Copyright Act 1968
No. 63, 1968 as amended
Compilation start date: 15 April 2013
Includes amendments up to: Act No. 13, 2013
Prepared by the Office of Parliamentary Counsel, Canberra
ComLaw Authoritative Act C2013C00145
About this compilation
The compiled Act
This is a compilation of the Copyright Act 1968 as amended and in force on
15 April 2013. It includes any amendment affecting the compiled Act to that
date.
This compilation was prepared on 23 April 2013.
The notes at the end of this compilation (the endnotes) include information
about amending Acts and instruments and the amendment history of each
amended provision.
Uncommenced provisions and amendments
If a provision of the compiled Act is affected by an uncommenced amendment,
the text of the uncommenced amendment is set out in the endnotes.
Application, saving and transitional provisions for amendments
If the operation of an amendment is affected by an application, saving or
transitional provision, the provision is set out in the endnotes.
Modifications
If a provision of the compiled Act is affected by a textual modification that is in
force, the text of the modifying provision is set out in the endnotes.
Provisions ceasing to have effect
If a provision of the compiled Act has expired or otherwise ceased to have
effect in accordance with a provision of the Act, details of the provision are set
out in the endnotes.
ComLaw Authoritative Act C2013C00145
Contents
Part I—Preliminary 1 1 Short title...........................................................................1
2 Commencement.................................................................1
4 Extension to external Territories .......................................1
5 Exclusion of Imperial Copyright Act, 1911.......................1
6 Repeal of Copyright Acts ..................................................1
7 Act to bind the Crown .......................................................2
8 Copyright not to subsist except by virtue of this
Act.....................................................................................2
8A Prerogative rights of the Crown in the nature of
copyright ...........................................................................2
9 Operation of other laws .....................................................2
9A Application of the Criminal Code .....................................3
Part II—Interpretation 4 10 Interpretation .....................................................................4
10AA Non-infringing copy of a sound recording.......................24
10AB Non-infringing copy of a computer program ...................25
10AC Non-infringing copy of an electronic literary or
music item .......................................................................26
10AD Accessories to imported articles ......................................26
10A Declarations and notices relating to certain bodies
and institutions ................................................................27
11 Residence in a country not affected by temporary
absence ............................................................................28
12 References to Parliament.................................................28
13 Acts comprised in copyright............................................28
14 Acts done in relation to substantial part of work or
other subject-matter deemed to be done in relation
to the whole .....................................................................28
15 References to acts done with licence of owner of
copyright .........................................................................29
16 References to partial assignment of copyright.................29
17 Statutory employment .....................................................29
18 Libraries established or conducted for profit ...................29
19 References to Copyright Act, 1911 .................................29
20 Names under which work is published ............................30
21 Reproduction and copying of works and other
subject-matter ..................................................................30
22 Provisions relating to the making of a work or
other subject-matter .........................................................31
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23 Sound recordings and records .........................................34
24 References to sounds and visual images embodied
in an article......................................................................34
25 Provisions relating to broadcasting..................................34
27 Performance ....................................................................35
28 Performance and communication of works or other
subject-matter in the course of educational
instruction........................................................................36
29 Publication.......................................................................38
30 Ownership of copyright for particular purposes ..............40
30A Commercial rental arrangement ......................................40
Part III—Copyright in original literary, dramatic, musical and
artistic works 42
Division 1—Nature, duration and ownership of copyright in
works 42
31 Nature of copyright in original works .............................42
32 Original works in which copyright subsists.....................44
33 Duration of copyright in original works ..........................44
34 Duration of copyright in anonymous and
pseudonymous works ......................................................45
35 Ownership of copyright in original works .......................45
Division 2—Infringement of copyright in works 48
36 Infringement by doing acts comprised in the
copyright .........................................................................48
37 Infringement by importation for sale or hire ...................48
38 Infringement by sale and other dealings ..........................49
39 Infringement by permitting place of public
entertainment to be used for performance of work ..........50
39A Infringing copies made on machines installed in
libraries and archives.......................................................50
39B Communication by use of certain facilities .....................51
Division 3—Acts not constituting infringements of copyright in
works 52
40 Fair dealing for purpose of research or study ..................52
41 Fair dealing for purpose of criticism or review ...............54
41A Fair dealing for purpose of parody or satire ....................54
42 Fair dealing for purpose of reporting news......................54
43 Reproduction for purpose of judicial proceedings
or professional advice......................................................55
43A Temporary reproductions made in the course of
communication ................................................................55
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43B Temporary reproductions of works as part of a
technical process of use ...................................................55
43C Reproducing works in books, newspapers and
periodical publications in different form for
private use .......................................................................56
44 Inclusion of works in collections for use by places
of education.....................................................................58
44A Importation etc. of books.................................................58
44B Reproduction of writing on approved label for
containers for chemical product ......................................61
44BA Acts done in relation to certain medicine ........................61
44C Copyright subsisting in accessories etc. to
imported articles ..............................................................63
44D Import of non-infringing copy of sound recording
does not infringe copyright in works recorded ................63
44E Importation and sale etc. of copies of computer
programs..........................................................................64
44F Importation and sale etc. of copies of electronic
literary or music items .....................................................64
Division 4—Acts not constituting infringements of copyright in
literary, dramatic and musical works 66
45 Reading or recitation in public or for a broadcast............66
46 Performance at premises where persons reside or
sleep ................................................................................66
47 Reproduction for purpose of broadcasting.......................66
47AA Reproduction for the purpose of simulcasting .................68
47A Sound broadcasts by holders of print disability
radio licences...................................................................68
Division 4A—Acts not constituting infringements of copyright in
computer programs 72
47AB Meaning of computer program........................................72
47B Reproduction for normal use or study of computer
programs..........................................................................72
47C Back-up copy of computer programs ..............................73
47D Reproducing computer programs to make
interoperable products .....................................................74
47E Reproducing computer programs to correct errors ..........75
47F Reproducing computer programs for security
testing ..............................................................................76
47G Unauthorised use of copies or information......................77
47H Agreements excluding operation of certain
provisions ........................................................................77
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Division 4B—Acts not constituting infringements of copyright in
artistic works 78
47J Reproducing photograph in different format for
private use .......................................................................78
Division 5—Copying of works in libraries or archives 80
48 Interpretation ...................................................................80
48A Copying by Parliamentary libraries for members
of Parliament ...................................................................80
49 Reproducing and communicating works by
libraries and archives for users ........................................80
50 Reproducing and communicating works by
libraries or archives for other libraries or archives ..........85
51 Reproducing and communicating unpublished
works in libraries or archives ..........................................90
51AA Reproducing and communicating works in care of
National Archives of Australia ........................................91
51A Reproducing and communicating works for
preservation and other purposes ......................................92
51B Making preservation copies of significant works in
key cultural institutions‘ collections ................................94
52 Publication of unpublished works kept in libraries
or archives .......................................................................96
53 Application of Division to illustrations
accompanying articles and other works...........................97
Division 6—Recording of musical works 98
54 Interpretation ...................................................................98
55 Conditions upon which manufacturer may make
records of musical work ..................................................99
57 Provisions relating to royalty where 2 or more
works are on the one record...........................................101
59 Conditions upon which manufacturer may include
part of a literary or dramatic work in a record of a
musical work .................................................................101
60 Records made partly for retail sale and partly for
gratuitous disposal.........................................................103
61 Making inquiries in relation to previous records ...........104
64 Sections 55 and 59 to be disregarded in
determining whether an infringement has been
committed by the importation of records.......................105
Division 7—Acts not constituting infringements of copyright in
artistic works 106
65 Sculptures and certain other works in public places ......106
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66 Buildings and models of buildings ................................106
67 Incidental filming or televising of artistic works ...........106
68 Publication of artistic works ..........................................106
70 Reproduction for purpose of including work in
television broadcast .......................................................107
72 Reproduction of part of work in later work ...................108
73 Reconstruction of buildings...........................................108
Division 8—Designs 109
74 Corresponding design....................................................109
75 Copyright protection where corresponding design
registered .......................................................................109
76 False registration of industrial designs under the
Designs Act 2003...........................................................109
77 Application of artistic works as industrial designs
without registration of the designs.................................110
77A Certain reproductions of an artistic work do not
infringe copyright ..........................................................112
Division 9—Works of joint authorship 114
78 References to all of joint authors...................................114
79 References to any one or more of joint authors .............114
80 References to whichever of joint authors died last ........114
81 Works of joint authorship published under
pseudonyms...................................................................114
82 Copyright to subsist in joint works without regard
to any author who is an unqualified person ...................115
83 Inclusion of joint works in collections for use in
places of education ........................................................115
Part IV—Copyright in subject-matter other than works 116
Division 1—Preliminary 116
84 Definitions.....................................................................116
Division 2—Nature of copyright in subject-matter other than
works 118
85 Nature of copyright in sound recordings .......................118
86 Nature of copyright in cinematograph films..................118
87 Nature of copyright in television broadcasts and
sound broadcasts ...........................................................119
88 Nature of copyright in published editions of works.......119
Division 3—Subject-matter, other than works, in which
copyright subsists 120
89 Sound recordings in which copyright subsists...............120
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90 Cinematograph films in which copyright subsists .........120
91 Television broadcasts and sound broadcasts in
which copyright subsists ...............................................120
92 Published editions of works in which copyright
subsists ..........................................................................121
Division 4—Duration of copyright in subject-matter other than
works 122
93 Duration of copyright in sound recordings ....................122
94 Duration of copyright in cinematograph films...............122
95 Duration of copyright in television broadcasts and
sound broadcasts ...........................................................122
96 Duration of copyright in published editions of
works .............................................................................123
Division 5—Ownership of copyright in subject-matter other
than works 124
Subdivision A—Ownership of copyright in subject-matter other
than works 124
97 Ownership of copyright in sound recordings.................124
98 Ownership of copyright in cinematograph films ...........124
99 Ownership of copyright in television broadcasts
and sound broadcasts.....................................................125
100 Ownership of copyright in published editions of
works .............................................................................126
Subdivision B—Specific provisions relating to the ownership of
copyright in pre-commencement sound recordings
of live performances 126
100AA Application....................................................................126
100AB Definitions.....................................................................126
100AC Application of sections 100AD and 100AE ..................126
100AD Makers of pre-commencement sound recordings of
live performances ..........................................................127
100AE Ownership of pre-commencement copyright in
sound recordings of live performances..........................127
100AF Former owners may continue to do any act in
relation to the copyright ................................................128
100AG Actions by new owners of copyright .............................129
100AH References to the owner of the copyright in a
sound recording .............................................................129
Division 6—Infringement of copyright in subject-matter other
than works 131
100A Interpretation .................................................................131
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101 Infringement by doing acts comprised in copyright ......131
102 Infringement by importation for sale or hire .................132
103 Infringement by sale and other dealings ........................132
103A Fair dealing for purpose of criticism or review .............133
103AA Fair dealing for purpose of parody or satire ..................133
103B Fair dealing for purpose of reporting news....................133
103C Fair dealing for purpose of research or study ................134
104 Acts done for purposes of judicial proceeding ..............134
104A Acts done by Parliamentary libraries for members
of Parliament .................................................................135
104B Infringing copies made on machines installed in
libraries and archives.....................................................135
105 Copyright in certain recordings not infringed by
causing recordings to be heard in public or
broadcast .......................................................................135
106 Causing sound recording to be heard at guest
house or club .................................................................136
107 Making of a copy of the sound recording for
purpose of broadcasting.................................................136
108 Copyright in published recording not infringed by
public performance if equitable remuneration paid .......138
109 Copyright in published sound recording not
infringed by broadcast in certain circumstances ............138
109A Copying sound recordings for private and
domestic use ..................................................................140
110 Provisions relating to cinematograph films ...................141
110AA Copying cinematograph film in different format
for private use................................................................141
110A Copying and communicating unpublished sound
recordings and cinematograph films in libraries or
archives .........................................................................143
110B Copying and communicating sound recordings and
cinematograph films for preservation and other
purposes ........................................................................143
110BA Making preservation copies of significant
recordings and films in key cultural institutions‘
collections .....................................................................146
110C Making of a copy of a sound recording or
cinematograph film for the purpose of
simulcasting...................................................................147
111 Recording broadcasts for replaying at more
convenient time .............................................................148
111A Temporary copy made in the course of
communication ..............................................................149
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111B Temporary copy of subject-matter as part of a
technical process of use .................................................149
112 Reproductions of editions of work ................................150
112A Importation and sale etc. of books.................................151
112AA Making preservation copies of significant
published editions in key cultural institutions‘
collections .....................................................................154
112B Reproduction of writing on approved label for
containers for chemical product ....................................155
112C Copyright subsisting in accessories etc. to
imported articles ............................................................155
112D Import of non-infringing copy of a sound
recording does not infringe copyright in the sound
recording .......................................................................155
112DA Importation and sale etc. of copies of electronic
literary or music items ...................................................156
112E Communication by use of certain facilities ...................157
Division 7—Miscellaneous 158
113 Copyrights to subsist independently..............................158
113A Agents may act on behalf of groups of performers........158
113B Consent to the use of a sound recording of a live
performance...................................................................158
113C Use of published sound recordings when owners
cannot be found etc........................................................159
Part V—Remedies and offences 160
Division 1—Preliminary 160
114 Interpretation .................................................................160
Division 2—Actions by owner of copyright 161
115 Actions for infringement ...............................................161
116 Rights of owner of copyright in respect of
infringing copies............................................................163
116AAA Compensation for acquisition of property .....................164
Division 2AA—Limitation on remedies available against
carriage service providers 166
Subdivision A—Preliminary 166
116AA Purpose of this Division ................................................166
116AB Definitions.....................................................................166
Subdivision B—Relevant activities 167
116AC Category A activity .......................................................167
116AD Category B activity........................................................167
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116AE Category C activity........................................................167
116AF Category D activity .......................................................167
Subdivision C—Limitations on remedies 168
116AG Limitations on remedies ................................................168
Subdivision D—Conditions 169
116AH Conditions .....................................................................169
116AI Evidence of compliance with conditions .......................173
Subdivision E—Regulations 173
116AJ Regulations....................................................................173
Division 2A—Actions in relation to technological protection
measures and electronic rights management
information 174
Subdivision A—Technological protection measures 174
116AK Definitions.....................................................................174
116AL Interaction of this Subdivision with Part VAA..............174
116AM Geographical application...............................................174
116AN Circumventing an access control technological
protection measure ........................................................174
116AO Manufacturing etc. a circumvention device for a
technological protection measure ..................................178
116AP Providing etc. a circumvention service for a
technological protection measure ..................................181
116AQ Remedies in actions under this Subdivision ..................184
Subdivision B—Electronic rights management information 185
116B Removal or alteration of electronic rights
management information...............................................185
116C Distribution to the public etc. of works whose
electronic rights management information has
been removed or altered ................................................186
116CA Distribution and importation of electronic rights
management information that has been removed or
altered............................................................................187
116CB Exception relating to national security and law
enforcement...................................................................188
116D Remedies in actions under this Subdivision ..................188
Division 3—Proceedings where copyright is subject to exclusive
licence 189
117 Interpretation .................................................................189
118 Application....................................................................189
119 Rights of exclusive licensee ..........................................189
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120 Joinder of owner or exclusive licensee as a party..........190
121 Defences available against exclusive licensee ...............190
122 Assessment of damages where exclusive licence
granted...........................................................................190
123 Apportionment of profits between owner and
exclusive licensee ..........................................................191
124 Separate actions in relation to the same
infringement ..................................................................191
125 Liability for costs ..........................................................192
Division 4—Proof of facts in civil actions 193
126 Presumptions as to subsistence and ownership of
copyright .......................................................................193
126A Presumptions relating to subsistence of copyright.........193
126B Presumptions relating to ownership of copyright ..........194
127 Presumptions in relation to authorship of work .............195
128 Presumptions in relation to publisher of work...............196
129 Presumptions where author has died .............................197
129A Presumptions relating to computer programs ................197
130 Presumptions relating to sound recordings....................198
130A Acts relating to imported copies of sound
recordings......................................................................199
130B Acts relating to imported copies of computer
programs........................................................................199
130C Acts relating to imported copies of electronic
literary or music items ...................................................200
131 Presumptions relating to films.......................................200
Division 4A—Jurisdiction and appeals 202
131A Exercise of jurisdiction..................................................202
131B Appeals..........................................................................202
131C Jurisdiction of Federal Court of Australia .....................202
131D Jurisdiction of Federal Circuit Court of Australia .........202
Division 5—Offences and summary proceedings 203
Subdivision A—Preliminary 203
132AA Definitions.....................................................................203
132AB Geographical application...............................................203
Subdivision B—Substantial infringement on a commercial scale 204
132AC Commercial-scale infringement prejudicing
copyright owner.............................................................204
Subdivision C—Infringing copies 206
132AD Making infringing copy commercially ..........................206
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132AE Selling or hiring out infringing copy .............................207
132AF Offering infringing copy for sale or hire .......................209
132AG Exhibiting infringing copy in public commercially.......211
132AH Importing infringing copy commercially.......................213
132AI Distributing infringing copy ..........................................215
132AJ Possessing infringing copy for commerce .....................217
132AK Aggravated offence—work etc. converted to
digital form....................................................................219
132AL Making or possessing device for making
infringing copy ..............................................................220
132AM Advertising supply of infringing copy...........................222
Subdivision D—Airing of works, sound recordings and films 222
132AN Causing work to be performed publicly ........................222
132AO Causing recording or film to be heard or seen in
public.............................................................................223
Subdivision E—Technological protection measures 224
132APA Definitions.....................................................................224
132APB Interaction of this Subdivision with Part VAA..............225
132APC Circumventing an access control technological
protection measure ........................................................225
132APD Manufacturing etc. a circumvention device for a
technological protection measure ..................................229
132APE Providing etc. a circumvention service for a
technological protection measure ..................................233
Subdivision F—Electronic rights management information 237
132AQ Removing or altering electronic rights
management information...............................................237
132AR Distributing, importing or communicating copies
after removal or alteration of electronic rights
management information...............................................239
132AS Distributing or importing electronic rights
management information...............................................241
132AT Defences........................................................................244
Subdivision G—Evidence 245
132AU Prosecution to prove profit ............................................245
132A Presumptions in relation to subsistence and
ownership of copyright..................................................245
132AAA Presumptions relating to computer programs ................246
132B Presumptions relating to sound recordings....................247
132C Presumptions relating to films.......................................248
Subdivision H—Extra court orders 249
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133 Destruction or delivery up of infringing copies etc. ......249
Subdivision I—Procedure and jurisdiction 250
133A Courts in which offences may be prosecuted ................250
133B Infringement notices......................................................250
Division 6—Miscellaneous 251
134 Limitation of actions in respect of infringement of
copyright .......................................................................251
134A Affidavit evidence .........................................................251
Division 7—Seizure of imported copies of copyright material 253
134B Interpretation .................................................................253
135 Restriction of importation of copies of works etc..........254
135AA Decision not to seize unless expenses are covered ........256
135AB Secure storage of seized copies .....................................257
135AC Notice of seizure............................................................257
135AD Inspection, release etc. of seized copies ........................258
135AE Forfeiture of seized copies by consent...........................259
135AEA Claim for release of seized copies .................................259
135AEB Seized copies not claimed are forfeited .........................259
135AEC Late claim for release of seized goods...........................260
135AED Objector to be notified of claim.....................................260
135AF Release of seized copies to importer .............................260
135AFA Copies released but not collected are forfeited ..............261
135AG Provision relating to actions for infringement of
copyright .......................................................................261
135AH Retention of control of seized copies.............................262
135AI Disposal of seized copies forfeited to the
Commonwealth .............................................................262
135AJ Failure to meet Commonwealth‘s expenses of
seizure ...........................................................................263
135AK Immunity of the Commonwealth...................................264
Part VAA—Unauthorised access to encoded broadcasts 265
Division 1—Preliminary 265
135AL Definitions.....................................................................265
135AM Counterclaim .................................................................266
135AN This Part does not apply to law enforcement
activity etc. ....................................................................266
Division 2—Actions 267
Subdivision A—Actions relating to unauthorised decoders 267
135AOA Making or dealing with unauthorised decoder...............267
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Subdivision B—Actions relating to decoders for subscription
broadcasts 268
135AOB Making decoder available online...................................268
Subdivision C—Actions for unauthorised access to encoded
broadcasts 269
135AOC Causing unauthorised access .........................................269
135AOD Unauthorised commercial use of subscription
broadcast .......................................................................270
Subdivision D—Court orders 271
135AOE Relief .............................................................................271
135AOF Destruction of decoder ..................................................271
Subdivision E—Jurisdiction and appeals 271
135AP Exercise of jurisdiction..................................................271
135AQ Appeals..........................................................................271
135AR Jurisdiction of Federal Court of Australia .....................272
135AS Jurisdiction of Federal Circuit Court of Australia .........272
Division 3—Offences 273
Subdivision A—Offences 273
135ASA Making unauthorised decoder .......................................273
135ASB Selling or hiring unauthorised decoder..........................273
135ASC Offering unauthorised decoder for sale or hire..............273
135ASD Commercially exhibiting unauthorised decoder in
public.............................................................................274
135ASE Importing unauthorised decoder commercially .............275
135ASF Distributing unauthorised decoder.................................275
135ASG Making unauthorised decoder available online .............276
135ASH Making decoder available online for subscription
broadcast .......................................................................276
135ASI Unauthorised access to subscription broadcast etc. .......277
135ASJ Causing unauthorised access to encoded broadcast
etc. .................................................................................278
Subdivision B—Prosecutions 279
135ATA Courts in which offences may be prosecuted ................279
Subdivision C—Further orders by court 280
135AU Destruction etc. of unauthorised decoders .....................280
Part VA—Copying and communication of broadcasts by
educational and other institutions 281
Division 1—Preliminary 281
135A Interpretation .................................................................281
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135B Copies and communications of broadcasts ....................282
135C Extended operation of this Part .....................................282
135D Operation of collecting society rules .............................283
Division 2—Copying and communication of broadcasts 284
135E Copying and communication of broadcasts by
educational institutions etc. ...........................................284
135F Making and communication of preview copies .............285
135G Remuneration notices ....................................................287
135H Records notices .............................................................287
135J Sampling notices ...........................................................289
135JAA Determination of questions relating to this
Division or the collecting society‘s rules.......................291
135JA Agreed notice ................................................................292
135K Marking and record keeping requirements ....................294
135KA Notice requirements in respect of communications.......295
135L Inspection of records etc................................................296
135M Revocation of remuneration notice................................297
135N Request for payment of equitable remuneration............297
Division 3—The collecting society 298
135P Declaration of the collecting society .............................298
135Q Revocation of declaration..............................................299
135R Annual report and accounts ...........................................300
135S Amendment of rules ......................................................300
135SA Applying to Tribunal for review of distribution
arrangement...................................................................301
Division 4—Interim copying 302
135T Appointment of notice holder........................................302
135U Copying before declaration of collecting society ..........302
135V Preview copies...............................................................303
135W Notices by administering bodies....................................303
135X Marking and record keeping requirements ....................304
135Y Effect of declaration of collecting society .....................304
Division 5—Miscellaneous 305
135Z Relevant right holder may authorise copying etc. .........305
135ZA Copyright not to vest in copier ......................................305
Part VB—Reproducing and communicating works etc. by
educational and other institutions 306
Division 1—Preliminary 306
135ZB Interpretation .................................................................306
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135ZC Eligible items and photographic versions......................307
135ZE Part does not apply to computer programs ....................308
135ZF Operation of collecting society rules .............................308
135ZFA Licensed communications .............................................308
Division 2—Reproduction by educational institutions of works
that are in hardcopy form 309
135ZGA Application of Division .................................................309
135ZG Multiple reproduction of insubstantial parts of
works that are in hardcopy form....................................309
135ZH Copying of printed published editions by
educational institutions..................................................310
135ZJ Multiple reproduction of printed periodical articles
by educational institutions.............................................310
135ZK Multiple reproduction of works published in
printed anthologies ........................................................311
135ZL Multiple reproduction of works that are in
hardcopy form by educational institutions.....................311
135ZM Application of Division to certain illustrations that
are in hardcopy form .....................................................312
Division 2A—Reproduction and communication of works that
are in electronic form 314
135ZMA Application of Division .................................................314
135ZMB Multiple reproduction and communication of
insubstantial parts of works that are in electronic
form...............................................................................314
135ZMC Multiple reproduction and communication of
periodical articles that are in electronic form by
education institutions.....................................................316
135ZMD Multiple reproduction and communication of
works that are in electronic form by educational
institutions .....................................................................316
135ZMDA Reproduction and communication of works from
electronic anthologies by educational institutions .........317
135ZME Application of Division to certain illustrations in
electronic form ..............................................................318
Division 3—Reproduction and communication of works by
institutions assisting persons with a print disability 320
135ZN Copying published editions by institutions
assisting persons with a print disability .........................320
135ZP Multiple reproduction and communication of
works by institutions assisting persons with a print
disability........................................................................320
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135ZQ Making of relevant reproductions and relevant
communications by institutions assisting persons
with a print disability.....................................................322
Division 4—Reproduction and communication of works etc. by
institutions assisting persons with an intellectual
disability 325
135ZR Copying of published editions by institutions
assisting persons with an intellectual disability .............325
135ZS Copying and communication of eligible items by
institutions assisting persons with an intellectual
disability........................................................................325
135ZT Making of copies etc. for use in making copies or
communications for a person with an intellectual
disability........................................................................326
Division 5—Equitable remuneration 328
135ZU Remuneration notices ....................................................328
135ZV Records notices .............................................................328
135ZW Sampling notices ...........................................................329
135ZWAA Determination of questions relating to this Part or
a collecting society‘s rules.............................................330
135ZWA Electronic use notices ....................................................331
135ZX Records notices and sampling notices: marking
and record-keeping requirements ..................................333
135ZXA Electronic use notices: notice requirements etc. ............334
135ZY Inspection of records etc................................................335
135ZZ Revocation of remuneration notice................................336
135ZZA Request for payment of equitable remuneration............336
Division 6—Collecting societies 337
135ZZB Collecting societies........................................................337
135ZZC Revocation of declaration..............................................339
135ZZD Annual report and accounts ...........................................339
135ZZE Amendment of rules ......................................................340
135ZZEA Applying to Tribunal for review of distribution
arrangement...................................................................340
Division 7—Miscellaneous 341
135ZZF Rights of copyright owners ...........................................341
135ZZG Copyright not to vest in copier ......................................341
135ZZH Unauthorised use of copies............................................341
xvi Copyright Act 1968
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343Part VC—Retransmission of free-to-air broadcasts
Division 1—Preliminary 343
135ZZI Definitions.....................................................................343
135ZZJ Operation of collecting society rules .............................344
135ZZJA Application of Part ........................................................344
Division 2—Retransmission of free-to-air broadcasts 345
135ZZK Retransmission of free-to-air broadcasts .......................345
135ZZL Remuneration notices ....................................................345
135ZZM Amount of equitable remuneration................................346
135ZZN Record system ...............................................................346
135ZZP Inspection of records etc................................................347
135ZZQ Identity cards .................................................................348
135ZZR Revocation of remuneration notice................................348
135ZZS Request for payment of equitable remuneration............349
Division 3—Collecting societies 350
135ZZT Collecting societies........................................................350
135ZZU Revocation of declaration..............................................352
135ZZV Annual report and accounts ...........................................352
135ZZW Amendment of rules ......................................................353
135ZZWA Applying to Tribunal for review of distribution
arrangement...................................................................353
Division 4—Interim retransmissions 354
135ZZX Appointment of notice holder........................................354
135ZZY Retransmitting before declaration of collecting
society ...........................................................................354
135ZZZ Notices by retransmitters ...............................................354
135ZZZA Record keeping requirements ........................................355
135ZZZB Effect of declaration of collecting society .....................355
Division 5—Miscellaneous 357
135ZZZC Relevant copyright owner may authorise
retransmitting ................................................................357
135ZZZD Copyright not to vest under this Part .............................357
135ZZZE Licence to retransmit does not authorise copyright
infringements.................................................................357
Part VD—Re-broadcasts by satellite BSA licensees 358
Division 1—Preliminary 358
135ZZZF Definitions.....................................................................358
135ZZZG Eligible program and original broadcaster.....................359
135ZZZH Operation of collecting society rules .............................359
Copyright Act 1968 xvii
ComLaw Authoritative Act C2013C00145
360Division 2—Re-broadcasts by satellite BSA licensees
135ZZZI Re-broadcasts by satellite BSA licensees ......................360
135ZZZJ Remuneration notices ....................................................362
135ZZZK Amount of equitable remuneration................................363
135ZZZL Record system ...............................................................363
135ZZZM Revocation of remuneration notice................................364
135ZZZN Request for payment of equitable remuneration............364
Division 3—Collecting societies 365
135ZZZO Collecting societies........................................................365
135ZZZP Revocation of declaration..............................................367
135ZZZQ Annual report and accounts ...........................................367
135ZZZR Amendment of rules ......................................................368
135ZZZS Applying to Tribunal for review of distribution
arrangement...................................................................369
Division 4—Interim re-broadcasts 370
135ZZZT Appointment of notice holder........................................370
135ZZZU Re-broadcast before declaration of collecting
society ...........................................................................370
135ZZZV Notices by satellite BSA licensees ................................370
135ZZZW Record keeping requirements ........................................371
135ZZZX Effect of declaration of collecting society .....................371
Division 5—Miscellaneous 373
135ZZZY Relevant copyright owner may authorise
re-broadcast ...................................................................373
135ZZZZ Copyright not to vest under this Part .............................373
135ZZZZA Licence to re-broadcast does not authorise
copyright infringements ................................................373
Part VI—Copyright Tribunal of Australia 374
Division 1—Preliminary 374
136 Interpretation .................................................................374
137 Cases to which licence schemes apply ..........................376
Division 2—Constitution of the Tribunal 377
138 Constitution of Tribunal ................................................377
139 Appointment of members of Tribunal ...........................377
140 Qualifications of members ............................................377
141 Tenure of office .............................................................378
141A Seniority of Deputy Presidents ......................................378
142 Acting President ............................................................378
143 Remuneration and allowances .......................................379
xviii Copyright Act 1968
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144 Oath or affirmation of office .........................................379
144A Disclosure of interests by members...............................379
144B Removal from office for failure to disclose interest ......380
145 Resignation....................................................................380
146 Sittings of the Tribunal..................................................380
147 President to arrange business of Tribunal......................381
Division 3—Applications and references to the Tribunal 382
Subdivision A—Preliminary 382
148 Interpretation .................................................................382
Subdivision B—Applications relating to Parts III and IV 382
149 Applications to Tribunal for determination of
remuneration payable for making recording or film
of a work .......................................................................382
149A Applications to Tribunal under section 47A..................382
150 Applications to Tribunal for determination of
remuneration payable to owner of copyright in
recording for making of a copy of the sound
recording .......................................................................383
151 Applications to Tribunal for determination of
remuneration payable to owner of copyright in
recording in respect of public playing of the
recording .......................................................................383
152 Applications to Tribunal for determination of
amounts payable for broadcasting published sound
recordings......................................................................384
152A Applications to Tribunal for determination of
amount of royalty payable for recording musical
works .............................................................................390
152B Applications to Tribunal for determination of
manner of paying royalty...............................................391
153 Applications to Tribunal for apportionment of
royalty in respect of a record .........................................392
Subdivision C—Applications and references relating to Part VA 392
153A Applications to Tribunal under section 135H,
subsection 135J(1) or subsection 135JA(1) ...................392
153B Applications to Tribunal under subsection 135J(3) .......393
153BAAA Application to the Tribunal under
subsection 135JAA(2) ...................................................394
153BA Application to the Tribunal under
subsection 135JA(3) ......................................................394
153BAA Application to the Tribunal under
subsection 135K(2A).....................................................395
Copyright Act 1968 xix
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153BAB References relating to declaration of collecting
society ...........................................................................395
153BAC References relating to revocation of declaration of
collecting society...........................................................396
153BAD Review of collecting society‘s distribution
arrangement...................................................................396
Subdivision D—Applications and references relating to Part VB 397
153BB Application to the Tribunal under
subsection 135ZME(3) ..................................................397
153C Applications to the Tribunal under section 135ZV
or subsection 135ZW(1) or 135ZWA(1) .......................398
153D Applications to Tribunal under
subsection 135ZW(3) ....................................................398
153DAA Application to the Tribunal under
subsection 135ZWAA(2)...............................................399
153DA Applications to the Tribunal under
subsection 135ZWA(2) .................................................399
153DB Application to the Tribunal under
subsection 135ZX(2A) ..................................................400
153DC References relating to declaration of collecting
society ...........................................................................400
153DD References relating to revocation of declaration of
collecting society...........................................................401
153DE Review of collecting society‘s distribution
arrangement...................................................................402
Subdivision E—Applications relating to Part VII 402
153E Applications to Tribunal under subsection 183(5).........402
153F Applications to Tribunal to declare collecting
society for government copies.......................................403
153G Applications to Tribunal to revoke a declaration of
a collecting society ........................................................405
153H Time limit for deciding applications under
section 153F or 153G ....................................................406
153J Amendment and revocation of a declaration on the
declaration of another collecting society .......................406
153K Applications to Tribunal for method of working
out payment for government copies ..............................407
153KA Review of collecting society‘s distribution
arrangement...................................................................407
Subdivision F—Applications relating to declarations of
institutions 408
153L Applications to Tribunal for review of declarations
of certain educational institutions..................................408
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xx
Subdivision G—Applications and references relating to Part VC 409
153M Applications to the Tribunal under
subsection 135ZZM(1) ..................................................409
153N Applications to Tribunal under
subsection 135ZZN(3)...................................................410
153P References relating to declaration of collecting
society ...........................................................................410
153Q References relating to revocation of declaration of
collecting society...........................................................411
153R Review of collecting society‘s distribution
arrangement...................................................................411
Subdivision GA—Applications and references relating to Part VD 412
153RA Application to the Tribunal to determine amount
payable to owner of copyright in a broadcast ................412
153S Applications to the Tribunal under
paragraph 135ZZZK(1)(b)—equitable
remuneration .................................................................413
153T Applications to Tribunal under
paragraph 135ZZZL(3)(b)—record system ...................414
153U References relating to declaration of collecting
society ...........................................................................414
153V References relating to revocation of declaration of
collecting society...........................................................415
153W Review of collecting society‘s distribution
arrangement...................................................................416
Subdivision H—References and applications relating to licences
and licence schemes 416
154 Reference of proposed licence schemes to
Tribunal .........................................................................416
155 Reference of existing licence schemes to Tribunal........418
156 Further reference of licence schemes to Tribunal..........420
157 Application to Tribunal in relation to licences ..............421
157A Tribunal must have regard to ACCC guidelines on
request ...........................................................................424
157B Tribunal may make ACCC party to reference or
application .....................................................................425
158 Effect of licence scheme being continued in
operation pending order of the Tribunal ........................425
159 Effect of order of Tribunal in relation to licences..........426
Subdivision I—General provisions 428
160 Interim orders ................................................................428
161 Reference of questions of law to Federal Court of
Australia ........................................................................429
Copyright Act 1968 xxi
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162 Agreements or awards not affected ...............................430
Division 4—Procedure and evidence 431
163 Proceedings to be in public except in special
circumstances ................................................................431
163A Application may be made to Tribunal by the agent
of the copyright owner ..................................................431
164 Procedure.......................................................................431
165 Mistakes or errors in orders of the Tribunal ..................432
166 Regulations as to procedure...........................................432
167 Power to take evidence on oath .....................................433
168 Evidence in form of written statement...........................433
169 Representation...............................................................433
Division 4A—Alternative dispute resolution processes 434
169A Referral of proceeding for alternative dispute
resolution process..........................................................434
169B Directions by President or Deputy President .................435
169C Agreement about the terms of a decision etc. ................435
169D Evidence not admissible ................................................436
169E Eligibility of person conducting alternative dispute
resolution process to sit as a member of the
Tribunal .........................................................................437
169F Participation by telephone etc........................................437
169G Engagement of persons to conduct alternative
dispute resolution processes ..........................................437
Division 5—Miscellaneous 439
170 Registrar ........................................................................439
170A Other staff of the Tribunal.............................................440
171 Protecting persons connected with Tribunal
proceedings ...................................................................440
172 Offences by witnesses ...................................................440
173 Offences relating to the Tribunal...................................442
174 Costs of proceedings .....................................................443
175 Proof of orders of Tribunal............................................444
Part VII—The Crown 445
Division 1—Crown copyright 445
176 Crown copyright in original works made under
direction of Crown ........................................................445
177 Crown copyright in original works first published
in Australia under direction of Crown ...........................445
178 Crown copyright in recordings and films made
under direction of Crown...............................................445
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179 Provisions relating to ownership of copyright may
be modified by agreement .............................................446
180 Duration of Crown copyright in original works ............446
181 Duration of Crown copyright in recordings and
films ..............................................................................447
182 Application of Parts III and IV to copyright
subsisting by virtue of this Part .....................................447
182A Copyright in statutory instruments and judgments
etc. .................................................................................447
Division 2—Use of copyright material for the Crown 449
182B Definitions.....................................................................449
182C Relevant collecting society............................................449
183 Use of copyright material for the services of the
Crown............................................................................450
183A Special arrangements for copying for services of
government....................................................................451
183B Payment and recovery of equitable remuneration
payable for government copies......................................452
183C Powers of collecting society to carry out sampling .......453
183D Annual report and accounts of collecting society ..........454
183E Alteration of rules of collecting society.........................455
183F Applying to Tribunal for review of distribution
arrangement...................................................................455
Part VIII—Extension or restriction of operation of Act 456 184 Application of Act to countries other than
Australia ........................................................................456
185 Denial of copyright to citizens of countries not
giving adequate protection to Australian works ............458
186 Application of Act to international organizations..........459
187 Original works made or first published by
international organizations ............................................459
188 Subject-matter, other than original works, made or
first published by international organizations................460
Part IX—Moral rights of performers and of authors of literary,
dramatic, musical or artistic works and
cinematograph films 462
Division 1—Preliminary 462
189 Definitions.....................................................................462
190 Moral rights conferred on individuals ...........................466
191 Director, producer and screenwriter of
cinematograph film........................................................466
Copyright Act 1968 xxiii
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191A Staging a performance...................................................467
191B Conductor to be treated as a performer..........................467
192 Rights to be additional to other rights............................468
Division 2—Right of attribution of authorship 469
193 Author‘s right of attribution of authorship ....................469
194 Acts giving rise to right of attribution of
authorship......................................................................469
195 Nature of the identification of author ............................470
195AA Identification of author to be clear and reasonably
prominent ......................................................................470
195AB What is a reasonably prominent identification ..............470
Division 2A—Right of attribution of performership 471
195ABA Performer‘s right of attribution of performership..........471
195ABB Acts giving rise to right of attribution of
performership ................................................................471
195ABC Nature of the identification of performer.......................471
195ABD Identification of performer to be clear and
reasonably prominent or audible ...................................472
195ABE What is a reasonably prominent identification ..............472
Division 3—Right not to have authorship of a work falsely
attributed 473
195AC Author‘s right not to have authorship falsely
attributed .......................................................................473
195AD Acts of false attribution of authorship of a literary,
dramatic or musical work ..............................................473
195AE Acts of false attribution of authorship of artistic
work ..............................................................................474
195AF Acts of false attribution of authorship of
cinematograph film........................................................474
195AG Acts of false attribution of authorship of altered
literary, dramatic, musical or artistic work ....................475
195AH Act of false attribution of authorship of altered
cinematograph film........................................................475
Division 3A—Right not to have performership falsely attributed 476
195AHA Performer‘s right not to have performership falsely
attributed .......................................................................476
195AHB Acts of false attribution of performership......................476
195AHC Act of false attribution of performership of altered
recorded performance....................................................478
Division 4—Right of integrity of authorship of a work 480
195AI Author‘s right of integrity of authorship .......................480
xxiv Copyright Act 1968
ComLaw Authoritative Act C2013C00145
195AJ Derogatory treatment of literary, dramatic or
musical work .................................................................480
195AK Derogatory treatment of artistic work............................480
195AL Derogatory treatment of cinematograph film ................481
Division 4A—Right of integrity of performership 482
195ALA Performer‘s right of integrity of performership .............482
195ALB Derogatory treatment of performance ...........................482
Division 5—Duration and exercise of moral rights 483
Subdivision A—Duration and exercise of moral rights of authors 483
195AM Duration of author‘s moral rights ..................................483
195AN Exercise of author‘s moral rights...................................483
Subdivision B—Duration and exercise of moral rights of
performers 484
195ANA Duration of performer‘s moral rights for recorded
performances .................................................................484
195ANB Exercise of performer‘s moral rights .............................484
Division 6—Infringement of moral rights 486
Subdivision A—Infringement of moral rights of authors 486
195AO Infringement of right of attribution of authorship..........486
195AP Infringement of right not to have authorship
falsely attributed............................................................486
195AQ Infringement of right of integrity of authorship.............486
195AR No infringement of right of attribution of
authorship if it was reasonable not to identify the
author ............................................................................487
195AS No infringement of right of integrity of authorship
if derogatory treatment or other action was
reasonable......................................................................489
195AT Certain treatment of works not to constitute an
infringement of the author‘s right of integrity of
authorship......................................................................490
195AU Infringement by importation for sale or other
dealing...........................................................................494
195AV Infringement by sale and other dealings ........................494
195AVA Matters to be taken into account....................................494
195AVB Communication by use of certain facilities ...................495
195AW Author‘s consent to act or omission—films or
works in films................................................................495
195AWA Author‘s consent to act or omission—work that is
not a film or included in a film ......................................496
Copyright Act 1968 xxv
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497
195AWB Consent invalidated by duress or false or
misleading statements....................................................497
195AX Acts or omissions outside Australia ..............................497
Subdivision B—Infringement of moral rights of performers
195AXA Infringement of right of attribution of
performership ................................................................497
195AXB Infringement of right not to have performership
falsely attributed............................................................498
195AXC Infringement of right of integrity of performership .......498
195AXD No infringement of right of attribution of
performership if it was reasonable not to identify
the performer .................................................................498
195AXE No infringement of right of integrity of
performership if derogatory treatment or other
action was reasonable ....................................................499
195AXF Infringement by importation for sale or other
dealing...........................................................................500
195AXG Infringement by sale and other dealings ........................501
195AXH Matters to be taken into account....................................501
195AXI Communication by use of certain facilities ...................501
195AXJ Performer‘s consent to act or omission .........................502
195AXK Consent invalidated by duress or false or
misleading statements....................................................502
195AXL Acts or omissions outside Australia ..............................503
Division 7—Remedies for infringements of moral rights 504
Subdivision A—Remedies for infringement of moral rights of
authors 504
195AY Definition etc.................................................................504
195AZ Actions for infringement of author‘s moral rights .........504
195AZA Remedies for infringements of author‘s moral
rights..............................................................................504
195AZD Presumption as to subsistence of copyright ...................506
195AZE Presumption as to subsistence of author‘s moral
rights..............................................................................506
195AZF Presumptions in relation to authorship of work.............507
195AZG Other presumptions in relation to literary,
dramatic, musical or artistic work .................................507
Subdivision B—Remedies for infringement of moral rights of
performers 507
195AZGA Definition etc.................................................................507
195AZGB Actions for infringement of performer‘s moral
rights..............................................................................507
xxvi Copyright Act 1968
ComLaw Authoritative Act C2013C00145
195AZGC Remedies for infringements of performer‘s moral
rights..............................................................................508
195AZGD Presumption as to subsistence of copyright ...................509
195AZGE Presumption as to subsistence of performer‘s
moral rights ...................................................................509
195AZGF Presumptions in relation to performership.....................509
Subdivision C—Miscellaneous 510
195AZGG Saving of other rights and remedies ..............................510
195AZGH Jurisdiction of courts .....................................................510
Division 8—Miscellaneous 511
Subdivision A—Miscellaneous provisions about moral rights of
authors 511
195AZH Parts of works................................................................511
195AZI Works of joint authorship..............................................511
195AZJ Cinematograph films that have more than one
principal director ...........................................................511
195AZK Cinematograph films that have more than one
principal producer .........................................................512
195AZL Cinematograph films that have more than one
principal screenwriter ....................................................512
195AZM Application—right of attribution of authorship.............513
195AZN Application—right not to have authorship falsely
attributed .......................................................................513
195AZO Application—right of integrity of authorship ................514
Subdivision B—Miscellaneous provisions about moral rights of
performers 514
195AZP Parts of performances ....................................................514
195AZQ Performances that have more than one performer .........514
195AZR Application....................................................................515
Part X—Miscellaneous 516 195A Interpretation .................................................................516
195B Review of certain decisions...........................................517
196 Assignments and licences in respect of copyright .........518
197 Prospective ownership of copyright ..............................519
198 Copyright to pass under will with unpublished
work ..............................................................................519
198A Non-infringement of trade mark in relation to the
importation of copyright material ..................................520
199 Reception of broadcasts.................................................520
200 Use of works and broadcasts for educational
purposes ........................................................................521
Copyright Act 1968 xxvii
ComLaw Authoritative Act C2013C00145
200AAA Proxy web caching by educational institutions..............522
200AA Use of broadcasts by institutions assisting persons
with an intellectual disability.........................................523
200AB Use of works and other subject-matter for certain
purposes ........................................................................524
201 Delivery of library material to the National Library......526
202 Groundless threats of legal proceedings in relation
to copyright infringement ..............................................527
202A Groundless threats of legal proceedings in relation
to technological protection measures.............................528
203 Limitation on power of courts to grant relief in
proceedings under this Act ............................................529
203A Offence—failing to keep declarations relating to
copying in library or archives........................................529
203D Offence—not arranging declarations
chronologically..............................................................530
203E Inspection of records and declarations retained by
libraries, archives or institutions....................................531
203F False and misleading declarations .................................533
203G Offence—disposing of or destroying certain
declarations ...................................................................533
203H Notation of certain copies etc. .......................................534
Part XI—Transitional 537
Division 1—Preliminary 537
204 Interpretation .................................................................537
205 References to making of works, recordings and
films ..............................................................................538
206 References in other laws or instruments to
copyright .......................................................................538
207 Application....................................................................539
208 Authorship of photographs ............................................539
209 Publication.....................................................................539
Division 2—Original works 541
210 Expired copyright not to revive .....................................541
211 Original works in which copyright subsists...................541
213 Ownership of copyright.................................................541
214 Infringement by importation, sale and other
dealings .........................................................................543
215 Recording of musical works ..........................................543
216 Publication of artistic works ..........................................543
217 Reconstruction of buildings...........................................544
218 Industrial designs...........................................................544
xxviii Copyright Act 1968
ComLaw Authoritative Act C2013C00145
219 Reproduction of work upon payment of royalties .........544
Division 3—Subject-matter other than works 547
220 Sound recordings...........................................................547
221 Cinematograph films .....................................................547
222 Application of Act to dramatic works and
photographs comprised in cinematograph films ............547
223 Television broadcasts and sound broadcasts .................547
224 Published editions of works...........................................548
225 Infringement by importation, sale and other
dealings .........................................................................548
Division 4—Miscellaneous 549
226 Actions for infringement ...............................................549
227 Infringing copies ...........................................................549
228 Actions where copyright subject to exclusive
licence ...........................................................................549
229 Offences and summary proceedings..............................549
230 Limitation of actions .....................................................549
231 Restriction of importation of printed copies of
works .............................................................................550
232 References and applications to Tribunal in relation
to licence schemes .........................................................550
233 Duration of Crown copyright in photographs................550
234 Duration of Crown copyright in recordings...................550
235 Crown copyright in films...............................................551
236 Works made or published by international
organizations .................................................................551
237 Subject-matter, other than original works, made or
published by international organizations .......................551
239 Assignments and licences..............................................551
240 Bequests ........................................................................553
241 Delivery of library material to National Library............554
242 Groundless threats of legal proceedings ........................554
Division 5—Works made before 1 July, 1912 555
243 Interpretation .................................................................555
244 Application....................................................................555
245 Rights conferred by Copyright Act, 1911......................555
246 Performing rights...........................................................555
247 Contributions to periodicals ..........................................556
248 Assignments and licences..............................................556
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558Part XIA—Performers’ protection
Division 1—Preliminary 558
248A Interpretation .................................................................558
248B Educational purposes.....................................................563
248C Exempt recordings cease to be exempt recordings
in certain circumstances ................................................563
248CA Protection period ...........................................................564
248D Private and domestic use ...............................................564
248F Application....................................................................565
Division 2—Actions by performers 566
248G What constitutes unauthorised use ................................566
248H Copying sound recordings for broadcasting ..................567
248J Actions for unauthorised use .........................................568
248K Exercise of jurisdiction..................................................569
248L Appeals..........................................................................570
248M Jurisdiction of Federal Court .........................................570
248MA Jurisdiction of Federal Circuit Court .............................570
248N Right to bring an action not assignable..........................570
Division 3—Offences 571
Subdivision A—General offences 571
248P Scope of this Subdivision ..............................................571
248PA Unauthorised direct recording during protection
period ............................................................................571
248PB Unauthorised indirect recording during protection
period ............................................................................572
248PC Unauthorised communication to public during
20-year protection period ..............................................573
248PD Playing unauthorised recording publicly during
20-year protection period ..............................................574
248PE Possessing equipment to make or copy
unauthorised recording ..................................................575
248PF Copying unauthorised recording ...................................576
248PG Unauthorised copying of exempt recording...................578
248PH Unauthorised copying of authorised sound
recording .......................................................................579
248PI Selling etc. unauthorised recording ...............................580
248PJ Distributing unauthorised recording ..............................582
248PK Commercial possession or import of unauthorised
recording .......................................................................584
248PL Exhibiting unauthorised recording in public by
way of trade...................................................................585
xxx Copyright Act 1968
ComLaw Authoritative Act C2013C00145
248PM Importing unauthorised recording for exhibition by
way of trade...................................................................587
Subdivision B—Acts relating to sound recordings of performances
given before 1 July 1995 588
248QA Scope of this Subdivision ..............................................588
248QB Possessing equipment for copying unauthorised
sound recording .............................................................588
248QC Copying unauthorised sound recording .........................589
248QD Selling etc. unauthorised sound recording.....................590
248QE Distributing unauthorised sound recording....................592
248QF Commercial possession or import of unauthorised
sound recording.............................................................593
248QG Exhibiting unauthorised sound recording in public
by way of trade..............................................................595
248QH Importing unauthorised sound recording for
exhibition by way of trade.............................................596
Subdivision C—Prosecution and infringement notices 597
248R Courts in which offences may be prosecuted ................597
248S Protection against multiple proceedings for same
act ..................................................................................598
248SA Infringement notices......................................................598
Subdivision D—Destruction or delivery up of unauthorised
recordings 598
248T Destruction or delivery up of unauthorised
recordings......................................................................598
Division 4—Extension of protection to foreign countries 599
248U Application to foreign countries ....................................599
248V Denial of protection to citizens of countries not
giving adequate protection to Australian
performances .................................................................600
Part XII—Regulations 601 249 Regulations....................................................................601
The Schedule 603
Endnotes 604
Endnote 1—Legislation history 604
Endnote 2—Amendment history 621
Endnote 3—Application, saving and transitional provisions 659
Copyright Amendment Act (No. 1) 1998 (No. 104, 1998)...........................659
Copyright Act 1968 xxxi
ComLaw Authoritative Act C2013C00145
Copyright Amendment Act (No. 2) 1998 (No. 105, 1998)...........................661
Copyright Amendment (Digital Agenda) Act 2000 (No. 110, 2000) ...........661
Copyright Amendment (Moral Rights) Act 2000 (No. 159, 2000)...............662
Law and Justice Legislation Amendment (Application of Criminal
Code) Act 2001 (No. 24, 2001) .....................................662
Copyright Amendment (Parallel Importation) Act 2003 (No. 34, 2003) ......663
Designs (Consequential Amendments) Act 2003 (No. 148, 2003)...............664
US Free Trade Agreement Implementation Act 2004 (No. 120, 2004) ........666
Copyright Legislation Amendment Act 2004 (No. 154, 2004).....................672
Copyright Amendment (Film Directors‘ Rights) Act 2005 (No. 130,
2005) .............................................................................673
Statute Law Revision Act 2006 (No. 9, 2006)..............................................673
Copyright Amendment Act 2006 (No. 158, 2006) .......................................674
Therapeutic Goods Legislation Amendment (Copyright) Act 2011
(No. 39, 2011) ...............................................................681
Acts Interpretation Amendment Act 2011 (No. 46, 2011)............................682
Endnote 4—Uncommenced amendments 683
Endnote 5—Misdescribed amendments 684
Endnote 6—Modifications 685
A.C.T. Self-Government (Consequential Provisions) Regulations
(1989 No. 3) ..................................................................685
xxxii Copyright Act 1968
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Preliminary Part I
Section 1
An Act relating to copyright and the protection of
certain performances, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Copyright Act 1968.
2 Commencement
This Act shall come into operation on a date to be fixed by
Proclamation.
4 Extension to external Territories
This Act extends to every external Territory.
5 Exclusion of Imperial Copyright Act, 1911
(1) This Act operates to the exclusion of the Copyright Act, 1911.
(2) For the purposes of section 8 of the Acts Interpretation Act
1901-1966, the Copyright Act, 1911 shall be deemed to be an Act
passed by the Parliament of the Commonwealth and to be repealed
by this Act, and the enactment of Part XI shall not be taken to
affect the operation of section 8 of the Acts Interpretation Act
1901-1966 as it operates by virtue of this subsection in relation to
matters to which that Part does not apply.
6 Repeal of Copyright Acts
The following Acts are repealed:
Copyright Act 1912;
Copyright Act 1933;
Copyright Act 1935;
Copyright Act 1963.
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Part I Preliminary
Section 7
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.
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Preliminary Part I
Section 9A
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.
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Part II Interpretation
Section 10
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;
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Interpretation Part II
Section 10
(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
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(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.
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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.
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Section 10
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
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Section 10
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;
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Part II Interpretation
Section 10
(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.
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Interpretation Part II
Section 10
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.
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Part II Interpretation
Section 10
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
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Interpretation Part II
Section 10
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).
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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
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Interpretation Part II
Section 10
(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
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(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.
registered charity means an entity that is registered under the
Australian Charities and Not-for-profits Commission Act 2012 as
the type of entity mentioned in column 1 of item 1 of the table in
subsection 25-5(5) of that Act.
Registrar means the Registrar of the Tribunal provided for by
section 170.
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
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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
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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.
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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
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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.
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(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:
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(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
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Section 10
(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:
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Section 10AA
(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
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Section 10AB
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
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Section 10AC
(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
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Section 10A
(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)
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Section 11
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
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Section 15
(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
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Section 20
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.
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Section 22
(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:
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(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.
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Section 22
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:
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Section 23
(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
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Interpretation Part II
Section 27
(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.
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Part II Interpretation
Section 28
(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
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Interpretation Part II
Section 28
(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
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Part II Interpretation
Section 29
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.
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Interpretation Part II
Section 29
(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
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Part II Interpretation
Section 30
(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.
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Interpretation Part II
Section 30A
(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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 1 Nature, duration and ownership of copyright in works
Section 31
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
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Copyright in original literary, dramatic, musical and artistic works Part III
Nature, duration and ownership of copyright in works Division 1
Section 31
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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 1 Nature, duration and ownership of copyright in works
Section 32
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.
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Copyright in original literary, dramatic, musical and artistic works Part III
Nature, duration and ownership of copyright in works Division 1
Section 34
(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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 1 Nature, duration and ownership of copyright in works
Section 35
(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.
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Copyright in original literary, dramatic, musical and artistic works Part III
Nature, duration and ownership of copyright in works Division 1
Section 35
(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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 2 Infringement of copyright in works
Section 36
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
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Copyright in original literary, dramatic, musical and artistic works Part III
Infringement of copyright in works Division 2
Section 38
(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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 2 Infringement of copyright in works
Section 39
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.
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Copyright in original literary, dramatic, musical and artistic works Part III
Infringement of copyright in works Division 2
Section 39B
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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 3 Acts not constituting infringements of copyright in works
Section 40
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.
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1
2
Copyright in original literary, dramatic, musical and artistic works Part III
Acts not constituting infringements of copyright in works Division 3
Section 40
(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
A literary, dramatic or musical work (a) 10% of the number of pages in
(except a computer program), or an the edition; or
adaptation of such a work, that is (b) if the work or adaptation is contained in a published edition of at divided into chapters—a single least 10 pages chapter
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.
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(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.
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(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.
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(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.
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(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
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(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
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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;
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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
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Australia enough copies of a paperback version of the book to fill
any reasonable order.
(8) For the purposes of paragraph (2)(d), a copyright owner, licensee
or agent is not taken to have filled an order by a person for one or
more copies of a version of a book unless and until the copyright
owner, licensee or agent sends the copy, or all of the copies, as the
case requires, to the person.
(9) In this section:
book does not include:
(a) a book whose main content is one or more musical works,
with or without any related literary, dramatic or artistic work;
or
(b) a manual sold with computer software for use in connection
with that software; or
(c) a periodical publication.
commencing day means the day on which the Copyright
Amendment Act 1991 commences.
overseas work means a work:
(a) that was first published in a country other than Australia; and
(b) that was not published in Australia within 30 days after its
first publication in that other country.
Note: A work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).
44B Reproduction of writing on approved label for containers for
chemical product
The reproduction on a label on a container for a chemical product
of any writing appearing on an approved label is not an
infringement of any copyright subsisting under this Part in relation
to that writing.
44BA Acts done in relation to certain medicine
(1) The following acts are not an infringement of any copyright
subsisting under this Part in a work that is product information
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approved under section 25AA of the Therapeutic Goods Act 1989
in relation to medicine:
(a) an act that is done under that Act and that is in respect of
product information in relation to:
(i) restricted medicine; or
(ii) medicine in respect of which the applicant for the
registration of that medicine under that Act has been
given a notice of the kind referred to in
subparagraph 25(1)(da)(ii) of that Act; or
(iii) medicine in respect of which subsection 25AA(2) or (3)
of that Act applies;
(b) an act that is ancillary or incidental to an act referred to in
paragraph (a).
(2) The following acts are not an infringement of any copyright
subsisting under this Part in a work that is product information
approved under section 25AA of the Therapeutic Goods Act 1989
in relation to medicine:
(a) supplying, in Australia, some or all of any product
information that is approved under that section in relation to
medicine;
(b) reproducing, in Australia, some or all of the information
referred to in paragraph (a);
(c) publishing, in Australia, some or all of the information
referred to in paragraph (a);
(d) communicating, in Australia, some or all of the information
referred to in paragraph (a);
(e) adapting, in Australia, some or all of the information referred
to in paragraph (a);
to the extent that the supply, reproduction, publication,
communication or adaptation is for a purpose related to the safe
and effective use of the medicine referred to in paragraph (a).
(3) An act done in Australia that is ancillary or incidental to a supply,
reproduction, publication, communication or adaptation referred to
in subsection (2) is not an infringement of any copyright subsisting
under this Part in the work referred to in subsection (2).
(4) For the purposes of this section, medicine, product information
and restricted medicine have the same meanings as in the
Therapeutic Goods Act 1989.
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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
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(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
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(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.
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Section 45
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
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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.
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(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
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(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
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Section 47A
(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
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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.
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Division 4A Acts not constituting infringements of copyright in computer programs
Section 47AB
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:
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(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.
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Division 4A Acts not constituting infringements of copyright in computer programs
Section 47D
(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:
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(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
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Section 47F
(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.
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Section 47G
(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.
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Division 4B Acts not constituting infringements of copyright in artistic works
Section 47J
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.
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(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.
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Division 5 Copying of works in libraries or archives
Section 48
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.
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(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.
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Section 49
(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
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(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.
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Section 49
(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.
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Section 50
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):
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(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
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(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:
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(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:
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(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
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(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
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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.
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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
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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,
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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
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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.
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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
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(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.
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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
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(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
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(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.
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Section 57
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;
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(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
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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
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(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;
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Section 64
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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 7 Acts not constituting infringements of copyright in artistic works
Section 65
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.
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Section 70
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.
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Section 72
(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.
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Section 74
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
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Section 77
(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
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Section 77
(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;
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Section 77A
(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.
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(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.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 9 Works of joint authorship
Section 78
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.
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Section 82
(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.
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Part IV Copyright in subject-matter other than works
Division 1 Preliminary
Section 84
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.
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Preliminary Division 1
Section 84
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.
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Part IV Copyright in subject-matter other than works
Division 2 Nature of copyright in subject-matter other than works
Section 85
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.
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Copyright in subject-matter other than works Part IV
Nature of copyright in subject-matter other than works Division 2
Section 87
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.
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Part IV Copyright in subject-matter other than works
Division 3 Subject-matter, other than works, in which copyright subsists
Section 89
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.
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Copyright in subject-matter other than works Part IV
Subject-matter, other than works, in which copyright subsists Division 3
Section 92
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.
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Part IV Copyright in subject-matter other than works
Division 4 Duration of copyright in subject-matter other than works
Section 93
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.
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Duration of copyright in subject-matter other than works Division 4
Section 96
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.
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Part IV Copyright in subject-matter other than works
Division 5 Ownership of copyright in subject-matter other than works
Section 97
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
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Ownership of copyright in subject-matter other than works Division 5
Section 99
(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.
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Part IV Copyright in subject-matter other than works
Division 5 Ownership of copyright in subject-matter other than works
Section 100
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.
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Section 100AD
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.
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Part IV Copyright in subject-matter other than works
Division 5 Ownership of copyright in subject-matter other than works
Section 100AF
(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.
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Section 100AG
(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);
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Part IV Copyright in subject-matter other than works
Division 5 Ownership of copyright in subject-matter other than works
Section 100AH
(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.
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Copyright in subject-matter other than works Part IV
Infringement of copyright in subject-matter other than works Division 6
Section 100A
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.
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Part IV Copyright in subject-matter other than works
Division 6 Infringement of copyright in subject-matter other than works
Section 102
(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
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Infringement of copyright in subject-matter other than works Division 6
Section 103A
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
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Part IV Copyright in subject-matter other than works
Division 6 Infringement of copyright in subject-matter other than works
Section 103C
(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
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Section 104A
(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.
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Part IV Copyright in subject-matter other than works
Division 6 Infringement of copyright in subject-matter other than works
Section 106
106 Causing sound recording to be heard at guest house or club
(1) Where a sound recording is caused to be heard in public:
(a) at premises where persons reside or sleep, as part of the
amenities provided exclusively for residents or inmates of the
premises or for those residents or inmates and their guests; or
(b) as part of the activities of, or for the benefit of, a registered
charity;
the act of causing the recording to be so heard does not constitute
an infringement of the copyright in the recording.
(2) The last preceding subsection does not apply:
(a) in relation to premises of a kind referred to in paragraph (a)
of that subsection, if a specific charge is made for admission
to the part of the premises where the recording is to be heard;
or
(b) in relation to a registered charity of a kind referred to in
paragraph (b) of that subsection, if a charge is made for
admission to the place where the recording is to be heard and
any of the proceeds of the charge are applied otherwise than
for the purposes of the registered charity.
(3) A reference in the last preceding subsection to a specific charge, or
a charge, made for admission includes a reference to a specific
charge, or a charge, made partly for admission and partly for other
purposes.
107 Making of a copy of the sound recording for purpose of
broadcasting
(1) Where the broadcasting by a person of a sound recording would
not (whether by reason of an assignment or licence or of the
operation of a provision of this Act) constitute an infringement of
the copyright in the recording but the making by the person of a
copy of the sound recording would, apart from this subsection,
constitute such an infringement, the copyright in the recording is
not infringed by the making by the person of a copy of the sound
recording in association with other matter solely for the purpose of
the broadcasting of the recording in association with the other
matter.
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Section 107
(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
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Section 108
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:
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(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;
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(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
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(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
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(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
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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:
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(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
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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.
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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.
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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
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(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:
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(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
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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,
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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.
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(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.
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(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).
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Part IV Copyright in subject-matter other than works
Division 6 Infringement of copyright in subject-matter other than works
Section 112AA
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.
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Section 112B
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:
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Division 6 Infringement of copyright in subject-matter other than works
Section 112DA
(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:
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(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.
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Part IV Copyright in subject-matter other than works
Division 7 Miscellaneous
Section 113
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.
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Section 113C
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.
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Part V Remedies and offences
Division 1 Preliminary
Section 114
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.
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Actions by owner of copyright Division 2
Section 115
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
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Section 115
(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.
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Section 116
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:
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Section 116AAA
(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
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Section 116AAA
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.
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Division 2AA Limitation on remedies available against carriage service providers
Section 116AA
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.
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Section 116AC
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.
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Division 2AA Limitation on remedies available against carriage service providers
Section 116AG
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.
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Limitation on remedies available against carriage service providers Division 2AA
Section 116AH
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
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.
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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Section 116AH
Conditions
Item Activity Conditions
3 Category B 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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Section 116AH
Conditions
Item Activity Conditions
4 Category C 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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Section 116AH
Conditions
Item Activity Conditions
5 Category D 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.
(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.
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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.
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Division 2A Actions in relation to technological protection measures and electronic
rights management information
Section 116AK
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.
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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
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(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
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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
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(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
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(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
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(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.
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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;
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(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
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(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.
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Section 116AQ
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.
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Section 116B
(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.
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Section 116C
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.
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Section 116CA
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.
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Section 116CB
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.
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Section 117
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
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(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
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(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
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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.
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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.
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(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;
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(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
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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
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(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
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(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
A specified person was the maker of The person was the maker of the
the recording recording
The recording was first published in The recording was first published in
a specified year the year
The recording was first published in The recording was first published in
a specified country the country
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(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.
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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.
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(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.
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Section 131A
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 Circuit Court of Australia
Jurisdiction is conferred on the Federal Circuit Court of Australia
with respect to civil actions under this Part.
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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.
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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.
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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).
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(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
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(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.
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(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.
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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.
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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.
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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.
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(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.
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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:
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(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;
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(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.
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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
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(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).
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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;
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(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.
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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
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(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.
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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.
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(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).
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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.
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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
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(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).
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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).
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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.
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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.
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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).
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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
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(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;
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(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
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(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
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(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
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(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).
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(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
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(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.
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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).
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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:
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(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;
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(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
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(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
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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.
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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.
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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
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(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
A specified person was the maker of The person was the maker of the
the recording recording
The recording was first published in The recording was first published in
a specified year the year
The recording was first published in The recording was first published in
a specified country the country
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(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
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(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.
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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.
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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.
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(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.
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Section 134B
Division 7—Seizure of imported copies of copyright
material
134B Interpretation
In this Division:
action period, in relation to particular seized copies, means the
period prescribed by the regulations after notice of a claim for
release of the copies is given to the objector under
section 135AED.
CEO means the Chief Executive Officer of Customs.
claim period, in relation to particular seized copies, means the
period prescribed by the regulations after notice of seizure of the
copies is given to the importer under section 135AC.
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.
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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.
personal information has the same meaning as in the Privacy Act
1988.
seized copies means copies seized under subsection 135(7).
working day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory.
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.
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(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
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(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:
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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 (the seizure
notice) identifying the copies and stating that the identified copies
have been seized.
(2) The seizure notice must state that the copies will be released to the
importer if:
(a) the importer makes a claim for the release of the copies
within the claim period; and
(b) the objector has not, by the end of the action period:
(i) instituted an action for infringement of copyright in
relation to the copies; and
(ii) given the CEO written notice of that action.
(3) The seizure notice must also:
(a) set out the claim period for the copies; and
(b) set out the action period for the copies and state that the
action period will begin only if the importer makes a claim
for the release of the copies; and
(c) if the notice is given to the objector—state the name and the
address of the place of business or residence of the importer
(if known); and
(d) if the notice is given to the importer—state 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.
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(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 any person or body (whether in or outside
Australia) that made 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 such a person or body; and
(b) any information (including personal 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 or more samples 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 or more samples 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 copies to the CEO at a specified time that is
satisfactory to the CEO; and
(b) take reasonable care to prevent damage to the sample copies.
(5) If the CEO permits inspection of the seized copies, or the removal
of sample copies, 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
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(b) anything done by the objector or any other person to, or in
relation to, sample copies removed from the custody of the
CEO or any use made by the objector of such sample copies.
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.
135AEA Claim for release of seized copies
(1) The importer may make a claim to the CEO for the release of
seized copies.
(2) The claim must be made before the end of the claim period for the
copies.
(3) The claim must:
(a) be in the form (if any) prescribed by the regulations; and
(b) include the information prescribed by the regulations.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
135AEB Seized copies not claimed are forfeited
(1) Seized copies are forfeited to the Commonwealth if a claim for the
release of the goods is not made within the claim period for the
copies.
(2) However, if the CEO allows a late claim for the copies (see
section 135AEC), the copies are taken not to have been forfeited.
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Section 135AEC
135AEC Late claim for release of seized goods
(1) The CEO may allow the importer to make a claim (the late claim)
to the CEO for the release of seized copies after the end of the
claim period for the copies.
(2) The CEO may allow the late claim only if:
(a) an action for infringement of copyright in relation to the
copies has not been instituted; and
(b) the CEO considers it reasonable in the circumstances; and
(c) the goods have not been disposed of under section 135AI.
135AED Objector to be notified of claim
(1) If the importer makes a claim for the release of seized copies, the
CEO must, as soon as practicable, give notice of the claim to the
objector.
(2) The notice:
(a) must be in writing; and
(b) may include any information that the CEO has, and believes
on reasonable grounds may be relevant, for the purpose of
identifying and locating either or both of the following:
(i) the importer of the copies;
(ii) any other person or body (whether in or outside
Australia) that made arrangements for the copies to be
brought to Australia.
135AF Release of seized copies to importer
(1) The CEO must release seized copies to the importer if:
(a) the objector gives written notice to the CEO stating that the
objector consents to the release of the seized copies; and
(b) the copies have not been disposed of under section 135AI.
(2) The CEO may release seized copies to the importer at any time if:
(a) the CEO, having regard to information that has come to his
or her knowledge after the copies were seized, is satisfied
that there are no reasonable grounds for believing that
copyright has been infringed by the importation of the
copies; and
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(b) the objector has not brought an action for infringement of
copyright in relation to the copies.
(3) The CEO must release seized copies to the importer if:
(a) the importer has made a claim for the release of the copies;
and
(b) the objector has not, by the end of the action period:
(i) instituted an action for infringement of copyright in
relation to the copies; and
(ii) given the CEO written notice of that action.
(4) The CEO must release seized copies to the importer if:
(a) the importer has made a claim for the release of the copies;
and
(b) an action for infringement of copyright has been instituted in
relation to the copies; and
(c) at the end of a period of 20 working days 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.
(5) This section has effect subject to section 135AH.
135AFA Copies released but not collected are forfeited
Seized copies are forfeited to the Commonwealth if:
(a) the copies are released by the CEO to the importer; and
(b) the importer does not take possession of the copies within 90
days of the release.
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.
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Section 135AH
(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 forfeited to the Commonwealth
(1) Seized copies forfeited to the Commonwealth must be disposed of:
(a) in the manner prescribed by the regulations; or
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Section 135AJ
(b) if no manner of disposal is so prescribed—as the CEO
directs.
(2) However, copies forfeited under section 135AEB must not be
disposed of until 30 days after their forfeiture.
(3) Subsection (1) does not require the disposal of copies that are
required in relation to an action for infringement of copyright.
Right of compensation in certain circumstances
(4) Despite the forfeiture of seized copies to the Commonwealth, a
person may apply to a court of competent jurisdiction under this
section for compensation for the disposal of the copies.
(5) A right to compensation exists if:
(a) the copies did not infringe the objector‘s copyright; and
(b) the person establishes, to the satisfaction of the court:
(i) that he or she was the owner of the copies immediately
before they were forfeited; and
(ii) that there were circumstances providing a reasonable
excuse for the failure to make a claim for the release of
the copies.
(6) If a right to compensation exists under subsection (4), the court
must order the payment by the Commonwealth to the person of an
amount equal to the market value of the copies at the time of their
disposal.
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.
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Division 7 Seizure of imported copies of copyright material
Section 135AK
(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.
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Preliminary Division 1
Section 135AL
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.
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Division 1 Preliminary
Section 135AM
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).
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Actions Division 2
Section 135AOA
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
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Section 135AOB
(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.
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Actions Division 2
Section 135AOC
(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.
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Division 2 Actions
Section 135AOD
(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.
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Actions Division 2
Section 135AOE
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.
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Division 2 Actions
Section 135AR
(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 Circuit Court of Australia
Jurisdiction is conferred on the Federal Circuit Court of Australia
with respect to actions under this Part.
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Offences Division 3
Section 135ASA
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
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Division 3 Offences
Section 135ASD
(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).
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Offences Division 3
Section 135ASE
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
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Division 3 Offences
Section 135ASG
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
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Offences Division 3
Section 135ASI
(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
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Section 135ASJ
(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.
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Offences Division 3
Section 135ATA
(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.
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Section 135AU
(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.
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Section 135A
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.
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Section 135B
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.
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(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.
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Section 135E
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
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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
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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
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(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:
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(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:
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(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
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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.
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(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
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(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.
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(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;
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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
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(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
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(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.
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Section 135M
(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).
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Part VA Copying and communication of broadcasts by educational and other
institutions
Division 3 The collecting society
Section 135P
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
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Section 135Q
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.
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Part VA Copying and communication of broadcasts by educational and other
institutions
Division 3 The collecting society
Section 135R
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.
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The collecting society Division 3
Section 135SA
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.
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Part VA Copying and communication of broadcasts by educational and other
institutions
Division 4 Interim copying
Section 135T
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
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Section 135V
(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.
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Part VA Copying and communication of broadcasts by educational and other
institutions
Division 4 Interim copying
Section 135X
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.
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Miscellaneous Division 5
Section 135Z
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.
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Division 1 Preliminary
Section 135ZB
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
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Section 135ZC
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
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Division 1 Preliminary
Section 135ZE
(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.
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Reproduction by educational institutions of works that are in hardcopy form Division 2
Section 135ZGA
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:
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Division 2 Reproduction by educational institutions of works that are in hardcopy form
Section 135ZH
(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.
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Reproduction by educational institutions of works that are in hardcopy form Division 2
Section 135ZK
(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
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Division 2 Reproduction by educational institutions of works that are in hardcopy form
Section 135ZM
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:
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Section 135ZM
(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.
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Part VB Reproducing and communicating works etc. by educational and other
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZMA
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);
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(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.
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Part VB Reproducing and communicating works etc. by educational and other
institutions
Division 2A Reproduction and communication of works that are in electronic form
Section 135ZMC
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
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(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
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Part VB Reproducing and communicating works etc. by educational and other
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZME
(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
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(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.
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Part VB Reproducing and communicating works etc. by educational and other
institutions
Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZN
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,
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Section 135ZP
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
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Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZQ
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.
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Section 135ZQ
(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
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Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZQ
(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.
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Reproduction and communication of works etc. by institutions assisting persons with an
intellectual disability Division 4
Section 135ZR
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.
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Division 4 Reproduction and communication of works etc. by institutions assisting
persons with an intellectual disability
Section 135ZT
(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.
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Section 135ZT
(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.
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Part VB Reproducing and communicating works etc. by educational and other
institutions
Division 5 Equitable remuneration
Section 135ZU
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.
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Equitable remuneration Division 5
Section 135ZW
(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.
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Part VB Reproducing and communicating works etc. by educational and other
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Division 5 Equitable remuneration
Section 135ZWAA
(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
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(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
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(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.
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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.
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(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
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Section 135ZY
(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
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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).
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Collecting societies Division 6
Section 135ZZB
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
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Section 135ZZB
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.
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Collecting societies Division 6
Section 135ZZC
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.
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Section 135ZZE
(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.
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Miscellaneous Division 7
Section 135ZZF
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:
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Section 135ZZH
(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.
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Preliminary Division 1
Section 135ZZI
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.
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Division 1 Preliminary
Section 135ZZJ
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 retransmission if:
(a) the retransmission is a re-broadcast by a satellite BSA
licensee; and
(b) subsection 135ZZZI(1) or (2) applies to the re-broadcast.
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Retransmission of free-to-air broadcasts Division 2
Section 135ZZK
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.
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Section 135ZZM
(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.
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Retransmission of free-to-air broadcasts Division 2
Section 135ZZP
(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.
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Division 2 Retransmission of free-to-air broadcasts
Section 135ZZQ
(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.
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Section 135ZZS
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.
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Part VC Retransmission of free-to-air broadcasts
Division 3 Collecting societies
Section 135ZZT
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
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Collecting societies Division 3
Section 135ZZT
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.
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Part VC Retransmission of free-to-air broadcasts
Division 3 Collecting societies
Section 135ZZU
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.
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Section 135ZZW
(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.
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Part VC Retransmission of free-to-air broadcasts
Division 4 Interim retransmissions
Section 135ZZX
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.
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Interim retransmissions Division 4
Section 135ZZZA
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
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Division 4 Interim retransmissions
Section 135ZZZB
(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.
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Miscellaneous Division 5
Section 135ZZZC
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.
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Part VD Re-broadcasts by satellite BSA licensees
Division 1 Preliminary
Section 135ZZZF
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.
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Preliminary Division 1
Section 135ZZZG
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.
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Division 2 Re-broadcasts by satellite BSA licensees
Section 135ZZZI
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
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Re-broadcasts by satellite BSA licensees Division 2
Section 135ZZZI
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
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Division 2 Re-broadcasts by satellite BSA licensees
Section 135ZZZJ
(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.
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Re-broadcasts by satellite BSA licensees Division 2
Section 135ZZZK
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
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Part VD Re-broadcasts by satellite BSA licensees
Division 2 Re-broadcasts by satellite BSA licensees
Section 135ZZZM
(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.
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Collecting societies Division 3
Section 135ZZZO
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:
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Division 3 Collecting societies
Section 135ZZZO
(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
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Section 135ZZZP
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.
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Division 3 Collecting societies
Section 135ZZZR
(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.
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Section 135ZZZS
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.
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Division 4 Interim re-broadcasts
Section 135ZZZT
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.
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Section 135ZZZW
(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
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Section 135ZZZX
(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.
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Miscellaneous Division 5
Section 135ZZZY
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.
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Division 1 Preliminary
Section 136
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
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(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.
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Division 1 Preliminary
Section 137
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.
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Section 138
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.
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Section 141
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.
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Section 143
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):
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Section 144B
(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 reference to a proceeding includes a reference to a
proceeding by way of an application or reference to the Tribunal
under this Act.
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.
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Section 147
(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.
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Division 3 Applications and references to the Tribunal
Section 148
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.
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Section 150
(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.
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Section 152
(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
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Section 152
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;
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(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
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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.
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(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.
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(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;
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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.
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(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
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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
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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.
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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.
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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
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(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.
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(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.
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(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
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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.
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(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;
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(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
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(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
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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:
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(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.
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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.
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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
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(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.
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(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.
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(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.
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(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
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(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.
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(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
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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.
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(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
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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.
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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.
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(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.
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(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
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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.
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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
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(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.
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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.
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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Section 163
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.
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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.
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Section 167
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.
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Section 169A
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.
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Alternative dispute resolution processes Division 4A
Section 169B
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
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(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.
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Section 169E
(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.
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(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.
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Section 170
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.
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Section 170A
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
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:
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(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.
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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.
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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
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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.
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Crown copyright Division 1
Section 176
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.
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Division 1 Crown copyright
Section 179
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.
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Section 181
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.
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Section 182A
(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.
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Use of copyright material for the Crown Division 2
Section 182B
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.
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Section 183
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.
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Section 183A
(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
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Section 183B
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.
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Section 183C
(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.
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Section 183D
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.
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Use of copyright material for the Crown Division 2
Section 183E
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.
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Part VIII Extension or restriction of operation of Act
Section 184
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;
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(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
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(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.
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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;
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(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.
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(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 1 Preliminary
Section 189
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;
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and cinematograph films Part IX
Preliminary Division 1
Section 189
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
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 1 Preliminary
Section 189
(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.
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and cinematograph films Part IX
Preliminary Division 1
Section 189
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
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 1 Preliminary
Section 190
(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.
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and cinematograph films Part IX
Preliminary Division 1
Section 191A
(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 1 Preliminary
Section 192
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.
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and cinematograph films Part IX
Right of attribution of authorship Division 2
Section 193
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 2 Right of attribution of authorship
Section 195
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.
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and cinematograph films Part IX
Right of attribution of performership Division 2A
Section 195ABA
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 2A Right of attribution of performership
Section 195ABD
(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.
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and cinematograph films Part IX
Right not to have authorship of a work falsely attributed Division 3
Section 195AC
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 3 Right not to have authorship of a work falsely attributed
Section 195AE
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.
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and cinematograph films Part IX
Right not to have authorship of a work falsely attributed Division 3
Section 195AG
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 3A Right not to have performership falsely attributed
Section 195AHA
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).
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Right not to have performership falsely attributed Division 3A
Section 195AHB
(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 3A Right not to have performership falsely attributed
Section 195AHC
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.
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Right not to have performership falsely attributed Division 3A
Section 195AHC
(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 4 Right of integrity of authorship of a work
Section 195AI
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.
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Right of integrity of authorship of a work Division 4
Section 195AL
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 4A Right of integrity of performership
Section 195ALA
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.
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Duration and exercise of moral rights Division 5
Section 195AM
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
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 5 Duration and exercise of moral rights
Section 195ANA
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
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and cinematograph films Part IX
Duration and exercise of moral rights Division 5
Section 195ANB
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 6 Infringement of moral rights
Section 195AO
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.
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and cinematograph films Part IX
Infringement of moral rights Division 6
Section 195AR
(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;
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 6 Infringement of moral rights
Section 195AR
(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.
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and cinematograph films Part IX
Infringement of moral rights Division 6
Section 195AS
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;
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 6 Infringement of moral rights
Section 195AT
(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.
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and cinematograph films Part IX
Infringement of moral rights Division 6
Section 195AT
(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
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 6 Infringement of moral rights
Section 195AT
(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
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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.
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Division 6 Infringement of moral rights
Section 195AU
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;
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(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
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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
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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.
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Division 6 Infringement of moral rights
Section 195AXB
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
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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;
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Division 6 Infringement of moral rights
Section 195AXF
(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.
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Section 195AXG
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.
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Division 6 Infringement of moral rights
Section 195AXJ
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.
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Section 195AXL
(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
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Division 7 Remedies for infringements of moral rights
Section 195AY
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:
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Section 195AZA
(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
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Section 195AZD
(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.
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Section 195AZF
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.
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Division 7 Remedies for infringements of moral rights
Section 195AZGC
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.
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and cinematograph films Part IX
Remedies for infringements of moral rights Division 7
Section 195AZGD
(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
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 7 Remedies for infringements of moral rights
Section 195AZGG
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 Circuit Court of Australia has jurisdiction with respect
to matters arising under this Part.
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and cinematograph films Part IX
Miscellaneous Division 8
Section 195AZH
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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 8 Miscellaneous
Section 195AZK
(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.
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and cinematograph films Part IX
Miscellaneous Division 8
Section 195AZM
(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.
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Part IX Moral rights of performers and of authors of literary, dramatic, musical or
artistic works and cinematograph films
Division 8 Miscellaneous
Section 195AZO
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.
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and cinematograph films Part IX
Miscellaneous Division 8
Section 195AZR
(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.
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Part X Miscellaneous
Section 195A
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.
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Section 195B
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 refusing to seize
copies under subsection 135(7);
(ca) a decision of the CEO under section 135AEC refusing to
allow a late claim for the release of seized copies;
(cb) a decision of the CEO under section 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.
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(3) If the CEO makes a reviewable decision referred to in
paragraphs (1)(ba) to (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.
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(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.
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Part X Miscellaneous
Section 198A
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.
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Section 200
(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
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Section 200AAA
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
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Section 200AA
(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.
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Section 200AB
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:
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(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.
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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
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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.
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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
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Section 203
(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
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(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.
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Section 203E
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
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(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
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Section 203F
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.
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Section 203H
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;
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Section 203H
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),
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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.
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Preliminary Division 1
Section 204
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.
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Division 1 Preliminary
Section 205
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.
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Transitional Part XI
Preliminary Division 1
Section 207
(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.
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Part XI Transitional
Division 1 Preliminary
Section 209
(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.
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Transitional Part XI
Original works Division 2
Section 210
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.
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Section 213
(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.
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Transitional Part XI
Original works Division 2
Section 214
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.
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Part XI Transitional
Division 2 Original works
Section 217
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
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Transitional Part XI
Original works Division 2
Section 219
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;
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Part XI Transitional
Division 2 Original works
Section 219
(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.
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Transitional Part XI
Subject-matter other than works Division 3
Section 220
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
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Part XI Transitional
Division 3 Subject-matter other than works
Section 224
(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.
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Transitional Part XI
Miscellaneous Division 4
Section 226
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.
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Part XI Transitional
Division 4 Miscellaneous
Section 231
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.
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Transitional Part XI
Miscellaneous Division 4
Section 235
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,
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Part XI Transitional
Division 4 Miscellaneous
Section 239
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.
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Transitional Part XI
Miscellaneous Division 4
Section 240
(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.
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Part XI Transitional
Division 4 Miscellaneous
Section 241
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.
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Transitional Part XI
Works made before 1 July, 1912 Division 5
Section 243
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.
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Part XI Transitional
Division 5 Works made before 1 July, 1912
Section 247
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.
556 Copyright Act 1968
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Transitional Part XI
Works made before 1 July, 1912 Division 5
Section 248
(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.
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Part XIA Performers‘ protection
Division 1 Preliminary
Section 248A
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
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Performers‘ protection Part XIA
Preliminary Division 1
Section 248A
(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
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Part XIA Performers‘ protection
Division 1 Preliminary
Section 248A
(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.
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Preliminary Division 1
Section 248A
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.
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Division 1 Preliminary
Section 248A
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
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Section 248B
(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.
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Division 1 Preliminary
Section 248CA
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.
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Preliminary Division 1
Section 248F
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.
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Division 2 Actions by performers
Section 248G
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;
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Actions by performers Division 2
Section 248H
(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.
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Division 2 Actions by performers
Section 248J
(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
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Actions by performers Division 2
Section 248K
(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.
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Division 2 Actions by performers
Section 248L
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 Circuit Court
Jurisdiction is conferred on the Federal Circuit Court of Australia
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.
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Offences Division 3
Section 248P
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
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Division 3 Offences
Section 248PB
(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.
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Offences Division 3
Section 248PC
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).
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Division 3 Offences
Section 248PD
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.
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Section 248PE
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).
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Division 3 Offences
Section 248PF
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:
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Section 248PF
(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.
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(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.
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(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).
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Section 248PI
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:
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(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:
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(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.
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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.
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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;
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(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
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(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.
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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:
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(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.
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(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.
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(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;
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(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
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(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.
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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;
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(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:
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(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
Copyright Act 1968
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Part XIA Performers‘ protection
Division 3 Offences
Section 248QH
(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).
596 Copyright Act 1968
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Performers‘ protection Part XIA
Offences Division 3
Section 248R
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.
Copyright Act 1968
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Part XIA Performers‘ protection
Division 3 Offences
Section 248S
(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.
598 Copyright Act 1968
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Performers‘ protection Part XIA
Extension of protection to foreign countries Division 4
Section 248U
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.
Copyright Act 1968
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599
Part XIA Performers‘ protection
Division 4 Extension of protection to foreign countries
Section 248V
(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.
600 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Regulations Part XII
Section 249
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
Copyright Act 1968
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601
Part XII Regulations
Section 249
(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.
602 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
The Schedule
The Schedule Section 144
OATH
I, , do swear that I will be
faithful and bear true allegiance to Her Majesty Queen Elizabeth
the Second, Her Heirs and Successors according to law, that I will
well and truly serve Her in the office of
and that I will faithfully and impartially perform the duties of that
office.
SO HELP ME GOD!
AFFIRMATION
I, , do solemnly and sincerely
promise and declare that I will be faithful and bear true allegiance
to Her Majesty Queen Elizabeth the Second, Her Heirs and
Successors according to law, that I will well and truly serve Her in
the office of and that I will faithfully and
impartially perform the duties of that office.
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
603
Endnotes
Endnote 1—Legislation history
Endnotes
Endnote 1—Legislation history
This endnote sets out details of the legislation history of the Copyright Act
1968.
Act Number Assent Commencement Application,
and year date date saving and
transitional
provisions
Copyright Act 1968 63, 1968 27 June 1 May 1969 (see Gazette
1968 1969, p. 2543)
Statute Law Revision 216, 1973 19 Dec 31 Dec 1973 ss. 9(1) and 10
Act 1973 1973
Administrative Changes 91, 1976 20 Sept s. 3: (a) s. 4
(Consequential 1976
Provisions) Act 1976
Broadcasting and 160, 1977 10 Nov 1 Jan 1978 (see Gazette —
Television Amendment 1977 1977, No. S259)
Act 1977
Jurisdiction of Courts 19, 1979 28 Mar Parts II–XVII (ss. 3– ss. 9 and 124
(Miscellaneous 1979 123): 15 May 1979 (see
Amendments) Act 1979 Gazette 1979, No. S86)
Remainder: 19 Mar 1979
Copyright Amendment 154, 1980 19 Sept ss. 17–19: 29 Sept 1980 —
Act 1980 1980 Remainder: 1 Aug 1981
(see Gazette 1981, No.
S124)
Designs Amendment Act 42, 1981 13 May ss. 1 and 2: 13 Mar 1981 s. 36
1981 1981 s. 31, Part IV (ss. 34, 35)
and s. 36(2): 1 Apr 1982
(see Gazette 1982, No.
G12)
Remainder: 1 Apr 1982
(see Gazette 1982, No.
G12)
604 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 1—Legislation history
Act Number Assent Commencement Application,
and year date date saving and
transitional
provisions
Statute Law Revision 61, 1981 12 June s. 115: Royal Assent (b) —
Act 1981 1981
Broadcasting and 113, 1981 24 June s. 30: 10 Aug 1981 (see —
Television Amendment 1981 Gazette 1981, No. S158)
Act 1981 Remainder: 24 June
1981
Statute Law 26, 1982 7 May 1982 Part XVIII (ss. s. 138(2)
(Miscellaneous 136–145): 4 June 1982
Amendments) Act (c)
(No. 1) 1982
Statute Law 80, 1982 22 Sept Part LXXVII (s. 280): s. 280(2) and (3)
(Miscellaneous 1982 Royal Assent (d)
Amendments) Act
(No. 2) 1982
Broadcasting and 154, 1982 31 Dec 31 Dec 1982 —
Television Amendment 1982
Act 1982
Australian Broadcasting 7, 1983 1 June 1983 ss. 1, 2, 15(1) and 24: s. 60(2)
Corporation 1 June 1983
(Transitional Provisions Remainder: 1 July 1983
and Consequential (see s. 2(2) and Gazette
Amendments) Act 1983 1983, No. S124)
Copyright Amendment 80, 1983 3 Nov 1983 6 June 1984 (see Gazette —
Act 1983 1984, No. S203)
Statute Law 91, 1983 22 Nov s. 3: 20 Dec 1983 (e) s. 6
(Miscellaneous 1983
Provisions) Act (No. 2)
1983
Radiocommunications 136, 1983 22 Dec 27 Aug 1985 (see s. 2 —
(Transitional Provisions 1983 and Gazette 1985, No.
and Consequential S322)
Amendments) Act 1983
Copyright Amendment 43, 1984 15 June 15 June 1984 s. 7
Act 1984 1984
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
605
Endnotes
Endnote 1—Legislation history
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Statute Law
(Miscellaneous
Provisions) Act (No. 2)
1984
165, 1984 25 Oct
1984
s. 3: 22 Nov 1984 (f) ss. 6(1) and 7
Statute Law
(Miscellaneous
Provisions) Act (No. 1)
1985
65, 1985 5 June 1985 s. 3: 3 July 1985 (g) —
Broadcasting and
Television
67, 1985 5 June 1985 1 Jan 1986 s. 4
(Consequential
Amendments) Act 1985
Copyright Amendment
Act 1986
78, 1986 24 June
1986
ss. 14–19: 22 July 1986
Remainder: 30 Apr 1987
(see Gazette 1987, No.
S68)
ss. 20(2) and
28(2)
Statute Law
(Miscellaneous
Provisions) Act (No. 2)
1986
168, 1986 18 Dec
1986
s. 3: (h) s. 5(1)
Jurisdiction of Courts
(Miscellaneous
Amendments) Act 1987
23, 1987 26 May
1987
s. 3: (i) s. 5
Broadcasting Legislation
Amendment Act 1988
146, 1988 26 Dec
1988
s. 49: 1 Mar 1989 (j) —
Circuit Layouts Act
1989
28, 1989 22 May
1989
ss. 1 and 2: Royal Assent
Remainder: 1 Oct 1990
—
(see Gazette 1990, No.
S261)
606 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 1—Legislation history
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Copyright Amendment
Act 1989
32, 1989 24 May
1989
ss. 3, 5, 7, 12, 13, 21, 22,
28 and Schedule
(items 1, 4, 10, 12, 14,
19, 25, 26): 1 Oct 1989
(see Gazette 1989, No.
S316)
ss. 4, 14, 16, 18, 20, 23,
s. 2 (rep. by 107,
1993, s. 13)
ss. 25 and 29 (am.
by 107, 1993,
ss. 8 and 10)
25, 27, 29 and Schedule
(items 48, 49, 53): 29
Jan 1990 (see Gazette
1990, No. S15)
ss. 6, 15, 19, 24, 26(a)
and Schedule (items 2, 3,
6–9, 11, 13, 15, 18,
21–24, 27–47,
50–52): 1 July 1990 (see
Gazette 1990, No. S164)
ss. 8–11, 17 and
Schedule (items 5, 16,
17, 20): 1 Oct 1990 (see
Gazette 1990, No. S261)
s. 26(b)–(f): 2 July 1990
(see Gazette 1990, No.
S164)
Remainder: Royal
Assent
as repealed by
Copyright
Amendment
107,
1993
22 Dec
1993
s. 13: Royal Assent s. 2(2)
(Re-enactment) Act
1993
as re-enacted by
Copyright
Amendment
107,
1993
22 Dec
1993
(k) ss. 8 and 10–12
(Re-enactment) Act
1993
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
607
Endnotes
Endnote 1—Legislation history
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Copyright Amendment
Act 1991
174, 1991 25 Nov
1991
23 Dec 1991 —
Special Broadcasting
Service Act 1991
180, 1991 25 Nov
1991
s. 116: 23 Dec 1991 (l) s. 116(2)
Broadcasting Services
(Transitional Provisions
and Consequential
Amendments) Act 1992
105, 1992 9 July 1992 5 Oct 1992 (see s. 2 and
Gazette 1992, No.
GN38)
s. 3
Radiocommunications
(Transitional Provisions
and Consequential
Amendments) Act 1992
167, 1992 11 Dec
1992
1 July 1993 s. 14(3)
Copyright Amendment
(Re-enactment) Act
1993
107, 1993 22 Dec
1993
22 Dec 1993 ss. 8 and 10–12
Agricultural and
Veterinary Chemicals
(Consequential
Amendments) Act 1994
37, 1994 15 Mar
1994
15 Mar 1995 (see s. 2) —
Law and Justice
Legislation Amendment
Act (No. 2) 1994
141, 1994 28 Nov
1994
s. 4 (items 1–13, 15–30,
32–112): Royal Assent
(m)
s. 4 (items 14, 31): 23
Dec 1991 (m)
s. 7
Copyright (World Trade
Organization
Amendments) Act 1994
149, 1994 13 Dec
1994
ss. 1 and 2: Royal Assent
Parts 3 and 4 (ss. 6–17):
1 July 1995
Remainder: 1 Jan 1996
—
Intellectual Property
Laws Amendment Act
1998
100, 1998 27 July
1998
Schedule 2 (items 1–3):
27 Jan 1999 (n)
—
608 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 1—Legislation history
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Copyright Amendment
Act (No. 1) 1998
104, 1998 30 July
1998
Schedule 2 (items 6, 8,
10, 12) and Schedule 8
(item 12): 30 Jan 2000
Remainder: Royal
Assent
Sch. 1 (item 4),
Sch. 3 (item 4),
Sch. 4 (item 6),
Sch. 9 (item 8)
and Sch. 10
(item 51) [see
Endnote 3]
Copyright Amendment
Act (No. 2) 1998
105, 1998 30 July
1998
(o) Sch. 1 (item 9)
[see Endnote 3]
Copyright Amendment
(Computer Programs)
Act 1999
105, 1999 24 Aug
1999
30 Sept 1999 (see
Gazette 1999, No. S462)
—
Public Employment
(Consequential and
Transitional)
Amendment Act 1999
146, 1999 11 Nov
1999
Schedule 1 (item 338): 5
Dec 1999 (see Gazette
1999, No. S584) (p)
—
Copyright Amendment
(Digital Agenda) Act
2000
110, 2000 4 Sept 2000 4 Mar 2001 Sch. 2 [see
Endnote 3]
as amended by
Statute Law Revision
Act 2002
63, 2002 3 July
2002
Schedule 2 (items 4,
5): (q)
—
Copyright Amendment
(Moral Rights) Act 2000
159, 2000 21 Dec
2000
Schedule 2: 4 Mar 2001
(see s. 2(3))
Remainder: Royal
Assent
Sch. 1 (item 3)
[see Endnote 3]
Law and Justice
Legislation Amendment
(Application of Criminal
Code) Act 2001
24, 2001 6 Apr 2001 s. 4(1), (2) and
Schedule 9: (r)
s. 4(1) and (2)
[see Endnote 3]
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
609
Endnotes
Endnote 1—Legislation history
Act Number Assent Commencement Application,
and year date date saving and
transitional
provisions
Copyright Amendment 34, 2003 15 Apr Schedule 3 (items 1–3, 5, Sch. 1 (item 20),
(Parallel Importation) 2003 7): (s) Sch. 3 (item 9)
Act 2003 Schedule 3 (items 4, 6, 8, and Sch. 4
9): (s) (items 14, 15) [see
Schedule 4: 13 May Endnote 3]
2003
Remainder: Royal
Assent
Designs (Consequential
Amendments) Act 2003
US Free Trade
Agreement
Implementation Act
2004
148, 2003
120, 2004
17 Dec
2003
16 Aug
2004
Schedules 1 and 2: (t)
Remainder: Royal
Assent
Schedule 9 (items 1–15,
59–112,
114–119, 121, 123–166,
168–191): 1 Jan 2005
Schedule 9
(items 16–58): 26 July
2007 (see s. 2(1) and
Gazette 2007, No.
GN22)
Schedule 9 (items 113,
167): Royal Assent
Schedule 9 (items 120,
122): (u)
Sch. 1 (items
15–20) [see
Endnote 3]
Sch. 9 (items 15,
84, 106, 117, 131,
145, 160, 185,
190)
Sch. 9 [item 118]
(am. by 154,
2004, Sch. 1
[items
42–48])
Sch. 9 [item 119]
(am. by 154,
2004, Sch. 1
[items 49–51])
Sch. 9 [item 132]
(am. by 154,
2004, Sch. 1
[items 52–58])
Sch. 9 [item 133]
(am. by 154,
2004, Sch. 1
[items 59–61])
[see Endnote 3]
as amended by
610 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 1—Legislation history
Act Number Assent Commencement Application,
and year date date saving and
transitional
provisions
Copyright Legislation 154, 2004 15 Dec (see 154, 2004 below) —
Amendment Act 2004 2004
Copyright Legislation 154, 2004 15 Dec Schedule 1: (v) Sch. 1 (items 8,
Amendment Act 2004 2004 Remainder: Royal 16, 29, 31, 41)
Assent [see Endnote 3]
Australian 45, 2005 1 Apr 2005 Schedule 1 (items 59– Sch. 4
Communications and 62) and Schedule 4: [see Endnote 3]
Media Authority 1 July 2005 (see s. 2(1))
(Consequential and
Transitional Provisions)
Act 2005
Copyright Amendment 130, 2005 8 Nov 2005 Schedule 1: 19 Dec 2005 s. 4 [see Endnote
(Film Directors‘ Rights) (see F2005L04088) 3]
Act 2005 Remainder: Royal
Assent
Statute Law Revision 9, 2006 23 Mar Schedule 1 (items 8, 9): Sch. 1 (item 9)
Act 2006 2006 (w) [see Endnote 3]
Copyright Amendment 158, 2006 11 Dec
Act 2006 2006
Schedule 1 (items 1–33)
and Schedules 2–5: 1 Jan
2007
Schedule 1 (item 34) and
Schedule 12 (items 17,
18): (x)
Schedule 9: 8 Jan 2007
Schedule 11: (x)
Remainder: Royal
Assent
Sch. 1 (items 9,
12, 14, 16, 18, 22,
24, 26), Sch. 2
(item 15), Sch. 3
(item 20), Sch. 4
(item 2), Sch. 5
(items 2, 6), Sch.
6 (item 9AA),
Sch. 9 (item 2),
Sch. 10 (items 5,
20, 30, 55, 58, 61,
63), Sch. 11
(items 3, 37, 40,
42, 57) and Sch.
12 (item 16) [see
Endnote 3]
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
611
Endnotes
Endnote 1—Legislation history
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Australian Citizenship
(Transitionals and
Consequentials) Act
2007
21, 2007 15 Mar
2007
Schedules 1–3: 1 July
2007 (see s. 2(1) and
F2007L01653)
Remainder: Royal
Assent
—
Broadcasting Legislation
Amendment Act 2007
28, 2007 15 Mar
2007
15 Mar 2007 —
Statute Law Revision
Act 2008
73, 2008 3 July 2008 Schedule 4 (item 200):
4 July 2008
—
Archives Amendment
Act 2008
113, 2008 31 Oct
2008
1 Nov 2008 —
Statute Law Revision
Act 2010
8, 2010 1 Mar 2010 Schedule 5
(item 137(a)): (y)
—
Broadcasting Legislation
Amendment (Digital
Television) Act 2010
94, 2010 29 June
2010
Schedule 1 (items 135–
144): 30 June 2010
—
Broadcasting Legislation
Amendment (Digital
Dividend and Other
36, 2011 26 May
2011
Schedule 2 (item 61):
27 May 2011
—
Measures) Act 2011
Therapeutic Goods
Legislation Amendment
(Copyright) Act 2011
39, 2011 27 May
2011
28 May 2011 Sch. 1 (items 2, 3)
[see Endnote 3]
Acts Interpretation
Amendment Act 2011
46, 2011 27 June
2011
Schedule 2 (items 445,
446) and Schedule 3
(items 10, 11): 27 Dec
2011
Sch. 3 (items 10,
11) [see Endnote
3]
Intellectual Property
Laws Amendment
(Raising the Bar) Act
2012
35, 2012 15 Apr
2012
Schedule 5 (items 1–16):
15 Apr 2013
—
Statute Law Revision
Act 2012
136, 2012 22 Sept
2012
Schedule 1 (item 37):
Royal Assent
—
612 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 1—Legislation history
Act Number Assent Commencement Application,
and year date date saving and
transitional
provisions
Australian Charities and 169, 2012 3 Dec 2012 Schedule 2 (items 169– —
Not-for-profits 172): 3 Dec 2012 (see s.
Commission 2(1))
(Consequential and
Transitional) Act 2012
Federal Circuit Court of 13, 2013 14 Mar Schedule 1 (items 93– —
Australia (Consequential 2013 95): 12 Apr 2013 (see
Amendments) Act 2013 2(1))
Schedule 2 (item 2): (z)
(a) The Copyright Act 1968 was amended by section 3 only of the Administrative
Changes (Consequential Provisions) Act 1976, subsection 2(7) of which
provides as follows:
(7) The amendments of each other Act specified in the Schedule made by
this Act shall be deemed to have come into operation on 22 December
1975.
(b) The Copyright Act 1968 was amended by section 115 only of the Statute Law
Revision Act 1981, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the day on
which it receives the Royal Assent.
(c) The Copyright Act 1968 was amended by Part XVIII (sections 136–145) only
of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982,
subsection 2(12) of which provides as follows:
(12) The remaining provisions of this Act shall come into operation on the
twenty-eighth day after the day on which this Act receives the Royal
Assent.
(d) The Copyright Act 1968 was amended by Part LXXVII (section 280) only of
the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982,
subsection 2(1) of which provides as follows:
(1) Sections 1, 2, 166 and 195 and Parts III, VI, VII, XVI, XXXVI, XLIV,
LI, LIII, LIV, LXI and LXXVII shall come into operation on the day on
which this Act receives the Royal Assent.
(e) The Copyright Act 1968 was amended by section 3 only of the Statute Law
(Miscellaneous Provisions) Act (No. 2) 1983, subsection 2(1) of which
provides as follows:
Copyright Act 1968
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Endnotes
Endnote 1—Legislation history
(1) Subject to this section, this Act shall come into operation on the
twenty-eighth day after the day on which it receives the Royal Assent.
(f) The Copyright Act 1968 was amended by section 3 only of the Statute Law
(Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(1) of which
provides as follows:
(1) Subject to this section, this Act shall come into operation on the
twenty-eighth day after the day on which it receives the Royal Assent.
(g) The Copyright Act 1968 was amended by section 3 only of the Statute Law
(Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which
provides as follows:
(1) Subject to this section, this Act shall come into operation on the
twenty-eighth day after the day on which it receives the Royal Assent.
(h) The Copyright Act 1968 was amended by section 3 only of the Statute Law
(Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(3) provides as
follows:
(3) The amendments of the Copyright Act 1968 made by this Act shall come
into operation immediately after the commencement of section 3 of the
Copyright Amendment Act 1986.
Section 3 commenced on 30 April 1987 (see Gazette 1987, No. S68, p. 6).
(i) The Copyright Act 1968 was amended by section 3 only of the Jurisdiction of
Courts (Miscellaneous Amendments) Act 1987, subsection 2(2) of which
provides as follows:
(2) The amendments made by this Act to an Act specified in the Schedule
shall come into operation on such day as is fixed by Proclamation in
relation to those amendments.
The date fixed in pursuance of subsection 2(2) was 1 September 1987 (see
Gazette 1987, No. S217).
(j) The Copyright Act 1968 was amended by section 49 only of the Broadcasting
Legislation Amendment Act 1988, subsection 2(3) of which provides as
follows:
(3) Sections 15, 16 and 36, subsection 48(2), section 49 and Schedules 2, 4
and 5 commence on 1 March 1989.
(k) Certain provisions of the Copyright Amendment Act 1989 were re-enacted by
sections 4–10 of the Copyright Amendment (Re-enactment) Act 1993.
Subsection 2(2) of the Copyright Amendment (Re-enactment) Act 1993
provides as follows:
(2) The amendments made by this Act are taken to have commenced on the
dates set out in the Schedule.
The commencement of the re-enacted provisions provide as follows:
Section 4 re-enacted sections 3, 5, 7, 12, 13, 21, 28 and the Schedule (items 1,
4, 10, 12, 14, 19, 25 and 26) which commenced on 1 October 1989.
614 Copyright Act 1968
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Endnotes
Endnote 1—Legislation history
Section 4 re-enacted sections 4, 14, 18, 23 and the Schedule (items 48, 49 and
53) which commenced on 29 January 1990.
Section 4 re-enacted sections 6, 24, 26(a) and the Schedule (items 2, 3, 6–9,
11, 13, 15, 18, 21–24, 27–47 and 50–52) which commenced on 1 July 1990.
Section 4 re-enacted sections 8–11, 17 and the Schedule (items 5, 16, 17 and
20) which commenced on 1 October 1990.
Section 4 re-enacted paragraphs 26(b)–(f) which commenced on 2 July 1990.
Section 5 re-enacted section 15 which commenced on 1 July 1990.
Section 6 re-enacted section 19 which commenced on 1 July 1990.
Section 7 re-enacted section 22 which commenced on 1 October 1989.
Section 8 re-enacted section 25 which commenced on 29 January 1990.
Section 9 re-enacted section 27 which commenced on 29 January 1990.
Section 10 re-enacted section 29 which commenced on 29 January 1990.
(l) The Copyright Act 1968 was amended by section 116 only of the Special
Broadcasting Service Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to subsection (2), this Act commences 28 days after the day on
which it receives the Royal Assent.
(m) The Copyright Act 1968 was amended by section 4 (items 1–112) only of the
Law and Justice Legislation Amendment Act (No. 2) 1994, subsections 2(1)
and (4) of which provide as follows:
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(4) Items 14 and 31 of Schedule 2 are taken to have commenced on
23 December 1991, immediately after the commencement of the
Copyright Amendment Act 1991.
(n) The Copyright Act 1968 was amended by Schedule 2 (items 1–3) only of the
Intellectual Property Laws Amendment Act 1998, subsections 2(4) and (5) of
which provide as follows:
(4) Subject to subsection (5), Schedule 2 commences on a day to be fixed by
Proclamation.
(5) If Schedule 2 does not commence under subsection (4) within the period
of 6 months beginning on the day on which this Act receives the Royal
Assent, Schedule 2 commences on the first day after the end of that
period.
(o) The Copyright Act 1968 was amended by Schedules 1 and 2 of the Copyright
Amendment Act (No. 2) 1998, section 2 of which provides as follows:
(1) This Act commences on the day on which it receives the Royal Assent.
(2) However, this Act commences immediately after the commencement of
item 1 of Schedule 3 to the Copyright Amendment Act (No. 1) 1998 if
Copyright Act 1968
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615
Endnotes
Endnote 1—Legislation history
that Act receives the Royal Assent on a day that is the same as, or later
than, the day on which this Act receives the Royal Assent.
The Copyright Amendment Act (No. 1) 1998 received the Royal Assent on
30 July 1998.
(p) The Copyright Act 1968 was amended by Schedule 1 (item 338) only of the
Public Employment (Consequential and Transitional) Amendment Act 1999,
subsections 2(1) and (2) of which provide as follows:
(1) In this Act, commencing time means the time when the Public Service
Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.
(q) Subsection 2(1) (items 33 and 34) of the Statute Law Revision Act 2002
provide as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
Commencement information
Column 1 Column 2 Column 3
Provision (s) Commencement Date/Details
33. Schedule 2, Immediately after the time specified in the 4 March 2001
item 4 Copyright Amendment (Digital Agenda) Act 2000
for the commencement of item 41 of Schedule 1 to
that Act
34. Schedule 2, Immediately after the time specified in the 4 March 2001
item 5 Copyright Amendment (Digital Agenda) Act 2000
for the commencement of item 224 of Schedule 1
to that Act
(r) The Copyright Act 1968 was amended by Schedule 9 only of the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2001,
subsection 2(1)(a) of which provides as follows:
(1) Subject to this section, this Act commences at the later of the following
times:
(a) immediately after the commencement of item 15 of Schedule 1 to the
Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Act 2000;
Item 15 commenced on 24 May 2001.
(s) Subsection 2(1) (items 4–9) of the Copyright Amendment (Parallel
Importation) Act 2003 provides as follows:
616 Copyright Act 1968
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2
Endnotes
Endnote 1—Legislation history
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
Provision (s) Commencement Date/Details
4. Schedule 3, Immediately after the commencement of the 4 March 2001
items 1 to 3 Copyright Amendment (Digital Agenda) Act 2000
5. Schedule 3, Immediately after the commencement of 15 April 2003
item 4 Schedule 1 to this Act
6. Schedule 3, Immediately after the commencement of the 4 March 2001
item 5 Copyright Amendment (Digital Agenda) Act 2000
7. Schedule 3, Immediately after the commencement of 15 April 2003
item 6 Schedule 1 to this Act
8. Schedule 3, Immediately after the commencement of the 4 March 2001
item 7 Copyright Amendment (Digital Agenda) Act 2000
9. Schedule 3, Immediately after the commencement of 15 April 2003
items 8 and 9 Schedule 1 to this Act
(t) Subsection 2(1) (item 2) of the Designs (Consequential Amendments) Act
2003 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
Provision (s) Commencement Date/Details
2. Schedules 1 and Immediately after the commencement of section 4 17 June 2004
of the Designs Act 2003.
(u) Subsection 2(1) (items 2, 12, 15 and 17) of the US Free Trade Agreement
Implementation Act 2004 provides as follows:
(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.
Copyright Act 1968
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Endnotes
Endnote 1—Legislation history
Provision (s) Commencement Date/Details
2. Schedule 1 The later of: 1 January 2005
(a) 1 January 2005; and (paragraph (a) applies)(b) the day on which the Australia-United States
Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.
However, the provision (s) do not commence at all
if the event mentioned in paragraph (b) does not
occur.
The Minister for Trade must announce by notice in
the Gazette the day on which the Agreement
comes into force for Australia.
12. Schedule 9, 1 January 2005. 1 January 2005
items 107 to 112
15. Schedule 9, At the same time as the provisions covered by 1 January 2005
item 120 table item 2. However, if that time is the same time
as the time at which the provisions covered by
table item 12 commence, then item 120
commences immediately after those provisions
commence.
17. Schedule 9, At the same time as the provisions covered by 1 January 2005
item 122 table item 2. However, if that time is the same time
as the time at which the provisions covered by
table item 12 commence, then item 122
commences immediately after those provisions
commence.
(v) Subsection 2(1) (item 2) of the Copyright Legislation Amendment Act 2004
provides as follows:
(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.
618 Copyright Act 1968
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Endnotes
Endnote 1—Legislation history
Provision (s) Commencement Date/Details
2. Schedule 1 The later of: 1 January 2005
(a) the start of the day on which this Act receives the Royal Assent; and
(b) immediately after the commencement of the provisions covered by table item 2 in the table in section 2 of the US Free Trade Agreement Implementation Act 2004.
(paragraph (b)
applies)
However, the provision (s) do not commence at all
if the event mentioned in paragraph (b) does not
occur.
(w) Subsection 2(1) (item 6) of the Statute Law Revision Act 2006 provides as
follows:
(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.
Provision (s) Commencement Date/Details
6. Schedule 1, Immediately after the commencement of item 191 1 January 2005
items 8 and 9 of Schedule 9 to the US Free Trade Agreement
Implementation Act 2004.
(x) Subsection 2(1) (items 2, 3 and 7–10) of the Copyright Amendment Act 2006
provides as follows:
(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.
Provision (s) Commencement Date/Details
2. Schedule 1, 1 January 2007. 1 January 2007
Part 1
3. Schedule 1, The later of: Does not
Part 2 (a) immediately after the commencement of Part 1 commence of Schedule 1 to this Act; and
(b) the time the Archives Amendment Act 2006 commences.
However, the provision (s) do not commence at all
if the event mentioned in paragraph (b) does not
occur.
7. Schedule 10 The day on which this Act receives the Royal 11 December 2006
Assent.
8. Schedule 11 Immediately after the commencement of 11 December 2006
Schedule 10.
Copyright Act 1968
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619
Endnotes
Endnote 1—Legislation history
Provision (s) Commencement Date/Details
9. Schedule 12, Immediately after the commencement of the 1 January 2007
Part 1 provisions covered by table item 2.
10. Schedule 12, The later of: Does not
Part 2 (a) immediately after the commencement of Part 1 of Schedule 12 to this Act; and
commence
(b) immediately after the commencement of Schedule 1 to the Archives Amendment Act 2006.
However, the provision (s) do not commence at all
if the event mentioned in paragraph (b) does not
occur.
(y) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010
provides as follows:
(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.
Provision (s) Commencement Date/Details
31. Schedule 5, The day this Act receives the Royal Assent. 1 March 2010
items 1 to 51
38. Schedule 5, Immediately after the provision (s) covered by 1 March 2010
Parts 2 and 3 table item 31.
(z) Subsection 2(1) (items 2 and 3) of the Federal Circuit Court of Australia
(Consequential Amendments) Act 2013 provides as follows:
(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.
Provision (s) Commencement Date/Details
2. Schedule 1 At the same time as item 1 of Schedule 1 to the 12 April 2013
Federal Circuit Court of Australia Legislation
Amendment Act 2012 commences.
3. Schedule 2 Immediately after the commencement of the 12 April 2013
provision(s) covered by table item 2.
620 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
Endnote 2—Amendment history
This endnote sets out the amendment history of the Copyright Act 1968.
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Title ...............................................am. No. 32, 1989 (as am. by No. 107, 1993)
Part I
s. 3 .................................................rep. No. 216, 1973
s. 4 .................................................rs. No. 216, 1973
s. 8 .................................................am. No. 154, 1980; No. 42, 1981
rs. No. 165, 1984
s. 8A ..............................................ad. No. 154, 1980
am. No. 141, 1994
s. 9 .................................................am. No. 67, 1985
s. 9A ..............................................ad. No. 24, 2001
Part II
s. 10 ...............................................am. No. 216, 1973; No. 160, 1977; No. 154, 1980; No. 113, 1981;
No. 154, 1982; Nos. 7 and 136, 1983; Nos. 43 and 165, 1984; No. 67,
1985; Nos. 78 and 168, 1986; No. 146, 1988; No. 28, 1989; No. 32, 1989
(as am. by No. 107, 1993); Nos. 174 and 180, 1991; No. 105, 1992; Nos.
37 and 141, 1994; Nos. 104 and 105, 1998; No. 110, 2000; Nos. 34 and
148, 2003; No. 120, 2004; No. 158, 2006; Nos. 21 and 28, 2007;
No. 113, 2008; No. 94, 2010; No. 169, 2012
s. 10AA .........................................ad. No. 105, 1998
ss. 10AB, 10AC.............................ad. No. 34, 2003
s. 10AD .........................................ad. No. 34, 2003
am. No. 34, 2003
s. 10A ............................................ad. No. 165, 1984
am. No. 78, 1986; No. 32, 1989 (as am. by No. 107, 1993); No. 104,
1998
s. 11 ...............................................am. No. 141, 1994
s. 12 ...............................................am. No. 216, 1973
s. 14 ...............................................am. No. 154, 1980
Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 19 ...............................................am. No. 216, 1973
Heading to s. 21.............................rs. No. 110, 2000
s. 21 ...............................................am. No. 110, 2000
Subhead. to s. 22(1) ......................ad. No. 120, 2004
Subhead. to s. 22(3) ......................ad. No. 120, 2004
Subheads. to s. 22(4), (5) ..............ad. No. 120, 2004
s. 22 ...............................................am. No. 78, 1986; No. 32, 1989 (as am. by No. 107, 1993); No. 110,
2000; No. 120, 2004; No. 158, 2006
s. 25 ...............................................am. No. 110, 2000
s. 26 ...............................................am. No. 141, 1994
rep. No. 110, 2000
s. 27 ...............................................am. No. 32, 1989 (as am. by No. 107, 1993); No. 141, 1994; No. 110,
2000
Heading to s. 28.............................am. No. 158, 2006
s. 28 ...............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006
s. 29 ...............................................am. No. 154, 1980
s. 30A ............................................ad. No. 149, 1994
Part III
Division 1
s. 31 ...............................................am. No. 154, 1980; No. 149, 1994; No. 110, 2000
s. 32 ...............................................am. No. 141, 1994; No. 21, 2007
s. 33 ...............................................am. No. 154, 1980; No. 110, 2000; No. 120, 2004
s. 34 ...............................................am. No. 154, 1980; No. 120, 2004
s. 35 ...............................................am. No. 141, 1994; No. 104, 1998
Division 2
s. 36 ...............................................am. No. 110, 2000
s. 37 ...............................................am. No. 174, 1991; No. 104, 1998
s. 38 ...............................................am. No. 174, 1991; No. 141, 1994; No. 104, 1998; No. 158, 2006
s. 39 ...............................................am. No. 141, 1994
s. 39A ............................................ad. No. 154, 1980
am. No. 110, 2000 (as am. by No. 63, 2002); No. 34, 2003
622 Copyright Act 1968
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...
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 39B ............................................ad. No. 110, 2000
Division 3
s. 40 ...............................................am. No. 154, 1980; No. 32, 1989 (as am. by No. 107, 1993); No. 110,
2000; No. 158, 2006
s. 41A ............................................ad. No. 158, 2006
s. 42 ...............................................am. No. 110, 2000
s. 43 ...............................................am. No. 154, 1980; No. 100, 1998
s. 43A ............................................ad. No. 43, 1984
rep. No. 105, 1999
ad. No. 110, 2000
Heading to s. 43B ..........................am. No. 154, 2004
s. 43B ............................................ad. No. 120, 2004
am. No. 154, 2004
s. 43C ............................................ad. No. 158, 2006
s. 44 ...............................................am. No. 154, 1980
s. 44A ............................................ad. No. 174, 1991
am. No. 104, 1998
s. 44B ............................................ad. No. 37, 1994
s. 44BA..........................................ad. No. 39, 2011
s. 44C ............................................ad. No. 104, 1998
am. No. 34, 2003
Note to s. 44C(1) ..........................ad. No. 34, 2003
s. 44D ............................................ad. No. 105, 1998
am. No. 34, 2003; No. 158, 2006
ss. 44E, 44F ................................ ad. No. 34, 2003
am. No. 158, 2006
Division 4
s. 46 ...............................................am. No. 110, 2000
s. 47 ...............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 110, 2000;
No. 113, 2008
s. 47AA .........................................ad. No. 110, 2000
Copyright Act 1968
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..
..
..
..
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Heading to s. 47A..........................am. No. 104, 1998
s. 47A ............................................ad. No. 78, 1986
am. Nos. 105 and 167, 1992; No. 104, 1998; No. 24, 2001
Division 4A
Div. 4A of Part III ........................ad. No. 105, 1999
s. 47AB..........................................ad. No. 110, 2000
ss. 47B–47D ................................ad. No. 105, 1999
am. No. 110, 2000
ss. 47E–47H ................................ad. No. 105, 1999
Division 4B
Div. 4B of Part III .........................ad. No. 158, 2006
s. 47J .............................................ad. No. 158, 2006
Division 5
Heading to Div. 5 of Part III ..........rs. No. 104, 1998
s. 48 ...............................................rs. No. 154, 1980
s. 48A ............................................ad. No. 165, 1984
Heading to s. 49.............................am. No. 110, 2000
s. 49 ...............................................rs. No. 154, 1980
am. No. 165, 1984; No. 141, 1994; No. 110, 2000; No. 158, 2006
Note to s. 49(2) .............................ad. No. 158, 2006
Note to s. 49(2C) ..........................ad. No. 158, 2006
Note to s. 49 ................................ad. No. 158, 2006
Heading to s. 50.............................am. No. 110, 2000
s. 50 ...............................................rs. No. 154, 1980
am. No. 165, 1984; No. 110, 2000; No. 158, 2006
Note to s. 50(2) .............................ad. No. 158, 2006
Note to s. 50 ................................ad. No. 158, 2006
Heading to s. 51.............................am. No. 110, 2000
s. 51 ...............................................am. No. 154, 1980; No. 141, 1994; No. 110, 2000; No. 120, 2004
Heading to s. 51AA .......................am. No. 110, 2000; No. 113, 2008
624 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 51AA .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000; No. 113, 2008
Heading to s. 51A..........................am. No. 110, 2000
s. 51A ............................................ad. No. 154, 1980
am. No. 78, 1986; No. 141, 1994; No. 110, 2000; No. 158, 2006
Note to s. 51A(4) ..........................ad. No. 158, 2006
s. 51B ...........................................ad. No. 158, 2006
Heading to s. 52.............................am. No. 104, 1998
s. 52 ...............................................am. No. 91, 1983; No. 110, 2000
s. 53 ...............................................am. No. 154, 1980; No. 34, 2003
Div. 5A of Part III ........................ad. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 53A ............................................ad. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 53B ............................................ad. No. 154, 1980
am. No. 165, 1984
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 53C ............................................ad. No. 154, 1980
am. No. 91, 1983
rep. No. 32, 1989 (as am. by No. 107, 1993)
Div. 5B of Part III .........................ad. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 53D ............................................ad. No. 154, 1980
am. No. 165, 1984
rep. No. 32, 1989 (as am. by No. 107, 1993)
Division 6
s. 54 ...............................................am. No. 32, 1989 (as am. by No. 107, 1993); No. 158, 2006
s. 55 ...............................................am. No. 154, 1980; No. 61, 1981; No. 32, 1989 (as am. by No. 107,
1993); No. 159, 2000; No. 158, 2006
s. 56 ...............................................am. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 57 ...............................................am. No. 154, 1980
s. 58 ...............................................am. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 59 ...............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006
ss. 62, 63........................................am. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 64 ...............................................am. No. 154, 1980
Division 7
s. 65 ...............................................am. No. 154, 1980
s. 68 ...............................................am. No. 154, 1980
s. 69 ...............................................am. No. 154, 1980
rep. No. 110, 2000
s. 70 ...............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 113, 2008
s. 71 ...............................................rep. No. 32, 1989 (as am. by No. 107, 1993)
Division 8
Heading to Div. 8 of Part III ..........am. No. 42, 1981
s. 74 ...............................................am. No. 216, 1973; No. 42, 1981
rs. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 148, 2003
s. 75 ...............................................am. No. 42, 1981
rs. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 148, 2003
s. 76 ...............................................am. No. 42, 1981
rs. No. 148, 2003
s. 77 ...............................................am. No. 154, 1980; No. 42, 1981
rs. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 148, 2003
s. 77A ............................................ad. No. 148, 2003
Division 9
ss. 79, 80........................................am. No. 154, 1980
626 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 81 ...............................................am. No. 154, 1980; No. 120, 2004
s. 82 ...............................................am. No. 154, 1980; No. 141, 1994
s. 83 ...............................................am. No. 154, 1980
Part IV
Division 1
s. 84 ...............................................rs. No. 120, 2004
am. No. 21, 2007
Division 2
s. 85 ...............................................am. No. 154, 1980; No. 149, 1994; No. 110, 2000
s. 86 ...............................................am. No. 110, 2000
s. 87 ...............................................am. No. 154, 1980; No. 110, 2000
s. 88 ...............................................am. No. 110, 2000
Division 3
s. 91 ...............................................am. No. 160, 1977; Nos. 7 and 136, 1983; No. 78, 1986
rs. No. 146, 1988
am. No. 180, 1991; No. 167, 1992; No. 104, 1998
rs. No. 110, 2000
s. 91A ............................................ad. No. 104, 1998
rep. No. 110, 2000
s. 92 ...............................................am. No. 154, 1980
Division 4
ss. 93, 94........................................am. No. 154, 1980; No. 120, 2004
ss. 95, 96........................................am. No. 154, 1980
Division 5
Subdivision A
Heading to Subdiv. A of ................ad. No. 120, 2004
Div. 5 of Part IV
s. 97 ...............................................am. No. 120, 2004
s. 98 ...............................................am. No. 130, 2005; No. 158, 2006
s. 99 ...............................................am. No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 78, 1986; No. 146,
1988; No. 180, 1991; No. 104, 1998
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
627
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
rs. No. 110, 2000
Subdivision B
Subdiv. B of Div. 5 of ad. No. 120, 2004
Part IV ...........................................
ss. 100AA–100AF .........................ad. No. 120, 2004
s. 100AG .......................................ad. No. 120, 2004
am. No. 158, 2006
s. 100AH .......................................ad. No. 120, 2004
Note to s. 100AH...........................am. No. 94, 2010
Division 6
s. 100A ..........................................ad. No. 78, 1986
s. 101 .............................................am. No. 154, 1980; No. 110, 2000
s. 102 .............................................am. No. 174, 1991; Nos. 104 and 105, 1998; No. 34, 2003
s. 103 .............................................am. No. 174, 1991; No. 141, 1994; Nos. 104 and 105, 1998; No. 34,
2003; No. 158, 2006
s. 103A ..........................................ad. No. 78, 1986
s. 103AA .......................................ad. No. 158, 2006
s. 103B ..........................................ad. No. 78, 1986
am. No. 110, 2000
s. 103C ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 104 .............................................rs. No. 154, 1980
am. No. 100, 1998
s. 104A ..........................................ad. No. 165, 1984
s. 104B ..........................................ad. No. 110, 2000
s. 105 .............................................am. No. 154, 1980
s. 106 .............................................am. No. 169, 2012
s. 107 .............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 110, 2000;
No. 113, 2008
s. 108 .............................................am. No. 154, 1980; No. 141, 1994
s. 109 .............................................am. No. 154, 1980; No. 141, 1994; No. 104, 1998
s. 109A ..........................................ad. No. 158, 2006
628 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 8, 2010
s. 110 .............................................am. No. 154, 1980
s. 110AA .......................................ad. No. 158, 2006
Heading to s. 110A........................am. No. 110, 2000
s. 110A ..........................................ad. No. 78, 1986
am. No. 110, 2000
Heading to s. 110B ........................am. No. 110, 2000
s. 110B ..........................................ad. No. 78, 1986
am. No. 110, 2000
Note to s. 110B(3) ........................ad. No. 158, 2006
s. 110BA........................................ad. No. 158, 2006
s. 110C ..........................................ad. No. 110, 2000
s. 111 .............................................am. No. 154, 1980; No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 158, 2006
s. 111A ..........................................ad. No. 110, 2000
Heading to s. 111B ........................am. No. 154, 2004
s. 111B ..........................................ad. No. 120, 2004
am. No. 154, 2004
s. 112 .............................................rs. No. 154, 1980
am. No. 78, 1986; No. 32, 1989 (as am. by No. 107, 1993); No. 104,
1998; No. 158, 2006
s. 112A ..........................................ad. No. 174, 1991
am. No. 104, 1998
s. 112AA .......................................ad. No. 158, 2006
s. 112B ..........................................ad. No. 37, 1994
s. 112C ..........................................ad. No. 104, 1998
am. No. 158, 2006
Note to s. 112C(1) ........................ad. No. 34, 2003
s. 112D ..........................................ad. No. 105, 1998
am. No. 158, 2006
s. 112DA .......................................ad. No. 34, 2003
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
629
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 158, 2006
s. 112E...........................................ad. No. 110, 2000
Division 7
s. 113 .............................................am. No. 154, 1980
ss. 113A–113C ..............................ad. No. 120, 2004
Part V
Heading to Part V ..........................rs. No. 110, 2000
Division 2
s. 115 .............................................am. No. 110, 2000; No. 34, 2003; No. 158, 2006
s. 116 .............................................am. No. 141, 1994; No. 104, 1998; No. 110, 2000
s. 116AAA................................ ad. No. 120, 2004
Division 2AA
Div. 2AA of Part V........................ad. No. 120, 2004
Subdivision A
s. 116AA .......................................ad. No. 120, 2004
s. 116AB........................................ad. No. 120, 2004
am. No. 154, 2004; No. 9, 2006
Subdivision B
ss. 116AC–116AF .........................ad. No. 120, 2004
Subdivision C
s. 116AG .......................................ad. No. 120, 2004
Subdivision D
s. 116AH .......................................ad. No. 120, 2004
am. No. 154, 2004
s. 116AI.........................................ad. No. 120, 2004
Subdivision E
s. 116AJ.........................................ad. No. 120, 2004
Division 2A
Heading to Div. 2A of Part V ........rs. No. 158, 2006
Div. 2A of Part V ..........................ad. No. 110, 2000
630 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 116A ..........................................ad. No. 110, 2000
rep. No. 158, 2006
Subdivision A
Subdiv. A of Div. 2A of ................ad. No. 158, 2006
Part V
ss. 116AK–116AQ ........................ad. No. 158, 2006
Subdivision B
Heading to Subdiv. B of ................ad. No. 158, 2006
Div. 2A of Part V
s. 116B ..........................................ad. No. 110, 2000
am. No. 120, 2004
Heading to s. 116C ........................rs. No. 120, 2004
s. 116C ..........................................ad. No. 110, 2000
am. No. 120, 2004
ss. 116CA, 116CB .........................ad. No. 120, 2004
Heading to s. 116D........................am. No. 120, 2004; No. 158, 2006
s. 116D ..........................................ad. No. 110, 2000
am. No. 120, 2004; No. 158, 2006
Division 3
s. 119 .............................................am. No. 154, 1980; No. 141, 1994
s. 120 .............................................am. No. 154, 1980
s. 122 .............................................am. No. 154, 1980
s. 123 .............................................am. No. 154, 1980
Note to s. 123 ................................ad. No. 120, 2004
s. 124 .............................................am. No. 154, 1980
Note to s. 124 ................................ad. No. 120, 2004
s. 125 .............................................am. No. 154, 1980; No. 141, 1994
Division 4
Heading to Div. 4 of Part V...........rs. No. 78, 1986
s. 126 .............................................am. No. 141, 1994
Heading to s. 126A........................am. No. 158, 2006
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
631
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 126A ..........................................ad. No. 34, 2003
am. No. 158, 2006
Heading to s. 126B ........................am. No. 158, 2006
s. 126B ..........................................ad. No. 34, 2003
am. No. 158, 2006
s. 127 .............................................am. No. 154, 1980; No. 141, 1994; No. 120, 2004
s. 128 .............................................am. No. 154, 1980; No. 120, 2004
s. 129 .............................................am. No. 154, 1980; No. 141, 1994
s. 129A ..........................................ad. No. 158, 2006
s. 130 .............................................am. No. 34, 2003; No. 154, 2004
rs. No. 158, 2006
s. 130A ..........................................ad. No. 105, 1998
am. No. 158, 2006
ss. 130B, 130C ..............................ad. No. 34, 2003
am. No. 158, 2006
Heading to s. 131...........................rs. No. 158, 2006
s. 131 .............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006
Division 4A
Heading to Div. 4A of Part V ........rs. No. 23, 1987
Div. 4A of Part V .........................ad. No. 19, 1979
s. 131A ..........................................ad. No. 19, 1979
s. 131B ..........................................ad. No. 19, 1979
am. No. 23, 1987
s. 131C ..........................................ad. No. 23, 1987
Heading to s. 131D........................rs. No. 13, 2013
s. 131D ..........................................ad. No. 34, 2003
am. No. 13, 2013
Division 5
Subhead. to s. 132(1) ....................ad. No. 120, 2004
rep. No. 158, 2006
632 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Subheads. to s. 132(5),...................ad. No. 120, 2004
(5AA), (5A) rep. No. 158, 2006
Subhead. to s. 132(5E) ..................ad. No. 120, 2004
rep. No. 158, 2006
Subhead. to s. 132(5F) ..................ad. No. 120, 2004
rep. No. 158, 2006
Subheads. to s. 132(6),...................ad. No. 120, 2004
(6AA) rep. No. 158, 2006
Subhead. to s. 132(7) ....................ad. No. 120, 2004
rep. No. 158, 2006
Subhead. to s. 132(9) ....................ad. No. 120, 2004
rep. No. 158, 2006
s. 132 .............................................am. No. 154, 1980; No. 43, 1984; No. 78, 1986; Nos. 104 and 105, 1998;
No. 110, 2000; No. 34, 2003; Nos. 120 and 154, 2004
rep. No. 158, 2006
Note to s. 132(1) ...........................ad. No. 120, 2004
rep. No. 158, 2006
Subdivision A
Subdiv. A of Div. 5 of Part V ........ad. No. 158, 2006
ss. 132AA, 132AB.........................ad. No. 158, 2006
Subdivision B
Subdiv. B of Div. 5 of Part V ........ad. No. 158, 2006
s. 132AC........................................ad. No. 158, 2006
am. No. 113, 2008
Subdivision C
Subdiv. C of Div. 5 of Part V ........ad. No. 158, 2006
ss. 132AD–132AM........................ad. No. 158, 2006
Subdivision D
Subdiv. D of Div. 5 of Part V ........ad. No. 158, 2006
ss. 132AN, 132AO ........................ad. No. 158, 2006
Subdivision E
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
633
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Subdiv. E of Div. 5 of Part V.........ad. No. 158, 2006
ss. 132APA, 132APB ....................ad. No. 158, 2006
ss. 132APC–132APE.....................ad. No. 156, 2006
am. No. 113, 2008
Subdivision F
Subdiv. F of Div. 5 of Part V.........ad. No. 158, 2006
ss. 132AQ–132AS .........................ad. No. 158, 2006
s. 132AT........................................ad. No. 158, 2006
am. No. 113, 2008
Subdivision G
Subdiv. G of Div. 5 of Part V ........ad. No. 158, 2006
s. 132AU .......................................ad. No. 158, 2006
s. 132A ..........................................ad. No. 34, 2003
am. No. 158, 2006
s. 132AAA................................ ad. No. 158, 2006
s. 132B ..........................................ad. No. 34, 2003
am. No. 154, 2004
rs. No. 158, 2006
s. 132C ..........................................ad. No. 158, 2006
Subdivision H
Subdiv. H of Div. 5 of Part V ........ad. No. 158, 2006
Heading to s. 133...........................rs. No. 105, 1998; No. 158, 2006
s. 133 .............................................am. No. 154, 1980; No. 91, 1983; No. 78, 1986; Nos. 104 and 105, 1998;
No. 110, 2000
rs. No. 158, 2006
Subdivision I
Subdiv. I of Div. 5 of Part V..........ad. No. 158, 2006
Heading to s. 133A........................am. No. 34, 2003
rs. No. 158, 2006
s. 133A ..........................................ad. No. 43, 1984
am. No. 78, 1986; No. 105, 1998; No. 34, 2003
634 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
.....
.....
.....
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
rs. No. 158, 2006
s. 133B ..........................................ad. No. 158, 2006
Division 6
s. 134 .............................................am. No. 104, 1998; No. 110, 2000; No. 120, 2004; No. 158, 2006
s. 134A ..........................................ad. No. 78, 1986
am. No. 149, 1994
Division 7
Heading to Div. 7 of Part V...........ad. No. 149, 1994
s. 134B ..........................................ad. No. 149, 1994
am. No. 104, 1998; No. 35, 2012
s. 135 .............................................am. No. 216, 1973; No. 91, 1976; No. 19, 1979; No. 154, 1980; No. 80,
1982; No. 65, 1985; No. 32, 1989 (as am. by No. 107, 1993); Nos. 141
and 149, 1994; Nos. 104 and 105, 1998; No. 34, 2003; No. 158, 2006
s. 135AA .......................................ad. No. 149, 1994
am. No. 104, 1998
rs. No. 158, 2006
s. 135AB........................................ad. No. 149, 1994
am. No. 104, 1998
s. 135AC........................................ad. No. 149, 1994
am. No. 104, 1998; No. 35, 2012
s. 135AD .......................................ad. No. 149, 1994
am. No. 104, 1998; No. 35, 2012
s. 135AE........................................ad. No. 149, 1994
am. No. 104, 1998; No. 35, 2012
s. 135AEA ................................ ad. No. 35, 2012
s. 135AEB ................................ ad. No. 35, 2012
s. 135AEC ................................ ad. No. 35, 2012
s. 135AED ................................ ad. No. 35, 2012
s. 135AF ........................................ad. No. 149, 1994
am. No. 104, 1998
rs. No. 35, 2012
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
635
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 135AFA ................................ ad. No. 35, 2012
s. 135AG .......................................ad. No. 149, 1994
am. No. 104, 1998
s. 135AH .......................................ad. No. 149, 1994
am. No. 104, 1998
s. 135AI.........................................ad. No. 149, 1994
am. No. 104, 1998
rs. No. 35, 2012
s. 135AJ.........................................ad. No. 149, 1994
am. No. 104, 1998
rs. No. 158, 2006
s. 135AK .......................................ad. No. 149, 1994
am. No. 104, 1998
Part VAA
Part VAA.......................................ad. No. 110, 2000
rs. No. 158, 2006
Division 1
s. 135AL........................................ad. No. 110, 2000
am. No. 120, 2004
rs. No. 158, 2006
s. 135AM.......................................ad. No. 110, 2000
rs. No. 158, 2006
Subheads. to s. 135AN(1), .............ad. No. 120, 2004
(2) rep. No. 158, 2006
Subhead. to s. 135AN(4) ..............ad. No. 120, 2004
rep. No. 158, 2006
Subheads. to s. 135AN(7), .............ad. No. 120, 2004
(8) rep. No. 158, 2006
s. 135AN .......................................ad. No. 110, 2000
am. No. 120, 2004
rs. No. 158, 2006
636 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
.....
.....
.....
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Heading to s. 135ANA ..................am. No. 120, 2004
rep. No. 158, 2006
Subheads. to s. 135ANA(1), ..........ad. No. 120, 2004
(2) rep. No. 158, 2006
Subhead. to s. 135ANA(4) ............ad. No. 120, 2004
rep. No. 158, 2006
Subhead. to s. 135ANA(7) ............ad. No. 120, 2004
rep. No. 158, 2006
s. 135ANA................................ ad. No. 110, 2000
am. No. 120, 2004
rep. No. 158, 2006
Division 2
Subdivision A
s. 135AOA................................ ad. No. 158, 2006
Subdivision B
s. 135AOB................................ ad. No. 158, 2006
Subdivision C
ss. 135AOC, 135AOD...................ad. No. 158, 2006
Subdivision D
s. 135AOE, 135AOF .....................ad. No. 158, 2006
Subdivision E
ss. 135AP–135AR .........................ad. No. 110, 2000
rs. No. 158, 2006
s. 135ARA................................ ad. No. 34, 2003
rep. No. 158, 2006
Subhead. to s. 135AS(1) ...............ad. No. 120, 2004
rep. No. 158, 2006
Subheads. to s. 135AS(2),..............ad. No. 120, 2004
(3) rep. No. 158, 2006
Subhead. to s. 135AS(4) ...............ad. No. 120, 2004
rep. No. 158, 2006
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
637
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Heading to s. 135AS......................rs. No. 13, 2013
s. 135AS ........................................ad. No. 110, 2000
am. Nos. 120 and 154, 2004
rs. No. 158, 2006
am. No. 13, 2013
Note to s. 135AS(1) ......................ad. No. 120, 2004
rep. No. 158, 2006
Division 3
Subdivision A
ss. 135ASA–35ASJ .......................ad. No. 158, 2006
Subdivision B
s. 135ATA ................................ ad. No. 158, 2006
s. 135AT........................................ad. No. 110, 2000
rep. No. 158, 2006
Subdivision C
s. 135AU .......................................ad. No. 110, 2000
rs. No. 158, 2006
Part VA
Heading to Part VA .......................rs. No. 104, 1998; No. 110, 2000
Part VA .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 1
s. 135A ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004
Heading to s. 135B ........................am. No. 104, 1998
rs. No. 110, 2000
s. 135B ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
s. 135C ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rep. No. 104, 1998
ad. No. 158, 2006
638 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 28, 2007
s. 135D ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 2
Heading to Div. 2 of Part VA ........rs. No. 104, 1998; No. 110, 2000
Heading to s. 135E ........................am. No. 104, 1998
rs. No. 110, 2000
s. 135E...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004
Heading to s. 135F.........................rs. No. 110, 2000
s. 135F...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004
s. 135G ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
s. 135H ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004
s. 135J............................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004; No. 158, 2006
s. 135JAA......................................ad. No. 158, 2006
s. 135JA.........................................ad. No. 110, 2000
am. No. 120, 2004
Subhead. to s. 135K(1) .................ad. No. 158, 2006
Subhead. to s. 135K(3) .................ad. No. 158, 2006
s. 135K ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 158, 2006
s. 135KA .......................................ad. No. 110, 2000
am. No. 120, 2004
s. 135L...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 158, 2006
s. 135M..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 135N ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
639
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 104, 1998; No. 110, 2000
Division 3
Heading to s. 135P.........................am. No. 158, 2006
s. 135P...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004; No. 158, 2006
s. 135Q ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 120, 2004; No. 158, 2006
ss. 135R, 135S...............................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 158, 2006
s. 135SA ........................................ad. No. 158, 2006
Division 4
s. 135T...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
ss. 135U–135W .............................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
ss. 135X, 135Y..............................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 5
Heading to s. 135Z ........................am. No. 120, 2004
s. 135Z...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998
rs. No. 110, 2000
am. No. 120, 2004
s. 135ZA........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Part VB
Heading to Part VB .......................rs. No. 110, 2000
Part VB .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 1
s. 135ZB ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 120, 2004
s. 135ZC ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
640 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
.....
....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 104, 1998
s. 135ZD........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rep. No. 104, 1998
ss. 135ZE, 135ZF ..........................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 135ZFA......................................ad. No. 110, 2000
Division 2
Heading to Div. 2 of Part VB ........rs. No. 110, 2000
s. 135ZGA ................................ ad. No. 110, 2000
Heading to s. 135ZG......................rs. No. 110, 2000
s. 135ZG........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000
s. 135ZH........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 110, 2000
Heading to s. 135ZJ.......................rs. No. 110, 2000
s. 135ZJ .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000
s. 135ZK........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 110, 2000
Heading to s. 135ZL......................rs. No. 110, 2000
s. 135ZL ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000
Heading to s. 135ZM.....................rs. No. 110, 2000
s. 135ZM .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Division 2A
Div. 2A of Part VB........................ad. No. 110, 2000
s. 135ZMA ................................ ad. No. 110, 2000
Subhead. to s. 135ZMB(1) ............ad. No. 158, 2006
Subhead. to s. 135ZMB(3) ............ad. No. 158, 2006
Subhead. to s. 135ZMB(4) ............ad. No. 158, 2006
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
641
.....
..
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 135ZMB................................ ad. No. 110, 2000
am. No. 158, 2006
ss. 135ZMC, 135ZMD...................ad. No. 110, 2000
s. 135ZMDA................................ad. No. 158, 2006
s. 135ZME................................ ad. No. 110, 2000
Division 3
Heading to Div. 3 of Part VB ........rs. No. 104, 1998; No. 110, 2000
Heading to s. 135ZN......................am. No. 104, 1998
rs. No. 110, 2000
s. 135ZN........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998
rs. No. 110, 2000
Heading to s. 135ZP ......................am. No. 104, 1998; No. 110, 2000
s. 135ZP.........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Heading to s. 135ZQ......................am. No. 104, 1998; No. 110, 2000
s. 135ZQ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Division 4
Heading to Div. 4 of Part VB ........rs. No. 104, 1998; No. 110, 2000
Heading to s. 135ZR......................am. No. 104, 1998
rs. No. 110, 2000
s. 135ZR ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998
rs. No. 110, 2000
Heading to s. 135ZS ......................am. No. 104, 1998; No. 110, 2000
s. 135ZS.........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Heading to s. 135ZT ......................am. No. 104, 1998
rs. No. 110, 2000
642 Copyright Act 1968
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.
....
.....
.....
...
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 135ZT ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Division 5
s. 135ZU........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000
s. 135ZV........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 158, 2006
s. 135ZW.......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 158, 2006
s. 135ZWAA ................................ad. No. 158, 2006
s. 135ZWA ................................ ad. No. 110, 2000
Heading to s. 135ZX......................rs. No. 110, 2000
Subhead. to s. 135ZX(1) ...............ad. No. 158, 2006
Subheads. to s. 135ZX(3), .............ad. No. 158, 2006
(4)
s. 135ZX........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000; No. 158, 2006
s. 135ZXA ................................ ad. No. 110, 2000
s. 135ZY........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000; No. 158, 2006
s. 135ZZ ........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 135ZZA ................................ ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
Division 6
s. 135ZZB......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000; No. 158, 2006
ss. 135ZZC–135ZZE .....................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 158, 2006
s. 135ZZEA ................................ ad. No. 158, 2006
Division 7
ss. 135ZZF, 135ZZG .....................ad. No. 32, 1989 (as am. by No. 107, 1993)
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....
..
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 104, 1998; No. 110, 2000
s. 135ZZH ................................ ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 110, 2000
Part VC
Part VC .........................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
Division 1
s. 135ZZI .......................................ad. No. 110, 2000
am. No. 120, 2004; No. 158, 2006
s. 135ZZJ.......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
s. 135ZZJA................................ ad. No. 110, 2000
am. Nos. 8 and 94, 2010; No. 36, 2011
Division 2
ss. 135ZZK–135ZZN ....................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
ss. 135ZZP–135ZZS......................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
Division 3
ss. 135ZZT–135ZZW ....................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
am. No. 158, 2006
s. 135ZZWA................................ad. No. 158, 2006
Division 4
ss. 135ZZX–135ZZZ.....................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
ss. 135ZZZA, 135ZZZB................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000
Division 5
ss. 135ZZZC–135ZZZE ................ad. No. 110, 2000
Part VD
Part VD..........................................ad. No. 94, 2010
Division 1
ss. 135ZZZF–135ZZZH ................ad. No. 94, 2010
Division 2
ss. 135ZZZI–135ZZZN .................ad. No. 94, 2010
Division 3
644 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
.
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
ss. 135ZZZO–135ZZZS ................ad. No. 94, 2010
Division 4
ss. 135ZZZT–135ZZZX ................ad. No. 94, 2010
Division 5
ss. 135ZZZY, 135ZZZZ ................ad. No. 94, 2010
s. 135ZZZZA................................ad. No. 94, 2010
Part VI
Heading to Part VI.........................rs. No. 158, 2006
Division 1
s. 136 .............................................am. No. 154, 1980; No. 26, 1982; No. 78, 1986; No. 104, 1998; No. 110,
2000; No. 158, 2006
Division 2
s. 138 .............................................am. No. 154, 1980
rs. No. 26, 1982
am. No. 104, 1998; No. 158, 2006
s. 140 .............................................am. No. 216, 1973; No. 154, 1980
rs. No. 26, 1982
am. No. 141, 1994; No. 104, 1998
s. 141 .............................................am. No. 154, 1980; No. 26, 1982; No. 141, 1994; No. 104, 1998
s. 141A ..........................................ad. No. 104, 1998
s. 142 .............................................am. No. 26, 1982; No. 141, 1994
rs. No. 104, 1998
s. 143 .............................................rs. No. 26, 1982
am. No. 141, 1994
s. 144 .............................................am. No. 141, 1994
s. 144A ..........................................ad. No. 154, 1980
am. No. 141, 1994; No. 136, 2012
s. 144B ..........................................ad. No. 154, 1980
am. No. 26, 1982; No. 141, 1994
s. 145 .............................................rs. No. 141, 1994
s. 146 .............................................am. No. 154, 1980; No. 26, 1982; No. 141, 1994; No. 104, 1998
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
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....
..
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 147 .............................................am. No. 154, 1980; No. 26, 1982
Division 3
Heading to Div. 3 of Part VI..........rs. No. 104, 1998
Subdivision A
Heading to Subdiv. A of ................ad. No. 158, 2006
Div. 3 of Part VI
s. 148 .............................................am. No. 154, 1980
rep. No. 32, 1989 (as am. by No. 107, 1993)
ad. No. 104, 1998
Subdivision B
Heading to Subdiv. B of ................ad. No. 158, 2006
Div. 3 of Part VI
s. 149 .............................................am. No. 154, 1980
s. 149A ..........................................ad. No. 154, 1980
rs. No. 78, 1986
am. No. 32, 1989 (as am. by No. 107, 1993); No. 104, 1998
ss. 150, 151................................ am. No. 154, 1980
s. 152 .............................................am. No. 216, 1973; No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 67,
1985; No. 78, 1986; No. 146, 1988; No. 180, 1991; No. 141, 1994;
No. 104, 1998; No. 110, 2000; No. 45, 2005
ss. 152A, 152B ..............................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 153 .............................................am. No. 154, 1980
Subdivision C
Heading to Subdiv. C of ................ad. No. 158, 2006
Div. 3 of Part VI
Heading to s. 153A........................am. No. 110, 2000
s. 153A ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
s. 153B ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 153BAAA................................ad. No. 158, 2006
s. 153BA........................................ad. No. 110, 2000
646 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
ss. 153BAA–153BAD ...................ad. No. 158, 2006
Subdivision D
Heading to Subdiv. D of ................ad. No. 158, 2006
Div. 3 of Part VI
s. 153BB........................................ad. No. 110, 2000
Heading to s. 153C ........................rs. No. 110, 2000
am. No. 34, 2003
s. 153C ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998; No. 110, 2000
s. 153D ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
s. 153DAA................................ ad. No. 158, 2006
s. 153DA .......................................ad. No. 110, 2000
ss. 153DB–153DE .........................ad. No. 158, 2006
Subdivision E
Heading to Subdiv. E of ................ad. No. 158, 2006
Div. 3 of Part VI
s. 153E...........................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 104, 1998
ss. 153F, 153G...............................ad. No. 104, 1998
am. No. 158, 2006
s. 153H ..........................................ad. No. 104, 1998
s. 153J............................................ad. No. 104, 1998
am. No. 158, 2006
s. 153K ..........................................ad. No. 104, 1998
s. 153KA .......................................ad. No. 158, 2006
Subdivision F
Heading to Subdiv. F of.................ad. No. 158, 2006
Div. 3 of Part VI
s. 153L...........................................ad. No. 104, 1998
Subdivision G
Heading to Subdiv. G of ................ad. No. 158, 2006
Div. 3 of Part VI
Copyright Act 1968
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....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 153M..........................................ad. No. 110, 2000
am. No. 158, 2006
s. 153N ..........................................ad. No. 110, 2000
ss. 153P–153R...............................ad. No. 158, 2006
Subdivision GA
Subdiv. GA of Div. 3 of ................ad. No. 94, 2010
Part VI
s. 153RA........................................ad. No. 94, 2010
ss. 153S–153W..............................ad. No. 94, 2010
Subdivision H
Heading to Subdiv. H of ................ad. No. 158, 2006
Div. 3 of Part VI
s. 154 .............................................am. No. 141, 1994; No. 158, 2006
ss. 155, 156................................ am. No. 141, 1994; No. 154, 1980; No. 158, 2006
Subheads. to s. 157(1)–(3) ............ad. No. 158, 2006
Subhead. to s. 157(5) ....................ad. No. 158, 2006
Subhead. to s. 157(7) ....................ad. No. 158, 2006
s. 157 .............................................am. No. 141, 1994; No. 154, 1980; No. 158, 2006
Note to s. 157(5) ...........................ad. No. 158, 2006
ss. 157A, 157B ..............................ad. No. 158, 2006
s. 158 .............................................am. No. 141, 1994; No. 154, 1980
Subhead. to s. 159(1) ....................ad. No. 158, 2006
Subhead. to s. 159(4) ....................ad. No. 158, 2006
s. 159 .............................................am. No. 141, 1994; No. 154, 1980; No. 158, 2006
ss. 159A, 159B ..............................ad. No. 154, 1980
am. No. 91, 1983
rep. No. 32, 1989 (as am. by No. 107, 1993)
Subdivision I
Heading to Subdiv. I of..................ad. No. 158, 2006
Div. 3 of Part VI
s. 161 .............................................am. No. 19, 1979; No. 154, 1980; No. 104, 1998
648 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Division 4
s. 163A ..........................................ad. No. 154, 1980
am. No. 141, 1994
s. 166 .............................................am. No. 19, 1979; No. 154, 1980; No. 104, 1998
s. 167 .............................................am. No. 104, 1998; No. 158, 2006
s. 168 .............................................am. No. 158, 2006
s. 169 .............................................am. No. 216, 1973
Division 4A
Div. 4A of Part VI .........................ad. No. 158, 2006
ss. 169A–169G..............................ad. No. 158, 2006
Division 5
s. 170 .............................................am. No. 146, 1999
rs. No. 158, 2006
am. No. 46, 2011
Note to s. 170(7) ...........................ad. No. 46, 2011
s. 170A ..........................................ad. No. 158, 2006
Heading to s. 171...........................rs. No. 158, 2006
s. 171 .............................................am. No. 141, 1994; No. 158, 2006
s. 172 .............................................am. No. 154, 1980; No. 141, 1994; No. 24, 2001
rs. No. 158, 2006
s. 173 .............................................am. No. 154, 1980; No. 141, 1994
rs. No. 158, 2006
s. 174 .............................................am. No. 154, 1980; No. 78, 1986; No. 104, 1998; No. 158, 2006
s. 175 .............................................am. No. 158, 2006
Part VII
Heading to Div. 1 ..........................ad. No. 104, 1998
of Part VII
Division 1
ss. 180, 181................................ am. No. 154, 1980
s. 182A ..........................................ad. No. 154, 1980
am. No. 141, 1994
Copyright Act 1968
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....
....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Division 2
Div. 2 of Part VII...........................ad. No. 104, 1998
ss. 182B, 182C ..............................ad. No. 104, 1998
s. 183 .............................................am. No. 19, 1979; No. 154, 1980; No. 32, 1989 (as am. by No. 107,
1993); No. 141, 1994; No. 110, 2000
ss. 183A–183E...............................ad. No. 104, 1998
s. 183F...........................................ad. No. 158, 2006
Part VIII
s. 184 .............................................am. No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 78, 1986; No. 146,
1988; No. 32, 1989 (as am. by No. 107, 1993); No. 180, 1991; No. 104,
1998; No. 110, 2000; No. 45, 2005; No. 73, 2008
ss. 185, 186................................ am. No. 154, 1980
ss. 187, 188................................ am. No. 154, 1980; No. 120, 2004
Part IX
Heading to Part IX ........................rs. No. 120, 2004
Part IX ..........................................rs. No. 159, 2000
Division 1
s. 189 .............................................rs. No. 159, 2000
am. No. 159, 2000; No. 120, 2004
s. 190 .............................................rs. No. 159, 2000
s. 191 .............................................am. No. 141, 1994
rs. No. 159, 2000
ss. 191A, 191B ..............................ad. No. 120, 2004
s. 192 .............................................am. No. 141, 1994
rs. No. 159, 2000
am. No. 120, 2004
Division 2
s. 193 .............................................rs. No. 159, 2000
s. 194 .............................................am. No. 154, 1980; No. 141, 1994
rs. No. 159, 2000
am. No. 159, 2000
650 Copyright Act 1968
ComLaw Authoritative Act C2013C00145
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 195 .............................................rs. No. 159, 2000
s. 195AA .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 159, 2000
s. 195AB........................................ad. No. 159, 2000
Division 2A
Div. 2A of Part IX .........................ad. No. 120, 2004
ss. 195ABA–195ABE....................ad. No. 120, 2004
Division 3
s. 195AC........................................ad. No. 159, 2000
ss. 195AD–195AF .........................ad. No. 159, 2000
am. No. 159, 2000
ss. 195AG, 195AH ........................ad. No. 159, 2000
Division 3A
Div. 3A of Part IX .........................ad. No. 120, 2004
ss. 195AHA–195AHC...................ad. No. 120, 2004
Division 4
ss. 195AI–195AL ..........................ad. No. 159, 2000
Division 4A
Div. 4A of Part IX .........................ad. No. 120, 2004
ss. 195ALA, 195ALB....................ad. No. 120, 2004
Division 5
Subdivision A
Heading to Subdiv. A of ................ad. No. 120, 2004
Div. 5 of Part IX
Heading to s. 195AM ....................am. No. 120, 2004
s. 195AM.......................................ad. No. 159, 2000
Heading to s. 195AN .....................am. No. 120, 2004
s. 195AN .......................................ad. No. 159, 2000
Subdivision B
Subdiv. B of Div. 5 of ad. No. 120, 2004
Part IX ...........................................
Copyright Act 1968
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.....
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
ss. 195ANA, 195ANB...................ad. No. 120, 2004
Division 6
Subdivision A
Heading to Subdiv. A of ................ad. No. 120, 2004
Div. 6 of Part IX
ss. 195AO, 195AP .........................ad. No. 159, 2000
am. No. 120, 2004
s. 195AQ .......................................ad. No. 159, 2000
am. No. 159, 2000; No. 120, 2004
ss. 195AR–195AV.........................ad. No. 159, 2000
ss. 195AVA, 195AVB...................ad. No. 159, 2000
am. No. 120, 2004
s. 195AW.......................................ad. No. 159, 2000
ss. 195AWA, 195AWB .................ad. No. 159, 2000
s. 195AX .......................................ad. No. 159, 2000
Subdivision B
Subdiv. B of Div. 6 of ad. No. 120, 2004
Part IX ...........................................
ss. 195AXA–195AXL ...................ad. No. 120, 2004
Division 7
Subdivision A
Heading to Subdiv. A of ................ad. No. 120, 2004
Div. 7 of Part IX
s. 195AY .......................................ad. No. 159, 2000
am. No. 120, 2004
Heading to s. 195AZ......................am. No. 120, 2004
s. 195AZ........................................ad. No. 159, 2000
Heading to s. 195AZA...................am. No. 120, 2004
s. 195AZA ................................ ad. No. 159, 2000
s. 195AZB ................................ ad. No. 159, 2000
rep. No. 120, 2004
652 Copyright Act 1968
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.....
..
..
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
s. 195AZC ................................ ad. No. 159, 2000
am. No. 34, 2003
rep. No. 120, 2004
s. 195AZD ................................ ad. No. 159, 2000
Heading to s. 195AZE ...................am. No. 120, 2004
ss. 195AZE–195AZG ....................ad. No. 159, 2000
Subdivision B
Subdiv. B of Div. 7 of ad. No. 120, 2004
Part IX ...........................................
ss. 195AZGA–195AZGF...............ad. No. 120, 2004
Subdivision C
Subdiv. C of Div. 7 of ad. No. 120, 2004
Part IX ...........................................
s. 195AZGG ................................ad. No. 120, 2004
s. 195AZGH ................................ad. No. 120, 2004
am. No. 13, 2013
Division 8
Subdivision A
Heading to Subdiv. A of ................ad. No. 120, 2004
Div. 8 of Part IX
ss. 195AZH–195AZO....................ad. No. 159, 2000
Subdivision B
Subdiv. B of Div. 8 of ad. No. 120, 2004
Part IX ...........................................
ss. 195AZP–195AZR ....................ad. No. 120, 2004
Part X
s. 195A ..........................................ad. No. 154, 1980
am. No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by No. 107,
1993); No. 104, 1998; No. 158, 2006
s. 195B ..........................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 107, 1993
am. No. 149, 1994; No. 104, 1998; No. 158, 2006; No. 94, 2010; No. 35,
2012
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
653
....
.....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
ss. 197, 198................................ am. No. 141, 1994
s. 198A ..........................................ad. No. 34, 2003
am. No. 34, 2003
s. 199 .............................................am. No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 78, 1986; No. 146,
1988; No. 180, 1991; No. 141, 1994; No. 104, 1998; No. 110, 2000;
No. 45, 2005
s. 200 .............................................am. No. 154, 1980; No. 32, 1989 (as am. by No. 107, 1993)
s. 200AAA................................ ad. No. 158, 2006
am. No. 8, 2010
Heading to s. 200AA .....................am. No. 104, 1998
s. 200AA .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 104, 1998
s. 200AB........................................ad. No. 158, 2006
s. 200A ..........................................ad. No. 78, 1986
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 201 .............................................am. No. 216, 1973; No. 154, 1980; No. 141, 1994
Heading to s. 202...........................am. No. 158, 2006
s. 202 .............................................am. No. 216, 1973; No. 141, 1994; No. 104, 1998
s. 202A ..........................................ad. No. 158, 2006
s. 203A ..........................................ad. No. 154, 1980
am. No. 91, 1983; No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by
No. 107, 1993)
rs. No. 158, 2006
ss. 203B, 203C ..............................ad. No. 154, 1980
am. No. 165, 1984; No. 78, 1986
rep. No. 32, 1989 (as am. by No. 107, 1993)
s. 203D ..........................................ad. No. 154, 1980
am. No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by No. 107,
1993)
rs. No. 158, 2006
s. 203E...........................................ad. No. 154, 1980
654 Copyright Act 1968
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....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
am. No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by No. 107,
1993); No. 141, 1994; No. 24, 2001; No. 158, 2006
s. 203F...........................................ad. No. 154, 1980
am. No. 91, 1983; No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by
No. 107, 1993); No. 24, 2001
rs. No. 158, 2006
s. 203G ..........................................ad. No. 154, 1980
am. No. 165, 1984; No. 78, 1986
rep. No. 32, 1989 (as am. by No. 107, 1993)
ad. No. 110, 2000
rs. No. 158, 2006
s. 203H ..........................................ad. No. 154, 1980
am. No. 165, 1984; No. 78, 1986; No. 32, 1989 (as am. by No. 107,
1993); No. 110, 2000; No. 158, 2006
Part XI
Division 1
s. 204 .............................................am. No. 154, 1980
s. 206 .............................................am. No. 216, 1973; No. 61, 1981
s. 208 .............................................am. No. 120, 2004
s. 209 .............................................am. No. 154, 1980
Division 2
s. 210 .............................................am. No. 154, 1980
s. 211 .............................................am. No. 154, 1980; No. 141, 1994
s. 212 .............................................am. No. 154, 1980
rep. No. 120, 2004
s. 213 .............................................am. No. 154, 1980; No. 141, 1994
ss. 214–216................................ am. No. 154, 1980
s. 217 .............................................am. No. 216, 1973; No. 154, 1980
s. 219 .............................................am. No. 154, 1980; No. 141, 1994
Division 3
s. 220 .............................................am. No. 154, 1980; No. 120, 2004
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
655
....
....
....
....
....
Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
ss. 221–225................................ am. No. 154, 1980
Division 4
ss. 226, 227................................ am. No. 154, 1980
s. 229 .............................................am. No. 154, 1980
ss. 232–237................................ am. No. 154, 1980
s. 238 .............................................am. No. 154, 1980
rep. No. 159, 2000
s. 239 .............................................am. No. 154, 1980; No. 141, 1994
ss. 240, 241................................ am. No. 154, 1980
Division 5
ss. 244, 245................................ am. No. 154, 1980
s. 246 .............................................am. No. 110, 2000
s. 248 .............................................am. No. 154, 1980; No. 141, 1994
Part XIA
Part XIA .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 1
s. 248A ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 149, 1994; No. 104, 1998; No. 110, 2000 (as am. by No. 63,
2002); No. 120, 2004; No. 158, 2006; No. 21, 2007
s. 248B ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 120, 2004
s. 248C ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 120, 2004; No. 158, 2006
s. 248CA........................................ad. No. 149, 1994
am. No. 158, 2006
s. 248D ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 120, 2004
s. 248E...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rep. No. 110, 2000
s. 248F...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 149, 1994; No. 158, 2006
656 Copyright Act 1968
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Division 2
s. 248G ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 149, 1994; No. 110, 2000; No. 120, 2004
Note to s. 248G(1) ........................ad. No. 120, 2004
s. 248H ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 113, 2008
s. 248J............................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 120, 2004
ss. 248K–248M .............................ad. No. 32, 1989 (as am. by No. 107, 1993)
Heading to s. 248MA ....................rs. No. 13, 2013
s. 248MA.......................................ad. No. 34, 2003
am. No. 13, 2013
s. 248N ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 3
Subdivision A
Subdiv. A of Div. 3 of ...................ad. No. 158, 2006
Part XIA
s. 248P...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 105, 1998; No. 110, 2000; No. 120, 2004
rs. No. 158, 2006
Notes 1, 2 to s. 248P(8) ................ad. No. 120, 2004
rep. No. 158, 2006
ss. 248PA–248PM .........................ad. No. 158, 2006
Subdivision B
Subdiv. B of Div. 3 of ...................ad. No. 158, 2006
Part XIA
s. 248Q ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 149, 1994; No. 105, 1998
rep. No. 158, 2006
s. 248QA .......................................ad. No. 149, 1994
am. No. 105, 1998
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Endnotes
Endnote 2—Amendment history
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
rs. No. 158, 2006
s. 248QB........................................ad. No. 149, 1994
rs. No. 105, 1998; No. 158, 2006
ss. 248QC–248QH.........................ad. No. 158, 2006
Subdivision C
Subdiv. C of Div. 3 of ...................ad. No. 158, 2006
Part XIA
s. 248R ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 149, 1994
rep. No. 105, 1998
ad. No. 158, 2006
s. 248S...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
rs. No. 158, 2006
s. 248SA ........................................ad. No. 158, 2006
Subdivision D
Heading to Subdiv. D of ................ad. No. 158, 2006
Div. 3 of Part XIA
s. 248T...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)
Division 4
ss. 248U, 248V..............................ad. No. 32, 1989 (as am. by No. 107, 1993)
am. No. 120, 2004
Part XII
Subhead. to s. 249(1) ....................ad. No. 158, 2006
s. 249 .............................................am. No. 154, 1980; No. 158, 2006
658 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
Endnote 3—Application, saving and transitional provisions
This endnote sets out application, saving and transitional provisions for
amendments of the Copyright Act 1968.
For application, saving and transitional provisions made by the Australian
Communications and Media Authority (Consequential and Transitional
Provisions) Act 2005, see Act No. 45, 2005.
Application, saving and transitional provisions prior to 30 July 1998 is not
incorporated in this endnote.
Copyright Amendment Act (No. 1) 1998 (No. 104, 1998)
Schedule 1
4 Application
The amendments made by this Schedule apply only in relation to works
made after the commencement of this Schedule.
Note: Subsection 22(1) of the Copyright Act 1968 specifies when a work is made.
Schedule 3
4 Application
The amendments made by items 1, 2 and 3 do not apply to an action for
conversion or detention brought before the commencement of this
Schedule.
Schedule 4
6 Application
(1) If:
(a) a government copy was made before the first declaration of a
collecting society in relation to a government copy of the
same kind was made under section 153F of the Copyright Act
1968; and
(b) apart from this item, the owner of the relevant copyright
would have been entitled to the benefit of terms agreed on, or
fixed, under subsection 183(5) of that Act; and
Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
(c) any payment due under terms referred to in paragraph (b) has
not been made;
section 183A has effect as if:
(d) section 153F of the Copyright Act 1968 and Division 2 of
Part VII of that Act had been in force when the copy was
made; and
(e) the company the subject of the first declaration under
section 153F of that Act in relation to a government copy of
the same kind had been the relevant collecting society in
relation to the copy when the copy was made; and
(f) the company had not ceased operating as a collecting society
when the copy was made.
(2) Section 183A has effect in accordance with subsection (1) whether or
not the company referred to in paragraph (1)(e) was the agent of the
owner of the copyright involved.
Schedule 9
8 Saving
If, immediately before the commencement of this Schedule, a
declaration under paragraph 10A(1)(b) of the Copyright Act 1968 was
in force, that Act has effect, in relation to the declaration and the
institution to which the declaration relates, as if this Act had not been
enacted.
Schedule 10
51 Saving
Copyright that subsisted in a television broadcast or a sound broadcast
made before the commencement of this Schedule continues to subsist
for the period for which that copyright would have subsisted if the
amendments made by this Schedule had not been made, and the person
who was the owner of that copyright immediately before that
commencement continues to be the owner for that period.
660 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
Copyright Amendment Act (No. 2) 1998 (No. 105, 1998)
Schedule 1
9 Application
The amendments made by this Schedule apply in relation to copies of
sound recordings imported into Australia after the commencement of
this Act.
Copyright Amendment (Digital Agenda) Act 2000 (No. 110, 2000)
Schedule 2
1 Definitions
In this Schedule:
broadcasting right, in relation to a work or other subject-matter, means
the exclusive right under the Copyright Act to broadcast the work or
other subject-matter.
cable transmission right, in relation to a work or other subject-matter,
means the exclusive right under the Copyright Act to cause the work or
other subject-matter, or a television program that includes it, to be
transmitted to subscribers to a diffusion service.
commencing day means the day on which this Act commences.
Copyright Act means the Copyright Act 1968, as in force immediately
before the commencing day.
2 Application of communication right
Subject to this Schedule, on and after the commencing day:
(a) the exclusive right to communicate a work or other
subject-matter to the public under the Copyright Act as
amended by this Act applies in relation to all works and other
subject-matter (other than published editions of works) in
which copyright subsisted immediately before the
commencing day; and
Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
(b) the Copyright Act as so amended applies to all such works
and other subject-matter in the same way as it applies in
relation to an original work or other subject-matter made on
or after that day.
3 Assignments and licences
A licence, contract or arrangement (including an assignment of
copyright) that was in force immediately before the commencing day
continues to have effect on and after that day in so far as it relates to the
broadcasting right or cable transmission right in a work or other
subject-matter, but subject to any contrary intention, as if the Copyright
Act had not been amended by this Act, and the Copyright Act applies in
relation to the licence, contract or arrangement accordingly.
Copyright Amendment (Moral Rights) Act 2000 (No. 159, 2000)
Schedule 1
3 Application
Part IX of the Copyright Act 1968 as in force immediately before the
commencement of this Schedule continues to apply, subject to
section 238 of that Act as in force immediately before that
commencement, in relation to acts done in respect of a literary,
dramatic, musical or artistic work before that commencement.
Law and Justice Legislation Amendment (Application of Criminal Code)
Act 2001 (No. 24, 2001)
4 Application of amendments
(1) Subject to subsection (3), each amendment made by this Act
applies to acts and omissions that take place after the amendment
commences.
(2) For the purposes of this section, if an act or omission is alleged to
have taken place between 2 dates, one before and one on or after
the day on which a particular amendment commences, the act or
omission is alleged to have taken place before the amendment
commences.
662 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
Copyright Amendment (Parallel Importation) Act 2003 (No. 34, 2003)
Schedule 1
20 Application
The amendments made by this Schedule apply in relation to the
following:
(a) works, or published editions of works, published before or
after the commencement of this Schedule;
(b) copies of computer programs imported into Australia after
the commencement of this Schedule (regardless of whether
they were made before or after the commencement of this
Schedule);
(c) copies of electronic literary or music items imported into
Australia after the commencement of this Schedule
(regardless of whether they were made before or after the
commencement of this Schedule).
Schedule 3
9 Application
The amendments made by items 4 and 6 of this Schedule apply in
relation to copies of sound recordings imported into Australia after the
commencement of this item (regardless of whether they were made
before or after the commencement of this item).
Schedule 4
14 Application
(1) The amendments made by items 1, 2, 3, 4 and 5 apply to actions
brought after the commencement of those items.
(2) The amendments made by items 6, 11, 12 and 13 apply in relation to
matters or actions instituted after the commencement of those items.
(3) The amendment made by item 7 applies to acts and omissions that take
place after the commencement of that item.
Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
(4) The amendment made by item 8 applies to prosecutions brought after
the commencement of that item.
(5) The amendments made by items 9 and 10 apply in relation to
publications after the commencement of those items.
15 Review of operation of this Schedule
(1) The Minister must cause a review of the operation of the amendments
made by this Schedule to be carried out as soon as practicable after the
fourth anniversary of the commencement of this Schedule.
(2) The Minister must cause a copy of the report of the review to be laid
before each House of the Parliament within 15 sitting days of that
House after the report is completed.
Designs (Consequential Amendments) Act 2003 (No. 148, 2003)
Schedule 1
15 Application of amendments of section 74—definition of corresponding design
The amendments of section 74 of the Copyright Act 1968 made by
items 2 and 3 of this Schedule apply as follows:
(a) for the purposes of section 75 of the Copyright Act 1968—in
the same circumstances as the amendment made by item 4 of
this Schedule applies;
(b) for the purposes of section 76 of the Copyright Act 1968—in
the same circumstances as the amendment made by item 4A
of this Schedule applies;
(c) for the purposes of section 77 of the Copyright Act 1968—in
the same circumstances as the amendments of section 77
made by items 5 to 13 of this Schedule apply;
(d) for the purposes of section 77A of the Copyright Act 1968—
in the same circumstances as that section applies.
16 Application of amendment of section 75
The amendment made by item 4 of this Schedule applies to
reproductions that are made on or after the commencing day.
664 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
17 Application of amendment of section 76
(1) Section 76 of the Copyright Act 1968 as amended by item 4A of this
Schedule applies in relation to proceedings brought under that Act on or
after the commencing day, where the corresponding design has been
registered under the Designs Act 2003.
(2) When determining whether a design has been registered under the
Designs Act 2003 for the purposes of subitem (1), ignore section 151 of
that Act.
18 Application of amendments of section 77
Amendments made by item 5
(1) Paragraph 77(1)(b) of the Copyright Act 1968 as amended by item 5 of
this Schedule applies to articles and products to which a corresponding
design has been applied industrially that are sold, let for hire or offered
or exposed for sale or hire on or after the commencing day. However,
this subitem does not affect the operation of paragraph 77(1)(b) of the
Copyright Act 1968 as in force immediately before the commencing
day.
(2) Paragraph 77(1)(c) of the Copyright Act 1968 as amended by item 5 of
this Schedule applies to products to which a corresponding design has
been applied industrially that are sold, let for hire or offered or exposed
for sale or hire on or after the commencing day.
Amendments made by items 6 to 13
(3) The amendments made by items 6 to 13 of this Schedule apply to:
(a) products to which a corresponding design has been applied
industrially that are sold, let for hire or offered or exposed for
sale or hire on or after the commencing day; and
(b) complete specifications or representations that are first
published in Australia on or after the commencing day.
19 Application of section 77A
Section 77A of the Copyright Act 1968 applies to reproductions that are
made on or after the commencing day.
Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
20 Definition
In this Part:
commencing day means the day on which this item commences.
US Free Trade Agreement Implementation Act 2004 (No. 120, 2004)
Schedule 9
15 Application
The amendments made by items 1 to 7, 9 and 10 of this Part apply to a
sound recording made on or after the day on which this item
commences.
Note: The amendments made by the other items of this Part apply to a sound recording of a live performance in which copyright subsists on the day on which this item commences.
84 Application
The amendments made by this Part apply to acts done, in respect of a
performance, within the protection period of the performance after the
day on which this item commences (even if the performance was given
before that day).
106 Application
The amendments made by this Part apply in respect of copies of
broadcasts, or communications of broadcasts, made after the day on
which this item commences (even if the performance concerned was
given before that day).
117 Application
The amendments made by this Part apply to copyright in photographs
that subsists on or after the day on which this item commences.
118 Compensation scheme for certain agreements made before Royal Assent
Application of item
(1) This item applies if:
(a) the copyright in a photograph is owned by a person (the
owner); and
666 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
(b) before the day on which this Act receives the Royal Assent,
another person made a written and lawful agreement with a
third party; and
(c) the agreement was entered into for the purposes of doing an
act at a particular time that would, apart from this item,
infringe the copyright; and
(ca) that time is no later than 2 years from the US FTA
commencement day; and
(d) the agreement was made in reliance on the copyright having
ceased to subsist before that time; and
(e) because of the amendments made by this Part the copyright
continues to subsist past that time.
Owner may notify person that owner objects to person doing the act
(2) Before the person does the act, the owner of the copyright may notify
the person in writing that the owner objects to the person doing the act.
Owner may provide reasonable compensation to person
(3) If the owner does so, then the owner and the person may agree on:
(a) an amount of reasonable compensation that the owner is to
provide to the person; and
(b) the day by which the owner is to provide the compensation.
(4) If the owner and the person cannot agree, either of them may apply to
the Copyright Tribunal for the Tribunal to determine:
(a) an amount of reasonable compensation that the owner is to
provide to the person; and
(b) the day by which the owner is to provide the compensation.
(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:
(a) costs incurred by the person for the purposes of doing the act
mentioned in paragraph (1)(c); and
(b) costs incurred, or that may be incurred, by the person as a
result of not being able to do that act.
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
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Endnotes
Endnote 3—Application, saving and transitional provisions
(5) When the Copyright Tribunal has determined an amount of reasonable
compensation, the owner is liable to pay that amount to the person by
the day determined by the Tribunal. The person may recover that
amount in a court of competent jurisdiction from the owner as a debt
due to the person.
Person may do act if not notified by owner or if not paid reasonable compensation
(6) If the owner does not notify the person, or pay an amount of reasonable
compensation to the person, in accordance with this item, then:
(a) the person may do the act mentioned in paragraph (1)(c) at
any time after the copyright would, apart from the
amendments made by this Part, have ceased to subsist and
before the end of 2 years from the US FTA commencement
day; and
(b) for the purposes of the Copyright Act 1968:
(i) the owner is not entitled to bring an action under that
Act against the person in respect of the act; and
(ii) the person does not contravene a section of, or commit
an offence under, that Act by doing the act.
(7) To avoid doubt, subitem (6) is an exception that a defendant may rely
on for the purposes of section 13.3 of the Criminal Code.
Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).
(8) In this item:
owner, in relation to the copyright in a photograph at a particular time
in respect of a particular act, includes an exclusive licensee of the
copyright in the photograph at that time in respect of that act.
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.
119 Applications to Copyright Tribunal for determination of reasonable compensation payable
(1) This item applies if an application is made to the Copyright Tribunal
under item 118 of this Schedule for the determination of an amount of
668 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
reasonable compensation to be paid by the owner of the copyright in a
photograph to a person mentioned in paragraph 118(1)(b).
(2) The parties to the application are:
(a) the owner of the copyright; and
(b) the person mentioned in that paragraph.
(3) The Tribunal must consider the application and, after giving to the
parties an opportunity of presenting their cases, must make an order
determining an amount of reasonable compensation.
Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 118(4A) of this Schedule.
(4) In this item:
owner, in relation to the copyright in a photograph at a particular time
in respect of a particular act, includes an exclusive licensee of the
copyright in the photograph at that time in respect of that act.
131 Application
The amendments made by this Part apply to copyright in works and
other subject-matter that subsists on or after the day on which this item
commences.
132 Compensation scheme for certain agreements made before Royal Assent
Application of item
(1) This item applies if:
(a) the copyright in a work or other subject-matter is owned by a
person (the owner); and
(b) before the day on which this Act receives the Royal Assent,
another person made a written and lawful agreement with a
third party; and
(c) the agreement was entered into for the purposes of doing an
act at a particular time that would, apart from this item,
infringe the copyright; and
(ca) that time is no later than 2 years from the US FTA
commencement day; and
Copyright Act 1968
ComLaw Authoritative Act C2013C00145
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Endnotes
Endnote 3—Application, saving and transitional provisions
(d) the agreement was made in reliance on the copyright having
ceased to subsist before that time; and
(e) because of the amendments made by this Part the copyright
continues to subsist past that time.
Owner may notify person that owner objects to person doing the act
(2) Before the person does the act, the owner of the copyright may notify
the person in writing that the owner objects to the person doing the act.
Owner may provide reasonable compensation to person
(3) If the owner does so, then the owner and the person may agree on:
(a) an amount of reasonable compensation that the owner is to
provide to the person; and
(b) the day by which the owner is to provide the compensation.
(4) If the owner and the person cannot agree, either of them may apply to
the Copyright Tribunal for the Tribunal to determine:
(a) an amount of reasonable compensation that the owner is to
provide to the person; and
(b) the day by which the owner is to provide the compensation.
(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:
(a) costs incurred by the person for the purposes of doing the act
mentioned in paragraph (1)(c); and
(b) costs incurred, or that may be incurred, by the person as a
result of not being able to do that act.
(5) When the Copyright Tribunal has determined an amount of reasonable
compensation, the owner is liable to pay that amount to the person by
the day determined by the Tribunal. The person may recover that
amount in a court of competent jurisdiction from the owner as a debt
due to the person.
670 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
Person may do act if not notified by owner or if not paid reasonable compensation
(6) If the owner does not notify the person, or pay an amount of reasonable
compensation to the person, in accordance with this item, then:
(a) the person may do the act mentioned in paragraph (1)(c) at
any time after the copyright would, apart from the
amendments made by this Part, have ceased to subsist and
before the end of 2 years from the US FTA commencement
day; and
(b) for the purposes of the Copyright Act 1968:
(i) the owner is not entitled to bring an action under that
Act against the person in respect of the act; and
(ii) the person does not contravene a section of, or commit
an offence under, that Act by doing the act.
(7) To avoid doubt, subitem (6) is an exception that a defendant may rely
on for the purposes of section 13.3 of the Criminal Code.
Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).
(8) In this item:
owner, in relation to the copyright in a work or other subject-matter at a
particular time in respect of a particular act, includes an exclusive
licensee of the copyright in the work or subject-matter at that time in
respect of that act.
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.
133 Applications to Copyright Tribunal for determination of reasonable compensation payable
(1) This item applies if an application is made to the Copyright Tribunal
under item 132 of this Schedule for the determination of an amount of
reasonable compensation to be paid by the owner of the copyright in a
work or other subject-matter to a person mentioned in
paragraph 132(1)(b).
(2) The parties to the application are:
Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
(a) the owner of the copyright; and
(b) the person mentioned in that paragraph.
(3) The Tribunal must consider the application and, after giving to the
parties an opportunity of presenting their cases, must make an order
determining an amount of reasonable compensation.
Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 132(4A) of this Schedule.
(4) In this item:
owner, in relation to the copyright in a work or other subject-matter at a
particular time in respect of a particular act, includes an exclusive
licensee of the copyright in the work or subject-matter at that time in
respect of that act.
145 Application
The amendments made by this Part apply in respect of acts done after
the day on which this item commences.
160 Application
The amendments made by this Part apply in respect of acts done after
the day on which this item commences.
185 Application
The amendments made by this Part apply in respect of encoded
broadcasts made after the day on which this item commences.
190 Application
The amendments made by this Part apply in respect of acts done after
the day on which this item commences.
Copyright Legislation Amendment Act 2004 (No. 154, 2004)
Schedule 1
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.
672 Copyright Act 1968
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Endnotes
Endnote 3—Application, saving and transitional provisions
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.
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.
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.
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.
Copyright Amendment (Film Directors’ Rights) Act 2005 (No. 130, 2005)
4 Application of amendment
(1) The amendment made by Schedule 1 applies to films that
commence to be made after the commencement of that Schedule.
(2) However, the amendment has no effect to the extent to which the
rights created by the amendment would be inconsistent with the
rights arising under a contract entered into before the
commencement of the amendment.
Statute Law Revision Act 2006 (No. 9, 2006)
Schedule 1
9 Saving provision for item 8
The amendment made by item 8 of this Schedule does not affect the
validity of any requirements that:
(a) were prescribed for the purposes of paragraph (a)(i)
(first-occurring) of the definition of industry code in
section 116AB of the Copyright Act 1968; and
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Endnotes
Endnote 3—Application, saving and transitional provisions
(b) were in force immediately before the commencement of
item 8 of this Schedule.
Copyright Amendment Act 2006 (No. 158, 2006)
Schedule 1
9 Application of amendments of Division 5 of Part V
The amendments of Division 5 of Part V of the Copyright Act 1968 by
this Part apply to things occurring after the commencement of this Part.
12 Saving
(1) Despite the amendment of paragraph 136(2)(d) of the Copyright Act
1968 by this Part, that paragraph, as in force before the amendment,
applies after that amendment to proceedings brought in respect of an
alleged contravention of subsection 132(5) or (5AA) of that Act as in
force before that amendment.
(2) That paragraph applies in that way whether the proceedings were started
before or after that amendment.
14 Application of new sections 172 and 173
Sections 172 and 173 of the Copyright Act 1968, as amended by this
Part, apply to acts (including refusals) occurring after the
commencement of this Part and failures first occurring after the
commencement of this Part.
16 Transitional provision—regulations for subsection 195A(2)
(1) This item applies to a regulation that:
(a) was made for the purposes of subsection 195A(2) of the
Copyright Act 1968; and
(b) was in force immediately before the repeal of that subsection.
(2) On and after the commencement of this Part, the regulation has effect
for the purposes of subsection 203A(1) and section 203G (so far as they
relate to a declaration made for the purposes of section 49, 50, 51A or
110B) of the Copyright Act 1968, as amended by this Part, as if the
period prescribed by the regulation were prescribed for those purposes.
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Endnotes
Endnote 3—Application, saving and transitional provisions
(3) This item does not prevent the amendment or repeal of the regulation.
(4) This item has effect despite the repeal of subsection 195A(2) of the
Copyright Act 1968 by this Part.
18 Application of new sections 203A and 203D
Sections 203A and 203D of the Copyright Act 1968, as amended by this
Part, apply to persons who are:
(a) ultimately responsible for administering libraries or archives;
or
(b) officers in charge of libraries or archives;
on or after the commencement of this Part.
22 Application of new subsections 203E(10) and (11)
The repeal and substitution of subsections 203E(10) and (11) of the
Copyright Act 1968 by this Part apply to the recording, divulgement or
communication of information by the defendant after the
commencement of this Part (whether the information was acquired by
the defendant before, on or after the commencement of this Part).
24 Application of new sections 203F and 203G
Sections 203F and 203G of the Copyright Act 1968, as amended by this
Part, apply to acts done after the commencement of this Part.
26 Application of new subsection 203H(4)
The repeal and substitution of subsection 203H(4) of the Copyright Act
1968 by this Part apply to acts done after the commencement of this
Part.
Schedule 2
15 Application
The amendments made by this Schedule apply in relation to legal
proceedings (whether civil or criminal) started after the commencement
of this Schedule.
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Endnotes
Endnote 3—Application, saving and transitional provisions
Schedule 3
20 Application
The amendments made by this Schedule apply to acts done after the
commencement of this Schedule.
Schedule 4
2 Application
The amendment made by this Schedule applies to actions started after
the commencement of this Schedule.
Schedule 5
2 Application
The amendment of section 135 of the Copyright Act 1968 by this
Schedule applies in relation to notices given under that section after the
commencement of this Schedule.
6 Transitional provision
(1) This item applies if:
(a) before the commencement of this item, a notice under
section 135 of the unamended Copyright Act was in force in
relation to goods; and
(b) before the commencement of this item, a deposit or security
described in section 135AA of that Act was made or given to
be applied towards the expenses of the Commonwealth
incurred in relation to the goods under Division 7 of Part V
of that Act; and
(c) after the commencement of this item, the CEO has been
given a written undertaking described in
subsection 135AA(1) of the amended Copyright Act to repay
those expenses to the Commonwealth; and
(d) the undertaking is in force.
(2) On application in writing to the CEO by the objector or objectors
concerned, the CEO must:
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Endnote 3—Application, saving and transitional provisions
(a) if none of the deposit or security has been applied towards
the expenses mentioned in paragraph (1)(b)—return the sum
deposited or security to the person who gave it; or
(b) otherwise—refund the amount of the balance of the deposit
or security to the person who gave it.
(3) In this item:
amended Copyright Act means the Copyright Act 1968 as in force
immediately after the commencement of this item.
CEO means the Chief Executive Officer of Customs.
unamended Copyright Act means the Copyright Act 1968 as in force
immediately before the commencement of this item.
Schedule 6
9AA Review of new sections 47J and 110AA
(1) The Minister must cause to be carried out by the end of 31 March 2008
a review of the operation of sections 47J and 110AA of the Copyright
Act 1968.
(2) The Minister must cause a copy of the report of the review to be laid
before each House of the Parliament within 15 sitting days of that
House after the report is completed.
Schedule 9
2 Application
Part VAA of the Copyright Act 1968 as amended by this Schedule
applies to acts done on or after the commencement of this Schedule.
Schedule 10
5 Saving
(1) The declaration of the collecting society for Part VA of the Copyright
Act 1968 in force just before the commencement of this Part continues
to have effect on and after that commencement despite the repeal of
subsection 135P(1) of that Act by this Part.
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Endnotes
Endnote 3—Application, saving and transitional provisions
(2) Subitem (1) does not prevent revocation of the declaration after that
commencement.
20 Saving
(1) The declaration of a collecting society for Part VB of the Copyright Act
1968 in force just before the commencement of this Part continues to
have effect on and after that commencement despite the repeal of
subsection 135ZZB(1) of that Act by this Part.
(2) Subitem (1) does not prevent revocation of the declaration after that
commencement.
30 Saving
(1) A declaration of a collecting society for Part VC of the Copyright Act
1968 in force just before the commencement of this Part continues to
have effect on and after that commencement despite the repeal of
subsection 135ZZT(1) of that Act by this Part.
(2) Subitem (1) does not prevent revocation of the declaration after that
commencement.
55 Saving
The repeal and substitution of subsection 167(2) of the Copyright Act
1968 by this Part does not affect a summons issued under that
subsection before the commencement of this Part.
58 Transitional provision
The person who was the Secretary to the Tribunal immediately before
the commencement of this Part, is taken to have been appointed on that
commencement as the Registrar under section 170 of the Copyright Act
1968 as amended by this Part.
61 Saving
The amendment of subsection 174(2A) of the Copyright Act 1968 by
this Part does not affect the evidentiary value, in proceedings after the
commencement of the amendment, of a certificate described in that
subsection that was signed before the commencement of the
amendment.
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Endnote 3—Application, saving and transitional provisions
63 Saving
The amendment of section 175 of the Copyright Act 1968 by this Part
does not affect the evidentiary value, in proceedings after that
commencement, of a document described in that section that was
certified before the commencement of the amendment.
Schedule 11
3 Application and transitional provisions
(1) The amendments made by this Division apply in relation to licences
granted before, on or after the commencement of the amendments and
in relation to licence schemes formulated before, on or after that
commencement.
(2) However, if proceedings in the Tribunal under section 154, 155, 156 or
157 of the Copyright Act 1968 had been started but not completed
before the commencement of the amendments made by this Division,
the proceedings may be continued after that commencement as if the
amendments had not been made.
37 Application
Subparagraph 55(1)(d)(ii) of the Copyright Act 1968 as amended by this
Part applies to an agreement about the manner of payment of a
prescribed royalty whether the agreement was made before, on or after
the commencement of this Part.
40 Application
(1) The amendment of section 135K of the Copyright Act 1968 made by
this Part applies in relation to a records notice given on or after the
commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or
on behalf of an administering body before that commencement, if the
body and the collecting society make an agreement determining a
matter described in subsection 135K(2A) of the Copyright Act 1968. In
that case, the amendment applies at and after the time the agreement
comes into force.
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Endnotes
Endnote 3—Application, saving and transitional provisions
Note: While the amendment does not apply, section 135K of the Copyright Act 1968, as in force before the commencement of the amendment, applies.
(3) In this item:
administering body has the meaning given by section 135A of the
Copyright Act 1968.
collecting society has the meaning given by section 135A of the
Copyright Act 1968.
records notice has the meaning given by section 135A of the Copyright
Act 1968.
42 Application
(1) The amendment of section 135ZX of the Copyright Act 1968 made by
this Part applies in relation to a records notice given on or after the
commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or
on behalf of an administering body before that commencement, if the
body and the relevant collecting society make an agreement
determining a matter described in subsection 135ZX(2A) of the
Copyright Act 1968. In that case, the amendment applies at and after the
time the agreement comes into force.
Note: While the amendment does not apply, section 135ZX of the Copyright Act 1968, as in force before the commencement of the amendment, applies.
(3) In this item:
administering body has the meaning given by section 135ZB of the
Copyright Act 1968.
records notice has the meaning given by section 135ZB of the
Copyright Act 1968.
relevant collecting society has the meaning given by section 135ZB of
the Copyright Act 1968.
57 Application
Division 4A of Part VI of the Copyright Act 1968 applies in relation to
applications and references made to the Copyright Tribunal on or after
the commencement of the Division.
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Endnotes
Endnote 3—Application, saving and transitional provisions
Schedule 12
16 Application of amendments
The amendments made by this Part apply to acts done on or after the
commencement of this Part.
Therapeutic Goods Legislation Amendment (Copyright) Act 2011 (No. 39,
2011)
Schedule 1
2 Application
Subsections 44BA(1), (2) and (3) of the Copyright Act 1968, as inserted
by this Act, apply in relation to acts done on or after the day on which
this item commences (regardless of whether the product information
referred to in subsection 44BA(1) or (2) of that Act was approved
before, on or after that day).
3 Compensation for acquisition of property
(1) If the operation of this Schedule would result in an acquisition of
property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to
the person.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in a court of
competent jurisdiction for the recovery from the Commonwealth of
such reasonable amount of compensation as the court determines.
(3) In this item:
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.
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Endnotes
Endnote 3—Application, saving and transitional provisions
Acts Interpretation Amendment Act 2011 (No. 46, 2011)
Schedule 3
10 Saving—appointments
The amendments made by Schedule 2 do not affect the validity of an
appointment that was made under an Act before the commencement of
this item and that was in force immediately before that commencement.
11 Transitional regulations
The Governor-General may make regulations prescribing matters of a
transitional nature (including prescribing any saving or application
provisions) relating to the amendments and repeals made by
Schedules 1 and 2.
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Endnotes
Endnote 4—Uncommenced amendments
Endnote 4—Uncommenced amendments
This endnote sets out amendments of the Copyright Act 1968 that have not yet
commenced.
There are no uncommenced amendments.
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Endnotes
Endnote 5—Misdescribed amendments
Endnote 5—Misdescribed amendments
This endnote sets out amendments of the Copyright Act 1968 that have been
misdescribed.
There are no misdescribed amendments.
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Endnotes
Endnote 6—Modifications
Endnote 6—Modifications
This endnote sets out modifications of the Copyright Act 1968.
A.C.T. Self-Government (Consequential Provisions) Regulations (1989
No. 3)
Schedule 1
Subsection 10(1) (definition of the Crown):
Before ―the Northern Territory‖ (first occurring) insert ―the Australian
Capital Territory and‖.
Paragraph 10(3)(e):
Before ―the Northern Territory‖ insert ―the Australian Capital Territory
and‖.
Paragraph 10(3)(n):
(a) Before ―the Northern Territory‖ (first occurring) insert ―the
Australian Capital Territory and‖;
(b) Before ―the Northern Territory‖ (second occurring) insert ―the
Australian Capital Territory or‖.
Subsection 183(11):
Omit ―State or‖ (twice occurring), substitute ―State, the Australian
Capital Territory or‖.
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