WIPO Lex

COPYRIGHT AMENDMENT ACT 1989 No. 32, 1989
TABLE OF PROVISIONS
- Section
- PART VA-COPYING OF BROADCASTS BY EDUCATIONAL AND OTHER INSTITUTIONS
- PART VB-COPYING OF WORKS ETC. BY EDUCATIONAL AND OTHER INSTITUTIONS
- PART VC-USE OF BLANK TAPES FOR PRIVATE AND DOMESTIC COPYING
- PART XIA-PERFORMERS' PROTECTION
- SCHEDULE FURTHER AMENDMENTS OF THE COPYRIGHT ACT 1968
COPYRIGHT AMENDMENT ACT 1989 No. 32 of 1989 - LONG TITLE
SECT 1 Short title etc.
SECT 2 Commencement
SECT 3 Long title
SECT 4 Interpretation
SECT 5 Performance
SECT 6 Fair dealing for purpose of research or study
SECT 7
SECT 8 Interpretation
SECT 9 Conditions upon which manufacturer may make records of musical work
SECT 10
SECT 11
SECT 12
SECT 13 Filming or recording broadcasts for private and domestic use
SECT 14
- "PART VA-COPYING OF BROADCASTS BY EDUCATIONAL AND OTHER INSTITUTIONS
SECT 15
- "PART VB-COPYING OF WORKS ETC. BY EDUCATIONAL AND OTHER INSTITUTIONS
SECT 16
- "PART VC-USE OF BLANK TAPES FOR PRIVATE AND DOMESTIC COPYING
SECT 17
SECT 18
SECT 19
SECT 20
SECT 21
SECT 22
SECT 23 Use of works and broadcasts for educational purposes
SECT 24
SECT 25 Application and repeal of section 200A
SECT 26 Retention of declarations in relation to copies made by libraries, archivesor institutions
SECT 27 Inspection of records and declarations retained by libraries, archives orinstitutions
SECT 28
- "PART XIA-PERFORMERS' PROTECTION
SECT 29 Savings
SCHEDULE
- SCHEDULE FURTHER AMENDMENTS OF THE COPYRIGHT ACT 1968

TABLE OF PROVISIONS

Section

1. Short title etc.

2. Commencement

3. Long title

4. Interpretation

5. Performance

6. Fair dealing for purpose of research or study

7. Insertion of new section:

51AA. Copying of works in Australian Archives

8. Interpretation

9. Conditions upon which manufacturer may make records of musical work

10. Repeal of sections 74 and 75 and substitution of new sections:

74. Corresponding design

75. Copyright protection where corresponding design registered

11. Repeal of section 77 and substitution of new section:

77. Application of artistic works as industrial designs without

registration of the designs

12. Insertion of new section:

103C. Fair dealing for purpose of research or study

13. Filming or recording broadcasts for private and domestic use

14. Insertion of new Part:

PART VA-COPYING OF BROADCASTS BY EDUCATIONAL AND OTHER INSTITUTIONS

Division 1-Preliminary

135A. Interpretation

135B. Copies of broadcasts

135C. Student of an institution

135D. Operation of collecting society rules

Division 2-Copying of broadcasts

135E. Copying of broadcasts by educational institutions etc.

135F. Preview copies

135G. Remuneration notices

135H. Records notices

135J. Sampling notices

135K. Marking and record keeping requirements

135L. Inspection of records etc.

135M. Revocation of remuneration notice

135N. Request for payment of equitable remuneration

Division 3-The collecting society

135P. The collecting society

135Q. Revocation of declaration

135R. Annual report and accounts

135S. Amendment of rules

Division 4-Interim copying

135T. Appointment of notice holder

135U. Copying before declaration of collecting society

135V. Preview copies

135W. Notices by administering bodies

135X. Marking and record keeping requirements

135Y. Effect of declaration of collecting society

Division 5-Miscellaneous

135Z. Relevant copyright owner may authorize copying

135ZA. Copyright not to vest in copier

15. Insertion of new Part:

PART VB-COPYING OF WORKS ETC. BY EDUCATIONAL AND OTHER INSTITUTIONS

Division 1-Preliminary

135ZB. Interpretation

135ZC. Eligible items and photographic versions

135ZD. Student of an institution

135ZE. Part does not apply to computer programs

135ZF. Operation of collecting society rules

Division 2-Copying of works by educational institutions

135ZG. Multiple copying of insubstantial portions of works

135ZH. Copying of published editions by educational institutions

135ZJ. Multiple copying of periodical articles by

educational institutions

135ZK. Multiple copying of works published in anthologies

135ZL. Multiple copying of works by educational institutions

135ZM. Application of Division to certain illustrations

Division 3-Copying of works by institutions assisting handicapped

readers

135ZN. Copying of published editions by institutions assisting

handicapped readers

135ZP. Multiple copying of works by institutions assisting

handicapped readers

135ZQ. Making of relevant reproductions by institutions

assisting handicapped readers

Division 4-Copying of works etc. by institutions assisting

intellectually handicapped persons

135ZR. Copying of published editions by institutions

assisting intellectually handicapped persons

135ZS. Copying of eligible items by institutions assisting intellectually handicapped persons

135ZT. Making of copies for use in making intellectually<

handicapped person's copies

Division 5-Equitable remuneration

135ZU. Remuneration notices

135ZV. Records notices

135ZW. Sampling notices

135ZX. Marking and record keeping requirements

135ZY. Inspection of records etc.

135ZZ. Revocation of remuneration notice

135ZZA. Request for payment of equitable remuneration

Division 6-Collecting societies

135ZZB. Collecting societies

135ZZC. Revocation of declaration

135ZZD. Annual report and accounts

135ZZE. Amendment of rules

Division 7-Miscellaneous

135ZZF. Rights of copyright owners

135ZZG. Copyright not to vest in copier

135ZZH. Unauthorized use of copies

16. Insertion of new Part:

PART VC-USE OF BLANK TAPES FOR PRIVATE AND DOMESTIC COPYING

Division 1-Preliminary

135ZZJ. Interpretation

135ZZK. Private and domestic use

135ZZL. Operation of collecting society rules

Division 2-Copying with blank tapes

135ZZM. Copying with blank tapes

Division 3-Blank tape royalty

135ZZN. Blank tape royalty

135ZZP. Royalty payable by vendor

135ZZQ. Recovery of amounts of royalty

135ZZR. Royalty not payable in certain cases

135ZZS. Payment of amounts by collecting society to

prescribed organizations etc.

135ZZT. Exempt bodies and exemption numbers

Division 4-The collecting society

135ZZU. The collecting society

135ZZV. Revocation of declaration

135ZZW. Annual report and accounts

135ZZX. Amendment of rules

135ZZY. Inspection of records etc.

Division 5-Miscellaneous

135ZZZ. Copyright owners may authorize copying

135ZZZA. Copyright not to vest in copier

135ZZZB. Eligible foreign countries

17. Insertion of new sections:

152A. Applications to Tribunal for determination of amount

of royalty payable for recording musical works

152B. Applications to Tribunal for determination of manner

of paying royalty

18. Insertion of new sections:

153A. Applications to Tribunal under section 135H or

subsection 135J (1)

153B. Applications to Tribunal under subsection 135J (3)

19. Insertion of new sections:

153C. Applications to Tribunal under section 135ZV

or subsection 135ZW (1)

153D. Applications to Tribunal under subsection 135ZW (3)

20. Insertion of new section:

153E. Determination of amount of blank tape royalty by Tribunal

21. Insertion of new section:

195AA. Jurisdiction of Federal Court of Australia

22. Insertion of new section:

195B. Review of certain decisions

23. Use of works and broadcasts for educational purposes

24. Insertion of new section:

200AA. Use of broadcasts by institutions assisting

intellectually handicapped persons

25. Application and repeal of section 200A

26. Retention of declarations in relation to copies made by libraries,

archives or institutions

27. Inspection of records and declarations retained by libraries,

archives

or institutions

28. Insertion of new Part:

PART XIA-PERFORMERS' PROTECTION

Division 1-Preliminary

248A. Interpretation

248B. Educational purposes

248C. Exempt recordings cease to be exempt recordings in

certain circumstances

248D. Private and domestic use

248E. References to transmission to subscribers to a

diffusion service

248F. Application

Division 2-Actions by performers

248G. What constitutes unauthorized use

248H. Copying sound recordings for broadcasting

248J. Actions for unauthorized use

248K. Exercise of jurisdiction

248L. Appeals

248M. Jurisdiction of Federal Court

248N. Right to bring an action not assignable

Division 3-Offences

248P. Offences involving unauthorized recording, broadcasting

etc. of performances

248Q. Other offences in relation to performances

248R. Penalties

248S. Prosecutions for offences

248T. Destruction or delivery up of unauthorized recordings

Division 4-Extension of protection to foreign countries

248U. Application to foreign countries

248V. Denial of protection to citizens of countries

not giving adequate protection to Australian performances

29. Savings

SCHEDULE

FURTHER AMENDMENTS OF THE COPYRIGHT ACT 1968

An Act to amend the Copyright Act 1968, and for related purposes

Short title etc.

(Assented to 24 May 1989)

(1) This Act may be cited as the Copyright Amendment Act 1989.

(2) In this Act, "Principal Act" means the Copyright Act 1968*1*.

(Minister's second reading speech made in-

House of Representatives on 3 November 1988

Senate on 28 November 1988)

*1* No. 63, 1968, as amended. For previous amendments, see No. 216, 1973; Nos.

37 and 91, 1976; No. 160, 1977; No. 19, 1979; No. 154, 1980; Nos. 42, 61 and

113, 1981; Nos. 26, 80 and 154, 1982; Nos. 7, 80, 91 and 136, 1983; Nos. 43

and 165, 1984; Nos. 65 and 67, 1985; Nos. 78 and 168, 1986; and No. 23, 1987.

Commencement

2. (1) Sections 1 and 2 commence on the day on which this Act receives the

Royal Assent.

(2) The remaining provisions of this Act (including the items, and

paragraphs of the items, in the Schedule) commence on a day or days to be

fixed by Proclamation.

Long title

3. The title of the Principal Act is amended by omitting "Copyright" and

substituting "copyright and the protection of certain performances".

Interpretation

4. Section 10 of the Principal Act is amended by inserting after subsection

(1) the following subsection:

"(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.".

Performance

5. Section 27 of the Principal Act is amended by adding at the end the

following subsection:

"(5) This section does not apply to a performance within the meaning of Part

XIA.".

Fair dealing for purpose of research or study

6. After subsection 40 (1) of the Principal Act the following new

subsections are inserted:

"(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.".

7. After section 51 of the Principal Act the following section is inserted:

Copying of works in Australian Archives

"51AA. (1) The copyright in a work that is kept in the collection of the

Australian Archives, where it is open to public inspection, is not infringed

by the making by, or on behalf of, the officer in charge of the Archives:

(a) of a single working copy of the work;

(b) of a single reference copy of the work for supply to the central office

of the Archives;

of the Archives 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;

(d) where the officer in charge is satisfied that a reference copy of the

work supplied to a regional office of the Archives 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 Archives 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 copy of the work made from

a working copy for supply to the central office, or to a regional office, of

the Australian Archives for use by that office in providing access to the work

to members of the public;

'replacement copy', in relation to a work, means a copy 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 copy of the work made for the

purpose of enabling the Australian Archives to retain the copy and use it for

making reference copies and replacement copies of the work.".

Interpretation

8. Section 54 of the Principal Act is amended by adding at the end the

following subsections:

"(4) Subject to subsection (5), this Division applies to a record of a part

of a musical work as it applies to a record of the whole work.

"(5) Section 55:

(a) does not apply to a record of a whole work unless the previous record

referred to in paragraph 55 (1) (a) was a record of the whole work; and

(b) does not apply to a record of a part of a work unless that previous

record was a record of that part of the work.".

Conditions upon which manufacturer may make records of musical work

9. Section 55 of the Principal Act is amended:

(a) by omitting subparagraph (1) (d) (ii) and substituting the following

subparagraph:

"(ii) the prescribed royalty is paid to the owner of the copyright:

(A) 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; or

(B) if no such agreement or determination is in force-in the manner

prescribed by the regulations.";

(b) by omitting subsection (5) and substituting the following subsections:

"(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.".

10. Sections 74 and 75 of the Principal Act are repealed and the following

sections are substituted:

Corresponding design

"74. In this Division:

'corresponding design', in relation to an artistic work, means a design

that, when applied to an article, results in a reproduction of that work, but

does not include a design consisting solely of features of two-dimensional

pattern or ornament applicable to a surface of an article.

"75. 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 on

or after that commencement, it is not an infringement of that copyright to

reproduce the work by applying that, or any other, corresponding design to an

article.".

11. Section 77 of the Principal Act is repealed and the following section is

substituted:

Application of artistic works as industrial designs without registration of

the designs

"77. (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 applied industrially, whether in Australia or

elsewhere, by or with the licence of the owner of the copyright in the work in

the place where the industrial application happens;

which the corresponding design has been so applied (in this section called

'articles 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 1906 or has not been registered under that Act.

"(2) It is not an infringement of the copyright in the artistic work to

reproduce the work, on or after the day on which articles made to the

corresponding design are first so sold, let for hire or offered or exposed for

sale or hire, by applying that, or any other, corresponding design to an

article.

"(3) This section does not apply in relation to any articles 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, 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 that Act in respect of those articles had

been refused;

(b) the reason, or one of the reasons, given for the refusal was that the

design was excluded from registration under that Act by regulations made under

that Act; and

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.".

12. After section 103B of the Principal Act the following section is

inserted:

Fair dealing for purpose of research or study

"103C. (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;

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.".

Filming or recording broadcasts for private and domestic use

13. Section 111 of the Principal Act is amended by omitting paragraphs (3)

(a), (b) and (c) and substituting the following paragraphs:

"(a) selling a copy of the film or sound recording, letting it for hire, or

by way of trade offering or exposing it for sale or hire;

(b) distributing a copy of the film or sound recording, whether for the

purpose of trade or otherwise;

public;

(d) broadcasting the film or recording; or

(e) causing the film or recording to be seen or heard in public.".

14. After Part V of the Principal Act the following Part is inserted:

"PART VA-COPYING OF BROADCASTS BY EDUCATIONAL AND OTHER INSTITUTIONS

"Division 1-Preliminary

Interpretation

"135A. In this Part:

'administering body' means a body administering an institution;

'broadcast' means a sound broadcast or a television broadcast;

'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 intellectually handicapped persons;

'notice holder' means the person who is, for the time being, appointed to be

the notice holder under section 135T;

'preview copy' means a copy of a broadcast referred to in section 135F;

'records notice' means a remuneration notice specifying that the amount of

equitable remuneration payable to the collecting society by the administering

body giving the notice is to be assessed on the basis of a records system;

'relevant copyright owner' means the owner of the copyright in a work, a

sound recording or a cinematograph film;

'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;

'student', in relation to an institution, has the meaning given by section

135C.

Copies of broadcasts

"135B. 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.

Student of an institution

"135C. In this Part, a reference to a student of an institution is:

(a) in the case of an educational institution-a reference to a student of

the institution; and

(b) in the case of an institution assisting intellectually handicapped

persons-a reference to an intellectually handicapped person to whom the

institution provides assistance.

Operation of collecting society rules

"135D. This Part applies to the collecting society despite anything in the

rules of the society but nothing in this Part affects those rules so far as

they can operate together with this Part.

"Division 2-Copying of broadcasts

Copying of broadcasts by educational institutions etc.

"135E. (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) a remuneration notice, given by or on behalf of the administering body

to the collecting society, is in force;

(b) 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;

institution assisting intellectually handicapped persons-the copy is made

solely for the purposes of use in the provision of assistance to

intellectually handicapped persons by the institution or by another similar

institution; and

(d) the administering body complies with subsection 135K (1) or (3), as the

case requires, in relation to the copy.

"(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)

(b) or (c);

(b) is made, sold or otherwise supplied for a financial profit; or

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) does not apply, and shall be taken never to have applied,

to the making of the copy.

Preview copies

"135F. (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.

"(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

to decide whether or not the copy should be retained for the educational

purposes of the institution administered by it, or for use in the provision of

assistance to intellectually handicapped persons 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

intellectually handicapped persons-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) 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).

"(6) Where a preview copy is neither destroyed within the preview period nor

retained under subsection (4), subsection (1) does not apply, and shall be

taken never to have applied, to the making of the copy.

Remuneration notices

"135G. (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 copies of broadcasts made by it, or on its

behalf, being copies 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 or a sampling

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.

Records notices

"135H. (1) Where 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 each 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.

"(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, sound recordings or cinematograph films

included in broadcasts;

(b) different institutions administered by the administering body; or

administering body.

Sampling notices

"135J. (1) Where 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 copies of broadcasts made by

it, or on its behalf, while the notice is in force is such annual amount per

student of the institution concerned 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.

"(2) The annual amount referred to in subsection (1) shall be determined

(whether by agreement or by the Copyright Tribunal) having regard to the

extent to which copies of broadcasts are 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 extent of copying of broadcasts and any other matters that are

necessary or convenient to be assessed by use of a sampling system, shall be

assessed by use of a sampling system determined by agreement between the

administering body and the collecting society or, failing such agreement, by

the Copyright Tribunal on application made by either of them.

"(4) For the purposes of subsection (1), different annual amounts may be

determined (whether by agreement or by the Copyright Tribunal) in relation to

different institutions administered by the administering body and different

classes of students of an institution administered by it.

"(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; subsections 135E (1) and 135F (1) do not apply to any copy of a broadcast made by, or on behalf of, the administering body during that period.

Marking and record keeping requirements

"135K. (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 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

carried out by it, or on its behalf, while the notice is in force, being a

record containing such particulars as are prescribed;

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 copying of a

broadcast:

(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.

"(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 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.

Inspection of records etc.

"135L. (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 carried out at the premises

of the institution;

(b) inspect all the relevant records held at those premises that relate to

the making of copies of broadcasts in reliance on section 135E;

the assessment of the amount of equitable remuneration payable by the

administering body to the society.

"(2) Where the collecting society gives a notice, a person authorised in

writing by the society may, during the ordinary working hours of the relevant

institution on the day specified in the notice (but not before 10 a.m. or

after 3 p.m.), carry out the assessment, or inspect the records, to which the

notice relates and, for that purpose, may enter the premises of the

institution.

"(3) An administering body shall take all reasonable precautions, and

exercise reasonable diligence, to ensure that a person referred to in

subsection (2) who attends at the premises of an institution administered by

the body for the purpose of exercising the powers conferred by that subsection

is provided with all reasonable and necessary facilities and assistance for

the effective exercise of those powers.

"(4) An administering body that contravenes subsection (3) is guilty of an

offence punishable, on conviction, by a fine not exceeding $500.

Revocation of remuneration notice

"135M. 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.

Request for payment of equitable remuneration

"135N. (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 or 135J, as the case may be, for copies of broadcasts made by,

or on behalf of, the body while the remuneration notice is or was in force.

"(2) Where the remuneration notice is a sampling notice, the collecting

society shall not make a request under this section more than once in each

period of 12 months during which the notice is in force.

"(3) If an amount specified in a request under subsection (1) is not paid in

accordance with the request, it may be recovered from the relevant

administering body by the collecting society in the Federal Court of Australia

or any other court of competent jurisdiction as a debt due to the society.

"(4) Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under subsection (3).

"Division 3-The collecting society

The collecting society

"135P. (1) Subject to this section, the Attorney-General may, by notice in

the Gazette, declare a body named in the notice to be the collecting society.

"(2) The Attorney-General shall not name more than one body in a declaration

and shall not make a declaration while an earlier declaration is in force.

"(3) The Attorney-General shall 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;

(b) all relevant copyright owners, or their agents, are entitled to become

its members;

(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 copyright owners or their agents are protected

adequately, including, in particular, provisions about:

(i) the collection of amounts of equitable remuneration payable by

administrative bodies under section 135H or 135J;

(ii) the payment of the administrative costs of the society out of

amounts collected by it;

(iii) the distribution of amounts collected by it;

(iv) the holding on trust by the society of amounts for relevant

(v) access to records of the society by its members.

Revocation of declaration

"135Q. The Attorney-General may, by notice in the Gazette, revoke the

declaration of a body as the collecting society if satisfied that the body:

(a) is not functioning adequately as the collecting society;

(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;

135P (3) (c) and (d); or

(d) has refused or failed, without reasonable excuse, to comply with

section 135R or 135S.

Annual report and accounts

"135R. (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 Attorney-General.

"(2) The Attorney-General shall cause a copy of the report sent to the

Attorney-General 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 Attorney-General.

"(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 Attorney-General 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.

Amendment of rules

"135S. The collecting society shall, within 21 days after it alters its

rules, send a copy of the rules as so altered to the Attorney-General,

together with a statement setting out the effect of the alteration and the

reasons why it was made.

"Division 4-Interim copying

Appointment of notice holder

"135T. The Attorney-General may, by notice in the Gazette, appoint a person

to be the notice holder for the purposes of this Division.

Copying before declaration of collecting society

"135U. (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;

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 intellectually handicapped persons-the copy is made

solely for the purposes of use in the provision of assistance to

intellectually handicapped persons by the institution or by another similar

institution; and

(e) the administering body complies with paragraphs 135K (1) (a), (b) and

"(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)

(b) is made, sold or otherwise supplied for a financial profit; or

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.

Preview copies

"135V. 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.

Notices by administering bodies

"135W. (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.

Marking and record keeping requirements

"135X. (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).

Effect of declaration of collecting society

"135Y. (1) Where the first collecting society is declared, a notice given by

an administering body to the notice holder under subsection 135W (1) and in

force immediately before that declaration shall, on and after that

declaration, be taken, for the purposes of this Part, to be a records notice

or a sampling notice, as the case may be, given by that body to the collecting

society, being a records notice or sampling notice that came into force on the

day on which the notice came into force.

"(2) Where a notice is to be taken under this section to be a records

notice, the relevant administering body shall cause copies of all records made

under paragraph 135K (1) (b) on or after the day on which the notice is taken

to have come into force to be sent to the collecting society within 21 days

after the declaration of the collecting society.

"Division 5-Miscellaneous

Relevant copyright owner may authorise copying

"135Z. 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, work, sound recording or film

without infringing that copyright.

"135ZA. Despite any other provision of this Act, the making 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.".

15. The following Part is inserted in the Principal Act after Part V of that

Act or, if Part VA of that Act (as amended by this Act) has commenced, after

Part VA:

"PART VB-COPYING OF WORKS ETC. BY EDUCATIONAL AND OTHER INSTITUTIONS

"Division 1-Preliminary

Interpretation

"135ZB. 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;

'eligible item' has the meaning given by section 135ZC;

'institution' means:

(a) an educational institution;

(b) an institution assisting handicapped readers; or

'licensed copy' means:

(a) a copy of the whole or a part of a work, being a copy made by, or

on behalf of, a body administering an educational institution in reliance on

section 135ZJ, 135ZK or 135ZL;

(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 or a

photographic version of the whole or a part of such a work, being a record or

version made by, or on behalf of, a body administering an institution

assisting handicapped readers in reliance on section 135ZP; or

made

by, or on behalf of, a body administering an institution assisting

intellectually handicapped persons in reliance on section 135ZS;

'records notice' means a remuneration notice specifying that the amount of

equitable remuneration payable to the collecting society by the administering

body giving the notice is to be assessed on the basis of a records system;

'relevant 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;

'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 to the collecting society by the administering

body giving the notice is to be assessed on the basis of a sampling system;

'student', in relation to an institution, has the meaning given by section

135ZD.

Eligible items and photographic versions

"135ZC. In this Part:

(a) a reference to an eligible item is a reference to:

(i) a published literary, dramatic, musical or artistic work;

(ii) a published sound recording or cinematograph film; or

(iii) a work referred to in subparagraph (i) that is included in a

sound broadcast;

(b) a reference to a copy of an eligible item, being a literary, dramatic

or musical work, is a reference to any of the following:

(i) a reproduction of the work in a material form;

(ii) an adaptation of the work;

(iii) a reproduction in a material form of an adaptation of the work;

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 handicapped readers.

Student of an institution

"135ZD. In this Part, a reference to a student of an institution is:

(a) in the case of an educational institution-a reference to a student of

the institution;

(b) in the case of an institution assisting handicapped readers-a reference

to a handicapped reader to whom the institution provides assistance;

persons-a reference to an intellectually handicapped person to whom the

institution provides assistance.

Part does not apply to computer programs

"135ZE. Nothing in this Part applies in relation to a literary work, being a

computer program or a compilation of computer programs.

Operation of collecting society rules

"135ZF. This Part applies to a collecting society despite anything in the

rules of the society but nothing in this Part affects those rules so far as

they can operate together with this Part.

"Division 2-Copying of works by educational institutions

Multiple copying of insubstantial portions of works

"135ZG. (1) Subject to this section, copyright in a literary or dramatic

work is not infringed by the making of one or more copies of a page or pages

of the work in an edition of the work if the copying 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 copy of the whole of a

work.

"(3) Subsection (1) does not apply to the making of a copy 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 copied does not exceed 1% of the total

number of pages in the edition.

"(4) Where:

(a) a person makes, or causes to be made, a copy 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 copy; that subsection does

not apply to the making, by or on behalf of that person, of a copy of any

other part of that work within 14 days after the day on which the previous

copy 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.

Copying of published editions by educational institutions

"135ZH. 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 reproductions of the whole or a part of the edition if the reproduction,

or each of the reproductions, is made in the course of the making of a copy 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.

Multiple copying of periodical articles by educational institutions

"135ZJ. (1) Subject to this section, the copyright in an article contained

in a periodical publication is not infringed by the making of one or more

copies 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 copy is made solely for the educational purposes of the institution

or of another educational institution; and

requires, in relation to the copy.

"(2) This section does not apply in relation to copies of, or of parts of, 2

or more articles contained in the same periodical publication unless the

articles relate to the same subject-matter.

Multiple copying of works published in anthologies

"135ZK. The copyright in a literary or dramatic work, being a work contained

in a published anthology of works and comprising not more than 15 pages in

that anthology, is not infringed by the making of one or more copies of the

whole or a part of that 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 copy is made solely for the educational purposes of the institution

or of another educational institution; and

requires, in relation to the copy.

Multiple copying of works by educational institutions

"135ZL. (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 copies 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 copy is made solely for the educational purposes of the institution

or of another educational institution; and

requires, in relation to the copy.

"(2) This section does not apply in relation to copies of the whole, or of

more than a reasonable portion, of a work that has been separately published

unless the person who makes the copies, or causes the copies to be made, for,

or on behalf of, the body is satisfied, after reasonable investigation, that

copies (other than second-hand copies) of the work cannot be obtained within a

reasonable time at an ordinary commercial price.

Application of Division to certain illustrations

"135ZM. 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 copy of an article or other work included a reference

to a copy of the article or other work together with a copy of that artistic

work or those artistic works;

reference to a copy of that part of the article or other work together with a

copy of the artistic work or artistic works provided for the purpose of

explaining or illustrating that part;

(d) a reference to a copy of a page of a literary or dramatic work in an

edition of the work included a reference to a copy 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 copy of pages of a literary or dramatic work in an

edition of the work included a reference to a copy 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.

"Division 3-Copying of works by institutions assisting handicapped

readers

Copying of published editions by institutions assisting handicapped readers

"135ZN. 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 reproductions of the whole or a part of the edition if the reproduction,

or each of the reproductions, is made in the course of the making of a copy of

the whole or a part of the work by, or on behalf of, a body administering an

institution assisting handicapped readers for use in the provision, whether by

the institution or otherwise, of assistance to handicapped readers.

Multiple copying of works by institutions assisting handicapped readers

"135ZP. (1) The copyright in a literary or dramatic work is not infringed by

the making by, or on behalf of, a body administering an institution assisting

handicapped readers 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 solely for use by a handicapped reader for the

purpose of research or study that he or she is undertaking or proposes to

undertake, or for the purpose of otherwise instructing himself or herself on

any matter; and

requires, in relation to each copy.

"(2) 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 handicapped readers, of one or more Braille versions, large-print

versions or photographic 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;

(b) each version is made solely for use by a handicapped reader for the

purpose of research or study that he or she is undertaking or proposes to

undertake, or for the purpose of otherwise instructing himself or herself on

any matter; and

requires, in relation to each version.

"(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

handicapped readers 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 handicapped readers 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 handicapped readers is satisfied, after reasonable

investigation, that no new copy of a large-print version of the work, being a

version that has been separately published, can be obtained within a

reasonable time at an ordinary commercial price.

"(6) Where a photographic version of a work has been separately published,

subsection (2) does not apply to the making of a photographic version of the

work, or of a part of the work, unless the person who makes the version, or

causes the version to be made, for, or on behalf of, a body administering an

institution assisting handicapped readers 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.

"(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.

Making of relevant reproductions by institutions assisting handicapped

readers

"135ZQ. (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 handicapped readers, of a relevant

reproduction of the work, or of a part of the work, if the relevant

reproduction is made solely for use in the making by, or on behalf of, that

body, of a handicapped reader's copy of the work, or of a part of the work, as

the case may be.

"(2) Where:

(a) a relevant reproduction of a work, or of a part of a work, is made by,

or on behalf of, a body administering an institution assisting handicapped

readers; and

(b) the relevant reproduction:

(i) is used otherwise than in the making by, or on behalf of, that

body,

of a handicapped reader's copy of the work, or of a part of the work, as the

case may be; or

(ii) is not destroyed within 3 months after the day on which it was

made;

subsection (1) does not apply, and shall be taken never to have applied, to

the making of the relevant reproduction.

"(3) Subsection (1) does not apply to the making of a relevant reproduction,

being a record embodying a sound recording, 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

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.

"(5) In this section:

'relevant reproduction', in relation to a work, or a part of a work, means:

(a) a copy of the work, or of a part of the work; or

(b) a record embodying a sound recording of the work, or of a part of

the

work; or

version,

of the work, or of a part of the work.

"Division 4-Copying of works etc. by institutions assisting intellectually

handicapped persons

Copying of published editions by institutions assisting intellectually

handicapped persons

"135ZR. 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 reproductions of the whole or a part of the edition in the course of

making one or more copies of the whole or a part of the work by, or on behalf

of, a body administering an institution assisting intellectually handicapped

persons for use in the provision, whether by the institution or otherwise, of

assistance to intellectually handicapped persons.

Copying of eligible items by institutions assisting intellectually

handicapped

persons

"135ZS. (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

by, or on behalf of, a body administering an institution assisting

intellectually handicapped persons 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;

(b) the copy is made solely for the purpose of use in the provision,

whether by the institution or otherwise, of assistance to intellectually

handicapped persons; and

requires, in relation to the copy.

"(2) Subsection (1) does not apply to the making 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 causes the copy to be made, is

satisfied after reasonable investigation that:

copy of the eligible item in a form suitable for use in the provision of that

assistance can be obtained 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 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.

Making of copies for use in making intellectually handicapped person's copies

"135ZT. (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 intellectually handicapped persons

of a copy of the whole or a part of the eligible item or broadcast, if the

copy is made solely for use in the making by, or on behalf of, that body of an

intellectually handicapped person's copy of the whole or the part of the

eligible item or broadcast, as the case may be.

"(2) Where:

(a) a copy 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 intellectually handicapped persons; and

(b) the copy:

(i) is used otherwise than in the making by, or on behalf of, that

body of an intellectually handicapped person's copy of the whole or the part of the

eligible item or broadcast, as the case may be; or

(ii) is not destroyed within 3 months after the day on which it was

made;

subsection (1) does not apply, and shall be taken never to have applied, to

the making of the copy.

"(3) Subsection (1) does not apply to the making of a record embodying a

sound recording 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 of the whole or

part of an eligible item or a television broadcast unless the body by whom, or

on whose behalf, the copy is made, marks it, or causes it to be marked, in

accordance with the regulations.

"Division 5-Equitable remuneration

Remuneration notices

"135ZU. (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 made by it, or on its behalf, being copies 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 or a sampling

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.

Records notices

"135ZV. (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.

"(2) 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 and different classes of

students of an institution administered by it.

Sampling notices

"135ZW. (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

per student of the institution concerned 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.

"(2) The annual amount referred to in subsection (1) shall be determined

(whether by agreement or by the Copyright Tribunal) having regard to the

number of licensed copies made by, or on behalf of, the administering body in

a particular period and to such other matters (if any) as are relevant in the

circumstances.

"(3) The number of copies referred to in subsection (2), and any other

matters that are necessary or convenient to be assessed by use of a sampling system, shall be assessed by use of a sampling system determined by agreement

between the administering body and the relevant collecting society or, failing

such agreement, by the Copyright Tribunal on application made by either of

them.

"(4) For the purposes of subsection (1), different annual amounts may be

determined (whether by agreement or by the Copyright Tribunal) in relation to

different institutions administered by the administering body and different

classes of students of an institution administered by it.

"(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, 135ZP and 135ZS do not apply to any copy of a

work or other subject-matter by, or on behalf of, the administering body

during that period.

Marking and record keeping requirements

"135ZX. (1) Where a records notice is given by, or on behalf of, an

administering body to a collecting society, the administering body shall:

(a) mark, or cause to be marked, in accordance with the regulations, each

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 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;

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.

"(3) Where a sampling notice is given by, or on behalf of, an administering

body to a collecting society, the administering body shall mark, or cause to

be marked, in accordance with the regulations, each 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.

"(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.

Inspection of records etc.

"135ZY. (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 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;

the assessment of the amount of equitable remuneration payable by the

administering body to the society.

"(2) Where a collecting society gives a notice, a person authorised in

writing by the society may, during the ordinary working hours of the relevant

institution on the day specified in the notice (but not before 10 a.m. or

after 3 p.m.), carry out the assessment, or inspect the records, to which the

notice relates and, for that purpose, may enter the premises of the

institution.

"(3) An administering body shall take all reasonable precautions, and

exercise reasonable diligence, to ensure that a person referred to in

subsection (2) who attends at the premises of an institution administered by

the body for the purpose of exercising the powers conferred by that subsection

is provided with all reasonable and necessary facilities and assistance for

the effective exercise of those powers.

"(4) An administering body that contravenes subsection (3) is guilty of an

offence punishable, on conviction, by a fine not exceeding $500.

Revocation of remuneration notice

"135ZZ. 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.

Request for payment of equitable remuneration

"135ZZA. (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 or 135ZW, as the case may be, for licensed copies made by,

or on behalf of, the body while the remuneration notice is or was in force.

"(2) Where the remuneration notice is a sampling notice, a collecting

society shall not make a request under this section more than once in each

period of 12 months during which the notice is in force.

"(3) If an amount specified in a request is not paid in accordance with the

request, it may be recovered from the relevant administering body by the

relevant collecting society in the Federal Court of Australia or in any other

court of competent jurisdiction as a debt due to the society.

"(4) Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under subsection (3).

"Division 6-Collecting societies

Collecting societies

"135ZZB. (1) Subject to this section, the Attorney-General may, by notice in

the Gazette, declare the body named in the notice to be the collecting society

for all relevant copyright owners or for such classes of relevant copyright

owners as are specified in the notice.

"(2) Where the Attorney-General declares a body to be the collecting society

for a specified class of copyright owners and subsequently declares another

body to be the collecting society for that class of copyright owners:

(a) the first-mentioned collecting society ceases to be the collecting

society for that class of copyright owners on the day on which the subsequent

declaration is made; and

(b) any remuneration notice given to that collecting society ceases to be

in force to the extent to which it relates to licensed copies of works or

other subject-matter the copyright owners of which are included in that class

of copyright owners.

"(3) The Attorney-General shall not declare the 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;

(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;

(d) its rules contain such other provisions as are prescribed, being

provisions necessary to ensure that the interests of members of a 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 or 135ZW;

(ii) the payment of the administrative costs of a collecting society

out of amounts collected by it;

(iii) the distribution of amounts collected by a collecting society;

(iv) the holding on trust by a collecting society of amounts for

relevant

(v) access to records of a collecting society by its members.

"(4) Where the Attorney-General has declared a body to be the collecting

society for a specified class of copyright owners, the Attorney-General may

refuse to declare another body to be the collecting society for that class 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.

Revocation of declaration

"135ZZC. The Attorney-General may, by notice in the Gazette, revoke the

declaration of a body as a collecting society if satisfied that the body:

(a) is not functioning adequately as a collecting society;

(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;

135ZZB (3) (c) and (d); or

(d) has refused or failed, without reasonable excuse, to comply with

section 135ZZD or 135ZZE.

Annual report and accounts

"135ZZD. (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 Attorney-General.

"(2) The Attorney-General shall cause a copy of the report sent to the

Attorney-General 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 Attorney-General.

"(3) A collecting society shall keep accounting records correctly recording

and explaining the transactions of the society (including any transactions as

trustee) and the financial position of the society.

"(4) The accounting records shall be kept in such a manner as will enable

true and fair accounts of the society to be prepared from time to time and

those accounts to be conveniently and properly audited.

"(5) A collecting society shall, as soon as practicable after the end of

each financial year, cause its accounts to be audited by an auditor who is not

a member of the society, and shall send to the Attorney-General 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.

Amendment of rules

"135ZZE. A collecting society shall, within 21 days after it alters its

rules, send a copy of the rules as so altered to the Attorney-General,

together with a statement setting out the effect of the alteration and the

reasons why it was made.

"Division 7-Miscellaneous

Rights of copyright owners

"135ZZF. (1) Nothing in this Part affects the right of the owner of the

educational institution to make, or cause to be made, copies 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 handicapped readers to make, or cause to be made, sound recordings

of, or Braille, large-print or photographic versions of, the whole or a part

of the work without infringement of that copyright.

"(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 intellectually handicapped persons to make, or cause to

be made, a copy of the whole or a part of the eligible item without

infringement of that copyright.

"135ZZG. Despite any other provision of this Act, copyright does not vest in

the maker of a handicapped reader's copy of the whole or part of a work, or of

an intellectually handicapped person's copy of the whole or part of an

eligible item, merely because of the making of the copy.

Unauthorised use of copies

"135ZZH. (1) Where a copy, record or version of a work, a sound recording or

a cinematograph film, being a copy, record or version referred to in a

prescribed provision of this Part:

(a) is sold or otherwise supplied for a financial profit;

(b) is used for a purpose other than the purpose specified in the

prescribed provision; or

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, the prescribed provision does not apply, and shall be taken never to

have applied, to the making of the copy.

"(2) For the purposes of this section, subsection 135ZG (1), subsection

135ZJ (1), section 135ZK and subsections 135ZL (1), 135ZP (1) and (2) and

135ZS (1) are prescribed provisions.".

16. Before Part VI of the Principal Act the following Part is inserted:

"PART VC-USE OF BLANK TAPES FOR PRIVATE AND DOMESTIC COPYING

"Division 1-Preliminary

Interpretation

"135ZZJ. In this Part:

'blank tape' means a tape, other than an exempt tape, that is of a kind

ordinarily purchased or hired for use for making copies of sound recordings,

whether or not any sounds are embodied in the tape;

'collecting society' means the body that is, for the time being, declared to

be the collecting society under section 135ZZU;

'distribute' means distribute by way of trade;

'eligible foreign country' means a foreign country declared by the

regulations to be an eligible foreign country for the purposes of this Part;

'eligible sound recording' means a sound recording the maker of which was,

at the time the recording was made:

(a) an Australian citizen, an Australian protected person, or a person

resident in Australia;

(b) a body corporate incorporated under a law in force in a State or

Territory relating to companies; or

corporate incorporated under a law of a foreign country, being a foreign

country that was at that time, or afterwards became, an eligible foreign

country;

'eligible work' means a literary, dramatic or musical work the author of

which was, at the time the work was made:

(a) an Australian citizen, an Australian protected person or a person

resident in Australia; or

(b) a citizen, national or resident of a foreign country, being a

foreign

country that was at that time, or afterwards became, an eligible foreign

country;

'exempt body' means a body or organisation in respect of which a declaration

is in force under section 135ZZT;

'exempt tape' means:

(a) a tape that has a normal playing time of 30 minutes or less;

(b) a second-hand tape;

recordings

of dictated material;

(d) a tape of a kind known as open reel tape or reel-to-reel tape;

(e) a video tape; or

(f) a tape of a kind ordinarily used for storing computer data or

programs;

'exemption number' means the number issued to an exempt body or a prescribed

organisation under section 135ZZT;

'proclaimed day' means the day fixed by Proclamation for the purposes of

this Part, being a day not earlier than the day on which the Copyright

Tribunal first makes an order determining the amount referred to in subsection

135ZZN (2);

'quarter' means a quarter of a calendar year, being a quarter beginning on 1

January, 1 April, 1 July or 1 October;

'relevant copyright owner' means the owner of the copyright in an eligible

sound recording or an eligible work;

'royalty' means the royalty payable for a blank tape under this Part;

'rules', in relation to the collecting society, means the provisions of the

memorandum and articles of association of the society;

'sell' means sell by wholesale or retail;

'vendor' means a person who, in the usual course of his or her business,

sells, hires or otherwise distributes blank tapes.

Private and domestic use

"135ZZK. For the purposes of this Part, a copy of a sound recording shall be

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 the copy, letting it for hire, or by way of trade offering or

exposing it for sale or hire;

(b) distributing the copy, whether for the purpose of trade or otherwise;

(d) broadcasting the recording; or

(e) causing the recording to be heard in public.

Operation of collecting society rules

"135ZZL. This Part applies to the collecting society despite anything in the

rules of the society but nothing in this Part affects those rules so far as

they can operate together with this Part.

"Division 2-Copying with blank tapes

Copying with blank tapes

"135ZZM. (1) Copyright subsisting in a published sound recording, or in any

work included in a published sound recording, is not infringed by making on

private premises a copy of the sound recording if the copy is made on or after

the proclaimed day on a blank tape for the private and domestic use of the

person who makes it.

"(2) Subsection (1) applies whether the blank tape was first sold, hired or

otherwise distributed in Australia before or after the commencement of this

section.

"(3) Where a copy of a sound recording made in reliance on subsection (1) is

used otherwise than for the private and domestic use of the person who made

it, subsection (1) does not apply, and shall be taken never to have applied,

to the making of the copy.

"Division 3-Blank tape royalty

Blank tape royalty

"135ZZN. (1) Subject to this Part, a royalty is payable for each blank tape

first sold, let for hire or otherwise distributed in Australia on or after the

proclaimed day.

"(2) The amount of the royalty payable for a blank tape is an amount worked

out using the formula:

A X NM

where:

is the amount per minute determined by the Copyright Tribunal under

section 153E; and

is the number of minutes of normal playing time of the tape.

Royalty payable by vendor

"135ZZP. (1) The royalty for a blank tape is payable by the vendor who first

sells, lets for hire or otherwise distributes the tape in Australia.

"(2) A vendor shall, within 21 days after the end of the quarter in which

this Part commences and within 21 days after the end of each succeeding

quarter, pay to the collecting society an amount equal to the sum of the

amounts of royalty payable by the vendor for blank tapes first sold, let for

hire or distributed by the vendor during that quarter.

Recovery of amounts of royalty

"135ZZQ. (1) An amount payable to the collecting society by a vendor under

section 135ZZP is recoverable from the vendor by the society in the Federal

Court of Australia or any other court of competent jurisdiction as a debt due

to the society.

"(2) Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under subsection (1).

Royalty not payable in certain cases

"135ZZR. A vendor who sells blank tapes to a prescribed organisation or to

an exempt body is not liable to pay the royalty in respect of any blank tape

so sold by the vendor to that organisation or body if the vendor gives the

collecting society:

(a) particulars of the normal playing time of the tape, together with such

other particulars (if any) of the tape and the sale as are prescribed; and

(b) the exemption number of the organisation or body.

Payment of amounts by collecting society to prescribed organisations etc.

"135ZZS. (1) Where a prescribed organisation or an exempt body:

(a) purchases a blank tape from a vendor; and

(b) gives the collecting society particulars of the normal playing time of

the tape, together with such other particulars (if any) of the tape and the

purchase as are prescribed and a receipt for the purchase;

the collecting society shall pay to the organisation or body an amount equal

to the amount of the royalty payable for the tape, whether or not that amount

of royalty has been paid.

"(2) Subsection (1) does not apply where the prescribed organisation or

exempt body purchases the blank tape from a vendor who is not liable under

section 135ZZR to pay the royalty in respect of that blank tape.

"(3) Where a person or body (other than a prescribed organisation or an

exempt body):

(a) purchases a blank tape from a vendor; and

(b) gives the collecting society a receipt for the purchase of the tape

together with a statutory declaration made by the person, or by an officer or

member of the body, as the case may be:

(i) containing particulars of the normal playing time of the tape,

together with such other particulars (if any) of the tape and the purchase as

are prescribed; and

(ii) declaring that the person or body will not use the tape, or cause

permit it to be used, or make it available to any person for use, for the

purpose of making a copy of a sound recording in which copyright subsists

unless the person or body is the owner or licensee of the right to make a copy

of the sound recording; the collecting society shall pay to the person or body

an amount equal to the amount of the royalty payable for the tape, whether or

not that amount of royalty has been paid.

Exempt bodies and exemption numbers

"135ZZT. (1) A body or organisation, other than a prescribed organisation,

may apply in writing to the collecting society to be declared an exempt body.

"(2) Where the collecting society is satisfied that a body or organisation

which has applied to the society does not use blank tapes, or make blank tapes

available to any of its members, for the purpose of making copies of sound

recordings in which copyright subsists unless the body, organisation or

member, as the case may be, is the owner or licensee of the right to make such

copies, the collecting society shall, by notice in writing to the body or

organisation, declare the body or organisation to be an exempt body and issue

an exemption number to it.

"(3) Where the collecting society is satisfied that an exempt body uses

blank tapes, or makes blank tapes available to its members for use, for the

purpose referred to in subsection (2), the collecting society may, by notice

in writing given to the body, revoke the declaration of the body as an exempt

body and withdraw the exemption number issued to it.

"(4) The collecting society shall, on the request of a prescribed

organisation, issue an exemption number to the organisation.

"Division 4-The collecting society

The collecting society

"135ZZU. (1) Subject to this section, the Attorney-General may, by notice in

the Gazette, declare the body named in the notice to be the collecting

society.

"(2) The Attorney-General shall not name more than one body in a declaration

and shall not make a declaration while an earlier declaration is in force.

"(3) The Attorney-General shall 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;

(b) all relevant copyright owners, or their agents, are entitled to become

its members;

(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 copyright owners or their agents are protected

adequately, including, in particular, provisions about:

(i) the collection of amounts of royalty from vendors;

(ii) the payment of the administrative costs of the society out of

amounts collected by it;

(iii) the distribution of amounts collected by it;

(iv) the holding on trust of amounts for relevant copyright owners who

are not its members; and

(v) access to records of the society by its members.

Revocation of declaration

"135ZZV. The Attorney-General may, by notice in the Gazette, revoke the

declaration of a body as the collecting society if satisfied that the body:

(a) is not functioning adequately as the collecting society;

(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;

135ZZU (3) (c) and (d); or

(d) has refused or failed, without reasonable excuse, to comply with

section 135ZZW or 135ZZX.

Annual report and accounts

"135ZZW. (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 Attorney-General.

"(2) The Attorney-General shall cause a copy of the report sent to the

Attorney-General 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 Attorney-General.

"(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 Attorney-General 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.

Amendment of rules

"135ZZX. The collecting society shall, within 21 days after it alters its

rules, send a copy of the rules as so altered to the Attorney-General,

together with a statement setting out the effect of the alteration and the

reasons why it was made.

Inspection of records etc.

"135ZZY. (1) The collecting society may, in writing, notify a vendor who is

liable to pay royalty that the society wishes, on a day specified in the

notice, being an ordinary working day not earlier than 7 days after the day on

which the notice is given, to inspect all records held by the vendor at the

premises specified in the notice, being records that relate to the sale,

letting for hire or distribution of blank tapes by the vendor and such other

records held at those premises as are relevant to the assessment of the amount

of royalty payable by the vendor to the society.

"(2) Where the collecting society gives a notice, a person authorised in

writing by the society may, during ordinary working hours on the day specified

in the notice, inspect the records to which the notice relates and, for that

purpose, may enter the premises specified in the notice.

"(3) A person who hinders or obstructs a person in the exercise of the

powers conferred by subsection (2) is guilty of an offence punishable, on

conviction, by a fine not exceeding $500.

"(4) A person who, whether directly or indirectly, makes a record of, or

discloses or communicates to a person any prescribed information, except for

the purpose of ensuring compliance with a provision of this Part, is guilty of

an offence punishable, on conviction, by a fine not exceeding $500.

"(5) In this section:

'prescribed information' means information obtained as a result of an

inspection carried out under this section.

"Division 5-Miscellaneous

"135ZZZ. Nothing in this Part affects the right of the owner of the

person to make or cause to be made, a sound recording, or a copy of a sound

recording, of the work or other subject-matter without infringing that

"135ZZZA. Despite any other provision of this Act, the making of a copy of a

sound recording that is not an infringement of copyright under this Part, does

not vest copyright in any work or other subject-matter in any person.

Eligible foreign countries

"135ZZZB. A foreign country shall not be declared by the regulations to be

an eligible foreign country for the purposes of this Part unless the

Governor-General is satisfied that adequate payments are, or will be, made to

owners of copyright under this Act in sound recordings and in literary,

dramatic or musical works as part of a blank tape royalty scheme operating in

that country.".

17. After section 152 of the Principal Act the following sections are

inserted:

Applications to Tribunal for determination of amount of royalty payable for

recording musical works

"152A. (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

"(4) The parties to an application are:

(a) the manufacturer and the owner of the copyright in the musical work;

and

(b) any organisations or persons who are made parties to the application.

"(5) Where an application is made under subsection (2), the Tribunal shall

consider the application and, after giving the parties an opportunity of

presenting their cases, make an order determining, or making provision for

determining, an equitable amount of royalty payable by the manufacturer of the

record of the musical work to the owner of the copyright in the work during

the period specified in the order.

"(6) Where an organisation (whether claiming to represent manufacturers or

the owners of copyrights in musical works or not) or a person (whether a

manufacturer or the owner of the copyright in a musical work or not) applies

to the Tribunal to be made a party to an application under this section, the

Tribunal may, if it thinks fit, make that organisation or person a party to

the application if the Tribunal is satisfied that the organisation or person

has a substantial interest in the application.

"(7) The period that may be specified in an order under subsection (5) in

relation to a manufacturer may be a period beginning before the date of making

of the order or before the date of making of the application but shall not be

a period beginning before:

(a) the end of the period specified in the last preceding order (if any)

made under that subsection in relation to that manufacturer; or

(b) the commencement of this section.

"(8) Where an order is in force under this section, the manufacturer in

relation to whom the order applies is liable to pay to the person specified in

the order the amount of royalty so specified at the times so specified and

that person may recover the amount, if it is not paid in accordance with the

order, in a court of competent jurisdiction from the manufacturer as a debt

due to the person.

Applications to Tribunal for determination of manner of paying royalty

"152B. (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

"(4) The parties to an application are:

(a) the manufacturer and the owner of the copyright in the musical work;

and

(b) any organisations or persons who are made parties to the application.

"(5) Where an organisation (whether claiming to represent manufacturers or

the owners of copyrights in musical works or not) or a person (whether a

manufacturer or the owner of the copyright in a musical work or not) applies

to the Tribunal to be made a party to an application under this section, the

Tribunal may, if it thinks fit, make that organisation or person a party to

the application if the Tribunal is satisfied that the organisation or person

has a substantial interest in the application.

"(6) Where an application is made under subsection (2), the Tribunal shall

consider the application and, after giving the parties an opportunity of

presenting their cases, make an order determining the manner in which amounts

of royalty payable by the manufacturer of the record of the musical work to

the owner of the copyright in the work are to be paid.".

18. After section 153 of the Principal Act the following sections are

inserted:

Applications to Tribunal under section 135H or subsection 135J (1)

"153A. (1) The parties to an application to the Tribunal under section 135H

or subsection 135J (1) for the determination of the amount of equitable

remuneration payable to the collecting society by an administering body for

the making, by or on behalf of that body, of a copy of a television broadcast

are the society and the body.

"(2) Where an application is made to the Tribunal under section 135H or

subsection 135J (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 per copy or per student of

the relevant institution, as the case may be, that it considers to be

equitable remuneration for the making of copies of television broadcasts.

"(3) In making an order, the Tribunal:

(a) shall have regard to the extent to which copies of television

broadcasts are made by, or on behalf of, the administering body solely for the

purpose of enabling the material included in the broadcasts to be seen and

heard 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

television broadcasts made in reliance on section 135E before the day on which

the order is made.

"(5) In this section, 'administering body', 'collecting society',

'institution' and 'student' have the same meanings as in Part VA.

Applications to Tribunal under subsection 135J (3)

"153B. (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.".

19. The following sections are inserted in the Principal Act after section

153 or, if section 153B of that Act (as amended by this Act) has commenced,

after section 153B:

Applications to Tribunal under section 135ZV or subsection 135ZW (1)

"153C. (1) The parties to an application to the Tribunal under section 135ZV

or subsection 135ZW (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 are the society and

the body.

"(2) Where an application is made to the Tribunal under section 135ZV or

subsection 135ZW (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 per licensed copy, or per

student of the relevant institution, as the case may be, that it considers to

be equitable remuneration for the making of a licensed copy.

"(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',

'institution', 'licensed copy' and 'student' have the same meanings as in Part

VB.

Applications to Tribunal under subsection 135ZW (3)

"153D. (1) The parties to an application to the Tribunal under subsection

135ZW (3) for the determination of a sampling system to be used for the

purpose of assessing the number of licensed copies made by, or on behalf of,

an administering body, or any other relevant matters, are the relevant

collecting society and the body.

"(2) Where an application is made to the Tribunal under subsection 135ZW

(3), the Tribunal shall consider the application and, after giving the parties

to the application an opportunity of presenting their cases, shall make an

order determining the sampling process.

"(3) In this section, 'administering body', 'collecting society' and

'licensed copy' have the same meanings as in Part VB.".

20. Before section 154 of the Principal Act the following section is

inserted:

Determination of amount of blank tape royalty by Tribunal

"153E. (1) Expressions used in this section that are also used in Part VC

have the same meanings as they have in that Part.

"(2) An application may be made to the Tribunal for an order determining, or

making provision for determining, the amount per minute of normal playing time

of a blank tape that is payable under Part VC by way of royalty for the blank

tape.

"(3) An application may be made by any person who has an interest in the

matter that is the subject of the application, including the collecting

society, a vendor or a relevant copyright owner.

"(4) The parties to an application are:

(a) the applicant; and

(b) such persons or organisations as are made parties to the application

under subsection (5).

"(5) Where a person or an organisation applies to the Tribunal to be made

party to an application and the Tribunal is satisfied that the person or

organisation has an interest in the matter that is the subject of the

application, the Tribunal may, if it thinks fit, make that person or

organisation a party to the application.

"(6) Subject to subsection (9), 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 determining, or

making provision for determining, the amount per minute of normal playing time

of a blank tape that is payable under Part VC by way of royalty for the blank

tape.

"(7) In making an order, the Tribunal shall take into account all relevant

matters including the extent to which blank tapes are used for the purposes of

making copies of eligible sound recordings and eligible works for private and

domestic use.

"(8) An order shall remain in force until:

(a) it is revoked; or

(b) where the order specifies a period during which it is to remain in

force-the end of that period;

whichever happens first.

"(9) The Tribunal may refuse to consider an application under subsection (1)

made less than 2 years after the making of the last order under this section

unless the Tribunal is satisfied that there has been a substantial change in

any of the matters relevant to the determination of the amount of the

royalty.".

21. After section 195 of the Principal Act the following section is inserted

in Part IX:

Jurisdiction of Federal Court of Australia

"195AA. Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under section 194.".

22. After section 195A of the Principal Act the following section is

inserted:

Review of certain decisions

"195B. (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 a body or institution under subsection 10A (1), 135P (1), 135ZZB

(1) or 135ZZU (1);

(b) a decision of the Attorney-General revoking a declaration made in

respect of a body or institution under subsection 10A (1), 135P (1), 135ZZB

(1) or 135ZZU (1);

permission under subsection 135 (6).

"(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

body or institution concerned a written notice containing:

(a) the terms of the decision;

(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

effect that the body or institution may request a statement under section 28

of that Act.

"(3) Where the Comptroller-General of Customs makes a reviewable decision

referred to in paragraph (1) (c), the Comptroller-General shall cause to be

sent to the owner or importer whose interests are affected by the decision a

notice containing:

(a) the terms of the decision;

(b) a statement to the effect that where no appeal under subsection 135 (6)

has been made to the Minister for Industry, Technology and Commerce against

the decision, the owner or importer may, subject to the Administrative Appeals

Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of

the decision; and

effect that the owner or importer 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) or (c), as the

case requires, does not affect the validity of the decision to which the

notice relates.

"(5) Subject to subsection (6), application may be made to the

Administrative Appeals Tribunal for review of a reviewable decision.

"(6) Application may not be made to the Administrative Appeals Tribunal for

review of a reviewable decision referred to in paragraph (1) (c) if a person

has appealed to the Minister for Industry, Technology and Commerce against the

decision under subsection 135 (6).

"(7) Where an application is made to the Administrative Appeals Tribunal for

review of a reviewable decision referred to in paragraph (1) (c), a person is

not entitled to appeal to the Minister for Industry, Technology and Commerce

against that decision under subsection 135 (6).

"(8) In this section:

'decision' has the same meaning as in the Administrative Appeals Tribunal

Act 1975.".

Use of works and broadcasts for educational purposes

23. Section 200 of the Principal Act is amended:

(a) by omitting from subsection (2) "or of a television broadcast" and ",

or an infringement of copyright in the broadcast,";

(b) by inserting after subsection (2) the following subsection:

"(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.";

and substituting "subsections (1), (2) and (2A)";

(d) by omitting from subsection (4) "(1) and (2)" and substituting "(1),

(2) and (2A)".

24. After section 200 of the Principal Act the following section is

inserted:

Use of broadcasts by institutions assisting intellectually handicapped

persons

"200AA. 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 intellectually handicapped persons

and is used only for the purpose of the provision of that assistance by that

institution.".

Application and repeal of section 200A

25. (1) If Part VA of the Principal Act as amended by this Act commences

before Part VB of that Act as so amended, section 200A of that Act:

(a) ceases, on the commencement of Part VA, to apply to an eligible item

that is a sound broadcast, a television broadcast, or a work, sound recording,

or cinematograph film included in a sound or television broadcast; and

(b) is repealed on the commencement of Part VB.

(2) If Part VB of the Principal Act as amended by this Act commences before

Part VA of that Act as so amended, section 200A of that Act:

(a) ceases, on the commencement of Part VB, to apply to an eligible item

other than a sound broadcast, a television broadcast, or a work, sound

recording, or cinematograph film included in a sound or television broadcast;

and

(b) is repealed on the commencement of Part VA.

(3) If Parts VA and VB of the Principal Act as amended by this Act commence

on the same day, section 200A of that Act is repealed on that day.

Retention of declarations in relation to copies made by libraries, archives

or institutions

26. Section 203A of the Principal Act is amended:

(a) by omitting paragraphs (2) (a) and (b) or, if paragraph (2) (c) has

been omitted, by omitting subsection (2);

(b) by omitting paragraph (2) (c) or, if paragraphs (2) (a) and (b) have

been omitted, by omitting subsection (2);

(d) by omitting from subsection (4) "or against subsection (2) with respect

to the retention of the same record";

(e) by omitting from subsection (5) ", or to a prosecution of the body

administering, or of the custodian in charge of the copying records of, an

institution for an offence against subsection (2) in relation to the retention

of a record,";

(f) by omitting paragraphs (5) (a) and (b) and substituting the following

paragraphs:

"(a) in the case of a prosecution of the officer in charge of a library

or archives-the declaration relates to the making of a copy of the whole or a

part of a work, a sound recording or a cinematograph film before the day on

which the defendant became the officer in charge of the library or archives

and was not in the possession of the body administering the library or

archives at that day; or

(b) in any case-the defendant took all reasonable precautions, and

exercised due diligence, to ensure the retention of the declaration in the

records of the library or archives, as the case requires.".

Inspection of records and declarations retained by libraries, archives or

institutions

27. (1) If Part VA of the Principal Act as amended by this Act commences

before Part VB of that Act as so amended, section 203E of that Act is

amended:

(a) by inserting in subsection (2) "to which section 200A applies" after

"an eligible item";

(b) by omitting from subsection (2) "(not being, in any case, an

institution that deposits its copying records with a central records

authority)";

and substituting "to which section 200A applies, or parts of such eligible

items";

(d) by inserting in paragraph (2) (b) "to which section 200A applies" after

"eligible items";

(e) by omitting subsection (3);

(f) by omitting subsection (5) and substituting the following subsection:

"(5) Where a person gives notice under subsection (2) to the custodian

in charge of the copying records of an institution that the person wishes to

inspect certain records on a particular day, that person may, during the

ordinary working hours of the institution on that day (but not before 10 a.m.

or after 3 p.m.) inspect the records to which the notice relates and, for that

purpose, may enter the premises of the institution at which the copying

records of the institution are kept.";

(g) by omitting from subsection (7) "or a central records authority";

(h) by omitting from paragraph (7) (a) "or central records authority, as

the case may be";

(j) by omitting from paragraph (7) (b) "or the officer in charge of the

central records authority, as the case may be";

(k) by omitting from subsection (8) ", or of the officer in charge of a

central records authority,";

(m) by omitting from subsection (8) ", institution or central records

authority" and substituting "or institution";

(n) by omitting from subsection (9) "or a central records authority";

(p) by omitting from subsection (9) ", institution or central records

authority" and substituting "or institution".

(2) If Part VB of the Principal Act as amended by this Act commences before

Part VA of that Act as so amended, section 203E of that Act is amended:

(a) by omitting subsection (2) and substituting the following subsection:

"(2) The owner of the copyright in an eligible item to which section

200A

applies, or the agent of such an owner, may notify the custodian in charge of

the copying records of an institution assisting intellectually handicapped

persons, in writing, that the owner or agent, as the case may be, wishes to

inspect:

(a) all the relevant records of the institution that relate to the

making, in reliance on section 200A, of intellectually handicapped persons'

copies of eligible items to which that section applies, or parts of such

eligible items; or

(b) such of those records that relate to any eligible items to which

that

section applies by a specified author or maker;

on a day specified in the notice, being an ordinary working day of the

institution not earlier than 7 days after the date of the giving of the

notice.";

(b) by omitting subsection (3);

"(5) Where a person gives notice under subsection (2) to the custodian

charge of the copying records of an institution that the person wishes to

inspect certain records on a particular day, that person may, during the

ordinary working hours of the institution on that day (but not before 10 a.m.

or after 3 p.m.) inspect the records to which the notice relates and, for that

purpose, may enter the premises of the institution at which the copying

records of the institution are kept.";

(d) by omitting from subsection (7) "or a central records authority";

(e) by omitting from paragraph (7) (a) "or central records authority, as

the case may be";

(f) by omitting from paragraph (7) (b) "or the officer in charge of the

central records authority, as the case may be";

(g) by omitting from subsection (8) ", or of the officer in charge of a

central records authority,";

(h) by omitting from subsection (8) ", institution or central records

authority" and substituting "or institution";

(j) by omitting from subsection (9) "or a central records authority";

(k) by omitting from subsection (9) ", institution or central records

authority" and substituting "or institution".

(3) If:

(a) Parts VA and VB of the Principal Act as amended by this Act commence on

the same day;

(b) after the commencement of Part VA of the Principal Act as amended by

this Act, Part VB of that Act, as so amended, commences; or

this Act, Part VA of that Act, as so amended, commences; section 203E of the

Principal Act is amended:

(d) by omitting subsections (2), (5) and (7);

(e) where paragraph (a) applies-by omitting subsection (3);

(f) by omitting subsections (8) and (9) and substituting the following

subsections:

"(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.".

28. After Part XI of the Principal Act the following Part is inserted:

"PART XIA-PERFORMERS' PROTECTION

"Division 1-Preliminary

Interpretation

"248A. (1) In this Part:

'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 sound recording or an indirect cinematograph film of a

performance, being a sound recording or film made solely for the purpose of

the private and domestic use of the person who made it;

(b) an indirect sound recording or an indirect cinematograph film of a

performance, being a sound recording or film made solely for the purpose of

use in scientific research;

performance, being a sound recording or 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;

(d) an indirect sound recording or an indirect cinematograph film of a

performance, being a sound recording or film made by, or on behalf of, the

body administering an institution assisting handicapped readers solely for the

purpose of the provision, whether by the institution or otherwise, of

assistance to handicapped readers;

(e) an indirect sound recording or an indirect cinematograph film of a

performance, being a sound recording or film made by, or on behalf of, the

body administering an institution assisting intellectually handicapped persons

solely for the purpose of the provision, whether by the institution or

otherwise, of assistance to intellectually handicapped persons;

(f) a direct or indirect sound recording or 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;

(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;

(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;

(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;

(k) a copy of a sound recording or 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;

(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;

(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

(ii) solely for a purpose referred to in paragraph (a), (b), (c),

(d),

(e), (f) or (g); or

(p) a copy of an authorised recording of a performance, other than a

copy

of an authorised sound recording where the copy was made for use in a

sound-track but the making of the sound recording was not authorised for the

purpose of use in a sound-track;

'indirect', in relation to a sound recording or cinematograph film of a

performance, means made from a broadcast, or a re-broadcast, of the

performance or from a transmission of the performance to subscribers to a

diffusion service; '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;

(b) a performance (including an improvisation) of a musical work or

part

of such a work;

such a work, or the recitation or delivery of an improvised literary work;

(d) a performance of a dance; or

(e) a performance of a circus act or a variety act or any similar

presentation or show;

being a live performance given in Australia by one or more qualified

persons, whether in the presence of an audience or otherwise;

'protection period', in relation to a performance, means the period

beginning on the day when the performance is given and ending at the end of

the period of 20 calendar years after the calendar year in which the

performance is given;

'qualified person' means an Australian citizen, an Australian protected

person or a person resident in Australia;

'recording' means a sound recording or cinematograph film, other than an

exempt recording;

'sound recording' includes an article in which sounds are embodied;

'unauthorised', in relation to a recording of a performance, means made

without the authority of the performer;

'unauthorised use' has the meaning given by section 248G.

"(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;

(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;

recording of a performance, without the authority of the performer is, in the

case of 2 or more performers, a reference to the doing of the act where at

least one of the performers has not authorised the doing of the act; and

(d) a reference to a sound-track is a reference to a sound-track associated

with visual images forming part of a cinematograph film.

Educational purposes

"248B. Without limiting the meaning of the expression 'educational purposes'

in paragraph (c) of the definition of 'exempt recording' in subsection 248A

(1), a sound recording or 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.

Exempt recordings cease to be exempt recordings in certain circumstances

"248C. (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.

"(2) A sound recording or cinematograph film, or a copy of such a recording

or film, that is an exempt recording because it was made for a purpose

referred to in paragraph (a), (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.

Private and domestic use

"248D. For the purposes of this Part, a sound recording or cinematograph

film shall be 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;

(b) distributing it, whether for the purpose of trade or otherwise;

(d) broadcasting the film or recording; or

(e) causing the film or recording to be seen or heard in public.

References to transmission to subscribers to a diffusion service

"248E. (1) A reference in this Part to the transmission of a performance to

subscribers to a diffusion service is a reference to the transmission of the

performance in the course of a service of distributing broadcast or other

matter (whether provided by the person operating the service or by other

persons) over wires, or over other paths provided by a material substance, to

the premises of subscribers to the service.

"(2) For the purposes of this Part, where a performance is so transmitted:

(a) the person operating the service shall be taken to be the person

causing the performance to be so transmitted; and

(b) no person other than the person operating the service shall be taken to

be causing the performance to be so transmitted, whether or not he or she

provides any facilities for the transmission.

"(3) In applying this section, a service of distributing broadcast or other

matter shall be disregarded where the service is only incidental to a business

of keeping or letting premises at which persons reside or sleep, and is

operated as part of the amenities provided exclusively for residents or

inmates of the premises or for those residents or inmates and their guests.

"(4) A reference in this section to the person operating a service of

distributing broadcast or other matter is a reference to the person who, in

the agreements with subscribers to the service, undertakes to provide them

with the service, whether he or she is the person who transmits the broadcast

or other matter or not.

"(5) Where a service of distributing matter over wires or over other paths

provided by a material substance is only incidental to, or part of, a service

of transmitting telegraphic or telephonic communications, a subscriber to the

last-mentioned service shall be taken, for the purposes of this section, to be

a subscriber to the first-mentioned service.

Application

"248F. (1) This Part applies to an act done on or after the commencement of

this Part in relation to a performance given on or after that commencement.

"(2) Nothing in this Part affects any copyright subsisting in a work that is

performed or in any sound recording, cinematograph film or broadcast of a

performance, or any other right or obligation arising otherwise than under

this Part.

"(3) In the application of this Part to a counterclaim, the reference in

section 248J to the defendant shall be read as a reference to the plaintiff.

"Division 2-Actions by performers

What constitutes unauthorised use

"248G. (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;

(b) broadcasts or re-broadcasts the performance, either directly from the

live performance or from an unauthorised recording of it; or

transmitted to subscribers to a diffusion service.

"(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;

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 that the

person knows, or ought reasonably to know, is an unauthorised recording;

(e) sells, lets on hire, or by way of trade exhibits in public or offers or

exposes for sale or hire, a recording of the performance that the person

knows, or ought reasonably to know, is an unauthorised recording;

(f) distributes a recording of the performance for the purpose of trade, or

for any other purpose to an extent that will affect prejudicially the

financial interests of the performer or performers in the performance, being a

recording that the person knows, or ought reasonably to know, is an

unauthorised recording;

(g) imports a recording of the performance into Australia for the purpose

of:

(i) selling it, letting it for hire, or by way of trade exhibiting it

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

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 broadcasts or re-broadcasts an authorised recording of a

performance, or causes an authorised recording of a performance to be

transmitted to subscribers to a diffusion service, 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.

Copying sound recordings for broadcasting

"248H. (1) Despite paragraph 248G (2) (c), where the making of a copy of a

sound recording of a performance for use in a sound-track would, but for this

subsection, be an unauthorised use of the performance under that paragraph,

the making by a person of such a copy solely for the purpose of use in a

broadcast by that person is not an unauthorised use of the performance.

"(2) Subsection (1) does not apply to a copy if it is used for a purpose

other than:

(a) a broadcast by the person who made the copy; or

(b) the making of further copies by that person for the purpose of

broadcasting by that person.

"(3) Subsection (1) does not apply to a copy unless all the copies made in

accordance with that subsection are:

(a) destroyed; or

(b) delivered, with the consent of the Director-General of the Australian

Archives, to the Australian Archives;

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 Australian Archives shall not consent to

the delivery of a copy of a sound recording to the Australian Archives unless

the Director-General has certified that the sound recording is of an

exceptional documentary character.

Actions for unauthorised use

"248J. (1) A performer may bring an action for an unauthorised use of his or

her performance.

"(2) The relief that a court may grant in an action for an unauthorised use

of a performance includes an injunction (subject to such terms, if any, as the

court thinks fit) and damages.

"(3) Where, in an action for an unauthorised use of a performance:

(a) the unauthorised use is established; and

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

(i) the flagrancy of the use;

(ii) any benefit shown to have accrued to the defendant by reason of

the

use; and

(iii) all other relevant matters;

the court may, in assessing damages, award such additional damages as it

considers appropriate in the circumstances.

Exercise of jurisdiction

"248K. 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.

Appeals

"248L. (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.

Jurisdiction of Federal Court

"248M. Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under section 248J.

Right to bring an action not assignable

"248N. The right of a performer to bring an action under section 248J is not

assignable.

"Division 3-Offences

Offences involving unauthorised recording, broadcasting etc. of performances

"248P. (1) A person shall not, at any time during the protection period of a

performance, make a direct recording of the performance without the authority

of the performer.

"(2) A person shall not, at any time during the protection period of a

performance, make an indirect recording of the performance without the

authority of the performer.

"(3) A person shall not, at any time during the protection period of a

performance, broadcast or re-broadcast the performance, either directly from

the live performance or from an unauthorised recording of it, without the

authority of the performer.

"(4) A person shall not, at any time during the protection period of a

performance, cause the live performance, or an unauthorised recording of it,

to be transmitted to subscribers to a diffusion service without the authority

of the performer.

"(5) A person shall not, at any time during the protection period of a

performance, cause a recording of the performance to be heard or seen in

public if the person knows, or ought reasonably to know, that the recording is

an unauthorised recording.

"(6) A person shall not, at any time during the protection period of a

performance, have in his or her possession any plate or recording equipment

that the person knows, or ought reasonably to know, is to be used for making

an unauthorised recording of the performance or a copy of such a recording.

"(7) This section applies only to acts done in Australia.

"(8) A person who broadcasts or re-broadcasts an authorised recording of a

performance, or causes an authorised recording of a performance to be

transmitted to subscribers to a diffusion service, without the authority of

the performer does not, by doing so, contravene subsection (3) or (4).

Other offences in relation to performances

"248Q. (1) A person shall not, at any time during the protection period of a

performance, make a copy of a recording of the performance if the person

knows, or ought reasonably to know, that the recording is an unauthorised

recording.

"(2) A person shall not, at any time during the protection period of a

performance, make a copy of an exempt recording of the performance without the

authority of the performer if the person knows, or ought reasonably to know,

that the copy is not itself an exempt recording.

"(3) A person shall not, at any time during the protection period of a

performance, make a copy of an authorised sound recording of the performance

without the authority of the performer if:

(a) the copy is made for use in a sound-track 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; and

(b) the making of the copy is an unauthorised use of the performance under

subsection 248G (2).

"(4) A person shall not, at any time during the protection period of a

performance, have in his or her possession a recording of the performance if

the person knows, or ought reasonably to know, that the recording is an

unauthorised recording.

"(5) A person shall not, at any time during the protection period of a

performance:

(a) sell, let for hire, or by way of trade offer or expose for sale or

hire a recording of the performance;

(b) distribute 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; or

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

to an extent that will affect prejudicially the financial interests of the

performer or performers in the performance;

if the person knows, or ought reasonably to know, that the recording is

unauthorised recording.

"(6) A person shall not, at any time during the protection period of a

performance:

(a) by way of trade exhibit in public a recording of the performance; or

(b) import a recording of the performance into Australia for the purpose of

exhibiting the recording in public by way of trade;

if the person knows, or ought reasonably to know, that the recording is an

unauthorised recording.

"(7) This section applies only to acts done in Australia.

Penalties

"248R. (1) A person who contravenes subsection 248P (1) or (2) is guilty of

an offence punishable on conviction by:

(a) if it is the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a sound

recording:

(i) if the person is a natural person-a fine not exceeding $500; or

(ii) if the person is a body corporate-a fine not exceeding $2,500;

(b) if it is the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a

cinematograph film:

(i) if the person is a natural person-a fine not exceeding $1,500 or

imprisonment for a term not exceeding 2 years, or both; or

(ii) if the person is a body corporate-a fine not exceeding $7,500;

subsection and the recording to which the contravention relates is a sound

recording:

(i) if the person is a natural person-a fine not exceeding $500 or

imprisonment for a term not exceeding 6 months, or both; or

(ii) if the person is a body corporate-a fine not exceeding $5,000; or

(d) if it is not the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a

cinematograph film:

(i) if the person is a natural person-a fine not exceeding $1,500 or

imprisonment for a term not exceeding 5 years, or both; or

(ii) if the person is a body corporate-a fine not exceeding $15,000.

"(2) A person who contravenes subsection 248P (3), (4), (5) or (6) is guilty

of an offence punishable on conviction by:

(a) if it is the person's first conviction for a contravention of that

subsection:

(i) if the person is a natural person-a fine not exceeding $1,500; or

(ii) if the person is a body corporate-a fine not exceeding $7,500; or

(b) in any other case:

(i) if the person is a natural person-a fine not exceeding $1,500 or

imprisonment for a term not exceeding 6 months, or both; or

(ii) if the person is a body corporate-a fine not exceeding $15,000.

"(3) A person who contravenes subsection 248Q (1), (2), (3), (4), (5) or (6)

is guilty of an offence punishable on conviction by:

(a) if it is the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a sound

recording:

(i) if the person is a natural person-a fine not exceeding $500 for

each

sound recording or copy to which the offence relates; or

(ii) if the person is a body corporate-a fine not exceeding $2,500 for

each sound recording or copy to which the offence relates;

(b) if it is the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a

cinematograph film:

(i) if the person is a natural person-a fine not exceeding $1,500 for

each cinematograph film or copy to which the offence relates or imprisonment

for a term not exceeding 2 years, or both; or

(ii) if the person is a body corporate-a fine not exceeding $7,500 for

each cinematograph film or copy to which the offence relates;

subsection and the recording to which the contravention relates is a sound

recording:

(i) if the person is a natural person-a fine not exceeding $500 for

each

sound recording or copy to which the offence relates or imprisonment for a

term not exceeding 6 months, or both; or

(ii) if the person is a body corporate-a fine not exceeding $5,000 for

each sound recording or copy to which the offence relates; or

(d) if it is not the person's first conviction for a contravention of that

subsection and the recording to which the contravention relates is a

cinematograph film:

(i) if the person is a natural person-a fine not exceeding $1,500 for

each cinematograph film or copy to which the offence relates or imprisonment

for a term not exceeding 5 years, or both; or

(ii) if the person is a body corporate-a fine not exceeding $15,000 for

each cinematograph film or copy to which the offence relates.

"(4) Where a fine is imposed on a person under subsection (3) in relation to

an offence committed by the person and there is more than one recording or

copy to which the offence relates:

(a) if the person is prosecuted before the Federal Court of Australia-the

fine imposed in respect of the offence shall not exceed $50,000 if the person

is a natural person or $250,000 if the person is a body corporate; and

(b) if the person is prosecuted before any other court-the fine imposed in

respect of the offence shall not exceed $10,000 if the person is a natural

person or $50,000 if the person is a body corporate.

Prosecutions for offences

"248S. (1) Prosecutions for offences against this Part may be brought in the

Federal Court of Australia or in any other court of competent jurisdiction.

"(2) Jurisdiction is conferred on the Federal Court of Australia to hear and

determine prosecutions for offences against this Part.

Destruction or delivery up of unauthorised recordings

"248T. The court before which a person is charged with an offence against

this Part may, whether the person is convicted of the offence or not, order

that any article in the possession of the person that appears to the court to

be:

(a) an unauthorised recording of a performance, or a copy of such a

recording; or

(b) a plate or recording equipment used, or intended to be used, for making

an unauthorised recording of a performance, or copies of such a recording;

be destroyed or delivered up to the performer or performers concerned or

otherwise dealt with in such manner as the court thinks fit.

"Division 4-Extension of protection to foreign countries

Application to foreign countries

"248U. (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;

(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;

that country in like manner as those provisions apply in relation to persons

who are resident in Australia.

"(2) Regulations applying a provision of this Part in relation to a foreign

country:

(a) may apply the provision without exception or modification or subject to

such exceptions or modifications as are specified in the regulations; and

(b) may apply the provision either generally or in relation to such classes

of performances, or other classes of cases, as are specified in the

regulations.

"(3) Regulations shall not be made applying any of the provisions of this

Part in relation to a foreign country that is not a party to a Convention

relating to the protection of performers to which Australia is also a party

unless the Governor-General is satisfied that, in respect of the performances

to which those provisions relate, provision has been or will be made under the

law of that country under which adequate protection is or will be given to

performers whose performances are protected under this Act.

Denial of protection to citizens of countries not giving adequate protection

to Australian performances

"248V. (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 the nature of the performance or the

nationality, citizenship or country of residence of its performer, or all of

those matters), 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.".

Savings

29. In spite of anything in this Act:

(a) the Principal Act, as in force immediately before the commencement of

section 14 of this Act, continues to apply in relation to a copy of a

television broadcast made in reliance on section 200A of the Principal Act;

and

(b) the Principal Act, as in force immediately before the commencement of

section 15 of this Act, continues to apply in relation to a copy of a work or

other subject-matter made in reliance on section 53A, 53B, 53C, 53D or 200A of

the Principal Act;

until the end of the period of 4 years beginning on the day on which the copy

was made.

SCHEDULE

FURTHER AMENDMENTS OF THE COPYRIGHT ACT 1968

1. Subsection 10 (1) (definition of "dramatic work"):

"Omit from paragraph (a) of the definition "if described in writing in the

form in which the show is to be presented".

2. Subsection 10 (1) (definition of "officer in charge"):

(a) Add at the end of paragraph (a) of the definition "and".

(b) Omit paragraph (b) of the definition.

3. Subsection 10 (1) (definition of "central records authority"):

Omit the definition.

4. Subsection 10 (1) (definition of "the Crown"):

(a) Omit "and the Crown in right of the Northern Territory", substitute ",

the Crown in right of the Northern Territory and the Crown in right of

Norfolk

Island".

(b) Add at the end of the definition "or Norfolk Island".

5. Subsection 10 (1) (definitions of "the royalty" and "the minimum

royalty"):

Omit the definitions.

6. Paragraph 10 (3) (a):

Omit "or a central records authority".

7. Subparagraph 10 (3) (a) (i):

Omit "or authority" and "or authority, as the case may be".

8. Subparagraph 10 (3) (a) (ii):

Omit "or authority, as the case may be".

9. Paragraph 10 (3) (d):

Omit the paragraph.

10. Paragraph 10 (3) (e):

Add at the end of the paragraph "and the Crown in right of Norfolk Island".

11. Paragraph 10 (3) (ha):

Omit "Part X", substitute "Part VB".

12. Paragraph 10 (3) (n):

(a) After "Northern Territory" (first occurring) insert "and Norfolk

Island".

(b) After "Northern Territory" (second occurring) insert "or Norfolk

Island".

13. Paragraph 10A (1) (a):

Omit the paragraph.

14. Subsection 22 (1):

Omit "or musical", substitute ", musical or artistic".

15. Divisions 5A and 5B of Part III:

Repeal the Divisions.

16. Sections 56 and 58:

Repeal the sections.

17. Sections 62, 63 and 71:

Repeal the sections.

18. Subparagraphs 112 (a) (ii) and (b) (ii):

(a) Omit "53A, 53B, 53D", substitute "135ZG, 135ZJ, 135ZK, 135ZL, 135ZM,

135ZN, 135ZP, 135ZQ, 135ZR, 135ZS, 135ZT or".

(b) Omit "or 200A".

19. Subsections 135 (10) and (11):

Omit the subsections.

20. Section 148:

Repeal the section.

21. Subsection 149A (1):

(a) Omit ", 53B (11), 53D (10)".

(b) Omit "or 200A (5)".

copy or intellectually handicapped person's copy".

22. Subsection 149A (3):

Omit "for the making of the sound broadcast, copy, handicapped person's

copy,

or intellectually handicapped person's copy, as the case requires".

23. Section 159A:

Repeal the section.

24. Section 159B:

Repeal the section.

25. Subsection 183 (11):

Omit "for the teaching", substitute "or other subject-matter for the

educational".

26. Subsection 184 (1):

After "this Act" insert "(other than those of Part XIA)".

27. Subsection 195A (2):

(a) Omit "53B, 53D,".

(b) Omit "110B or 200A", substitute "or 110B".

28. Section 203B:

Repeal the section.

29. Section 203C:

Repeal the section.

30. Subsections 203D (2), (3) and (4):

Omit the subsections.

31. Subsection 203D (5):

(a) Omit ", (2) or (4) in relation to the arrangement of declarations or

copying records".

(b) Omit "or copying records, as the case may be,".

32. Subsection 203F (1):

(a) Omit "53B, 53D,".

(b) Omit ", 110B or 200A", substitute "or 110B".

33. Subsection 203F (2):

(a) Omit ", 53B".

(b) Omit ", in relation to the making of a handicapped reader's copy of

the

whole or a part of a work in reliance on section 53D".

an eligible item in reliance on section 200A".

(d) Omit "or record" (wherever occurring).

34. Subsections 203F (3) and (4):

Omit the subsections.

35. Section 203G:

Repeal the section.

36. Subsection 203H (1):

(a) Omit ", 51A, 53B or 53D", substitute "or 51A".

(b) Omit all the words from and including "notation", substitute "notation

stating that the copy was made on behalf of that institution and specifying

the

date on which the copy was made.".

37. Subsection 203H (2):

(a) Omit ", a cinematograph film or an eligible item", substitute "or a

cinematograph film".

(b) Omit ", cinematograph film or eligible item, or a part of the eligible

item", substitute "or cinematograph film".

(d) Omit all the words from and including "notation", substitute "notation

stating that the copy was made on behalf of that institution and specifying

the

date on which the copy was made.".

38. Subsections 203H (3) and (3A):

Omit the subsections.

39. Paragraph 203H (4) (a):

Add at the end of the paragraph "or".

40. Paragraph 203H (4) (aa):

Omit the paragraph, substitute the following paragraph:

"(aa) makes on, or attaches to, a copy of a sound recording or a

cinematograph film a notation of the kind referred to in subsection (2);".

41. Paragraph 203H (4) (b):

Omit the paragraph.

42. Subsection 203H (4):

Omit "or message".

43. Subsection 203H (5):

Omit ", (2), (3) and (3A)", substitute "and (2)".

44. Paragraphs 203H (5) (a), (5) (b) and (5) (c):

Omit ", a cinematograph film or an eligible item, or of a part of a work or

an eligible item", substitute "or a cinematograph film, or of a part of a

work".

45. Paragraph 203H (5) (e):

Omit ", a cinematograph film or an eligible item, or of a part of an

eligible

item,", substitute "or a cinematograph film".

46. Paragraph 203H (6) (a):

Add at the end of the paragraph "or".

47. Paragraph 203H (6) (b):

Omit the paragraph.

48. Subsection 203H (6):

(a) After "notation" (wherever occurring) insert "or mark".

(b) After "subsection (1)" insert ", 135K (1), 135ZY (1), 135ZQ (4) or

135ZT (4)".

49. Subsection 203H (7):

(a) After "notation" (wherever occurring) insert "or mark".

(b) After "subsection (1)" insert ", 135K (1), 135ZX (1), 135ZQ (4) or

135ZT (4)".

50. Subsections 203H (8) and (9):

Omit the subsections.

51. Paragraph 203H (9A) (a):

Add at the end of the paragraph "or".

52. Paragraph 203H (9A) (b):

Omit the paragraph.

53. Subsections 203H (9A) and (9B):

(a) Omit ", a cinematograph film or an eligible item, or of a part of an

eligible item,", substitute "or a cinematograph film".

(b) After "notation" (wherever occurring) insert "or mark".

135ZT (4)".

澳大利亚

AU270

Copyright Amendment Act 1989