified in the
order (whether by reference to a class or otherwise); and
(ii) were represented by
the applicant or were parties to the application; or
(b) order that a licence be granted,
in the terms proposed by the applicant, the licensor concerned or another party
to the application, to each person who:
(i) is specified in the
order (whether by reference to a class or otherwise); and
(ii) was represented by the
applicant or was a party to the application.
Definition of refusal or failure to grant a licence
(7) A reference in this section to a failure
to grant a licence, or to procure the grant of a licence, shall be read as a
reference to a failure to grant the licence, or to procure the grant of the
licence, as the case may be, within a reasonable time after a request to do so.
157A
Tribunal must have regard to ACCC guidelines on request
(1) In making a decision on a reference or
application under this Subdivision, the Tribunal must, if requested by a party
to the reference or application, have regard to relevant guidelines (if any)
made by the Australian Competition and Consumer Commission.
(2) To avoid doubt, subsection (1) does
not prevent the Tribunal from having regard to other relevant matters in making
a decision on a reference or application under this Subdivision.
157B
Tribunal may make ACCC party to reference or application
The Tribunal may make the Australian
Competition and Consumer Commission a party to a reference or application made
under this Subdivision if:
(a) the Commission asks to be made a
party to the reference or application; and
(b) the Tribunal is satisfied that it
is appropriate that the Commission be a party to the reference or application.
158
Effect of licence scheme being continued in operation pending order of the
Tribunal
(1) Where a
licence scheme is in operation by virtue of this Part pending the making of an
order on a reference under this Part and a person, in a case to which the
scheme applies, does anything that, apart from this subsection, would be an
infringement of a copyright but would not be such an infringement if the person
were the holder of a licence granted in accordance with the scheme in so far as
the scheme relates to cases to which the reference relates, that person shall,
if he or she has complied with the relevant requirements, be in the like
position, in any proceedings for infringement of that copyright, as if he or
she had at the material time been the holder of such a licence.
(2) For the purposes of the last preceding
subsection, the relevant requirements are:
(a) that, at all material times, the
person concerned has complied with the conditions that, in accordance with the
licence scheme, would be applicable to a licence in respect of the case
concerned; and
(b) where, in accordance with the
scheme, any charges are payable in respect of such a licence—that, at the
material time, the person concerned had paid those charges to the licensor
operating the scheme, or, if at that time the amount payable could not be ascertained,
he or she had given an undertaking in writing to the licensor to pay the
charges when ascertained.
(3) A person who does anything in relation to
which subsection (1) applies is liable to pay to the licensor operating
the licence scheme concerned the amount of any charges that would be payable if
he or she were the holder of a licence granted in accordance with the scheme in
so far as the scheme relates to the doing of that thing and the licensor may
recover that amount in a court of competent jurisdiction from the person as a
debt due to the licensor.
159
Effect of order of Tribunal in relation to licences
Order under section 154. 155 or 156
(1) Where an
order made on a reference under this Part with respect to a licence scheme is
for the time being in force and a person, in a case to which the scheme reflecting
the order applies, does anything that, apart from this subsection, would be an
infringement of copyright but would not be such an infringement if he or she
were the holder of a licence granted in accordance with that scheme, in so far
as the scheme relates to cases to which the order applies, that person shall,
if he or she has complied with the relevant requirements, be in the like
position, in any proceedings for infringement of that copyright, as if he or
she had at the material time been the holder of such a licence.
(2) For the purposes of the last preceding
subsection, the relevant requirements are:
(a) that, at all material times, the
person concerned has complied with the conditions that, in accordance with the scheme
reflecting the order, would be applicable to a licence in respect of the case
concerned; and
(b) where, in accordance with the
scheme, any charges are payable in respect of such a licence—that, at the
material time, the person concerned had paid those charges to the licensor
operating the scheme, or, if at that time the amount payable could not be
ascertained, he or she had given an undertaking in writing to the licensor to
pay the charges when ascertained.
(3) A person who does anything in relation to
which subsection (1) applies is liable to pay to the licensor operating
the scheme concerned the amount of any charges that would be payable if he or
she were the holder of a licence granted in accordance with the scheme
reflecting the order, in so far as the scheme relates to the doing of that thing,
and the licensor may recover that amount in a court of competent jurisdiction
from the person as a debt due to the licensor.
Order under section 157 specifying conditions and
charges
(4) Where the
Tribunal has made an order on an application under subsection 157(1), (2) or
(3) specifying charges, if any, and conditions, in relation to the applicant,
in respect of the matters specified in the order, then if:
(a) the applicant has complied with
the conditions specified in the order; and
(b) in
a case where the order specifies any charges—he or she has paid those charges
to the licensor or, if the amount payable could not be ascertained, has given
to the licensor an undertaking in writing to pay the charges when ascertained;
the applicant shall be in the like position, in any
proceedings for infringement of copyright relating to any of those matters, as
if he or she had at all material times been the holder of a licence granted by
the owner of the copyright concerned on the conditions, and subject to payment
of the charges (if any), specified in the order.
(5) Where the Tribunal has made an order on
an application under subsection 157(4) specifying charges (if any) and conditions,
in relation to the persons, or to persons included in the classes of persons,
specified in the order, in respect of matters specified in the order, then, if:
(a) any such person has complied with
the conditions specified in the order; and
(b) in
the case where the order specifies any charges—the person has paid those
charges to the licensor or, if the amount payable could not be ascertained, has
given to the licensor an undertaking in writing to pay the charges when
ascertained;
that person shall be in the like position, in any
proceedings for infringement of copyright relating to any of those matters, as
if he or she had at all material times been the holder of a licence granted by
the owner of the copyright concerned on the conditions, and subject to payment
of the charges (if any), specified in the order.
(6) Where a person in relation to whom an
order referred to in subsection (4) or subsection (5) applies does,
in relation to any of the matters specified in that order, anything that, apart
from that subsection, would be an infringement of copyright but would not be
such an infringement if he or she were the holder of a licence in respect of
the doing of that thing granted by the owner of the copyright concerned on the
conditions and subject to payment of the charges (if any) specified in the
order, that person is liable to pay to the owner of the copyright the amount of
any charges that would be payable if he or she were the holder of such a
licence and the owner of the copyright may recover that amount in a court of
competent jurisdiction from the person as a debt due to the owner of the
copyright.
(7) To avoid doubt, subsections (4) and
(5) do not apply to an order that a person be granted a licence.
Order under section 157 that person be granted
licence
(8) A person whom the Tribunal has ordered
under section 157 be granted a licence in the terms proposed by the
applicant, the licensor concerned or another party to the application under
that section:
(a) is taken, for the purpose of
proceedings for infringement of copyright, to have been granted the licence in
those terms; and
(b) is liable to pay the owner of the
copyright concerned the amount of any charges that would be payable if the
person had been granted the licence in those terms.
Note: Paragraph (a)—if those terms made the
licence subject to conditions and the person did not comply with the
conditions, the licence will not give the person a defence in the proceedings.
(9) The owner of the copyright may recover
the amount described in paragraph (8)(b) from the person in a court of
competent jurisdiction as a debt due to the owner.
Subdivision I—General
provisions
160 Interim orders
Where an application or reference is
made to the Tribunal under this Act, the Tribunal may make an interim order
having effect until the final decision of the Tribunal on the application or
reference.
161
Reference of questions of law to Federal Court of Australia
(1) The Tribunal may, of its own motion or at
the request of a party, refer a question of law arising in proceedings before
it for determination by the Federal Court of Australia.
(2) A question shall not be referred to the
Federal Court of Australia by virtue of the last preceding subsection in
pursuance of a request made after the date on which the Tribunal gave its
decision in the proceedings unless the request is made before the expiration of
such period as is prescribed.
(3) If the Tribunal, after giving its
decision in any proceedings, refuses a request to refer a question to the
Federal Court of Australia, the party by whom the request was made may, within
such period as is prescribed, apply to the Federal Court of Australia for an
order directing the Tribunal to refer the question to the Federal Court of
Australia.
(4) Where a reference is made to the Federal
Court of Australia under this section with respect to any proceedings before
the Tribunal, and where an application is made under the last preceding
subsection with respect to any such proceedings, every party to the proceedings
before the Tribunal is entitled to appear and to be heard.
(5) Where,
after the Tribunal has given its decision in any proceedings, the Tribunal
refers to the Federal Court of Australia under this section a question of law
that arose in the course of the proceedings, and the Federal Court of Australia
decides that the question was erroneously determined by the Tribunal:
(a) the Tribunal shall reconsider the
matter in dispute and, if it considers it necessary to do so for the purpose of
giving effect to the decision of the Federal Court of Australia, shall give to
the parties to the proceedings a further opportunity of presenting their cases;
and
(b) if it appears to the Tribunal to
be appropriate, and in conformity with the decision of the Federal Court of Australia,
to do so, the Tribunal shall make such order revoking or modifying any order
previously made by it in the proceedings, or, in the case of proceedings under
section 157 where the Tribunal refused to make an order, shall make such
order under that section, as the Tribunal considers to be appropriate.
(6) A reference of a question by the Tribunal
to the Federal Court of Australia under this section shall be by way of stating
a case for the opinion of the Federal Court of Australia.
(7) Jurisdiction is conferred on the Federal
Court of Australia to hear and determine a question of law referred to it under
this section.
(8) For the purposes of this section, a
question of law does not include a question whether there is sufficient
evidence to justify a finding of fact by the Tribunal.
162
Agreements or awards not affected
Nothing in this Part affects the
operation of any agreement or of any award made by an arbitrator, whether the
agreement or award was made before, or is made after, the commencement of this
Act.
Division 4—Procedure and evidence
163
Proceedings to be in public except in special circumstances
(1) Subject to this section, the hearing of
proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it
is desirable to do so by reason of the confidential nature of any evidence or
matter or for any other reason, the Tribunal may:
(a) direct that a hearing or part of a
hearing shall take place in private and give directions as to the persons who
may be present; or
(b) give directions prohibiting or
restricting the publication of evidence given before the Tribunal (whether in
public or in private) or of matters contained in documents produced to the
Tribunal.
163A
Application may be made to Tribunal by the agent of the copyright owner
(1) An owner of copyright may make an
application to the Tribunal under this Act by his or her agent.
(2) Two or more owners of copyright may
jointly make a single application to the Tribunal by the same agent against the
same person or body.
164
Procedure
In proceedings before the Tribunal:
(a) the procedure of the Tribunal is,
subject to this Act and the regulations, within the discretion of the Tribunal;
(b) the Tribunal is not bound by the
rules of evidence; and
(c) the proceedings shall be conducted
with as little formality, and with as much expedition, as the requirements of
this Act and a proper consideration of the matters before the Tribunal permit.
165
Mistakes or errors in orders of the Tribunal
The Tribunal may correct, in any order
of the Tribunal, a clerical mistake or an error arising from an accidental slip
or omission.
166
Regulations as to procedure
(1) The regulations may make provision for or
in relation to the procedure in connexion with the making of references and
applications to the Tribunal and the regulation of proceedings before the
Tribunal and may prescribe the fees payable in respect of those references and
applications and the fees and expenses of witnesses in those proceedings.
(2) The regulations may include provision:
(a) for requiring notice of an
intended reference to the Tribunal under section 154, section 155 or
section 156 to be advertised in accordance with the regulations;
(b) for requiring notice of an
intended application to the Federal Court of Australia under subsection 161(3)
to be given to the Tribunal and to the other parties to the proceedings, and
for limiting the time within which any such notice is to be given;
(c) for suspending, or authorizing or
requiring the Tribunal to suspend, the operation of orders of the Tribunal in
cases where, after giving its decision, the Tribunal refers a question of law
to the Federal Court of Australia;
(d) for modifying, in relation to
orders of the Tribunal the operation of which is suspended, the operation of
any provisions of this Part as to the effect of orders made under this Part;
(e) for the publication of notices, or
the doing of any other things, to ensure that persons affected by the
suspension of an order of the Tribunal will be informed of its suspension; and
(f) for regulating or prescribing any
other matters incidental to or consequential upon any request, application,
order or decision under section 161.
167
Power to take evidence on oath
(1) The
Tribunal may take evidence on oath or affirmation, and for that purpose a
member may administer an oath or affirmation.
(2) A member or the Registrar may summon a
person to appear before the Tribunal to give evidence.
(3) A member or the Registrar may summon a
person to produce specified documents or articles to the Tribunal by producing
the documents or articles to a specified person at a specified time at a
specified place.
168
Evidence in form of written statement
The Tribunal may, if it thinks fit,
permit a person appearing as a witness before the Tribunal to give evidence by
tendering, and verifying by oath or affirmation, a written statement, which
shall be filed with the Registrar.
169
Representation
In proceedings before the Tribunal:
(a) a party other than a body
corporate or an unincorporated body of persons may appear in person or be
represented by an employee of the party approved by the Tribunal;
(b) a party being a body corporate may
be represented by a director or other officer, or by an employee, of the party
approved by the Tribunal;
(c) a party being an unincorporated
body of persons or a member of such a body may be represented by a member, or
by an officer or employee, of the body approved by the Tribunal; and
(d) any party may be represented by a
barrister or solicitor of the High Court or of the Supreme Court of a State or
of a Territory.
Division 4A—Alternative dispute resolution processes
169A
Referral of proceeding for alternative dispute resolution process
(1) If an application or reference is made to
the Tribunal, the President or a Deputy President may:
(a) direct the holding of a conference
of the parties or their representatives in relation to the proceeding, or any
part of the proceeding or any matter arising out of the proceeding; or
(b) direct that the proceeding, or any
part of the proceeding or any matter arising out of the proceeding, be referred
for a particular alternative dispute resolution process (other than
conferencing).
(2) The President may also direct the holding
of conferences of the parties or their representatives in the case of
applications or references made to the Tribunal that are of a kind specified in
the direction.
(3) The President may also direct that
proceedings be referred for a particular alternative dispute resolution process
(other than conferencing) in the case of applications or references made to the
Tribunal that are of a kind specified in the direction.
(4) A direction may be given under a
particular paragraph of subsection (1):
(a) whether or not a direction has
previously been given under the same or the other paragraph of that subsection
in relation to the proceeding; and
(b) whether or not a direction under subsection (2)
or (3) has applied.
(5) If a
direction under this section is applicable to:
(a) a
proceeding; or
(b) a part of a proceeding; or
(c) a matter arising out of a
proceeding;
each party must act in good faith in relation to the
conduct of the alternative dispute resolution process concerned.
169B
Directions by President or Deputy President
(1) The President or a Deputy President may
give directions about alternative dispute resolution processes.
(2) Directions under subsection (1) may
relate to:
(a) the procedure to be followed in
the conduct of an alternative dispute resolution process; and
(b) the person who is to conduct an
alternative dispute resolution process; and
(c) the procedure to be followed when
an alternative dispute resolution process ends.
(3) Subsection (2) does not limit subsection (1).
(4) The President or a Deputy President may
at any time vary or revoke a direction under subsection (1).
(5) A person is not entitled to conduct an
alternative dispute resolution process unless the person is:
(a) a member; or
(b) the Registrar; or
(c) a person whose services are made
available, under an arrangement made by the Registrar and the Registrar of the
Federal Court of Australia, to conduct the process; or
(d) a person engaged under section 169G.
169C
Agreement about the terms of a decision etc.
(1) If:
(a) in the course of an alternative
dispute resolution process under this Division, agreement is reached between
the parties or their representatives as to the terms of a decision of the
Tribunal:
(i) in the proceeding; or
(ii) in relation to the
part of the proceeding; or
(iii) in relation to the
matter arising out of the proceeding;
that would be acceptable to the
parties; and
(b) the terms of the agreement are
reduced to writing, signed by or on behalf of the parties and lodged with the
Tribunal; and
(c) 7 days pass after lodgment, and
none of the parties has notified the Tribunal in writing that he or she wishes
to withdraw from the agreement; and
(d) the
Tribunal is satisfied that a decision in the terms of the agreement or
consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to
do so, act in accordance with whichever of subsection (2) or (3) is
relevant in the particular case.
(2) If the agreement reached is an agreement
as to the terms of a decision of the Tribunal in the proceeding, the Tribunal
may, without giving the parties an opportunity of presenting their cases, make
a decision in accordance with those terms.
(3) If the agreement relates to:
(a) a part of the proceeding; or
(b) a matter arising out of the
proceeding;
the Tribunal may, in its decision in the proceeding, give
effect to the terms of the agreement without giving the parties an opportunity
of presenting their cases so far as they relate only to the part or matter to
which the agreement relates.
169D
Evidence not admissible
(1) Evidence of anything said, or any act
done, at an alternative dispute resolution process under this Division is not
admissible:
(a) in any court; or
(b) in any proceedings before a person
authorised by a law of the Commonwealth or of a State or Territory to hear
evidence; or
(c) in any proceedings before a person
authorised by the consent of the parties to hear evidence.
Exceptions
(2) Subsection (1) does not apply so as
to prevent the admission, at the hearing of a proceeding before the Tribunal,
of particular evidence if the parties agree to the evidence being admissible at
the hearing.
(3) Subsection (1)
does not apply so as to prevent the admission, at the hearing of a proceeding
before the Tribunal, of:
(a) a case appraisal report prepared
by a person conducting an alternative dispute resolution process under this
Division; or
(b) a neutral evaluation report
prepared by a person conducting an alternative dispute resolution process under
this Division;
unless a party to the proceeding notifies the Tribunal
before the hearing that he or she objects to the report being admissible at the
hearing.
169E
Eligibility of person conducting alternative dispute resolution process to sit
as a member of the Tribunal
If:
(a) an alternative dispute resolution
process under this Division in relation to a proceeding is conducted by a
member of the Tribunal; and
(b) a
party (the objector) to the proceeding notifies the Tribunal, before
any party to the proceeding is given an opportunity of presenting its case,
that the objector objects to that member participating in the proceeding;
that member is not entitled to be a member of the Tribunal
as constituted for the purposes of the proceeding.
169F
Participation by telephone etc.
The person conducting an alternative
dispute resolution process under this Division may allow a person to
participate by:
(a) telephone; or
(b) closed‑circuit television;
or
(c) any other means of communication.
169G
Engagement of persons to conduct alternative dispute resolution processes
(1) The Registrar may, on behalf of the
Commonwealth, engage persons as consultants to conduct one or more kinds of
alternative dispute resolution processes under this Division.
(2) The
Registrar must not engage a person under subsection (1) unless the
Registrar is satisfied, having regard to the person’s qualifications and
experience, that the person is a suitable person to conduct the relevant kind
or kinds of alternative dispute resolution processes under this Division.
Division 5—Miscellaneous
170
Registrar
(1) There is to be a Registrar of the
Tribunal.
(2) The Registrar is to be a person engaged
under the Public Service Act 1999, or a person whose services are made
available under an arrangement made under that Act, who is appointed as the
Registrar by the Minister by written instrument.
Remuneration as public servant
(3) The office of Registrar is not a public
office for the purposes of the Remuneration Tribunal Act 1973.
Resignation
(4) The Registrar may resign his or her
appointment by giving the Minister a written resignation.
Termination of appointment
(5) The Minister may terminate, by writing
signed by him or her, the appointment of the Registrar.
(6) The appointment of the Registrar is
terminated if the Registrar ceases to be engaged under the Public Service
Act 1999 or to be a person whose services are made available under an
arrangement made under that Act.
Acting appointment
(7) The President may appoint a person
engaged under the Public Service Act 1999, or a person whose services
are made available under an arrangement made under that Act, to act as the
Registrar:
(a) during a vacancy in the office of
Registrar (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the Registrar is absent from duty or from Australia or is, for
any reason, unable to perform the duties of the office.
(8) Anything done by or in relation to a person
purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
170A
Other staff of the Tribunal
Any staff needed to assist the Tribunal
must be persons engaged under the Public Service Act 1999 or persons
whose services are made available under arrangements made under that Act.
171 Protecting
persons connected with Tribunal proceedings
(1) A member has, in the performance of his
or her duty as a member, the same protection and immunity as a Justice of the
High Court.
(1A) An alternative dispute resolution
practitioner has, in the performance of his or her duties as an alternative
dispute resolution practitioner under this Act, the same protection and
immunity as a Justice of the High Court.
(1B) The Registrar has in the performance of his
or her duty as Registrar under section 167, 174 or 175, the same
protection and immunity as a Justice of the High Court.
(2) A barrister, solicitor or other person
appearing before the Tribunal on behalf of a party has the same protection and
immunity as a barrister has in appearing for a party in proceedings in the High
Court.
(3) A person summoned to appear before the
Tribunal as a witness has the same protection, and is, in addition to the
penalties provided by this Act, subject to the same liabilities, in any civil or
criminal proceedings as a witness in proceedings in the High Court.
(4) In this section:
alternative dispute resolution practitioner
means a person who conducts an alternative dispute resolution process under
Division 4A.
172
Offences by witnesses
Failing to appear
(1) A person commits an offence if:
(a) the person has been summoned to
appear as a witness before the Tribunal; and
(b) there has been tendered to the
person an amount of money at least equal to the expenses the person could
reasonably be expected to incur in connection with appearing as a witness; and
(c) the person fails to appear in
obedience to the summons.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Failing to produce document or article summoned
(2) A person commits an offence if:
(a) the person has been summoned to
produce a document or article to the Tribunal; and
(b) there has been tendered to the
person an amount of money at least equal to the expenses the person could
reasonably be expected to incur in connection with producing the document or
article; and
(c) the person fails to produce the
document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Refusal to swear or affirm
(3) A person commits an offence if:
(a) the person appears before the
Tribunal; and
(b) the person refuses to be sworn or
to make an affirmation.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Refusal to answer questions or produce documents as
required
(4) A person commits an offence if:
(a) the person appears before the
Tribunal; and
(b) the Tribunal requires the person
to answer a question or produce a document or article; and
(c) the person refuses to answer the
question or produce the document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
General defence of reasonable excuse
(5) Subsection (1), (2), (3) or (4) does
not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
173
Offences relating to the Tribunal
Insulting a member
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct insults or
disturbs a member in the exercise of his or her powers or functions as a
member.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Interrupting proceedings of the Tribunal
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct interrupts
the proceedings of the Tribunal.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Using insulting language
(3) A person commits an offence if:
(a) the person uses insulting language
towards another person; and
(b) the other person is a member.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Creating a disturbance
(4) A person
commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct creates a
disturbance in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Taking part in creating or continuing a disturbance
(5) A person commits an offence if:
(a) the person takes part in creating
or continuing a disturbance; and
(b) the disturbance is in or near a
place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Contravention of direction limiting publication of
evidence
(6) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a
direction of the Tribunal under paragraph 163(2)(b).
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Contempt of Tribunal
(7) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct would, if the
Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
Definition of engage
in conduct
(8) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
174
Costs of proceedings
(1) The Tribunal may order that the costs of
any proceedings before it incurred by any party, or a part of those costs,
shall be paid by any other party and may tax or settle the amount of the costs
to be so paid, or specify the manner in which they are to be taxed.
(1A) In taxing or settling under subsection (1)
the amount of the costs, or of a part of the costs, of any proceedings before
the Tribunal incurred by a party, the Tribunal or the person or persons taxing
or settling those costs, as the case may be, shall allow so much only of the
amount as in the opinion of the Tribunal or the person or persons, as the case
may be, would be allowed if the proceedings were proceedings before the Federal
Court of Australia and the costs were taxed under the Federal Court Rules.
(2) Costs directed by the Tribunal to be paid
to a party may be recovered by that party in any court of competent
jurisdiction.
(2A) In any proceedings before a court under subsection (2)
for the recovery of costs directed by the Tribunal to be paid to a party, a
certificate signed by the Registrar that states that the costs have been taxed
or the amount of the costs has been settled and sets out the amount of the
costs as so taxed or settled is prima facie evidence of the matters
stated in the certificate.
175
Proof of orders of Tribunal
Without prejudice to any other method
available by law for the proof of orders of the Tribunal, a document purporting
to be a copy of such an order, and to be certified by the Registrar to be a
true copy of the order, is, in any proceeding, evidence of the order.
Part VII—The Crown
Division 1—Crown copyright
176
Crown copyright in original works made under direction of Crown
(1) Where, apart from this section, copyright
would not subsist in an original literary, dramatic, musical or artistic work
made by, or under the direction or control of, the Commonwealth or a State,
copyright subsists in the work by virtue of this subsection.
(2) The Commonwealth or a State is, subject
to this Part and to Part X, the owner of the copyright in an original
literary, dramatic, musical or artistic work made by, or under the direction or
control of, the Commonwealth or the State, as the case may be.
177
Crown copyright in original works first published in Australia under
direction of Crown
Subject to this Part and to Part X,
the Commonwealth or a State is the owner of the copyright in an original
literary, dramatic, musical or artistic work first published in Australia if
first published by, or under the direction or control of, the Commonwealth or
the State, as the case may be.
178
Crown copyright in recordings and films made under direction of Crown
(1) Where, apart from this section, copyright
would not subsist in a sound recording or cinematograph film made by, or under
the direction or control of, the Commonwealth or a State, copyright subsists in
the recording or film by virtue of this subsection.
(2) The Commonwealth or a State is, subject
to this Part and to Part X, the owner of the copyright in a sound
recording or cinematograph film made by, or under the direction or control of,
the Commonwealth or the State, as the case may be.
179
Provisions relating to ownership of copyright may be modified by agreement
The last three preceding sections have
effect subject to any agreement made by, or on behalf of, the Commonwealth or a
State with the author of the work or with the maker of the sound recording or
cinematograph film, as the case may be, by which it is agreed that the
copyright in the work, recording or film is to vest in the author or maker, or
in another person specified in the agreement.
180
Duration of Crown copyright in original works
(1) Copyright in a literary, dramatic or
musical work of which the Commonwealth or a State is the owner, or would, but
for an agreement to which the last preceding section applies, be the owner:
(a) where the work is
unpublished—continues to subsist so long as the work remains unpublished; and
(b) where the work is
published—subsists, or, if copyright in the work subsisted immediately before
its first publication, continues to subsist, until the expiration of 50 years
after the expiration of the calendar year in which the work was first published.
(2) Subject to the next succeeding
subsection, copyright in an artistic work of which the Commonwealth or a State
is the owner, or would, but for an agreement to which the last preceding
section applies, be the owner, continues to subsist until the expiration of 50 years
after the expiration of the calendar year in which the work was made.
(3) Copyright in an engraving or photograph
of which the Commonwealth or a State is the owner, or would, but for an
agreement to which the last preceding section applies, be the owner, continues
to subsist until the expiration of 50 years after the expiration of the
calendar year in which the engraving or photograph is first published.
181
Duration of Crown copyright in recordings and films
Copyright
in a sound recording or cinematograph film of which the Commonwealth or a State
is the owner, or would, but for the operation of an agreement to which section 179
applies, be the owner, subsists until the expiration of 50 years after the
expiration of the calendar year in which the recording or film is first
published.
182
Application of Parts III and IV to copyright subsisting by virtue of this Part
(1) Part III (other than the provisions
of that Part relating to the subsistence, duration or ownership of copyright)
applies in relation to copyright subsisting by virtue of this Part in a
literary, dramatic, musical or artistic work in like manner as it applies in
relation to copyright subsisting in such a work by virtue of that Part.
(2) Part IV (other than the provisions
of that Part relating to the subsistence, duration or ownership of copyright)
applies in relation to copyright subsisting by virtue of this Part in a sound
recording or cinematograph film in like manner as it applies in relation to
copyright subsisting in such a recording or film by virtue of that Part.
182A
Copyright in statutory instruments and judgments etc.
(1) The copyright, including any prerogative
right or privilege of the Crown in the nature of copyright, in a prescribed
work is not infringed by the making, by reprographic reproduction, of one copy
of the whole or of a part of that work by or on behalf of a person and for a
particular purpose.
(2) Subsection (1) does not apply to the
making, by reprographic reproduction, of a copy of the whole or a part of the
work, where a charge is made for making and supplying that copy, unless the
amount of the charge does not exceed the cost of making and supplying that
copy.
(3) In subsection (1),
a prescribed work means:
(a) an
Act or State Act, an enactment of the legislature of a Territory or an
instrument (including an Ordinance or a rule, regulation or by‑law) made
under an Act, a State Act or such an enactment;
(b) a judgment, order or award of a
Federal court or of a court of a State or Territory;
(c) a judgment, order or award of a
Tribunal (not being a court) established by or under an Act or other enactment
of the Commonwealth, a State or a Territory;
(d) reasons for a decision of a court
referred to in paragraph (b), or of a Tribunal referred to in paragraph (c),
given by the court or by the Tribunal; or
(e) reasons given by a Justice, Judge
or other member of a court referred to in paragraph (b), or of a member of
a Tribunal referred to in paragraph (c), for a decision given by him or her
either as the sole member, or as one of the members, of the court or Tribunal.
Division 2—Use of copyright material for the Crown
182B
Definitions
(1) Subject to subsection (2), in this
Division:
collecting society means a company in respect
of which a declaration is in force under section 153F.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
government means the Commonwealth or a State.
Note: State includes the Australian Capital
Territory, the Northern Territory and Norfolk Island: see paragraph 10(3)(n),
as modified by the A.C.T. Self‑Government (Consequential Provisions)
Regulations (Amendment) (Statutory Rules 1989 No. 392).
government copy means a reproduction in a
material form of copyright material made under subsection 183(1).
(2) A reference in subsection (1) to a
work does not include a reference to a literary work that consists of a
computer program or a compilation of computer programs.
182C
Relevant collecting society
A company is the relevant collecting
society in relation to a government copy if there is in force, under Division 3
of Part VI, a declaration of the company as the collecting society for the
purposes of this Division in relation to:
(a) all government copies; or
(b) a class of government copies that
includes the first‑mentioned government copy.
183
Use of copyright material for the services of the Crown
(1) The copyright in a literary, dramatic,
musical or artistic work or a published edition of such a work, or in a sound
recording, cinematograph film, television broadcast or sound broadcast, is not
infringed by the Commonwealth or a State, or by a person authorized in writing
by the Commonwealth or a State, doing any acts comprised in the copyright if
the acts are done for the services of the Commonwealth or State.
(2) Where the Government of the Commonwealth
has made an agreement or arrangement with the Government of some other country
for the supply to that country of goods required for the defence of that
country:
(a) the doing of any act in connexion
with the supply of those goods in pursuance of the agreement or arrangement;
and
(b) the
sale to any person of such of those goods as are not required for the purposes
of the agreement or arrangement;
shall, for the purposes of the last preceding subsection,
be each deemed to be for the services of the Commonwealth.
(3) Authority may be given under subsection (1)
before or after the acts in respect of which the authority is given have been
done, and may be given to a person notwithstanding that he or she has a licence
granted by, or binding on, the owner of the copyright to do the acts.
(4) Where an act comprised in a copyright has
been done under subsection (1), the Commonwealth or State shall, as soon
as possible, unless it appears to the Commonwealth or State that it would be contrary
to the public interest to do so, inform the owner of the copyright, as
prescribed, of the doing of the act and shall furnish him or her with such
information as to the doing of the act as he or she from time to time
reasonably requires.
(5) Where an act comprised in a copyright has
been done under subsection (1), the terms for the doing of the act are
such terms as are, whether before or after the act is done, agreed between the
Commonwealth or the State and the owner of the copyright or, in default of
agreement, as are fixed by the Copyright Tribunal.
(6) An
agreement or licence (whether made or granted before or after the commencement
of this Act) fixing the terms upon which a person other than the Commonwealth
or a State may do acts comprised in a copyright is inoperative with respect to
the doing of those acts, after the commencement of this Act, under subsection (1),
unless the agreement or licence has been approved by the Attorney‑General
of the Commonwealth or the Attorney‑General of the State.
(7) Where an article is sold and the sale is
not, by virtue of subsection (1), an infringement of a copyright, the
purchaser of the article, and a person claiming through him or her, is entitled
to deal with the article as if the Commonwealth or State were the owner of that
copyright.
(8) An act done under subsection (1)
does not constitute publication of a work or other subject‑matter and
shall not be taken into account in the application of any provision of this Act
relating to the duration of any copyright.
(9) Where an exclusive licence is in force in
relation to any copyright, the preceding subsections of this section have
effect as if any reference in those subsections to the owner of the copyright
were a reference to the exclusive licensee.
(11) The reproduction, copying or communication
of the whole or a part of a work or other subject‑matter for the
educational purposes of an educational institution of, or under the control of,
the Commonwealth, a State or the Northern Territory shall, for the purposes of
this section, be deemed not to be an act done for the services of the
Commonwealth, that State or the Northern Territory.
183A
Special arrangements for copying for services of government
(1) Subsections 183(4) and (5) do not apply
in relation to a government copy (whenever it was made) if a company is the
relevant collecting society for the purposes of this Division in relation to
the copy and the company has not ceased operating as that collecting society.
(2) If subsection 183(5) does not apply to
government copies made in a particular period for the services of a government,
the government must pay the relevant collecting society in relation to those
copies (other than excluded copies) equitable remuneration worked out for that
period using a method:
(a) agreed on by the collecting
society and the government; or
(b) if there is no
agreement—determined by the Tribunal under section 153K.
(3) The method of working out equitable
remuneration payable to a collecting society in respect of government copies
(other than excluded copies) for a period must:
(a) take into account the estimated
number of those copies made for the services of the government during the
period, being copies in relation to which the society is the relevant
collecting society; and
(b) specify the sampling system to be
used for estimating the number of copies for the purposes of paragraph (a).
(4) The method of working out the equitable
remuneration payable may provide for different treatment of different kinds or
classes of government copies.
(5) Subsections (3) and (4) apply
whether the method is agreed on by the collecting society and the government or
is determined by the Tribunal.
(6) In this section:
excluded copies means government copies in
respect of which it appears to the government concerned that it would be
contrary to the public interest to disclose information about the making of the
copies.
183B
Payment and recovery of equitable remuneration payable for government copies
(1) Equitable remuneration payable to a
collecting society under subsection 183A(2) must be paid:
(a) in the manner, and at the times,
agreed on by the collecting society and the government; or
(b) if the Tribunal has made an order
under subsection 153K(3) specifying how and when payments are to be made—in the
manner, and at the times, specified in the order.
(2) If equitable remuneration is not paid in
accordance with the agreement or the Tribunal’s order, the collecting society
may recover the remuneration as a debt due to the society in a court of
competent jurisdiction.
183C
Powers of collecting society to carry out sampling
(1) This section applies if the method of
working out equitable remuneration payable under subsection 183A(2) for
government copies made for the services of a government has been agreed on by
the government and the relevant collecting society or has been determined by
the Tribunal.
(2) The collecting society may give written
notice to the government that the society wishes to carry out sampling in
accordance with the method during a specified period at specified premises
occupied by the government. The period specified must not start earlier than 7
days after the day on which the notice is given.
(3) The government may give the collecting
society a written objection, based on reasonable grounds, to the proposal to
carry out sampling during the period, or at the premises, specified in the
notice. However, if it does so, the notice of objection must propose an
alternative period during which, or alternative premises at which, as the case
may be, sampling may be carried out.
(4) If the
government gives the collecting society an objection, sampling may not be
carried out during the period, or at the premises, to which the objection
relates unless the objection is withdrawn.
(5) If the government has not objected, or
has withdrawn any objection it made, before or during the specified period, a
person authorised in writing by the society may, during that period, enter the
premises specified in the notice and carry out sampling in accordance with the
method on any ordinary working day for government staff who work in the
premises.
(6) The government must take reasonable steps
to ensure that the person who attends at the premises is given all reasonable
and necessary facilities and assistance for carrying out the sampling.
183D
Annual report and accounts of collecting society
(1) As soon as practicable after the end of
each financial year, a company that was a collecting society during any part of
the year must prepare a report of its operations as a collecting society during
the year and send a copy of the report to the Attorney‑General.
(2) A collecting society must keep accounting
records correctly recording and explaining the transactions of the society
(including any transactions as trustee) and the financial position of the
society.
(3) Accounting records must be kept in a
manner that will enable true and fair accounts of the society to be prepared
from time to time and to be conveniently and properly audited.
(4) As soon as practicable after the end of
each financial year, a company that was a collecting society during any part of
the year must:
(a) have its accounts audited by an
auditor who is not a member of the society; and
(b) give a copy of the audited accounts
and the auditor’s report on the audit to the Attorney‑General.
(5) The
Attorney‑General must cause a copy of a document given to the Attorney‑General
under subsection (1) or paragraph (4)(b) to be laid before each House
of the Parliament within 15 sitting days of that House after the Attorney‑General
received the document.
(6) A collecting society must give its
members reasonable access to copies of:
(a) all reports and audited accounts
prepared by it under this section; and
(b) all auditors’ reports on the audit
of the accounts.
(7) This section does not affect any
obligations of a collecting society relating to the preparation and lodging of
annual returns or accounts under the law under which it is incorporated.
183E
Alteration of rules of collecting society
If a collecting society alters its
rules, it must give a copy of the altered rules, together with a statement of
the effects of, and reasons for, the alteration, to the Attorney‑General
and the Tribunal within 21 days after the day on which the alteration was made.
183F
Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a
collecting society may apply to the Copyright Tribunal for review of the
arrangement adopted, or proposed to be adopted, by the collecting society for
distributing amounts it collects in a period.
(2) If the Tribunal makes an order under
section 153KA varying the arrangement or substituting for it another
arrangement, the arrangement reflecting the Tribunal’s order has effect as if
it had been adopted in accordance with the collecting society’s rules, but does
not affect a distribution started before the order was made.
Part VIII—Extension or restriction of operation of Act
184
Application of Act to countries other than Australia
(1) Subject to this section, the regulations
may make provision applying any of the provisions of this Act (other than those
of Part XIA) specified in the regulations, in relation to a country (other
than Australia) so specified, in any one or more of the following ways:
(a) so that the provisions apply in
relation to literary, dramatic, musical or artistic works or editions first
published, or sound recordings or cinematograph films made or first published,
in that country in like manner as those provisions apply in relation to
literary, dramatic, musical or artistic works or editions first published, or
sound recordings or cinematograph films made or first published, in Australia;
(b) so that the provisions apply in
relation to artistic works that are buildings situated in that country or are
attached to, or form part of, buildings situated in that country in like manner
as those provisions apply in relation to artistic works that are buildings
situated in Australia or are attached to, or form part of, buildings situated
in Australia;
(c) so that the provisions apply in
relation to persons who, at a material time, are citizens or nationals of that
country in like manner as those provisions apply in relation to persons who, at
such a time, are Australian citizens;
(d) so that the provisions apply in
relation to persons who, at a material time, are resident in that country in
like manner as those provisions apply in relation to persons who, at such a
time, are resident in Australia;
(e) so that the provisions apply in
relation to bodies incorporated under the law of that country in like manner as
those provisions apply in relation to bodies incorporated under a law of the
Commonwealth or of a State;
(f) so
that the provisions apply in relation to television broadcasts and sound
broadcasts made from places in that country by persons entitled under the law
of that country to make such broadcasts in like manner as those provisions
apply in relation to television broadcasts and sound broadcasts made from
places in Australia by the Australian Broadcasting Corporation, by the Special
Broadcasting Service Corporation, by a holder of a licence allocated by the Australian
Communications and Media Authority under the Broadcasting Services Act 1992 or
by a person authorised to make the broadcast by a class licence determined by
that Authority under that Act.
(2) Regulations applying a provision of this
Act in relation to a country other than Australia in accordance with the last
preceding subsection:
(a) may apply the provision without
exception or modification or subject to such exceptions or modifications as are
specified in the regulations; and
(b) may apply the provision either
generally or in relation to such classes of works or other subject‑matter,
or other classes of cases, as are specified in the regulations.
(3) Regulations applying any of the
provisions of this Act in relation to a country, not being a country that is a
party to a Convention relating to copyright to which Australia is also a party,
shall not be made unless the Governor‑General is satisfied that, in
respect of the class of works or other subject‑matter to which those
provisions relate, provision has been or will be made under the law of that
country by virtue of which adequate protection is or will be given to owners of
copyright under this Act.
(4) Where:
(a) the identity of the author of an
unpublished work is unknown but there are reasonable grounds for believing that
the author of the work was, at the time when, or for a substantial part of the
period during which, the work was made, a citizen or national of a country
other than Australia;
(b) under the law of that country, a
person is authorized to represent the author, or to protect and enforce the
rights of the author, in relation to that work; and
(c) provision
is made by the regulations applying any of the provisions of this Act in
relation to works made by citizens or nationals of that country;
that person shall, for the purposes of those provisions as
so applying, be treated as if he or she were the author of the work.
185
Denial of copyright to citizens of countries not giving adequate protection to
Australian works
(1) If it appears to the Governor‑General
that the law of a country does not give adequate protection to Australian
works, or does not give adequate protection in relation to a class or classes
of such works (whether the lack of protection relates to the nature of the work
or the nationality, citizenship or country of residence of its author, or all of
those matters), the regulations may make provision in relation to that country
in accordance with the next succeeding subsection.
(2) Regulations made for the purposes of this
section may provide, either generally or in such classes of cases as are specified
in the regulations, that copyright under this Act does not subsist in works
first published after a date specified in the regulations (which may be a date
before the commencement of the regulations or before the commencement of this
Act) if, at the time of the first publication of those works, the authors of
the works were or are:
(a) citizens or nationals of a country
specified in the regulations, not being at that time persons resident in Australia;
or
(b) in the case of works being sound
recordings or cinematograph films—bodies incorporated under the law of a
country specified in the regulations.
(3) In making regulations for the purposes of
this section, the Governor‑General shall have regard to the nature and
extent of the lack of protection for Australian works by reason of which the
regulations are made.
(4) In this
section:
Australian work means a work the author of
which was, at the time when the work was made, a qualified person for the
purposes of the relevant provision of this Act.
author, in relation to a sound recording or a
cinematograph film, means the maker of the recording or film.
the relevant provision of this Act means:
(a) in relation to a literary,
dramatic, musical or artistic
work—section 32; and
(b) in relation to a sound recording
or a cinematograph
film—Part IV.
work means a literary, dramatic, musical or
artistic work, a sound recording or a cinematograph film.
186
Application of Act to international organizations
(1) Where it appears to the Governor‑General
that it is desirable that this Act should apply in relation to an organization:
(a) of which 2 or more countries, or
the Governments of 2 or more countries, are members; or
(b) that
is constituted by persons representing 2 or more countries, or representing the
Governments of 2 or more countries;
the regulations may declare that organization to be an
international organization to which this Act applies.
(2) An international organization to which
this Act applies that otherwise does not have, or at some material time
otherwise did not have, the legal capacities of a body corporate has, and shall
be deemed at all material times to have had, the legal capacities of a body
corporate for the purpose of holding, dealing with and enforcing copyright and
for the purposes of all legal proceedings relating to copyright.
187
Original works made or first published by international organizations
(1) Where an original literary, dramatic,
musical or artistic work is made by, or under the direction or control of, an
international organization to which this Act applies in such circumstances that
copyright would not, apart from this subsection, subsist in the work:
(a) copyright subsists in the work;
(b) that copyright subsists so long as
the work remains unpublished; and
(c) the organization is, subject to
Part X, the owner of that copyright.
(2) Where an original literary, dramatic,
musical or artistic work is first published by, or under the direction or
control of, an international organization to which this Act applies in such
circumstances that copyright would not, apart from this subsection, subsist in
the work immediately after the first publication of the work:
(a) copyright subsists in the work,
or, if copyright in the work subsisted immediately before its first publication,
continues to subsist in the work;
(b) that copyright subsists until the
end of 70 years after the end of the calendar year in which the work was first
published; and
(c) the organization is, subject to
Part X, the owner of that copyright.
(3) Part III, other than the provisions
of that Part relating to the subsistence, duration or ownership of copyright,
applies in relation to copyright subsisting by virtue of this section in like
manner as it applies in relation to copyright subsisting by virtue of that
Part.
188
Subject‑matter, other than original works, made or first published by
international organizations
(1) Where a sound recording or a
cinematograph film is made by, or under the direction or control of, an
international organization to which this Act applies in such circumstances that
copyright would not, apart from this subsection, subsist in the recording or
film:
(a) copyright subsists in the
recording or film;
(b) that copyright subsists so long as
the recording or film remains unpublished; and
(c) the organization is, subject to
Part X, the owner of that copyright.
(2) Where a
sound recording or a cinematograph film is first published by, or under the
direction or control of, an international organization to which this Act
applies in such circumstances that copyright would not, apart from this
subsection, subsist in the recording or film immediately after the first
publication of the recording or film:
(a) copyright subsists in the
recording or film, or, if copyright in the recording or film subsisted
immediately before its first publication, continues to subsist in the recording
or film;
(b) that copyright subsists until the
end of 70 years after the end of the calendar year in which the recording or
film was first published; and
(c) the organization is, subject to
Part X, the owner of that copyright.
(3) Where an edition of a literary, dramatic,
musical or artistic work or of 2 or more literary, dramatic, musical or
artistic works, other than an edition that reproduces a previous edition of the
same work or works, is published by, or under the direction or control of, an
international organization to which this Act applies in such circumstances that
copyright would not, apart from this subsection, subsist in the edition immediately
after the first publication of the edition:
(a) copyright subsists in the edition;
(b) that copyright subsists until the end
of 25 years after the end of the calendar year in which the edition was first
published; and
(c) the organization is, subject to
Part X, the owner of that copyright.
(4) Part IV, other than the provisions
of that Part relating to the subsistence, duration or ownership of copyright,
applies in relation to copyright subsisting by virtue of this section in like
manner as it applies in relation to copyright subsisting by virtue of that
Part.
Part IX—Moral rights of performers and of authors of literary,
dramatic, musical or artistic works and cinematograph films
Division 1—Preliminary
189
Definitions
In this
Part, unless the contrary intention appears:
act of false attribution:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195AHA(2).
artistic work means an artistic work in which
copyright subsists.
attributable act:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 193(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195ABA(2).
attributor:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195AHA(2).
author, in relation to a cinematograph film,
means the maker of the film.
cinematograph film means the complete and
final version of a cinematograph film in which copyright subsists.
copy record means a record so far as it
embodies:
(a) a recorded performance; or
(b) a substantial part of a recorded
performance;
being a record derived directly or indirectly from an
original record of the performance.
deal means sell, let for hire, by way of
trade offer or expose for sale or hire, exhibit in public, or distribute and,
in Divisions 3 and 3A, includes publish.
derogatory treatment:
(a) in relation to an author’s moral
rights—has the relevant meaning given by Division 4; and
(b) in relation to a performer’s moral
rights—has the meaning given by section 195ALB.
director, in relation to a cinematograph
film, has a meaning affected by section 191.
dramatic work means a dramatic work in which
copyright subsists.
infringing article
means:
(a) in relation to an author’s moral
rights:
(i) an article that
embodies a literary, dramatic, musical or artistic work, or a cinematograph
film, whether or not the article bears or contains other material; or
(ii) a reproduction of, or
of an adaptation of, a literary, dramatic or musical work; or
(iii) a reproduction of an
artistic work; or
(iv) a copy of a
cinematograph film;
being a work or film in respect
of which a moral right of the author has been infringed, other than by
derogatory treatment not involving the material distortion or alteration of, or
the mutilation of, the work or film; and
(b) in relation to the moral rights of
a performer in a live performance:
(i) a copy record of the
live performance, where the making of the copy record has infringed the
performer’s right of attribution of performership; or
(ii) a record embodying the
live performance, where a person’s name is inserted or affixed on the record
and the inserting or affixing has infringed the performer’s right not to have
performership falsely attributed; or
(iii) a record embodying the
live performance, where the record also embodies sounds the making of which
have infringed the performer’s right not to have performership falsely
attributed; or
(iv) a record embodying the
live performance, being the live performance as affected by derogatory
treatment that has infringed the performer’s right of integrity of
performership; and
(c) in relation to the moral rights of
a performer in a recorded performance:
(i) a copy record of the
recorded performance, where the making of the copy record has infringed the
performer’s right of attribution of performership; or
(ii) a record embodying the
recorded performance, where a person’s name is inserted or affixed on the
record and the inserting or affixing has infringed the performer’s right not to
have performership falsely attributed; or
(iii) a copy record of the
recorded performance, where dealings with the copy as a copy of an unaltered
recorded performance have infringed the performer’s right not to have
performership falsely attributed; or
(iv) a record embodying the
recorded performance, being a record that incorporates derogatory treatment
that has infringed the performer’s right of integrity of performership.
literary work means a literary work in which
copyright subsists.
maker, in relation to a cinematograph film,
means the director of the film, the producer of the film and the screenwriter
of the film.
moral right means:
(a) in relation to an author:
(i) a right of attribution
of authorship; or
(ii) a right not to have
authorship falsely attributed; or
(iii) a right of integrity
of authorship; and
(b) in relation to a performer:
(i) a right of attribution
of performership; or
(ii) a right not to have
performership falsely attributed; or
(iii) a right of integrity
of performership.
musical work means a musical work in which
copyright subsists.
name, in Divisions 3 and 3A, includes a
pseudonym, initials or a monogram.
original record means a record produced upon
the making of a sound recording of a live performance.
Note: The sound track of a cinematograph film is
treated as not being a sound recording: see section 23.
performance means a performance within the
meaning of Part XIA, so far as the performance consists of sounds.
performer in a performance:
(a) means each person who contributed
to the sounds of the performance; and
(b) in relation to a performance that
occurs outside Australia, does not include a person who is not a qualified
person at the time of the performance.
Note: See also section 191B, which deals with
the conductor of a musical performance.
performership means participation in a
performance, as the performer or one of the performers.
person representing the author, in relation
to a possible infringement of any of an author’s moral rights in respect of a
work, means a person who, under subsection 195AN(1) or (2), is entitled to
exercise and enforce the moral right concerned.
person representing the performer means a
person who, under subsection 195ANB(1) or (2), is entitled to exercise and
enforce a performer’s moral right.
producer, in relation to a cinematograph
film, has the meaning given by section 191.
qualified person has the same meaning as in
Part XIA.
recorded performance means a performance
embodied in a record so as to constitute a sound recording.
record embodying a performance means:
(a) an original record of a performance;
or
(b) a copy record of a performance.
right not to have performership falsely attributed
has the meaning given by Division 3A.
right of attribution of authorship has the
meaning given by Division 2.
right of attribution of performership has the
meaning given by Division 2A.
right of integrity of
authorship has the meaning given by Division 4.
right of integrity of performership has the
meaning given by Division 4A.
right not to have authorship falsely attributed
has the meaning given by Division 3.
screenwriter, in relation to a cinematograph
film, means the person who wrote the script or screenplay of the film, as that
meaning is affected by section 191.
sound recording means a sound recording in
which copyright subsists.
staged, in relation to a live performance,
has the meaning given by section 191A.
work means a literary work, a dramatic work,
a musical work, an artistic work or a cinematograph film.
190
Moral rights conferred on individuals
Only individuals have moral rights.
191 Director, producer and screenwriter of
cinematograph film
(1) A reference in this Part to the director
of a cinematograph film in the direction of which 2 or more individuals were
involved is a reference to the principal director of the film and does not
include a reference to any subsidiary director, whether described as an
associate director, line director, assistant director or in any other way.
(2) A reference in this Part to the producer
of a cinematograph film is a reference to:
(a) the individual who was the
producer of the film; or
(b) if there were 2 or more
individuals involved in the production of the film—the individual who was the
principal producer of the film;
and does not include a reference to any subsidiary
producer, whether described as an executive producer, associate producer, line
producer, assistant producer or in any other way.
(3) As only individuals have moral rights
(see section 190), if the producer of a cinematograph film was a body
corporate, the only moral rights in respect of the film are those of the
director and screenwriter.
(4) A reference in this Part to the
screenwriter of a cinematograph film for which 2 or more individuals were
involved in the writing of the script or screenplay is a reference to the
principal screenwriter.
Note: If there were 2 or more principal directors, 2
or more individuals who were the principal producers, or 2 or more principal
screenwriters, of a cinematograph film, section 195AZJ, 195AZK or 195AZL
applies.
191A
Staging a performance
For the purposes of this Part, a live
performance is staged by the person who makes the arrangements
necessary for the performance (including elements of the performance not
consisting of sounds) to take place.
191B
Conductor to be treated as a performer
If a performance of a musical work is
conducted by a conductor, then the sounds of the performance are to be treated
as having been made by the conductor (as well as by the persons who actually
made those sounds).
Note: As a consequence, the conductor will be able to
be treated as being one of the performers. Note, however, the qualified person
requirement in the definition of performer in section 189.
192
Rights to be additional to other rights
(1) The moral rights of the author of a work
are in addition to any other rights in relation to the work that the author or
anyone else has under this Act.
(2) The moral rights of a performer in a live
performance or recorded performance are in addition to any other rights in
relation to the performance that the performer or anyone else has under this
Act.
Division 2—Right of attribution of authorship
193
Author’s right of attribution of authorship
(1) The author
of a work has a right of attribution of authorship in respect of the work.
(2) The author’s right is the right to be
identified in accordance with this Division as the author of the work if any of
the acts (the attributable acts) mentioned in section 194
are done in respect of the work.
194
Acts giving rise to right of attribution of authorship
(1) If the
work is a literary, dramatic or musical work, the attributable acts
are the following:
(a) to reproduce the work in a
material form;
(b) to publish the work;
(c) to perform the work in public;
(d) to communicate the work to the
public;
(e) to make an adaptation of the work.
(2) If the work is an artistic work, the attributable
acts are the following:
(a) to reproduce the work in a
material form;
(b) to publish the work;
(c) to exhibit the work to the public;
(d) to communicate the work to the
public.
(3) If the work is a cinematograph film, the attributable
acts are the following:
(a) to make a copy of the film;
(b) to exhibit the film in public;
(c) to communicate the film to the
public.
195
Nature of the identification of author
(1) Subject to
subsection (2), the author of a work may be identified by any reasonable
form of identification.
(2) If:
(a) the author of a work has made
known, either generally or to a person who is required under this Part to
identify the author, that the author wishes to be identified in a particular
way; and
(b) the identification of the author
in that way is reasonable in the circumstances;
the identification is to be made in that way.
195AA
Identification of author to be clear and reasonably prominent
An identification of the author of a
work must be clear and reasonably prominent.
195AB
What is a reasonably prominent identification
When a literary, dramatic, musical or
artistic work is reproduced in a material form, an adaptation is made of a
literary, dramatic or musical work, or a copy of a cinematograph film is made,
an identification of the author is taken to be reasonably prominent if it is
included on each reproduction of the work or of the adaptation or on each copy
of the film, as the case may be, in such a way that a person acquiring the
reproduction or copy will have notice of the author’s identity.
Division 2A—Right of attribution of performership
195ABA
Performer’s right of attribution of performership
(1) A
performer in a live performance or recorded performance has a right of
attribution of performership in respect of the performance.
(2) The performer’s right is the right to be
identified in accordance with this Division as a performer in the performance
if any of the acts (the attributable acts) mentioned in section 195ABB
are done in respect of the performance.
Note: If there is more than one performer in a
performance, then each performer has a right of attribution of performership:
see subsection 195AZQ(2).
195ABB
Acts giving rise to right of attribution of performership
(1) The attributable
acts for a live performance are the following:
(a) communicating the live performance
to the public;
(b) staging the live performance in
public.
Note: For the definition of staged,
see section 191A.
(2) The attributable
acts for a recorded performance are the following:
(a) making a copy record of the
recorded performance;
(b) communicating the recorded
performance to the public.
195ABC
Nature of the identification of performer
(1) Subject to
this section, a performer may be identified by any reasonable form of
identification.
(2) If:
(a) a performer has made known, either
generally or to a person who is required under this Part to identify the
performer, that the performer wishes to be identified in a particular way; and
(b) the identification of the
performer in that way is reasonable in the circumstances;
the identification is to be made in that way.
(3) If a performance is presented by
performers who use a group name, then identification by using the group name is
sufficient identification of the performers in the group.
195ABD
Identification of performer to be clear and reasonably prominent or audible
An identification of a performer must be
clear and reasonably prominent or reasonably audible.
195ABE
What is a reasonably prominent identification
When a copy record is made of a recorded
performance, an identification of a performer or group of performers is taken
to be reasonably prominent if it is included on each copy record of the
recorded performance in such a way that a person acquiring the copy record will
have notice of the identity of the performer or group.
Division 3—Right not to have authorship of a work falsely attributed
195AC
Author’s right not to have authorship falsely attributed
(1) The author of a work has a right not to
have authorship of the work falsely attributed.
(2) The author’s right is the right not to
have a person (the attributor) do, in respect of the work, any of
the acts (the acts of false attribution) mentioned in the
following provisions of this Division.
195AD
Acts of false attribution of authorship of a literary, dramatic or musical work
If the
work is a literary, dramatic or musical work, it is an act of false attribution
in relation to the author of the work:
(a) to insert or affix, or to
authorise the inserting or affixing of, a person’s name in or on the work, or
in or on a reproduction of the work, in such a way as:
(i) to imply falsely that
the person is the author or an author of the work; or
(ii) to imply falsely that
the work is an adaptation of a work of the person; or
(b) to deal with the work with a
person’s name so inserted or affixed, if the attributor knows that the person
is not an author of the work or that the work is not an adaptation of a work of
the person, as the case may be; or
(c) to deal with a reproduction of the
work, being a reproduction in or on which a person’s name has been so inserted
or affixed, if the attributor knows that the person is not an author of the
work or that the work is not an adaptation of a work of the person, as the case
may be; or
(d) to perform the work in public, or
communicate it to the public, as being a work of which a person is the author
or as being an adaptation of a work of a person, if the attributor knows that
the person is not an author of the work or that the work is not an adaptation
of the work of the person, as the case may be.
195AE
Acts of false attribution of authorship of artistic work
(1) This section applies if the work is an
artistic work.
(2) It is an act of false attribution in
relation to the author of the work:
(a) to insert or affix, or to
authorise the inserting or affixing of, a person’s name in or on the work, or
in or on a reproduction of the work, or to use, or to authorise the use of, a
person’s name in connection with the work, or in connection with a reproduction
of the work, in such a way as to imply falsely that the person is an author of
the work; or
(b) to deal with the work with a
person’s name so inserted or affixed, if the attributor knows that the person
is not an author of the work; or
(c) to deal with a reproduction of the
work, being a reproduction in or on which a person’s name has been so inserted
or affixed, if the attributor knows that the person is not an author of the
work; or
(d) to communicate the work to the
public as being a work of which a person is the author, if the attributor knows
that the person is not an author of the work.
195AF
Acts of false attribution of authorship of cinematograph film
(1) This
section applies if the work is a cinematograph film.
(2) It is an act of false attribution in
relation to the director, producer or screenwriter of the film:
(a) to insert or affix, or to
authorise the inserting or affixing of, a person’s name on the film or on a
copy of the film in such a way as to imply falsely that the person is the
director, producer or screenwriter, as the case may be, of the film; or
(b) to
deal with the film or a copy of the film if a person’s name has been so
inserted or affixed on the film or a copy, as the case may be, and the
attributor knows that the person is not the director, producer or screenwriter,
as the case may be, of the film; or
(c) to communicate the film to the
public as being a film of which a person is the director, producer or
screenwriter, as the case may be, if the attributor knows that the person is
not the director, producer or screenwriter of the film.
195AG
Acts of false attribution of authorship of altered literary, dramatic, musical
or artistic work
(1) If the
work is a literary, dramatic, musical or artistic work that has been altered by
a person other than the author of the work, it is an act of false attribution
in relation to the author of the work:
(a) to deal with the work as so
altered, as being the unaltered work of the author; or
(b) to deal with a reproduction of the
work as so altered, as being a reproduction of the unaltered work of the
author;
if, to the knowledge of the attributor, it is not the
unaltered work or a reproduction of the unaltered work, as the case may be, of
the author.
(2) Subsection (1) does not apply if:
(a) the effect of the alteration is
insubstantial; or
(b) the alteration was required by law
to be made, or was otherwise necessary to avoid a breach of any law.
195AH
Act of false attribution of authorship of altered cinematograph film
(1) If the work is a cinematograph film that
has been altered by a person other than the maker of the film, it is an act of
false attribution in relation to the director, the producer and the
screenwriter of the film to deal with a copy of the film as so altered, as
being a copy of the unaltered film, if, to the knowledge of the attributor, the
copy of the film is not a copy of the unaltered film.
(2) Subsection (1) does not apply if:
(a) the effect of the alteration is
insubstantial; or
(b) the alteration was required by law
to be made, or was otherwise necessary to avoid a breach of any law.
Division 3A—Right not to have performership falsely attributed
195AHA
Performer’s right not to have performership falsely attributed
(1) A performer in a live performance or
recorded performance has a right not to have performership falsely attributed.
(2) A performer’s right is the right not to
have a person (the attributor) do, in respect of the live
performance or recorded performance (as the case may be), any of the acts (the acts
of false attribution) mentioned in sections 195AHB and 195AHC.
Note: If there is more than one performer in a
performance, then each performer has a right not to have performership falsely
attributed: see subsection 195AZQ(3).
195AHB
Acts of false attribution of performership
Acts of false attribution for live performances
(1) For a live performance, it is an act of
false attribution for the stager of the performance, or a person authorised by
the stager, to state falsely, or imply falsely, to the audience or intended
audience immediately before the performance that:
(a) a person is, or will be, a
performer in the performance; or
(b) the performance is being, or will
be, presented by a particular group of performers.
Note: For the definition of staged,
see section 191A.
Example 1: The
stager of a live performance given by X and Y attributes the performance to A
and B. This is an act of false attribution in relation to both X and Y.
Example 2: The
stager of a live performance given by X and Y attributes the performance to X
and A. This is an act of false attribution in relation to both X and Y (even
though X is mentioned in the attribution).
(2) For a live
performance, it is an act of false attribution for the stager of the
performance, or a person authorised by the stager, to state falsely, or imply
falsely, to the audience during the performance that:
(a) a person is, was, or will be a
performer in the performance; or
(b) the performance is being, was, or
will be, presented by a particular group of performers.
(3) For a live performance, it is an act of
false attribution for the stager of the performance, or a person authorised by
the stager, to state falsely, or imply falsely, to the audience immediately
after the performance that:
(a) a person was a performer in the
performance; or
(b) a particular group of performers
presented the performance.
(4) However, doing an act mentioned in subsection (1),
(2) or (3) is only an act of false attribution if the performance is in public
or is communicated to the public. For this purpose, any unauthorised
communication to the public is to be disregarded.
Acts of false attribution for recorded
performances—individual performers
(5) For a recorded performance, each of the
following acts is an act of false attribution:
(a) to insert or affix, or authorise
the inserting or affixing of, a person’s name in or on a record embodying the
performance in such a way as to imply falsely that the person is a performer in
the performance;
(b) to deal with a record embodying
the performance if:
(i) a person’s name has
been inserted or affixed in or on the record as mentioned in paragraph (a);
and
(ii) the attributor knows
that the person is not a performer in the performance;
(c) to communicate the recorded
performance to the public as being a performance in which a person is a
performer, if the attributor knows that the person is not a performer in the performance.
Acts of false attribution for recorded
performances—groups of performers
(6) For a recorded performance, each of the
following acts is an act of false attribution:
(a) to insert or affix, or authorise
the inserting or affixing of, a group name in or on a record embodying the
performance in such a way as to imply falsely that the group are performers in
the performance;
(b) to deal with a record embodying
the performance if:
(i) a group name has been
inserted or affixed in or on the record as mentioned in paragraph (a); and
(ii) the attributor knows
that the group are not performers in the performance;
(c) to communicate the recorded
performance to the public as being a performance in which a group are
performers, if the attributor knows that the group are not performers in the
performance.
Silent performers
(7) It is not an act of false attribution of
performership to state that a performer who participated silently in a
performance performed in the performance.
Example: X and Y together present a cabaret act in which X
sings and Y dances silently. The “performance” for the purposes of this Part
consists only of the sounds made by X. It is not an act of false attribution in
respect of the performance to state or imply that Y was also a performer.
195AHC
Act of false attribution of performership of altered recorded performance
(1) If the work is a recorded performance
that has been altered by a person other than a performer in the performance, it
is an act of false attribution of performership in relation to the performer to
deal with a copy of the recorded performance as so altered, as being a copy of
the unaltered recorded performance, if, to the knowledge of the attributor, the
copy of the recorded performance is not a copy of the unaltered recorded
performance.
(2) Subsection (1)
does not apply if:
(a) the
effect of the alteration is insubstantial; or
(b) the alteration was required by law
to be made, or was otherwise necessary to avoid a breach of any law.
Division 4—Right of integrity of authorship of a work
195AI
Author’s right of integrity of authorship
(1) The author
of a work has a right of integrity of authorship in respect of the work.
(2) The author’s right is the right not to
have the work subjected to derogatory treatment.
195AJ
Derogatory treatment of literary, dramatic or musical work
In this
Part:
derogatory treatment, in relation to a
literary, dramatic or musical work, means:
(a) the doing, in relation to the
work, of anything that results in a material distortion of, the mutilation of,
or a material alteration to, the work that is prejudicial to the author’s
honour or reputation; or
(b) the doing of anything else in
relation to the work that is prejudicial to the author’s honour or reputation.
195AK
Derogatory treatment of artistic work
In this
Part:
derogatory treatment, in relation to an
artistic work, means:
(a) the doing, in relation to the
work, of anything that results in a material distortion of, the destruction or
mutilation of, or a material alteration to, the work that is prejudicial to the
author’s honour or reputation; or
(b) an exhibition in public of the
work that is prejudicial to the author’s honour or reputation because of the
manner or place in which the exhibition occurs; or
(c) the doing of anything else in
relation to the work that is prejudicial to the author’s honour or reputation.
195AL
Derogatory treatment of cinematograph film
In this
Part:
derogatory treatment, in relation to a
cinematograph film, means:
(a) the doing, in relation to the
film, of anything that results in a material distortion of, the mutilation of,
or a material alteration to, the film that is prejudicial to the maker’s honour
or reputation; or
(b) the doing of anything else in
relation to the film that is prejudicial to the honour or reputation of the
maker of the film.
Division 4A—Right of integrity of performership
195ALA
Performer’s right of integrity of performership
(1) A
performer in a live performance or recorded performance has a right of
integrity of performership in respect of the performance.
(2) The performer’s right is the right not to
have the performance subjected to derogatory treatment.
Note: If there is more than one performer in a
performance, then each performer has a right of integrity of performership: see
subsection 195AZQ(4).
195ALB
Derogatory treatment of performance
In this Part:
derogatory treatment, in relation to a
performer in a live performance or recorded performance, means the doing, in
relation to the performance, of anything that results in a material distortion
of, the mutilation of, or a material alteration to, the performance that is
prejudicial to the performer’s reputation.
Division 5—Duration and exercise of moral rights
Subdivision A—Duration and exercise of moral rights of authors
195AM
Duration of author’s moral rights
(1) An author’s right of integrity of
authorship in respect of a cinematograph film continues in force until the
author dies.
(2) An author’s right of integrity of
authorship in respect of a work other than a cinematograph film continues in
force until copyright ceases to subsist in the work.
(3) An author’s moral rights (other than the
right of integrity of authorship) in respect of a work continue in force until
copyright ceases to subsist in the work.
195AN
Exercise of author’s moral rights
(1) If the
author of a work dies, the author’s moral rights (other than the right of
integrity of authorship in respect of a cinematograph film) in respect of the
work may be exercised and enforced by his or her legal personal representative.
(2) If the affairs of the author of a work
are lawfully administered by another person (except under a law for the relief
of bankrupt or
insolvent
debtors), the author’s moral rights may be exercised and enforced by the person
administering his or her affairs.
(3) Subject to this section, a moral right in
respect of a work is not transmissible by assignment, by will, or by devolution
by operation of law.
(4) If:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or
artistic work as included in a cinematograph film;
has 2 or more authors, the authors may enter into a
written co‑authorship agreement by which each of them agrees not to
exercise his or her right of integrity of authorship in respect of the film or
work, as the case may be, except jointly with the other author or authors.
(5) A co‑authorship agreement has
effect according to its terms.
Subdivision B—Duration and exercise of moral rights of performers
195ANA
Duration of performer’s moral rights for recorded performances
(1) A performer’s right of attribution of
performership in respect of a recorded performance continues in force until
copyright ceases to subsist in the recorded performance.
(2) A performer’s right not to have
performership falsely attributed in respect of a recorded performance continues
in force until copyright ceases to subsist in the recorded performance.
(3) A performer’s right of integrity of
performership in respect of a recorded performance continues in force until the
performer dies.
195ANB
Exercise of performer’s moral rights
(1) If a
performer in a live performance or recorded performance dies, the performer’s
moral rights in respect of the performance may be exercised and enforced by his
or her legal personal representative.
(2) If the affairs of a performer in a live
performance or recorded performance are lawfully administered by another person
(except under a law for the relief of bankrupt or insolvent debtors), the
performer’s moral rights may be exercised and enforced by the person
administering his or her affairs.
(3) Subject to this section, a moral right in
respect of a live performance or recorded performance is not transmissible by
assignment, by will, or by devolution by operation of law.
(4) If there are 2 or more performers in a
live performance or recorded performance, then the performers may enter into a
written co‑performership agreement by which each of them agrees not to
exercise his or her right of integrity of performership in respect of the live
performance or recorded performance, as the case may be, except jointly with
the other performer or performers.
(5) A co‑performership agreement has
effect according to its terms.
Division 6—Infringement of moral rights
Subdivision A—Infringement of moral rights of authors
195AO
Infringement of right of attribution of authorship
Subject
to this Subdivision, a person infringes an author’s right of attribution of
authorship in respect of a work if the person does, or authorises the doing of,
an attributable act in respect of the work without the identification of the
author in accordance with Division 2 as the author of the work.
195AP
Infringement of right not to have authorship falsely attributed
Subject
to this Subdivision, a person infringes an author’s right not to have
authorship of a work falsely attributed if the person does an act of false
attribution in respect of the work.
195AQ
Infringement of right of integrity of authorship
(1) This section has effect subject to this Subdivision.
(2) A person infringes an author’s right of
integrity of authorship in respect of a work if the person subjects the work,
or authorises the work to be subjected, to derogatory treatment.
(3) If a literary, dramatic or musical work
has been subjected to derogatory treatment of a kind mentioned in paragraph (a)
of the definition of derogatory treatment in section 195AJ
that infringes the author’s right of integrity of authorship in respect of the
work, a person infringes the author’s right of integrity of authorship in
respect of the work if the person does any of the following in respect of the
work as so derogatorily treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) performs it in public;
(d) communicates it to the public;
(e) makes an adaptation of it.
(4) If an
artistic work has been subjected to derogatory treatment of a kind mentioned in
paragraph (a) of the definition of derogatory treatment in
section 195AK that infringes the author’s right of integrity of authorship
in respect of the work, a person infringes the author’s right of integrity of
authorship in respect of the work if the person does any of the following in
respect of the work as so derogatorily treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) communicates it to the public.
(5) If a cinematograph film has been
subjected to derogatory treatment of a kind mentioned in paragraph (a) of
the definition of derogatory treatment in section 195AL that
infringes the author’s right of integrity of authorship in respect of the film,
a person infringes the author’s right of integrity of authorship in respect of
the film if the person does any of the following in respect of the film as so
derogatorily treated:
(a) makes a copy of it;
(b) exhibits it;
(c) communicates it to the public.
195AR
No infringement of right of attribution of authorship if it was reasonable not
to identify the author
(1) A person who does, or authorises the
doing of, an attributable act in respect of a work does not, because the author
of the work is not identified, infringe the author’s right of attribution of
authorship in respect of the work if the person establishes that it was
reasonable in all the circumstances not to identify the author.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances not to identify the author of a literary, dramatic,
musical or artistic work include the following:
(a) the nature of the work;
(b) the purpose for which the work is
used;
(c) the manner in which the work is
used;
(d) the context in which the work is
used;
(e) any practice, in the industry in
which the work is used, that is relevant to the work or the use of the work;
(f) any practice contained in a
voluntary code of practice, in the industry in which the work is used, that is
relevant to the work or the use of the work;
(g) any difficulty or expense that
would have been incurred as a result of identifying the author;
(h) whether the work was made:
(i) in the course of the
author’s employment; or
(ii) under a contract for
the performance by the author of services for another person;
(i) if the work has 2 or more
authors—their views about the failure to identify them.
(3) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances not to identify the maker of a cinematograph film
include the following:
(a) the nature of the film;
(b) whether the primary purpose for
which the film was made was for exhibition at cinemas, for broadcasting by
television or for some other purpose;
(c) the purpose for which the film is
used;
(d) the manner in which the film is
used;
(e) the context in which the film is
used;
(f) any practice, in the industry in
which the film is used, that is relevant to the film or the use of the film;
(g) any practice contained in a
voluntary code of practice, in the industry in which the film is used, that is
relevant to the film or the use of the film;
(h) any difficulty or expense that
would have been incurred as a result of identifying the maker;
(i) whether the film was made in the
course of the employment of the director, producer or screenwriter.
195AS
No infringement of right of integrity of authorship if derogatory treatment or
other action was reasonable
(1) A person
does not, by subjecting a work, or authorising a work to be subjected, to
derogatory treatment, infringe the author’s right of integrity of authorship in
respect of the work if the person establishes that it was reasonable in all the
circumstances to subject the work to the treatment.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances to subject a literary, dramatic, musical or
artistic work to derogatory treatment include the following:
(a) the nature of the work;
(b) the purpose for which the work is
used;
(c) the manner in which the work is
used;
(d) the context in which the work is
used;
(e) any practice, in the industry in
which the work is used, that is relevant to the work or the use of the work;
(f) any practice contained in a
voluntary code of practice, in the industry in which the work is used, that is
relevant to the work or the use of the work;
(g) whether the work was made:
(i) in the course of the
author’s employment; or
(ii) under a contract for
the performance by the author of services for another person;
(h) whether the treatment was required
by law or was otherwise necessary to avoid a breach of any law;
(i) if the work has 2 or more
authors—their views about the treatment.
(3) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances to subject a cinematograph film to derogatory
treatment include the following:
(a) the nature of the film;
(b) whether the primary purpose for
which the film was made was for exhibition at cinemas, for broadcasting by
television or for some other use;
(c) the purpose for which the film is
used;
(d) the manner in which the film is
used;
(e) the context in which the film is
used;
(f) any practice, in the industry in
which the film is used, that is relevant to the film or the use of the film;
(g) any practice contained in a
voluntary code of practice, in the industry in which the film is used, that is
relevant to the film or the use of the film;
(h) whether the film was made in the
course of the employment of the director, producer or screenwriter who alleges
that the treatment was derogatory;
(i) whether the treatment was
required by law or was otherwise necessary to avoid a breach of any law.
(4) A person who does any act referred to in
subsection 195AQ(3), (4) or (5) in respect of a work that has been subjected to
derogatory treatment of a kind mentioned in that subsection does not, by doing
that act, infringe the author’s right of integrity of authorship in respect of
the work if the person establishes that it was reasonable in all the
circumstances to do that act.
195AT
Certain treatment of works not to constitute an infringement of the author’s
right of integrity of authorship
(1) The destruction of a moveable artistic
work is not an infringement of the author’s right of integrity of authorship in
respect of the work if the person who destroyed the work gave the author, or a
person representing the author, a reasonable opportunity to remove the work
from the place where it was situated.
(2) A change in, or the relocation, demolition
or destruction of, a building is not an infringement of the author’s right of
integrity of authorship in respect of an artistic work that is affixed to or
forms part of the building if:
(a) the owner of the building, after
making reasonable inquiries, cannot discover the identity and location of the
author or a person representing the author; or
(b) if paragraph (a) does not
apply—the owner complies with subsection (2A) in relation to the change,
relocation, demolition or destruction.
(2A) This subsection is complied with by the
owner of a building in relation to a change in, or the relocation, demolition
or destruction of, the building if:
(a) the owner has, in accordance with
the regulations and before the change, relocation, demolition or destruction is
carried out, given the author or a person representing the author a written
notice stating the owner’s intention to carry out the change, relocation,
demolition or destruction; and
(b) the notice stated that the person
to whom the notice was given may, within 3 weeks from the date of the notice,
seek to have access to the work for either or both of the following purposes:
(i) making a record of the
work;
(ii) consulting in good
faith with the owner about the change, relocation, demolition or destruction;
and
(c) the notice contained such other
information and particulars as are prescribed; and
(d) where the person to whom the
notice was given notifies the owner within the period of 3 weeks referred to in
paragraph (b) that the person wishes to have access to the work for either
or both of the purposes mentioned in that paragraph—the owner has given the
person a reasonable opportunity within a further period of 3 weeks to have such
access; and
(e) where, in the case of a change or
relocation, the person to whom the notice was given notifies the owner that the
person requires the removal from the work of the author’s identification as the
author of the work—the owner has complied with the requirement.
(3) A change in, or the relocation,
demolition or destruction of, a building is not an infringement of the author’s
right of integrity of authorship in respect of the building, or in respect of
any plans or instructions used in the construction of the building or a part of
the building if:
(a) the owner of the building, after
making reasonable inquiries, cannot discover the identity and location of the
author or a person representing the author, or of any of the authors or persons
representing the authors, as the case may be; or
(b) if paragraph (a) does not
apply—the owner complies with subsection (3A) in relation to the change,
relocation, demolition or destruction.
(3A) This subsection is complied with by the
owner of a building in relation to a change in, or the relocation, demolition
or destruction of, the building if:
(a) the owner has, in accordance with
the regulations and before the change, relocation, demolition or destruction is
carried out, given the author or a person representing the author, or the
authors or the persons representing the authors, whose identity and location
the owner knows, a written notice stating the owner’s intention to carry out
the change, relocation, demolition or destruction; and
(b) the notice stated that the person
to whom the notice was given may, within 3 weeks from the date of the notice,
seek to have access to the building for either or both of the following
purposes:
(i) making a record of the
artistic work;
(ii) consulting in good
faith with the owner about the change, relocation, demolition or destruction;
and
(c) the notice contained such other
information and particulars as are prescribed; and
(d) where the person to whom the
notice was given notifies the owner within the period of 3 weeks referred to in
paragraph (b) that the person wishes to have access to the building for
either or both of the purposes mentioned in that paragraph—the owner has given
the person a reasonable opportunity within a further period of 3 weeks to have
such access; and
(e) where, in the case of a change or
relocation, the person to whom the notice was given notifies the owner that the
person requires the removal from the building of the author’s identification as
the author of the artistic work—the owner has complied with the requirement.
(4) Subsections (2), (2A), (3) and (3A)
do not limit the operation of section 195AG.
(4A) The removal or relocation by a person (the remover)
of a moveable artistic work that is situated at a place that is accessible to
the public, and was made for installation in that place, is not an infringement
of the author’s right of integrity of authorship in respect of the work if the
remover:
(a) after making reasonable inquiries,
cannot discover the identity and location of the author or a person
representing the author; or
(b) if paragraph (a) does not
apply—complies with subsection (4B) in relation to the removal or
relocation.
(4B) This subsection is complied with by the
remover in relation to the removal or relocation of a moveable artistic work
if:
(a) the remover has, in accordance
with the regulations and before the removal or relocation is carried out, given
the author or a person representing the author a written notice stating the
remover’s intention to carry out the removal or relocation; and
(b) the notice stated that the person
to whom the notice was given may, within 3 weeks from the date of the notice,
seek to have access to the work for either or both of the following purposes:
(i) making a record of the
work;
(ii) consulting in good
faith with the remover about the removal or relocation; and
(c) the notice contained such other
information and particulars as are prescribed; and
(d) where the person to whom the
notice was given notifies the remover within the period of 3 weeks referred to
in paragraph (b) that the person wishes to have access to the work for
either or both of the purposes mentioned in that paragraph—the remover has
given the person a reasonable opportunity within a further period of 3 weeks to
have such access; and
(e) where the person to whom the
notice was given notifies the remover that the person requires the removal from
the work of the author’s identification as the author of the work—the remover
has complied with the requirement.
(5) Anything done in good faith to restore or
preserve a work is not, by that act alone, an infringement of the author’s
right of integrity of authorship in respect of the work.
195AU
Infringement by importation for sale or other dealing
(1) An author’s moral right in respect of a
work is infringed by a person who imports an article into Australia for the
purpose of dealing with the article if the importer knew, or ought reasonably
to have known, that, if the article had been made in Australia, it would have
been an infringing article.
(2) In subsection (1):
dealing with does not include distributing
except where the proposed distribution is for the purposes of sale.
195AV
Infringement by sale and other dealings
(1) An author’s moral right in respect of a
work is infringed by a person who, in Australia, deals with an article if the
person knew, or ought reasonably to have known, that the article was an
infringing article or, in respect of an imported article, would, if it had been
made in Australia, have been an infringing article.
(2) In subsection (1):
deals with does not include:
(a) distributes, except where the
distribution is for the purposes of sale; or
(b) deals with by means of a dealing
covered by paragraph 195AD(b), 195AD(c), 195AE(2)(b), 195AE(2)(c) or
195AF(2)(b) or subsection 195AG(1) or 195AH(1); or
(c) deals with by means of an
exhibition that is an attributable act to which section 195AO applies or
an exhibition to which subsection 195AQ(5) applies.
195AVA
Matters to be taken into account
In determining whether a person has
authorised the doing of an act that is an infringement of moral rights in
respect of a work, 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.
195AVB
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 the doing of an
act that is an infringement of moral rights in respect of a work merely because
another person uses the facilities so provided to do such an act.
195AW
Author’s consent to act or omission—films or works in films
(1A) This section applies to a work that is:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or
artistic work as included in a cinematograph film.
(1) It is not
an infringement of a moral right of an author in respect of a work to do, or
omit to do, something if the act or omission is within the scope of a written
consent given by the author or a person representing the author.
(2) A consent
may be given in relation to all or any acts or omissions occurring before or
after the consent is given.
(3) A consent may be given in relation to:
(a) a specified work or specified
works existing when the consent is given; or
(b) a
work or works of a particular description:
(i) the making of which
has not begun; or
(ii) that is or are in the
course of being made.
(4) A consent may be given by an employee for
the benefit of his or her employer in relation to all works made or to be made
by the employee in the course of his or her employment.
(5) A consent given for the benefit of the
owner or prospective owner of copyright in the work or works to which it relates
is presumed, unless the contrary intention appears in the consent instrument,
to extend to his or her licensees and successors in title, and to any persons
who are authorised by the owner or prospective owner, or by such a licensee or
successor in title, to do acts comprised in the copyright.
(6) Subsections (2) to (5), inclusive,
do not limit the operation of subsection (1).
195AWA
Author’s consent to act or omission—work that is not a film or included in a
film
(1) This section applies to a literary,
dramatic, musical or artistic work other than such a work as included in a
cinematograph film.
(2) It is not an infringement of a moral
right of an author in respect of a work to do, or omit to do, something if the
act or omission is within the scope of a written consent genuinely given by the
author or a person representing the author.
(3) Subject to subsection (4), a consent
does not have any effect unless it is given:
(a) in relation to specified acts or
omissions, or specified classes or types of acts or omissions, whether
occurring before or after the consent is given; and
(b) in relation to either of the
following:
(i) a specified work or
specified works existing when the consent is given; or
(ii) a specified work, or
works of a particular description, the making of which has not begun or that is
or are in the course of being made.
(4) A consent may be given by an employee for
the benefit of his or her employer in relation to all or any acts or omissions
(whether occurring before or after the consent is given) and in relation to all
works made or to be made by the employee in the course of his or her
employment.
(5) A consent given for the benefit of the
owner or prospective owner of copyright in the work or works to which it
relates is presumed, unless the contrary intention appears in the consent
instrument, to extend to his or her licensees and successors in title, and to
any persons who are authorised by the owner or prospective owner, or by such a
licensee or successor in title, to do acts comprised in the copyright.
195AWB
Consent invalidated by duress or false or misleading statements
(1) If a person applies duress to an author,
or to a person representing an author, in connection with the giving of a
consent for the purposes of section 195AW or 195AWA, the consent does not
have any effect.
(2) If:
(a) a person makes a statement to
another person; and
(b) the person makes the statement
knowing:
(i) that the statement is
false or misleading in a material particular; or
(ii) that a matter or thing
has been omitted from the statement without which the statement is false or
misleading in a material particular; and
(c) the person makes the statement
with the intention of persuading the other person to give, or not to give, a
consent for the purposes of section 195AW or 195AWA;
the consent does not have any effect.
195AX
Acts or omissions outside Australia
It is not an infringement of an author’s
moral right in respect of a work to do, or omit to do, something outside Australia.
Subdivision B—Infringement of
moral rights of performers
195AXA Infringement of right of attribution of
performership
Subject to this Subdivision, a person
infringes a performer’s right of attribution of performership in respect of a
live performance or recorded performance if the person does, or authorises the
doing of, an attributable act in respect of the performance without the
identification of the performer in accordance with Division 2A as a
performer in the performance.
195AXB
Infringement of right not to have performership falsely attributed
Subject
to this Subdivision, a person infringes a performer’s right not to have
performership falsely attributed if the person does an act of false attribution
in respect of the performance.
195AXC
Infringement of right of integrity of performership
(1) This section has effect subject to this
Subdivision.
(2) A person infringes a performer’s right of
integrity of performership in respect of a live performance or recorded
performance if the person subjects the performance, or authorises the
performance to be subjected, to derogatory treatment.
(3) If a live performance, as affected by
derogatory treatment, has become a recorded performance, then a person
infringes a performer’s right of integrity of performership in respect of the
live performance if the person does any of the following in respect of the
recorded performance:
(a) makes a copy record of the
recorded performance;
(b) communicates the recorded
performance to the public;
(c) causes the recorded performance to
be heard in public.
(4) If a recorded performance has been
subjected to derogatory treatment, then a person infringes a performer’s right
of integrity of performership in respect of the recorded performance if the
person does any of the following in respect of the recorded performance (as
affected by the derogatory treatment):
(a) makes a copy record of the
recorded performance;
(b) communicates the recorded
performance to the public;
(c) causes the recorded performance to
be heard in public.
195AXD
No infringement of right of attribution of performership if it was reasonable
not to identify the performer
(1) A person who does, or authorises the
doing of, an attributable act in respect of a live performance or recorded
performance does not, because a performer in the performance is not identified,
infringe the performer’s right of attribution of performership in respect of
the performance if the person establishes that it was reasonable in all the
circumstances not to identify the performer.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances not to identify a performer in a live performance
or recorded performance include the following:
(a) the nature of the performance;
(b) the purpose for which the
performance is used;
(c) the manner in which the
performance is used;
(d) the context in which the
performance is used;
(e) any practice, in the industry in
which the performance is used, that is relevant to the performance or to the
use of the performance;
(f) any practice contained in a
voluntary code of practice, in the industry in which the performance is used,
that is relevant to the performance or to the use of the performance;
(g) any difficulty or expense that
would have been incurred as a result of identifying the performer;
(h) whether the performer participated
in the performance in the course of the employment of the performer.
Note: For example, a performance may be used to
attract custom in a hotel or restaurant.
195AXE
No infringement of right of integrity of performership if derogatory treatment
or other action was reasonable
(1) A person does not, by subjecting a live
performance or recorded performance to derogatory treatment, or by authorising
a live performance or recorded performance to be subjected to derogatory
treatment, infringe a performer’s right of integrity of performership in
respect of the performance if the person establishes that it was reasonable in
all the circumstances to subject the performance to the treatment.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances to subject a live performance or recorded
performance to derogatory treatment include the following:
(a) the nature of the performance;
(b) the purpose for which the
performance is used;
(c) the manner in which the
performance is used;
(d) any practice, in the industry in
which the performance is used, that is relevant to the performance or to the
use of the performance;
(e) any practice contained in a
voluntary code of practice, in the industry in which the performance is used,
that is relevant to the performance or to the use of the performance;
(f) whether the performer who alleges
that the treatment was derogatory participated in the performance in the course
of the employment of the performer;
(g) whether the treatment was required
by law or was otherwise necessary to avoid a breach of any law.
Note: For example, a performance may be used to
attract custom in a hotel or restaurant.
(3) A person who:
(a) does an act referred to in
subsection 195AXC(3) in respect of a live performance that has been subjected
to derogatory treatment; or
(b) does an act referred to in
subsection 195AXC(4) in respect of a recorded performance that has been
subjected to derogatory treatment;
does not, by doing that act, infringe a performer’s right
of integrity of performership in respect of the performance if the person establishes
that it was reasonable in all the circumstances to do that act.
195AXF
Infringement by importation for sale or other dealing
(1) A performer’s moral right in respect of a
live performance or recorded performance is infringed by a person who imports
an article into Australia for the purpose of dealing with the article if the
importer knew, or ought reasonably to have known, that, if the article had been
made in Australia, it would have been an infringing article.
(2) In subsection (1):
dealing with does not include distributing
except where the proposed distribution is for the purposes of sale.
195AXG
Infringement by sale and other dealings
(1) A performer’s moral right in respect of a
live performance or recorded performance is infringed by a person who, in
Australia, deals with an article if the person knew, or ought reasonably to
have known, that the article was an infringing article or, in respect of an
imported article, would, if it had been made in Australia, have been an
infringing article.
(2) In subsection (1):
deals with does not include:
(a) distributes, except where the
distribution is for the purposes of sale; or
(b) deals with by means of a dealing
covered by paragraph 195AHB(5)(b) or (6)(b).
195AXH
Matters to be taken into account
In determining whether a person has
authorised the doing of an act that is an infringement of moral rights in a
live performance or recorded performance, 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.
195AXI
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 the doing of an
act that is an infringement of moral rights in a live performance or recorded
performance merely because another person uses the facilities so provided to do
such an act.
195AXJ
Performer’s consent to act or omission
(1) It is not
an infringement of a performer’s moral right in respect of a live performance
or recorded performance to do, or omit to do, something if the act or omission
is within the scope of a written consent given by the performer or a person
representing the performer.
Note: The consent of one performer does not affect
the moral rights of any other performer: see subsection 195AZQ(5).
(2) A consent
may be given in relation to all or any acts or omissions occurring before or
after the consent is given.
(3) A consent may be given in relation to:
(a) a specified performance or
specified performances occurring before the consent is given; or
(b) a performance or performances of a
particular description:
(i) that have not yet
occurred; or
(ii) that are in the course
of occurring.
(4) A consent may be given by an employee for
the benefit of his or her employer in relation to all performances in which the
employee is to be a performer in the course of his or her employment.
(5) A consent given for the benefit of the
owner or prospective owner of copyright in the recorded performance or recorded
performances to which the consent relates is presumed, unless the contrary
intention appears in the consent instrument, to extend to his or her licensees
and successors in title, and to any persons who are authorised by the owner or
prospective owner, or by such a licensee or successor in title, to do acts
comprised in the copyright.
(6) Subsections (2) to (5), inclusive,
do not limit the operation of subsection (1).
195AXK
Consent invalidated by duress or false or misleading statements
(1) If a person applies duress to a performer
or, if a performer is represented by a person, to the person representing the
performer, in connection with the giving of a consent for the purposes of
section 195AXJ, the consent does not have any effect.
(2) If:
(a) a person makes a statement to
another person; and
(b) the person makes the statement
knowing:
(i) that the statement is
false or misleading in a material particular; or
(ii) that a matter or thing
has been omitted from the statement without which the statement is false or
misleading in a material particular; and
(c) the person makes the statement
with the intention of persuading the other person to give, or not to give, a
consent for the purposes of section 195AXJ;
the consent does not have any effect.
195AXL
Acts or omissions outside Australia
It is not an infringement of a
performer’s moral right in respect of a live performance or recorded
performance to do, or omit to do, something outside Australia.
Division 7—Remedies for infringements of moral rights
Subdivision A—Remedies for infringement of moral rights of authors
195AY
Definition etc.
(1) In this Subdivision:
action means a proceeding of a civil nature
between parties, and includes a counterclaim.
(2) In the application of this Subdivision in
relation to a counterclaim, references to the defendant are taken to be
references to the plaintiff.
195AZ
Actions for infringement of author’s moral rights
If a person infringes any of the moral
rights of an author in respect of a work, the infringement is not an offence
but the author or a person representing the author may bring an action in
respect of the infringement, subject to any co‑authorship agreement in
force under section 195AN to which the author is a party.
195AZA
Remedies for infringements of author’s moral rights
(1) Subject to section 203, the relief
that a court may grant in an action for an infringement of any of an author’s
moral rights in respect of a work includes any one or more of the following:
(a) an injunction (subject to any
terms that the court thinks fit);
(b) damages for loss resulting from
the infringement;
(c) a declaration that a moral right
of the author has been infringed;
(d) an order that the defendant make a
public apology for the infringement;
(e) an order that any false
attribution of authorship, or derogatory treatment, of the work be removed or
reversed.
(2) In exercising its discretion as to the
appropriate relief to be granted, the court may take into account any of the
following:
(a) whether the defendant was aware,
or ought reasonably to have been aware, of the author’s moral rights;
(b) the effect on the author’s honour
or reputation resulting from any damage to the work;
(c) the number, and categories, of
people who have seen or heard the work;
(d) anything done by the defendant to
mitigate the effects of the infringement;
(e) if the moral right that was
infringed was a right of attribution of authorship—any cost or difficulty that
would have been associated with identifying the author;
(f) any cost or difficulty in
removing or reversing any false attribution of authorship, or derogatory
treatment, of the work.
(3) In deciding whether or not to grant an
injunction under subsection (1), the court must consider whether the
parties have made any attempt to negotiate a settlement of the action and
whether it should adjourn the hearing or further hearing of the action for the
purpose of giving the parties an appropriate opportunity to negotiate a
settlement, whether through a process of mediation or otherwise.
(4) If:
(a) the work is a cinematograph film;
and
(b) the action is brought by a person
who is a screenwriter of the film; and
(c) the relief granted in the action
consists of or includes damages; and
(d) the person has already been
granted relief by way of damages in an action for an infringement of his or her
moral rights as an author of the dramatic work constituted by the script or
screenplay for the film;
the amount of any damages that, apart from this
subsection, would be awarded to the person in the action referred to in paragraph (b)
is to be reduced by the amount of the damages awarded to the person in the action
referred to in paragraph (d).
(5) If:
(a) the work is a dramatic work
constituted by the screenplay or script for a cinematograph film; and
(b) the action is brought by a person
who is an author of the screenplay or script; and
(c) the relief granted in the action
consists of or includes damages; and
(d) the person has already been
granted relief by way of damages in an action for an infringement of his or her
moral rights as a screenwriter of the film;
the amount of any damages that, apart from this
subsection, would be awarded to the person in the action referred to in paragraph (b)
is to be reduced by the amount of the damages awarded to the person in the
action referred to in paragraph (d).
(6) If, in respect of an act done after the
death of an author of a work, damages are recovered under this section by the
legal personal representative of the author, those damages devolve as if they
formed part of the author’s estate and as if the right of action in respect of
the doing of the act had subsisted, and had been vested in the author,
immediately before his or her death.
Note: Subsection (6) does not apply in relation
to the right of integrity of authorship in respect of a cinematograph film,
which ends on the author’s death. See subsection 195AM(1).
195AZD
Presumption as to subsistence of copyright
In an action brought under this Part for
an infringement of a moral right in respect of a work, copyright is presumed to
subsist in the work if the defendant does not put in issue the question whether
copyright subsists in the work.
195AZE Presumption as to subsistence of author’s moral
rights
In an action brought under this Part for
an infringement of a moral right in respect of a work, if copyright is presumed
or proved to have subsisted in the work when the infringement is alleged to
have occurred, the moral right is presumed to have subsisted in the work at
that time.
195AZF
Presumptions in relation to authorship of work
(1) Section 127
applies in respect of an action brought under this Part.
(2) If a name purporting to be the name of
the director, producer or screenwriter of a cinematograph film appeared on
copies of the film that were issued when the film was made, then, in an action
brought under this Part, the person whose name so appeared is, if it was his or
her true name or a name by which he or she was commonly known, presumed, unless
the contrary is established, to be the director, producer or screenwriter, as
the case may be, of the film.
195AZG
Other presumptions in relation to literary, dramatic, musical or artistic work
Sections 128 and 129 apply in
respect of an action brought under this Part.
Subdivision B—Remedies for infringement of moral rights of performers
195AZGA
Definition etc.
(1) In this Subdivision:
action means a proceeding of a civil nature
between parties, and includes a counterclaim.
(2) In the application of this Subdivision in
relation to a counterclaim, references to the defendant are taken to be
references to the plaintiff.
195AZGB
Actions for infringement of performer’s moral rights
If a person infringes any of the moral
rights of a performer in respect of a live performance or recorded performance,
then the performer or a person representing the performer may bring an action
in respect of the infringement, subject to any co‑performership agreement
in force under section 195ANB to which the performer is a party.
195AZGC
Remedies for infringements of performer’s moral rights
(1) Subject to section 203, the relief
that a court may grant in an action for an infringement of any of a performer’s
moral rights in respect of a live performance or recorded performance includes
any one or more of the following:
(a) an injunction (subject to any
terms that the court thinks fit);
(b) damages for loss resulting from
the infringement;
(c) a declaration that a moral right
of the performer has been infringed;
(d) an order that the defendant make a
public apology for the infringement;
(e) an order that any false
attribution of performership, or derogatory treatment, of the performance be
removed or reversed.
(2) In exercising its discretion as to the
appropriate relief to be granted, the court may take into account any of the
following:
(a) whether the defendant was aware,
or ought reasonably to have been aware, of the performer’s moral rights;
(b) the effect on the performer’s
reputation resulting from any damage to the performance;
(c) the number, and categories, of
people who have heard the performance;
(d) anything done by the defendant to
mitigate the effects of the infringement;
(e) if the moral right that was
infringed was a right of attribution of performership—any cost or difficulty
that would have been associated with identifying the performer;
(f) any cost or difficulty in
removing or reversing any false attribution of performership, or derogatory
treatment, of the performance.
(3) In deciding whether or not to grant an
injunction under subsection (1), the court must consider whether the
parties have made any attempt to negotiate a settlement of the action and
whether it should adjourn the hearing or further hearing of the action for the
purpose of giving the parties an appropriate opportunity to negotiate a
settlement, whether through a process of mediation or otherwise.
(4) If, after the death of a performer, in
respect of an act done in a live performance or recorded performance, damages
are recovered under this section by the legal personal representative of the
performer, those damages devolve as if they formed part of the performer’s
estate and as if the right of action in respect of the doing of the act had
subsisted, and had been vested in the performer, immediately before his or her
death.
Note: Subsection (4) does not apply in relation
to the right of integrity of performership, which ends on the performer’s
death: see section 195ANA.
195AZGD
Presumption as to subsistence of copyright
In an action brought under this Part for
an infringement of a moral right in respect of a recorded performance,
copyright is presumed to subsist in the recorded performance if the defendant
does not put in issue the question whether copyright subsists in the recorded
performance.
195AZGE
Presumption as to subsistence of performer’s moral rights
(1) In an
action brought under this Part for an infringement of a moral right in respect
of a recorded performance, if copyright is presumed or proved to have subsisted
in the recorded performance when the infringement is alleged to have occurred,
then the moral right is presumed to have subsisted in the recorded performance
at that time.
(2) This
section has effect subject to subsection 195ANA(3).
195AZGF
Presumptions in relation to performership
(1) If a name purporting to be the name of a
performer appears on a record embodying a performance so as to indicate that the
person was a performer in the performance, then, in an action brought under
this Part, the person whose name so appeared is, if it was his or her true name
or a name by which he or she was commonly known, presumed, unless the contrary
is established, to be a performer in the performance.
(2) If a name purporting to be the name of a
group of performers appears on a record embodying a performance so as to
indicate that the group performed in the performance, then, in an action
brought under this Part, the group whose name so appeared is, if it was a name
by which the group was commonly known, presumed, unless the contrary is
established, to have performed in the performance.
Subdivision C—Miscellaneous
195AZGG
Saving of other rights and remedies
(1) Subject to this section, this Part does
not affect any right of action or other remedy, whether civil or criminal, in
proceedings brought otherwise than under this Part.
(2) Any damages recovered in proceedings
brought under this Part are to be taken into account in assessing damages in
proceedings brought otherwise than under this Part and arising out of the same
event or transaction.
(3) Any damages recovered in proceedings
brought otherwise than under this Part are to be taken into account in
proceedings brought under this Part and arising out of the same event or
transaction.
195AZGH
Jurisdiction of courts
(1) The jurisdiction of the Supreme Court of
a State or Territory in a matter arising under this Part is to be exercised by
a single Judge of the Court.
(2) Subject to subsection (3), a
decision of a court of a State or Territory (however constituted) under this
Part is final.
(3) An appeal lies from a decision of a court
of a State or Territory under this Part:
(a) to the Federal Court of Australia;
or
(b) by special leave of the High
Court, to the High Court.
(4) The Federal Court of Australia has
jurisdiction with respect to matters arising under this Part.
(5) The Federal Magistrates Court has
jurisdiction with respect to matters arising under this Part.
Division 8—Miscellaneous
Subdivision A—Miscellaneous provisions about moral rights of authors
195AZH
Parts of works
Moral rights in respect of a work apply
in relation to a whole or a substantial part of the work.
195AZI
Works of joint authorship
(1) This section applies to a literary,
dramatic, musical or artistic work that is a work of joint authorship.
(2) The right of attribution of authorship in
respect of the work is a right of each joint author to be identified as a joint
author.
(3) An act of false attribution in respect of
the work infringes the right of each joint author not to have authorship of the
work falsely attributed.
(4) The right of integrity of authorship in
respect of the work is a right of each joint author.
(5) The consent of one joint author to any
act or omission affecting his or her moral rights in respect of the work does
not affect the moral rights of the other joint author or other joint authors in
respect of the work.
195AZJ
Cinematograph films that have more than one principal director
(1) This section applies to a cinematograph
film that has more than one principal director.
(2) The director’s right of attribution of
authorship in respect of the film is a right of each director to be identified
as a director.
(3) An act of false attribution in respect of
the direction of the film infringes the right of each director not to have the
direction of the film falsely attributed.
(4) The director’s right of integrity of
authorship in respect of the film is a right of each director.
(5) The consent of one director to any act or
omission affecting his or her moral rights in respect of the film does not
affect the moral rights of the other director or other directors in respect of
the film.
195AZK
Cinematograph films that have more than one principal producer
(1) This
section applies to a cinematograph film of which more than one individual is
the principal producer.
(2) The producer’s right of attribution of
authorship in respect of the film is a right of each producer to be identified
as a producer.
(3) An act of false attribution in respect of
the production of the film infringes the right of each producer not to have the
production of the film falsely attributed.
(4) The producer’s right of integrity of authorship
in respect of the film is a right of each producer.
(5) The consent of one producer to any act or
omission affecting his or her moral rights in respect of the film does not
affect the moral rights of the other producer or other producers in respect of
the film.
195AZL
Cinematograph films that have more than one principal screenwriter
(1) This section applies to a cinematograph
film of which there is more than one principal screenwriter.
(2) The screenwriter’s right of attribution
of authorship in respect of the film is a right of each screenwriter to be
identified as a screenwriter.
(3) An act of false attribution of authorship
in respect of the script or screenplay of the film infringes the right of each
screenwriter not to have the authorship of the script or screenplay of the film
falsely attributed.
(4) The screenwriter’s right of integrity of
authorship in respect of the film is a right of each screenwriter.
(5) The consent of one screenwriter to any
act or omission affecting his or her moral rights in respect of the film does
not affect the moral rights of the other screenwriter or other screenwriters in
respect of the film.
195AZM
Application—right of attribution of authorship
(1) The right of attribution of authorship in
respect of:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or
artistic work as included in a cinematograph film;
subsists only if the cinematograph film is made after the
commencement of this Part.
(2) The right of attribution of authorship in
respect of a literary, dramatic, musical or artistic work other than such a
work as included in a cinematograph film subsists in respect of a work made
before or after the commencement of this Part but this Part only applies in
relation to attributable acts done after that commencement.
Note: Subsection 22(1) explains when a literary,
dramatic, musical or artistic work is taken to be made and paragraph 22(4)(a)
explains when a cinematograph film is taken to be made.
195AZN
Application—right not to have authorship falsely attributed
(1) The right not to have authorship falsely
attributed subsists in respect of a work made before or after the commencement
of this Part but this Part only applies in relation to acts of false
attribution done after that commencement.
(2) Paragraph 195AD(b) or (c), 195AE(2)(b) or
(c) or 195AF(2)(b) applies to an act of false attribution done after the
commencement of this Part even if the name concerned was inserted or affixed
before that commencement.
Note: Subsection 22(1) explains when a literary,
dramatic, musical or artistic work is taken to be made and paragraph 22(4)(a)
explains when a cinematograph film is taken to be made.
195AZO
Application—right of integrity of authorship
(1) The right of integrity of authorship in
respect of:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or
artistic work as included in a cinematograph film;
subsists only if the cinematograph film is made after the
commencement of this Part.
(2) Subject to subsection (3), the right
of integrity of authorship in respect of a literary, dramatic, musical or
artistic work, other than such a work as included in a cinematograph film,
subsists in respect of a work made before or after the commencement of this
Part.
(3) This Part applies in relation to an
infringement of a right of integrity of authorship that subsists in respect of
a work referred to in subsection (2) that was made before the commencement
of this Part only if the infringement occurs after the commencement of this
Part. However, an act referred to in paragraph 195AQ(3)(a), (b), (c), (d) or
(e) or (4)(a), (b) or (c) is not an infringement if the relevant derogatory
treatment occurred before that commencement.
Note: Subsection 22(1) explains when a literary,
dramatic, musical or artistic work is taken to be made and paragraph 22(4)(a)
explains when a cinematograph film is taken to be made.
Subdivision B—Miscellaneous provisions about moral rights of performers
195AZP
Parts of performances
Moral rights in respect of a live
performance or recorded performance apply in relation to the whole or a
substantial part of the performance.
195AZQ
Performances that have more than one performer
(1) This section applies to a live
performance or recorded performance that has more than one performer.
(2) A performer’s right of attribution of
performership in respect of the performance is a right of the performer to be
identified as a performer.
Example: If X and Y are the performers in a performance,
then each of them has the right to be identified. However, there is no
infringement of X’s moral right if Y is not identified (and vice versa).
Note: See also subsection 195ABC(3), which relates
to the use of group names.
(3) An act of false attribution of
performership in respect of the performance infringes each performer’s right
not to have performership falsely attributed.
Example: X and Y are the performers in a performance that
is falsely attributed to X and Z. This false attribution infringes X’s moral
right and Y’s moral right.
(4) The right of integrity of performership
in respect of the performance is a right of each performer.
Example: X and Y are the performers in a performance. The
performance is subjected to derogatory treatment that is prejudicial to X’s
reputation but not to Y’s reputation. The result is an infringement of X’s
right of integrity of performership but not an infringement of Y’s right of
integrity of performership.
(5) The consent of one performer to any act
or omission affecting his or her moral rights in respect of the performance
does not affect the moral rights of any other performer in respect of the
performance.
195AZR
Application
(1) Moral rights in respect of a live
performance only subsist in a live performance that occurs after the
commencement of this section.
(2) Moral rights in respect of a recorded
performance only subsist if the live performance concerned occurs after the
commencement of this section.
Part X—Miscellaneous
195A
Interpretation
(1) In this Part (other than subsection
203H(5)), officer in charge means:
(a) in relation to archives—the person
holding, or performing the duties of, the office or position in the service of
the body administering the archives the duties of which involve that person
having direct responsibility for the maintenance of, and the provision of
services in relation to, the collection comprising the archives;
(b) in relation to a central records
authority—the person holding, or performing the duties of, the office in the
service of the body administering the authority the duties of which involve
that person having direct responsibility for the maintenance of, and the
provision of services in relation to, the records deposited with the authority;
and
(c) in relation to a library—the
officer holding, or performing the duties of, the office or position in the
service of the body administering the library the duties of which involve that
person having direct responsibility for the maintenance of, and the provision
of services in relation to, the collection comprising the library.
(3) A reference in this Part to an
educational institution, to an institution assisting persons with a print
disability or to an institution assisting persons with an intellectual
disability includes a reference to an institution that has at any time been an
educational institution, an institution assisting persons with a print
disability or an institution assisting persons with an intellectual disability,
as the case may be.
(4) A reference in this Part to an
institution includes a reference to a school of nursing, an undertaking within
a hospital, a teacher education centre and an undertaking within a body
administering an educational institution.
195B
Review of certain decisions
(1) For the purposes of this section, the
following decisions are reviewable decisions:
(a) a decision of the Attorney‑General
refusing to make a declaration in respect of an institution under subsection
10A(1);
(b) a decision of the Attorney‑General
revoking a declaration made in respect of an institution under subsection
10A(1);
(ba) a decision of the CEO under
subsection 135(6A) to declare a notice given under subsection 135(2) to be
ineffective;
(c) a decision of the CEO under
section 135AA or 135AJ refusing to seize copies under subsection 135(7);
(d) a decision of the CEO not to give
permission under subsection 135AD(1);
(e) a decision of the Minister under
paragraph 135P(1A)(b), 135ZZB(1A)(b), 135ZZT(1A)(b) or 135ZZZO(2)(b) refusing
to declare a body as a collecting society;
(f) a decision of the Minister under
paragraph 135Q(2)(a), 135ZZC(2)(a), 135ZZU(2)(a) or 135ZZZP(2)(a) revoking a
declaration of a body as a collecting society.
(2) Where the Attorney‑General makes a
reviewable decision referred to in paragraph (1)(a) or (b), the Attorney‑General
shall cause to be sent to the institution concerned a written notice
containing:
(a) the terms of the decision; and
(b) a statement to the effect that,
subject to the Administrative Appeals Tribunal Act 1975, application may
be made to the Administrative Appeals Tribunal for review of the decision; and
(c) except where subsection 28(4) of
that Act applies—a statement to the effect that the institution may request a
statement under section 28 of that Act.
(3) If the CEO
makes a reviewable decision referred to in paragraph (1)(ba), (c) or (d),
the CEO must cause to be sent to the objector or importer whose interests are
affected by the decision a notice containing:
(a) the terms of the decision; and
(b) except
where subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies—a
statement to the effect that the objector or importer, as the case may be, may
request a statement under section 28 of that Act.
(4) Failure to include in a notice under subsection (2)
or (3) a statement of the kind referred to in paragraph (2)(b) or (c) or (3)(b),
as the case requires, does not affect the validity of the decision to which the
notice relates.
(5) Application may be made to the
Administrative Appeals Tribunal for review of a reviewable decision.
(8) In this section:
CEO means the Chief Executive Officer of
Customs.
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
196
Assignments and licences in respect of copyright
(1) Copyright is personal property and,
subject to this section, is transmissible by assignment, by will and by
devolution by operation of law.
(2) An assignment of copyright may be limited
in any way, including any one or more of the following ways:
(a) so as to apply to one or more of
the classes of acts that, by virtue of this Act, the owner of the copyright has
the exclusive right to do (including a class of acts that is not separately
specified in this Act as being comprised in the copyright but falls within a
class of acts that is so specified);
(b) so as to apply to a place in or
part of Australia;
(c) so as to apply to part of the
period for which the copyright is to subsist.
(3) An assignment of copyright (whether total
or partial) does not have effect unless it is in writing signed by or on behalf
of the assignor.
(4) A licence granted in respect of a
copyright by the owner of the copyright binds every successor in title to the
interest in the copyright of the grantor of the licence to the same extent as
the licence was binding on the grantor.
197 Prospective
ownership of copyright
(1) Where, by an agreement made in relation
to a future copyright and signed by or on behalf of the person who would, apart
from this section, be the owner of the copyright on its coming into existence,
that person purports to assign the future copyright (wholly or partially) to
another person (in this subsection referred to as the assignee),
then if, on the coming into existence of the copyright, the assignee or a
person claiming under him or her would, apart from this subsection, be entitled
as against all other persons to have the copyright vested in him or her (wholly
or partially, as the case may be), the copyright, on its coming into existence,
vests in the assignee or his or her successor in title by force of this subsection.
(2) Where, at the time when a copyright comes
into existence, the person who, if he or she were then living, would be
entitled to the copyright is dead, the copyright devolves as if it had
subsisted immediately before his or her death and he or she had then been the
owner of the copyright.
(3) A licence granted in respect of a future
copyright by the prospective owner of the copyright binds every successor in
title to the prospective interest in the copyright of the grantor of the
licence to the same extent as the licence was binding on the grantor.
198
Copyright to pass under will with unpublished work
Where under a bequest, whether specific
or general, a person is entitled, beneficially or otherwise, to the manuscript
of a literary, dramatic or musical work, or to an artistic work, and the work
was not published before the death of the testator, the bequest shall, unless a
contrary intention appears in the testator’s will, be read as including the
copyright in the work in so far as the testator was the owner of the copyright
immediately before his or her death.
198A
Non‑infringement of trade mark in relation to the importation of
copyright material
(1) A person who uses a registered trade mark
in relation to imported goods that are similar to goods in respect of which the
trade mark is registered does not infringe the trade mark if:
(a) the importation would have
constituted an infringement of copyright except for the operation of a parallel
importation provision; and
(b) the trade mark was applied to, or
in relation to, the goods before the importation (whether the mark was applied
before or after the commencement of this section); and
(c) the trade mark was applied by, or
with the consent of:
(i) a person who, at the
time the mark was applied, was the registered owner of the mark; or
(ii) a person who, at the
time the mark was applied, was the owner of the mark in the place where the
mark was applied and who had been a registered owner of the mark at any time
before then.
(2) Unless the contrary intention appears, an
expression used in this section has the same meaning as in the Trade Marks
Act 1995.
(3) In this section:
parallel importation provision means:
(a) section 44D, 44E, 44F, 112D
or 112DA; or
(b) section 44C or 112C (in so far
as that section applies in relation to an accessory to an article of the kind
mentioned in subsection 10AD(1)).
199
Reception of broadcasts
(1) Where the inclusion in a television
broadcast or sound broadcast of a reading or recitation of an extract 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, a person who, by
the reception of the broadcast, causes the work or adaptation to be performed
in public does not, by doing so, infringe the copyright in the work.
(2) A person who, by the reception of a
television broadcast or sound broadcast, causes a sound recording to be heard
in public does not, by doing so, infringe the copyright, if any, in that
recording under Part IV.
(3) A person who, by the reception of an
authorized television broadcast, causes a cinematograph film to be seen or
heard in public shall be treated, in any proceedings for infringement of the
copyright, if any, in the film under Part IV, as if the person had been
the holder of a licence granted by the owner of that copyright to cause the
film to be seen or heard in public by the reception of the broadcast.
(5) If, in the circumstances mentioned in subsection (3),
the person causing the cinematograph film to be seen or heard infringed the
copyright in the film by reason that the broadcast was not an authorized
broadcast, proceedings shall not be brought against that person under this Act
in respect of his or her infringement of that copyright but the infringement
shall be taken into account in assessing damages in any proceedings against the
maker of the broadcast in respect of that copyright, in so far as that
copyright was infringed by the making of the broadcast.
(6) For the purposes of this section, a
broadcast, in relation to a cinematograph film, is an authorised broadcast only
if it is made by, or with the licence of, the owner of the copyright in the
film.
(7) A reference in this section to a
broadcast must be read as a reference to a broadcast made by the Australian
Broadcasting Corporation, by the Special Broadcasting Service Corporation, by
the holder of a licence allocated by the Australian Communications and Media
Authority under the Broadcasting Services Act 1992, or by a person
authorised to make the broadcast by a class licence determined by that
Authority under that Act.
200
Use of works and broadcasts for educational purposes
(1) The copyright in a literary, dramatic,
musical or artistic work is not infringed by reason only that the work is
reproduced or, in the case of a literary, dramatic or musical work, an
adaptation of the work is made or reproduced:
(a) in the course of educational
instruction, where the work is reproduced or the adaptation is made or
reproduced by a teacher or student otherwise than by the use of an appliance
adapted for the production of multiple copies or an appliance capable of
producing a copy or copies by a process of reprographic reproduction; or
(b) as part of the questions to be
answered in an examination, or in an answer to such a question.
(2) The making of a record of a sound
broadcast, being a broadcast that was intended to be used for educational
purposes, does not constitute an infringement of copyright in a work or sound
recording included in the broadcast if:
(a) the record is made by, or on
behalf of, the person or authority in charge of a place of education that is
not conducted for profit; and
(b) the record is not used except in
the course of instruction at that place.
(2A) The making of a record of a sound broadcast
is not an infringement of copyright in the broadcast if the record is made by,
or on behalf of, the body administering an educational institution and is not
used except for the educational purposes of that institution or another
educational institution.
(3) For the purposes of sections 38 and
103, in determining whether the making of an article constituted an
infringement of copyright, subsections (1), (2) and (2A) shall be
disregarded.
(4) For the purposes of any provision of this
Act relating to imported articles, in determining whether the making of an
article made outside Australia would, if the article had been made in Australia
by the importer of the article, have constituted an infringement of copyright, subsections (1),
(2) and (2A) shall be disregarded.
200AAA
Proxy web caching by educational institutions
(1) This section applies if:
(a) a computer system is operated by
or on behalf of a body administering an educational institution; and
(b) the system is operated primarily
to enable staff and students of the institution to use the system to gain
online access for educational purposes to works and other subject‑matter
(whether they are made available online using the internet or merely the
system); and
(c) the system automatically makes:
(i) temporary electronic
reproductions of works made available online through the system to users of the
system in response to action by the users; and
(ii) temporary electronic
copies of other subject‑matter made available online through the system
to users of the system in response to action by the users; and
(d) those reproductions and copies are
made by the system merely to facilitate efficient later access to the works and
other subject‑matter by users of the system.
(2) Copyright in a work or other subject‑matter
reproduced or copied by the system as described in paragraphs (1)(c) and
(d) is not infringed by:
(a) that reproduction or copying; or
(b) the later communication of the
work or other subject‑matter, using that reproduction or copy, to a user
of the system.
(3) This section does not limit section 28,
43A, 43B, 111A or 111B.
(4) Disregard this section in determining
whether copyright in a work or other subject‑matter is infringed by an
act that:
(a) involves a system like one
described in subsection (1) except that the system is not operated as
described in paragraphs (1)(a) and (b); and
(b) corresponds to an act described in
paragraph (2)(a) or (b).
(5) In this section:
system includes network.
200AA
Use of broadcasts by institutions assisting persons with an intellectual
disability
The making of a record of a sound
broadcast is not an infringement of copyright in the broadcast if the record is
made by, or on behalf of, the body administering an institution assisting
persons with an intellectual disability and is used only for the purpose of the
provision of that assistance by that institution.
200AB
Use of works and other subject‑matter for certain purposes
(1) The copyright in a work or other subject‑matter
is not infringed by a use of the work or other subject‑matter if all the
following conditions exist:
(a) the circumstances of the use
(including those described in paragraphs (b), (c) and (d)) amount to a
special case;
(b) the use is covered by subsection (2),
(3) or (4);
(c) the use does not conflict with a
normal exploitation of the work or other subject‑matter;
(d) the use does not unreasonably
prejudice the legitimate interests of the owner of the copyright.
Use by body administering library or archives
(2) This subsection covers a use that:
(a) is made by or on behalf of the
body administering a library or archives; and
(b) is made for the purpose of
maintaining or operating the library or archives (including operating the
library or archives to provide services of a kind usually provided by a library
or archives); and
(c) is not made partly for the purpose
of the body obtaining a commercial advantage or profit.
Use by body administering educational institution
(3) This subsection covers a use that:
(a) is made by or on behalf of a body
administering an educational institution; and
(b) is made for the purpose of giving
educational instruction; and
(c) is not made partly for the purpose
of the body obtaining a commercial advantage or profit.
Use by or for person with a disability
(4) This subsection covers a use that meets
all the following conditions:
(a) the use is made by:
(i) a person with a
disability that causes difficulty in reading, viewing or hearing the work or
other subject‑matter in a particular form; or
(ii) someone else;
(b) the use is made for the purpose of
the person obtaining a reproduction or copy of the work or other subject‑matter
in another form, or with a feature, that reduces the difficulty;
(c) the use is not made partly for the
purpose of obtaining a commercial advantage or profit.
This section does not apply if under another provision
the use does not, or might not, infringe copyright
(6) Subsection (1) does not apply if,
because of another provision of this Act:
(a) the use is not an infringement of
copyright; or
(b) the use would not be an
infringement of copyright assuming the conditions or requirements of that other
provision were met.
Example 1: Paragraph (a)—Without using an appliance
adapted for producing multiple copies or an appliance that can produce copies
by reprographic reproduction, a school teacher reproduces a literary work in
the course of educational instruction. Under subsection 200(1), the
reproduction is not an infringement of copyright in the work, so this section
does not apply.
Example 2: Paragraph (b)—A body administering an
institution assisting persons with a print disability makes a Braille version
of a published literary work. Under subsection 135ZP(2), making such a version
does not infringe copyright in the work if certain conditions (relating to
remuneration etc.) are met, so this section does not apply.
Cost recovery not commercial advantage or profit
(6A) The use does not fail to meet the condition
in paragraph (2)(c), (3)(c) or (4)(c) merely because of the charging of a
fee that:
(a) is connected with the use; and
(b) does not exceed the costs of the
use to the charger of the fee.
Definitions
(7) In this section:
conflict with a normal exploitation has the
same meaning as in Article 13 of the TRIPS Agreement.
special case has the same meaning as in
Article 13 of the TRIPS Agreement.
unreasonably prejudice the legitimate interests has
the same meaning as in Article 13 of the TRIPS Agreement.
use includes any act that would infringe
copyright apart from this section.
201
Delivery of library material to the National Library
(1) The publisher of any library material
that is published in Australia and in which copyright subsists under this Act
shall, within one month after the publication, cause a copy of the material to
be delivered at his or her own expense to the National Library.
Penalty: $100.
(2) The copy of any library material
delivered to the National Library in accordance with this section shall be a
copy of the whole material (including any illustrations), be finished and
coloured, and bound, sewed, stitched or otherwise fastened together, in the
same manner as the best copies of that material are published and be on the
best paper on which that material is printed.
(3) When any library material is delivered to
the National Library in accordance with this section, the National Librarian
shall cause a written receipt for the material to be given to the publisher of
the material.
(4) This section is not intended to exclude
or limit the operation of any law of a State or Territory (whether made before
or after the commencement of this Act) that makes provision for or in relation
to the delivery to a specified public or other library in or of the State or
Territory of copies of library material published in the State or Territory.
(5) In this section:
illustrations includes drawings, engravings
and photographs.
library material means a book, periodical,
newspaper, pamphlet, sheet of letter‑press, sheet of music, map, plan,
chart or table, being a literary, dramatic, musical or artistic work or an
edition of such a work, but does not include a second or later edition of any
material unless that edition contains additions or alterations in the letter‑press
or in the illustrations.
202
Groundless threats of legal proceedings in relation to copyright infringement
(1) Where a
person, by means of circulars, advertisements or otherwise, threatens a person
with an action or proceeding in respect of an infringement of copyright, then,
whether the person making the threats is or is not the owner of the copyright
or an exclusive licensee, a person aggrieved may bring an action against the
first‑mentioned person and may obtain a declaration to the effect that
the threats are unjustifiable, and an injunction against the continuance of the
threats, and may recover such damages (if any) as he or she has sustained,
unless the first‑mentioned person satisfies the court that the acts in
respect of which the action or proceeding was threatened constituted, or, if
done, would constitute, an infringement of copyright.
(2) The mere notification of the existence of
a copyright does not constitute a threat of an action or proceeding within the
meaning of this section.
(3) Nothing in this section renders a
barrister or solicitor of the High Court, or of the Supreme Court of a State or
Territory, liable to an action under this section in respect of an act done by
him or her in his or her professional capacity on behalf of a client.
(4) The defendant in an action under this
section may apply, by way of counterclaim, for relief to which he or she would
be entitled in a separate action in respect of an infringement by the plaintiff
of the copyright to which the threats relate and, in any such case, the
provisions of this Act with respect to an action for infringement of a
copyright are, mutatis mutandis, applicable in relation to the action.
(5) A reference in this section to an action
in respect of an infringement of copyright shall be read as including a
reference to an action in respect of the conversion or detention of an
infringing copy or of a device used or intended to be used for making
infringing copies.
202A
Groundless threats of legal proceedings in relation to technological protection
measures
(1) If a person (the first person)
threatens another person with an action under Subdivision A of Division 2A
of Part V, a person aggrieved may bring an action against the first
person.
Note: Subdivision A of Division 2A of Part V
establishes causes of action that relate to circumventing an access control
technological protection measure (section 116AN), manufacturing etc. a
circumvention device for a technological protection measure (section 116AO)
and providing etc. a circumvention service for a technological protection
measure (section 116AP).
(2) An action may be brought under this
section whether or not the first person is the owner or exclusive licensee of
the copyright in the work or other subject‑matter to which the threatened
action relates.
(3) The mere notification that a work or
other subject‑matter is protected by a technological protection measure
does not constitute a threat of an action within the meaning of this section.
(4) In an action under this section, the
orders a court may make include the following:
(a) an order declaring that the threat
is unjustifiable;
(b) an order granting an injunction
restraining the first person from continuing to make the threat;
(c) an order awarding such damages (if
any) for loss that the person aggrieved has suffered as a result of the making
of the threat.
(5) The court must not make an order under subsection (4)
if the first person satisfies the court that an action under Subdivision A of
Division 2A of Part V has reasonable prospects of success.
(6) Nothing in this section renders a
barrister or solicitor of the High Court, or of the Supreme Court of a State or
Territory, liable to an action under this section in respect of an act done in
his or her professional capacity on behalf of a client.
(7) If an action under this section is
brought:
(a) the first person may apply, by way
of counterclaim, for relief to which he or she would be entitled in an action
under Subdivision A of Division 2A of Part V; and
(b) the provisions of Part V apply
as if the counterclaim were an action brought by the first person under that
Subdivision.
203
Limitation on power of courts to grant relief in proceedings under this Act
Nothing in this Act authorizes a State
court or a court of a Territory to grant relief by way of injunction or account
of profits if that court would not, apart from this Act, have power to grant
such relief.
203A
Offence—failing to keep declarations relating to copying in library or archives
(1) A person commits an offence if:
(a) at a time, the person is:
(i) ultimately responsible
for administering a library or archives; or
(ii) the officer in charge
of a library or archives; and
(b) that time is:
(i) after an authorized
officer of a library or archives reproduced or copied all or part of a work or
other subject‑matter under section 49, 50, 51A or 110B; and
(ii) after a written
declaration was made for the purpose of that section in relation to the
reproduction or copying; and
(iii) before the end of the
period prescribed by the regulations for the keeping of the declaration; and
(c) at that time, the declaration is
not kept in the records of the library or archives.
Penalty: 5 penalty units.
(2) Subsection (1) does not apply if:
(a) the person is the officer in
charge of a library or archives and proves that:
(i) the reproduction or
copying took place before the day the person became the officer in charge; and
(ii) on that day the
declaration was not in the possession of the person administering the library
or archives; or
(b) the person proves that the person
took all reasonable precautions, and exercised due diligence, to ensure the
declaration was kept in the records of the library or archives.
Note: The person bears a legal burden in relation to
a matter in subsection (2) (see section 13.4 of the Criminal Code).
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) The person cannot be convicted of more
than one offence under this section in relation to the one declaration.
Note: Section 203G makes early destruction or
disposal of the declaration an offence.
203D
Offence—not arranging declarations chronologically
(1) A person commits an offence if:
(a) the person is:
(i) ultimately responsible
for administering a library or archives; or
(ii) the officer in charge
of a library or archives; and
(b) the person’s records include 2 or
more declarations made for the purposes of one or more of sections 49, 50,
51A or 110B in relation to reproduction or copying by an authorized officer of
the library or archives; and
(c) the declarations are not arranged
in the records in the order reflecting the dates on which the declarations were
made.
Penalty: 5 penalty units.
(2) Subsection (1) does not apply if the
person proves that the person took all reasonable precautions, and exercised
due diligence, to ensure that the declarations were arranged in the records in
the order reflecting the dates on which the declarations were made.
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
203E
Inspection of records and declarations retained by libraries, archives or
institutions
(1) The owner of the copyright in a work,
sound recording or cinematograph film, or the agent of such an owner:
(a) may notify the officer in charge
of a library or archives, in writing, that he or she wishes to inspect:
(i) all the relevant
declarations retained in the records of the library or archives that relate to the
making, in reliance on section 49, 50, 51A or 110B, of copies of works or
parts of works or of copies of other subject‑matter; or
(ii) such
of those declarations as relate to the making, in reliance on section 49,
50, 51A or 110B, of copies of works or parts of works or of copies of other
subject‑matter and were made during a period specified in the notice;
on a day specified in the
notice, being an ordinary working day of the library, archives or institution
not less than 7 days after the date of the giving of the notice; and
(b) may, if the notice related to the
making of copies of works or parts of works or of copies of other subject‑matter
in reliance on section 51A or 110B, state in the notice that he or she
also wishes to inspect, on the day so specified, the collection of the library
or archives.
(4) Where a person gives notice, under subsection (1),
to the officer in charge of a library or archives that he or she wishes to
inspect certain declarations on a particular day, that person may, during the
ordinary working hours of the library or archives, on that day, but not earlier
than 10 a.m. or later than 3 p.m., inspect the declarations to which the notice
relates and, where the notice relates also to the inspection of the collection
of the library or archives, may also during those hours on that day inspect
that collection, and, for that purpose, may enter the premises of the library
or archives.
(6) A person commits an offence if:
(a) the person is:
(i) ultimately responsible
for administering a library or archives; or
(ii) the officer in charge
of a library or archives; and
(b) another person (the inspector)
attends at the premises of the library or archives for the purpose of
exercising his or her powers under subsection (4); and
(c) the inspector is not provided with
all reasonable facilities and assistance for the effective exercise of those
powers.
Penalty: 5 penalty units.
(6A) Subsection (6) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) The officer in charge of a library or
archives shall not be convicted of an offence against subsection (6) if
the officer adduces evidence that he or she believed, on reasonable grounds,
that the person who attended the premises of the library or archives, as the
case may be, as mentioned in that subsection, was provided with all reasonable
facilities and assistance for the effective exercise of the powers conferred by
subsection (4) and that evidence is not rebutted by the prosecution.
(9) The body administering a library or
archives shall not be convicted of an offence against subsection (6) if
the body adduces evidence that it took all reasonable precautions, and
exercised due diligence, to ensure that the person who attended the premises of
the library or archives, as the case may be, as mentioned in that subsection,
was provided with all reasonable facilities and assistance for the effective
exercise of the powers conferred by subsection (4) and that evidence is
not rebutted by the prosecution.
(10) A person (the defendant)
commits an offence if:
(a) the defendant makes a record of
information, or divulges or communicates information; and
(b) the information was acquired by
the defendant either in the course of an inspection the defendant made under subsection (4)
or because it was divulged or communicated to the defendant either:
(i) by another person who
acquired the information in the course of an inspection he or she made under subsection (4);
or
(ii) in one of a series of
divulgements or communications by different persons that started with a
divulgement or communication of the information by a person who acquired it the
course of an inspection he or she made under subsection (4).
Penalty: 5 penalty units.
(10A) Subsection (10) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(11) Subsection (10) does not apply if the
defendant makes the record, divulgement or communication with the intention of:
(a) informing the owner of the copyright
in a work or other subject‑matter that a copy has been made of the work
or other subject‑matter; or
(b) enforcing a right that a person
has under this Act in connection with a work or other subject‑matter in
which copyright subsists; or
(c) ensuring
compliance with a provision of Division 5 of Part III or with a
provision of this Part.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (11) (see subsection 13.3(3) of the Criminal
Code).
203F
False and misleading declarations
A person commits an offence if:
(a) the person makes a declaration for
the purposes of section 49, 50, 51A or 110B; and
(b) the declaration is false or
misleading in a material particular.
Penalty: 5 penalty units.
203G
Offence—disposing of or destroying certain declarations
A person commits an offence if:
(a) the person disposes of, destroys,
or causes the disposal or destruction of, a declaration made for the purposes
of section 49, 50, 51A or 110B; and
(b) the period prescribed by the
regulations for the keeping of the declaration has not ended.
Penalty: 5 penalty units.
203H
Notation of certain copies etc.
(1) In proceedings against a person or body
for infringement of copyright in a work in connection with the making, by or on
behalf of an institution, of a reproduction of the work, or of a part of the
work, the person or body is not entitled to rely on section 49, 50 or 51A
as justification for the making of the reproduction unless, at or about the
time the reproduction was made, there was made on the reproduction a notation
stating that the reproduction was made on behalf of that institution and
specifying the date on which the reproduction was made.
(2) In proceedings against a person or body
for infringement of copyright in a sound recording or a cinematograph film in
connection with the making, by or on behalf of an institution, of a copy of the
sound recording or cinematograph film, the person or body is not entitled to
rely on section 110B as justification for the making of the copy unless,
at or about the time the copy was made, there was made on, or attached to, the
copy a notation stating that the copy was made on behalf of that institution
and specifying the date on which the copy was made.
(4) A person commits an offence if:
(a) the person:
(i) makes a notation
described in subsection (1) on a reproduction of a work or part of a work;
or
(ii) makes a notation
described in subsection (2) on a copy of a sound recording or
cinematograph film; or
(iii) attaches a notation
described in subsection (2) to a copy of a sound recording or
cinematograph film; and
(b) a statement in the notation is
false or misleading in a material particular.
Penalty: 5 penalty units.
(5) For the purposes of subsections (1)
and (2):
(a) if a reproduction of the whole or
part of a work, or a copy of a sound recording or a cinematograph film:
(i) is made, or caused to
be made, by an authorized officer of a library; or
(ii) is made by, or on
behalf of, the officer in charge of a library;
being a library of an
institution, the reproduction or copy is taken to have been made on behalf of
the institution; and
(b) if a reproduction of the whole or
part of a work, or a copy of a sound recording or a cinematograph film:
(i) is made, or caused to
be made, by an authorized officer of a library; or
(ii) is made by, or on
behalf of, the officer in charge of a library;
being a library that is not a
library of an institution:
(iii) the reproduction or
copy is taken to have been made on behalf of the person or body administering
the library; and
(iv) those subsections apply
as if references to an institution were references to that person or body; and
(c) if a reproduction of the whole or
part of a work, or a copy of a sound recording or a cinematograph film:
(i) is made, or caused to
be made, by an authorized officer of archives; or
(ii) is made by, or on
behalf of, the officer in charge of archives;
then:
(iii) the reproduction or
copy is taken to have been made by or on behalf of the person or body
administering the archives; and
(iv) those subsections apply
as if references to an institution were references to that person or body; and
(d) if a reproduction, or a record
embodying a sound recording, of the whole or part of a work is made by or on
behalf of the body administering an institution, the reproduction or record is
taken to have been made on behalf of the institution; and
(e) if a copy of a sound recording or
a cinematograph film is made by or on behalf of the body administering an
institution, the copy is taken to have been made on behalf of the institution.
(6) The production, in any proceedings:
(a) for infringement of copyright in a
work; or
(c) for
a contravention of a provision of this Act;
of a reproduction of a work, or of a part of a work,
bearing a notation or mark of the kind referred to in subsection (1),
135K(1), 135ZY(1), 135ZQ(4) or 135ZT(4) is prima facie evidence of the
matters stated in the notation or mark.
(7) For the purposes of subsection (6),
where a reproduction of a work or a part of a work, bears a notation or mark of
a kind referred to in subsection (1), 135K(1), 135ZX(1), 135ZQ(4) or
135ZT(4) the notation or mark shall, unless the contrary is proved, be deemed
to have been made on the reproduction at or about the time the reproduction was
made.
(9A) The production, in any proceedings:
(a) for infringement of copyright in a
sound recording, a cinematograph film or an eligible item; or
(c) for
a contravention of this Act;
of a copy of a sound recording or a cinematograph film
bearing, or to which there is attached, a notation or mark of the kind referred
to in subsection (2), 135K(1), 135ZX(1), 135ZQ(4) or 135ZT(4), is prima
facie evidence of the matters stated in the notation or mark.
(9B) For the purposes of subsection (9A),
where a copy of a sound recording or a cinematograph film bears, or where there
is attached to such a copy, a notation or mark of the kind referred to in subsection (2),
135K(1), 135ZX(1), 135ZQ(4) or 135ZT(4), the notation or mark shall, unless the
contrary is proved, be deemed to have been made on or attached to the copy at
or about the time the copy was made.
(10) In this section:
reproduction, in relation to a work, or part
of a work, includes a microform copy, a Braille version, a large print version,
or a photographic version of the work, or of the part of the work.
Part XI—Transitional
Division 1—Preliminary
204
Interpretation
(1) In this Part, the expression
photograph has, in lieu of the meaning given to that expression by
section 10, the meaning given by the next succeeding subsection.
(2) For the purposes of any provision of this
Part that provides that an expression is to have the meaning given to that
expression by this section or that refers to an expression as defined by this
section:
collective work means:
(a) an encyclopaedia, dictionary, year
book or similar work;
(b) a newspaper, review, magazine or
similar periodical; or
(c) a work written in distinct parts
by different authors, or in which works or parts of works of different authors
are incorporated.
deliver, in relation to a lecture, includes
deliver by means of a mechanical instrument.
dramatic work includes a piece for
recitation, a choreographic work or entertainment in dumb show the scenic
arrangement or acting form of which is fixed in writing or otherwise, and a
cinematograph production where the arrangement, the acting form or the
combination of incidents represented gives the work an original character.
lecture includes an address, speech and sermon.
literary work includes a map, chart, plan,
table and compilation.
perform, in relation to a dramatic work as
defined by this section or a musical work, means make an acoustic
representation of the work or a visual representation of a dramatic action in
the work, and includes make such a representation by means of a mechanical
instrument.
photograph includes photo‑lithograph
and a work produced by a process similar to photography.
205
References to making of works, recordings and films
For the purposes of any reference in
this Part to works, sound recordings or cinematograph films made before the
commencement of this Act, a work, sound recording or cinematograph film the
making of which extended over a period shall be deemed not to have been made
before the commencement of this Act unless the making of it was completed
before the commencement of this Act.
206
References in other laws or instruments to copyright
(1) Without prejudice to the operation of the
succeeding sections of this Part:
(a) a reference in any other law of
the Commonwealth or in any contract, agreement or other instrument to a
provision of the Copyright Act, 1911 shall be read as a reference, or as
including a reference, to the corresponding provision of this Act;
(b) a reference in any other law of
the Commonwealth or in any contract, agreement or other instrument to copyright
or to works in which copyright subsists shall, if apart from this Act it would
be read as a reference to copyright under the Copyright Act, 1911 or to works in
which copyright subsisted under that Act, be read as a reference, or as
including a reference, to copyright under this Act or to works or any other
subject‑matter in which copyright subsists under this Act, as the case
may be; and
(c) a reference in any other law of
the Commonwealth or in any contract, agreement or other instrument to the grant
of an interest in copyright by licence shall be read, in relation to copyright
under this Act, as a reference to the grant of a licence in respect of that
copyright.
(2) This section has effect unless the
contrary intention appears in the other law of the Commonwealth or in the
contract, agreement or other instrument, as the case may be.
(3) In this
section, law of the Commonwealth means:
(a) an Act;
(b) an instrument (including
regulations or rules) having effect by virtue of an Act;
(c) an Ordinance of a Territory and
any other law in force in a Territory;
(d) an instrument (including
regulations or rules) having effect by virtue of such an Ordinance or law; and
(e) an instrument having effect by
virtue of any such regulations or rules as are mentioned in paragraph (b)
or paragraph (d).
207
Application
Except in so far as this Part otherwise
expressly provides, this Act applies in relation to things existing at the
commencement of this Act in like manner as it applies in relation to things
coming into existence after the commencement of this Act.
208
Authorship of photographs
(1) A reference in this Act to the author of
a photograph shall, in relation to a photograph taken before the commencement
of this Act, be read as a reference to the person who, at the time when the
photograph was taken, was the owner of the material on which the photograph was
taken.
(2) However, if the owner of the material on
which the photograph was taken was a body corporate, then subsection (1)
only applies in respect of references to the author of the photograph that
relate to the ownership of the copyright in the photograph.
Note: For example, subsection (1) does not
apply in relation to references to the author of the photograph that relate to
the duration of the copyright in the photograph.
209
Publication
(1) For the purposes of the application of
subsection 29(5) in determining whether a publication that took place before
the commencement of this Act was the first publication, the reference in that
subsection to a period of not more than 30 days shall be read as a reference to
a period of not more than 14 days.
(2) For the purposes of the application of
subsection 29(7) in relation to an act done before the commencement of this
Act:
(a) a reference in that subsection to
copyright includes a reference to copyright under the Copyright Act 1905 and
to copyright under the Copyright Act, 1911; and
(b) a reference in that subsection to
the licence of the owner of copyright shall:
(i) in relation to
copyright under the Copyright Act 1905—be read as a reference to the
privity of the owner; and
(ii) in relation to
copyright under the Copyright Act, 1911—be read as a reference to the consent
or acquiescence of the owner.
Division 2—Original works
210
Expired copyright not to revive
(1) Notwithstanding anything in Part III,
copyright does not subsist by virtue of that Part in a work first published
before the commencement of this Act unless copyright subsisted in the work
under the Copyright Act, 1911 immediately before the commencement of this Act.
(2) The last preceding subsection does not
apply in relation to a work to which Division 5 applies.
211
Original works in which copyright subsists
(1) Subsection 32(1) applies to works made
before the commencement of this Act as if each reference in that subsection to
a qualified person included a reference to a British subject and to a person
domiciled in any part of the Queen’s dominions to which the Copyright Act, 1911
extended.
(2) Subsection 32(2) applies to works first
published before the commencement of this Act as if paragraphs (d) and (e)
of that subsection were omitted.
(3) Subsection 32(2) applies to works that
are first published after the commencement of this Act and the author of which
died before the commencement of the Nationality and Citizenship Act 1948 as
if the reference in paragraph 32(2)(e) to a qualified person included a
reference to a person who would have been an Australian citizen if that Act had
been in force immediately before his or her death.
(4) Subsection 32(3) does not apply to or in
relation to a building that was constructed before the commencement of this
Act.
(5) This section has effect subject to the
last preceding section.
213
Ownership of copyright
(1) Subsections 35(4) and (6) do not apply in
relation to works made before the commencement of this Act.
(2) Subsection 35(5) does not apply in
relation to a work that was or is made in pursuance of an agreement made before
the commencement of this Act.
(3) Where a work is excluded from the
application of subsection 35(4), (5) or (6) by reason of either of the last two
preceding subsections, subsection 35(2) has effect in relation to the work
subject to the succeeding subsections of this section.
(4) The operation of any of the next three
succeeding subsections in relation to a particular work may be excluded or
modified by agreement.
(5) Where, in the case of a work being a
photograph, portrait or engraving:
(a) a person made, for valuable
consideration, an agreement with another person for the taking of the
photograph, the painting or drawing of the portrait or the making of the
engraving by the other person; and
(b) the
work was made in pursuance of the agreement;
the first‑mentioned person is the owner of any
copyright subsisting in the work by virtue of Part III.
(6) Where the work was 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 Part III.
(7) Where the work is a literary, dramatic or
artistic work that was made by the author in pursuance of 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 was so made for the purpose
of publication in a newspaper, magazine or similar periodical, the author is
entitled to restrain the publication of the work otherwise than in a newspaper,
magazine or similar periodical.
(8) In the last three preceding subsections,
expressions that are defined by section 204 have the meanings respectively
given to those expressions by that section and do not have the meanings, if
any, respectively given to those expressions by Part II.
214
Infringement by importation, sale and other dealings
For the purposes of sections 37 and
38, the fact that, to the knowledge of a person, the making of an article
constituted, or, in the case of an imported article, would, if the article had
been made in Australia by the importer of the article, have constituted, an
infringement of copyright under the Copyright Act, 1911 has the like effect as
if, to the knowledge of that person, the making of the article had constituted,
or would, if the article had been made in Australia by the importer, have
constituted, as the case may be, an infringement of copyright under this Act.
215
Recording of musical works
(1) Where a record of a work has, before the
commencement of this Act, been made by, or with the consent or acquiescence of,
the owner of the copyright in the work under the Copyright Act, 1911, Division 6
of Part III has the like effect as if the record had been made in
Australia for the purpose of retail sale and had been so made by, or with the
licence of, the person who is entitled, by virtue of this Act, to authorize the
making in Australia of records of the work.
(2) Notwithstanding subsection 5(1) of this
Act, subsections 19(2) to (7), inclusive, of the Copyright Act, 1911 as in
force immediately before the commencement of this Act continue to apply in
relation to records made before the commencement of this Act and, subject to
those subsections, any regulations made for the purposes of those subsections
and in force immediately before the commencement of this Act continue to apply
in relation to those records.
216
Publication of artistic works
Section 68 does not apply in
relation to a painting, drawing, engraving, photograph or cinematograph film
made before the date of commencement of this Act, but the copyright in an
artistic work is not infringed by the publication of a painting, drawing,
engraving, photograph or cinematograph film made before that date if, by virtue
of section 65 or section 66, the making of the painting, drawing,
engraving, photograph or film would not have constituted an infringement of the
copyright under this Act if this Act had been in operation at the time when it
was made.
217
Reconstruction of buildings
The reference in subsection 73(2) to
construction of a building by, or with the licence of, the owner of the
copyright in architectural drawings or plans shall be read as including a
reference to construction by, or with the licence of, the person who, at the
time of the construction, was the owner of the copyright in the drawings or
plans under the law relating to copyright that was in force at that time in the
State or Territory in which the building was constructed.
218
Industrial designs
(1) Division 8 of Part III does not
apply to artistic works made before the commencement of this Act.
(2) Copyright does not subsist by virtue of
this Act in an artistic work made before the commencement of this Act which, at
the time when the work was made, constituted a design capable of being
registered under the Designs Act 1906, or under that Act as amended and
in force at that time, and was used, or intended to be used, as a model or
pattern to be multiplied by an industrial process.
219
Reproduction of work upon payment of royalties
(1) The copyright in a literary, dramatic,
musical or artistic work that has been published before the commencement of
this Act is not infringed by the reproduction of the work for sale if:
(a) the reproduction takes place at a
time after the expiration of twenty‑five years, or, in the case of a work
in which copyright subsisted at the commencement of the Copyright Act, 1911,
after the expiration of thirty years, after the date of the death of the
author; and
(b) the
person reproducing the work establishes:
(i) that,
before the commencement of this Act, he or she gave the notice in writing of
his or her intention to reproduce the work that was prescribed for the purposes
of the proviso to section 3 of the Copyright Act, 1911; and
(ii) that he or she has
paid, in the manner that was prescribed for the purposes of that proviso, or is
prescribed for the purposes of this section, as the case may be, to, or for the
benefit of, the owner of the copyright royalties in respect of all copies of
the work sold by him or her calculated at the rate of ten per centum of the
price at which he or she published the reproduction.
(2) The regulations may make provision for or
in relation to the manner in which, and the times at which, payment of
royalties is to be made for the purposes of subparagraph (ii) of paragraph (b)
of the last preceding subsection and may include provision requiring payment in
advance, or otherwise securing the payment of the royalties.
(3) Regulations 38 to 42, inclusive, of the
Copyright Regulations as in force under the Copyright Act 1912‑1966 immediately
before the commencement of this Act continue in force for the purposes of this
section as if they had been made under this Act, but may be amended or repealed
by regulations made under this Act.
(4) A
reference in paragraph (1)(a) to a time after the expiration of a
specified number of years from the date of the death of the author of a work
shall, in the case of a work of joint authorship, be read as a reference to a
time after:
(a) the expiration of the same number
of years from the date of the death of the author who died first; or
(b) the
date of the death of the author who died last;
whichever is the later.
(5) Where a literary, dramatic or musical
work, or an engraving, in which copyright subsisted at the date of the death of
the author or, in the case of a work of joint authorship, at or immediately
before the date of the death of the author who died last:
(a) had not been published;
(b) in
the case of a dramatic or musical work—had not been performed in public; and
(c) in
the case of a lecture—had not been delivered in public;
before that date, subsection (1) applies as if the
author had died on the date on which:
(d) in the case of a literary work
(other than a lecture) or an engraving—the work was first published;
(e) in the case of a dramatic or
musical work—the work was first published or first performed in public,
whichever first happened; or
(f) in the case of a lecture—the lecture
was first published or first delivered in public, whichever first happened.
(6) In this section, expressions that are
defined by section 204 have the meanings respectively given to those
expressions by that section and do not have the meanings, if any, respectively
given to those expressions by Part II.
Division 3—Subject‑matter other than works
220
Sound recordings
(1) Subsection 89(1) applies in relation to
sound recordings made before the commencement of this Act as if the reference
in that subsection to a qualified person included a reference to a British
subject and to a person domiciled in any part of the Queen’s dominions to which
the Copyright Act, 1911 extended.
(2) Subsection 89(2) does not apply in
relation to a sound recording made before the commencement of this Act.
221
Cinematograph films
Copyright does not subsist by virtue of
section 90 in a cinematograph film made before the commencement of this
Act.
222
Application of Act to dramatic works and photographs comprised in cinematograph
films
(1) Where a cinematograph film made before
the commencement of this Act was an original dramatic work as defined by
section 204, this Act (other than this subsection) has effect in relation
to the film as if the film had been an original dramatic work as defined by
section 10 and the person who was the author of the work for the purposes
of the Copyright Act, 1911 shall be deemed to be the author of the work for the
purposes of this Act as having effect by virtue of this subsection.
(2) This Act has effect in relation to
photographs forming part of a cinematograph film made before the commencement
of this Act in like manner as it has effect in relation to photographs not
forming part of a cinematograph film.
223
Television broadcasts and sound broadcasts
Copyright
does not subsist by virtue of section 91 in:
(a) a television broadcast or a sound
broadcast made before the commencement of this Act; or
(b) a television broadcast or a sound
broadcast made after the commencement of this Act that is a repetition of a
television broadcast or a sound broadcast made before the commencement of this
Act.
224
Published editions of works
Copyright does not subsist by virtue of
section 92 in a published edition of a work or works where the first publication
of the edition took place before the commencement of this Act.
225
Infringement by importation, sale and other dealings
For the purposes of sections 102
and 103, the fact that, to the knowledge of a person, the making of an article
constituted, or, in the case of an imported article, would, if the article had
been made in Australia by the importer of the article, have constituted, an
infringement of copyright under the Copyright Act, 1911 has the like effect as
if, to the knowledge of that person, the making of the article had constituted,
or would, if the article had been made in Australia by the importer, have
constituted, as the case may be, an infringement of copyright under this Act.
Division 4—Miscellaneous
226
Actions for infringement
Section 115 does not apply to an
infringement of copyright under the Copyright Act, 1911 and does not affect any
proceedings under that Act, whether instituted before or after the commencement
of this Act.
227
Infringing copies
Section 116 of this Act does not
apply in relation to an article made, or imported into Australia, before the
commencement of this Act, but, notwithstanding subsection 5(1) of this Act,
proceedings may, subject to the Copyright Act, 1911, be brought or continued by
virtue of section 7 of that Act in relation to such an article and may be
so brought or continued although the proceedings relate to the conversion or
detention of the article after the commencement of this Act.
228
Actions where copyright subject to exclusive licence
Division 3 of Part V does not
apply in relation to a licence granted before the commencement of this Act and
does not affect any proceedings under the Copyright Act, 1911, whether
instituted before or after the commencement of this Act.
229
Offences and summary proceedings
For the purposes of Division 5 of
Part V, the definition of infringing copy in section 10
applies as if any reference in that definition to copyright included a
reference to copyright under the Copyright Act, 1911.
230
Limitation of actions
Section 134 of this Act does not
apply in relation to an infringement of copyright under the Copyright Act, 1911
or to an article made, or imported into Australia, before the commencement of
this Act.
231
Restriction of importation of printed copies of works
Where:
(a) before the date of commencement of
this Act, a notice had been given in respect of a work under section 10 of
the Copyright Act 1912 or of that Act as amended; and
(b) that
notice had not been withdrawn, and had not otherwise ceased to have effect,
before that date;
the notice has, during the period of six months commencing
on that date, such effect (if any) as it would have if it had been duly given
in accordance with section 135 of this Act.
232
References and applications to Tribunal in relation to licence schemes
(1) Part VI applies in relation to
licence schemes formulated before the date of commencement of this Act in like
manner as it applies in relation to licence schemes formulated on or after that
date, but, for the purposes of the application of that Part in relation to
licence schemes formulated before that date, any reference in that Part to
copyright includes a reference to copyright under the Copyright Act, 1911.
(2) Any reference in section 157 to a
refusal or failure to grant or procure the grant of a licence, or to a proposal
that a licence should be granted, does not include a reference to a refusal or
failure that occurred, or a proposal that was made, before the commencement of
this Act.
233
Duration of Crown copyright in photographs
Subsection 180(2) applies in relation to
photographs taken before the commencement of this Act as if subsection 180(3)
were omitted.
234
Duration of Crown copyright in recordings
Section 181 applies in relation to
sound recordings made before the commencement of this Act as if the reference
in that section to the expiration of the calendar year in which the recording
is first published were a reference to the expiration of the calendar year in
which the recording was made.
235
Crown copyright in films
(1) Sections 178 and 181 do not apply in
relation to cinematograph films made before the commencement of this Act.
(2) Where sections 178 and 181 do not
apply in relation to a cinematograph film by reason of the last preceding
subsection:
(a) if the film was an original
dramatic work as defined by section 204—sections 176 and 177, and
subsection 180(1), apply in relation to that work in accordance with subsection
222(1); and
(b) sections 176 and 177, and
subsection 180(2) as modified by section 233, apply in relation to
photographs forming part of the film in like manner as they apply in relation
to photographs not forming part of a cinematograph film.
236
Works made or published by international organizations
(1) Subsection 187(1) does not apply in
relation to works made before the commencement of this Act.
(2) Subsection 187(2) does not apply in
relation to works first published before the commencement of this Act.
237
Subject‑matter, other than original works, made or published by
international organizations
(1) Subsection 188(1) does not apply in
relation to sound recordings or cinematograph films made before the
commencement of this Act.
(2) Subsection 188(2) does not apply in
relation to sound recordings or cinematograph films first published before the
commencement of this Act.
(3) Subsection 188(3) does not apply in
relation to an edition published before the commencement of this Act.
239
Assignments and licences
(1) Subject to this section, where copyright
subsists in a work by virtue of this Act, any document that was made, or event
that occurred, before the commencement of this Act, being a document or event
that had any operation affecting the ownership of, or creating, transferring or
terminating an interest, right or licence in respect of, copyright in the work
under the Copyright Act, 1911 or would have had such an operation if that Act
had continued in force, has the like operation in relation to the copyright in
the work under this Act.
(2) If the operation of a document to which
the last preceding subsection applies was or would have been limited to a
period specified in the document, the document does not have any operation in
relation to the copyright under this Act, except in so far as that period extends
after the commencement of this Act.
(3) For the purposes of the operation of a
document in accordance with this section:
(a) expressions used in the document
have the same respective meanings as they had immediately before the
commencement of this Act, whether or not those expressions have different
meanings for the purposes of this Act; and
(b) subsection 197(1) does not apply.
(4) Without prejudice to the generality of subsection (1),
where the author of a work that was made before the commencement of this Act
was the first owner of the copyright in the work:
(a) any assignment of the copyright,
or any grant of an interest in the copyright, made by the author (otherwise
than by will) after the commencement of the Copyright Act, 1911 and before the
commencement of this Act, being an assignment or grant that has effect in
relation to copyright in the work under this Act by virtue of subsection (1),
does not operate to vest in the assignee or grantee any rights with respect to
the copyright in the work after the expiration of 25 years after the date of
the death of the author;
(b) on the death of the author, the
reversionary interest in the copyright expectant on the termination of that
period devolves, notwithstanding any agreement to the contrary, on his or her
legal personal representative as part of his or her estate; and
(c) any
agreement entered into by the author as to the disposition of that reversionary
interest is of no force or effect;
but nothing in this subsection shall be taken to apply to
the assignment of the copyright in a collective work or a licence to publish a
work or a part of a work as part of a collective work.
(5) In the last preceding subsection,
expressions that are defined by section 204 have the meanings respectively
given to those expressions by that section and do not have the meanings, if
any, respectively given to those expressions by Part II.
(6) The preceding subsections of this section
apply in relation to copyright under this Act in a sound recording or in a
cinematograph film in like manner as they apply in relation to copyright in a
work but a reference in those subsections to the copyright under the Copyright
Act, 1911 shall:
(a) in the application of those
subsections in relation to a sound recording—be read as a reference to the
copyright under that Act in records embodying the recording; and
(b) in
the application of those subsections in relation to a cinematograph film—be
read as a reference to any copyright under that Act in the film (in so far as
it constituted a dramatic work for the purposes of that Act) or in photographs
forming part of the film.
240
Bequests
(1) Section 198 does not apply in
relation to a bequest contained in the will of a testator who died before the
commencement of this Act.
(2) Where:
(a) an author has died before the
commencement of this Act;
(b) a person has acquired, under the
will of the author, the ownership of a manuscript of a work by the author; and
(c) the
work:
(i) has not been
published;
(ii) in the case of a
dramatic or musical work—has not been performed in public; and
(iii) in
the case of a lecture—has not been delivered in public;
the ownership by that person of the manuscript is evidence
that that person is the owner of the copyright in the work.
(3) In the last preceding subsection,
expressions that are defined by section 204 have the meanings respectively
given to those expressions by that section and do not have the meanings, if
any, respectively given to those expressions by Part II.
241
Delivery of library material to National Library
Section 201 does not apply in
relation to library material published before the commencement of this Act.
242
Groundless threats of legal proceedings
Section 202 of this Act does not
apply in relation to threats made after the commencement of this Act in respect
of acts that took place before the commencement of this Act and,
notwithstanding section 6 of this Act, section 41A of the Copyright
Act 1912‑1966 continues to apply in relation to any such threats in
like manner as it continues to apply in relation to threats made before the
commencement of this Act.
Division 5—Works made before 1 July, 1912
243
Interpretation
In this Division, right conferred
by the Copyright Act, 1911, in relation to a work, means a right that,
by virtue of section 24 of the Copyright Act, 1911, was conferred in place
of a right that subsisted immediately before the commencement of that Act.
244
Application
This Division applies to works made
before 1 July 1912.
245
Rights conferred by Copyright Act, 1911
Notwithstanding anything in Division 2,
section 32 of this Act does not apply to a work to which this Division
applies unless a right conferred by the Copyright Act, 1911 subsisted in the
work immediately before the commencement of this Act.
246
Performing rights
(1) Where the right conferred by the
Copyright Act, 1911 in relation to a dramatic or musical work to which this
Division applies did not include the sole right to perform the work in public,
then, copyright, in so far as it subsists in the work by virtue of this Act,
does not include the performing rights in relation to the work.
(2) Where the right conferred by the
Copyright Act, 1911 in relation to a dramatic or musical work to which this
Division applies consisted only of the sole right to perform the work in
public, then, copyright, in so far as it subsists in the work by virtue of this
Act, consists only of the performing rights in relation to the work.
(3) For the purposes of this section, the
performing rights, in relation to a work, are:
(a) the exclusive right to perform the
work, or an adaptation of the work, in public;
(b) the exclusive right to communicate
the work or an adaptation of the work to the public.
247
Contributions to periodicals
Where:
(a) a work to which this Division
applies (in this section referred to as the relevant work)
consists of an essay, article or item forming part of, and first published in,
a review, magazine or other periodical or work of a like nature; and
(b) immediately
before the commencement of this Act, a right of publishing the relevant work in
a separate form subsisted by virtue of the note to the First Schedule to the
Copyright Act, 1911;
copyright subsisting in the relevant work by virtue of
this Act is subject to that right of publishing the relevant work in a separate
form.
248
Assignments and licences
(1) Without prejudice to the generality of
subsection 239(1) of this Act, where:
(a) the author of a work to which this
Division applies had, before the commencement of the Copyright Act, 1911, made
an assignment or grant of a kind referred to in paragraph (a) of the
proviso to subsection 24(1) of that Act (in this section referred to as the
proviso); and
(b) copyright
subsists in the work by virtue of this Act;
the succeeding subsections of this section have effect.
(2) If, before the commencement of this Act,
an event occurred or a notice was given, being an event or notice that, in
accordance with paragraph (a) of the proviso, had any operation affecting
the ownership of the right conferred by the Copyright Act, 1911 in relation to
the work or creating, transferring or terminating an interest, right or licence
in respect of that right, that event or notice has the like operation in
relation to the copyright in the work under this Act.
(3) Any right that, at a time after the
commencement of this Act, would, by virtue of paragraph (a) of the
proviso, have been exercisable in relation to the work or in relation to the
right conferred by the Copyright Act, 1911, if this Act had not been enacted,
is exercisable in relation to the work or in relation to the copyright
subsisting in the work under this Act, as the case may be.
(4) If, in accordance with paragraph (a)
of the proviso, the right conferred by the Copyright Act, 1911 would have
reverted to the author or his or her personal representatives on the date
referred to in that paragraph, and that date occurs after the commencement of
this Act, then on that date:
(a) the copyright in the work under
this Act reverts to the author or his or her personal representatives, as the
case may be; and
(b) any interest of any other person
in that copyright that subsists on that date by virtue of any document made
before the commencement of the Copyright Act, 1911 ceases.
Part XIA—Performers’ protection
Division 1—Preliminary
248A
Interpretation
(1) In this Part:
20‑year protection period of a
performance means the period:
(a) beginning on the day when the
performance was given; and
(b) ending at the end of 20 calendar
years after the calendar year in which the performance was given.
50‑year protection period of a
performance means the period:
(a) beginning on the day when the
performance was given; and
(b) ending at the end of 50 calendar
years after the calendar year in which the performance was given.
action means a proceeding of a civil nature
between parties and includes a counterclaim.
authorised, in relation to a recording of a
performance, means made with the authority of the performer.
cinematograph film includes an article in
which visual images are embodied and which is capable of being used to show
those images as a moving picture, and a sound‑track associated with those
images.
direct, in relation to a sound recording or
cinematograph film of a performance, means made directly from the live
performance.
exempt recording means:
(a) an indirect cinematograph film of
a performance, being a film made solely for the purpose of the private and
domestic use of the person who made it; or
(aaa) an indirect cinematograph film or
sound recording of a performance, being a film or recording that:
(i) is made from a
communication that is a broadcast of the performance; and
(ii) is
made in domestic premises; and
(iii) is made solely for
private and domestic use by watching or listening to the performance at a time
more convenient than the time when the broadcast is made; or
(aa) an indirect sound recording of a
performance, being a recording that is a fair dealing with the performance for
the purpose of research or study; or
(b) an indirect cinematograph film of
a performance, being a film made solely for the purpose of use in scientific
research; or
(c) an indirect cinematograph film of
a performance, being a film made by, or on behalf of, the body administering an
educational institution solely for the educational purposes of that institution
or of another educational institution; or
(d) an indirect cinematograph film of
a performance, being a film made by, or on behalf of, the body administering an
institution assisting persons with a print disability solely for the purpose of
the provision, whether by the institution or otherwise, of assistance to
persons with a print disability; or
(e) an indirect cinematograph film of
a performance, being a film made by, or on behalf of, the body administering an
institution assisting persons with an intellectual disability solely for the
purpose of the provision, whether by the institution or otherwise, of
assistance to persons with an intellectual disability; or
(f) a direct or indirect cinematograph
film of a performance made:
(i) for the purpose of, or
associated with, the reporting of news or current affairs; or
(ii) for the purpose of
criticism or review; or
(fa) a direct or indirect sound
recording of a performance, being a recording that is a fair dealing with the
performance:
(i) for the purpose of
criticism or review, whether of that performance or another performance; or
(ii) for the purpose of, or
associated with, the reporting of news in a newspaper, magazine or similar periodical;
or
(iii) for the purpose of, or
associated with, the reporting of news by means of a communication or in a
cinematograph film; or
(g) a direct or indirect sound
recording or cinematograph film of a performance made solely for the purpose of
a judicial proceeding or the giving of professional advice by a legal
practitioner; or
(h) a direct sound recording or
cinematograph film of a performance made by a broadcaster who has the authority
of the performer to broadcast the performance, being a recording or film made
solely for the purpose of making that broadcast; or
(j) a direct or indirect sound
recording or cinematograph film of a performance made by a person who
reasonably believes, due to a fraudulent or innocent misrepresentation made to
the person, that the performer has authorised the making of the recording or
film by the person; or
(ja) a copy of a sound recording
referred to in paragraph (aa), (fa) or (g), being a copy made solely for a
purpose referred to in any of those paragraphs; or
(k) a copy of a cinematograph film
referred to in paragraph (a), (b), (c), (d), (e), (f) or (g), being a copy
made solely for a purpose referred to in any of those paragraphs; or
(m) a copy of a sound recording or
cinematograph film referred to in paragraph (h), being a copy made solely
for the purpose referred to in that paragraph; or
(n) a
copy of a sound recording or cinematograph film referred to in paragraph (j),
being a copy made:
(i) by a person who
believes, due to a fraudulent or innocent representation made to the person,
that the performer has authorised the making of the copy; or
(ia) if the copy is of a
sound recording—solely for a purpose referred to in paragraph (aa), (fa)
or (g); or
(ii) if the copy is of a
cinematograph film—solely for a purpose referred to in paragraph (a), (b),
(c), (d), (e), (f) or (g); or
(p) a copy of an authorised recording
of a performance, other than a copy of an authorised sound recording where the
copy was made for use in a sound‑track but the making of the sound
recording was not authorised for the purpose of use in a sound‑track.
indirect, in relation to a sound recording or
cinematograph film of a performance, means made from a communication of the
performance.
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:
(g) that is given in Australia,
whether in the presence of an audience or otherwise; or
(h) that is given by one or more
qualified persons (even if it is also given by one or more persons who are not
qualified persons), whether in the presence of an audience or otherwise.
performer, in relation to a performance that
is given outside Australia, does not include a person who is not a qualified
person at the time of the performance.
protection period, in relation to a
performance, has the meaning given by section 248CA.
qualified person means an Australian citizen
or a person resident in Australia.
recording means a sound recording or
cinematograph film, other than an exempt recording.
sound recording includes an article in which
sounds are embodied.
unauthorised, in relation to a recording of a
performance, means made without the authority of the performer.
unauthorised use has the meaning given by
section 248G.
(1A) For the purposes of paragraph (aa) of
the definition of exempt recording, in determining whether a
recording is a fair dealing with a performance for the purpose of research or
study, regard must be had to the following matters:
(a) the purpose and character of the
recording;
(b) the nature of the performance;
(c) the possibility of obtaining an
authorised recording of the performance within a reasonable time at an ordinary
commercial price;
(d) the effect of the recording upon
the potential market for, or the value of, authorised recordings of the
performance;
(e) if only part of the performance is
recorded—the amount and substantiality of the part recorded when compared to
the whole performance.
(2) The following shall be taken not to be
performances for the purposes of this Part:
(a) a performance referred to in
subsection 28(1);
(b) a reading, recital or delivery of
any item of news and information;
(c) a performance of a sporting
activity; or
(d) a participation in a performance
as a member of an audience.
(3) In this Part:
(a) a reference to the doing of an act
in relation to a performance includes a reference to the doing of that act in
relation to a substantial part of the performance;
(b) a reference to the doing of an act
in relation to a performance, or a recording of a performance, with the
authority of the performer is, in the case of 2 or more performers, a reference
to the doing of the act where each of the performers has authorised the doing
of the act;
(c) a reference to the doing of an act
in relation to a performance, or a recording of a performance, without the
authority of the performer is, in the case of 2 or more performers, a reference
to the doing of the act where at least one of the performers has not authorised
the doing of the act; and
(d) a reference to a sound‑track
is a reference to a sound‑track associated with visual images forming
part of a cinematograph film.
248B
Educational purposes
Without limiting the meaning of the
expression educational purposes in paragraph (c) of the
definition of exempt recording in subsection 248A(1), a
cinematograph film of a performance shall be taken to have been made for the
educational purposes of an educational institution if it is made:
(a) for use in connection with a
particular course of instruction provided by the institution; or
(b) for inclusion in the collection of
a library of the institution.
248C
Exempt recordings cease to be exempt recordings in certain circumstances
(1) If any copies of a sound recording or a
cinematograph film of a performance, being a sound recording or film that is an
exempt recording under paragraph (h) of the definition of exempt
recording in subsection 248A(1), are not destroyed before the end of
the period of 12 months beginning on the day on which any of those copies is
first used for broadcasting the performance, the sound recording or film shall,
at the end of that period, cease to be an exempt recording.
(1A) A sound recording, or a copy of a sound
recording, that is an exempt recording because it was made for a purpose referred
to in paragraph (aaa), (aa) or (fa) of the definition of exempt
recording in subsection 248A(1) ceases to be an exempt recording if it
is used for any other purpose without the authority of the performer.
(2) A cinematograph film, or a copy of a cinematograph
film, that is an exempt recording because it was made for a purpose referred to
in paragraph (a), (aaa), (b), (c), (d), (e) or (f) of the definition of exempt
recording in subsection 248A(1) ceases to be an exempt recording if it
is used for any other purpose without the authority of the performer.
248CA
Protection period
(1) Subject to subsection (3), the
protection period of a performance is the period beginning on the day when the
performance was given and ending at the end of the period of 20 calendar years
after the calendar year in which the performance was given.
(3) For the
purposes of the operation, in relation to a sound recording of a performance,
of a provision of this Part listed in subsection (4), the protection
period of a performance is the period beginning on the day when the performance
was given and ending at the end of the period of 50 calendar years after the
calendar year in which the performance was given.
(4) Subsection (3) applies to the
following provisions of this Part:
(a) paragraphs 248G(1)(a), (2)(a),
(2)(b) and (2)(d) to (g);
(b) section 248PA;
(c) section 248PB;
(d) section 248PE;
(e) section 248PF;
(f) section 248PG;
(g) section 248PI;
(h) section 248PJ;
(i) section 248PK;
(j) section 248PL;
(k) section 248PM.
248D
Private and domestic use
For the purposes of this Part, a
cinematograph film is taken not to have been made for the private and domestic
use of the person who made it if it is made for the purpose of:
(a) selling it, letting it for hire,
or by way of trade offering or exposing it for sale or hire; or
(b) distributing it, whether for the
purpose of trade or otherwise; or
(c) by way of trade exhibiting it in
public; or
(d) broadcasting the film; or
(e) causing the film to be seen or heard
in public.
248F
Application
(1) This Part, except Subdivisions A, B and C
of Division 3, applies to acts done on or after 1 October 1989 in
relation to a performance given on or after that day.
Note 1: That day was the day this Part commenced.
Note 2: Sections 248P and 248QA apply Subdivisions
A and B of Division 3 to acts done at or after the time those Subdivisions
commence as a result of Part 1 of Schedule 1 to the Copyright
Amendment Act 2006. Subdivision C of that Division is merely ancillary to
those Subdivisions.
(2) Nothing in
this Part affects any copyright subsisting in a work that is performed or in
any sound recording, cinematograph film or broadcast of a performance, or any
other right or obligation arising otherwise than under this Part.
(3) In the application of this Part to a
counterclaim, the reference in section 248J to the defendant shall be read
as a reference to the plaintiff.
Division 2—Actions by performers
248G
What constitutes unauthorised use
(1) A person makes an unauthorised use of a
performance if the person, at any time during the protection period of the
performance and without the authority of the performer:
(a) makes a direct or indirect
recording of the performance; or
(b) communicates the performance to
the public, either directly from the live performance or from an unauthorised
recording of it.
Note: An educational or other institution can copy
and communicate a broadcast of a performance without the authority of the
performer in some circumstances: see sections 135E and 135F.
(2) A person makes an unauthorised use of a
performance if the person, at any time during the protection period of the
performance and without the authority of the performer:
(a) makes a copy of a recording of the
performance that the person knows, or ought reasonably to know, is an
unauthorised recording;
(b) makes a copy of an exempt
recording of the performance, being a copy that the person knows, or ought
reasonably to know, is not itself an exempt recording;
(c) makes, for use in a sound‑track,
a copy of an authorised sound recording of the performance and the person
knows, or ought reasonably to know, that the making of the sound recording was
not authorised for the purpose of use in that or any other sound‑track;
(d) has in his or her possession a
recording of the performance, for the purpose of:
(i) selling it, letting it
for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing
it for the purpose of trade, or for any other purpose that will affect
prejudicially the financial interests of the performer or performers in the
performance;
being a recording that the
person knows, or ought reasonably to know, is an unauthorised recording;
(e) sells, lets on hire, or by way of
trade exhibits in public or offers or exposes for sale or hire, a recording of
the performance that the person knows, or ought reasonably to know, is an
unauthorised recording;
(f) distributes a recording of the
performance for the purpose of trade, or for any other purpose to an extent
that will affect prejudicially the financial interests of the performer or
performers in the performance, being a recording that the person knows, or
ought reasonably to know, is an unauthorised recording;
(g) imports a recording of the performance
into Australia for the purpose of:
(i) selling it, letting it
for hire, or by way of trade exhibiting it in public or offering or exposing it
for sale or hire; or
(ii) distributing
it for the purpose of trade, or for any other purpose to an extent that will
affect prejudicially the financial interests of the performer or performers in
the performance;
being a recording that the
person knows, or ought reasonably to know, is an unauthorised recording; or
(h) causes a recording of the
performance to be heard or seen in public, being a recording that the person
knows, or ought reasonably to know, is an unauthorised recording.
(3) A person who communicates an authorised
recording of a performance to the public without the authority of the performer
does not, by so doing, make an unauthorised use of the performance.
(4) This section applies only to acts done in
Australia.
248H
Copying sound recordings for broadcasting
(1) Despite paragraph 248G(2)(c), where the
making of a copy of a sound recording of a performance for use in a sound‑track
would, but for this subsection, be an unauthorised use of the performance under
that paragraph, the making by a person of such a copy solely for the purpose of
use in a broadcast by that person is not an unauthorised use of the
performance.
(2) Subsection (1) does not apply to a
copy if it is used for a purpose other than:
(a) a broadcast by the person who made
the copy; or
(b) the making of further copies by
that person for the purpose of broadcasting by that person.
(3) Subsection (1) does not apply to a
copy unless all the copies made in accordance with that subsection are:
(a) destroyed; or
(b) 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;
before the end of the period of 12 months beginning on the
day on which any of those copies is first used for the purpose of a broadcast
in accordance with that subsection, or before the end of such further period
(if any) as is agreed between the maker of the copy and the performer, or all
of the performers.
(4) The Director‑General of the National
Archives of Australia must not consent to the transfer of the care of a copy of
a sound recording to the National Archives of Australia unless the Director‑General
has certified that the sound recording is of an exceptional documentary
character.
248J
Actions for unauthorised use
(1) A performer may bring an action for an
unauthorised use of his or her performance.
(2) The relief that a court may grant in an
action for an unauthorised use of a performance includes an injunction (subject
to such terms, if any, as the court thinks fit) and damages.
(3) Where, in
an action for an unauthorised use of a performance:
(a) the unauthorised use is
established; and
(b) the court is satisfied that it is
proper to do so, having regard to:
(i) the flagrancy of the
use;
(ii) any benefit shown to
have accrued to the defendant by reason of the use; and
(iii) all
other relevant matters;
the court may, in assessing damages, award such additional
damages as it considers appropriate in the circumstances.
(4) If:
(a) a performer brings an action under
this section that relates to a recording of a performance; and
(b) the relief granted in the action
consists of or includes damages; and
(c) the performer has already been
granted damages in an action under another section of this Act in relation to
an infringement of his or her copyright in the recording; and
(d) the action referred to in paragraph (c)
arose out of the same event or transaction as the action referred to in paragraph (a);
the amount of any damages referred to in paragraph (b)
that, apart from this subsection, would be awarded to the performer is to be
reduced by the amount of the damages referred to in paragraph (c).
(5) If:
(a) a performer brings an action under
another section of this Act that relates to an infringement of his or her
copyright in a recording of a performance; and
(b) the relief granted in the action
consists of or includes damages; and
(c) the performer has already been
granted damages in an action under this section in relation to the performance;
and
(d) the action referred to in paragraph (c)
arose out of the same event or transaction as the action referred to in paragraph (a);
the amount of any damages referred to in paragraph (b)
that, apart from this subsection, would be awarded to the performer is to be
reduced by the amount of the damages referred to in paragraph (c).
248K
Exercise of jurisdiction
The jurisdiction of the Supreme Court of
a State or Territory in an action under section 248J shall be exercised by
a single Judge of the Court.
248L
Appeals
(1) Subject to subsection (2), a
decision of a court of a State or Territory (however constituted) in an action
under section 248J is final and conclusive.
(2) An appeal lies from a decision of a court
of a State or Territory in an action under section 248J:
(a) to the Federal Court of Australia;
or
(b) by special leave of the High
Court, to the High Court.
248M
Jurisdiction of Federal Court
Jurisdiction is conferred on the Federal
Court of Australia with respect to actions under section 248J.
248MA
Jurisdiction of Federal Magistrates Court
Jurisdiction is conferred on the Federal
Magistrates Court with respect to actions under section 248J.
248N
Right to bring an action not assignable
The right of a performer to bring an
action under section 248J is not assignable.
Division 3—Offences
Subdivision A—General offences
248P
Scope of this Subdivision
(1) This Subdivision applies to acts done in Australia
on or after the commencement of this Subdivision.
Note: This Subdivision commenced when it was
included in this Act by Part 1 of Schedule 1 to the Copyright
Amendment Act 2006.
(2) This section has effect despite section 14.1
(Standard geographical jurisdiction) of the Criminal Code.
248PA
Unauthorised direct recording during protection period
Indictable offence
(1) A person commits an offence if:
(a) the person makes a direct
recording of a performance; and
(b) the recording is made during the
protection period of the performance; and
(c) the recording is made without the
authority of the performer.
Note: Under section 248CA, the protection period
of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes a direct
recording of a performance; and
(b) the recording is made during the
protection period of the performance; and
(c) the recording is made without the
authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
248PB
Unauthorised indirect recording during protection period
Indictable offence
(1) A person commits an offence if:
(a) the person makes an indirect
recording of a performance; and
(b) the recording is made during the
protection period of the performance; and
(c) the recording is made without the
authority of the performer.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes an indirect
recording of a performance; and
(b) the recording is made during the
protection period of the performance; and
(c) the recording is made without the
authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes an indirect
recording of a performance; and
(b) the recording is made during the protection
period of the performance; and
(c) the recording is made without the
authority of the performer.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Defence
(7) Subsection (1), (3) or (5) does not
apply if the recording was made solely for the person’s private and domestic
use.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
248PC
Unauthorised communication to public during 20‑year protection period
Indictable offence
(1) A person commits an offence if:
(a) the person communicates a
performance to the public; and
(b) the communication is made during
the 20‑year protection period of the performance; and
(c) the communication is made without
the authority of the performer; and
(d) the communication is made either
directly from the live performance or from an unauthorised recording of the
performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person communicates a
performance to the public; and
(b) the communication is made during
the 20‑year protection period of the performance; and
(c) the communication is made without
the authority of the performer and the person is negligent as to that fact; and
(d) the communication is made either
directly from the live performance or from an unauthorised recording of the
performance.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Defence
(7) To avoid doubt, subsections (1) and
(3) do not apply to the communication to the public of an authorised recording
of the performance.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
Note 2: An educational or other institution can also
copy and communicate a broadcast of a performance without contravening this
section in some circumstances (see sections 135E and 135F).
248PD
Playing unauthorised recording publicly during 20‑year protection period
Indictable offence
(1) A person commits an offence if:
(a) the person causes a recording of a
performance to be heard or seen in public; and
(b) the recording is heard or seen in
public during the 20‑year protection period of the performance; and
(c) the recording is unauthorised.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person causes a recording of a
performance to be heard or seen in public; and
(b) the recording is heard or seen in
public during the 20‑year protection period of the performance; and
(c) the recording is unauthorised and
the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
248PE
Possessing equipment to make or copy unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses a plate or
recording equipment, intending it to be used for making:
(i) an unauthorised
recording of a performance; or
(ii) a copy of an unauthorised
recording of a performance; and
(b) the possession occurs during the
protection period of the performance.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person possesses a plate or
recording equipment; and
(b) the plate or equipment is to be
used for making:
(i) a recording of a
performance; or
(ii) a copy of an
unauthorised recording of a performance; and
(c) either:
(i) the recording to be
made using the plate or equipment will be an unauthorised recording of the
performance; or
(ii) the recording to be
copied using the plate or equipment is an unauthorised recording of the
performance;
and the person is negligent as
to that fact; and
(d) the possession occurs during the
protection period of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) To avoid doubt, recklessness is the fault
element for the circumstance that the plate or equipment is to be used for
making:
(a) a recording of a performance; or
(b) a copy of an unauthorised
recording of a performance.
(5) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
No need to prove which performance or recording is to
be involved
(8) In a prosecution for an offence against
this section, it is not necessary to prove:
(a) which particular performance is
intended to be, or will be, recorded using the device; or
(b) which particular recording is
intended to be, or will be, copied using the device.
248PF
Copying unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PG
Unauthorised copying of exempt recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the copy is made without the
authority of the performer; and
(d) the recording is an exempt
recording; and
(e) the copy is not an exempt
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the copy is made without the
authority of the performer and the person is negligent as to that fact; and
(d) the recording is an exempt
recording; and
(e) the copy is not an exempt
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a
recording of a performance; and
(b) the copy is made during the
protection period of the performance; and
(c) the copy is made without the
authority of the performer; and
(d) the recording is an exempt
recording; and
(e) the copy is not an exempt
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PH
Unauthorised copying of authorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance, intending that the copy be used in a sound‑track;
and
(b) the copy is made during the 20‑year
protection period of the performance; and
(c) the copy is made without the
authority of the performer; and
(d) the sound recording is an
authorised sound recording; and
(e) the making of the sound recording
was not authorised for the purpose of use in that or any other sound‑track.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance, intending that the copy be used in a sound‑track;
and
(b) the copy is made during the 20‑year
protection period of the performance; and
(c) the copy is made without the
authority of the performer and the person is negligent as to that fact; and
(d) the sound recording is an
authorised sound recording; and
(e) the making of the sound recording
was not authorised for the purpose of use in that or any other sound‑track
and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance in preparation for use in a sound‑track; and
(b) the copy is made during the 20‑year
protection period of the performance; and
(c) the copy is made without the
authority of the performer; and
(d) the sound recording is an
authorised sound recording; and
(e) the making of the sound recording
was not authorised for the purpose of use in that or any other sound‑track.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PI
Selling etc. unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a recording of a
performance;
(ii) lets for hire a
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a recording of a performance; and
(b) the act is done during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a recording of a
performance;
(ii) lets for hire a
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a recording of a performance; and
(b) the act is done during the protection
period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a recording of a
performance;
(ii) lets for hire a
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a recording of a performance; and
(b) the act is done during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PJ
Distributing unauthorised recording
Indictable offences
(1) A person commits an offence if:
(a) the person distributes a recording
of a performance, with the intention of trading; and
(b) the distribution occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) A person commits an offence if:
(a) the person distributes a recording
of a performance; and
(b) the distribution occurs during the
protection period of the performance; and
(c) the distribution will affect
prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised
recording.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offences
(4) A person commits an offence if:
(a) the person distributes a recording
of a performance, with the intention of trading; and
(b) the distribution occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person commits an offence if:
(a) the person distributes a recording
of a performance; and
(b) the distribution occurs during the
protection period of the performance; and
(c) the distribution will affect
prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes a recording
of a performance in preparation for, or in the course of, trade; and
(b) the distribution occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PK
Commercial possession or import of unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a recording of a performance, with the intention of doing any
of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording either for the purpose of trade or to an extent that will affect
prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs
during the protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a recording of a performance, with the intention of doing any
of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording either for the purpose of trade or to an extent that will affect
prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs
during the protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a recording of a performance in preparation for, or in the
course of, doing any of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording for trade; and
(b) the possession or import occurs
during the protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5)
is an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PL
Exhibiting unauthorised recording in public by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person by way of trade
exhibits in public a recording of a performance; and
(b) the exhibition occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person by way of trade
exhibits in public a recording of a performance; and
(b) the exhibition occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person
commits an offence if:
(a) the person by way of trade
exhibits in public a recording of a performance; and
(b) the exhibition occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248PM
Importing unauthorised recording for exhibition by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person imports into Australia
a recording of a performance, with the intention of exhibiting the recording in
public by way of trade; and
(b) the import occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Note: Under section 248CA, the protection
period of a performance is:
(a) a 20‑year protection period so far as
this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as
this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person
commits an offence if:
(a) the person imports into Australia
a recording of a performance, with the intention of exhibiting the recording in
public by way of trade; and
(b) the import occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person imports into Australia
a recording of a performance, in preparation for exhibiting the recording in
public by way of trade; and
(b) the import occurs during the
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Subdivision B—Acts relating to sound recordings of performances given
before 1 July 1995
248QA
Scope of this Subdivision
(1) This Subdivision applies to an act done
in Australia on or after the commencement of this Subdivision, in relation to a
performance given at any time before 1 July 1995.
Note 1: That day was the day on which Part 4 of
the Copyright (World Trade Organization Amendments) Act 1994 commenced.
Note 2: This Subdivision commenced when it was included
in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act
2006.
(2) This Subdivision has effect despite
section 14.1 (Standard geographical jurisdiction) of the Criminal Code.
248QB
Possessing equipment for copying unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses a plate or
recording equipment, intending it to be used for making a copy of an
unauthorised sound recording of a performance; and
(b) the possession occurs during the
50‑year protection period of the performance.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person possesses a plate or
recording equipment; and
(b) the plate or recording equipment
is to be used for making a copy of a sound recording of a performance; and
(c) the recording is an unauthorised
recording of the performance and the person is negligent as to that fact; and
(d) the possession occurs during the
50‑year protection period of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) To avoid doubt, recklessness is the fault
element for the circumstance that the plate or recording equipment is to be
used for making a copy of a sound recording of a performance.
(5) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
No need to prove which recording is to be copied
(8) In a prosecution for an offence against
this section, it is not necessary to prove which particular recording is
intended to be, or will be, copied using the device.
248QC
Copying unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance; and
(b) the copy is made during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance; and
(b) the copy is made during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a sound
recording of a performance; and
(b) the copy is made during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248QD
Selling etc. unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a sound
recording of a performance;
(ii) lets for hire a sound
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a sound recording
of a performance;
(ii) lets for hire a sound
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person does any of the
following acts:
(i) sells a sound
recording of a performance;
(ii) lets for hire a sound
recording of a performance;
(iii) by way of trade offers
or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248QE
Distributing unauthorised sound recording
Indictable offences
(1) A person commits an offence if:
(a) the person distributes a sound
recording of a performance, with the intention of trade; and
(b) the distribution occurs during the
50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) A person commits an offence if:
(a) the person distributes a sound
recording of a performance; and
(b) the distribution occurs during the
50‑year protection period of the performance; and
(c) the distribution will affect
prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised
recording.
(3) An offence against subsection (1) or
(2) is punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offences
(4) A person commits an offence if:
(a) the person distributes a sound
recording of a performance, with the intention of trade; and
(b) the distribution occurs during the
50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(5) A person commits an offence if:
(a) the person distributes a sound
recording of a performance; and
(b) the distribution occurs during the
50‑year protection period of the performance; and
(c) the distribution will affect
prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(6) An offence against subsection (4) or
(5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes a sound
recording of a performance in preparation for, or in the course of, trade; and
(b) the distribution occurs during the
50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248QF
Commercial possession or import of unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a sound recording of a performance, with the intention of doing
any of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording either for the purpose of trade or to an extent that will affect
prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs
during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a sound recording of a performance, with the intention of doing
any of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording either for the purpose of trade or to an extent that will affect
prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs
during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses, or imports
into Australia, a sound recording of a performance in preparation for, or in
the course of, doing any of the following:
(i) selling the recording;
(ii) letting the recording
for hire;
(iii) by way of trade
offering or exposing the recording for sale or hire;
(iv) distributing the
recording for trade; and
(b) the possession or import occurs
during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248QG
Exhibiting unauthorised sound recording in public by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person by way of trade
exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person by way of trade
exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the
50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person by way of trade
exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the
50‑year protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
248QH
Importing unauthorised sound recording for exhibition by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person imports into Australia
a sound recording of a performance, with the intention of exhibiting the
recording in public by way of trade; and
(b) the import occurs during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
(2) An offence against subsection (1) is
punishable on conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the
amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person imports into Australia
a sound recording of a performance, with the intention of exhibiting the
recording in public by way of trade; and
(b) the import occurs during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
(4) An offence against subsection (3) is
a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person imports into Australia
a sound recording of a performance in preparation for exhibiting the recording
in public by way of trade; and
(b) the import occurs during the 50‑year
protection period of the performance; and
(c) the recording is an unauthorised
recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Subdivision C—Prosecution and infringement notices
248R
Courts in which offences may be prosecuted
(1) Prosecutions for offences against
Subdivision A or B may be brought in the Federal Court of Australia or in any
other court of competent jurisdiction.
(2) However, the Federal Court of Australia
does not have jurisdiction to hear or determine prosecutions for indictable
offences, despite section 15C of the Acts Interpretation Act 1901.
(3) The Federal Court of Australia has
jurisdiction to hear and determine prosecutions of the following offences
against Subdivision A or B:
(a) summary offences;
(b) offences of strict liability.
248S
Protection against multiple proceedings for same act
If a single act done in relation to a
performance is an offence against Subdivision A and an offence against
Subdivision B, only one of the offences may be prosecuted.
248SA
Infringement notices
(1) The regulations may make provision
enabling a person who is alleged to have committed an offence of strict
liability against Subdivision A or B to pay a penalty to the Commonwealth as an
alternative to prosecution.
(2) The penalty must equal one‑fifth of
the maximum fine that a court could impose on the person as a penalty for that
offence.
Subdivision D—Destruction or delivery up of unauthorised recordings
248T
Destruction or delivery up of unauthorised recordings
The court before which a person is
charged with an offence against this Part may, whether the person is convicted
of the offence or not, order that any article in the possession of the person
that appears to the court to be:
(a) an unauthorised recording of a
performance, or a copy of such a recording; or
(b) a
plate or recording equipment used, or intended to be used, for making an
unauthorised recording of a performance, or copies of such a recording;
be destroyed or delivered up to the performer or
performers concerned or otherwise dealt with in such manner as the court thinks
fit.
Division 4—Extension of protection to foreign countries
248U
Application to foreign countries
(1) Subject to this section, the regulations
may apply any of the provisions of this Part specified in the regulations, in
relation to a foreign country so specified, in any one or more of the following
ways:
(a) so that the provisions apply in
relation to performances given in that country in like manner as those
provisions apply in relation to performances given in Australia;
(aa) so that the provisions apply in
relation to recordings, made in that country, of performances in like manner as
those provisions apply in relation to recordings of performances given in Australia;
(ab) so that the provisions apply in
relation to broadcasts, made in that country, of performances in like manner as
those provisions apply in relation to broadcasts of performances given in Australia;
(ac) so that the provisions apply in
relation to recordings, made by persons who are citizens, nationals or
residents of that country, of performances in like manner as those provisions
apply in relation to recordings of performances given in Australia;
(b) so that the provisions apply in
relation to persons who are citizens or nationals of that country in like
manner as those provisions apply in relation to persons who are Australian
citizens;
(c) so that the provisions apply in
relation to persons who are resident in that country in like manner as those
provisions apply in relation to persons who are resident in Australia.
(2) Regulations applying a provision of this
Part in relation to a foreign country:
(a) may apply the provision without
exception or modification or subject to such exceptions or modifications as are
specified in the regulations; and
(b) may apply the provision either
generally or in relation to such classes of performances, or other classes of
cases, as are specified in the regulations.
(3) Regulations shall not be made applying
any of the provisions of this Part in relation to a foreign country that is not
a party to a Convention relating to the protection of performers to which
Australia is also a party unless the Governor‑General is satisfied that,
in respect of the performances to which those provisions relate, provision has
been or will be made under the law of that country under which adequate
protection is or will be given to performers whose performances are protected
under this Act.
248V
Denial of protection to citizens of countries not giving adequate protection to
Australian performances
(1) If it appears to the Governor‑General
that the law of a foreign country does not give adequate protection to
Australian performances (whether the lack of protection relates to all or any
of the ways that the provisions may be applied by the regulations under
subsection 248U(1)), the Governor‑General may, having regard to the
nature and extent of the lack of protection involved, make regulations in
relation to that country in accordance with this section.
(2) Regulations made for the purposes of this
section may provide, either generally or in such cases as are specified in the
regulations, that this Part does not apply to performances given after a day
specified in the regulations (which may be a day before the commencement of the
regulations or of this Part) if, at the time the performances were or are
given, the performers were or are citizens or nationals of a foreign country
specified in the regulations, other than persons resident in Australia.
Part XII—Regulations
249
Regulations
General regulation‑making power
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters that are
required or permitted by this Act to be prescribed or are necessary or
convenient to be prescribed for carrying out or giving effect to this Act and,
in particular, prescribing penalties not exceeding a fine of $100 for offences
against the regulations.
Regulations in relation to technological protection
measures
(2) Without limiting subsection (1), the
Governor‑General may make regulations prescribing the doing of an act by
a person for the purposes of subsections 116AN(9) and 132APC(9).
Note: For prescription of acts and persons by class,
see subsection 13(3) of the Legislative Instruments Act 2003.
(3) However, the Governor‑General must
not make a regulation prescribing the doing of an act by a person unless the
Minister makes a recommendation to prescribe the doing of the act by the
person.
(4) The Minister may only make a
recommendation to prescribe the doing of an act by a person if:
(a) a submission has been made
(whether before or after the commencement of this section) to prescribe the
doing of the act by the person; and
(b) the doing of the act by the person
will not infringe the copyright in a work or other subject‑matter; and
(c) the doing of the act by the person
is in relation to a particular class of works or other subject‑matter;
and
(d) an actual or likely adverse impact
on the doing of the act by the person has been credibly demonstrated; and
(e) the
adequacy of the protection and the effectiveness of the remedies provided by
Subdivision A of Division 2A of Part V and Subdivision E of Division 5
of Part V would not be impaired if the doing of the act by the person were
prescribed.
Note: For the purposes of paragraph (a), it is
not necessary for the person who made the submission to be the person in
relation to whom the act is prescribed.
(5) If a submission has been made to
prescribe the doing of an act by a person, the Minister must make a decision
whether to recommend the prescription of the doing of the act by the person as
soon as practicable after receiving the submission, but in any case, within 4
years of receiving it.
(6) The Governor‑General may make
regulations varying or revoking regulations made under subsection (2).
(7) However, the Governor‑General must
not make a regulation varying or revoking a regulation made under subsection (2)
unless the Minister makes a recommendation to vary or revoke the regulation.
(8) The Minister may make a recommendation to
vary or revoke a regulation made under subsection (2) only if:
(a) a submission has been made to vary
or revoke the regulation; and
(b) an actual or likely adverse impact
on the doing of the act by the person that is the subject of the regulation can
no longer be credibly demonstrated; and
(c) the adequacy of the protection and
the effectiveness of the remedies provided by Subdivision A of Division 2A
of Part V and Subdivision E of Division 5 of Part V would be
impaired if the regulation were not varied or revoked.
(9) If a submission has been made to vary or
revoke a regulation made under subsection (2), the Minister must make a
decision whether to recommend the variation or revocation of the regulation as
soon as practicable after receiving the submission, but in any case, within 4
years of receiving it.