An Act to amend the law relating to copyright, and for related purposes
Note: An electronic version of this Act is available in SCALEplus (http://scaleplus.law.gov.au/html/comact/browse/TOCN.htm)
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................2
Schedule 1—Amendments 3 Copyright Act 1968 3 US Free Trade Agreement Implementation Act 2004 9
An Act to amend the law relating to copyright, and for related purposes
[Assented to 15 December 2004]
This Act may be cited as the Copyright Legislation Amendment Act 2004.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | |||
---|---|---|---|
Column 1 | Column 2 | Column 3 | |
Provision(s) | Commencement | Date/Details | |
1. Sections 1 to 3 and anything in this Act not | The day on which this Act receives the Royal Assent. | 15 December 2004 | |
elsewhere covered | |||
by this table | |||
2. Schedule 1 | The later of: (a) the start of the day on which this Act receives the Royal Assent; and | 1 January 2005 (paragraph (b) applies) | |
(b) immediately after the commencement of the provisions covered by table item 2 in the table in section 2 of the US Free | |||
Trade Agreement Implementation Act 2004. | |||
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Subsection 43B(1)
Omit “making of a reproduction”, substitute “making of a temporary reproduction”.
Note: The heading to section 43B is altered by omitting “Reproduction” and substituting “Temporary reproductions”.
2 Subsection 43B(1)
Omit “made as part”, substitute “made as a necessary part”.
3 Subsection 43B(2)
Repeal the subsection, substitute:
4 Subsection 111B(1)
Omit “making of a reproduction”, substitute “making of a temporary copy”.
Note: The heading to section 111B is altered by omitting “Reproduction” and substituting “Temporary copy”.
5 Subsection 111B(1)
Omit “the reproduction”, substitute “the temporary copy”.
6 Subsection 111B(1)
Omit “made as part”, substitute “made as a necessary part”.
7 Subsection 111B(2)
Repeal the subsection, substitute:
8 Application of items 1 to 7
The amendments made by items 1 to 7 apply in respect of acts done after the day on which this item commences.
9 Section 116AB (definition of financial benefit)
Repeal the definition.
10 Subsection 116AH(1) (table item 4, condition 1)
Omit “A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.”.
11 Subsection 116AH(1) (table item 4, after condition 2)
Insert: 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:
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).
12 Subsection 116AH(1) (table item 5, condition 1)
Omit “A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.”.
13 Subsection 116AH(1) (table item 5, after condition 2)
Insert: 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:
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).
14 At the end of section 116AH
Add:
(3) In deciding, for the purposes of condition 1 in table items 4 and 5 in the table in subsection (1), whether a financial benefit is otherwise directly attributable to the infringing activity referred to in that condition, a court must have regard to:
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.
15 At the end of section 130
Add:
(3) To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:
16 Application of item 15
The amendment made by item 15 applies in respect of sound recordings embodied wholly or partly in records that are supplied either before or after this item commences.
17 Paragraph 132(1)(a)
After “or hire”, insert “or with the intention of obtaining a commercial advantage or profit”.
18 Paragraphs 132(1)(b) and (c)
Omit “and”, substitute “or”.
19 Subparagraph 132(1)(d)(i)
Omit “and”, substitute “or”.
20 Subparagraph 132(1)(d)(ii)
Omit “and”, substitute “or”.
21 Subparagraph 132(1)(d)(iii)
Omit “and”, substitute “or”.
22 Paragraph 132(2)(a)
Omit “and”, substitute “or”.
23 Paragraph 132(2A)(a)
Omit “and”, substitute “or”.
24 Paragraph 132(2A)(b)
Omit “and”, substitute “or”.
25 Paragraph 132(2A)(c)
Omit “and”, substitute “or”.
26 Subparagraphs 132(5D)(b)(i) and (ii)
Omit “and”, substitute “or”.
27 Subparagraph 132(5DA)(b)(i)
Omit “and”, substitute “or”.
28 Subparagraph 132(5DA)(b)(ii)
Omit “trading and”, substitute “trading or”.
29 Application of items 17 to 28
The amendments made by items 17 to 28 apply in respect of acts done after the day on which this item commences.
30 At the end of section 132B
Add:
(3) To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:
31 Application of item 30
The amendment made by item 30 applies in respect of sound recordings embodied wholly or partly in records that are supplied either before or after this item commences.
32 Paragraph 135AS(1)(b)
Omit “and”, substitute “or”.
33 Paragraph 135AS(1)(c)
Omit “and”, substitute “or”.
34 Paragraph 135AS(1)(d)
Omit “and”, substitute “or”.
35 Subparagraph 135AS(1)(e)(i)
Omit “and”, substitute “or”.
36 Subparagraph 135AS(1)(e)(ii)
After “for trading”, insert “or”.
37 Subparagraph 135AS(1)(e)(iii)
Omit “and”, substitute “or”.
38 Paragraph 135AS(1A)(d)
Omit “and”, substitute “or”.
39 After subsection 135AS(1B)
Insert:
Offence in relation to use of encoded broadcast that has been
accessed without authorisation
(1C) A person commits an offence if:
Note: See section 135AL for the definition of profit.
40 Subsection 135AS(4)
Omit “or (1B)”, substitute “, (1B) or (1C)”.
41 Application of items 32 to 40
The amendments made by items 32 to 40 apply in respect of encoded broadcasts made after the day on which this item commences.
42 Item 118 of Schedule 9 (heading)
43 After paragraph 118(1)(c) of Schedule 9
Insert: (ca) that time is no later than 2 years from the US FTA commencement day; and
44 Paragraphs 118(3)(a) and (4)(a) of Schedule 9
Omit “compensation that is reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.
45 After subitem 118(4) of Schedule 9
Insert:
(4A) An amount of compensation agreed on or determined under this item or item 119 of this Schedule may only include compensation in respect of:
46 Subitem 118(6) of Schedule 9
Omit “pay reasonable compensation”, substitute “pay an amount of reasonable compensation”.
47 Paragraph 118(6)(a) of Schedule 9
After “ceased to subsist”, insert “and before the end of 2 years from the US FTA commencement day”.
48 Subitem 118(8) of Schedule 9
Insert:
US FTA commencement day means the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.
49 Subitem 119(1) of Schedule 9
Omit “under item 118 for the determination of reasonable compensation”, substitute “under item 118 of this Schedule for the determination of an amount of reasonable compensation”.
50 Subitem 119(3) of Schedule 9
Omit “the amount of compensation that it considers to be reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.
51 At the end of subitem 119(3) of Schedule 9
Add:
Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 118(4A) of this Schedule.
52 Item 132 of Schedule 9 (heading)
53 After paragraph 132(1)(c) of Schedule 9
Insert: (ca) that time is no later than 2 years from the US FTA commencement day; and
54 Paragraphs 132(3)(a) and (4)(a) of Schedule 9
Omit “compensation that is reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.
55 After subitem 132(4) of Schedule 9
Insert:
(4A) An amount of compensation agreed on or determined under this item or item 133 of this Schedule may only include compensation in respect of:
56 Subitem 132(6) of Schedule 9
Omit “pay reasonable compensation”, substitute “pay an amount of reasonable compensation”.
57 Paragraph 132(6)(a) of Schedule 9
After “ceased to subsist”, insert “and before the end of 2 years from the US FTA commencement day”.
58 Subitem 132(8) of Schedule 9
Insert:
US FTA commencement day means the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.
59 Subitem 133(1) of Schedule 9
Omit “under item 132 for the determination of reasonable compensation”, substitute “under item 132 of this Schedule for the determination of an amount of reasonable compensation”.
60 Subitem 133(3) of Schedule 9
Omit “the amount of compensation that it considers to be reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.
61 At the end of subitem 133(3) of Schedule 9
Add:
Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 132(4A) of this Schedule.
[Minister’s second reading speech made in— Senate on 30 November 2004 House of Representatives on 9 December 2004]
(204/04)