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Schedule 1 Amendments

5 Subsection 111B(1)

Omit “the reproduction”, substitute “the temporary copy”.

6 Subsection 111B(1)

Omit “made as part”, substitute “made as a necessary part”.

7 Subsection 111B(2)

Repeal the subsection, substitute:

(2)

Subsection (1) does not apply to:

(a)

the making of a temporary copy of a subject-matter if the temporary copy is made from:

(i)

an infringing copy of the subject-matter; or

(ii)

a copy of the subject-matter where the copy is made in another country and would be an infringing copy of the subject-matter if the person who made the copy had done so in Australia; or

(b)

the making of a temporary copy of a subject-matter as a necessary part of a technical process of using a copy of the subject-matter if that use constitutes an infringement of the copyright in the subject-matter.

(3)

Subsection (1) does not apply to any subsequent use of a temporary copy of a subject-matter other than as a part of the technical process in which the temporary copy was made.

8 Application of items 1 to 7

The amendments made by items 1 to 7 apply in respect of acts done after the day on which this item commences.

9 Section 116AB (definition of financial benefit)

Repeal the definition.

10 Subsection 116AH(1) (table item 4, condition 1)

Omit “A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.”.

11 Subsection 116AH(1) (table item 4, after condition 2)

Insert: 2A. The carriage service provider must act expeditiously to remove or disable access to copyright material residing on its system or network if the carriage service provider:

(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).

12 Subsection 116AH(1) (table item 5, condition 1)

Omit “A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.”.

13 Subsection 116AH(1) (table item 5, after condition 2)

Insert: 2A. The carriage service provider must act expeditiously to remove or disable access to a reference residing on its system or network if the carriage service provider:

(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).

14 At the end of section 116AH

Add:

(3) In deciding, for the purposes of condition 1 in table items 4 and 5 in the table in subsection (1), whether a financial benefit is otherwise directly attributable to the infringing activity referred to in that condition, a court must have regard to:

Schedule 1 Amendments

(a)

industry practice in relation to the charging of services by carriage service providers, including charging based on level of activity; and

(b)

whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice.

The court may have regard to other matters it considers relevant.

(4) An act done by a carriage service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 in the table in subsection (1) does not constitute a failure to satisfy condition 2A in that item.

15 At the end of section 130

Add:

(3) To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:

(a)

a maker of the recording; or

(b)

an owner of copyright in the recording in the place and at the time mentioned in subsection (2).

16 Application of item 15

The amendment made by item 15 applies in respect of sound recordings embodied wholly or partly in records that are supplied either before or after this item commences.

17 Paragraph 132(1)(a)

After “or hire”, insert “or with the intention of obtaining a commercial advantage or profit”.

18 Paragraphs 132(1)(b) and (c)

Omit “and”, substitute “or”.

19 Subparagraph 132(1)(d)(i)

Omit “and”, substitute “or”.

20 Subparagraph 132(1)(d)(ii)

Omit “and”, substitute “or”.

21 Subparagraph 132(1)(d)(iii)

Omit “and”, substitute “or”.

22 Paragraph 132(2)(a)

Omit “and”, substitute “or”.

23 Paragraph 132(2A)(a)

Omit “and”, substitute “or”.

24 Paragraph 132(2A)(b)

Omit “and”, substitute “or”.

25 Paragraph 132(2A)(c)

Omit “and”, substitute “or”.

26 Subparagraphs 132(5D)(b)(i) and (ii)

Omit “and”, substitute “or”.

27 Subparagraph 132(5DA)(b)(i)

Omit “and”, substitute “or”.

28 Subparagraph 132(5DA)(b)(ii)

Omit “trading and”, substitute “trading or”.

29 Application of items 17 to 28

The amendments made by items 17 to 28 apply in respect of acts done after the day on which this item commences.

30 At the end of section 132B

Add:

(3) To avoid doubt, the acceptance of evidence admitted under this section in respect of a sound recording does not imply that another person was not also:

(a)

a maker of the recording; or

(b)

an owner of copyright in the recording in the place and at the time mentioned in subsection (2).

31 Application of item 30

Schedule 1 Amendments

The amendment made by item 30 applies in respect of sound recordings embodied wholly or partly in records that are supplied either before or after this item commences.

32 Paragraph 135AS(1)(b)

Omit “and”, substitute “or”.

33 Paragraph 135AS(1)(c)

Omit “and”, substitute “or”.

34 Paragraph 135AS(1)(d)

Omit “and”, substitute “or”.

35 Subparagraph 135AS(1)(e)(i)

Omit “and”, substitute “or”.

36 Subparagraph 135AS(1)(e)(ii)

After “for trading”, insert “or”.

37 Subparagraph 135AS(1)(e)(iii)

Omit “and”, substitute “or”.

38 Paragraph 135AS(1A)(d)

Omit “and”, substitute “or”.

39 After subsection 135AS(1B)

Insert:

Offence in relation to use of encoded broadcast that has been

accessed without authorisation

(1C) A person commits an offence if:

(a)

a broadcaster makes an encoded broadcast; and

(b)

a broadcast decoding device is used to gain access to the encoded broadcast; and

(c)

the access is gained without the authorisation of the broadcaster; and

(d)

the person receives the broadcast that has been accessed by the device; and

(e)

the person knows the broadcaster had not authorised the access to the broadcast; and

(f)

the person uses, or authorises the use of, the broadcast by way of trade or with the intention of obtaining a commercial advantage or profit.

Note: See section 135AL for the definition of profit.

40 Subsection 135AS(4)

Omit “or (1B)”, substitute “, (1B) or (1C)”.

41 Application of items 32 to 40

The amendments made by items 32 to 40 apply in respect of encoded broadcasts made after the day on which this item commences.

Omit “for agreements”, substitute “for certain agreements”.

43 After paragraph 118(1)(c) of Schedule 9

Insert: (ca) that time is no later than 2 years from the US FTA commencement day; and

44 Paragraphs 118(3)(a) and (4)(a) of Schedule 9

Omit “compensation that is reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.

45 After subitem 118(4) of Schedule 9

Insert:

(4A) An amount of compensation agreed on or determined under this item or item 119 of this Schedule may only include compensation in respect of:

(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.

46 Subitem 118(6) of Schedule 9

Omit “for agreements”, substitute “for certain agreements”.

53 After paragraph 132(1)(c) of Schedule 9

Insert: (ca) that time is no later than 2 years from the US FTA commencement day; and

54 Paragraphs 132(3)(a) and (4)(a) of Schedule 9

Omit “compensation that is reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.

55 After subitem 132(4) of Schedule 9

Insert:

(4A) An amount of compensation agreed on or determined under this item or item 133 of this Schedule may only include compensation in respect of:

(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.

56 Subitem 132(6) of Schedule 9

Omit “pay reasonable compensation”, substitute “pay an amount of reasonable compensation”.

57 Paragraph 132(6)(a) of Schedule 9

After “ceased to subsist”, insert “and before the end of 2 years from the US FTA commencement day”.

58 Subitem 132(8) of Schedule 9

Insert:

US FTA commencement day means the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.

59 Subitem 133(1) of Schedule 9

Omit “under item 132 for the determination of reasonable compensation”, substitute “under item 132 of this Schedule for the determination of an amount of reasonable compensation”.

60 Subitem 133(3) of Schedule 9

Omit “the amount of compensation that it considers to be reasonable in all of the circumstances”, substitute “an amount of reasonable compensation”.

61 At the end of subitem 133(3) of Schedule 9

Add:

Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 132(4A) of this Schedule.

[Minister’s second reading speech made in— Senate on 30 November 2004 House of Representatives on 9 December 2004]

(204/04)