Prepared by the Office of Parliamentary Counsel, Canberra
Copyright Act 1968
No. 63, 1968
Compilation No. 53
Compilation date: 23 June 2017
Includes amendments up to: Act No. 49, 2017
Registered: 30 June 2017
Authorised Version C2017C00180 registered 30/06/2017
About this compilation
This compilation
This is a compilation of the Copyright Act 1968 that shows the text of the law as
amended and in force on 23 June 2017 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Part I—Preliminary 1 1 Short title...........................................................................1
2 Commencement.................................................................1
4 Extension to external Territories .......................................1
5 Exclusion of Imperial Copyright Act, 1911.......................1
6 Repeal of Copyright Acts ..................................................1
7 Act to bind the Crown .......................................................2
8 Copyright not to subsist except by virtue of this
Act.....................................................................................2
8A Prerogative rights of the Crown in the nature of
copyright ...........................................................................2
9 Operation of other laws .....................................................2
9A Application of the Criminal Code .....................................3
Part II—Interpretation 4 10 Interpretation .....................................................................4
10AA Non-infringing copy of a sound recording.......................26
10AB Non-infringing copy of a computer program ...................28
10AC Non-infringing copy of an electronic literary or
music item .......................................................................28
10AD Accessories to imported articles ......................................28
10A Declarations and notices relating to certain bodies
and institutions ................................................................29
11 Residence in a country not affected by temporary
absence ............................................................................30
12 References to Parliament.................................................31
13 Acts comprised in copyright............................................31
14 Acts done in relation to substantial part of work or
other subject-matter deemed to be done in relation
to the whole .....................................................................31
15 References to acts done with licence of owner of
copyright .........................................................................32
16 References to partial assignment of copyright.................32
17 Statutory employment .....................................................32
18 Libraries established or conducted for profit ...................32
19 References to Copyright Act, 1911 .................................32
20 Names under which work is published ............................33
21 Reproduction and copying of works and other
subject-matter ..................................................................33
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22 Provisions relating to the making of a work or
other subject-matter .........................................................34
23 Sound recordings and records .........................................37
24 References to sounds and visual images embodied
in an article......................................................................37
25 Provisions relating to broadcasting..................................38
27 Performance ....................................................................39
28 Performance and communication of works or other
subject-matter in the course of educational
instruction........................................................................40
29 Publication.......................................................................42
30 Ownership of copyright for particular purposes ..............44
30A Commercial rental arrangement ......................................44
Part III—Copyright in original literary, dramatic, musical and
artistic works 46
Division 1—Nature, duration and ownership of copyright in
works 46
31 Nature of copyright in original works .............................46
32 Original works in which copyright subsists.....................48
33 Duration of copyright in original works ..........................49
34 Duration of copyright in anonymous and
pseudonymous works ......................................................49
35 Ownership of copyright in original works .......................50
Division 2—Infringement of copyright in works 52
36 Infringement by doing acts comprised in the
copyright .........................................................................52
37 Infringement by importation for sale or hire ...................52
38 Infringement by sale and other dealings ..........................53
39 Infringement by permitting place of public
entertainment to be used for performance of work ..........54
39A Infringing copies made on machines installed in
libraries and archives.......................................................54
39B Communication by use of certain facilities .....................55
Division 3—Acts not constituting infringements of copyright in
works 56
40 Fair dealing for purpose of research or study ..................56
41 Fair dealing for purpose of criticism or review ...............58
41A Fair dealing for purpose of parody or satire ....................58
42 Fair dealing for purpose of reporting news......................58
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43 Reproduction for purpose of judicial proceedings
or professional advice......................................................59
43A Temporary reproductions made in the course of
communication ................................................................59
43B Temporary reproductions of works as part of a
technical process of use ...................................................60
43C Reproducing works in books, newspapers and
periodical publications in different form for
private use .......................................................................60
44 Inclusion of works in collections for use by places
of education.....................................................................62
44A Importation etc. of books.................................................63
44B Reproduction of writing on approved label for
containers for chemical product ......................................66
44BA Acts done in relation to certain medicine ........................67
44BB Copyright subsisting in works shared for
healthcare or related purposes .........................................68
44C Copyright subsisting in accessories etc. to
imported articles ..............................................................69
44D Import of non-infringing copy of sound recording
does not infringe copyright in works recorded ................69
44E Importation and sale etc. of copies of computer
programs..........................................................................70
44F Importation and sale etc. of copies of electronic
literary or music items .....................................................71
Division 4—Acts not constituting infringements of copyright in
literary, dramatic and musical works 72
45 Reading or recitation in public or for a broadcast............72
46 Performance at premises where persons reside or
sleep ................................................................................72
47 Reproduction for purpose of broadcasting.......................72
47AA Reproduction for the purpose of simulcasting .................74
47A Sound broadcasts by holders of print disability
radio licences...................................................................75
Division 4A—Acts not constituting infringements of copyright in
computer programs 78
47AB Meaning of computer program........................................78
47B Reproduction for normal use or study of computer
programs..........................................................................78
47C Back-up copy of computer programs ..............................79
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47D Reproducing computer programs to make
interoperable products .....................................................81
47E Reproducing computer programs to correct errors ..........81
47F Reproducing computer programs for security
testing ..............................................................................82
47G Unauthorised use of copies or information......................83
47H Agreements excluding operation of certain
provisions ........................................................................83
Division 4B—Acts not constituting infringements of copyright in
artistic works 84
47J Reproducing photograph in different format for
private use .......................................................................84
Division 5—Copying of works in libraries or archives 86
48 Interpretation ...................................................................86
48A Copying by Parliamentary libraries for members
of Parliament ...................................................................86
49 Reproducing and communicating works by
libraries and archives for users ........................................86
50 Reproducing and communicating works by
libraries or archives for other libraries or archives ..........91
51 Reproducing and communicating unpublished
works in libraries or archives ..........................................97
51AA Reproducing and communicating works in care of
National Archives of Australia ........................................98
51A Reproducing and communicating works for
preservation and other purposes ......................................99
51B Making preservation copies of significant works in
key cultural institutions’ collections ..............................101
52 Publication of unpublished works kept in libraries
or archives .....................................................................103
53 Application of Division to illustrations
accompanying articles and other works.........................104
Division 6—Recording of musical works 106
54 Interpretation .................................................................106
55 Conditions upon which manufacturer may make
records of musical work ................................................107
57 Provisions relating to royalty where 2 or more
works are on the one record...........................................109
59 Conditions upon which manufacturer may include
part of a literary or dramatic work in a record of a
musical work .................................................................110
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60 Records made partly for retail sale and partly for
gratuitous disposal.........................................................112
61 Making inquiries in relation to previous records ...........113
64 Sections 55 and 59 to be disregarded in
determining whether an infringement has been
committed by the importation of records.......................114
Division 7—Acts not constituting infringements of copyright in
artistic works 115
65 Sculptures and certain other works in public places ......115
66 Buildings and models of buildings ................................115
67 Incidental filming or televising of artistic works ...........115
68 Publication of artistic works ..........................................115
70 Reproduction for purpose of including work in
television broadcast .......................................................116
72 Reproduction of part of work in later work ...................117
73 Reconstruction of buildings...........................................117
Division 8—Designs 119
74 Corresponding design....................................................119
75 Copyright protection where corresponding design
registered .......................................................................119
76 False registration of industrial designs under the
Designs Act 2003...........................................................119
77 Application of artistic works as industrial designs
without registration of the designs.................................120
77A Certain reproductions of an artistic work do not
infringe copyright ..........................................................122
Division 9—Works of joint authorship 124
78 References to all of joint authors...................................124
79 References to any one or more of joint authors .............124
80 References to whichever of joint authors died last ........124
81 Works of joint authorship published under
pseudonyms...................................................................124
82 Copyright to subsist in joint works without regard
to any author who is an unqualified person ...................125
83 Inclusion of joint works in collections for use in
places of education ........................................................125
Part IV—Copyright in subject-matter other than works 126
Division 1—Preliminary 126
84 Definitions.....................................................................126
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Division 2—Nature of copyright in subject-matter other than
works 128
85 Nature of copyright in sound recordings .......................128
86 Nature of copyright in cinematograph films..................128
87 Nature of copyright in television broadcasts and
sound broadcasts ...........................................................129
88 Nature of copyright in published editions of works.......129
Division 3—Subject-matter, other than works, in which
copyright subsists 130
89 Sound recordings in which copyright subsists...............130
90 Cinematograph films in which copyright subsists .........130
91 Television broadcasts and sound broadcasts in
which copyright subsists ...............................................130
92 Published editions of works in which copyright
subsists ..........................................................................131
Division 4—Duration of copyright in subject-matter other than
works 132
93 Duration of copyright in sound recordings ....................132
94 Duration of copyright in cinematograph films...............132
95 Duration of copyright in television broadcasts and
sound broadcasts ...........................................................132
96 Duration of copyright in published editions of
works .............................................................................133
Division 5—Ownership of copyright in subject-matter other
than works 134
Subdivision A—Ownership of copyright in subject-matter other
than works 134
97 Ownership of copyright in sound recordings.................134
98 Ownership of copyright in cinematograph films ...........134
99 Ownership of copyright in television broadcasts
and sound broadcasts.....................................................136
100 Ownership of copyright in published editions of
works .............................................................................136
Subdivision B—Specific provisions relating to the ownership of
copyright in pre-commencement sound recordings
of live performances 136
100AA Application....................................................................136
100AB Definitions.....................................................................136
100AC Application of sections 100AD and 100AE ..................137
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100AD Makers of pre-commencement sound recordings of
live performances ..........................................................137
100AE Ownership of pre-commencement copyright in
sound recordings of live performances..........................138
100AF Former owners may continue to do any act in
relation to the copyright ................................................139
100AG Actions by new owners of copyright .............................139
100AH References to the owner of the copyright in a
sound recording .............................................................140
Division 6—Infringement of copyright in subject-matter other
than works 141
100A Interpretation .................................................................141
101 Infringement by doing acts comprised in copyright ......141
102 Infringement by importation for sale or hire .................142
103 Infringement by sale and other dealings ........................142
103A Fair dealing for purpose of criticism or review .............143
103AA Fair dealing for purpose of parody or satire ..................143
103B Fair dealing for purpose of reporting news....................144
103C Fair dealing for purpose of research or study ................144
104 Acts done for purposes of judicial proceeding ..............144
104A Acts done by Parliamentary libraries for members
of Parliament .................................................................145
104B Infringing copies made on machines installed in
libraries and archives.....................................................145
104C Copyright subsisting in sound recordings and
cinematograph films shared for healthcare or
related purposes.............................................................146
105 Copyright in certain recordings not infringed by
causing recordings to be heard in public or
broadcast .......................................................................147
106 Causing sound recording to be heard at guest
house or club .................................................................147
107 Making of a copy of the sound recording for
purpose of broadcasting.................................................148
108 Copyright in published recording not infringed by
public performance if equitable remuneration paid .......149
109 Copyright in published sound recording not
infringed by broadcast in certain circumstances ............150
109A Copying sound recordings for private and
domestic use ..................................................................152
110 Provisions relating to cinematograph films ...................153
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110AA Copying cinematograph film in different format
for private use................................................................153
110A Copying and communicating unpublished sound
recordings and cinematograph films in libraries or
archives .........................................................................155
110B Copying and communicating sound recordings and
cinematograph films for preservation and other
purposes ........................................................................156
110BA Making preservation copies of significant
recordings and films in key cultural institutions’
collections .....................................................................158
110C Making of a copy of a sound recording or
cinematograph film for the purpose of
simulcasting...................................................................160
111 Recording broadcasts for replaying at more
convenient time .............................................................161
111A Temporary copy made in the course of
communication ..............................................................162
111B Temporary copy of subject-matter as part of a
technical process of use .................................................162
112 Reproductions of editions of work ................................163
112A Importation and sale etc. of books.................................164
112AA Making preservation copies of significant
published editions in key cultural institutions’
collections .....................................................................167
112B Reproduction of writing on approved label for
containers for chemical product ....................................168
112C Copyright subsisting in accessories etc. to
imported articles ............................................................169
112D Import of non-infringing copy of a sound
recording does not infringe copyright in the sound
recording .......................................................................169
112DA Importation and sale etc. of copies of electronic
literary or music items ...................................................170
112E Communication by use of certain facilities ...................171
Division 7—Miscellaneous 172
113 Copyrights to subsist independently..............................172
113A Agents may act on behalf of groups of performers........172
113B Consent to the use of a sound recording of a live
performance...................................................................172
113C Use of published sound recordings when owners
cannot be found etc........................................................173
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Part V—Remedies and offences 175
Division 1—Preliminary 175
114 Interpretation .................................................................175
Division 2—Actions by owner of copyright 176
115 Actions for infringement ...............................................176
115A Injunctions against carriage service providers
providing access to online locations outside
Australia ........................................................................178
116 Rights of owner of copyright in respect of
infringing copies............................................................180
116AAA Compensation for acquisition of property .....................182
Division 2AA—Limitation on remedies available against
carriage service providers 184
Subdivision A—Preliminary 184
116AA Purpose of this Division ................................................184
116AB Definitions.....................................................................184
Subdivision B—Relevant activities 185
116AC Category A activity .......................................................185
116AD Category B activity........................................................185
116AE Category C activity........................................................185
116AF Category D activity .......................................................186
Subdivision C—Limitations on remedies 186
116AG Limitations on remedies ................................................186
Subdivision D—Conditions 187
116AH Conditions .....................................................................187
116AI Evidence of compliance with conditions .......................192
Subdivision E—Regulations 192
116AJ Regulations....................................................................192
Division 2A—Actions in relation to technological protection
measures and electronic rights management
information 194
Subdivision A—Technological protection measures 194
116AK Definitions.....................................................................194
116AL Interaction of this Subdivision with Part VAA..............194
116AM Geographical application...............................................194
116AN Circumventing an access control technological
protection measure ........................................................194
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116AO Manufacturing etc. a circumvention device for a
technological protection measure ..................................198
116AP Providing etc. a circumvention service for a
technological protection measure ..................................202
116AQ Remedies in actions under this Subdivision ..................205
Subdivision B—Electronic rights management information 206
116B Removal or alteration of electronic rights
management information...............................................206
116C Distribution to the public etc. of works whose
electronic rights management information has
been removed or altered ................................................207
116CA Distribution and importation of electronic rights
management information that has been removed or
altered............................................................................208
116CB Exception relating to national security and law
enforcement...................................................................209
116D Remedies in actions under this Subdivision ..................209
Division 3—Proceedings where copyright is subject to exclusive
licence 211
117 Interpretation .................................................................211
118 Application....................................................................211
119 Rights of exclusive licensee ..........................................211
120 Joinder of owner or exclusive licensee as a party..........212
121 Defences available against exclusive licensee ...............212
122 Assessment of damages where exclusive licence
granted...........................................................................213
123 Apportionment of profits between owner and
exclusive licensee ..........................................................213
124 Separate actions in relation to the same
infringement ..................................................................214
125 Liability for costs ..........................................................214
Division 4—Proof of facts in civil actions 215
126 Presumptions as to subsistence and ownership of
copyright .......................................................................215
126A Presumptions relating to subsistence of copyright.........215
126B Presumptions relating to ownership of copyright ..........216
127 Presumptions in relation to authorship of work .............218
128 Presumptions in relation to publisher of work...............219
129 Presumptions where author has died .............................219
129A Presumptions relating to computer programs ................220
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130 Presumptions relating to sound recordings....................220
130A Acts relating to imported copies of sound
recordings......................................................................222
130B Acts relating to imported copies of computer
programs........................................................................222
130C Acts relating to imported copies of electronic
literary or music items ...................................................222
131 Presumptions relating to films.......................................223
Division 4A—Jurisdiction and appeals 225
131A Exercise of jurisdiction..................................................225
131B Appeals..........................................................................225
131C Jurisdiction of Federal Court of Australia .....................225
131D Jurisdiction of Federal Circuit Court of Australia .........225
Division 5—Offences and summary proceedings 226
Subdivision A—Preliminary 226
132AA Definitions.....................................................................226
132AB Geographical application...............................................226
Subdivision B—Substantial infringement on a commercial scale 227
132AC Commercial-scale infringement prejudicing
copyright owner.............................................................227
Subdivision C—Infringing copies 229
132AD Making infringing copy commercially ..........................229
132AE Selling or hiring out infringing copy .............................231
132AF Offering infringing copy for sale or hire .......................232
132AG Exhibiting infringing copy in public commercially.......234
132AH Importing infringing copy commercially.......................236
132AI Distributing infringing copy ..........................................239
132AJ Possessing infringing copy for commerce .....................241
132AK Aggravated offence—work etc. converted to
digital form....................................................................244
132AL Making or possessing device for making
infringing copy ..............................................................244
132AM Advertising supply of infringing copy...........................246
Subdivision D—Airing of works, sound recordings and films 247
132AN Causing work to be performed publicly ........................247
132AO Causing recording or film to be heard or seen in
public.............................................................................248
Subdivision E—Technological protection measures 249
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132APA Definitions.....................................................................249
132APB Interaction of this Subdivision with Part VAA..............249
132APC Circumventing an access control technological
protection measure ........................................................250
132APD Manufacturing etc. a circumvention device for a
technological protection measure ..................................254
132APE Providing etc. a circumvention service for a
technological protection measure ..................................259
Subdivision F—Electronic rights management information 263
132AQ Removing or altering electronic rights
management information...............................................263
132AR Distributing, importing or communicating copies
after removal or alteration of electronic rights
management information...............................................265
132AS Distributing or importing electronic rights
management information...............................................268
132AT Defences........................................................................270
Subdivision G—Evidence 272
132AU Prosecution to prove profit ............................................272
132A Presumptions in relation to subsistence and
ownership of copyright..................................................272
132AAA Presumptions relating to computer programs ................273
132B Presumptions relating to sound recordings....................274
132C Presumptions relating to films.......................................275
Subdivision H—Extra court orders 276
133 Destruction or delivery up of infringing copies etc. ......276
Subdivision I—Procedure and jurisdiction 277
133A Courts in which offences may be prosecuted ................277
133B Infringement notices......................................................277
Division 6—Miscellaneous 279
134 Limitation of actions in respect of infringement of
copyright .......................................................................279
134A Affidavit evidence .........................................................279
Division 7—Seizure of imported copies of copyright material 281
134B Interpretation .................................................................281
135 Restriction of importation of copies of works etc..........282
135AA Decision not to seize unless expenses are covered ........284
135AB Secure storage of seized copies .....................................285
135AC Notice of seizure............................................................285
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135AD Inspection, release etc. of seized copies ........................287
135AE Forfeiture of seized copies by consent...........................288
135AEA Claim for release of seized copies .................................288
135AEB Seized copies not claimed are forfeited .........................288
135AEC Late claim for release of seized copies ..........................289
135AED Objector to be notified of claim.....................................289
135AF Release of seized copies to importer .............................289
135AFA Copies released but not collected are forfeited ..............291
135AG Provision relating to actions for infringement of
copyright .......................................................................291
135AH Retention of control of seized copies.............................292
135AI Disposal of seized copies forfeited to the
Commonwealth .............................................................292
135AJ Failure to meet Commonwealth’s expenses of
seizure ...........................................................................293
135AK Immunity of the Commonwealth...................................294
Part VAA—Unauthorised access to encoded broadcasts 295
Division 1—Preliminary 295
135AL Definitions.....................................................................295
135AM Counterclaim .................................................................296
135AN This Part does not apply to law enforcement
activity etc. ....................................................................296
Division 2—Actions 297
Subdivision A—Actions relating to unauthorised decoders 297
135AOA Making or dealing with unauthorised decoder...............297
Subdivision B—Actions relating to decoders for subscription
broadcasts 298
135AOB Making decoder available online...................................298
Subdivision C—Actions for unauthorised access to encoded
broadcasts 299
135AOC Causing unauthorised access .........................................299
135AOD Unauthorised commercial use of subscription
broadcast .......................................................................300
Subdivision D—Court orders 301
135AOE Relief .............................................................................301
135AOF Destruction of decoder ..................................................302
Subdivision E—Jurisdiction and appeals 302
135AP Exercise of jurisdiction..................................................302
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135AQ Appeals..........................................................................302
135AR Jurisdiction of Federal Court of Australia .....................302
135AS Jurisdiction of Federal Circuit Court of Australia .........302
Division 3—Offences 303
Subdivision A—Offences 303
135ASA Making unauthorised decoder .......................................303
135ASB Selling or hiring unauthorised decoder..........................303
135ASC Offering unauthorised decoder for sale or hire..............303
135ASD Commercially exhibiting unauthorised decoder in
public.............................................................................304
135ASE Importing unauthorised decoder commercially .............305
135ASF Distributing unauthorised decoder.................................306
135ASG Making unauthorised decoder available online .............306
135ASH Making decoder available online for subscription
broadcast .......................................................................307
135ASI Unauthorised access to subscription broadcast etc. .......307
135ASJ Causing unauthorised access to encoded broadcast
etc. .................................................................................308
Subdivision B—Prosecutions 310
135ATA Courts in which offences may be prosecuted ................310
Subdivision C—Further orders by court 311
135AU Destruction etc. of unauthorised decoders.....................311
Part VA—Copying and communication of broadcasts by
educational and other institutions 312
Division 1—Preliminary 312
135A Interpretation .................................................................312
135B Copies and communications of broadcasts ....................313
135C Extended operation of this Part .....................................313
135D Operation of collecting society rules .............................314
Division 2—Copying and communication of broadcasts 315
135E Copying and communication of broadcasts by
educational institutions etc. ...........................................315
135F Making and communication of preview copies .............316
135G Remuneration notices ....................................................318
135H Records notices .............................................................319
135J Sampling notices ...........................................................321
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135JAA Determination of questions relating to this
Division or the collecting society’s rules.......................323
135JA Agreed notice ................................................................324
135K Marking and record keeping requirements ....................326
135KA Notice requirements in respect of communications.......327
135L Inspection of records etc................................................328
135M Revocation of remuneration notice................................329
135N Request for payment of equitable remuneration............329
Division 3—The collecting society 331
135P Declaration of the collecting society .............................331
135Q Revocation of declaration..............................................332
135R Annual report and accounts ...........................................333
135S Amendment of rules ......................................................333
135SA Applying to Tribunal for review of distribution
arrangement...................................................................334
Division 4—Interim copying 335
135T Appointment of notice holder........................................335
135U Copying before declaration of collecting society ..........335
135V Preview copies...............................................................336
135W Notices by administering bodies....................................336
135X Marking and record keeping requirements ....................337
135Y Effect of declaration of collecting society .....................337
Division 5—Miscellaneous 339
135Z Relevant right holder may authorise copying etc. .........339
135ZA Copyright not to vest in copier ......................................339
Part VB—Reproducing and communicating works etc. by
educational and other institutions 340
Division 1—Preliminary 340
135ZB Interpretation .................................................................340
135ZC Eligible items and photographic versions......................342
135ZE Part does not apply to computer programs ....................342
135ZF Operation of collecting society rules .............................343
135ZFA Licensed communications .............................................343
Division 2—Reproduction by educational institutions of works
that are in hardcopy form 344
135ZGA Application of Division .................................................344
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135ZG Multiple reproduction of insubstantial parts of
works that are in hardcopy form....................................344
135ZH Copying of printed published editions by
educational institutions..................................................345
135ZJ Multiple reproduction of printed periodical articles
by educational institutions.............................................345
135ZK Multiple reproduction of works published in
printed anthologies ........................................................346
135ZL Multiple reproduction of works that are in
hardcopy form by educational institutions.....................347
135ZM Application of Division to certain illustrations that
are in hardcopy form .....................................................347
Division 2A—Reproduction and communication of works that
are in electronic form 350
135ZMA Application of Division .................................................350
135ZMB Multiple reproduction and communication of
insubstantial parts of works that are in electronic
form...............................................................................350
135ZMC Multiple reproduction and communication of
periodical articles that are in electronic form by
education institutions.....................................................352
135ZMD Multiple reproduction and communication of
works that are in electronic form by educational
institutions .....................................................................353
135ZMDA Reproduction and communication of works from
electronic anthologies by educational institutions .........354
135ZME Application of Division to certain illustrations in
electronic form ..............................................................354
Division 3—Reproduction and communication of works by
institutions assisting persons with a print disability 357
135ZN Copying published editions by institutions
assisting persons with a print disability .........................357
135ZP Multiple reproduction and communication of
works by institutions assisting persons with a print
disability........................................................................357
135ZQ Making of relevant reproductions and relevant
communications by institutions assisting persons
with a print disability.....................................................360
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Division 4—Reproduction and communication of works etc. by
institutions assisting persons with an intellectual
disability 363
135ZR Copying of published editions by institutions
assisting persons with an intellectual disability .............363
135ZS Copying and communication of eligible items by
institutions assisting persons with an intellectual
disability........................................................................363
135ZT Making of copies etc. for use in making copies or
communications for a person with an intellectual
disability........................................................................364
Division 5—Equitable remuneration 366
135ZU Remuneration notices ....................................................366
135ZV Records notices .............................................................366
135ZW Sampling notices ...........................................................367
135ZWAA Determination of questions relating to this Part or
a collecting society’s rules.............................................368
135ZWA Electronic use notices ....................................................369
135ZX Records notices and sampling notices: marking
and record-keeping requirements ..................................371
135ZXA Electronic use notices: notice requirements etc. ............373
135ZY Inspection of records etc................................................374
135ZZ Revocation of remuneration notice................................375
135ZZA Request for payment of equitable remuneration............375
Division 6—Collecting societies 376
135ZZB Collecting societies........................................................376
135ZZC Revocation of declaration..............................................378
135ZZD Annual report and accounts ...........................................379
135ZZE Amendment of rules ......................................................379
135ZZEA Applying to Tribunal for review of distribution
arrangement...................................................................380
Division 7—Miscellaneous 381
135ZZF Rights of copyright owners ...........................................381
135ZZG Copyright not to vest in copier ......................................381
135ZZH Unauthorised use of copies............................................382
Part VC—Retransmission of free-to-air broadcasts 383
Division 1—Preliminary 383
135ZZI Definitions.....................................................................383
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135ZZJ Operation of collecting society rules .............................384
135ZZJA Application of Part ........................................................384
Division 2—Retransmission of free-to-air broadcasts 385
135ZZK Retransmission of free-to-air broadcasts .......................385
135ZZL Remuneration notices ....................................................385
135ZZM Amount of equitable remuneration................................386
135ZZN Record system ...............................................................386
135ZZP Inspection of records etc................................................387
135ZZQ Identity cards .................................................................388
135ZZR Revocation of remuneration notice................................388
135ZZS Request for payment of equitable remuneration............389
Division 3—Collecting societies 390
135ZZT Collecting societies........................................................390
135ZZU Revocation of declaration..............................................392
135ZZV Annual report and accounts ...........................................392
135ZZW Amendment of rules ......................................................393
135ZZWA Applying to Tribunal for review of distribution
arrangement...................................................................393
Division 4—Interim retransmissions 395
135ZZX Appointment of notice holder........................................395
135ZZY Retransmitting before declaration of collecting
society ...........................................................................395
135ZZZ Notices by retransmitters ...............................................395
135ZZZA Record keeping requirements ........................................396
135ZZZB Effect of declaration of collecting society .....................396
Division 5—Miscellaneous 398
135ZZZC Relevant copyright owner may authorise
retransmitting ................................................................398
135ZZZD Copyright not to vest under this Part .............................398
135ZZZE Licence to retransmit does not authorise copyright
infringements.................................................................398
Part VD—Re-broadcasts by satellite BSA licensees 399
Division 1—Preliminary 399
135ZZZF Definitions.....................................................................399
135ZZZG Eligible program and original broadcaster.....................400
135ZZZH Operation of collecting society rules .............................400
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Division 2—Re-broadcasts by satellite BSA licensees 401
135ZZZI Re-broadcasts by satellite BSA licensees ......................401
135ZZZJ Remuneration notices ....................................................403
135ZZZK Amount of equitable remuneration................................404
135ZZZL Record system ...............................................................405
135ZZZM Revocation of remuneration notice................................405
135ZZZN Request for payment of equitable remuneration............405
Division 3—Collecting societies 407
135ZZZO Collecting societies........................................................407
135ZZZP Revocation of declaration..............................................409
135ZZZQ Annual report and accounts ...........................................410
135ZZZR Amendment of rules ......................................................411
135ZZZS Applying to Tribunal for review of distribution
arrangement...................................................................411
Division 4—Interim re-broadcasts 412
135ZZZT Appointment of notice holder........................................412
135ZZZU Re-broadcast before declaration of collecting
society ...........................................................................412
135ZZZV Notices by satellite BSA licensees ................................412
135ZZZW Record keeping requirements ........................................413
135ZZZX Effect of declaration of collecting society .....................413
Division 5—Miscellaneous 415
135ZZZY Relevant copyright owner may authorise
re-broadcast ...................................................................415
135ZZZZ Copyright not to vest under this Part .............................415
135ZZZZA Licence to re-broadcast does not authorise
copyright infringements ................................................415
Part VI—Copyright Tribunal of Australia 416
Division 1—Preliminary 416
136 Interpretation .................................................................416
137 Cases to which licence schemes apply ..........................418
Division 2—Constitution of the Tribunal 419
138 Constitution of Tribunal ................................................419
139 Appointment of members of Tribunal ...........................419
140 Qualifications of members ............................................419
141 Tenure of office .............................................................420
141A Seniority of Deputy Presidents ......................................420
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142 Acting President ............................................................421
143 Remuneration and allowances .......................................421
144 Oath or affirmation of office .........................................421
144A Disclosure of interests by members...............................421
144B Removal from office for failure to disclose interest ......422
145 Resignation....................................................................422
146 Sittings of the Tribunal..................................................423
147 President to arrange business of Tribunal......................424
Division 3—Applications and references to the Tribunal 425
Subdivision A—Preliminary 425
148 Interpretation .................................................................425
Subdivision B—Applications relating to Parts III and IV 425
149 Applications to Tribunal for determination of
remuneration payable for making recording or film
of a work .......................................................................425
149A Applications to Tribunal under section 47A..................426
150 Applications to Tribunal for determination of
remuneration payable to owner of copyright in
recording for making of a copy of the sound
recording .......................................................................426
151 Applications to Tribunal for determination of
remuneration payable to owner of copyright in
recording in respect of public playing of the
recording .......................................................................427
152 Applications to Tribunal for determination of
amounts payable for broadcasting published sound
recordings......................................................................427
152A Applications to Tribunal for determination of
amount of royalty payable for recording musical
works .............................................................................434
152B Applications to Tribunal for determination of
manner of paying royalty...............................................435
153 Applications to Tribunal for apportionment of
royalty in respect of a record .........................................436
Subdivision C—Applications and references relating to Part VA 437
153A Applications to Tribunal under section 135H,
subsection 135J(1) or subsection 135JA(1) ...................437
153B Applications to Tribunal under subsection 135J(3) .......438
153BAAA Application to the Tribunal under
subsection 135JAA(2) ...................................................438
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153BA Application to the Tribunal under
subsection 135JA(3) ......................................................439
153BAA Application to the Tribunal under
subsection 135K(2A).....................................................439
153BAB References relating to declaration of collecting
society ...........................................................................440
153BAC References relating to revocation of declaration of
collecting society...........................................................440
153BAD Review of collecting society’s distribution
arrangement...................................................................441
Subdivision D—Applications and references relating to Part VB 442
153BB Application to the Tribunal under
subsection 135ZME(3) ..................................................442
153C Applications to the Tribunal under section 135ZV
or subsection 135ZW(1) or 135ZWA(1) .......................442
153D Applications to Tribunal under
subsection 135ZW(3) ....................................................443
153DAA Application to the Tribunal under
subsection 135ZWAA(2)...............................................444
153DA Applications to the Tribunal under
subsection 135ZWA(2) .................................................444
153DB Application to the Tribunal under
subsection 135ZX(2A) ..................................................445
153DC References relating to declaration of collecting
society ...........................................................................445
153DD References relating to revocation of declaration of
collecting society...........................................................446
153DE Review of collecting society’s distribution
arrangement...................................................................447
Subdivision E—Applications relating to Part VII 448
153E Applications to Tribunal under subsection 183(5).........448
153F Applications to Tribunal to declare collecting
society for government copies.......................................448
153G Applications to Tribunal to revoke a declaration of
a collecting society ........................................................450
153H Time limit for deciding applications under
section 153F or 153G ....................................................451
153J Amendment and revocation of a declaration on the
declaration of another collecting society .......................452
153K Applications to Tribunal for method of working
out payment for government copies ..............................453
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153KA Review of collecting society’s distribution
arrangement...................................................................453
Subdivision F—Applications relating to declarations of
institutions 454
153L Applications to Tribunal for review of declarations
of certain educational institutions..................................454
Subdivision G—Applications and references relating to Part VC 455
153M Applications to the Tribunal under
subsection 135ZZM(1) ..................................................455
153N Applications to Tribunal under
subsection 135ZZN(3)...................................................456
153P References relating to declaration of collecting
society ...........................................................................456
153Q References relating to revocation of declaration of
collecting society...........................................................457
153R Review of collecting society’s distribution
arrangement...................................................................458
Subdivision GA—Applications and references relating to Part VD 459
153RA Application to the Tribunal to determine amount
payable to owner of copyright in a broadcast ................459
153S Applications to the Tribunal under
paragraph 135ZZZK(1)(b)—equitable
remuneration .................................................................459
153T Applications to Tribunal under
paragraph 135ZZZL(3)(b)—record system ...................460
153U References relating to declaration of collecting
society ...........................................................................461
153V References relating to revocation of declaration of
collecting society...........................................................462
153W Review of collecting society’s distribution
arrangement...................................................................462
Subdivision H—References and applications relating to licences
and licence schemes 463
154 Reference of proposed licence schemes to
Tribunal .........................................................................463
155 Reference of existing licence schemes to Tribunal........465
156 Further reference of licence schemes to Tribunal..........467
157 Application to Tribunal in relation to licences ..............469
157A Tribunal must have regard to ACCC guidelines on
request ...........................................................................472
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157B Tribunal may make ACCC party to reference or
application .....................................................................472
158 Effect of licence scheme being continued in
operation pending order of the Tribunal ........................473
159 Effect of order of Tribunal in relation to licences..........474
Subdivision I—General provisions 476
160 Interim orders ................................................................476
161 Reference of questions of law to Federal Court of
Australia ........................................................................477
162 Agreements or awards not affected ...............................478
Division 4—Procedure and evidence 479
163 Proceedings to be in public except in special
circumstances ................................................................479
163A Application may be made to Tribunal by the agent
of the copyright owner ..................................................479
164 Procedure.......................................................................479
165 Mistakes or errors in orders of the Tribunal ..................480
166 Regulations as to procedure...........................................480
167 Power to take evidence on oath .....................................481
168 Evidence in form of written statement...........................481
169 Representation...............................................................481
Division 4A—Alternative dispute resolution processes 483
169A Referral of proceeding for alternative dispute
resolution process..........................................................483
169B Directions by President or Deputy President .................484
169C Agreement about the terms of a decision etc. ................484
169D Evidence not admissible ................................................485
169E Eligibility of person conducting alternative dispute
resolution process to sit as a member of the
Tribunal .........................................................................486
169F Participation by telephone etc........................................486
169G Engagement of persons to conduct alternative
dispute resolution processes ..........................................487
Division 5—Miscellaneous 488
170 Registrar ........................................................................488
170A Other staff of the Tribunal .............................................489
171 Protecting persons connected with Tribunal
proceedings ...................................................................489
172 Offences by witnesses ...................................................490
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173 Offences relating to the Tribunal...................................491
174 Costs of proceedings .....................................................493
175 Proof of orders of Tribunal............................................494
Part VII—The Crown 495
Division 1—Crown copyright 495
176 Crown copyright in original works made under
direction of Crown ........................................................495
177 Crown copyright in original works first published
in Australia under direction of Crown ...........................495
178 Crown copyright in recordings and films made
under direction of Crown...............................................495
179 Provisions relating to ownership of copyright may
be modified by agreement .............................................496
180 Duration of Crown copyright in original works ............496
181 Duration of Crown copyright in recordings and
films ..............................................................................497
182 Application of Parts III and IV to copyright
subsisting by virtue of this Part .....................................497
182A Copyright in statutory instruments and judgments
etc. .................................................................................497
Division 2—Use of copyright material for the Crown 499
182B Definitions.....................................................................499
182C Relevant collecting society............................................499
183 Use of copyright material for the services of the
Crown............................................................................500
183A Special arrangements for copying for services of
government....................................................................502
183B Payment and recovery of equitable remuneration
payable for government copies......................................503
183C Powers of collecting society to carry out sampling .......503
183D Annual report and accounts of collecting society ..........504
183E Alteration of rules of collecting society.........................505
183F Applying to Tribunal for review of distribution
arrangement...................................................................505
Part VIII—Extension or restriction of operation of Act 506 184 Application of Act to countries other than
Australia ........................................................................506
185 Denial of copyright to citizens of countries not
giving adequate protection to Australian works ............508
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186 Application of Act to international organizations..........509
187 Original works made or first published by
international organizations ............................................510
188 Subject-matter, other than original works, made or
first published by international organizations................511
Part IX—Moral rights of performers and of authors of literary,
dramatic, musical or artistic works and
cinematograph films 513
Division 1—Preliminary 513
189 Definitions.....................................................................513
190 Moral rights conferred on individuals ...........................518
191 Director, producer and screenwriter of
cinematograph film........................................................518
191A Staging a performance...................................................519
191B Conductor to be treated as a performer..........................519
192 Rights to be additional to other rights............................519
Division 2—Right of attribution of authorship 520
193 Author’s right of attribution of authorship ....................520
194 Acts giving rise to right of attribution of
authorship......................................................................520
195 Nature of the identification of author ............................521
195AA Identification of author to be clear and reasonably
prominent ......................................................................521
195AB What is a reasonably prominent identification ..............521
Division 2A—Right of attribution of performership 522
195ABA Performer’s right of attribution of performership..........522
195ABB Acts giving rise to right of attribution of
performership ................................................................522
195ABC Nature of the identification of performer.......................522
195ABD Identification of performer to be clear and
reasonably prominent or audible ...................................523
195ABE What is a reasonably prominent identification ..............523
Division 3—Right not to have authorship of a work falsely
attributed 524
195AC Author’s right not to have authorship falsely
attributed .......................................................................524
195AD Acts of false attribution of authorship of a literary,
dramatic or musical work ..............................................524
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195AE Acts of false attribution of authorship of artistic
work ..............................................................................525
195AF Acts of false attribution of authorship of
cinematograph film........................................................525
195AG Acts of false attribution of authorship of altered
literary, dramatic, musical or artistic work ....................526
195AH Act of false attribution of authorship of altered
cinematograph film........................................................526
Division 3A—Right not to have performership falsely attributed 528
195AHA Performer’s right not to have performership falsely
attributed .......................................................................528
195AHB Acts of false attribution of performership......................528
195AHC Act of false attribution of performership of altered
recorded performance....................................................530
Division 4—Right of integrity of authorship of a work 532
195AI Author’s right of integrity of authorship .......................532
195AJ Derogatory treatment of literary, dramatic or
musical work .................................................................532
195AK Derogatory treatment of artistic work............................532
195AL Derogatory treatment of cinematograph film ................533
Division 4A—Right of integrity of performership 534
195ALA Performer’s right of integrity of performership .............534
195ALB Derogatory treatment of performance ...........................534
Division 5—Duration and exercise of moral rights 535
Subdivision A—Duration and exercise of moral rights of authors 535
195AM Duration of author’s moral rights ..................................535
195AN Exercise of author’s moral rights...................................535
Subdivision B—Duration and exercise of moral rights of
performers 536
195ANA Duration of performer’s moral rights for recorded
performances .................................................................536
195ANB Exercise of performer’s moral rights .............................536
Division 6—Infringement of moral rights 538
Subdivision A—Infringement of moral rights of authors 538
195AO Infringement of right of attribution of authorship..........538
195AP Infringement of right not to have authorship
falsely attributed............................................................538
195AQ Infringement of right of integrity of authorship.............538
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195AR No infringement of right of attribution of
authorship if it was reasonable not to identify the
author ............................................................................539
195AS No infringement of right of integrity of authorship
if derogatory treatment or other action was
reasonable......................................................................541
195AT Certain treatment of works not to constitute an
infringement of the author’s right of integrity of
authorship......................................................................542
195AU Infringement by importation for sale or other
dealing...........................................................................546
195AV Infringement by sale and other dealings ........................547
195AVA Matters to be taken into account....................................547
195AVB Communication by use of certain facilities ...................547
195AW Author’s consent to act or omission—films or
works in films................................................................548
195AWA Author’s consent to act or omission—work that is
not a film or included in a film......................................549
195AWB Consent invalidated by duress or false or
misleading statements....................................................550
195AX Acts or omissions outside Australia ..............................550
Subdivision B—Infringement of moral rights of performers 550
195AXA Infringement of right of attribution of
performership ................................................................550
195AXB Infringement of right not to have performership
falsely attributed............................................................551
195AXC Infringement of right of integrity of performership .......551
195AXD No infringement of right of attribution of
performership if it was reasonable not to identify
the performer .................................................................552
195AXE No infringement of right of integrity of
performership if derogatory treatment or other
action was reasonable ....................................................552
195AXF Infringement by importation for sale or other
dealing...........................................................................554
195AXG Infringement by sale and other dealings ........................554
195AXH Matters to be taken into account....................................554
195AXI Communication by use of certain facilities ...................555
195AXJ Performer’s consent to act or omission .........................555
195AXK Consent invalidated by duress or false or
misleading statements....................................................556
195AXL Acts or omissions outside Australia ..............................556
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Division 7—Remedies for infringements of moral rights 557
Subdivision A—Remedies for infringement of moral rights of
authors 557
195AY Definition etc.................................................................557
195AZ Actions for infringement of author’s moral rights .........557
195AZA Remedies for infringements of author’s moral
rights..............................................................................557
195AZD Presumption as to subsistence of copyright ...................559
195AZE Presumption as to subsistence of author’s moral
rights..............................................................................560
195AZF Presumptions in relation to authorship of work .............560
195AZG Other presumptions in relation to literary,
dramatic, musical or artistic work .................................560
Subdivision B—Remedies for infringement of moral rights of
performers 560
195AZGA Definition etc.................................................................560
195AZGB Actions for infringement of performer’s moral
rights..............................................................................561
195AZGC Remedies for infringements of performer’s moral
rights..............................................................................561
195AZGD Presumption as to subsistence of copyright ...................562
195AZGE Presumption as to subsistence of performer’s
moral rights ...................................................................563
195AZGF Presumptions in relation to performership.....................563
Subdivision C—Miscellaneous 564
195AZGG Saving of other rights and remedies ..............................564
195AZGH Jurisdiction of courts .....................................................564
Division 8—Miscellaneous 565
Subdivision A—Miscellaneous provisions about moral rights of
authors 565
195AZH Parts of works................................................................565
195AZI Works of joint authorship..............................................565
195AZJ Cinematograph films that have more than one
principal director ...........................................................565
195AZK Cinematograph films that have more than one
principal producer .........................................................566
195AZL Cinematograph films that have more than one
principal screenwriter ....................................................566
195AZM Application—right of attribution of authorship.............567
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195AZN Application—right not to have authorship falsely
attributed .......................................................................568
195AZO Application—right of integrity of authorship ................568
Subdivision B—Miscellaneous provisions about moral rights of
performers 569
195AZP Parts of performances ....................................................569
195AZQ Performances that have more than one performer .........569
195AZR Application....................................................................570
Part X—Miscellaneous 571
Division 1—Interpretation 571
195A Interpretation .................................................................571
Division 2—Review 573
195B Review of certain decisions...........................................573
Division 3—National Library of Australia 575
195CA Simplified outline..........................................................575
195CB Copy of certain material to be delivered to the
Library...........................................................................575
195CC Library may request a copy of material available
online.............................................................................576
195CD Delivering material to the Library .................................576
195CE Meaning of National Library material ..........................578
195CF Meaning of available online..........................................578
195CG Infringement notices......................................................578
195CH Relationship with State and Territory laws....................579
195CI Delegation .....................................................................579
195CJ Legislative instruments..................................................579
Division 4—Other matters 580
196 Assignments and licences in respect of copyright .........580
197 Prospective ownership of copyright ..............................580
198 Copyright to pass under will with unpublished
work ..............................................................................581
198A Non-infringement of trade mark in relation to the
importation of copyright material ..................................581
199 Reception of broadcasts.................................................582
200 Use of works and broadcasts for educational
purposes ........................................................................583
200AAA Proxy web caching by educational institutions..............584
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200AA Use of broadcasts by institutions assisting persons
with an intellectual disability.........................................585
200AB Use of works and other subject-matter for certain
purposes ........................................................................586
202 Groundless threats of legal proceedings in relation
to copyright infringement ..............................................588
202A Groundless threats of legal proceedings in relation
to technological protection measures.............................589
203 Limitation on power of courts to grant relief in
proceedings under this Act ............................................590
203A Offence—failing to keep declarations relating to
copying in library or archives........................................590
203D Offence—not arranging declarations
chronologically..............................................................592
203E Inspection of records and declarations retained by
libraries, archives or institutions....................................592
203F False and misleading declarations .................................595
203G Offence—disposing of or destroying certain
declarations ...................................................................595
203H Notation of certain copies etc. .......................................595
Part XI—Transitional 599
Division 1—Preliminary 599
204 Interpretation .................................................................599
205 References to making of works, recordings and
films ..............................................................................600
206 References in other laws or instruments to
copyright .......................................................................600
207 Application....................................................................601
208 Authorship of photographs ............................................601
209 Publication.....................................................................602
Division 2—Original works 603
210 Expired copyright not to revive .....................................603
211 Original works in which copyright subsists...................603
213 Ownership of copyright.................................................604
214 Infringement by importation, sale and other
dealings .........................................................................605
215 Recording of musical works ..........................................605
216 Publication of artistic works ..........................................606
217 Reconstruction of buildings...........................................606
218 Industrial designs...........................................................606
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219 Reproduction of work upon payment of royalties .........607
Division 3—Subject-matter other than works 609
220 Sound recordings...........................................................609
221 Cinematograph films .....................................................609
222 Application of Act to dramatic works and
photographs comprised in cinematograph films ............609
223 Television broadcasts and sound broadcasts .................610
224 Published editions of works...........................................610
225 Infringement by importation, sale and other
dealings .........................................................................610
Division 4—Miscellaneous 611
226 Actions for infringement ...............................................611
227 Infringing copies ...........................................................611
228 Actions where copyright subject to exclusive
licence ...........................................................................611
229 Offences and summary proceedings..............................611
230 Limitation of actions .....................................................612
231 Restriction of importation of printed copies of
works .............................................................................612
232 References and applications to Tribunal in relation
to licence schemes .........................................................612
233 Duration of Crown copyright in photographs................613
234 Duration of Crown copyright in recordings...................613
235 Crown copyright in films...............................................613
236 Works made or published by international
organizations .................................................................613
237 Subject-matter, other than original works, made or
published by international organizations .......................614
239 Assignments and licences..............................................614
240 Bequests ........................................................................616
242 Groundless threats of legal proceedings ........................616
Division 5—Works made before 1 July, 1912 617
243 Interpretation .................................................................617
244 Application....................................................................617
245 Rights conferred by Copyright Act, 1911......................617
246 Performing rights...........................................................617
247 Contributions to periodicals ..........................................618
248 Assignments and licences..............................................618
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Part XIA—Performers’ protection 620
Division 1—Preliminary 620
248A Interpretation .................................................................620
248B Educational purposes.....................................................625
248C Exempt recordings cease to be exempt recordings
in certain circumstances ................................................626
248CA Protection period ...........................................................626
248D Private and domestic use ...............................................627
248F Application....................................................................628
Division 2—Actions by performers 629
248G What constitutes unauthorised use ................................629
248H Copying sound recordings for broadcasting ..................631
248J Actions for unauthorised use .........................................631
248K Exercise of jurisdiction..................................................633
248L Appeals..........................................................................633
248M Jurisdiction of Federal Court .........................................633
248MA Jurisdiction of Federal Circuit Court .............................633
248N Right to bring an action not assignable..........................633
Division 3—Offences 634
Subdivision A—General offences 634
248P Scope of this Subdivision ..............................................634
248PA Unauthorised direct recording during protection
period ............................................................................634
248PB Unauthorised indirect recording during protection
period ............................................................................635
248PC Unauthorised communication to public during
20-year protection period ..............................................636
248PD Playing unauthorised recording publicly during
20-year protection period ..............................................638
248PE Possessing equipment to make or copy
unauthorised recording ..................................................639
248PF Copying unauthorised recording ...................................640
248PG Unauthorised copying of exempt recording...................642
248PH Unauthorised copying of authorised sound
recording .......................................................................643
248PI Selling etc. unauthorised recording ...............................645
248PJ Distributing unauthorised recording ..............................646
248PK Commercial possession or import of unauthorised
recording .......................................................................648
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248PL Exhibiting unauthorised recording in public by
way of trade...................................................................650
248PM Importing unauthorised recording for exhibition by
way of trade...................................................................651
Subdivision B—Acts relating to sound recordings of performances
given before 1 July 1995 653
248QA Scope of this Subdivision ..............................................653
248QB Possessing equipment for copying unauthorised
sound recording .............................................................653
248QC Copying unauthorised sound recording .........................655
248QD Selling etc. unauthorised sound recording.....................656
248QE Distributing unauthorised sound recording....................657
248QF Commercial possession or import of unauthorised
sound recording .............................................................659
248QG Exhibiting unauthorised sound recording in public
by way of trade..............................................................661
248QH Importing unauthorised sound recording for
exhibition by way of trade.............................................662
Subdivision C—Prosecution and infringement notices 664
248R Courts in which offences may be prosecuted ................664
248S Protection against multiple proceedings for same
act ..................................................................................664
248SA Infringement notices......................................................664
Subdivision D—Destruction or delivery up of unauthorised
recordings 665
248T Destruction or delivery up of unauthorised
recordings......................................................................665
Division 4—Extension of protection to foreign countries 666
248U Application to foreign countries ....................................666
248V Denial of protection to citizens of countries not
giving adequate protection to Australian
performances .................................................................667
Part XII—Regulations 668 249 Regulations....................................................................668
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The Schedule 671
Endnotes 672
Endnote 1—About the endnotes 672
Endnote 2—Abbreviation key 674
Endnote 3—Legislation history 675
Endnote 4—Amendment history 693
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Preliminary Part I
Section 1
Copyright Act 1968 1
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An Act relating to copyright and the protection of
certain performances, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Copyright Act 1968.
2 Commencement
This Act shall come into operation on a date to be fixed by
Proclamation.
4 Extension to external Territories
This Act extends to every external Territory.
5 Exclusion of Imperial Copyright Act, 1911
(1) This Act operates to the exclusion of the Copyright Act, 1911.
(2) For the purposes of section 8 of the Acts Interpretation Act
1901-1966, the Copyright Act, 1911 shall be deemed to be an Act
passed by the Parliament of the Commonwealth and to be repealed
by this Act, and the enactment of Part XI shall not be taken to
affect the operation of section 8 of the Acts Interpretation Act
1901-1966 as it operates by virtue of this subsection in relation to
matters to which that Part does not apply.
6 Repeal of Copyright Acts
The following Acts are repealed:
Copyright Act 1912;
Copyright Act 1933;
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Copyright Act 1935;
Copyright Act 1963.
7 Act to bind the Crown
Subject to Part VII, this Act binds the Crown but nothing in this
Act renders the Crown liable to be prosecuted for an offence.
8 Copyright not to subsist except by virtue of this Act
Subject to section 8A, copyright does not subsist otherwise than by
virtue of this Act.
8A Prerogative rights of the Crown in the nature of copyright
(1) Subject to subsection (2), this Act does not affect any prerogative
right or privilege of the Crown.
(2) Where a right or privilege of the Crown by way of copyright
subsists in a work or published edition of a work, a person does not
infringe that right or privilege by doing, or authorizing the doing
of, an act in relation to the work or edition without the licence of
the Crown if, assuming that that right or privilege of the Crown did
not subsist in the work or edition, but copyright subsisted under
this Act in the work or edition and was owned by a person other
than the Crown, the person would not infringe the copyright of that
owner in the work or edition by doing, or by authorizing the doing
of, that act without the licence of the owner.
(3) Nothing in subsection (2) shall be taken to limit the duration of the
right or privilege of the Crown by way of copyright in a work or
published edition of a work.
9 Operation of other laws
(1) This Act does not affect the right of, or of a person deriving title
directly or indirectly from, the Commonwealth or a State to sell,
use or otherwise deal with articles that have been, or are, forfeited
under a law of the Commonwealth or of the State.
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(3) This Act does not affect the operation of the law relating to
breaches of trust or confidence.
9A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this
Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
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Part II—Interpretation
10 Interpretation
(1) In this Act, unless the contrary intention appears:
access control technological protection measure means a device,
product, technology or component (including a computer program)
that:
(a) is used in Australia or a qualifying country:
(i) by, with the permission of, or on behalf of, the owner or
the exclusive licensee of the copyright in a work or
other subject-matter; and
(ii) in connection with the exercise of the copyright; and
(b) in the normal course of its operation, controls access to the
work or other subject-matter;
but does not include such a device, product, technology or
component to the extent that it:
(c) if the work or other subject-matter is a cinematograph film or
computer program (including a computer game)—controls
geographic market segmentation by preventing the playback
in Australia of a non-infringing copy of the work or other
subject-matter acquired outside Australia; or
(d) if the work is a computer program that is embodied in a
machine or device—restricts the use of goods (other than the
work) or services in relation to the machine or device.
For the purposes of this definition, computer program has the
same meaning as in section 47AB.
accessory, in relation to an article, means one or more of the
following:
(a) a label affixed to, displayed on, incorporated into the surface
of, or accompanying, the article;
(b) the packaging or container in which the article is packaged or
contained;
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(c) a label affixed to, displayed on, incorporated into the surface
of, or accompanying, the packaging or container in which the
article is packaged or contained;
(d) a written instruction, warranty or other information provided
with the article;
(e) a record embodying an instructional sound recording, or a
copy of an instructional cinematograph film, provided with
the article;
but does not include any label, packaging or container on which the
olympic symbol (within the meaning of the Olympic Insignia
Protection Act 1987) is reproduced.
Note: See also section 10AD for an expanded meaning of accessory in
relation to certain imported articles.
adaptation means:
(a) in relation to a literary work in a non-dramatic form a version
of the work (whether in its original language or in a different
language) in a dramatic form;
(b) in relation to a literary work in a dramatic form a version of
the work (whether in its original language or in a different
language) in a non-dramatic form;
(ba) in relation to a literary work being a computer program—a
version of the work (whether or not in the language, code or
notation in which the work was originally expressed) not
being a reproduction of the work;
(c) in relation to a literary work (whether in a non-dramatic form
or in a dramatic form):
(i) a translation of the work; or
(ii) a version of the work in which a story or action is
conveyed solely or principally by means of pictures; and
(d) in relation to a musical work—an arrangement or
transcription of the work.
alternative dispute resolution processes means procedures and
services for the resolution of disputes, and includes:
(a) conferencing; and
(b) mediation; and
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(c) neutral evaluation; and
(d) case appraisal; and
(e) conciliation; and
(f) procedures or services specified in the regulations;
but does not include:
(g) arbitration; or
(h) court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of
this definition.
approved label means a label approved under:
(a) Part 2 of the Agvet Code of a State or of the Northern
Territory; or
(b) Part 2 of the Agvet Code of the participating Territories
within the meaning of the Agricultural and Veterinary
Chemicals Act 1994.
archives means:
(a) archival material in the custody of:
(i) the National Archives of Australia; or
(ii) the Archives Office of New South Wales established by
the Archives Act 1960 of the State of New South Wales;
or
(iii) the Public Record Office established by the Public
Records Act 1973 of the State of Victoria; or
(iv) the Archives Office of Tasmania established by the
Archives Act 1965 of the State of Tasmania; or
(aa) archival material in the custody of a person (other than the
National Archives of Australia) in accordance with an
arrangement referred to in section 64 of the Archives Act
1983; or
(b) a collection of documents or other material to which this
paragraph applies by virtue of subsection (4).
artistic work means:
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(a) a painting, sculpture, drawing, engraving or photograph,
whether the work is of artistic quality or not;
(b) a building or a model of a building, whether the building or
model is of artistic quality or not; or
(c) a work of artistic craftsmanship whether or not mentioned in
paragraph (a) or (b);
but does not include a circuit layout within the meaning of the
Circuit Layouts Act 1989.
Australia includes the external Territories.
author, in relation to a photograph, means the person who took the
photograph.
authorized officer, in relation to a library or archives, means the
officer in charge of that library or archives or a person authorized
by that officer to act on his or her behalf.
available online, in relation to National Library material, has the
meaning given by section 195CF.
broadcast means a communication to the public delivered by a
broadcasting service within the meaning of the Broadcasting
Services Act 1992. For the purposes of the application of this
definition to a service provided under a satellite BSA licence,
assume that there is no conditional access system that relates to the
service.
Note: A broadcasting service does not include the following:
(a) a service (including a teletext service) that provides only data or only text (with or without associated images); or
(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service.
building includes a structure of any kind.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act
1997.
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chemical product has the same meaning as in the Schedule to the
Agricultural and Veterinary Chemicals Code Act 1994.
cinematograph film means the aggregate of the visual images
embodied in an article or thing so as to be capable by the use of
that article or thing:
(a) of being shown as a moving picture; or
(b) of being embodied in another article or thing by the use of
which it can be so shown;
and includes the aggregate of the sounds embodied in a
sound-track associated with such visual images.
circumvention device for a technological protection measure
means a device, component or product (including a computer
program) that:
(a) is promoted, advertised or marketed as having the purpose or
use of circumventing the technological protection measure;
or
(b) has only a limited commercially significant purpose or use,
or no such purpose or use, other than the circumvention of
the technological protection measure; or
(c) is primarily or solely designed or produced to enable or
facilitate the circumvention of the technological protection
measure.
For the purposes of this definition, computer program has the
same meaning as in section 47AB.
circumvention service for a technological protection measure
means a service that:
(a) is promoted, advertised or marketed as having the purpose or
use of circumventing the technological protection measure;
or
(b) has only a limited commercially significant purpose or use,
or no such purpose or use, other than the circumvention of
the technological protection measure; or
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(c) is primarily or solely designed or produced to enable or
facilitate the circumvention of the technological protection
measure.
communicate means make available online or electronically
transmit (whether over a path, or a combination of paths, provided
by a material substance or otherwise) a work or other
subject-matter, including a performance or live performance within
the meaning of this Act.
computer program means a set of statements or instructions to be
used directly or indirectly in a computer in order to bring about a
certain result.
construction includes erection, and reconstruction has a
corresponding meaning.
controls access: a device, product, technology or component
(including a computer program) controls access to a work or other
subject-matter if it requires the application of information or a
process, with the permission of the owner or exclusive licensee of
the copyright in the work or other subject-matter, to gain access to
the work or other subject-matter.
copy, in relation to a cinematograph film, means any article or
thing in which the visual images or sounds comprising the film are
embodied.
delivery period has the meaning given by subsection 195CD(2).
device includes a plate.
dramatic work includes:
(a) a choreographic show or other dumb show; and
(b) a scenario or script for a cinematograph film;
but does not include a cinematograph film as distinct from the
scenario or script for a cinematograph film.
drawing includes a diagram, map, chart or plan.
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educational institution means:
(aa) an institution at which education is provided at pre-school or
kindergarten standard;
(a) a school or similar institution at which full-time primary
education or full-time secondary education is provided or
both full-time primary education and full-time secondary
education are provided;
(b) a university, a college of advanced education or a technical
and further education institution;
(c) an institution that conducts courses of primary, secondary or
tertiary education by correspondence or on an external study
basis;
(d) a school of nursing in relation to which a notice published
under subsection 10A(4) is in force;
(e) an undertaking within a hospital, being an undertaking:
(i) that conducts courses of study or training in the
provision of medical services, or in the provision of
services incidental to the provision of medical services;
and
(ii) in relation to which a notice published under
subsection 10A(4) is in force;
(f) a teacher education centre in relation to which a notice
published under subsection 10A(4) is in force;
(g) an institution in relation to which there is in force a notice
published under subsection 10A(4) that includes a
declaration that the principal function of the institution is the
provision of courses of study or training for one of the
following purposes:
(i) general education;
(ii) the preparation of people for a particular occupation or
profession;
(iii) the continuing education of people engaged in a
particular occupation or profession;
(iv) the teaching of English to people whose first language is
not English;
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(h) an undertaking within a body administering an educational
institution of a kind referred to in a preceding paragraph of
this definition in relation to which there is in force a notice
published under subsection 10A(4) that includes a
declaration that the principal function, or one of the principal
functions, of the undertaking is the provision of teacher
training to people engaged as instructors in educational
institutions of a kind referred to in a preceding paragraph of
this definition, or of 2 or more such kinds; or
(i) an institution, or an undertaking within a body administering
an educational institution of a kind referred to in a preceding
paragraph of this definition, in relation to which there is in
force a notice published under subsection 10A(4) that
includes a declaration that the principal function, or one of
the principal functions, of the institution, or undertaking, is
the providing of material to educational institutions of a kind
referred to in a preceding paragraph of this definition, or to
educational institutions of 2 or more such kinds, and that that
activity is undertaken for the purpose of helping those
institutions in their teaching purposes.
electronic literary or music item means:
(a) a book in electronic form; or
(b) a periodical publication in electronic form; or
(c) sheet music in electronic form;
regardless of whether there is a printed form.
electronic rights management information, in relation to a work
or other subject-matter, means information that:
(a) is electronic; and
(b) either:
(i) is or was attached to, or is or was embodied in, a copy
of the work or subject-matter; or
(ii) appears or appeared in connection with a
communication, or the making available, of the work or
subject-matter; and
(c) either:
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(i) identifies the work or subject-matter, and its author or
copyright owner (including such information
represented as numbers or codes); or
(ii) identifies or indicates some or all of the terms and
conditions on which the work or subject-matter may be
used, or indicates that the use of the work or
subject-matter is subject to terms or conditions
(including such information represented as numbers or
codes).
engraving includes an etching, lithograph, product of
photogravure, woodcut, print or similar work, not being a
photograph.
exclusive licence means a licence in writing, signed by or on
behalf of the owner or prospective owner of copyright, authorizing
the licensee, to the exclusion of all other persons, to do an act that,
by virtue of this Act, the owner of the copyright would, but for the
licence, have the exclusive right to do, and exclusive licensee has a
corresponding meaning.
free-to-air broadcast means:
(a) a broadcast delivered by a national broadcasting service,
commercial broadcasting service or community broadcasting
service within the meaning of the Broadcasting Services Act
1992; or
(b) a broadcast delivered by a broadcasting service within the
meaning of the Broadcasting Services Act 1992 that does no
more than transmit program material supplied by National
Indigenous TV Limited.
future copyright means copyright to come into existence at a
future time or upon the happening of a future event.
infringing copy means:
(a) in relation to a work—a reproduction of the work, or of an
adaptation of the work, not being a copy of a cinematograph
film of the work or adaptation;
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(b) in relation to a sound recording—a copy of the sound
recording not being a sound-track associated with visual
images forming part of a cinematograph film;
(c) in relation to a cinematograph film—a copy of the film;
(d) in relation to a television broadcast or a sound broadcast—a
copy of a cinematograph film of the broadcast or a record
embodying a sound recording of the broadcast; and
(e) in relation to a published edition of a work—a facsimile copy
of the edition;
being an article (which may be an electronic reproduction or copy
of the work, recording, film, broadcast or edition) the making of
which constituted an infringement of the copyright in the work,
recording, film, broadcast or edition or, in the case of an article
imported without the licence of the owner of the copyright, would
have constituted an infringement of that copyright if the article had
been made in Australia by the importer, but does not include:
(f) a non-infringing book whose importation does not constitute
an infringement of that copyright; or
(g) a non-infringing accessory whose importation does not
constitute an infringement of that copyright; or
(h) a non-infringing copy of a sound recording whose
importation does not infringe that copyright; or
(i) a non-infringing copy of a computer program whose
importation does not infringe that copyright; or
(j) a non-infringing copy of an electronic literary or music item
whose importation does not infringe that copyright.
institution includes an educational institution.
institution assisting persons with an intellectual disability means:
(a) an educational institution; or
(b) any other institution which has as its principal function, or
one or its principal functions, the provision of assistance to
persons with an intellectual disability and in relation to which
a declaration under paragraph 10A(1)(d) is in force.
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institution assisting persons with a print disability means:
(a) an educational institution; or
(b) any other institution which has as its principal function, or
one of its principal functions, the provision of literary or
dramatic works to persons with a print disability and in
relation to which a declaration under paragraph 10A(1)(c) is
in force.
international organization to which this Act applies means an
organization that is declared by regulations made for the purposes
of section 186 to be an international organization to which this Act
applies, and includes:
(a) an organ of, or office within, an organization that is so
declared; and
(b) a commission, council or other body established by such an
organization or organ.
judicial proceeding means a proceeding before a court, tribunal or
person having by law power to hear, receive and examine evidence
on oath.
law of the Commonwealth includes a law of a Territory.
literary work includes:
(a) a table, or compilation, expressed in words, figures or
symbols; and
(b) a computer program or compilation of computer programs.
manuscript, in relation to a literary, dramatic or musical work,
means the document embodying the work as initially prepared by
the author, whether the document is in hardcopy form, electronic
form or any other form.
material form, in relation to a work or an adaptation of a work,
includes any form (whether visible or not) of storage of the work or
adaptation, or a substantial part of the work or adaptation, (whether
or not the work or adaptation, or a substantial part of the work or
adaptation, can be reproduced).
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National Library material has the meaning given by
section 195CE.
National Library Minister means the Minister administering the
National Library Act 1960.
non-infringing accessory means an accessory made in:
(a) a country that is a party to the International Convention for
the Protection of Literary and Artistic Works concluded at
Berne on 9 September 1886 as revised from time to time; or
(b) a country that is a member of the World Trade Organization
and has a law that provides consistently with the TRIPS
Agreement for:
(i) the ownership and duration of copyright or a related
right in works, sound recordings and cinematograph
films; and
(ii) the owner of the copyright or related right to have rights
relating to the reproduction of the work, sound
recording or cinematograph film;
where:
(c) the making of any copy of a work, or any reproduction of a
published edition of a work, that is, or is on, or is embodied
in, the accessory; or
(d) the making of any record embodying a sound recording, or
any copy of a cinematograph film, that is the accessory;
was authorised by the owner of the copyright in that country in the
work, edition, recording or film, as the case may be.
non-infringing book means a book made (otherwise than under a
compulsory licence) in a country specified in regulations made for
the purposes of subsection 184(1), being a book whose making did
not constitute an infringement of any copyright subsisting in a
work, or in a published edition of a work, under a law of that
country.
non-infringing copy:
(a) in relation to a sound recording, has the meaning given by
section 10AA; and
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(b) in relation to a computer program, has the meaning given by
section 10AB; and
(c) in relation to an electronic literary or music item, has the
meaning given by section 10AC.
officer in charge means:
(a) in relation to archives—the archivist or other person having,
for the time being, immediate care and control of the
collection comprising the archives; and
(c) in relation to a library—the librarian or other person having,
for the time being, immediate care and control of the
collection comprising the library.
person with a print disability means:
(a) a person without sight; or
(b) a person whose sight is severely impaired; or
(c) a person unable to hold or manipulate books or to focus or
move his or her eyes; or
(d) a person with a perceptual disability.
photograph means a product of photography or of a process
similar to photography, other than an article or thing in which
visual images forming part of a cinematograph film have been
embodied, and includes a product of xerography, and photographic
has a corresponding meaning.
plate includes a stereotype, stone, block, mould, matrix, transfer,
negative or other similar appliance.
private and domestic use means private and domestic use on or off
domestic premises.
prospective owner means:
(a) in relation to a future copyright that is not the subject of an
agreement of a kind referred to in subsection 19(1)—the
person who will be the owner of the copyright on its coming
into existence; or
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(b) in relation to a future copyright that is the subject of such an
agreement—the person in whom, by virtue of that subsection,
the copyright will vest on its coming into existence.
qualifying country means:
(a) a country that is a party to the International Convention for
the Protection of Literary and Artistic Works concluded at
Berne on 9 September 1886 as revised from time to time; or
(b) a country that is a member of the World Trade Organization
and has a law that provides consistently with the TRIPS
Agreement for:
(i) the ownership and duration of copyright or a related
right in works, sound recordings and cinematograph
films; and
(ii) the owner of the copyright or related right to have rights
relating to the reproduction of the work, sound
recording or cinematograph film.
reception equipment means equipment whose operation, either
alone or together with other equipment, enables people to hear or
see a work or other subject-matter that is communicated.
record includes a disc, tape, paper, electronic file or other device in
which sounds are embodied.
registered charity means an entity that is registered under the
Australian Charities and Not-for-profits Commission Act 2012 as
the type of entity mentioned in column 1 of item 1 of the table in
subsection 25-5(5) of that Act.
Registrar means the Registrar of the Tribunal provided for by
section 170.
retransmission, in relation to a broadcast, means a retransmission
of the broadcast, where:
(a) the content of the broadcast is unaltered (even if the
technique used to achieve retransmission is different to the
technique used to achieve the original transmission); and
(b) either:
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(i) in any case—the retransmission is simultaneous with
the original transmission; or
(ii) if the retransmission is in an area that has, wholly or
partly, different local time to the area of the original
transmission—the retransmission is delayed until no
later than the equivalent local time.
satellite BSA licence means a commercial television broadcasting
licence allocated under section 38C of the Broadcasting Services
Act 1992.
satellite BSA licensee means the licensee of a satellite BSA
licence.
sculpture includes a cast or model made for purposes of sculpture.
simulcasting means simultaneously broadcasting a broadcasting
service in both analog and digital form in accordance with the
requirements of the Broadcasting Services Act 1992 or of any
prescribed legislative provisions relating to digital broadcasting.
sound broadcast means sounds broadcast otherwise than as part of
a television broadcast.
sound recording means the aggregate of the sounds embodied in a
record.
sound-track, in relation to visual images forming part of a
cinematograph film, means:
(a) the part of any article or thing, being an article or thing in
which those visual images are embodied, in which sounds are
embodied; or
(b) a disc, tape or other device in which sounds are embodied
and which is made available by the maker of the film for use
in conjunction with the article or thing in which those visual
images are embodied.
sufficient acknowledgement, in relation to a work, means an
acknowledgement identifying the work by its title or other
description and, unless the work is anonymous or pseudonymous
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or the author has previously agreed or directed that an
acknowledgement of his or her name is not to be made, also
identifying the author.
technological protection measure means:
(a) an access control technological protection measure; or
(b) a device, product, technology or component (including a
computer program) that:
(i) is used in Australia or a qualifying country by, with the
permission of, or on behalf of, the owner or the
exclusive licensee of the copyright in a work or other
subject-matter; and
(ii) in the normal course of its operation, prevents, inhibits
or restricts the doing of an act comprised in the
copyright;
but does not include such a device, product, technology or
component to the extent that it:
(iii) if the work or other subject-matter is a cinematograph
film or computer program (including a computer
game)—controls geographic market segmentation by
preventing the playback in Australia of a non-infringing
copy of the work or other subject-matter acquired
outside Australia; or
(iv) if the work is a computer program that is embodied in a
machine or device—restricts the use of goods (other
than the work) or services in relation to the machine or
device.
For the purposes of this definition, computer program has the
same meaning as in section 47AB.
television broadcast means visual images broadcast by way of
television, together with any sounds broadcast for reception along
with those images.
the Australian Broadcasting Commission means the Australian
Broadcasting Commission that was established under the
Broadcasting and Television Act 1942.
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the Australian Broadcasting Corporation means the Australian
Broadcasting Corporation established under the Australian
Broadcasting Corporation Act 1983.
the Commonwealth includes the Administration of a Territory.
the Copyright Act, 1911 means the Imperial Act known as the
Copyright Act, 1911.
the Copyright Tribunal or the Tribunal means the Copyright
Tribunal of Australia provided for by Part VI, and includes a
member of that Tribunal exercising powers of that Tribunal.
the Crown includes the Crown in right of a State and the Crown in
right of the Australian Capital Territory and the Northern Territory
and also includes the Administration of a Territory other than the
Australian Capital Territory or the Northern Territory.
the National Library means the National Library established under
the National Library Act 1960-1967.
the Special Broadcasting Service means the Special Broadcasting
Service that was referred to in section 5 of the Special
Broadcasting Service Act 1991.
the Special Broadcasting Service Corporation means the body
corporate preserved and continued in existence as the Special
Broadcasting Service Corporation under section 5 of the Special
Broadcasting Service Act 1991.
to the public means to the public within or outside Australia.
TRIPS Agreement means the Agreement on Trade-Related
Aspects of Intellectual Property Rights set out in Annex 1C to the
Marrakesh Agreement establishing the World Trade Organization,
done at Marrakesh on 15 April 1994.
Note: The English text of the Marrakesh Agreement establishing the World
Trade Organization is set out in Australian Treaty Series 1995 No. 8.
will includes a codicil.
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work means a literary, dramatic, musical or artistic work.
work of joint authorship means a work that has been produced by
the collaboration of two or more authors and in which the
contribution of each author is not separate from the contribution of
the other author or the contributions of the other authors.
writing means a mode of representing or reproducing words,
figures or symbols in a visible form, and written has a
corresponding meaning.
(1A) Without limiting the meaning of the expression educational
purposes in this Act, a copy of the whole or a part of a work or
other subject-matter shall be taken, for the purposes of the
provision in which the expression appears, to have been made,
used or retained, as the case may be, for the educational purposes
of an educational institution if:
(a) it is made or retained for use, or is used, in connection with a
particular course of instruction provided by the institution; or
(b) it is made or retained for inclusion, or is included, in the
collection of a library of the institution.
(2) Without limiting the meaning of the expression reasonable portion
in this Act, where a literary, dramatic or musical work (other than a
computer program) is contained in a published edition of that
work, being an edition of not less than 10 pages, a copy of part of
that work, as it appears in that edition, shall be taken to contain
only a reasonable portion of that work if the pages that are copied
in the edition:
(a) do not exceed, in the aggregate, 10% of the number of pages
in that edition; or
(b) in a case where the work is divided into chapters exceed, in
the aggregate, 10% of the number of pages in that edition but
contain only the whole or part of a single chapter of the
work.
(2A) Without limiting the meaning of the expression reasonable portion
in this Act, if a person makes a reproduction of a part of:
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(a) a published literary work (other than a computer program or
an electronic compilation, such as a database); or
(b) a published dramatic work;
being a work that is in electronic form, the reproduction is taken to
contain only a reasonable portion of the work if:
(c) the number of words copied does not exceed, in the
aggregate, 10% of the number of words in the work; or
(d) if the work is divided into chapters—the number of words
copied exceeds, in the aggregate, 10% of the number of
words in the work, but the reproduction contains only the
whole or part of a single chapter of the work.
(2B) If a published literary or dramatic work is contained in a published
edition of the work and is separately available in electronic form, a
reproduction of a part of the work is taken to contain only a
reasonable portion of the work if it is taken to do so either under
subsection (2) or (2A), whether or not it does so under both of
them.
(2C) If:
(a) a person makes a reproduction of a part of a published
literary or dramatic work; and
(b) the reproduction is taken to contain only a reasonable portion
of the work under subsection (2) or (2A);
subsection (2) or (2A) does not apply in relation to any subsequent
reproduction made by the person of any other part of the same
work.
(3) In this Act, unless the contrary intention appears:
(a) a reference to the body administering an institution shall be
read as:
(i) in a case where the institution is a body corporate—a
reference to the institution; or
(ii) in any other case—a reference to the body or person
(including the Crown) having ultimate responsibility for
the administration of the institution; and
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(b) a reference to the body administering a library or archives is
to be read:
(i) in the case of archives covered by paragraph (aa) of the
definition of archives in subsection (1)—as a reference
to the person having the custody of the archives in
accordance with the relevant arrangement referred to in
that paragraph; or
(ii) otherwise—as a reference to the body (whether
incorporated or not), or the person (including the
Crown), having ultimate responsibility for the
administration of the library or archives; and
(c) a reference to a copy of a sound recording shall be read as a
reference to a record embodying a sound recording or a
substantial part of a sound recording being a record derived
directly or indirectly from a record produced upon the
making of a sound recording; and
(e) a reference to the Crown in right of a State shall be read as
including a reference to the Crown in right of the Australian
Capital Territory and the Northern Territory; and
(f) a reference to the custodian in charge of the copying records
of an educational institution, an institution assisting persons
with a print disability or an institution assisting persons with
an intellectual disability shall be read as a reference to the
person having responsibility for the day-to-day
administration of the institution; and
(g) a reference to the making, by reprographic reproduction, of a
copy of a document, or of the whole or a part of a work, shall
be read as a reference to the making of a facsimile copy of
the document or the whole or that part of the work, being a
facsimile copy of any size or form; and
(h) a reference to a copy of a work, or of a part of a work, for a
person with a print disability is taken to be a reference to:
(i) a record embodying a sound recording of the work, or
of the part of the work, being a record made by, or on
behalf of, the body administering an institution assisting
persons with a print disability and so made for the sole
purpose of use in the provision, whether by the
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institution or otherwise, of assistance to a person or
persons with a print disability; or
(ii) a Braille version, large-print version or photographic
version of the work, or of the part of the work, being a
Braille version, large-print version or photographic
version, as the case may be, made by, or on behalf of,
the body administering an institution assisting persons
with a print disability and so made for the sole purpose
of use in the provision, whether by the institution or
otherwise, of assistance to a person or persons with a
print disability; and
(ha) a reference to a copy for a person with an intellectual
disability, in relation to the whole or a part of an eligible item
within the meaning of Part VB, shall be read as a reference to
a copy, within the meaning of that Part, of an eligible item, or
of a part of an eligible item, as the case may be, made by, or
on behalf of, the body administering an institution assisting
persons with an intellectual disability, being a copy that is
made for the sole purpose of use in the provision, whether by
the institution or otherwise, of assistance to a person or
persons with an intellectual disability; and
(j) a reference to a microform copy of the whole or a part of a
work shall be read as a reference to a copy of the whole or a
part of the work produced by miniaturizing the graphic
symbols of which the work is composed; and
(k) a reference to a periodical publication shall be read as a
reference to an issue of a periodical publication and a
reference to articles contained in the same periodical
publication shall be read as a reference to articles contained
in the same issue of that periodical publication; and
(l) a reference to a record embodying a sound recording shall be
read as a reference to:
(i) a record produced upon the making of a sound
recording; or
(ii) another record embodying the sound recording directly
or indirectly derived from a record so produced; and
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(m) a reference to a relevant record, or a relevant declaration, in
relation to the making, in reliance on a particular section
(other than section 49):
(i) of a copy, or a copy for a person with a print disability,
of the whole or a part of a work; or
(ia) of a copy for a person with an intellectual disability of
the whole or a part of an eligible item; or
(ii) of a copy of a sound recording or a cinematograph film;
shall be read as a reference to any record or declaration of a
kind referred to in that section that is required by this Act to
be made in relation to the making of that copy; and
(ma) a reference to a relevant declaration, in relation to the
making, in reliance on section 49, of a copy of the whole or a
part of a work, shall be read as a reference to:
(i) in a case where the copy is made in reliance on
subsection 49(2)—a declaration of the kind referred to
in subsection 49(1) that is furnished in relation to the
making of the copy; or
(ii) in a case where the copy is made in reliance on
subsection 49(2C)—a declaration of the kind referred to
in paragraph 49(2C)(b) that is made in relation to the
making of the copy; or
(iii) in any case—a declaration of the kind referred to in
subsection 49(5) that is made in relation to the making
of the copy; and
(n) a reference to a State shall be read as including a reference to
the Australian Capital Territory and the Northern Territory
and Norfolk Island and a reference to a Territory shall be
read as not including a reference to the Australian Capital
Territory or the Northern Territory or Norfolk Island.
(3A) For the purposes of this Act, something held in, or forming part of,
the collection of any archives covered by paragraph (aa) of the
definition of archives in subsection (1) is taken not to be held in,
and not to form part of, the collection of the National Archives of
Australia.
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Note: Paragraph (aa) of the definition of archives covers archival material in
the custody of a person other than the National Archives of Australia
under an arrangement referred to in section 64 of the Archives Act
1983.
(4) Where:
(a) a collection of documents or other material of historical
significance or public interest that is in the custody of a body,
whether incorporated or unincorporated, is being maintained
by the body for the purpose of conserving and preserving
those documents or other material; and
(b) the body does not maintain and operate the collection for the
purpose of deriving a profit;
paragraph (b) of the definition of archives in subsection (1) applies
to that collection.
Example: Museums and galleries are examples of bodies that could have
collections covered by paragraph (b) of the definition of archives.
(5) For the purposes of the definition of copy in subsection (1), such a
copy includes any form (whether visible or not) of storage of a
cinematograph film, or a substantial part of a cinematograph film,
(whether or not the copy of the film, or a substantial part of the
film, can be reproduced).
(6) For the purposes of paragraph 10(3)(c), a reference to a copy of a
sound recording includes any form (whether visible or not) of
storage of the sound recording, or a substantial part of the sound
recording, (whether or not the copy of the recording, or a
substantial part of the recording, can be reproduced).
10AA Non-infringing copy of a sound recording
Minimum requirements
(1) A copy of a sound recording is a non-infringing copy only if it is
made by or with the consent of:
(a) the owner of the copyright or related right in the sound
recording in the country (the copy country) in which the copy
was made; or
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(b) the owner of the copyright or related right in the sound
recording in the country (the original recording country) in
which the sound recording was made, if the law of the copy
country did not provide for copyright or a related right in
sound recordings when the sound recording was made; or
(c) the maker of the sound recording, if neither the law of the
copy country nor the law of the original recording country
(whether those countries are different or not) provided for
copyright or a related right in sound recordings when the
sound recording was made.
Extra requirements for copies of recordings of works subject to
Australian copyright
(2) If the sound recording is of a work that is a literary, dramatic or
musical work in which copyright subsists in Australia, the copy is a
non-infringing copy only if:
(a) copyright subsists in the work under the law of the copy
country; and
(b) the making of the copy does not infringe the copyright in the
work under the law of the copy country; and
(c) the copy country meets the requirements of subsection (3).
To avoid doubt, the requirements of this subsection are additional
to those of subsection (1).
Requirements for copy country
(3) The copy country mentioned in subsection (2) must:
(a) be a party to the International Convention for the Protection
of Literary and Artistic Works concluded at Berne on
9 September 1886 as revised from time to time; or
(b) be a member of the World Trade Organization and have a
law that provides consistently with the TRIPS Agreement
for:
(i) the ownership and duration of copyright in literary,
dramatic and musical works; and
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(ii) the owner of the copyright in the work to have rights
relating to the reproduction of the work.
Australian copyright may result from Act or regulations
(4) For the purposes of subsection (2) it does not matter whether the
copyright in the work subsists in Australia as a result of this Act or
as a result of the regulations made for the purposes of section 184.
10AB Non-infringing copy of a computer program
A copy of a computer program is a non-infringing copy only if:
(a) it is made in a qualifying country; and
(b) its making did not constitute an infringement of any
copyright in a work under a law of that country.
10AC Non-infringing copy of an electronic literary or music item
A copy of an electronic literary or music item is a non-infringing
copy only if:
(a) it is made in a qualifying country; and
(b) its making did not constitute an infringement of any
copyright in a work, or in a published edition of a work,
under a law of that country.
10AD Accessories to imported articles
Accessories
(1) If a person imports into Australia:
(a) an article that has embodied in it a copy of a computer
program; or
(b) an article that has embodied in it a copy of an electronic
literary or music item; or
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(c) an article that has embodied in it a copy of a sound recording;
a copy of any work or other subject matter (other than a feature
film) that is on, embodied in, or included with, the article on its
importation is taken to be an accessory to the article.
Note: See also sections 44C and 112C (about the non-infringement of
copyright in works or other subject matter that are accessories to
imported articles).
Definition
(2) In this section:
feature film means a cinematograph film that:
(a) is produced wholly or principally:
(i) for exhibition to the public in cinemas or by way of
television broadcasting; or
(ii) for sale or rental to the public where it is reasonable to
assume that the viewing of the film (without electronic
interactive involvement with the film) would be the
primary object of any such sale or rental; and
(b) is more than 20 minutes in duration.
Interpretation
(3) This section does not limit the meaning of accessory in
subsection 10(1).
10A Declarations and notices relating to certain bodies and
institutions
(1) The Attorney-General may, by notice in writing published in the
Gazette:
(c) declare an institution to be, for the purposes of this Act, an
institution assisting persons with a print disability; or
(d) declare an institution to be, for the purposes of this Act, an
institution assisting persons with an intellectual disability.
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(2) The Attorney-General may, by notice in writing published in the
Gazette, revoke a declaration made under subsection (1).
(3) The Attorney-General shall cause a copy of a notice under
subsection (1) or (2) to be laid before each House of the Parliament
within 15 sitting days of that House after the notice is published in
the Gazette.
(4) The body administering an institution may cause to be published in
the Gazette a notice that:
(a) sets out full particulars of the name and address of the
institution; and
(aa) sets out the principal function or principal functions of the
institution or of an undertaking within the body administering
the institution; and
(b) contains a statement to the effect that the notice is published
for the purposes of this subsection.
(5) The body administering an institution may cause to be published in
the Gazette a notice revoking a notice published under
subsection (4) in relation to the institution.
(5A) A collecting society may apply to the Copyright Tribunal for
review of a declaration included in a notice published under
subsection (4) of this section for the purposes of paragraph (g), (h)
or (i) of the definition of educational institution in
subsection 10(1).
Note: For applications to the Tribunal for review see section 153L.
(6) In this section, institution includes a school of nursing, an
undertaking within a hospital, a teacher education centre and an
undertaking within a body administering an educational institution.
11 Residence in a country not affected by temporary absence
For the purposes of this Act, a person who, at a material time, was
ordinarily resident in a country (including Australia) but was
temporarily absent from that country shall be treated as if he or she
had been resident in that country at that time.
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12 References to Parliament
A reference in this Act to a Parliament shall be read as a reference
to the Parliament of the Commonwealth or of a State or a
legislature of a Territory.
13 Acts comprised in copyright
(1) A reference in this Act to an act comprised in the copyright in a
work or other subject-matter shall be read as a reference to any act
that, under this Act, the owner of the copyright has the exclusive
right to do.
(2) For the purposes of this Act, the exclusive right to do an act in
relation to a work, an adaptation of a work or any other
subject-matter includes the exclusive right to authorize a person to
do that act in relation to that work, adaptation or other
subject-matter.
14 Acts done in relation to substantial part of work or other
subject-matter deemed to be done in relation to the whole
(1) In this Act, unless the contrary intention appears:
(a) a reference to the doing of an act in relation to a work or
other subject-matter shall be read as including a reference to
the doing of that act in relation to a substantial part of the
work or other subject-matter; and
(b) a reference to a reproduction, adaptation or copy of a work
shall be read as including a reference to a reproduction,
adaptation or copy of a substantial part of the work, as the
case may be.
(2) This section does not affect the interpretation of any reference in
sections 32, 177, 180, 187 and 198 to the publication, or absence of
publication, of a work.
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15 References to acts done with licence of owner of copyright
For the purposes of this Act, an act shall be deemed to have been
done with the licence of the owner of a copyright if the doing of
the act was authorized by a licence binding the owner of the
copyright.
16 References to partial assignment of copyright
A reference in this Act to a partial assignment of copyright shall be
read as a reference to an assignment of copyright that is limited in
any way.
17 Statutory employment
For the purposes of this Act, the employment of a person, or the
employment of a person as an apprentice, under a law of the
Commonwealth or of a State but otherwise than under a contract of
service or contract of apprenticeship shall be treated as if that
employment were employment under a contract of service or
employment under a contract of apprenticeship, as the case may be.
18 Libraries established or conducted for profit
For the purposes of this Act, a library shall not be taken to be
established or conducted for profit by reason only that the library is
owned by a person carrying on business for profit.
19 References to Copyright Act, 1911
A reference in a provision of this Act to the Copyright Act, 1911,
in relation to any time before the commencement of this Act, shall,
for the purposes of the application of that provision in relation to a
State or a Territory, be read as a reference to the Copyright Act,
1911 as it applied in that State or Territory at that time.
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20 Names under which work is published
(1) A reference in this Act to the name or names under which a work
was published shall be read as a reference to the name or names
specified in the work as the name of the author or the names of the
authors of the work.
(2) For the purposes of this Act, a publication of a work under two or
more names shall not be taken to be pseudonymous unless all those
names are pseudonyms.
21 Reproduction and copying of works and other subject-matter
(1) For the purposes of this Act, a literary, dramatic or musical work
shall be deemed to have been reproduced in a material form if a
sound recording or cinematograph film is made of the work, and
any record embodying such a recording and any copy of such a
film shall be deemed to be a reproduction of the work.
(1A) For the purposes of this Act, a work is taken to have been
reproduced if it is converted into or from a digital or other
electronic machine-readable form, and any article embodying the
work in such a form is taken to be a reproduction of the work.
Note: The reference to the conversion of a work into a digital or other
electronic machine-readable form includes the first digitisation of the
work.
(2) Subsections (1) and (1A) apply in relation to an adaptation of a
work in the same way as they apply in relation to a work.
(3) For the purposes of this Act, an artistic work shall be deemed to
have been reproduced:
(a) in the case of a work in a two-dimensional form—if a version
of the work is produced in a three-dimensional form; or
(b) in the case of a work in a three-dimensional form—if a
version of the work is produced in a two-dimensional form;
and the version of the work so produced shall be deemed to be a
reproduction of the work.
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(4) The last preceding subsection has effect subject to Division 7 of
Part III.
(5) For the purposes of this Act, a computer program is taken to have
been reproduced if:
(a) an object code version of the program is derived from the
program in source code by any process, including
compilation; or
(b) a source code version of the program is derived from the
program in object code by any process, including
decompilation;
and any such version is taken to be a reproduction of the program.
(6) For the purposes of this Act, a sound recording or cinematograph
film is taken to have been copied if it is converted into or from a
digital or other electronic machine-readable form, and any article
embodying the recording or film in such a form is taken to be a
copy of the recording or film.
Note: The reference to the conversion of a sound recording or
cinematograph film into a digital or other electronic machine-readable
form includes the first digitisation of the recording or film.
22 Provisions relating to the making of a work or other
subject-matter
Literary, dramatic, musical or artistic works
(1) A reference in this Act to the time when, or the period during
which, a literary, dramatic, musical or artistic work was made shall
be read as a reference to the time when, or the period during which,
as the case may be, the work was first reduced to writing or to
some other material form.
(2) For the purposes of this Act, a literary, dramatic or musical work
that exists in the form of sounds embodied in an article or thing
shall be deemed to have been reduced to a material form and to
have been so reduced at the time when those sounds were
embodied in that article or thing.
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Sound recordings
(3) For the purposes of this Act:
(a) a sound recording, other than a sound recording of a live
performance, shall be deemed to have been made at the time
when the first record embodying the recording was produced;
and
(b) the maker of the sound recording is the person who owned
that record at that time.
(3A) For the purposes of this Act, the makers of a sound recording of a
live performance are:
(a) the person or persons who, at the time of the recording, own
the record on which the recording is made; and
(b) the performer or performers who performed in the
performance (other than a performer who is already covered
by paragraph (a)).
Note: A performer might be liable to pay compensation under
section 116AAA to a person who owns the record on which the
recording is made.
(3B) If:
(a) a sound recording of a live performance is made; and
(b) a performer performs in that performance under the terms of
his or her employment by another person (the employer)
under a contract of service or apprenticeship;
then, for the purposes of paragraph (3A)(b), the employer is taken
to be a maker instead of that performer.
(3C) Subsection (3B) may be excluded or modified by agreement
between the performer and the employer.
Cinematograph films
(4) For the purposes of this Act:
(a) a reference to the making of a cinematograph film shall be
read as a reference to the doing of the things necessary for
the production of the first copy of the film; and
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(b) the maker of the cinematograph film is the person by whom
the arrangements necessary for the making of the film were
undertaken.
Broadcasts and other communications
(5) For the purposes of this Act, a broadcast is taken to have been
made by the person who provided the broadcasting service by
which the broadcast was delivered.
(6) For the purposes of this Act, a communication other than a
broadcast is taken to have been made by the person responsible for
determining the content of the communication.
(6A) To avoid doubt, for the purposes of subsection (6), a person is not
responsible for determining the content of a communication merely
because the person takes one or more steps for the purpose of:
(a) gaining access to what is made available online by someone
else in the communication; or
(b) receiving the electronic transmission of which the
communication consists.
Example: A person is not responsible for determining the content of the
communication to the person of a web page merely because the person
clicks on a link to gain access to the page.
Definitions
(7) In this section:
live performance means:
(a) a performance (including an improvisation) of a dramatic
work, or part of such a work, including such a performance
given with the use of puppets; or
(b) a performance (including an improvisation) of a musical
work or part of such a work; or
(c) the reading, recitation or delivery of a literary work, or part
of such a work, or the recitation or delivery of an improvised
literary work; or
(d) a performance of a dance; or
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(e) a performance of a circus act or a variety act or any similar
presentation or show; or
(f) a performance of an expression of folklore;
being a live performance, whether in the presence of an audience
or otherwise.
performer in a live performance:
(a) means each person who contributed to the sounds of the
performance; and
(b) if the performance includes a performance of a musical
work—includes the conductor.
sound recording of a live performance means a sound recording,
made at the time of the live performance, consisting of, or
including, the sounds of the performance.
23 Sound recordings and records
(1) For the purposes of this Act, sounds embodied in a sound-track
associated with visual images forming part of cinematograph film
shall be deemed not to be a sound recording.
(2) A reference in this Act to a record of a work or other
subject-matter shall, unless the contrary intention appears, be read
as a reference to a record by means of which the work or other
subject-matter can be performed.
24 References to sounds and visual images embodied in an article
For the purposes of this Act, sounds or visual images shall be taken
to have been embodied in an article or thing if the article or thing
has been so treated in relation to those sounds or visual images that
those sounds or visual images are capable, with or without the aid
of some other device, of being reproduced from the article or thing.
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25 Provisions relating to broadcasting
(1) A reference in this Act to broadcasting shall, unless the contrary
intention appears, be read as a reference to broadcasting whether
by way of sound broadcasting or of television.
(2) A reference in this Act to the doing of an act by the reception of a
television broadcast or sound broadcast shall be read as a reference
to the doing of that act by means of receiving a broadcast:
(a) from the transmission by which the broadcast is made; or
(b) from a transmission made otherwise than by way of
broadcasting, but simultaneously with the transmission
referred to in the last preceding paragraph;
whether the reception of the broadcast is directly from the
transmission concerned or from a re-transmission made by any
person from any place.
(3) Where a record embodying a sound recording or a copy of a
cinematograph film is used for the purpose of making a broadcast
(in this subsection referred to as the primary broadcast), a person
who makes a broadcast (in this subsection referred to as the
secondary broadcast) by receiving and making a retransmission of:
(a) the transmission by which the primary broadcast was made;
or
(b) a transmission made otherwise than by way of broadcasting
but simultaneously with the transmission referred to in the
last preceding paragraph;
shall, for the purposes of this Act, be deemed not to have used the
record or copy for the purpose of making the secondary broadcast.
(4) In this Act:
(a) a reference to a cinematograph film of a television broadcast
shall be read as including a reference to a cinematograph
film, or a photograph, of any of the visual images comprised
in the broadcast; and
(b) a reference to a copy of a cinematograph film of a television
broadcast shall be read as including a reference to a copy of a
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cinematograph film, or a reproduction of a photograph, of
any of those images.
27 Performance
(1) Subject to this section, a reference in this Act to performance shall:
(a) be read as including a reference to any mode of visual or
aural presentation, whether the presentation is by the use of
reception equipment, by the exhibition of a cinematograph
film, by the use of a record or by any other means; and
(b) in relation to a lecture, address, speech or sermon—be read
as including a reference to delivery;
and a reference in this Act to performing a work or an adaptation
of a work has a corresponding meaning.
(2) For the purposes of this Act, the communication of a work or other
subject-matter to the public does not constitute:
(a) performance; or
(b) causing visual images to be seen or sounds to be heard.
(3) Where visual images or sounds are displayed or emitted by any
reception equipment to which they are communicated, the
operation of any equipment by which the images or sounds are
communicated, directly or indirectly, to the reception equipment
shall be deemed not to constitute performance or to constitute
causing visual images to be seen or sounds to be heard but, in so
far as the display or emission of the images or sounds constitutes a
performance, or causes the images to be seen or the sounds to be
heard, the performance, or the causing of the images to be seen or
sounds to be heard, as the case may be, shall be deemed to be
effected by the operation of the reception equipment.
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(4) Without prejudice to the last two preceding subsections, where a
work or an adaptation of a work is performed or visual images are
caused to be seen or sounds to be heard by the operation of any
equipment referred to in the last preceding subsection or of any
equipment for reproducing sounds by the use of a record, being
equipment provided by or with the consent of the occupier of the
premises where the equipment is situated, the occupier of those
premises shall, for the purposes of this Act, be deemed to be the
person giving the performance or causing the images to be seen or
the sounds to be heard, whether he or she is the person operating
the equipment or not.
(5) This section does not apply to a performance within the meaning of
Part XIA.
28 Performance and communication of works or other
subject-matter in the course of educational instruction
(1) Where a literary, dramatic or musical work:
(a) is performed in class, or otherwise in the presence of an
audience; and
(b) is so performed by a teacher in the course of giving
educational instruction, not being instruction given for profit,
or by a student in the course of receiving such instruction;
the performance shall, for the purposes of this Act, be deemed not
to be a performance in public if the audience is limited to persons
who are taking part in the instruction or are otherwise directly
connected with the place where the instruction is given.
(2) For the purposes of this section, educational instruction given by a
teacher at a place of education that is not conducted for profit shall
not be taken to be given for profit by reason only that the teacher
receives remuneration for giving the instruction.
(3) For the purposes of this section, a person shall not be taken to be
directly connected with a place where instruction is given by
reason only that he or she is a parent or guardian of a student who
receives instruction at that place.
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(4) The last three preceding subsections apply in relation to sound
recordings and cinematograph films in like manner as they apply in
relation to literary, dramatic and musical works but, in the
application of those subsections in relation to such recordings or
films, any reference to performance shall be read as a reference to
the act of causing the sounds concerned to be heard or the visual
images concerned to be seen.
(5) A communication of a literary, dramatic or musical work, a sound
recording or a cinematograph film is taken for the purposes of this
Act not to be a communication to the public if the communication
is made merely to facilitate:
(a) a performance of the work that, because of this section, is not
a performance in public; or
(b) an act of causing sounds forming part of the recording to be
heard that, because of this section, is not an act of causing the
sound recording to be heard in public; or
(c) an act of causing visual images or sounds forming part of the
cinematograph film to be seen or heard that, because of this
section, is not an act of causing the film to be seen or heard
in public.
(6) A communication of a television broadcast or sound broadcast is
taken for the purposes of this Act not to be a communication of the
broadcast, or of a work or other subject-matter included in the
broadcast, to the public if:
(a) the communication is made merely to facilitate the television
broadcast being seen and heard, or the sound broadcast being
heard, in class or otherwise in the presence of an audience, in
the course of educational instruction that:
(i) is given by a teacher; and
(ii) is not given for profit; and
(b) the audience is limited to persons who are taking part in the
instruction or are otherwise directly connected with the place
where the instruction is given.
(7) A communication of an artistic work is taken for the purposes of
this Act not to be a communication of the work to the public if:
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(a) the communication is made merely to facilitate the work
being seen in class or otherwise in the presence of an
audience, in the course of educational instruction that:
(i) is given by a teacher; and
(ii) is not given for profit; and
(b) the audience is limited to persons who are taking part in the
instruction or are otherwise directly connected with the place
where the instruction is given.
29 Publication
(1) Subject to this section, for the purposes of this Act:
(a) a literary, dramatic, musical or artistic work, or an edition of
such a work, shall be deemed to have been published if, but
only if, reproductions of the work or edition have been
supplied (whether by sale or otherwise) to the public;
(b) a cinematograph film shall be deemed to have been published
if, but only if, copies of the film have been sold, let on hire,
or offered or exposed for sale or hire, to the public; and
(c) a sound recording shall be deemed to have been published if,
but only if, records embodying the recording or a part of the
recording have been supplied (whether by sale or otherwise)
to the public.
(2) In determining, for the purposes of paragraph (1)(a), whether
reproductions of a work or edition have been supplied to the
public, section 14 does not apply.
(3) For the purposes of this Act, the performance of a literary,
dramatic or musical work, the supplying (whether by sale or
otherwise) to the public of records of a literary, dramatic or
musical work, the exhibition of an artistic work, the construction of
a building or of a model of a building, or the supplying (whether by
sale or otherwise) to the public of photographs or engravings of a
building, of a model of a building or of a sculpture, does not
constitute publication of the work.
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(4) A publication that is merely colourable and is not intended to
satisfy the reasonable requirements of the public shall be
disregarded for the purposes of this Act except in so far as it may
constitute an infringement of copyright or a breach of a duty under
Part IX.
(5) For the purposes of this Act, a publication in Australia or in any
other country shall not be treated as being other than the first
publication by reason only of an earlier publication elsewhere, if
the two publications took place within a period of not more than
thirty days.
(6) In determining, for the purposes of any provision of this Act:
(a) whether a work or other subject-matter has been published;
(b) whether a publication of a work or other subject-matter was
the first publication of the work or other subject-matter; or
(c) whether a work or other subject-matter was published or
otherwise dealt with in the life-time of a person;
any unauthorized publication or the doing of any other
unauthorized act shall be disregarded.
(7) Subject to section 52, a publication or other act shall, for the
purposes of the last preceding subsection, be taken to have been
unauthorized if, but only if:
(a) copyright subsisted in the work or other subject-matter and
the act concerned was done otherwise than by, or with the
licence of, the owner of the copyright; or
(b) copyright did not subsist in the work or other subject-matter
and the act concerned was done otherwise than by, or with
the licence of:
(i) the author or, in the case of a sound recording,
cinematograph film or edition of a work, the maker or
publisher, as the case may be; or
(ii) persons lawfully claiming under the author, maker or
publisher.
(8) Nothing in either of the last two preceding subsections affects any
provisions of this Act relating to the acts comprised in a copyright
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or to acts constituting infringements of copyrights or any
provisions of Part IX.
30 Ownership of copyright for particular purposes
In the case of a copyright of which (whether as a result of a partial
assignment or otherwise) different persons are the owners in
respect of its application to:
(a) the doing of different acts or classes of acts; or
(b) the doing of one or more acts or classes of acts in different
countries or at different times;
the owner of the copyright, for any purpose of this Act, shall be
deemed to be the person who is the owner of the copyright in
respect of its application to the doing of the particular act or class
of acts, or to the doing of the particular act or class of acts in the
particular country or at the particular time, as the case may be, that
is relevant to that purpose, and a reference in this Act to the
prospective owner of a future copyright of which different persons
are the prospective owners has a corresponding meaning.
30A Commercial rental arrangement
(1) In this Act, the expression commercial rental arrangement, in
relation to a work reproduced in a sound recording, signifies an
arrangement that has the following features:
(a) however the arrangement is expressed, it is in substance an
arrangement under which a copy of the sound recording is
made available by a person on terms that it will or may be
returned to the person;
(b) the arrangement is made in the course of the conduct of a
business;
(c) the arrangement provides for the copy to be made available:
(i) for payment in money or money’s worth; or
(ii) as part of the provision of a service for which payment
in money or money’s worth is to be made.
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(2) In this Act, the expression commercial rental arrangement, in
relation to a sound recording or a computer program, signifies an
arrangement that has the following features:
(a) however the arrangement is expressed, it is in substance an
arrangement under which a copy of the sound recording or
computer program is made available by a person on terms
that it will or may be returned to the person;
(b) the arrangement is made in the course of the conduct of a
business;
(c) the arrangement provides for the copy to be made available:
(i) for payment in money or money’s worth; or
(ii) as part of the provision of a service for which payment
in money or money’s worth is to be made.
(3) It is not the intention of the Parliament that a lending arrangement
should be regarded as a commercial rental arrangement for the
purposes of subsection (1) or (2).
(4) An arrangement is to be regarded as a lending arrangement if,
regardless of the way in which the arrangement is expressed, the
true nature of the arrangement is that it is an arrangement for the
lending of a copy of a sound recording or computer program under
which no amount, other than a deposit to secure the return of the
copy, is payable.
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Part III—Copyright in original literary, dramatic,
musical and artistic works
Division 1—Nature, duration and ownership of copyright
in works
31 Nature of copyright in original works
(1) For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a work, is the exclusive right:
(a) in the case of a literary, dramatic or musical work, to do all
or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to communicate the work to the public;
(vi) to make an adaptation of the work;
(vii) to do, in relation to a work that is an adaptation of the
first-mentioned work, any of the acts specified in
relation to the first-mentioned work in subparagraphs (i)
to (iv), inclusive; and
(b) in the case of an artistic work, to do all or any of the
following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to communicate the work to the public; and
(c) in the case of a literary work (other than a computer program)
or a musical or dramatic work, to enter into a commercial
rental arrangement in respect of the work reproduced in a
sound recording; and
(d) in the case of a computer program, to enter into a commercial
rental arrangement in respect of the program.
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(2) The generality of subparagraph (1)(a)(i) is not affected by
subparagraph (1)(a)(vi).
(3) Paragraph (1)(d) does not extend to entry into a commercial rental
arrangement in respect of a machine or device in which a computer
program is embodied if the program is not able to be copied in the
course of the ordinary use of the machine or device.
(4) The reference in subsection (3) to a device does not include a
device of a kind ordinarily used to store computer programs (for
example, a floppy disc, a device of the kind commonly known as a
CD ROM, or an integrated circuit).
(5) Paragraph (1)(d) does not extend to entry into a commercial rental
arrangement if the computer program is not the essential object of
the rental.
(6) Paragraph (1)(c) does not extend to entry into a commercial rental
arrangement if:
(a) the copy of the sound recording concerned was purchased by
a person (the record owner) before the commencement of
Part 2 of the Copyright (World Trade Organization
Amendments) Act 1994; and
(b) the commercial rental arrangement is entered into in the
ordinary course of a business conducted by the record owner;
and
(c) the record owner was conducting the same business, or
another business that consisted of, or included, the making of
commercial rental arrangements of the same kind, when the
copy was purchased.
(7) Paragraph (1)(d) does not extend to entry into a commercial rental
arrangement in respect of a computer program if:
(a) the copy of the computer program was purchased by a person
(the program owner) before the commencement of Part 2 of
the Copyright (World Trade Organization Amendments) Act
1994; and
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(b) the commercial rental arrangement is entered into in the
ordinary course of a business conducted by the program
owner; and
(c) the program owner was conducting the same business, or
another business that consisted of, or included, the making of
commercial rental arrangements in respect of computer
programs, when the copy was purchased.
32 Original works in which copyright subsists
(1) Subject to this Act, copyright subsists in an original literary,
dramatic, musical or artistic work that is unpublished and of which
the author:
(a) was a qualified person at the time when the work was made;
or
(b) if the making of the work extended over a period—was a
qualified person for a substantial part of that period.
(2) Subject to this Act, where an original literary, dramatic, musical or
artistic work has been published:
(a) copyright subsists in the work; or
(b) if copyright in the work subsisted immediately before its first
publication—copyright continues to subsist in the work;
if, but only if:
(c) the first publication of the work took place in Australia;
(d) the author of the work was a qualified person at the time
when the work was first published; or
(e) the author died before that time but was a qualified person
immediately before his or her death.
(3) Notwithstanding the last preceding subsection but subject to the
remaining provisions of this Act, copyright subsists in:
(a) an original artistic work that is a building situated in
Australia; or
(b) an original artistic work that is attached to, or forms part of,
such a building.
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(4) In this section, qualified person means an Australian citizen or a
person resident in Australia.
33 Duration of copyright in original works
(1) This section has effect subject to subsection 32(2) and to
section 34.
(2) Subject to this section, copyright that subsists in a literary,
dramatic, musical or artistic work by virtue of this Part continues to
subsist until the end of 70 years after the end of the calendar year
in which the author of the work died.
(3) If, before the death of the author of a literary work (other than a
computer program) or a dramatic or musical work:
(a) the work had not been published;
(b) the work had not been performed in public;
(c) the work had not been broadcast; and
(d) records of the work had not been offered or exposed for sale
to the public;
the copyright in the work continues to subsist until the end of 70
years after the end of the calendar year in which the work is first
published, performed in public, or broadcast, or records of the
work are first offered or exposed for sale to the public, whichever
is the earliest of those events to happen.
(4) A reference in the last preceding subsection to the doing of an act
in relation to a work shall be read as including a reference to the
doing of that act in relation to an adaptation of the work.
(5) If, before the death of the author of an engraving, the engraving
had not been published, the copyright in the engraving continues to
subsist until the end of 70 years after the end of the calendar year
in which the engraving is first published.
34 Duration of copyright in anonymous and pseudonymous works
(1) Subject to subsection (2), if the first publication of a literary,
dramatic, musical or artistic work is anonymous or pseudonymous,
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any copyright subsisting in the work by virtue of this Part
continues to subsist until the end of the period of 70 years after the
end of the calendar year in which the work was first published.
(2) Subsection (1) does not apply in relation to a work if, at any time
before the end of the period referred to in that subsection, the
identity of the author of the work is generally known or can be
ascertained by reasonable inquiry.
35 Ownership of copyright in original works
(1) This section has effect subject to Parts VII and X.
(2) Subject to this section, the author of a literary, dramatic, musical or
artistic work is the owner of any copyright subsisting in the work
by virtue of this Part.
(3) The operation of any of the next three succeeding subsections in
relation to copyright in a particular work may be excluded or
modified by agreement.
(4) If a literary, dramatic or artistic work:
(a) is made by the author under the terms of his or her
employment by the proprietor of a newspaper, magazine or
similar periodical under a contract of service or
apprenticeship; and
(b) is so made for the purpose of inclusion in a newspaper,
magazine or similar periodical;
the following paragraphs apply:
(c) the author is the owner of the copyright only in so far as the
copyright relates to:
(i) reproduction of the work for the purpose of inclusion in
a book; or
(ii) reproduction of the work in the form of a hard copy
facsimile (other than a hard copy facsimile made as part
of a process of transmission) made from a paper edition
of, or from another hard copy facsimile made from a
paper edition of, an issue of the newspaper, magazine or
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similar periodical, but not including reproduction by the
proprietor for a purpose connected with the publication
of the newspaper, magazine or similar periodical;
(d) except as provided by paragraph (c), the proprietor is the
owner of the copyright.
(5) Subject to the last preceding subsection, where:
(a) a person makes, for valuable consideration, an agreement
with another person for the taking of a photograph for a
private or domestic purpose, the painting or drawing of a
portrait or the making of an engraving by the other person;
and
(b) the work is made in pursuance of the agreement;
the first-mentioned person is the owner of any copyright subsisting
in the work by virtue of this Part, but, if at the time the agreement
was made that person made known, expressly or by implication, to
the author of the work the purpose for which the work was
required, the author is entitled to restrain the doing, otherwise than
for that purpose, of any act comprised in the copyright in the work.
(6) Where a literary, dramatic or artistic work to which neither of the
last two preceding subsections applies, or a musical work, is made
by the author in pursuance of the terms of his or her employment
by another person under a contract of service or apprenticeship,
that other person is the owner of any copyright subsisting in the
work by virtue of this Part.
(7) In this section:
hard copy facsimile, in relation to a literary, dramatic or artistic
work, means a facsimile which is in a material form and from
which the work is visible to a human being without the use of any
device.
private or domestic purpose includes a portrait of family members,
a wedding party or children.
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Division 2—Infringement of copyright in works
36 Infringement by doing acts comprised in the copyright
(1) Subject to this Act, the copyright in a literary, dramatic, musical or
artistic work is infringed by a person who, not being the owner of
the copyright, and without the licence of the owner of the
copyright, does in Australia, or authorizes the doing in Australia
of, any act comprised in the copyright.
(1A) In determining, for the purposes of subsection (1), whether or not a
person has authorised the doing in Australia of any act comprised
in the copyright in a work, without the licence of the owner of the
copyright, the matters that must be taken into account include the
following:
(a) the extent (if any) of the person’s power to prevent the doing
of the act concerned;
(b) the nature of any relationship existing between the person
and the person who did the act concerned;
(c) whether the person took any reasonable steps to prevent or
avoid the doing of the act, including whether the person
complied with any relevant industry codes of practice.
(2) The next three succeeding sections do not affect the generality of
this section.
37 Infringement by importation for sale or hire
(1) Subject to Division 3, the copyright in a literary, dramatic, musical
or artistic work is infringed by a person who, without the licence of
the owner of the copyright, imports an article into Australia for the
purpose of:
(a) selling, letting for hire, or by way of trade offering or
exposing for sale or hire, the article;
(b) distributing the article:
(i) for the purpose of trade; or
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(ii) for any other purpose to an extent that will affect
prejudicially the owner of the copyright; or
(c) by way of trade exhibiting the article in public;
if the importer knew, or ought reasonably to have known, that the
making of the article would, if the article had been made in
Australia by the importer, have constituted an infringement of the
copyright.
(2) In relation to an accessory to an article that is or includes a copy of
a work, being a copy that was made without the licence of the
owner of the copyright in the work in the country in which the
copy was made, subsection (1) has effect as if the words “the
importer knew, or ought reasonably to have known, that” were
omitted.
38 Infringement by sale and other dealings
(1) Subject to Division 3, the copyright in a literary, dramatic, musical
or artistic work is infringed by a person who, in Australia, and
without the licence of the owner of the copyright:
(a) sells, lets for hire, or by way of trade offers or exposes for
sale or hire, an article; or
(b) by way of trade exhibits an article in public;
if the person knew, or ought reasonably to have known, that the
making of the article constituted an infringement of the copyright
or, in the case of an imported article, would, if the article had been
made in Australia by the importer, have constituted such an
infringement.
(2) For the purposes of the last preceding subsection, the distribution
of any articles:
(a) for the purpose of trade; or
(b) for any other purpose to an extent that affects prejudicially
the owner of the copyright concerned;
shall be taken to be the sale of those articles.
(3) In this section:
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article includes a reproduction or copy of a work or other
subject-matter, being a reproduction or copy in electronic form.
39 Infringement by permitting place of public entertainment to be
used for performance of work
(1) The copyright in a literary, dramatic or musical work is infringed
by a person who permits a place of public entertainment to be used
for the performance in public of the work, where the performance
constitutes an infringement of the copyright in the work.
(2) This section does not apply where the person permitting the place
to be so used establishes:
(a) that he or she was not aware, and had no reasonable grounds
for suspecting, that the performance would be an
infringement of the copyright; or
(b) that he or she gave the permission gratuitously, or for a
consideration that was only nominal or, if more than
nominal, did not exceed a reasonable estimate of the
expenses to be incurred by him or her by reason of the use of
the place for the performance.
(3) In this section, place of public entertainment includes any
premises that are occupied principally for purposes other than
public entertainment but are from time to time made available for
hire for purposes of public entertainment.
39A Infringing copies made on machines installed in libraries and
archives
Where:
(a) a person makes an infringing copy of, or of part of, a work on
a machine (including a computer), being a machine installed
by or with the approval of the body administering a library or
archives on the premises of the library or archives, or outside
those premises for the convenience of persons using the
library or archives; and
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(b) there is affixed to, or in close proximity to, the machine, in a
place readily visible to persons using the machine, a notice of
the prescribed dimensions and in accordance with the
prescribed form;
neither the body administering the library or archives nor the
officer in charge of the library or archives shall be taken to have
authorized the making of the infringing copy by reason only that
the copy was made on that machine.
39B Communication by use of certain facilities
A person (including a carrier or carriage service provider) who
provides facilities for making, or facilitating the making of, a
communication is not taken to have authorised any infringement of
copyright in a work merely because another person uses the
facilities so provided to do something the right to do which is
included in the copyright.
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Division 3—Acts not constituting infringements of
copyright in works
40 Fair dealing for purpose of research or study
(1) A fair dealing with a literary, dramatic, musical or artistic work, or
with an adaptation of a literary, dramatic or musical work, for the
purpose of research or study does not constitute an infringement of
the copyright in the work.
(1A) A fair dealing with a literary work (other than lecture notes) does
not constitute an infringement of the copyright in the work if it is
for the purpose of, or associated with, an approved course of study
or research by an enrolled external student of an educational
institution.
(1B) In subsection (1A) the expression lecture notes means any literary
work produced for the purpose of the course of study or research
by a person lecturing or teaching in or in connection with the
course of study or research.
(2) For the purposes of this Act, the matters to which regard shall be
had, in determining whether a dealing with a literary, dramatic,
musical or artistic work or with an adaptation of a literary,
dramatic or musical work, being a dealing by way of reproducing
the whole or a part of the work or adaptation, constitutes a fair
dealing with the work or adaptation for the purpose of research or
study include:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or adaptation within a
reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the potential market for, or
value of, the work or adaptation; and
(e) in a case where part only of the work or adaptation is
reproduced—the amount and substantiality of the part copied
taken in relation to the whole work or adaptation.
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(3) Despite subsection (2), a reproduction, for the purpose of research
or study, of all or part of a literary, dramatic or musical work, or of
an adaptation of such a work, contained in an article in a periodical
publication is taken to be a fair dealing with the work or adaptation
for the purpose of research or study.
(4) Subsection (3) does not apply if another article in the publication is
also reproduced for the purpose of different research or a different
course of study.
(5) Despite subsection (2), a reproduction, for the purpose of research
or study, of not more than a reasonable portion of a work or
adaptation that is described in an item of the table and is not
contained in an article in a periodical publication is taken to be a
fair dealing with the work or adaptation for the purpose of research
or study. For this purpose, reasonable portion means the amount
described in the item.
Works, adaptations and reasonable portions
Item Work or adaptation Amount that is reasonable portion
1 A literary, dramatic or musical work
(except a computer program), or an
adaptation of such a work, that is
contained in a published edition of at
least 10 pages
(a) 10% of the number of pages in
the edition; or
(b) if the work or adaptation is
divided into chapters—a single
chapter
2 A published literary work in
electronic form (except a computer
program or an electronic compilation,
such as a database), a published
dramatic work in electronic form or
an adaptation published in electronic
form of such a literary or dramatic
work
(a) 10% of the number of words in
the work or adaptation; or
(b) if the work or adaptation is
divided into chapters—a single
chapter
(6) Subsection (5) applies to a reproduction of a work or adaptation
described in both items of the table in that subsection even if the
amount of the work or adaptation reproduced is not more than a
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reasonable portion (as defined in that subsection) on the basis of
only one of those items.
(7) If:
(a) a person makes a reproduction of a part of a published
literary or dramatic work or published adaptation of a literary
or dramatic work; and
(b) the reproduction is of not more than a reasonable portion (as
defined in subsection (5)) of the work or adaptation;
subsection (5) does not apply in relation to any subsequent
reproduction made by the person of any other part of the same
work or adaptation.
(8) Subsections 10(2), (2A), (2B) and (2C) do not affect
subsection (5), (6) or (7) of this section.
41 Fair dealing for purpose of criticism or review
A fair dealing with a literary, dramatic, musical or artistic work, or
with an adaptation of a literary, dramatic or musical work, does not
constitute an infringement of the copyright in the work if it is for
the purpose of criticism or review, whether of that work or of
another work, and a sufficient acknowledgement of the work is
made.
41A Fair dealing for purpose of parody or satire
A fair dealing with a literary, dramatic, musical or artistic work, or
with an adaptation of a literary, dramatic or musical work, does not
constitute an infringement of the copyright in the work if it is for
the purpose of parody or satire.
42 Fair dealing for purpose of reporting news
(1) A fair dealing with a literary, dramatic, musical or artistic work, or
with an adaptation of a literary, dramatic or musical work, does not
constitute an infringement of the copyright in the work if:
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(a) it is for the purpose of, or is associated with, the reporting of
news in a newspaper, magazine or similar periodical and a
sufficient acknowledgement of the work is made; or
(b) it is for the purpose of, or is associated with, the reporting of
news by means of a communication or in a cinematograph
film.
(2) The playing of a musical work in the course of reporting news by
means of a communication or in a cinematograph film is not a fair
dealing with the work for the purposes of this section if the playing
of the work does not form part of the news being reported.
43 Reproduction for purpose of judicial proceedings or professional
advice
(1) The copyright in a literary, dramatic, musical or artistic work is not
infringed by anything done for the purposes of a judicial
proceeding or of a report of a judicial proceeding.
(2) A fair dealing with a literary, dramatic, musical or artistic work
does not constitute an infringement of the copyright in the work if
it is for the purpose of the giving of professional advice by:
(a) a legal practitioner; or
(b) a person registered as a patent attorney under the Patents Act
1990; or
(c) a person registered as a trade marks attorney under the Trade
Marks Act 1995.
43A Temporary reproductions made in the course of
communication
(1) The copyright in a work, or an adaptation of a work, is not
infringed by making a temporary reproduction of the work or
adaptation as part of the technical process of making or receiving a
communication.
(2) Subsection (1) does not apply in relation to the making of a
temporary reproduction of a work, or an adaptation of a work, as
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part of the technical process of making a communication if the
making of the communication is an infringement of copyright.
43B Temporary reproductions of works as part of a technical
process of use
(1) Subject to subsection (2), the copyright in a work is not infringed
by the making of a temporary reproduction of the work if the
reproduction is incidentally made as a necessary part of a technical
process of using a copy of the work.
(2) Subsection (1) does not apply to:
(a) the making of a temporary reproduction of a work if the
reproduction is made from:
(i) an infringing copy of the work; or
(ii) a copy of the work where the copy is made in another
country and would be an infringing copy of the work if
the person who made the copy had done so in Australia;
or
(b) the making of a temporary reproduction of a work as a
necessary part of a technical process of using a copy of the
work if that use constitutes an infringement of the copyright
in the work.
(3) Subsection (1) does not apply to any subsequent use of a temporary
reproduction of a work other than as a part of the technical process
in which the temporary reproduction was made.
43C Reproducing works in books, newspapers and periodical
publications in different form for private use
(1) This section applies if:
(a) the owner of a book, newspaper or periodical publication
makes from it a reproduction (the main copy) of a work
contained in the book, newspaper or periodical publication;
and
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(b) the main copy is made for his or her private and domestic use
instead of the work as contained in the book, newspaper or
periodical publication; and
(c) the main copy embodies the work in a form different from
the form in which the work is embodied in the book,
newspaper or periodical publication; and
(d) the book, newspaper or periodical publication itself is not an
infringing copy of either the work or a published edition of
the work; and
(e) at the time the owner makes the main copy, he or she has not
made, and is not making, another copy that embodies the
work in a form substantially identical to the form of the main
copy.
For this purpose, disregard a temporary reproduction of the work
incidentally made as a necessary part of the technical process of
making the main copy.
(2) The making of the main copy is not an infringement of copyright in
the work or a published edition of the work.
Dealing with main copy may make it an infringing copy
(3) Subsection (2) is taken never to have applied if the main copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
(d) distributed for the purpose of trade or otherwise.
Note: If the main copy is dealt with as described in subsection (3), then
copyright may be infringed not only by the making of the main copy
but also by the dealing with the main copy.
(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
main copy by the lender to a member of the lender’s family or
household for the member’s private and domestic use.
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Reproducing work from main copy may infringe copyright
(5) Subsection (2) does not prevent the main copy from being an
infringing copy for the purpose of working out whether this section
applies again in relation to the making of another reproduction of
the work from the main copy.
Disposal of book etc. may make the main copy an infringing copy
(6) Subsection (2) is taken never to have applied if the owner of the
book, newspaper or periodical publication disposes of it (in the
form from which the main copy was made) to another person.
Status of temporary reproduction
(7) If subsection (2) applies to the making of the main copy only as a
result of disregarding the incidental making of a temporary
reproduction of the work as a necessary part of the technical
process of making the main copy, then:
(a) if the temporary reproduction is destroyed at the first
practicable time during or after the making of the main
copy—the making of the temporary reproduction does not
infringe copyright in the work or a published edition of the
work; or
(b) if the temporary reproduction is not destroyed at that time—
the making of the temporary reproduction is taken always to
have infringed copyright (if any) subsisting in the work and
the published edition of the work from which the main copy
was made.
44 Inclusion of works in collections for use by places of education
(1) The copyright in a published literary, dramatic, musical or artistic
work is not infringed by the inclusion of a short extract from the
work, or, in the case of a published literary, dramatic or musical
work, from an adaptation of the work, in a collection of literary,
dramatic, musical or artistic works contained in a book, sound
recording or cinematograph film and intended for use by places of
education if:
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(a) the collection is described in an appropriate place in the
book, on the label of each record embodying the recording or
of its container, or in the film, as being intended for use by
places of education;
(b) the work or adaptation was not published for the purpose of
being used by places of education;
(c) the collection consists principally of matter in which
copyright does not subsist; and
(d) a sufficient acknowledgement of the work or adaptation is
made.
(2) The last preceding subsection does not apply in relation to the
copyright in a work if, in addition to the extract concerned, 2 or
more other extracts from, or from adaptations of, works (being
works in which copyright subsists at the time when the collection
is published) by the author of the first-mentioned work are
contained in that collection, or are contained in that collection
taken together with every similar collection, if any, of works
intended for use by places of education and published by the same
publisher within the period of 5 years immediately preceding the
publication of the first-mentioned collection.
44A Importation etc. of books
(1) The copyright in an overseas work first published on or after the
commencing day is not infringed by a person who, without the
licence of the owner of the copyright, imports a non-infringing
book into Australia for a purpose mentioned in paragraph 37(1)(a),
(b) or (c).
(2) Subject to this section, the copyright in:
(a) an overseas work first published before the commencing day;
or
(b) a work first published in Australia, whether before, on or
after the commencing day;
is not infringed by a person who, without the licence of the owner
of the copyright, imports a copy (in this subsection called the
imported copy) of a hardback or paperback version of a
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non-infringing book into Australia for a purpose mentioned in
paragraph 37(1)(a), (b) or (c) if:
(c) the person had ordered in writing from the copyright owner,
or the owner’s licensee or agent, one or more copies of that
version of the book (not being second-hand copies or more
copies than were needed to satisfy the person’s reasonable
requirements); and
(d) when the person ordered the imported copy, the original
order mentioned in paragraph (c) had not been withdrawn or
cancelled by, or with the consent of, the person and:
(i) at least 7 days had elapsed since the person placed the
original order and the copyright owner, licensee or
agent had not notified the person in writing that the
original order would be filled within 90 days after it was
placed; or
(ii) at least 90 days had elapsed since the person placed the
original order and the copyright owner, licensee or
agent had not filled the order.
(3) The copyright in a published work (whether first published before,
on or after the commencing day) is not infringed by a person who,
without the licence of the owner of the copyright, imports a single
copy of a non-infringing book into Australia if the importation is
for the purpose of filling a written order, or a verifiable telephone
order, by a customer of the person and:
(a) in the case of a written order, the order contains a statement,
signed by the customer; or
(b) in the case of a telephone order, the customer makes a
verifiable statement;
to the effect that the customer does not intend to use the book for a
purpose mentioned in paragraph 37(1)(a), (b) or (c).
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(4) The copyright in a published work (whether first published before,
on or after the commencing day) is not infringed by a person who,
without the licence of the owner of the copyright, imports 2 or
more copies of a non-infringing book into Australia if:
(a) the importation is for the purpose of filling a written order, or
a verifiable telephone order, placed with the person by or on
behalf of a library, other than a library conducted for the
profit (direct or indirect) of a person or organisation; and
(b) in the case of a written order—the order contains a statement,
signed by the person placing the order, to the effect that the
library does not intend to use any of the books for a purpose
mentioned in paragraph 37(1)(a), (b) or (c); and
(c) in the case of a telephone order—the person placing the order
makes a verifiable statement to the effect referred to in
paragraph (b); and
(d) the number of copies so imported is not more than the
number of copies so ordered.
(5) Without limiting the ways in which a telephone order under
subsection (3) or (4), or a statement under paragraph (3)(b) or
(4)(c) relating to such an order, may be verified, such an order or
statement is, for the purposes of this section, taken to be verifiable
if the person who takes the order, or to whom the statement is
made, makes a written note of the details of the order or statement
when, or immediately after, the order is placed, or the statement is
made, as the case may be.
(6) Where:
(a) a book is imported into Australia for a purpose mentioned in
paragraph 37(1)(a), (b) or (c); and
(b) the importation does not, under this section, constitute an
infringement of copyright in a published work;
the use of the book for any such purpose does not constitute an
infringement of the copyright in the work and subsection 38(1)
does not apply to the book.
(7) Subsection (2) does not apply to the importation of a copy of a
hardback version of a non-infringing book into Australia if the
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copyright owner, or his or her licensee or agent, is able to supply in
Australia enough copies of a paperback version of the book to fill
any reasonable order.
(8) For the purposes of paragraph (2)(d), a copyright owner, licensee
or agent is not taken to have filled an order by a person for one or
more copies of a version of a book unless and until the copyright
owner, licensee or agent sends the copy, or all of the copies, as the
case requires, to the person.
(9) In this section:
book does not include:
(a) a book whose main content is one or more musical works,
with or without any related literary, dramatic or artistic work;
or
(b) a manual sold with computer software for use in connection
with that software; or
(c) a periodical publication.
commencing day means the day on which the Copyright
Amendment Act 1991 commences.
overseas work means a work:
(a) that was first published in a country other than Australia; and
(b) that was not published in Australia within 30 days after its
first publication in that other country.
Note: A work may, for the purposes of this Act, be first published in
Australia if it is published in Australia within 30 days of an earlier
publication elsewhere. For the meaning of first publication, see
section 29 and, in particular, subsection 29(5).
44B Reproduction of writing on approved label for containers for
chemical product
The reproduction on a label on a container for a chemical product
of any writing appearing on an approved label is not an
infringement of any copyright subsisting under this Part in relation
to that writing.
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44BA Acts done in relation to certain medicine
(1) The following acts are not an infringement of any copyright
subsisting under this Part in a work that is product information
approved under section 25AA of the Therapeutic Goods Act 1989
in relation to medicine:
(a) an act that is done under that Act and that is in respect of
product information in relation to:
(i) restricted medicine; or
(ii) medicine in respect of which the applicant for the
registration of that medicine under that Act has been
given a notice of the kind referred to in
subparagraph 25(1)(da)(ii) of that Act; or
(iii) medicine in respect of which subsection 25AA(2) or (3)
of that Act applies;
(b) an act that is ancillary or incidental to an act referred to in
paragraph (a).
(2) The following acts are not an infringement of any copyright
subsisting under this Part in a work that is product information
approved under section 25AA of the Therapeutic Goods Act 1989
in relation to medicine:
(a) supplying, in Australia, some or all of any product
information that is approved under that section in relation to
medicine;
(b) reproducing, in Australia, some or all of the information
referred to in paragraph (a);
(c) publishing, in Australia, some or all of the information
referred to in paragraph (a);
(d) communicating, in Australia, some or all of the information
referred to in paragraph (a);
(e) adapting, in Australia, some or all of the information referred
to in paragraph (a);
to the extent that the supply, reproduction, publication,
communication or adaptation is for a purpose related to the safe
and effective use of the medicine referred to in paragraph (a).
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Section 44BB
68 Copyright Act 1968
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(3) An act done in Australia that is ancillary or incidental to a supply,
reproduction, publication, communication or adaptation referred to
in subsection (2) is not an infringement of any copyright subsisting
under this Part in the work referred to in subsection (2).
(4) For the purposes of this section, medicine, product information
and restricted medicine have the same meanings as in the
Therapeutic Goods Act 1989.
44BB Copyright subsisting in works shared for healthcare or related
purposes
(1) The copyright in a work is not infringed by an act comprised in the
copyright in the work if:
(a) the act is done, or authorised to be done:
(i) for a purpose for which the collection, use or disclosure
of health information is required or authorised under the
My Health Records Act 2012; or
(ii) in circumstances in which a permitted general situation
exists under item 1 of the table in subsection 16A(1) of
the Privacy Act 1988 (serious threat to life, health or
safety), or would exist if the act were done, or
authorised to be done, by an entity that is an APP entity
for the purposes of that Act; or
(iii) in circumstances in which a permitted health situation
exists under section 16B of the Privacy Act 1988, or
would exist if the act were done, or authorised to be
done, by an entity that is an organisation for the
purposes of that Act; or
(iv) for any other purpose relating to healthcare, or the
communication or management of health information,
prescribed by the regulations; and
(b) either:
(i) the work is substantially comprised of health
information; or
(ii) the work allows for the storage, retrieval or use of
health information and it is reasonably necessary to do
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the act, or authorise it to be done, in circumstances that
would otherwise infringe copyright in the work.
(2) In this section:
healthcare has the same meaning as in the My Health Records Act
2012.
health information has the same meaning as in the My Health
Records Act 2012.
44C Copyright subsisting in accessories etc. to imported articles
(1) The copyright in a work a copy of which is, or is on, or embodied
in, a non-infringing accessory to an article is not infringed by
importing the accessory with the article.
Note: See the definition of accessory in subsection 10(1) and see also
section 10AD for an expanded meaning of accessory in relation to
certain imported articles.
(2) Section 38 does not apply to a copy of a work, being a copy that is,
or is on, or embodied in, a non-infringing accessory to an article, if
the importation of the accessory is not an infringement of copyright
in the work.
44D Import of non-infringing copy of sound recording does not
infringe copyright in works recorded
(1) The copyright in a literary, dramatic or musical work is not
infringed by a person who:
(a) imports into Australia a non-infringing copy of a sound
recording of the work; or
(b) does an act described in section 38 involving an article that is
a non-infringing copy of a sound recording of the work and
has been imported into Australia by anyone.
Note: In a civil action for infringement of copyright, a copy of a sound
recording is presumed not to be a non-infringing copy of the sound
recording unless the defendant proves it is. See section 130A.
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Section 44E
70 Copyright Act 1968
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(2) This section applies to a copy of a sound recording only if, when
the copy is imported into Australia, the sound recording has been
published:
(a) in Australia; or
(b) in another country (the publication country) by or with the
consent of:
(i) the owner of the copyright or related right in the sound
recording in the publication country; or
(ii) the owner of the copyright or related right in the sound
recording in the country (the original recording
country) in which the sound recording was made, if the
law of the publication country did not provide for
copyright or a related right in sound recordings when
publication occurred; or
(iii) the maker of the sound recording, if neither the law of
the publication country nor the law of the original
recording country (whether those countries are different
or not) provided for copyright or a related right in sound
recordings when publication occurred.
Note: Subsection 29(6) deals with unauthorised publication.
(3) In subsection (2):
owner of the copyright or related right in the sound recording
means the owner at the time publication of the sound recording
occurred.
(4) The definition of article in section 38 does not affect this section.
44E Importation and sale etc. of copies of computer programs
(1) The copyright in a literary work:
(a) that is a computer program; and
(b) that has been published in Australia or a qualifying country;
is not infringed by a person who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the program; or
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(d) does an act mentioned in section 38 involving an article that
has embodied in it a non-infringing copy of the program and
that has been imported into Australia by anyone.
Note: Section 130B deals with the burden of proof a defendant bears in a
civil action for infringement of copyright.
(2) The definition of article in section 38 does not affect this section.
44F Importation and sale etc. of copies of electronic literary or
music items
(1) The copyright in a work:
(a) that is, or is part of, an electronic literary or music item; and
(b) that has been published in Australia or a qualifying country;
is not infringed by a person who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the electronic literary or music item;
or
(d) does an act mentioned in section 38 involving an article that
has embodied in it a non-infringing copy of the electronic
literary or music item and that has been imported into
Australia by anyone.
Note: Section 130C deals with the burden of proof a defendant bears in a
civil action for infringement of copyright.
(2) The definition of article in section 38 does not affect this section.
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Section 45
72 Copyright Act 1968
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Division 4—Acts not constituting infringements of
copyright in literary, dramatic and musical works
45 Reading or recitation in public or for a broadcast
The reading or recitation in public, or the inclusion in a sound
broadcast or television broadcast of a reading or recitation, of an
extract of reasonable length from a published literary or dramatic
work, or from an adaptation of such a work, does not constitute an
infringement of the copyright in the work if a sufficient
acknowledgement of the work is made.
46 Performance at premises where persons reside or sleep
Where a literary, dramatic or musical work, or an adaptation of
such a work, is performed in public, by the operation of reception
equipment or by the use of a record, at premises where persons
reside or sleep, as part of the amenities provided exclusively for
residents or inmates of the premises or for those residents or
inmates and their guests, the performance does not constitute an
infringement of the copyright in the work.
47 Reproduction for purpose of broadcasting
(1) Where the broadcasting by a person of a literary, dramatic or
musical work, or of an adaptation of such a work, would not
(whether by reason of an assignment or licence or of the operation
of a provision of this Act) constitute an infringement of the
copyright in the work, but the making by the person of a sound
recording or a cinematograph film of the work or adaptation
would, apart from this subsection, constitute such an infringement,
the copyright in the work is not infringed by the making by the
person of such a recording or film solely for the purpose of the
broadcasting of the work or adaptation.
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(2) The last preceding subsection does not apply in relation to a
recording or film if a record embodying the recording or a copy of
the film is used for a purpose other than:
(a) the broadcasting of the work or adaptation in circumstances
that do not (whether by reason of an assignment or licence or
of the operation of a provision of this Act) constitute an
infringement of the copyright in the work; or
(b) the making of further records embodying the recording or
further copies of the film for the purpose of the broadcasting
of the work or adaptation in such circumstances.
(3) Subsection (1) does not apply in relation to a recording or film
where a record embodying the recording or a copy of the film is
used for the purpose of the broadcasting of the work or adaptation
by a person who is not the maker of the recording or film unless
the maker has paid to the owner of the copyright in the work such
amount as they agree or, in default of agreement, has given an
undertaking in writing to the owner to pay to the owner such
amount as is determined by the Copyright Tribunal, on the
application of either of them, to be equitable remuneration to the
owner for the making of the recording or film.
(4) A person who has given an undertaking referred to in the last
preceding subsection is liable, when the Copyright Tribunal has
determined the amount to which the undertaking relates, to pay that
amount to the owner of the copyright in the work and the owner
may recover that amount in a court of competent jurisdiction from
the person as a debt due to the owner.
(5) Subsection (1) of this section does not apply in relation to a
recording or film unless, before the expiration of the period of 12
months commencing on the day on which any of the records
embodying the recording or any of the copies of the film is first
used for broadcasting the work or adaptation in accordance with
that subsection, or before the expiration of such further period, if
any, as is agreed between the maker of the recording or film and
the owner of the copyright in the work, all the records embodying
the recording or all the copies of the film are destroyed or are
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Section 47AA
74 Copyright Act 1968
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transferred, with the consent of the Director-General of the
National Archives of Australia, to the care (within the meaning of
the Archives Act 1983) of the National Archives of Australia.
(6) The Director-General of the National Archives of Australia must
not consent to the transfer to the care of the National Archives of
Australia in accordance with subsection (5) of a record embodying
a recording or of a copy of a film unless he or she has certified that
the recording or film is of an exceptional documentary character.
(7) In this section:
broadcasting does not include simulcasting.
47AA Reproduction for the purpose of simulcasting
(1) If the broadcasting of a literary, dramatic or musical work, or of an
adaptation of such a work, would not for any reason constitute an
infringement of the copyright in the work, but the making of a
sound recording or a cinematograph film of the work or adaptation
would, apart from this subsection, constitute such an infringement,
the copyright in the work is not infringed by the making of such a
recording or film solely for the purpose of simulcasting the work or
adaptation in digital form.
(2) Subsection (1) does not apply in relation to a recording or film if a
record embodying the recording or a copy of the film is used for a
purpose other than:
(a) the simulcasting of the work or adaptation in circumstances
that do not for any reason constitute an infringement of the
copyright in the work; or
(b) the making of further records embodying the recording or
further copies of the film for the purpose of simulcasting the
work or adaptation in such circumstances.
(3) Subsection (1) does not apply in relation to a recording or film
unless all records embodying the recording, or all copies of the
film, made under that subsection are destroyed on or before the
relevant date specified in the regulations.
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(4) For the purposes of subsection (3), the regulations may specify
different dates in relation to different classes of sound recordings
or cinematograph films.
47A Sound broadcasts by holders of print disability radio licences
(1) The making of a sound broadcast of, or of an adaptation of, a
published literary or dramatic work does not constitute an
infringement of copyright in the work if:
(a) the broadcast is made by a person being the holder of a print
disability radio licence and is made under the licence; and
(b) there is made by or on behalf of the person, as soon as
practicable after the making of the broadcast, a record of the
making of the broadcast that:
(i) sets out the time and date of the making of the
broadcast;
(ii) identifies the work; and
(iii) contains particulars of such other matters in relation to
the work or in relation to the broadcast as are
prescribed.
(2) For the purposes of paragraph (1)(b), a record of the making of a
broadcast:
(a) may be made in writing or in any other manner prescribed by
the regulations; and
(b) if it is made in writing, shall be in accordance with the form
prescribed by the regulations.
(3) Where, at any time before the expiration of the prescribed retention
period after the making by a person of a sound broadcast of a
literary or dramatic work in reliance on subsection (1), a record
made for the purposes of paragraph (1)(b) in relation to the making
of the sound broadcast is not retained by the person, the person
commits an offence punishable, upon conviction, by a fine not
exceeding $500.
(3A) Subsection (3) is an offence of strict liability.
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Section 47A
76 Copyright Act 1968
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Note: For strict liability, see section 6.1 of the Criminal Code.
(4) It is a defence to a prosecution of a person under subsection (3) in
relation to the retention of a record if the person satisfies the court
that he or she took all reasonable precautions, and exercised due
diligence, to ensure the retention of the record.
(5) A person is not liable to be convicted twice of an offence against
subsection (3) in relation to the retention of the same record.
(6) The owner of the copyright in a literary or dramatic work, or the
agent of such an owner, may notify in writing a person who holds
or held a print disability radio licence that the owner or agent
wishes to inspect:
(a) all the records of the person made by or on behalf of the
person for the purposes of paragraph (1)(b); or
(b) such of those records as relate to the works of a specified
author;
on a day specified in the notice, being a day (other than a Saturday,
Sunday or public holiday) not less than 7 days after the day on
which the notice is given.
(7) Where a person who receives a notice under subsection (6) does
not allow the owner or agent to inspect the records to which the
notice relates during business hours on the day specified in the
notice, the person commits an offence punishable, upon conviction,
by a fine not exceeding $500.
(7A) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7B) Subsection (7) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (7B) (see subsection 13.3(3) of the Criminal Code).
(8) Where:
(a) a sound broadcast of, or of an adaptation of, a literary or
dramatic work is made by a person (in this subsection
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referred to as the licence holder) being the holder of a print
disability radio licence;
(b) by virtue of subsection (1), the making of the sound
broadcast does not infringe copyright in the work; and
(c) the owner of the copyright in the work makes a request in
writing at any time during the prescribed retention period
after the making of the sound broadcast for payment for the
making of the sound broadcast;
the licence holder shall pay to the owner of the copyright such an
amount by way of equitable remuneration for the making of the
sound broadcast as is agreed upon between the owner of the
copyright and the licence holder or, in default of agreement, as is
determined by the Copyright Tribunal on the application of either
the owner of the copyright or the licence holder.
(9) Where the Copyright Tribunal has under subsection (8) determined
the amount of equitable remuneration payable by a person to the
owner of the copyright in a work, the owner of the copyright may
recover that amount from the person in a court of competent
jurisdiction as a debt due to the owner of the copyright.
(10) Nothing in this section affects the right of the owner of the
copyright in a literary or dramatic work to grant a licence
authorising a person being the holder of a print disability radio
licence to make sound broadcasts of, or of adaptations of, the work
without infringement of that copyright.
(11) In this section:
(a) prescribed retention period means the period prescribed by
the regulations for the purposes of this paragraph; and
(b) print disability radio licence means a licence in force under
the Broadcasting Services Act 1992 or the
Radiocommunications Act 1992, being a licence that was
granted for the purpose of authorising the making of sound
broadcasts to persons who by reason of old age, disability or
literacy problems are unable to handle books or newspapers
or to read or comprehend written material.
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Section 47AB
78 Copyright Act 1968
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Division 4A—Acts not constituting infringements of
copyright in computer programs
47AB Meaning of computer program
In this Division:
computer program includes any literary work that is:
(a) incorporated in, or associated with, a computer program; and
(b) essential to the effective operation of a function of that
computer program.
47B Reproduction for normal use or study of computer programs
(1) Subject to subsection (2), the copyright in a literary work that is a
computer program is not infringed by the making of a reproduction
of the work if:
(a) the reproduction is incidentally and automatically made as
part of the technical process of running a copy of the
program for the purposes for which the program was
designed; and
(b) the running of the copy is done by, or on behalf of, the owner
or licensee of the copy.
(2) Subsection (1) does not apply to the making of a reproduction of a
computer program:
(a) from an infringing copy of the computer program; or
(b) contrary to an express direction or licence given by, or on
behalf of, the owner of the copyright in the computer
program to the owner or licensee of the copy from which the
reproduction is made when the owner or licensee of that copy
acquired it.
(3) Subject to subsection (4), the copyright in a literary work that is a
computer program is not infringed by the making of a reproduction
of the work if:
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(a) the reproduction is incidentally and automatically made as
part of the technical process of running a copy of the
program for the purpose of studying the ideas behind the
program and the way in which it functions; and
(b) the running of the copy is done by, or on behalf of, the owner
or licensee of the copy.
(4) Subsection (3) does not apply to the making of a reproduction of a
computer program from an infringing copy of the computer
program.
(5) In this section:
reproduction, in relation to a computer program, does not include a
version of the program of the kind referred to in
paragraph 21(5)(b).
47C Back-up copy of computer programs
(1) Subject to subsection (4), the copyright in a literary work that is a
computer program is not infringed by the making of a reproduction
of the work if:
(a) the reproduction is made by, or on behalf of, the owner or
licensee of the copy (the original copy) from which the
reproduction is made; and
(b) the reproduction is made for use only by, or on behalf of, the
owner or licensee of the original copy; and
(c) the reproduction is made for any of the following purposes:
(i) to enable the owner or licensee of the original copy to
use the reproduction in lieu of the original copy and to
store the original copy;
(ii) to enable the owner or licensee of the original copy to
store the reproduction for use in lieu of the original copy
if the original copy is lost, destroyed or rendered
unusable;
(iii) to enable the owner or licensee of the original copy to
use the reproduction in lieu of the original copy, or of
another reproduction made under this subsection, if the
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Section 47C
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original copy, or the other reproduction, is lost,
destroyed or rendered unusable.
(2) Subject to subsection (4), the copyright in a literary work that is a
computer program, and in any work or other subject-matter held
together with the program on the same computer system, is not
infringed by the making of a reproduction of the program, or of
such a work or other subject-matter if:
(a) the reproduction is made by, or on behalf of, the owner or
licensee of the copy (the original copy) from which the
reproduction is made; and
(b) the making of the reproduction is part of the normal back-up
copying of data for security purposes.
(3) Subsection (1) applies in relation to a reproduction of a work made
for a purpose referred to in subparagraph (1)(c)(iii) whether or not
other reproductions of the work have previously been made for the
same purpose from the same copy.
(4) Subsections (1) and (2) do not apply to the making of a
reproduction of a computer program:
(a) from an infringing copy of the computer program; or
(b) if the owner of the copyright in the computer program has so
designed the program that copies of it cannot be made
without modifying the program; or
(c) if a licence to use the original copy, given by, or on behalf of,
the owner of the copyright in the computer program to the
owner of the original copy when the owner of that copy
acquired it, has expired or been terminated.
(5) For the purposes of this section, a reference to a copy of a
computer program is a reference to any article in which the
computer program is reproduced in a material form.
(6) In this section:
reproduction, in relation to a computer program, does not include a
version of the program of the kind referred to in
paragraph 21(5)(b).
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Section 47D
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47D Reproducing computer programs to make interoperable
products
(1) Subject to this Division, the copyright in a literary work that is a
computer program is not infringed by the making of a reproduction
or adaptation of the work if:
(a) the reproduction or adaptation is made by, or on behalf of,
the owner or licensee of the copy of the program (the
original program) used for making the reproduction or
adaptation; and
(b) the reproduction or adaptation is made for the purpose of
obtaining information necessary to enable the owner or
licensee, or a person acting on behalf of the owner or
licensee, to make independently another program (the new
program), or an article, to connect to and be used together
with, or otherwise to interoperate with, the original program
or any other program; and
(c) the reproduction or adaptation is made only to the extent
reasonably necessary to obtain the information referred to in
paragraph (b); and
(d) to the extent that the new program reproduces or adapts the
original program, it does so only to the extent necessary to
enable the new program to connect to and be used together
with, or otherwise to interoperate with, the original program
or the other program; and
(e) the information referred to in paragraph (b) is not readily
available to the owner or licensee from another source when
the reproduction or adaptation is made.
(2) Subsection (1) does not apply to the making of a reproduction or
adaptation of a computer program from an infringing copy of the
computer program.
47E Reproducing computer programs to correct errors
(1) Subject to this Division, the copyright in a literary work that is a
computer program is not infringed by the making, on or after
23 February 1999, of a reproduction or adaptation of the work if:
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(a) the reproduction or adaptation is made by, or on behalf of,
the owner or licensee of the copy of the program (the
original copy) used for making the reproduction or
adaptation; and
(b) the reproduction or adaptation is made for the purpose of
correcting an error in the original copy that prevents it from
operating (including in conjunction with other programs or
with hardware):
(i) as intended by its author; or
(ii) in accordance with any specifications or other
documentation supplied with the original copy; and
(c) the reproduction or adaptation is made only to the extent
reasonably necessary to correct the error referred to in
paragraph (b); and
(d) when the reproduction or adaptation is made, another copy of
the program that does operate as mentioned in paragraph (b)
is not available to the owner or licensee within a reasonable
time at an ordinary commercial price.
(2) Subsection (1) does not apply to the making of a reproduction or
adaptation of a computer program from an infringing copy of the
computer program.
47F Reproducing computer programs for security testing
(1) Subject to this Division, the copyright in a literary work that is a
computer program is not infringed by the making of a reproduction
or adaptation of the work if:
(a) the reproduction or adaptation is made by, or on behalf of,
the owner or licensee of the copy of the program (the
original copy) used for making the reproduction or
adaptation; and
(b) the reproduction or adaptation is made for the purpose of:
(i) testing in good faith the security of the original copy, or
of a computer system or network of which the original
copy is a part; or
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(ii) investigating, or correcting, in good faith a security flaw
in, or the vulnerability to unauthorised access of, the
original copy, or of a computer system or network of
which the original copy is a part; and
(c) the reproduction or adaptation is made only to the extent
reasonably necessary to achieve a purpose referred to in
paragraph (b); and
(d) the information resulting from the making of the
reproduction or adaptation is not readily available to the
owner or licensee from another source when the reproduction
or adaptation is made.
(2) Subsection (1) does not apply to the making of a reproduction or
adaptation of a computer program from an infringing copy of the
computer program.
47G Unauthorised use of copies or information
(1) If:
(a) a reproduction or adaptation of a literary work that is a
computer program is made under a prescribed provision; and
(b) the reproduction or adaptation, or any information derived
from it, is, without the consent of the owner of the copyright
in the computer program, used, or sold or otherwise supplied
to a person, for a purpose other than a purpose specified in
the prescribed provision;
the prescribed provision does not apply, and is taken never to have
applied, to the making of the reproduction or adaptation.
(2) For the purposes of this section, sections 47B, 47C, 47D, 47E and
47F are prescribed provisions.
47H Agreements excluding operation of certain provisions
An agreement, or a provision of an agreement, that excludes or
limits, or has the effect of excluding or limiting, the operation of
subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.
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Section 47J
84 Copyright Act 1968
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Division 4B—Acts not constituting infringements of
copyright in artistic works
47J Reproducing photograph in different format for private use
(1) This section applies if:
(a) the owner of a photograph (the original photograph) makes
a reproduction (the main copy) of it for his or her private and
domestic use instead of the original photograph; and
(b) the original photograph itself is not an infringing copy of a
work or published edition of a work; and
(c) either:
(i) the original photograph is in hardcopy form and the
main copy is in electronic form; or
(ii) the original photograph is in electronic form and the
main copy is in hardcopy form; and
(d) at the time the owner makes the main copy, he or she has not
made, and is not making, another reproduction of the original
photograph that embodies the original photograph in a form
substantially identical to the form of the main copy.
For this purpose, disregard a temporary reproduction of the original
photograph incidentally made as a necessary part of the technical
process of making the main copy.
(2) The making of the main copy is not an infringement of copyright:
(a) in the original photograph; or
(b) in a work, or published edition of a work, included in the
original photograph.
Dealing with main copy may make it an infringing copy
(3) Subsection (2) is taken never to have applied if the main copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
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(d) distributed for the purpose of trade or otherwise.
Note: If the main copy is dealt with as described in subsection (3), then
copyright may be infringed not only by the making of the main copy
but also by the dealing with the main copy.
(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
main copy by the lender to a member of the lender’s family or
household for the member’s private and domestic use.
Reproducing main copy may infringe copyright
(5) Subsection (2) does not prevent the main copy from being an
infringing copy for the purpose of working out whether this section
applies again in relation to the making of a reproduction of the
main copy.
Disposal of original may make the main copy an infringing copy
(6) Subsection (2) is taken never to have applied if the owner of the
original photograph disposes of it to another person.
Status of temporary reproduction
(7) If subsection (2) applies to the making of the main copy only as a
result of disregarding the incidental making of a temporary
reproduction of the original photograph as a necessary part of the
technical process of making the main copy, then:
(a) if the temporary reproduction is destroyed at the first
practicable time during or after the making of the main
copy—the making of the temporary reproduction does not
infringe copyright in the original photograph or a work, or
published edition of a work, included in the original
photograph; or
(b) if the temporary reproduction is not destroyed at that time—
the making of the temporary reproduction is taken always to
have infringed copyright (if any) subsisting in the original
photograph or a work, or published edition of a work,
included in the original photograph.
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Division 5 Copying of works in libraries or archives
Section 48
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Division 5—Copying of works in libraries or archives
48 Interpretation
In this Division, a reference to an article contained in a periodical
publication shall be read as a reference to anything (other than an
artistic work) appearing in such a publication.
48A Copying by Parliamentary libraries for members of Parliament
The copyright in a work is not infringed by anything done, for the
sole purpose of assisting a person who is a member of a Parliament
in the performance of the person’s duties as such a member, by an
authorized officer of a library, being a library the principal purpose
of which is to provide library services for members of that
Parliament.
49 Reproducing and communicating works by libraries and archives
for users
(1) A person may furnish to the officer in charge of a library or
archives:
(a) a request in writing to be supplied with a reproduction of an
article, or a part of an article, contained in a periodical
publication or of the whole or a part of a published work
other than an article contained in a periodical publication,
being a periodical publication or a published work held in the
collection of a library or archives; and
(b) a declaration signed by him or her stating:
(i) that he or she requires the reproduction for the purpose
of research or study and will not use it for any other
purpose; and
(ii) that he or she has not previously been supplied with a
reproduction of the same article or other work, or the
same part of the article or other work, as the case may
be, by an authorized officer of the library or archives.
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(2) Subject to this section, where a request and declaration referred to
in subsection (1) are furnished to the officer in charge of a library
or archives, an authorized officer of the library or archives may,
unless the declaration contains a statement that to his or her
knowledge is untrue in a material particular, make, or cause to be
made, the reproduction to which the request relates and supply the
reproduction to the person who made the request.
Note: The reproduction could be made from another reproduction of the
article or published work in the collection of the library or archives
that was made without infringing copyright because of
subsection 51A(1), to replace the article or published work because it
was damaged, had deteriorated or had been lost or stolen.
(2A) A person may make to an authorized officer of a library or
archives:
(a) a request to be supplied with a reproduction of an article, or
part of an article, contained in a periodical publication, or of
the whole or a part of a published work other than an article
contained in a periodical publication, being a periodical
publication or a published work held in the collection of a
library or archives; and
(b) a declaration to the effect that:
(i) the person requires the reproduction for the purpose of
research or study and will not use it for any other
purpose;
(ii) the person has not previously been supplied with a
reproduction of the same article or other work, or the
same part of the article or other work, as the case may
be, by an authorized officer of the library or archives;
and
(iii) by reason of the remoteness of the person’s location, the
person cannot conveniently furnish to the officer in
charge of the library or archives a request and
declaration referred to in subsection (1) in relation to the
reproduction soon enough to enable the reproduction to
be supplied to the person before the time by which the
person requires it.
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(2B) A request or declaration referred to in subsection (2A) is not
required to be made in writing.
(2C) Subject to this section, where:
(a) a request and declaration referred to in subsection (2A) are
made by a person to an authorized officer of a library or
archives; and
(b) the authorized officer makes a declaration setting out
particulars of the request and declaration made by the person
and stating that:
(i) the declaration made by the person, so far as it relates to
the matters specified in subparagraphs (2A)(b)(i) and
(ii), does not contain a statement that, to the knowledge
of the authorized officer, is untrue in a material
particular; and
(ii) the authorized officer is satisfied that the declaration
made by the person is true so far as it relates to the
matter specified in subparagraph (2A)(b)(iii);
an authorized officer of the library or archives may make, or cause
to be made, the reproduction to which the request relates and
supply the reproduction to the person.
Note: The reproduction could be made from another reproduction of the
article or published work in the collection of the library or archives
that was made without infringing copyright because of
subsection 51A(1), to replace the article or published work because it
was damaged, had deteriorated or had been lost or stolen.
(3) Where a charge is made for making and supplying a reproduction
to which a request under subsection (1) or (2A) relates,
subsection (2) or (2C), as the case may be, does not apply in
relation to the request if the amount of the charge exceeds the cost
of making and supplying the reproduction.
(4) Subsection (2) or (2C) does not apply in relation to a request for a
reproduction of, or parts of, 2 or more articles contained in the
same periodical publication unless the articles are requested for the
same research or course of study.
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(5) Subsection (2) or (2C) does not apply to a request for a
reproduction of the whole of a work (other than an article
contained in a periodical publication), or to a reproduction of a part
of such a work that contains more than a reasonable portion of the
work unless:
(a) the work forms part of the library or archives collection; and
(b) before the reproduction is made, an authorized officer has,
after reasonable investigation, made a declaration stating that
he or she is satisfied that a reproduction (not being a
second-hand reproduction) of the work cannot be obtained
within a reasonable time at an ordinary commercial price.
(5AA) For the purposes of subsection (5), if the characteristics of the work
are such that subsection 10(2) or (2A) is relevant to the question
whether the reproduction contains only a reasonable portion of the
work, then that question is to be determined solely by reference to
subsection 10(2) or (2A) and not by reference to the ordinary
meaning of reasonable portion.
(5AB) For the purposes of paragraph (5)(b), in determining whether a
reproduction (not being a second-hand reproduction) of the work
cannot be obtained within a reasonable time at an ordinary
commercial price, the authorized officer must take into account:
(a) the time by which the person requesting the reproduction
requires it; and
(b) the time within which a reproduction (not being a
second-hand reproduction) of the work at an ordinary
commercial price could be delivered to the person; and
(c) whether an electronic reproduction of the work can be
obtained within a reasonable time at an ordinary commercial
price.
(5A) If an article contained in a periodical publication, or a published
work (other than an article contained in a periodical publication) is
acquired, in electronic form, as part of a library or archives
collection, the officer in charge of the library or archives may make
it available online within the premises of the library or archives in
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such a manner that users cannot, by using any equipment supplied
by the library or archives:
(a) make an electronic reproduction of the article or work; or
(b) communicate the article or work.
(6) The copyright in an article contained in a periodical publication is
not infringed by the making, in relation to a request under
subsection (1) or (2A), of a reproduction of the article, or of a part
of the article, in accordance with subsection (2) or (2C), as the case
may be, unless the reproduction is supplied to a person other than
the person who made the request.
(7) The copyright in a published work other than an article contained
in a periodical publication is not infringed by the making, in
relation to a request under subsection (1) or (2A), of a reproduction
of the work, or of a part of the work, in accordance with
subsection (2) or (2C), as the case may be, unless the reproduction
is supplied to a person other than the person who made the request.
(7A) Subsections (6) and (7) do not apply to the making under
subsection (2) or (2C) of an electronic reproduction of:
(a) an article, or a part of an article, contained in a periodical
publication; or
(b) the whole or part of a published work, other than such an
article;
in relation to a request under this section for communication to the
person who made the request unless:
(c) before or when the reproduction is communicated to the
person, the person is notified in accordance with the
regulations:
(i) that the reproduction has been made under this section
and that the article or work might be subject to
copyright protection under this Act; and
(ii) about such other matters (if any) as are prescribed; and
(d) as soon as practicable after the reproduction is communicated
to the person, the reproduction made under subsection (2) or
(2C) and held by the library or archives is destroyed.
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(7B) It is not an infringement of copyright in an article contained in a
periodical publication, or of copyright in a published work, to
communicate it in accordance with subsection (2), (2C) or (5A).
(8) The regulations may exclude the application of subsection (6) or
(7) in such cases as are specified in the regulations.
(9) In this section:
archives means an archives all or part of whose collection is
accessible to members of the public.
library means a library all or part of whose collection is accessible
to members of the public directly or through interlibrary loans.
supply includes supply by way of a communication.
Note: Under section 203F, it is an offence to make a false or misleading
declaration for the purposes of this section. Sections 203A, 203D and
203G create offences relating to the keeping of declarations made for
the purposes of this section.
50 Reproducing and communicating works by libraries or archives
for other libraries or archives
(1) The officer in charge of a library may request, or cause another
person to request, the officer in charge of another library to supply
the officer in charge of the first-mentioned library with a
reproduction of an article, or a part of an article, contained in a
periodical publication, or of the whole or a part of a published
work other than an article contained in a periodical publication,
being a periodical publication or a published work held in the
collection of a library:
(a) for the purpose of including the reproduction in the collection
of the first-mentioned library;
(aa) in a case where the principal purpose of the first-mentioned
library is to provide library services for members of a
Parliament—for the purpose of assisting a person who is a
member of that Parliament in the performance of the person’s
duties as such a member; or
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(b) for the purpose of supplying the reproduction to a person
who has made a request for the reproduction under
section 49.
(2) Subject to this section, where a request is made by or on behalf of
the officer in charge of a library to the officer in charge of another
library under subsection (1), an authorized officer of the
last-mentioned library may make, or cause to be made, the
reproduction to which the request relates and supply the
reproduction to the officer in charge of the first-mentioned library.
Note: The reproduction could be made from another reproduction of the
article or published work in the collection of the other library that was
made without infringing copyright because of subsection 51A(1), to
replace the article or published work because it was damaged, had
deteriorated or had been lost or stolen.
(3) Where, under subsection (2), an authorized officer of a library
makes, or causes to be made, a reproduction of the whole or part of
a work (including an article contained in a periodical publication)
and supplies it to the officer in charge of another library in
accordance with a request made under subsection (1):
(a) the reproduction shall, for all purposes of this Act, be deemed
to have been made on behalf of an authorized officer of the
other library for the purpose for which the reproduction was
requested; and
(b) an action shall not be brought against the body administering
that first-mentioned library, or against any officer or
employee of that library, for infringement of copyright by
reason of the making or supplying of that reproduction.
(4) Subject to this section, if a reproduction of the whole or a part of
an article contained in a periodical publication, or of any other
published work, is, by virtue of subsection (3), taken to have been
made on behalf of an authorised officer of a library, the copyright
in the article or other work is not infringed:
(a) by the making of the reproduction; or
(b) if the work is supplied under subsection (2) by way of a
communication—by the making of the communication.
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(5) The regulations may exclude the application of subsection (4) in
such cases as are specified in the regulations.
(6) Where a charge is made for making and supplying a reproduction
to which a request under subsection (1) relates, subsection (3) does
not apply in relation to the request if the amount of the charge
exceeds the cost of making and supplying the reproduction.
(7) Where:
(a) a reproduction (in this subsection referred to as the relevant
reproduction) of, or of a part of, an article, or of the whole or
a part of another work, is supplied under subsection (2) to the
officer in charge of a library; and
(b) a reproduction of the same article or other work, or of the
same part of the article or other work, as the case may be, has
previously been supplied under subsection (2) for the purpose
of inclusion in the collection of the library;
subsection (4) does not apply to or in relation to the relevant
reproduction unless, as soon as practicable after the request under
subsection (1) relating to the relevant reproduction is made, an
authorized officer of the library makes a declaration:
(c) setting out particulars of the request (including the purpose
for which the relevant reproduction was requested); and
(d) stating that the reproduction referred to in paragraph (b) has
been lost, destroyed or damaged, as the case requires.
(7A) If:
(a) a reproduction is made of the whole of a work (other than an
article contained in a periodical publication) or of a part of
such a work, being a part that contains more than a
reasonable portion of the work; and
(b) the work from which the reproduction is made is in hardcopy
form; and
(c) the reproduction is supplied under subsection (2) to the
officer in charge of a library;
subsection (4) does not apply in relation to the reproduction unless:
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(d) in a case where the principal purpose of the library is to
provide library services for members of a Parliament—the
reproduction is so supplied for the purpose of assisting a
person who is a member of that Parliament in the
performance of the person’s duties as such a member; or
(e) as soon as practicable after the request under subsection (1)
relating to the reproduction is made, an authorized officer of
the library makes a declaration:
(i) setting out particulars of the request (including the
purpose for which the reproduction was requested); and
(ii) stating that, after reasonable investigation, the
authorized officer is satisfied that a copy (not being a
second-hand copy) of the work cannot be obtained
within a reasonable time at an ordinary commercial
price.
(7B) If:
(a) a reproduction is made of the whole of a work (including an
article contained in a periodical publication) or of a part of
such a work, whether or not the part contains more than a
reasonable portion of the work; and
(b) the work from which the reproduction is made is in electronic
form; and
(c) the reproduction is supplied under subsection (2) to the
officer in charge of a library;
subsection (4) does not apply in relation to the reproduction unless:
(d) in a case where the principal purpose of the library is to
provide library services for members of a Parliament—the
reproduction is so supplied for the purpose of assisting a
person who is a member of that Parliament in the
performance of the person’s duties as such a member; or
(e) as soon as practicable after the request under subsection (1)
relating to the reproduction is made, an authorized officer of
the library makes a declaration:
(i) setting out particulars of the request (including the
purpose for which the reproduction was requested); and
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(ii) if the reproduction is of the whole, or of more than a
reasonable portion, of a work other than an article—
stating that, after reasonable investigation, the
authorised officer is satisfied that the work cannot be
obtained in electronic form within a reasonable time at
an ordinary commercial price; and
(iii) if the reproduction is of a reasonable portion, or less
than a reasonable portion, of a work other than an
article—stating that, after reasonable investigation, the
authorised officer is satisfied that the portion cannot be
obtained in electronic form, either separately or together
with a reasonable amount of other material, within a
reasonable time at an ordinary commercial price; and
(iv) if the reproduction is of the whole or of a part of an
article—stating that, after reasonable investigation, the
authorised officer is satisfied that the article cannot be
obtained on its own in electronic form within a
reasonable time at an ordinary commercial price.
(7BA) For the purposes of subsections (7A) and (7B), if the
characteristics of the work are such that subsection 10(2) or (2A) is
relevant to the question whether the reproduction contains only a
reasonable portion of the work, then that question is to be
determined solely by reference to subsection 10(2) or (2A) and not
by reference to the ordinary meaning of reasonable portion.
(7BB) For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii)
and (iv), in determining whether a copy of the work, the work, the
portion of the work or the article (as appropriate) cannot be
obtained within a reasonable time at an ordinary commercial price,
the authorized officer must take into account:
(a) the time by which the person requesting the reproduction
under section 49 requires the reproduction; and
(b) the time within which a reproduction (not being a
second-hand reproduction) of the work at an ordinary
commercial price could be delivered to the person; and
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(c) whether the copy, work, portion or article can be obtained in
electronic form within a reasonable time at an ordinary
commercial price.
(7C) If:
(a) a reproduction is made in electronic form by or on behalf of
an authorised officer of a library of the whole of a work
(including an article contained in a periodical publication) or
of a part of such a work; and
(b) the reproduction is supplied under subsection (2) to the
officer in charge of another library;
subsection (3) does not apply in relation to the reproduction unless,
as soon as practicable after the reproduction is supplied to the other
library the reproduction made for the purpose of the supply and
held by the first-mentioned library is destroyed.
(8) Subsection (4) does not apply to a reproduction or communication
of all or part of 2 or more articles that are contained in the same
periodical publication and that have been requested for the same
purpose unless:
(a) the purpose is the one described in paragraph (1)(aa)
(assisting a member of a Parliament perform his or her
duties); or
(b) the purpose is the one described in paragraph (1)(b)
(supplying a reproduction to a person requesting it under
section 49 for research or study) and the reproduction of the
articles was requested under section 49 for the same research
or course of study.
(10) In this section:
library means:
(a) a library all or part of whose collection is accessible to
members of the public directly or through interlibrary loans;
or
(b) a library whose principal purpose is to provide library
services for members of a Parliament; or
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(c) an archives all or part of whose collection is accessible to
members of the public.
supply includes supply by way of a communication.
Note: Under section 203F, it is an offence to make a false or misleading
declaration for the purposes of this section. Sections 203A, 203D and
203G create offences relating to the keeping of declarations made for
the purposes of this section.
51 Reproducing and communicating unpublished works in libraries
or archives
(1) Where, at a time more than 50 years after the end of the calendar
year in which the author of a literary, dramatic, musical or artistic
work died, copyright subsists in the work but:
(a) the work has not been published; and
(b) a reproduction of the work, or, in the case of a literary,
dramatic or musical work, the manuscript of the work, is kept
in the collection of a library or archives where it is, subject to
any regulations governing that collection, open to public
inspection;
the copyright in the work is not infringed:
(c) by the making or communication of a reproduction of the
work by a person for the purposes of research or study or
with a view to publication; or
(d) by the making or communication of a reproduction of the
work by, or on behalf of, the officer in charge of the library
or archives if the reproduction is supplied (whether by way of
communication or otherwise) to a person who satisfies the
officer in charge of the library or archives that the person
requires the reproduction for the purposes of research or
study, or with a view to publication, and that the person will
not use it for any other purpose.
(2) If the manuscript, or a reproduction, of an unpublished thesis or
other similar literary work is kept in a library of a university or
other similar institution, or in an archives, the copyright in the
thesis or other work is not infringed by the making or
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communication of a reproduction of the thesis or other work by or
on behalf of the officer in charge of the library or archives if the
reproduction is supplied (whether by communication or otherwise)
to a person who satisfies an authorized officer of the library or
archives that he or she requires the reproduction for the purposes of
research or study.
51AA Reproducing and communicating works in care of National
Archives of Australia
(1) The copyright in a work that is kept in the collection of an archives
covered by subparagraph (a)(i) or paragraph (aa) of the definition
of archives in subsection 10(1), where it is open to public
inspection, is not infringed by the making or communication by, or
on behalf of, the officer in charge of the archives:
(a) of a single working copy of the work; or
(b) of a single reference copy of the work for supply to the
central office of the National Archives of Australia; or
(c) on the written request for a reference copy of the work by an
officer of the National Archives of Australia in a regional
office of the Archives, where the officer in charge is satisfied
that a reference copy of the work has not been previously
supplied to that regional office—of a single reference copy of
the work for supply to that regional office; or
(d) where the officer in charge is satisfied that a reference copy
of the work supplied to a regional office of the National
Archives of Australia is lost, damaged or destroyed and an
officer of the Archives in that regional office makes a written
request for a replacement copy of the work—of a single
replacement copy of the work for supply to that regional
office; or
(e) where the officer in charge is satisfied that a reference copy
of the work supplied to the central office of the National
Archives of Australia is lost, damaged or destroyed—of a
single replacement copy of the work for supply to that central
office.
(2) In this section:
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reference copy, in relation to a work, means a reproduction of the
work made from a working copy for supply to the central office, or
to a regional office, of the National Archives of Australia for use
by that office in providing access to the work to members of the
public.
replacement copy, in relation to a work, means a reproduction of
the work made from a working copy for the purpose of replacing a
reference copy of the work that is lost, damaged or destroyed.
working copy, in relation to a work, means a reproduction of the
work made for the purpose of enabling the National Archives of
Australia to retain the copy and use it for making reference copies
and replacement copies of the work.
51A Reproducing and communicating works for preservation and
other purposes
(1) Subject to subsection (4), the copyright in a work that forms, or
formed, part of the collection of a library or archives is not
infringed by the making or communicating, by or on behalf of the
officer in charge of the library or archives, of a reproduction of the
work:
(a) if the work is held in manuscript form or is an original artistic
work—for the purpose of preserving the manuscript or
original artistic work, as the case may be, against loss or
deterioration or for the purpose of research that is being, or is
to be, carried out at the library or archives in which the work
is held or at another library or other archives;
(b) if the work is held in the collection in a published form but
has been damaged or has deteriorated—for the purpose of
replacing the work; or
(c) if the work has been held in the collection in a published
form but has been lost or stolen—for the purpose of replacing
the work.
(2) The copyright in a work that is held in the collection of a library or
archives is not infringed by the making, by or on behalf of the
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officer in charge of the library or archives, of a reproduction of the
work for administrative purposes.
(3) The copyright in a work that is held in the collection of a library or
archives is not infringed by the communication, by or on behalf of
the officer in charge of the library or archives, of a reproduction of
the work made under subsection (2) to officers of the library or
archives by making it available online to be accessed through the
use of a computer terminal installed within the premises of the
library or archives with the approval of the body administering the
library or archives.
(3A) The copyright in an original artistic work that is held in the
collection of a library or archives is not infringed in the
circumstances described in subsection (3B) by the communication,
by or on behalf of the officer in charge of the library or archives, of
a preservation reproduction of the work by making it available
online to be accessed through the use of a computer terminal:
(a) that is installed within the premises of the library or archives;
and
(b) that cannot be used by a person accessing the work to make
an electronic copy or a hardcopy of the reproduction, or to
communicate the reproduction.
(3B) The circumstances in which the copyright in the original artistic
work is not infringed because of subsection (3A) are that either:
(a) the work has been lost, or has deteriorated, since the
preservation reproduction of the work was made; or
(b) the work has become so unstable that it cannot be displayed
without risk of significant deterioration.
(4) Subsection (1) does not apply in relation to a work held in
published form in the collection of a library or archives unless an
authorized officer of the library or archives has, after reasonable
investigation, made a declaration:
(a) stating that he or she is satisfied that a copy (not being a
second-hand copy) of the work, or of the edition in which the
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work is held in the collection, cannot be obtained within a
reasonable time at an ordinary commercial price; and
(b) if he or she is satisfied that a copy (not being a second-hand
copy) of another edition of the work can be obtained within a
reasonable time at an ordinary commercial price—stating
why the reproduction should be made from the copy of the
work held in the collection.
Note: Under section 203F, it is an offence to make a false or misleading
declaration for the purposes of this section. Sections 203A, 203D and
203G create offences relating to the keeping of declarations made for
the purposes of this section.
(5) Where a reproduction of an unpublished work is made under
subsection (1) by or on behalf of the officer in charge of a library
or archives for the purpose of research that is being, or is to be,
carried out at another library or archives, the supply or
communication of the reproduction by or on behalf of the officer to
the other library or archives does not, for any purpose of this Act,
constitute the publication of the work.
(6) In this section:
administrative purposes means purposes directly related to the
care or control of the collection.
officers of the library or archives includes volunteers assisting
with the care or control of the collection.
preservation reproduction, in relation to an artistic work, means a
reproduction of the work made under subsection (1) for the
purpose of preserving the work against loss or deterioration.
51B Making preservation copies of significant works in key cultural
institutions’ collections
(1) This section applies in relation to a work held in the collection of a
library or archives if:
(a) the body administering the library or archives:
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(i) has, under a law of the Commonwealth or a State or
Territory, the function of developing and maintaining
the collection; or
(ii) is prescribed by the regulations for the purposes of this
subparagraph; and
(b) an authorized officer of the library or archives is satisfied that
the work is of historical or cultural significance to Australia.
Manuscript
(2) If the work is held in the form of a manuscript, the copyright in the
work is not infringed by an authorized officer of the library or
archives making up to 3 reproductions of the work from the
manuscript for the purpose of preserving it against loss or
deterioration.
Original artistic work
(3) If the work is held in the form of an original artistic work, the
copyright in the work is not infringed by an authorized officer of
the library or archives making up to 3 comprehensive photographic
reproductions of the work from the original artistic work for the
purpose of preserving it against loss or deterioration if the officer is
satisfied that a photographic reproduction (not being a second-hand
reproduction) of the work cannot be obtained within a reasonable
time at an ordinary commercial price.
Published work
(4) If the work is held in published form, the copyright in the work is
not infringed by an authorized officer of the library or archives
making up to 3 reproductions of the work from the copy held in the
collection, for the purpose of preserving the work against loss or
deterioration, if the officer is satisfied that:
(a) a copy (not being a second-hand copy) of the work, or of the
edition in which the work is held in the collection, cannot be
obtained within a reasonable time at an ordinary commercial
price; and
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(b) if the officer is satisfied that a copy (not being a second-hand
copy) of another edition of the work can be obtained within a
reasonable time at an ordinary commercial price—it is
appropriate that the reproduction should be made from the
copy of the work held in the collection.
Electronic copies and commercial availability
(5) In determining for the purposes of subsection (3) or (4) whether a
reproduction or copy (not being a second-hand reproduction or
copy) of the work, or of a particular edition of the work, cannot be
obtained within a reasonable time at an ordinary commercial price,
the authorized officer must take into account whether an electronic
copy of the work or edition can be obtained within a reasonable
time at an ordinary commercial price.
Relationship with the rest of this Division
(6) This section does not limit the rest of this Division. The rest of this
Division does not limit this section.
52 Publication of unpublished works kept in libraries or archives
(1) Where:
(a) a published literary, dramatic or musical work (in this section
referred to as the new work) incorporates the whole or a part
of a work (in this section referred to as the old work) to
which subsection 51(1) applied immediately before the new
work was published;
(b) before the new work was published, the prescribed notice of
the intended publication of the work had been given; and
(c) immediately before the new work was published, the identity
of the owner of the copyright in the old work was not known
to the publishers of the new work;
then, for the purposes of this Act, the first publication of the new
work, and any subsequent publication of the new work whether in
the same or in an altered form, shall, in so far as it constitutes a
publication of the old work, be deemed not to be an infringement
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of the copyright in the old work or an unauthorized publication of
the old work.
(2) The last preceding subsection does not apply to a subsequent
publication of the new work incorporating a part of the old work
that was not included in the first publication of the new work
unless:
(a) subsection 51(1) would, but for this section, have applied to
that part of the old work immediately before that subsequent
publication;
(b) before that subsequent publication, the prescribed notice of
the intended publication had been given; and
(c) immediately before that subsequent publication, the identity
of the owner of the copyright in the old work was not known
to the publisher of that subsequent publication.
(3) If a work, or part of a work, has been published and, because of
this section, the publication is taken not to be an infringement of
the copyright in the work, the copyright in the work is not
infringed by a person who, after the publication took place:
(a) broadcasts the work, or that part of the work; or
(b) electronically transmits the work, or that part of the work
(other than in a broadcast) for a fee payable to the person
who made the transmission; or
(c) performs the work, or that part of the work, in public; or
(d) makes a record of the work, or that part of the work.
53 Application of Division to illustrations accompanying articles and
other works
Where an article, thesis or literary, dramatic or musical work is
accompanied by artistic works provided for the purpose of
explaining or illustrating the article, thesis or other work (in this
section referred to as the illustrations), the preceding sections of
this Division apply as if:
(a) where any of those sections provides that the copyright in the
article, thesis or work is not infringed—the reference to that
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copyright included a reference to any copyright in the
illustrations;
(b) a reference in section 49, section 50, section 51 or 51A to a
reproduction of the article, thesis or work included a
reference to a reproduction of the article, thesis or work
together with a reproduction of the illustrations;
(c) a reference in section 49 or section 50 to a reproduction of a
part of the article or work included a reference to a
reproduction of that part of the article or work together with a
reproduction of the illustrations that were provided for the
purpose of explaining or illustrating that part; and
(d) a reference in section 51A or section 52 to the doing of any
act in relation to the work included a reference to the doing
of that act in relation to the work together with the
illustrations.
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Section 54
106 Copyright Act 1968
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Division 6—Recording of musical works
54 Interpretation
(1A) In this Division:
record means a disc, tape, paper or other device in which sounds
are embodied.
(1) For the purposes of this Division:
(a) a reference to a musical work shall be read as a reference to
the work in its original form or to an adaptation of the work;
(b) a reference to the owner of the copyright in a literary,
dramatic or musical work shall, unless the contrary intention
appears, be read as a reference to the person who is entitled
to authorize the making in, and the importation into,
Australia of records of the work; and
(c) a reference to sale of a record by retail or to retail sale of a
record shall be read as not including a reference to:
(i) sale for a consideration not consisting wholly of money;
or
(ii) sale by a person not ordinarily carrying on the business
of making or selling records.
(2) For the purposes of this Division, where a musical work is
comprised partly in one record and partly in another record or other
records, all the records shall be treated as if they constituted a
single record.
(3) A reference in this Division to a record of a musical work does not
include a reference to a sound-track associated with visual images
forming part of a cinematograph film.
(4) Subject to subsection (5), this Division applies to a record of a part
of a musical work as it applies to a record of the whole work.
(5) Section 55:
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(a) does not apply to a record of a whole work unless the
previous record referred to in paragraph 55(1)(a) was a
record of the whole work; and
(b) does not apply to a record of a part of a work unless that
previous record was a record of that part of the work.
55 Conditions upon which manufacturer may make records of
musical work
(1) Subject to this Division, the copyright in a musical work is not
infringed by a person (in this section referred to as the
manufacturer) who makes, in Australia, a record of the work if:
(a) a record of the work:
(i) has previously been made in, or imported into, Australia
for the purpose of retail sale and was so made or
imported by, or with the licence of, the owner of the
copyright in the work;
(ii) has previously been made in Australia for use in making
other records for the purpose of retail sale and was so
made by, or with the licence of, the owner of the
copyright in the work;
(iii) has previously been made in, or imported into, a country
other than Australia for the purpose of retail sale, being
a country that, at the time of the previous making or
importation, was specified in the regulations to be a
country in relation to which this Division applies, and
was so made or imported by, or with the licence of, the
person who was, under the law of that country, the
owner of the copyright in the work; or
(iv) has previously been made in a country other than
Australia for use in making other records for the
purpose of retail sale, being a country that, at the time of
the previous making, was specified in the regulations to
be a country in relation to which this Division applies,
and was so made by, or with the licence of, the person
who was, under the law of that country, the owner of the
copyright in the work;
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(b) before the making of the record, the prescribed notice of the
intended making of the record was given to the owner of the
copyright;
(c) the manufacturer intends to sell the record by retail, or to
supply it for the purpose of its being sold by retail by a
person other than the manufacturer, or intends to use it for
making other records that are to be so sold or supplied; and
(d) where the record is so sold or supplied by the manufacturer:
(i) the sale or supply is made with the licence of the owner
of the copyright; and
(ii) the prescribed royalty is paid to the owner of the
copyright in the manner agreed between the
manufacturer and the owner of the copyright or, failing
such agreement, determined by the Copyright Tribunal
under section 152B.
(3) Subparagraph (1)(d)(i) does not apply in relation to a record of a
work (other than a work that was made for the purpose of being
performed, or has been performed, in association with a dramatic
work or has been included in a cinematograph film) if the sale or
supply is made after the expiration of the prescribed period after
the earliest of the following dates:
(a) the date of the first making in, or the date of the first
importation into, Australia of a previous record of the work
in circumstances referred to in subparagraph (1)(a)(i) or (ii);
(b) the date of the first supplying (whether by sale or otherwise)
to the public in a country referred to in
subparagraph (1)(a)(iii) or (iv) of a previous record of the
work made in, or imported into, that country in
circumstances referred to in that subparagraph.
(4) Regulations prescribing a period for the purposes of the last
preceding subsection may prescribe different periods in relation to
different classes of records.
(5) If, apart from this subsection, the amount of royalty payable in
respect of a record under this section would be less than one cent,
that amount of royalty is one cent.
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(6) In this section:
prescribed royalty, in relation to a record of a musical work,
means:
(a) such amount of royalty as is agreed between the
manufacturer and the owner of the copyright in the work or,
failing such agreement, as is determined by the Copyright
Tribunal under section 152A; or
(b) if no such agreement or determination is in force—an amount
equal to 6.25% of the retail selling price of the record.
57 Provisions relating to royalty where 2 or more works are on the
one record
Where a record comprises 2 or more musical works, whether or not
there is any other matter comprised in the record:
(a) if the record includes a work in which copyright does not
subsist or works in which copyrights do not subsist the
royalty payable in respect of the record is, subject to the next
succeeding paragraph, the amount that bears to the amount
that, but for this section, would be the amount of the royalty
the same proportion as the number of works in the record in
which copyrights subsist bears to the total number of works
in the record; and
(b) if the record includes 2 or more works in which copyrights
subsist:
(i) subject to this Division, the royalty payable in respect of
the record shall not be less than One cent in respect of
each work in the record in which copyright subsists; and
(ii) if the owners of the copyrights in the works in the
record in which copyrights subsist are different persons
there shall be paid to the owner of the copyright in each
work, in respect of that work, an amount ascertained by
dividing the amount of the royalty payable in respect of
the record by the number of works in the record in
which copyrights subsist.
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59 Conditions upon which manufacturer may include part of a
literary or dramatic work in a record of a musical work
(1) Where:
(a) a person makes in Australia a record comprising the
performance of a musical work in which words are sung, or
are spoken incidentally to or in association with the music,
whether or not there is any other matter comprised in the
record;
(b) copyright does not subsist in that work or, if copyright so
subsists, the requirements specified in subsection 55(1) are
complied with in relation to that copyright;
(c) the words consist or form part of a literary or dramatic work
in which copyright subsists;
(d) a record of the musical work in which those words, or words
substantially the same as those words, were sung, or were
spoken incidentally to or in association with the music:
(i) has previously been made in, or imported into, Australia
for the purpose of retail sale and was so made or
imported by, or with the licence of, the owner of the
copyright in the literary or dramatic work;
(ii) has previously been made in Australia for use in making
other records for the purpose of retail sale and was so
made by, or with the licence of, the owner of the
copyright in the literary or dramatic work;
(iii) has previously been made in, or imported into, a country
other than Australia for the purpose of retail sale, being
a country that, at the time of the previous making or
importation, was specified in the regulations to be a
country in relation to which this Division applies, and
was so made or imported by, or with the licence of, the
person who was, under the law of that country, the
owner of the copyright in the literary or dramatic work;
or
(iv) has previously been made in a country other than
Australia for use in making other records for the
purpose of retail sale, being a country that, at the time of
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the previous making, was specified in the regulations to
be a country in relation to which this Division applies,
and was so made by, or with the licence of, the person
who was, under the law of that country, the owner of the
copyright in the literary or dramatic work; and
(e) the like notice was given to the owner of the copyright in the
literary or dramatic work as is required by paragraph 55(1)(b)
to be given to the owner of the copyright (if any) in the
musical work and there is paid to the owner of the copyright
in the literary or dramatic work such amount (if any) as is
ascertained in accordance with this section;
the making of the record does not constitute an infringement of the
copyright in the literary or dramatic work.
(2) Where copyright does not subsist in the musical work, the amount
to be paid in respect of the literary or dramatic work is an amount
equal to the royalty that, but for this section, would have been
payable in respect of the musical work if copyright had subsisted in
the musical work.
(3) Where copyright subsists in the musical work as well as in the
literary or dramatic work:
(a) if the copyrights in those works are owned by the same
person—an amount is not payable in respect of the literary or
dramatic work; or
(b) if the copyrights in those works are owned by different
persons—the royalty that, but for this section, would have
been payable in respect of the musical work shall be
apportioned between them in such manner as they agree, or,
in default of the agreement, as is determined by the
Copyright Tribunal on the application of either of them.
(4) Where the owner of the copyright in a musical work and the owner
of the copyright in a literary or dramatic work do not agree on the
manner in which an amount is to be apportioned between them but
the person who made the record gives an undertaking in writing to
each owner to pay to him or her the portion of that amount that the
Tribunal determines to be payable to him or her, then:
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(a) paragraph 55(1)(d) and paragraph (1)(e) of this section have
effect as if the payments referred to in those paragraphs had
been made; and
(b) the person who made the record is liable, when the amount to
which an undertaking relates is determined, to pay that
amount to the owner of the copyright to whom the
undertaking was given and the owner may recover that
amount in a court of competent jurisdiction from that person
as a debt due to the owner.
60 Records made partly for retail sale and partly for gratuitous
disposal
Where a person makes, in Australia, a number of records
embodying the same sound recording, being a recording of a
musical work or of a musical work and of words consisting or
forming part of a literary or dramatic work, with the intention of:
(a) selling by retail, or supplying for sale by retail by another
person, a substantial proportion of the records (in this section
referred to as the records made for retail sale); and
(b) disposing gratuitously of the remainder of the records or
supplying the remainder of the records for gratuitous disposal
by another person;
this Division applies in relation to the records other than the
records made for retail sale as if:
(c) those records had been made with the intention of selling
them by retail or of supplying them for sale by retail by
another person;
(d) the gratuitous disposal of those records by the maker of the
records, or the supplying of those records by the maker of the
records for gratuitous disposal by another person, were a sale
of the records by retail; and
(e) the retail selling price of those records were the same as the
retail selling price of the records made for retail sale.
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61 Making inquiries in relation to previous records
Where:
(a) a person makes inquiries, as prescribed, for the purpose of
ascertaining whether a record of a musical work, or a record
of a musical work in which words consisting or forming part
of a literary or dramatic work were sung or spoken, has
previously been made in, or imported into, Australia by, or
with the licence of, the owner of the copyright in the musical
work or in the literary or dramatic work, as the case may be,
for the purpose of retail sale or for use in making other
records for the purpose of retail sale; and
(b) an answer to those inquiries is not received within the
prescribed period;
a record of that musical work, or a record of that work in which
those words were sung or spoken, as the case may be, shall, for the
purposes of the application of this Division:
(c) in relation to the person who made the inquiries; or
(d) in relation to a person who makes records of the musical
work, or records of that work in which those words or
substantially the same words are sung or spoken, for the
purpose of supplying those records to the person who made
the inquiries in pursuance of an agreement entered into
between those persons for the making of the records;
be taken to have been previously made in, or imported into,
Australia with the licence of the owner of that copyright for the
purpose of retail sale or for use in making other records for the
purpose of retail sale, as the case may be.
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64 Sections 55 and 59 to be disregarded in determining whether an
infringement has been committed by the importation of
records
For the purpose of any provision of this Act relating to imported
articles, in determining whether the making of a record made
outside Australia would have constituted an infringement of
copyright if the record had been made in Australia by the importer,
sections 55 and 59 shall be disregarded.
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Division 7—Acts not constituting infringements of
copyright in artistic works
65 Sculptures and certain other works in public places
(1) This section applies to sculptures and to works of artistic
craftsmanship of the kind referred to in paragraph (c) of the
definition of artistic work in section 10.
(2) The copyright in a work to which this section applies that is
situated, otherwise than temporarily, in a public place, or in
premises open to the public, is not infringed by the making of a
painting, drawing, engraving or photograph of the work or by the
inclusion of the work in a cinematograph film or in a television
broadcast.
66 Buildings and models of buildings
The copyright in a building or a model of a building is not
infringed by the making of a painting, drawing, engraving or
photograph of the building or model or by the inclusion of the
building or model in a cinematograph film or in a television
broadcast.
67 Incidental filming or televising of artistic works
Without prejudice to the last two preceding sections, the copyright
in an artistic work is not infringed by the inclusion of the work in a
cinematograph film or in a television broadcast if its inclusion in
the film or broadcast is only incidental to the principal matters
represented in the film or broadcast.
68 Publication of artistic works
The copyright in an artistic work is not infringed by the publication
of a painting, drawing, engraving, photograph or cinematograph
film if, by virtue of section 65, section 66 or section 67, the making
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116 Copyright Act 1968
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of that painting, drawing, engraving, photograph or film did not
constitute an infringement of the copyright.
70 Reproduction for purpose of including work in television
broadcast
(1) Where the inclusion of an artistic work in a television broadcast
made by a person would not (whether by reason of an assignment
or licence or of the operation of a provision of this Act) constitute
an infringement of copyright in the work but the making by the
person of a cinematograph film of the work would, apart from this
subsection, constitute such an infringement, the copyright in the
work is not infringed by the making by the person of such a film
solely for the purpose of the inclusion of the work in a television
broadcast.
(2) The last preceding subsection does not apply in relation to a film if
a copy of the film is used for a purpose other than:
(a) the inclusion of the work in a television broadcast in
circumstances that do not (whether by reason of an
assignment or licence or of the operation of a provision of
this Act) constitute an infringement of the copyright in the
work; or
(b) the making of further copies of the film for the purpose of the
inclusion of the work in such a broadcast.
(3) Subsection (1) does not apply in relation to a film where a copy of
the film is used for the purpose of the inclusion of the work in a
television broadcast made by a person who is not the maker of the
film unless the maker has paid to the owner of the copyright in the
work such amount as they agree or, in default of agreement, has
given an undertaking in writing to the owner to pay to the owner
such amount as is determined by the Copyright Tribunal, on the
application of either of them, to be equitable remuneration to the
owner for the making of the film.
(4) A person who has given an undertaking referred to in the last
preceding subsection is liable, when the Copyright Tribunal has
determined the amount to which the undertaking relates, to pay that
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amount to the owner of the copyright in the work and the owner
may recover that amount in a court of competent jurisdiction from
the person as a debt due to the owner.
(5) Subsection (1) does not apply in relation to a film unless, before
the expiration of the period of 12 months commencing on the day
on which any of the copies of the film is first used for including the
work in a television broadcast in accordance with that subsection,
or before the expiration of such further period, if any, as is agreed
between the maker of the film and the owner of the copyright in
the work, all the copies of the film are destroyed or are transferred,
with the consent of the Director-General of the National Archives
of Australia, to the care (within the meaning of the Archives Act
1983) of the National Archives of Australia.
(6) The Director-General of the National Archives of Australia must
not consent to the transfer to the care of the National Archives of
Australia in accordance with subsection (5) of a copy of a film
unless he or she has certified that the film is of an exceptional
documentary character.
72 Reproduction of part of work in later work
(1) The copyright in an artistic work is not infringed by the making of
a later artistic work by the same author if, in making the later work,
the author does not repeat or imitate the main design of the earlier
work.
(2) The last preceding subsection has effect notwithstanding that part
of the earlier work is reproduced in the later work and that, in
reproducing the later work, the author used a mould, cast, sketch,
plan, model or study made for the purposes of the earlier work.
73 Reconstruction of buildings
(1) Where copyright subsists in a building, the copyright is not
infringed by a reconstruction of that building.
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Section 73
118 Copyright Act 1968
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(2) Where a building has been constructed in accordance with
architectural drawings or plans in which copyright subsists and has
been so constructed by, or with the licence of, the owner of that
copyright, that copyright is not infringed by a later reconstruction
of the building by reference to those drawings or plans.
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Designs Division 8
Section 74
Copyright Act 1968 119
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Division 8—Designs
74 Corresponding design
(1) In this Division:
corresponding design, in relation to an artistic work, means visual
features of shape or configuration which, when embodied in a
product, result in a reproduction of that work, whether or not the
visual features constitute a design that is capable of being
registered under the Designs Act 2003.
(2) For the purposes of subsection (1):
embodied in, in relation to a product, includes woven into,
impressed on or worked into the product.
75 Copyright protection where corresponding design registered
Subject to section 76, where copyright subsists in an artistic work
(whether made before the commencement of this section or
otherwise) and a corresponding design is or has been registered
under the Designs Act 1906 or the Designs Act 2003 on or after
that commencement, it is not an infringement of that copyright to
reproduce the work by embodying that, or any other,
corresponding design in a product.
76 False registration of industrial designs under the Designs Act
2003
(1) This section applies if:
(a) proceedings (copyright proceedings) are brought under this
Act in relation to an artistic work in which copyright subsists;
and
(b) a corresponding design was registered under the Designs Act
2003; and
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Section 77
120 Copyright Act 1968
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(c) the exclusive right in the design had not expired by effluxion
of time before the copyright proceedings began; and
(d) it is established in the copyright proceedings that:
(i) none of the persons who are registered owners of the
registered design are entitled persons in relation to the
design; and
(ii) none of those persons were registered with the
knowledge of the owner of the copyright in the artistic
work.
(2) Subject to subsection (3), for the purposes of the copyright
proceedings:
(a) the design is taken never to have been registered under the
Designs Act 2003; and
(b) section 75 does not apply in relation to anything done in
respect of the design; and
(c) nothing in the Designs Act 2003 constitutes a defence.
(3) Ignore subsection (2) if it is established in the copyright
proceedings that the act to which the proceedings relate was done:
(a) by an assignee of, or under a licence granted by, the
registered owner of the registered design; and
(b) in good faith relying on the registration and without notice of
any proceedings (whether or not before a court) to revoke the
registration or to rectify the entry in the Register of Designs
in relation to the design.
77 Application of artistic works as industrial designs without
registration of the designs
(1) This section applies where:
(a) copyright subsists in an artistic work (other than a building or
a model of a building, or a work of artistic craftsmanship)
whether made before the commencement of this section or
otherwise;
(b) a corresponding design is or has been applied industrially,
whether in Australia or elsewhere, and whether before or
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after the commencement of this section, by or with the
licence of the owner of the copyright in the place of
industrial application; and
(c) at any time on or after the commencement of this section,
products to which the corresponding design has been so
applied (the products made to the corresponding design) are
sold, let for hire or offered or exposed for sale or hire,
whether in Australia or elsewhere; and
(d) at that time, the corresponding design is not registrable under
the Designs Act 2003 or has not been registered under that
Act or under the Designs Act 1906.
(1A) This section also applies if:
(a) a complete specification that discloses a product made to the
corresponding design; or
(b) a representation of a product made to the corresponding
design and included in a design application;
is published in Australia, whether or not paragraphs (1)(b) and (c)
are satisfied in relation to the corresponding design.
(2) It is not an infringement of the copyright in the artistic work to
reproduce the work, on or after the day on which:
(a) products made to the corresponding design are first sold, let
for hire or offered or exposed for sale or hire; or
(b) a complete specification that discloses a product made to the
corresponding design is first published in Australia; or
(c) a representation of a product made to the corresponding
design and included in a design application is first published
in Australia;
by embodying that, or any other, corresponding design in a
product.
(3) This section does not apply in relation to any articles or products in
respect of which, at the time when they were sold, let for hire or
offered or exposed for sale or hire, the corresponding design
concerned was excluded from registration by regulations made
under the Designs Act 1906 or the Designs Act 2003, and, for the
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Section 77A
122 Copyright Act 1968
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purposes of any proceedings under this Act, a design shall be
conclusively presumed to have been so excluded if:
(a) before the commencement of the proceedings, an application
for the registration of the design under the Designs Act 1906
in respect of those articles, or under the Designs Act 2003 in
respect of those products, had been refused;
(b) the reason, or one of the reasons, given for the refusal was
that the design was excluded from registration under that Act
by regulations made under that Act; and
(c) when the proceedings were commenced, no appeal against
the refusal had been allowed or was pending.
(4) The regulations may specify the circumstances in which a design
is, for the purposes of this section, to be taken to be applied
industrially.
(5) In this section:
building or model of a building does not include a portable
building such as a shed, a pre-constructed swimming pool, a
demountable building or similar portable building.
complete specification has the same meaning as in the Patents Act
1990.
design application has the same meaning as in the Designs Act
2003.
representation, in relation to a design, has the same meaning as
in the Designs Act 2003.
77A Certain reproductions of an artistic work do not infringe
copyright
(1) It is not an infringement of copyright in an artistic work to
reproduce the artistic work, or communicate that reproduction, if:
(a) the reproduction is derived from a three-dimensional product
that embodies a corresponding design in relation to the
artistic work; and
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(b) the reproduction is in the course of, or incidental to:
(i) making a product (the non-infringing product), if the
making of the product did not, or would not, infringe the
copyright in the artistic work because of the operation
of this Division; or
(ii) selling or letting for hire the non-infringing product, or
offering or exposing the non-infringing product for sale
or hire.
(2) It is not an infringement of copyright in an artistic work to make a
cast or mould embodying a corresponding design in relation to the
artistic work, if:
(a) the cast or mould is for the purpose of making products; and
(b) the making of the products would not infringe copyright
because of the operation of this Division.
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Part III Copyright in original literary, dramatic, musical and artistic works
Division 9 Works of joint authorship
Section 78
124 Copyright Act 1968
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Division 9—Works of joint authorship
78 References to all of joint authors
Subject to this Division, a reference in this Act to the author of a
work shall, unless otherwise expressly provided by this Act, be
read, in relation to a work of joint authorship, as a reference to all
the authors of the work.
79 References to any one or more of joint authors
The references in section 32, and in subsection 34(2) to the author
of a work shall, in relation to a work of joint authorship, be read as
references to any one or more of the authors of the work.
80 References to whichever of joint authors died last
The references in sections 33 and 51 to the author of a work shall,
in relation to a work of joint authorship other than a work to which
the next succeeding section applies, be read as references to the
author who died last.
81 Works of joint authorship published under pseudonyms
(1) This section applies to a work of joint authorship that was first
published under 2 or more names of which one was a pseudonym
or 2 or more (but not all) were pseudonyms.
(2) This section also applies to a work of joint authorship that was first
published under 2 or more names all of which were pseudonyms if,
at any time within 70 years after the end of the calendar year in
which the work was first published, the identity of one or more
(but not all) of the authors was generally known or could be
ascertained by reasonable inquiry.
(3) The references in section 33 to the author of a work shall, in
relation to a work to which this section applies, be read as
references to the author whose identity was disclosed or, if the
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identity of 2 or more of the authors was disclosed, as references to
whichever of those authors died last.
(4) For the purposes of this section, the identity of an author shall be
deemed to have been disclosed if:
(a) one of the names under which the work was published was
the name of that author; or
(b) the identity of that author is generally known or can be
ascertained by reasonable inquiry.
82 Copyright to subsist in joint works without regard to any author
who is an unqualified person
(1) Subsection 35(2) has effect, in relation to a work of joint
authorship of which one of the authors is an unqualified person, or
2 or more (but not all) of the authors are unqualified persons, as if
the author or authors, other than unqualified persons, had alone
been the author or authors, as the case may be, of the work.
(2) For the purposes of the last preceding subsection, a person is an
unqualified person in relation to a work where, if he or she had
alone been the author of the work, copyright would not have
subsisted in the work by virtue of this Part.
83 Inclusion of joint works in collections for use in places of
education
The reference in subsection 44(2) to other extracts from, or from
adaptations of, works by the author of the extract concerned:
(a) shall be read as including a reference to extracts from, or
from adaptations of, works by the author of the extract
concerned in collaboration with any other person; or
(b) if the extract concerned is from, or from an adaptation of, a
work of joint authorship shall be read as including a
reference to extracts from, or from adaptations of, works by
any one or more of the authors of the extract concerned, or by
any one or more of those authors in collaboration with any
other person.
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Part IV Copyright in subject-matter other than works
Division 1 Preliminary
Section 84
126 Copyright Act 1968
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Part IV—Copyright in subject-matter other than
works
Division 1—Preliminary
84 Definitions
In this Part:
live performance means:
(a) a performance (including an improvisation) of a dramatic
work, or part of such a work, including such a performance
given with the use of puppets; or
(b) a performance (including an improvisation) of a musical
work or part of such a work; or
(c) the reading, recitation or delivery of a literary work, or part
of such a work, or the recitation or delivery of an improvised
literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a variety act or any similar
presentation or show; or
(f) a performance of an expression of folklore;
being a live performance, whether in the presence of an audience
or otherwise.
performer in a live performance:
(a) means each person who contributed to the sounds of the
performance; and
(b) if the performance includes a performance of a musical
work—includes the conductor.
qualified person means:
(a) an Australian citizen or a person (other than a body
corporate) resident in Australia; or
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(b) a body corporate incorporated under a law of the
Commonwealth or of a State.
sound recording of a live performance means a sound recording,
made at the time of the live performance, consisting of, or
including, the sounds of the performance.
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Division 2 Nature of copyright in subject-matter other than works
Section 85
128 Copyright Act 1968
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Division 2—Nature of copyright in subject-matter other
than works
85 Nature of copyright in sound recordings
(1) For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a sound recording, is the exclusive right to
do all or any of the following acts:
(a) to make a copy of the sound recording;
(b) to cause the recording to be heard in public;
(c) to communicate the recording to the public;
(d) to enter into a commercial rental arrangement in respect of
the recording.
(2) Paragraph (1)(d) does not extend to entry into a commercial rental
arrangement in respect of a sound recording if:
(a) the copy of the sound recording was purchased by a person
(the record owner) before the commencement of Part 2 of
the Copyright (World Trade Organization Amendments) Act
1994; and
(b) the commercial rental arrangement is entered into in the
ordinary course of a business conducted by the record owner;
and
(c) the record owner was conducting the same business, or
another business that consisted of, or included, the making of
commercial rental arrangements in respect of copies of sound
recordings, when the copy was purchased.
86 Nature of copyright in cinematograph films
For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a cinematograph film, is the exclusive right
to do all or any of the following acts:
(a) to make a copy of the film;
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(b) to cause the film, in so far as it consists of visual images, to
be seen in public, or, in so far as it consists of sounds, to be
heard in public;
(c) to communicate the film to the public.
87 Nature of copyright in television broadcasts and sound
broadcasts
For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a television broadcast or sound broadcast,
is the exclusive right:
(a) in the case of a television broadcast in so far as it consists of
visual images—to make a cinematograph film of the
broadcast, or a copy of such a film;
(b) in the case of a sound broadcast, or of a television broadcast
in so far as it consists of sounds—to make a sound recording
of the broadcast, or a copy of such a sound recording; and
(c) in the case of a television broadcast or of a sound
broadcast—to re-broadcast it or communicate it to the public
otherwise than by broadcasting it.
88 Nature of copyright in published editions of works
For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a published edition of a literary, dramatic,
musical or artistic work or of two or more literary, dramatic,
musical or artistic works, is the exclusive right to make a facsimile
copy of the edition.
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Part IV Copyright in subject-matter other than works
Division 3 Subject-matter, other than works, in which copyright subsists
Section 89
130 Copyright Act 1968
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Division 3—Subject-matter, other than works, in which
copyright subsists
89 Sound recordings in which copyright subsists
(1) Subject to this Act, copyright subsists in a sound recording of
which the maker was a qualified person at the time when the
recording was made.
(2) Without prejudice to the last preceding subsection, copyright
subsists, subject to this Act, in a sound recording if the recording
was made in Australia.
(3) Without prejudice to the last two preceding subsections, copyright
subsists, subject to this Act, in a published sound recording if the
first publication of the recording took place in Australia.
90 Cinematograph films in which copyright subsists
(1) Subject to this Act, copyright subsists in a cinematograph film of
which the maker was a qualified person for the whole or a
substantial part of the period during which the film was made.
(2) Without prejudice to the last preceding subsection, copyright
subsists, subject to this Act, in a cinematograph film if the film was
made in Australia.
(3) Without prejudice to the last two preceding subsections, copyright
subsists, subject to this Act, in a published cinematograph film if
the first publication of the film took place in Australia.
91 Television broadcasts and sound broadcasts in which copyright
subsists
Subject to this Act, copyright subsists in a television broadcast or
sound broadcast made from a place in Australia:
(a) under the authority of a licence or a class licence under the
Broadcasting Services Act 1992; or
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(b) by the Australian Broadcasting Corporation or the Special
Broadcasting Service Corporation.
92 Published editions of works in which copyright subsists
(1) Subject to this Act, copyright subsists in a published edition of a
literary, dramatic, musical or artistic work, or of 2 or more literary,
dramatic, musical or artistic works, where:
(a) the first publication of the edition took place in Australia; or
(b) the publisher of the edition was a qualified person at the date
of the first publication of the edition.
(2) The last preceding subsection does not apply to an edition that
reproduces a previous edition of the same work or works.
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Division 4 Duration of copyright in subject-matter other than works
Section 93
132 Copyright Act 1968
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Division 4—Duration of copyright in subject-matter other
than works
93 Duration of copyright in sound recordings
Copyright subsisting in a sound recording by virtue of this Part
continues to subsist until the end of 70 years after the end of the
calendar year in which the recording is first published.
94 Duration of copyright in cinematograph films
(1) Copyright subsisting in a cinematograph film by virtue of
subsection 90(1) or (2) continues to subsist until the film is
published and, after the publication of the film, until the end of 70
years after the end of the calendar year in which the film was first
published.
(2) Copyright subsisting in a cinematograph film by virtue only of
subsection 90(3) continues to subsist until the end of 70 years after
the end of the calendar year in which the film was first published.
95 Duration of copyright in television broadcasts and sound
broadcasts
(1) Copyright subsisting in a television broadcast or sound broadcast
by virtue of this Part continues to subsist until the expiration of 50
years after the expiration of the calendar year in which the
broadcast was made.
(2) In so far as a television broadcast or sound broadcast is a repetition
(whether the first or a subsequent repetition) of a previous
television broadcast or sound broadcast to which section 91
applies, and is made by broadcasting visual images or sounds
embodied in any article or thing:
(a) if it is made before the expiration of the period of 50 years
after the expiration of the calendar year in which the previous
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broadcast was made—any copyright subsisting in it expires
at the expiration of that period; and
(b) if it is made after the expiration of that period—copyright
does not subsist in it by virtue of this Part.
96 Duration of copyright in published editions of works
Copyright subsisting in a published edition of a work or works
by virtue of this Part continues to subsist until the expiration of 25
years after the expiration of the calendar year in which the edition
was first published.
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Part IV Copyright in subject-matter other than works
Division 5 Ownership of copyright in subject-matter other than works
Section 97
134 Copyright Act 1968
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Division 5—Ownership of copyright in subject-matter
other than works
Subdivision A—Ownership of copyright in subject-matter
other than works
97 Ownership of copyright in sound recordings
(1) This section has effect subject to Parts VII and X.
(2) Subject to subsection (3), the maker of a sound recording is the
owner of any copyright subsisting in the recording by virtue of this
Part.
(2A) If there is more than one owner of the copyright in a sound
recording of a live performance, the owners own the copyright as
tenants in common in equal shares.
(3) Where:
(a) a person makes, for valuable consideration, an agreement
with another person for the making of a sound recording by
the other person; and
(b) the recording is made in pursuance of the agreement;
the first-mentioned person is, in the absence of any agreement to
the contrary, the owner of any copyright subsisting in the recording
by virtue of this Part.
98 Ownership of copyright in cinematograph films
(1) This section has effect subject to Parts VII and X.
(2) Subject to the next succeeding subsection, the maker of a
cinematograph film is the owner of any copyright subsisting in the
film by virtue of this Part.
(3) Where:
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(a) a person makes, for valuable consideration, an agreement
with another person for the making of a cinematograph film
by the other person; and
(b) the film is made in pursuance of the agreement;
the first-mentioned person is, in the absence of any agreement to
the contrary, the owner of any copyright subsisting in the film by
virtue of this Part.
(4) If the film is not a commissioned film, then the reference in
subsection (2) to the maker of the film includes a reference to each
director of the film.
(5) If a director directed the film under the terms of his or her
employment under a contract of service or apprenticeship with
another person (the employer), then, in the absence of any
agreement to the contrary, the employer is to be substituted for the
director for the purposes of subsection (4).
(6) If a person becomes an owner of the copyright:
(a) because of the operation of subsection (4); or
(b) because of the operation of subsections (4) and (5);
then the person becomes the owner of the copyright only so far as
the copyright consists of the right to include the film in a
retransmission of a free-to-air broadcast.
(7) In this section:
commissioned film means a film made as mentioned in
paragraphs (3)(a) and (b).
director has the same meaning as in Part IX.
retransmission means a retransmission (as defined in section 10)
to which Part VC applies.
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Section 99
136 Copyright Act 1968
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99 Ownership of copyright in television broadcasts and sound
broadcasts
Subject to Parts VII and X, the maker of a television broadcast or
sound broadcast is the owner of any copyright subsisting in the
broadcast.
100 Ownership of copyright in published editions of works
Subject to Parts VII and X, the publisher of an edition of a work or
works is the owner of any copyright subsisting in the edition by
virtue of this Part.
Subdivision B—Specific provisions relating to the ownership of
copyright in pre-commencement sound recordings of
live performances
100AA Application
This Subdivision applies to a sound recording of a live
performance if:
(a) copyright subsists in the recording on the day on which this
section commences; and
(b) at least one person would become a maker of the recording
under paragraph 100AD(1)(b) or subsection 100AD(2).
100AB Definitions
In this Subdivision:
former owner of the copyright in a sound recording of a live
performance means a person mentioned in paragraph 100AD(1)(a).
new owner of the copyright in a sound recording of a live
performance means the following people:
(a) a person who becomes a maker of a sound recording under
paragraph 100AD(1)(b);
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(b) if subsection 100AD(2) applies—an employer who becomes
a maker of a sound recording under that subsection.
Note: Other expressions used in this Subdivision are defined in section 84.
100AC Application of sections 100AD and 100AE
Sections 100AD and 100AE have effect subject to Parts VII and X.
100AD Makers of pre-commencement sound recordings of live
performances
(1) For the purpose of section 100AE, the makers of a sound recording
of a live performance are:
(a) the person or persons who, immediately before the
commencement of this section, owned the copyright
subsisting in the recording; and
(b) the performer or performers who performed in the
performance (other than a performer who is already covered
by paragraph (a)).
Employer may be a maker of the sound recording
(2) If:
(a) a sound recording of a live performance was made; and
(b) a performer performed in that performance under the terms of
his or her employment by another person (the employer)
under a contract of service or apprenticeship;
then, for the purposes of paragraph (1)(b), the employer is taken to
be a maker instead of that performer.
(3) Subsection (2) may be excluded or modified by an agreement
(whether made before or after the live performance) between the
performer and the employer.
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Section 100AE
138 Copyright Act 1968
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100AE Ownership of pre-commencement copyright in sound
recordings of live performances
Ownership of the copyright
(1) On and after the day on which this section commences, all makers
of a sound recording of a live performance are owners of any
copyright subsisting in the recording by virtue of this Part.
Division of the ownership of the copyright
(2) The former owners of the copyright and the new owners of the
copyright each own half of the copyright as tenants in common in 2
equal shares.
(3) The former owners own their half of the copyright in the same
proportions as the whole copyright was owned by them
immediately before the commencement of this section.
(4) The new owners own their half of the copyright as tenants in
common in equal shares.
(5) Subsections (3) and (4) do not limit section 196.
(6) Subsection (3) does not otherwise affect the terms on which the
former owners own their half of the copyright.
Copyright to devolve if a new owner is not alive
(7) If a new owner is not alive on the day on which this section
commences, then, for the purposes of subsections (2) and (4), that
owner is replaced by the person to whom the copyright would have
devolved if the new owner had owned the copyright immediately
before his or her death. If the copyright would have devolved to
more than one person, those persons are to be treated as a single
new owner for the purposes of subsections (2) and (4).
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100AF Former owners may continue to do any act in relation to the
copyright
(1) On and after the day on which this section commences, a former
owner of the copyright in a sound recording of a live performance
may:
(a) do an act comprised in the copyright; or
(b) do any other act in relation to the copyright;
as if each new owner of the copyright had granted a licence or
permission (however described) to the former owner to do the act.
Note: However, the former owner may still need to obtain the consent of
other former owners of the copyright before doing the act.
(2) Subsection (1) applies to:
(a) the former owner’s licensees and successors in title; and
(b) any persons who are authorised by the former owner; and
(c) any persons who are authorised by the former owner’s
licensees or successors in title;
in the same way as it applies to the former owner.
(3) Subsections (1) and (2) may be excluded or modified by an
agreement (whether made before or after this section commences)
between the former owner and a new owner.
100AG Actions by new owners of copyright
If a new owner of the copyright in a sound recording of a live
performance brings an action under this Act in respect of the
copyright, the new owner is not entitled to the remedies listed in
the table.
Actions under this Act
Item In this case... the new owner is not entitled to:
1 the action is for an infringement of
the copyright under section 115
(a) damages (other than additional
damages); or
(b) an account of profits
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Section 100AH
140 Copyright Act 1968
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Actions under this Act
Item In this case... the new owner is not entitled to:
2 the action is for conversion or
detention under section 116
(a) damages (other than additional
damages); or
(b) an account of profits; or
(c) any other pecuniary remedy
(other than costs); or
(d) delivery up of an infringing copy
2A the action is brought under
section 116AN, 116AO or 116AP
(a) damages (other than additional
damages); or
(b) an account of profits; or
(c) destruction or delivery up of a
circumvention device
3 the action is brought under
section 116B or 116C
(a) damages (other than additional
damages); or
(b) an account of profits
100AH References to the owner of the copyright in a sound
recording
A new owner of the copyright in a sound recording of a live
performance is taken not to be the owner of the copyright for the
purposes of the following provisions:
(a) sections 107, 108 and 109 (in Part IV);
(b) sections 119 and 133 (in Part V);
(c) the definitions of licence and licensor in subsection 136(1),
and sections 150, 151, 152, 153E, 153F, 153G, 159 and 163A
(in Part VI);
(d) section 183 (in Part VII).
Note: A new owner of the copyright in a sound recording of a live
performance is not a relevant right holder under section 135A, nor a
relevant copyright owner under section 135ZB, 135ZZI or 135ZZZF.
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Division 6—Infringement of copyright in subject-matter
other than works
100A Interpretation
In this Division, audio-visual item means a sound recording, a
cinematograph film, a sound broadcast or a television broadcast.
101 Infringement by doing acts comprised in copyright
(1) Subject to this Act, a copyright subsisting by virtue of this Part is
infringed by a person who, not being the owner of the copyright,
and without the licence of the owner of the copyright, does in
Australia, or authorizes the doing in Australia of, any act
comprised in the copyright.
(1A) In determining, for the purposes of subsection (1), whether or not a
person has authorised the doing in Australia of any act comprised
in a copyright subsisting by virtue of this Part without the licence
of the owner of the copyright, the matters that must be taken into
account include the following:
(a) the extent (if any) of the person’s power to prevent the doing
of the act concerned;
(b) the nature of any relationship existing between the person
and the person who did the act concerned;
(c) whether the person took any other reasonable steps to prevent
or avoid the doing of the act, including whether the person
complied with any relevant industry codes of practice.
(2) The next two succeeding sections do not affect the generality of the
last preceding subsection.
(3) Subsection (1) applies in relation to an act done in relation to a
sound recording whether the act is done by directly or indirectly
making use of a record embodying the recording.
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Section 102
142 Copyright Act 1968
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(4) Subsection (1) applies in relation to an act done in relation to a
television broadcast or a sound broadcast whether the act is done
by the reception of the broadcast or by making use of any article or
thing in which the visual images and sounds comprised in the
broadcast have been embodied.
102 Infringement by importation for sale or hire
(1) Subject to sections 112A, 112C, 112D and 112DA, a copyright
subsisting by virtue of this Part is infringed by a person who,
without the licence of the owner of the copyright, imports an article
into Australia for the purpose of:
(a) selling, letting for hire, or by way of trade offering or
exposing for sale or hire, the article;
(b) distributing the article:
(i) for the purpose of trade; or
(ii) for any other purpose to an extent that will affect
prejudicially the owner of the copyright; or
(c) by way of trade exhibiting the article in public;
if the importer knew, or ought reasonably to have known, that the
making of the article would, if the article had been made in
Australia by the importer, have constituted an infringement of the
copyright.
(2) In relation to an accessory to an article that is or includes a copy of
subject-matter in which copyright subsists by virtue of this Part,
being a copy that was made without the licence of the owner of the
copyright in the country in which the copy was made,
subsection (1) has effect as if the words “the importer knew, or
ought reasonably to have known, that” were omitted.
103 Infringement by sale and other dealings
(1) Subject to sections 112A, 112C, 112D and 112DA, a copyright
subsisting by virtue of this Part is infringed by a person who, in
Australia, and without the licence of the owner of the copyright:
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(a) sells, lets for hire, or by way of trade offers or exposes for
sale or hire, an article; or
(b) by way of trade exhibits an article in public;
if the person knew, or ought reasonably to have known, that the
making of the article constituted an infringement of the copyright
or, in the case of an imported article, would, if the article had been
made in Australia by the importer, have constituted an
infringement of the copyright.
(2) For the purposes of the last preceding subsection, the distribution
of any articles:
(a) for the purpose of trade; or
(b) for any other purpose to an extent that affects prejudicially
the owner of the copyright concerned;
shall be taken to be the sale of those articles.
(3) In this section:
article includes a reproduction or copy of a work or other
subject-matter, being a reproduction or copy in electronic form.
103A Fair dealing for purpose of criticism or review
A fair dealing with an audio-visual item does not constitute an
infringement of the copyright in the item or in any work or other
audio-visual item included in the item if it is for the purpose of
criticism or review, whether of the first-mentioned audio-visual
item, another audio-visual item or a work, and a sufficient
acknowledgement of the first-mentioned audio-visual item is made.
103AA Fair dealing for purpose of parody or satire
A fair dealing with an audio-visual item does not constitute an
infringement of the copyright in the item or in any work or other
audio-visual item included in the item if it is for the purpose of
parody or satire.
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Section 103B
144 Copyright Act 1968
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103B Fair dealing for purpose of reporting news
(1) A fair dealing with an audio-visual item does not constitute an
infringement of the copyright in the item or in any work or other
audio-visual item included in the item if:
(a) it is for the purpose of, or is associated with, the reporting of
news in a newspaper, magazine or similar periodical and a
sufficient acknowledgement of the first-mentioned
audio-visual item is made; or
(b) it is for the purpose of, or is associated with, the reporting of
news by means of a communication or in a cinematograph
film.
103C Fair dealing for purpose of research or study
(1) A fair dealing with an audio-visual item does not constitute an
infringement of the copyright in the item or in any work or other
audio-visual item included in the item if it is for the purpose of
research or study.
(2) For the purposes of this Act, the matters to which regard shall be
had in determining whether a dealing with an audio-visual item
constitutes a fair dealing for the purpose of research or study
include:
(a) the purpose and character of the dealing;
(b) the nature of the audio-visual item;
(c) the possibility of obtaining the audio-visual item within a
reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the potential market for, or
value of, the audio-visual item; and
(e) in a case where part only of the audio-visual item is
copied—the amount and substantiality of the part copied
taken in relation to the whole item.
104 Acts done for purposes of judicial proceeding
A copyright subsisting by virtue of this Part is not infringed by
anything done:
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(a) for the purpose of a judicial proceeding or a report of a
judicial proceeding; or
(b) for the purpose of seeking professional advice from:
(i) a legal practitioner; or
(ii) a person registered as a patent attorney under the
Patents Act 1990; or
(iii) a person registered as a trade marks attorney under the
Trade Marks Act 1995; or
(c) for the purpose of, or in the course of, the giving of
professional advice by:
(i) a legal practitioner; or
(ii) a person registered as a patent attorney under the
Patents Act 1990; or
(iii) a person registered as a trade marks attorney under the
Trade Marks Act 1995.
104A Acts done by Parliamentary libraries for members of
Parliament
A copyright subsisting by virtue of this Part is not infringed by
anything done, for the sole purpose of assisting a person who is a
member of a Parliament in the performance of the person’s duties
as such a member, by an authorized officer of a library, being a
library the principal purpose of which is to provide library services
for members of that Parliament.
104B Infringing copies made on machines installed in libraries and
archives
If:
(a) a person makes an infringing copy of, or of part of, an
audio-visual item or a published edition of a work on a
machine (including a computer), being a machine installed
by or with the approval of the body administering a library or
archives on the premises of the library or archives, or outside
those premises for the convenience of persons using the
library or archives; and
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Section 104C
146 Copyright Act 1968
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(b) there is affixed to, or in close proximity to, the machine, in a
place readily visible to persons using the machine, a notice of
the prescribed dimensions and in accordance with the
prescribed form;
neither the body administering the library or archives, nor the
officer in charge of the library or archives, is taken to have
authorised the making of the infringing copy merely because the
copy was made on that machine.
104C Copyright subsisting in sound recordings and cinematograph
films shared for healthcare or related purposes
(1) The copyright in a cinematograph film or a sound recording is not
infringed by an act comprised in the copyright in the film or
recording if:
(a) the act is done, or authorised to be done:
(i) for a purpose for which the collection, use or disclosure
of health information is required or authorised under the
My Health Records Act 2012; or
(ii) in circumstances in which a permitted general situation
exists under item 1 of the table in subsection 16A(1) of
the Privacy Act 1988 (serious threat to life, health or
safety), or would exist if the entity doing the thing were
an APP entity for the purposes of that Act; or
(iii) in circumstances in which a permitted health situation
exists under section 16B of the Privacy Act 1988, or
would exist if the entity doing the thing were an
organisation for the purposes of that Act; or
(iv) for any other purpose relating to healthcare, or the
communication or management of health information,
prescribed by the regulations; and
(b) either:
(i) the film or recording is substantially comprised of
health information; or
(ii) the film or recording allows for the storage, retrieval or
use of health information and it is reasonably necessary
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to do the act, or authorise it to be done, in circumstances
that would otherwise infringe copyright in the work.
(2) In this section:
healthcare has the same meaning as in the My Health Records Act
2012.
health information has the same meaning as in the My Health
Records Act 2012.
105 Copyright in certain recordings not infringed by causing
recordings to be heard in public or broadcast
Copyright subsisting in a sound recording by virtue only of
subsection 89(3) is not infringed by the causing of the recording to
be heard in public or by the broadcasting of the recording.
106 Causing sound recording to be heard at guest house or club
(1) Where a sound recording is caused to be heard in public:
(a) at premises where persons reside or sleep, as part of the
amenities provided exclusively for residents or inmates of the
premises or for those residents or inmates and their guests; or
(b) as part of the activities of, or for the benefit of, a registered
charity;
the act of causing the recording to be so heard does not constitute
an infringement of the copyright in the recording.
(2) The last preceding subsection does not apply:
(a) in relation to premises of a kind referred to in paragraph (a)
of that subsection, if a specific charge is made for admission
to the part of the premises where the recording is to be heard;
or
(b) in relation to a registered charity of a kind referred to in
paragraph (b) of that subsection, if a charge is made for
admission to the place where the recording is to be heard and
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Section 107
148 Copyright Act 1968
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any of the proceeds of the charge are applied otherwise than
for the purposes of the registered charity.
(3) A reference in the last preceding subsection to a specific charge, or
a charge, made for admission includes a reference to a specific
charge, or a charge, made partly for admission and partly for other
purposes.
107 Making of a copy of the sound recording for purpose of
broadcasting
(1) Where the broadcasting by a person of a sound recording would
not (whether by reason of an assignment or licence or of the
operation of a provision of this Act) constitute an infringement of
the copyright in the recording but the making by the person of a
copy of the sound recording would, apart from this subsection,
constitute such an infringement, the copyright in the recording is
not infringed by the making by the person of a copy of the sound
recording in association with other matter solely for the purpose of
the broadcasting of the recording in association with the other
matter.
(2) The last preceding subsection does not apply in relation to a copy
of a sound recording if the copy is used for a purpose other than:
(a) the broadcasting of the recording in circumstances that do not
(whether by reason of an assignment or licence or of the
operation of a provision of this Act) constitute an
infringement of the copyright in the recording; or
(b) the making of further copies of the sound recording for the
purpose of the broadcasting of the recording in such
circumstances.
(3) Subsection (1) does not apply in relation to a copy of a sound
recording where the copy is used for the purpose of the
broadcasting of the recording by a person who is not the maker of
the copy unless the maker has paid to the owner of the copyright in
the recording such amount as they agree or, in default of
agreement, has given an undertaking in writing to the owner to pay
to the owner such amount as is determined by the Copyright
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Tribunal, on the application of either of them, to be equitable
remuneration to the owner for the making of the copy.
(4) A person who has given an undertaking referred to in the last
preceding subsection is liable, when the Copyright Tribunal has
determined the amount to which the undertaking relates, to pay that
amount to the owner of the copyright in the recording and the
owner may recover that amount in a court of competent jurisdiction
from the person as a debt due to the owner.
(5) Subsection (1) does not apply in relation to a copy of a sound
recording unless, before the expiration of the period of 12 months
commencing on the day on which any of the copies made in
accordance with that subsection is first used for broadcasting the
recording in accordance with that subsection, or before the
expiration of such further period, if any, as is agreed between the
maker of the copy and the owner of the copyright in the recording,
all the copies made in accordance with that subsection are
destroyed or are transferred, with the consent of the
Director-General of the National Archives of Australia, to the care
(within the meaning of the Archives Act 1983) of the National
Archives of Australia.
(6) The Director-General of the National Archives of Australia must
not consent to the transfer to the care of the National Archives of
Australia in accordance with subsection (5) of a copy of a sound
recording unless he or she has certified that the recording is of an
exceptional documentary character.
(7) In this section:
broadcasting does not include simulcasting.
108 Copyright in published recording not infringed by public
performance if equitable remuneration paid
(1) The copyright in a sound recording that has been published is not
infringed by a person who causes the recording to be heard in
public if:
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(a) the person has paid to the owner of the copyright in the
recording such amount as they agree or, in default of
agreement, has given an undertaking in writing to the owner
to pay to the owner such amount as is determined by the
Copyright Tribunal, on the application of either of them, to
be equitable remuneration to the owner for the causing of the
recording to be heard in public; and
(b) in the case of a recording that was first published outside
Australia—the recording has been published in Australia or
the prescribed period after the date of the first publication of
the recording has expired.
(2) A person who has given an undertaking referred to in the last
preceding subsection is liable, when the Copyright Tribunal has
determined the amount to which the undertaking relates, to pay that
amount to the owner of the copyright in the recording and the
owner may recover that amount in a court of competent jurisdiction
from the person as a debt due to the owner.
(3) Regulations prescribing a period for the purposes of
paragraph (1)(b) may prescribe different periods in relation to
different classes of sound recordings.
109 Copyright in published sound recording not infringed by
broadcast in certain circumstances
(1) Subject to this section, the copyright in a published sound
recording is not infringed by the making of a broadcast (other than
a broadcast transmitted for a fee payable to the person who made
the broadcast) of that recording if:
(a) where there is no order of the Tribunal in force under
section 152 applying to the maker of that broadcast in
relation to the time when that broadcast was made—the
maker of that broadcast has given an undertaking in writing
to the person who is the owner of the copyright in that
recording to pay to the owner such amounts (if any) as may
be specified in, or determined in accordance with, an order of
the Tribunal made under that section in respect of the
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broadcasting by the maker, during a period within which that
broadcast was made, of published sound recordings in which
the copyrights are owned by that person and which include
that recording; or
(b) where there is an order of the Tribunal in force under that
section applying to the maker of that broadcast in relation to
the time when that broadcast was made:
(i) the copyright in that recording is owned by a person
who is specified in the order as one of the persons
among whom the amount specified in, or determined in
accordance with, the order is to be divided and the
maker of the broadcast makes payments to the person in
accordance with the order; or
(ii) the copyright in that recording is owned by a person
who is not so specified in the order.
(2) The last preceding subsection does not apply in relation to a
broadcast of a sound recording if the broadcast was made in
accordance with an agreement between the maker of the broadcast
and the owner of the copyright in the recording.
(3) Subsection (1) does not apply in relation to a broadcast of a sound
recording that has not been published in Australia if the broadcast
was made before the expiration of the prescribed period after the
date of the first publication of the recording.
(4) Regulations prescribing a period for the purposes of the last
preceding subsection may prescribe different periods in relation to
different classes of sound recordings.
(5) Subsection (1) does not apply in relation to a broadcast of a sound
recording that has not been published in Australia if:
(a) the recording consists of, or includes, a musical work in
which copyright subsists;
(b) the musical work was made for the purpose of being
performed, or has been performed, in association with a
dramatic work or has been included in a cinematograph film;
and
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152 Copyright Act 1968
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(c) records of the musical work have not been supplied (whether
by sale or otherwise) to the public in Australia.
(6) For the purposes of paragraph (5)(c), a supplying of records of a
musical work shall be disregarded if the supplying was done
otherwise than by, or with the licence of, the owner of the
copyright in the work.
109A Copying sound recordings for private and domestic use
(1) This section applies if:
(a) the owner of a copy (the earlier copy) of a sound recording
makes another copy (the later copy) of the sound recording
using the earlier copy; and
(b) the sole purpose of making the later copy is the owner’s
private and domestic use of the later copy with a device that:
(i) is a device that can be used to cause sound recordings to
be heard; and
(ii) he or she owns; and
(c) the earlier copy was not made by downloading over the
internet a digital recording of a radio broadcast or similar
program; and
(d) the earlier copy is not an infringing copy of the sound
recording, a broadcast or a literary, dramatic or musical work
included in the sound recording.
(2) The making of the later copy does not infringe copyright in the
sound recording, or in a literary, dramatic or musical work or other
subject-matter included in the sound recording.
(3) Subsection (2) is taken never to have applied if the earlier copy or
the later copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
(d) distributed for the purpose of trade or otherwise; or
(e) used for causing the sound recording to be heard in public; or
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(f) used for broadcasting the sound recording.
Note: If the earlier or later copy is dealt with as described in subsection (3),
then copyright may be infringed not only by the making of the later
copy but also by a dealing with the later copy.
(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
earlier copy or the later copy by the lender to a member of the
lender’s family or household for the member’s private and
domestic use.
110 Provisions relating to cinematograph films
(1) Where the visual images forming part of a cinematograph film
consist wholly or principally of images that, at the time when they
were first embodied in an article or thing, were means of
communicating news, the copyright in the film is not infringed by
the causing of the film to be seen or heard, or to be both seen and
heard, in public after the expiration of 50 years after the expiration
of the calendar year in which the principal events depicted in the
film occurred.
(2) Where, by virtue of this Part, copyright has subsisted in a
cinematograph film, a person who, after that copyright has expired,
causes the film to be seen or heard, or to be seen and heard, in
public does not, by so doing, infringe any copyright subsisting by
virtue of Part III in a literary, dramatic, musical or artistic work.
(3) Where the sounds that are embodied in a sound-track associated
with the visual images forming part of a cinematograph film are
also embodied in a record, other than such a sound-track or a
record derived directly or indirectly from such a sound-track, the
copyright in the cinematograph film is not infringed by any use
made of that record.
110AA Copying cinematograph film in different format for private
use
(1) This section applies if:
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(a) the owner of videotape embodying a cinematograph film in
analog form makes a copy (the main copy) of the film in
electronic form for his or her private and domestic use
instead of the videotape; and
(b) the videotape itself is not an infringing copy of the film or of
a broadcast, sound recording, work or published edition of a
work; and
(c) at the time the owner makes the main copy, he or she has not
made, and is not making, another copy that embodies the film
in an electronic form substantially identical to the electronic
form in which the film is embodied in the main copy.
For this purpose, disregard a temporary copy of the film
incidentally made as a necessary part of the technical process of
making the main copy.
(2) The making of the main copy is not an infringement of copyright in
the cinematograph film or in a work or other subject-matter
included in the film.
Dealing with main copy may make it an infringing copy
(3) Subsection (2) is taken never to have applied if the main copy is:
(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
(d) distributed for the purpose of trade or otherwise.
Note: If the main copy is dealt with as described in subsection (3), then
copyright may be infringed not only by the making of the main copy
but also by the dealing with the main copy.
(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
main copy by the lender to a member of the lender’s family or
household for the member’s private and domestic use.
Disposal of videotape may make the main copy an infringing copy
(5) Subsection (2) is taken never to have applied if the owner of the
videotape disposes of it to another person.
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Status of temporary copy
(6) If subsection (2) applies to the making of the main copy only as a
result of disregarding the incidental making of a temporary copy of
the film as a necessary part of the technical process of making the
main copy, then:
(a) if the temporary copy is destroyed at the first practicable time
during or after the making of the main copy—the making of
the temporary copy does not infringe copyright in the film or
in any work or other subject-matter included in the film; or
(b) if the temporary copy is not destroyed at that time—the
making of the temporary copy is taken always to have
infringed copyright (if any) subsisting in the film and in any
work or other subject-matter included in the film.
110A Copying and communicating unpublished sound recordings
and cinematograph films in libraries or archives
Where, at a time more than 50 years after the time at which, or the
expiration of the period during which, a sound recording or
cinematograph film was made, copyright subsists in the sound
recording or cinematograph film but:
(a) the sound recording or cinematograph film has not been
published; and
(b) a record embodying the sound recording, or a copy of the
cinematograph film, is kept in the collection of a library or
archives where it is, subject to any regulations governing that
collection, accessible to the public;
the copyright in the sound recording or cinematograph film and in
any work or other subject-matter included in the sound recording
or cinematograph film is not infringed:
(c) by the making of a copy or the communication of the sound
recording or cinematograph film by a person for the purpose
of research or study or with a view to publication; or
(d) by the making of a copy or the communication of the sound
recording or cinematograph film by, or on behalf of, the
officer in charge of the library or archives if the copy is
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supplied or communicated to a person who satisfies the
officer that he or she requires the copy for the purpose of
research or study, or with a view to publication and that he or
she will not use it for any other purpose.
110B Copying and communicating sound recordings and
cinematograph films for preservation and other purposes
(1) Subject to subsection (3), where a copy of a sound recording, being
a sound recording that forms, or formed, part of the collection of a
library or archives, is made by or on behalf of the officer in charge
of the library or archives:
(a) if the sound recording is held in the collection in the form of
a first record—for the purpose of preserving the record
against loss or deterioration or for the purpose of research
that is being, or is to be, carried out at the library or archives
in which the record is held or at another library or archives;
(b) if the sound recording is held in the collection in a published
form but has been damaged or has deteriorated—for the
purpose of replacing the sound recording; or
(c) if the sound recording has been held in the collection in a
published form but has been lost or stolen—for the purpose
of replacing the sound recording;
the making of the copy does not infringe copyright in the sound
recording or in any work or other subject-matter included in the
sound recording.
(2) Subject to subsection (3), where a copy of a cinematograph film,
being a cinematograph film that forms, or formed, part of the
collection of a library or archives, is made by or on behalf of the
officer in charge of the library or archives:
(a) if the cinematograph film is held in the collection in the form
of a first copy—for the purpose of preserving the copy
against loss or deterioration or for the purpose of research
that is being, or is to be, carried out at the library or archives
in which the copy is held or at another library or archives;
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(b) if the cinematograph film is held in the collection in a
published form but has been damaged or has
deteriorated—for the purpose of replacing the cinematograph
film; or
(c) if the cinematograph film has been held in the collection in a
published form but has been lost or stolen—for the purpose
of replacing the cinematograph film;
the making of the copy does not infringe copyright in the
cinematograph film or in any work or other subject-matter included
in the cinematograph film.
(2A) The copyright in a sound recording or cinematograph film that
forms, or formed, part of the collection of a library or archives, or
in any work or other subject-matter included in such a sound
recording or film, is not infringed by the communication, by or on
behalf of the officer in charge of the library or archives, of a copy
of the sound recording or film made under subsection (1) or (2) to
officers of the library or archives by making it available online to
be accessed through the use of a computer terminal installed within
the premises of the library or archives with the approval of the
body administering the library or archives.
(2B) If:
(a) a copy of a sound recording or a cinematograph film is made
by or on behalf of the officer in charge of a library or
archives under this section; and
(b) the copy is made for the purpose of research that is being, or
is to be, carried out at another library or archives;
the copyright in the sound recording or film, or in any work or
other subject-matter included in it, is not infringed by the
communication, by or on behalf of the officer in charge, of the
copy to the other library or archives by making it available online
to be accessed through the use of a computer terminal installed
within the premises of the other library or archives with the
approval of the body administering the other library or archives.
(3) Subsection (1) does not apply in relation to a sound recording, and
subsection (2) does not apply in relation to a cinematograph film,
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held in a published form in the collection of a library or archives
unless an authorised officer of the library or archives has, after
reasonable investigation, made a declaration stating that he or she
is satisfied that a copy (not being a second-hand copy) of the sound
recording or cinematograph film, as the case may be, cannot be
obtained within a reasonable time at an ordinary commercial price.
Note: Under section 203F, it is an offence to make a false or misleading
declaration for the purposes of this section. Sections 203A, 203D and
203G create offences relating to the keeping of declarations made for
the purposes of this section.
(4) Where a copy of an unpublished sound recording or an
unpublished cinematograph film is made under subsection (1) or
(2) by or on behalf of the officer in charge of a library or archives
for the purpose of research that is being, or is to be, carried out at
another library or archives, the supply or communication of the
copy by or on behalf of the officer to the other library or archives
does not, for any purpose of this Act, constitute the publication of
the sound recording or cinematograph film or of any work or other
subject-matter included in the sound recording or cinematograph
film.
110BA Making preservation copies of significant recordings and
films in key cultural institutions’ collections
(1) This section applies in relation to a sound recording or
cinematograph film held in the collection of a library or archives if:
(a) the body administering the library or archives:
(i) has, under a law of the Commonwealth or a State or
Territory, the function of developing and maintaining
the collection; or
(ii) is prescribed by the regulations for the purposes of this
subparagraph; and
(b) an authorized officer of the library or archives is satisfied that
the recording or film is of historical or cultural significance
to Australia.
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First record, or unpublished record, embodying sound recording
(2) If the sound recording is held in the form of the first record, or an
unpublished record, embodying the recording, copyright in the
recording is not infringed by an authorized officer of the library or
archives making up to 3 copies of the recording from the record for
the purpose of preserving the recording against loss or
deterioration.
Published sound recording
(3) If the sound recording is held in published form, the copyright in
the recording is not infringed by an authorized officer of the library
or archives making up to 3 copies of the recording from the
published record for the purpose of preserving the recording
against loss or deterioration if the officer is satisfied that a copy of
the recording (not being a second-hand copy) cannot be obtained
within a reasonable time at an ordinary commercial price.
First copy, or unpublished copy, of film
(4) If the cinematograph film is held in the form of the first copy, or an
unpublished copy, of the film, copyright in the film is not infringed
by an authorized officer of the library or archives making up to 3
copies of the film from the first copy or unpublished copy for the
purpose of preserving the film against loss or deterioration.
Published film
(5) If the cinematograph film is held in a published form, copyright in
the film is not infringed by an authorized officer of the library or
archives making up to 3 copies of the film from the published copy
held in the collection, for the purpose of preserving the film against
loss or deterioration, if the officer is satisfied that a copy of the
film (not being a second-hand copy) cannot be obtained within a
reasonable time at an ordinary commercial price.
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Commercial availability of copy of recording or film
(6) For the purposes of subsections (3) and (5), in determining whether
a copy (not being a second-hand copy) cannot be obtained within a
reasonable time at an ordinary commercial price, the authorized
officer must take into account whether an electronic copy can be
obtained within a reasonable time at an ordinary commercial price.
Work or other subject-matter included in recording or film
(7) If under this section, copyright in the sound recording or
cinematograph film is not infringed by the making of a copy of the
recording or film, the making of that copy does not infringe
copyright in any work or other subject-matter included in the
recording or film.
Relationship with the rest of this Division
(8) This section does not limit any of the other provisions of this
Division that provide that an act (however described) does not
infringe copyright. Those other provisions do not limit this section.
110C Making of a copy of a sound recording or cinematograph film
for the purpose of simulcasting
(1) If the broadcasting of a sound recording or a cinematograph film
would not for any reason constitute an infringement of the
copyright in the recording or film, but the making of a copy of the
recording or film would, apart from this section, constitute an
infringement of the copyright, the copyright is not infringed by the
making of a copy of the recording or film if:
(a) the recording or film from which the copy is made is in
analog form; and
(b) the copy is made solely for the purpose of simulcasting the
recording or film in digital form.
(2) Subsection (1) does not apply in relation to a copy of a recording
or film if the copy is used for a purpose other than:
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(a) the simulcasting of the recording or film in circumstances
that do not for any reason constitute an infringement of the
copyright in the recording or film; or
(b) the making of further copies of the recording or film for the
purpose of simulcasting the recording or film in such
circumstances.
(3) Subsection (1) does not apply in relation to a copy of a recording
or film unless all copies of the recording or film made under that
subsection are destroyed on or before the relevant date specified in
the regulations.
(4) For the purposes of subsection (3), the regulations may specify
different dates in relation to different classes of sound recordings
or cinematograph films.
111 Recording broadcasts for replaying at more convenient time
(1) This section applies if a person makes a cinematograph film or
sound recording of a broadcast solely for private and domestic use
by watching or listening to the material broadcast at a time more
convenient than the time when the broadcast is made.
Note: Subsection 10(1) defines broadcast as a communication to the public
delivered by a broadcasting service within the meaning of the
Broadcasting Services Act 1992.
Making the film or recording does not infringe copyright
(2) The making of the film or recording does not infringe copyright in
the broadcast or in any work or other subject-matter included in the
broadcast.
Note: Even though the making of the film or recording does not infringe that
copyright, that copyright may be infringed if a copy of the film or
recording is made.
Dealing with embodiment of film or recording
(3) Subsection (2) is taken never to have applied if an article or thing
embodying the film or recording is:
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(a) sold; or
(b) let for hire; or
(c) by way of trade offered or exposed for sale or hire; or
(d) distributed for the purpose of trade or otherwise; or
(e) used for causing the film or recording to be seen or heard in
public; or
(f) used for broadcasting the film or recording.
Note: If the article or thing embodying the film or recording is dealt with as
described in subsection (3), then copyright may be infringed not only
by the making of the article or thing but also by the dealing with the
article or thing.
(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
article or thing by the lender to a member of the lender’s family or
household for the member’s private and domestic use.
111A Temporary copy made in the course of communication
(1) A copyright subsisting under this Part is not infringed by making a
temporary copy of an audio-visual item as part of the technical
process of making or receiving a communication.
(2) Subsection (1) does not apply in relation to the making of a
temporary copy of an audio-visual item as part of the technical
process of making a communication if the making of the
communication is an infringement of copyright.
111B Temporary copy of subject-matter as part of a technical
process of use
(1) Subject to subsection (2), the copyright in a subject-matter is not
infringed by the making of a temporary copy of the subject-matter
if the temporary copy is incidentally made as a necessary part of a
technical process of using a copy of the subject-matter.
(2) Subsection (1) does not apply to:
(a) the making of a temporary copy of a subject-matter if the
temporary copy is made from:
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(i) an infringing copy of the subject-matter; or
(ii) a copy of the subject-matter where the copy is made in
another country and would be an infringing copy of the
subject-matter if the person who made the copy had
done so in Australia; or
(b) the making of a temporary copy of a subject-matter as a
necessary part of a technical process of using a copy of the
subject-matter if that use constitutes an infringement of the
copyright in the subject-matter.
(3) Subsection (1) does not apply to any subsequent use of a temporary
copy of a subject-matter other than as a part of the technical
process in which the temporary copy was made.
112 Reproductions of editions of work
The copyright in a published edition of a work or works is not
infringed by the making of a reproduction of the whole or a part of
that edition if that reproduction is made in the course of:
(a) where the edition contains one work only:
(i) a dealing with that work, being a dealing that does not,
by virtue of section 40, 41, 42, 43 or 44, infringe
copyright in that work; or
(ii) the making of a copy (including a copy for a person
with a print disability or a copy for a person with an
intellectual disability) of the whole or a part of that
work, being a copy the making of which does not, by
virtue of section 49, 50, 51A, 51B, 135ZG, 135ZJ,
135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ,
135ZR, 135ZS, 135ZT or 182A, infringe copyright in
that work; or
(b) where the edition contains more than one work:
(i) a dealing with one of those works or dealings with some
or all of those works, being a dealing that does not, or
dealings that do not, by virtue of section 40, 41, 42, 43
or 44, infringe copyright in that work or those works; or
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(ii) the making of a copy (including a copy for a person
with a print disability or a copy for a person with an
intellectual disability) of the whole or a part of one of
those works or the making of copies (including copies
for persons with a print disability or copies for persons
with an intellectual disability) of the whole or parts of
some or all of those works, being a copy the making of
which does not, or copies the making of which do not,
by virtue of section 49, 50, 51A, 51B, 135ZG, 135ZJ,
135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ,
135ZR, 135ZS, 135ZT or 182A, infringe copyright in
that work or in those works.
112A Importation and sale etc. of books
(1) The copyright in an overseas edition first published on or after the
commencing day, is not infringed by a person who, without the
licence of the owner of the copyright, imports a non-infringing
book into Australia for a purpose mentioned in
paragraph 102(1)(a), (b) or (c).
(2) Subject to this section, the copyright in:
(a) an overseas edition first published before the commencing
day; or
(b) a published edition of a work, being an edition first published
in Australia, whether before, on or after the commencing day;
is not infringed by a person who, without the licence of the owner
of the copyright, imports a copy (in this subsection called the
imported copy) of a hardback or paperback version of a
non-infringing book into Australia for a purpose mentioned in
paragraph 102(1)(a), (b) or (c) if:
(c) the person had ordered in writing from the copyright owner,
or the owner’s licensee or agent, one or more copies of that
version of the book (not being second-hand copies or more
copies than were needed to satisfy the person’s reasonable
requirements); and
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(d) when the person ordered the imported copy, the original
order mentioned in paragraph (c) had not been withdrawn or
cancelled by, or with the consent of, the person and:
(i) at least 7 days had elapsed since the person placed the
original order and the copyright owner, licensee or
agent had not notified the person in writing that the
original order would be filled within 90 days after it was
placed; or
(ii) at least 90 days had elapsed since the person placed the
original order and the copyright owner, licensee or
agent had not filled the order.
(3) The copyright in a published edition of a work (whether the edition
was first published before, on or after the commencing day) is not
infringed by a person who, without the licence of the owner of the
copyright, imports a single copy of a non-infringing book into
Australia if the importation is for the purpose of filling a written
order, or a verifiable telephone order, by a customer of the person
and:
(a) in the case of a written order, the order contains a statement,
signed by the customer; or
(b) in the case of a telephone order, the customer makes a
verifiable statement;
to the effect that the customer does not intend to use the book for a
purpose mentioned in paragraph 102(1)(a), (b) or (c).
(4) The copyright in a published edition of a work (whether the edition
was first published before, on or after the commencing day) is not
infringed by a person who, without the licence of the owner of the
copyright, imports 2 or more copies of a non-infringing book into
Australia if:
(a) the importation is for the purpose of filling a written order, or
a verifiable telephone order, placed with the person by or on
behalf of a library, other than a library conducted for the
profit (direct or indirect) of a person or organisation; and
(b) in the case of a written order—the order contains a statement,
signed by the person placing the order, to the effect that the
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library does not intend to use any of the books for a purpose
mentioned in paragraph 102(1)(a), (b) or (c); and
(c) in the case of a telephone order—the person placing the order
makes a verifiable statement to the effect referred to in
paragraph (b); and
(d) the number of copies so imported is not more than the
number of copies so ordered.
(5) Without limiting the ways in which a telephone order under
subsection (3) or (4), or a statement under paragraph (3)(b) or
(4)(c) relating to such an order, may be verified, such an order or
statement is, for the purposes of this section, taken to be verifiable
if the person who takes the order, or to whom the statement is
made, makes a written note of the details of the order or statement
when, or immediately after, the order is placed, or the statement is
made, as the case may be.
(6) Where:
(a) a book is imported into Australia for a purpose mentioned in
paragraph 102(1)(a), (b) or (c); and
(b) the importation does not, under this section, constitute an
infringement of copyright in a published edition of a work;
the use of the book for any such purpose does not constitute an
infringement of the copyright in the edition and subsection 103(1)
does not apply to the book.
(7) Subsection (2) does not apply to the importation of a copy of a
hardback version of a non-infringing book into Australia if the
copyright owner, or his or her licensee or agent, is able to supply in
Australia enough copies of a paperback version of the book to fill
any reasonable order.
(8) For the purposes of paragraph (2)(d), a copyright owner, licensee
or agent is not taken to have filled an order by a person for one or
more copies of a version of a book unless and until the copyright
owner, licensee or agent sends the copy, or all of the copies, as the
case requires, to the person.
(9) In this section:
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book does not include:
(a) a book whose main content is one or more musical works,
with or without any related literary, dramatic or artistic work;
or
(b) a manual sold with computer software for use in connection
with that software; or
(c) a periodical publication.
commencing day means the day on which the Copyright
Amendment Act 1991 commences.
overseas edition means a published edition of a work, being an
edition:
(a) that was first published in a country other than Australia; and
(b) that was not published in Australia within 30 days after its
first publication in that other country.
Note: An edition of a work may, for the purposes of this Act, be first
published in Australia if it is published in Australia within 30 days of
an earlier publication elsewhere. For the meaning of first publication,
see section 29 and, in particular, subsection 29(5).
112AA Making preservation copies of significant published editions
in key cultural institutions’ collections
(1) This section applies in relation to a published edition of one or
more works held in the collection of a library or archives if:
(a) the body administering the library or archives:
(i) has, under a law of the Commonwealth or a State or
Territory, the function of developing and maintaining
the collection; or
(ii) is prescribed by the regulations for the purposes of this
subparagraph; and
(b) an authorized officer of the library or archives is satisfied that
the edition is of historical or cultural significance to
Australia.
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Published editions
(2) The copyright in the published edition is not infringed by an
authorized officer of the library or archives making up to 3
facsimile copies of the edition from the copy held in the collection,
for the purpose of preserving the edition against loss or
deterioration, if the officer is satisfied that a copy or facsimile copy
of the edition (not being a second-hand copy) cannot be obtained
within a reasonable time at an ordinary commercial price.
(3) In determining whether a copy (not being a second-hand copy)
cannot be obtained within a reasonable time at an ordinary
commercial price, the authorized officer must take into account
whether an electronic copy of the edition can be obtained within a
reasonable time at an ordinary commercial price.
Works in published editions
(4) If, under this section, copyright in the published edition is not
infringed by the making of a facsimile copy of the edition, the
making of that copy does not infringe copyright in any of the
works in the published edition.
Relationship with the rest of this Division
(5) This section does not limit any of the other provisions of this
Division that provide that an act (however described) does not
infringe copyright. Those other provisions do not limit this section.
112B Reproduction of writing on approved label for containers for
chemical product
The reproduction on a label on a container for a chemical product
of any writing appearing on an approved label is not an
infringement of any copyright subsisting under section 92 in
relation to that writing.
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Section 112C
Copyright Act 1968 169
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112C Copyright subsisting in accessories etc. to imported articles
(1) The copyright in:
(a) a published edition of a work a reproduction of which is on,
or embodied in, a non-infringing accessory to an article; or
(b) a cinematograph film a copy of which is a non-infringing
accessory to an article; or
(c) a sound recording a record of which is a non-infringing
accessory to an article;
is not infringed by importing the accessory with the article.
Note: See the definition of accessory in subsection 10(1) and see also
section 10AD for an expanded meaning of accessory in relation to
certain imported articles.
(2) Section 103 does not apply to:
(a) a reproduction of a published edition of a work, being a
reproduction that is on, or embodied in, a non-infringing
accessory to an article; or
(b) a copy of a cinematograph film, being a copy that is a
non-infringing accessory to an article; or
(c) a record embodying a sound recording, being a record that is
a non-infringing accessory to an article;
if the importation of the accessory is not an infringement of
copyright in the edition, film or recording, as the case may be.
(3) The definition of article in section 103 does not affect this section.
112D Import of non-infringing copy of a sound recording does not
infringe copyright in the sound recording
(1) The copyright in a sound recording is not infringed by a person
who:
(a) imports into Australia a non-infringing copy of the sound
recording; or
(b) does an act described in section 103 involving an article that
is a non-infringing copy of the sound recording and has been
imported into Australia by anyone.
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Division 6 Infringement of copyright in subject-matter other than works
Section 112DA
170 Copyright Act 1968
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Note: In a civil action for infringement of copyright, a copy of a sound
recording is presumed not to be a non-infringing copy of the sound
recording unless the defendant proves it is. See section 130A.
(2) This section applies to a copy of a sound recording only if, when
the copy is imported into Australia, the sound recording has been
published:
(a) in Australia; or
(b) in another country (the publication country) by or with the
consent of:
(i) the owner of the copyright or related right in the sound
recording in the publication country; or
(ii) the owner of the copyright or related right in the sound
recording in the country (the original recording
country) in which the sound recording was made, if the
law of the publication country did not provide for
copyright or a related right in sound recordings when
publication occurred; or
(iii) the maker of the sound recording, if neither the law of
the publication country nor the law of the original
recording country (whether those countries are different
or not) provided for copyright or a related right in sound
recordings when publication occurred.
Note: Subsection 29(6) deals with unauthorised publication.
(3) In subsection (2):
owner of the copyright or related right in the sound recording
means the owner at the time publication of the sound recording
occurred.
(4) The definition of article in section 103 does not affect this section.
112DA Importation and sale etc. of copies of electronic literary or
music items
(1) If, in relation to a published edition of a work:
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(a) the work is, or is part of, an electronic literary or music item;
and
(b) the edition has been published in Australia or a qualifying
country;
then the copyright in the published edition is not infringed by a
person who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the electronic literary or music item;
or
(d) does an act mentioned in section 103 involving an article that
has embodied in it a non-infringing copy of the electronic
literary or music item and that has been imported into
Australia by anyone.
Note: Section 130C deals with the burden of proof a defendant bears in a
civil action for infringement of copyright.
(2) The definition of article in section 103 does not affect this section.
112E Communication by use of certain facilities
A person (including a carrier or carriage service provider) who
provides facilities for making, or facilitating the making of, a
communication is not taken to have authorised any infringement of
copyright in an audio-visual item merely because another person
uses the facilities so provided to do something the right to do
which is included in the copyright.
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Part IV Copyright in subject-matter other than works
Division 7 Miscellaneous
Section 113
172 Copyright Act 1968
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Division 7—Miscellaneous
113 Copyrights to subsist independently
(1) Subject to subsection 110(2), where copyright subsists in any
subject-matter by virtue of this Part, nothing in this Part shall be
taken to affect the operation of Part III in relation to any literary,
dramatic, musical or artistic work from which that subject-matter is
wholly or partly derived, and any copyright subsisting by virtue of
this Part is in addition to, and independent of, any copyright
subsisting by virtue of Part III.
(2) The subsistence of copyright under any provision of this Part does
not affect the operation of any other provision of this Part under
which copyright can subsist.
113A Agents may act on behalf of groups of performers
(1) This section applies in respect of all members of a group of
performers who have an interest in the copyright in a sound
recording of a live performance.
(2) All members of the group are taken to have granted a licence or
permission (however described) to a person:
(a) to do an act comprised in the copyright; or
(b) to do any other act in relation to the copyright;
if an agent of the group, acting within the scope of his or her actual
or apparent authority, has granted a licence or permission to the
person to do the act.
Note: The person may still need to obtain the licence or permission of other
owners of the copyright before doing the act.
113B Consent to the use of a sound recording of a live performance
A person is taken to have been granted a licence or permission
(however described) by a performer to use a sound recording of a
live performance if:
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Section 113C
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(a) the performer has given his or her consent to recording the
performance for a particular purpose; and
(b) the recording is used for that purpose in accordance with the
terms of the consent.
Note: The person may still need to obtain the consent of the other owners of
the copyright in the sound recording of the live performance before
using the sound recording.
113C Use of published sound recordings when owners cannot be
found etc.
(1) An owner (the first owner) of the copyright in a sound recording of
a live performance that is a published sound recording is taken to
have been granted a licence or permission (however described) by
another owner of the copyright to do an act comprised in the
copyright, or to do any other act in relation to the copyright, if:
(a) the first owner has entered into an agreement with another
person to do the act; and
(b) the first owner, after making reasonable inquiries, cannot
discover the identity or location of the other owner or a
person representing the other owner.
Note: The first owner may still need to obtain a licence or permission from
any other owners of the copyright in the sound recording of the live
performance.
(2) If the first owner does the act, then the first owner must hold the
other owner’s share of any amount received in respect of it on trust
for 4 years after the day on which the agreement is entered into
(unless the amount is distributed to, or on behalf of, the other
owner before then).
(3) If during the 4 year period, the other owner is identified and
located, the first owner must distribute the amount held on trust to,
or on behalf of, the other owner. If at the end of the 4 year period,
the other owner remains unidentified or is not located, the first
owner may retain the amount.
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Division 7 Miscellaneous
Section 113C
174 Copyright Act 1968
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(4) After initially making reasonable inquiries, the first owner is not
required to continue making reasonable inquiries during the 4 year
period.
(5) The other owner cannot prevent the first owner doing the act
comprised in the copyright during the term of the agreement if the
other owner is identified or located.
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Preliminary Division 1
Section 114
Copyright Act 1968 175
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Part V—Remedies and offences
Division 1—Preliminary
114 Interpretation
(1) In this Part, action means a proceeding of a civil nature between
parties, and includes a counterclaim.
(2) In the application of this Part in relation to a counterclaim,
references to the plaintiff and to the defendant shall be read as
references to the defendant and to the plaintiff, respectively.
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Part V Remedies and offences
Division 2 Actions by owner of copyright
Section 115
176 Copyright Act 1968
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Division 2—Actions by owner of copyright
115 Actions for infringement
(1) Subject to this Act, the owner of a copyright may bring an action
for an infringement of the copyright.
(2) Subject to this Act, the relief that a court may grant in an action for
an infringement of copyright includes an injunction (subject to
such terms, if any, as the court thinks fit) and either damages or an
account of profits.
(3) Where, in an action for infringement of copyright, it is established
that an infringement was committed but it is also established that,
at the time of the infringement, the defendant was not aware, and
had no reasonable grounds for suspecting, that the act constituting
the infringement was an infringement of the copyright, the plaintiff
is not entitled under this section to any damages against the
defendant in respect of the infringement, but is entitled to an
account of profits in respect of the infringement whether any other
relief is granted under this section or not.
(4) Where, in an action under this section:
(a) an infringement of copyright is established; and
(b) the court is satisfied that it is proper to do so, having regard
to:
(i) the flagrancy of the infringement; and
(ia) the need to deter similar infringements of copyright; and
(ib) the conduct of the defendant after the act constituting
the infringement or, if relevant, after the defendant was
informed that the defendant had allegedly infringed the
plaintiff’s copyright; and
(ii) whether the infringement involved the conversion of a
work or other subject-matter from hardcopy or analog
form into a digital or other electronic machine-readable
form; and
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(iii) any benefit shown to have accrued to the defendant by
reason of the infringement; and
(iv) all other relevant matters;
the court may, in assessing damages for the infringement, award
such additional damages as it considers appropriate in the
circumstances.
Consideration for relief for electronic commercial infringement
(5) Subsection (6) applies to a court hearing an action for infringement
of copyright if the court is satisfied that:
(a) the infringement (the proved infringement) occurred
(whether as a result of the doing of an act comprised in the
copyright, the authorising of the doing of such an act or the
doing of another act); and
(b) the proved infringement involved a communication of a work
or other subject-matter to the public; and
(c) because the work or other subject-matter was communicated
to the public, it is likely that there were other infringements
(the likely infringements) of the copyright by the defendant
that the plaintiff did not prove in the action; and
(d) taken together, the proved infringement and likely
infringements were on a commercial scale.
(6) The court may have regard to the likelihood of the likely
infringements (as well as the proved infringement) in deciding
what relief to grant in the action.
(7) In determining for the purposes of paragraph (5)(d) whether, taken
together, the proved infringement and the likely infringements
were on a commercial scale, the following matters are to be taken
into account:
(a) the volume and value of any articles that:
(i) are infringing copies that constitute the proved
infringement; or
(ii) assuming the likely infringements actually occurred,
would be infringing copies constituting those
infringements;
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Section 115A
178 Copyright Act 1968
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(b) any other relevant matter.
(8) In subsection (7):
article includes a reproduction or copy of a work or other
subject-matter, being a reproduction or copy in electronic form.
115A Injunctions against carriage service providers providing
access to online locations outside Australia
(1) The Federal Court of Australia may, on application by the owner of
a copyright, grant an injunction referred to in subsection (2) if the
Court is satisfied that:
(a) a carriage service provider provides access to an online
location outside Australia; and
(b) the online location infringes, or facilitates an infringement of,
the copyright; and
(c) the primary purpose of the online location is to infringe, or to
facilitate the infringement of, copyright (whether or not in
Australia).
(2) The injunction is to require the carriage service provider to take
reasonable steps to disable access to the online location.
Parties
(3) The parties to an action under subsection (1) are:
(a) the owner of the copyright; and
(b) the carriage service provider; and
(c) the person who operates the online location if, but only if,
that person makes an application to be joined as a party to the
proceedings.
Service
(4) The owner of the copyright must notify:
(a) the carriage service provider; and
(b) the person who operates the online location;
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Section 115A
Copyright Act 1968 179
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of the making of an application under subsection (1), but the Court
may dispense, on such terms as it sees fit, with the notice required
to be sent under paragraph (b) if the Court is satisfied that the
owner of the copyright is unable, despite reasonable efforts, to
determine the identity or address of the person who operates the
online location, or to send notices to that person.
Matters to be taken into account
(5) In determining whether to grant the injunction, the Court may take
the following matters into account:
(a) the flagrancy of the infringement, or the flagrancy of the
facilitation of the infringement, as referred to in
paragraph (1)(c);
(b) whether the online location makes available or contains
directories, indexes or categories of the means to infringe, or
facilitate an infringement of, copyright;
(c) whether the owner or operator of the online location
demonstrates a disregard for copyright generally;
(d) whether access to the online location has been disabled by
orders from any court of another country or territory on the
ground of or related to copyright infringement;
(e) whether disabling access to the online location is a
proportionate response in the circumstances;
(f) the impact on any person, or class of persons, likely to be
affected by the grant of the injunction;
(g) whether it is in the public interest to disable access to the
online location;
(h) whether the owner of the copyright complied with
subsection (4);
(i) any other remedies available under this Act;
(j) any other matter prescribed by the regulations;
(k) any other relevant matter.
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Section 116
180 Copyright Act 1968
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Affidavit evidence
(6) For the purposes of the proceedings, section 134A (affidavit
evidence) applies as if the reference in paragraph 134A(f) to a
particular act included a reference to a class of acts.
Rescinding and varying injunctions
(7) The Court may:
(a) limit the duration of; or
(b) upon application, rescind or vary;
an injunction granted under this section.
(8) An application under subsection (7) may be made by:
(a) any of the persons referred to in subsection (3); or
(b) any other person prescribed by the regulations.
Costs
(9) The carriage service provider is not liable for any costs in relation
to the proceedings unless the provider enters an appearance and
takes part in the proceedings.
116 Rights of owner of copyright in respect of infringing copies
(1) The owner of the copyright in a work or other subject-matter may
bring an action for conversion or detention in relation to:
(a) an infringing copy; or
(b) a device (including a circumvention device) used or intended
to be used for making infringing copies.
(1A) In an action for conversion or detention, a court may grant to the
owner of the copyright all or any of the remedies that are available
in such an action as if:
(a) the owner of the copyright had been the owner of the
infringing copy since the time the copy was made; or
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(b) the owner of the copyright had been the owner of the device
since the time when it was used or intended to be used for
making infringing copies.
(1B) Any relief granted by a court in an action for conversion or
detention is in addition to any relief that the court may grant under
section 115.
(1C) A court is not to grant any relief to the owner of the copyright in an
action for conversion or detention if the relief that the court has
granted or proposes to grant under section 115 is, in the opinion of
the court, a sufficient remedy.
(1D) In deciding whether to grant relief in an action for conversion or
detention and in assessing the amount of damages payable, the
court may have regard to the following:
(a) the expenses incurred by the defendant, being a person who
marketed or otherwise dealt with the infringing copy, in
manufacturing or acquiring the infringing copy;
(b) whether the expenses were incurred before or after the
infringing copy was sold or otherwise disposed of by the
defendant;
(c) any other matter that the court considers relevant.
(1E) If the infringing copy is an article of which only part consists of
material that infringes copyright, the court, in deciding whether to
grant relief and in assessing the amount of damages payable, may
also have regard to the following:
(a) the importance to the market value of the article of the
material that infringes the copyright;
(b) the proportion the material that infringes copyright bears to
the article;
(c) the extent to which the material that infringes copyright may
be separated from the article.
(2) A plaintiff is not entitled by virtue of this section to any damages
or to any other pecuniary remedy, other than costs, if it is
established that, at the time of the conversion or detention:
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Section 116AAA
182 Copyright Act 1968
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(a) the defendant was not aware, and had no reasonable grounds
for suspecting, that copyright subsisted in the work or other
subject-matter to which the action relates;
(b) where the articles converted or detained were infringing
copies—the defendant believed, and had reasonable grounds
for believing, that they were not infringing copies; or
(c) where an article converted or detained was a device used or
intended to be used for making articles—the defendant
believed, and had reasonable grounds for believing, that the
articles so made or intended to be made were not or would
not be, as the case may be, infringing copies.
116AAA Compensation for acquisition of property
(1) This section applies if, apart from this section, subsections 22(3A)
and 97(2) and (2A) would result in the acquisition of property from
a maker of a sound recording of a live performance by a performer
in the performance otherwise than on just terms.
(2) There is payable to the maker by the performer such amount of
compensation as is agreed on between those persons, or, failing
agreement, as is determined by a court of competent jurisdiction.
(3) Any damages or compensation recovered or other remedy given in
a proceeding that is commenced otherwise than under this section
is to be taken into account in assessing compensation payable in a
proceeding that is commenced under this section and that arises out
of the same event or transaction.
(4) Any compensation payable in a proceeding that is commenced
under this section is to be taken into account in assessing any
damages or compensation or other remedy to be awarded in a
proceeding that is commenced otherwise than under this section
and that arises out of the same event or transaction.
(5) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
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Section 116AAA
Copyright Act 1968 183
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just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
maker of a sound recording of a live performance means a person
mentioned in paragraph 22(3A)(a).
performer in a live performance means the following people:
(a) a person who becomes a maker of a sound recording under
paragraph 22(3A)(b);
(b) if subsection 22(3B) applies—an employer who becomes a
maker of a sound recording under that subsection.
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Part V Remedies and offences
Division 2AA Limitation on remedies available against carriage service providers
Section 116AA
184 Copyright Act 1968
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Division 2AA—Limitation on remedies available against
carriage service providers
Subdivision A—Preliminary
116AA Purpose of this Division
(1) The purpose of this Division is to limit the remedies that are
available against carriage service providers for infringements of
copyright that relate to the carrying out of certain online activities
by carriage service providers. A carriage service provider must
satisfy certain conditions to take advantage of the limitations.
Note 1: Subdivision B contains a description of the relevant activities.
Note 2: Subdivision C contains details of the limitations on remedies.
Note 3: Subdivision D sets out the conditions that must be satisfied for a
carriage service provider to take advantage of the limitations. The
limitations are automatic if a carriage service provider complies with
the relevant conditions.
(2) This Division does not limit the operation of provisions of this Act
outside this Division in relation to determining whether copyright
has been infringed.
116AB Definitions
In this Division:
caching means the reproduction of copyright material on a system
or network controlled or operated by or for a carriage service
provider in response to an action by a user in order to facilitate
efficient access to that material by that user or other users.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
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(e) a television or sound broadcast; or
(f) a work that is included in a sound recording, a cinematograph
film or a television or sound broadcast.
industry code means:
(a) an industry code that:
(i) meets any prescribed requirements; and
(ii) is registered under Part 6 of the Telecommunications Act
1997; or
(b) an industry code developed in accordance with the
regulations.
Subdivision B—Relevant activities
116AC Category A activity
A carriage service provider carries out a Category A activity by
providing facilities or services for transmitting, routing or
providing connections for copyright material, or the intermediate
and transient storage of copyright material in the course of
transmission, routing or provision of connections.
116AD Category B activity
A carriage service provider carries out a Category B activity by
caching copyright material through an automatic process. The
carriage service provider must not manually select the copyright
material for caching.
116AE Category C activity
A carriage service provider carries out a Category C activity by
storing, at the direction of a user, copyright material on a system or
network controlled or operated by or for the carriage service
provider.
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Section 116AF
186 Copyright Act 1968
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116AF Category D activity
A carriage service provider carries out a Category D activity by
referring users to an online location using information location
tools or technology.
Subdivision C—Limitations on remedies
116AG Limitations on remedies
Relevant conditions must be satisfied
(1) A carriage service provider must satisfy the relevant conditions set
out in Subdivision D before the limitations in this section apply.
General limitations
(2) For infringements of copyright that occur in the course of carrying
out any of the categories of activities set out in Subdivision B, a
court must not grant relief against a carriage service provider that
consists of:
(a) damages or an account of profits; or
(b) additional damages; or
(c) other monetary relief.
Category specific limitations
(3) For an infringement of copyright that occurs in the course of the
carrying out of a Category A activity, the relief that a court may
grant against a carriage service provider is limited to one or more
of the following orders:
(a) an order requiring the carriage service provider to take
reasonable steps to disable access to an online location
outside Australia;
(b) an order requiring the carriage service provider to terminate a
specified account.
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Section 116AH
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(4) For an infringement of copyright that occurs in the course of the
carrying out of a Category B, C or D activity, the relief that a court
may grant against a carriage service provider is limited to one or
more of the following orders:
(a) an order requiring the carriage service provider to remove or
disable access to infringing copyright material, or to a
reference to infringing copyright material;
(b) an order requiring the carriage service provider to terminate a
specified account;
(c) some other less burdensome but comparably effective
non-monetary order if necessary.
Relevant matters
(5) In deciding whether to make an order of a kind referred to in
subsection (3) or (4), a court must have regard to:
(a) the harm that has been caused to the owner or exclusive
licensee of the copyright; and
(b) the burden that the making of the order will place on the
carriage service provider; and
(c) the technical feasibility of complying with the order; and
(d) the effectiveness of the order; and
(e) whether some other comparably effective order would be less
burdensome.
The court may have regard to other matters it considers relevant.
Subdivision D—Conditions
116AH Conditions
(1) This table sets out the conditions for each of the categories of
activities.
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Section 116AH
188 Copyright Act 1968
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Conditions
Item Activity Conditions
1 All categories 1. The carriage service provider must adopt and
reasonably implement a policy that provides for
termination, in appropriate circumstances, of the
accounts of repeat infringers.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant
provisions of that code relating to accommodating and
not interfering with standard technical measures used to
protect and identify copyright material.
2 Category A 1. Any transmission of copyright material in carrying out
this activity must be initiated by or at the direction of a
person other than the carriage service provider.
2. The carriage service provider must not make
substantive modifications to copyright material
transmitted. This does not apply to modifications made
as part of a technical process.
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Section 116AH
Copyright Act 1968 189
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Conditions
Item Activity Conditions
3 Category B 1. If the copyright material that is cached is subject to
conditions on user access at the originating site, the
carriage service provider must ensure that access to a
significant part of the cached copyright material is
permitted only to users who have met those conditions.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant
provisions of that code relating to:
(a) updating the cached copyright material; and
(b) not interfering with technology used at the
originating site to obtain information about the
use of the copyright material.
3. The service provider must expeditiously remove or
disable access to cached copyright material upon
notification in the prescribed form that the material has
been removed or access to it has been disabled at the
originating site.
4. The carriage service provider must not make
substantive modifications to the cached copyright
material as it is transmitted to subsequent users. This
does not apply to modifications made as part of a
technical process.
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Section 116AH
190 Copyright Act 1968
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Conditions
Item Activity Conditions
4 Category C 1. The carriage service provider must not receive a
financial benefit that is directly attributable to the
infringing activity if the carriage service provider has
the right and ability to control the activity.
2. The carriage service provider must expeditiously
remove or disable access to copyright material residing
on its system or network upon receipt of a notice in the
prescribed form that the material has been found to be
infringing by a court.
2A. The carriage service provider must act expeditiously to
remove or disable access to copyright material residing
on its system or network if the carriage service
provider:
(a) becomes aware that the material is infringing; or
(b) becomes aware of facts or circumstances that
make it apparent that the material is likely to be
infringing.
The carriage service provider does not, in an action
relating to this Division, bear any onus of proving a
matter referred to in paragraph (a) or (b).
3. The carriage service provider must comply with the
prescribed procedure in relation to removing or
disabling access to copyright material residing on its
system or network.
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Section 116AH
Copyright Act 1968 191
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Conditions
Item Activity Conditions
5 Category D 1. The carriage service provider must not receive a
financial benefit that is directly attributable to the
infringing activity if the carriage service provider has
the right and ability to control the activity.
2. The carriage service provider must expeditiously
remove or disable access to a reference residing on its
system or network upon receipt of a notice in the
prescribed form that the copyright material to which it
refers has been found to be infringing by a court.
2A. The carriage service provider must act expeditiously to
remove or disable access to a reference residing on its
system or network if the carriage service provider:
(a) becomes aware that the copyright material to
which it refers is infringing; or
(b) becomes aware of facts or circumstances that
make it apparent that the copyright material to
which it refers is likely to be infringing.
The carriage service provider does not, in an action
relating to this Division, bear any onus of proving a
matter referred to in paragraph (a) or (b).
3. The carriage service provider must comply with the
prescribed procedure in relation to removing or
disabling a reference residing on its system or network.
(2) Nothing in the conditions is to be taken to require a carriage
service provider to monitor its service or to seek facts to indicate
infringing activity except to the extent required by a standard
technical measure mentioned in condition 2 in table item 1 in the
table in subsection (1).
(3) In deciding, for the purposes of condition 1 in table items 4 and 5
in the table in subsection (1), whether a financial benefit is
otherwise directly attributable to the infringing activity referred to
in that condition, a court must have regard to:
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Section 116AI
192 Copyright Act 1968
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(a) industry practice in relation to the charging of services by
carriage service providers, including charging based on level
of activity; and
(b) whether the financial benefit was greater than the benefit that
would usually result from charging in accordance with
accepted industry practice.
The court may have regard to other matters it considers relevant.
(4) An act done by a carriage service provider in complying with the
prescribed procedure referred to in condition 3 in table item 4 in
the table in subsection (1) does not constitute a failure to satisfy
condition 2A in that item.
116AI Evidence of compliance with conditions
If a carriage service provider, in an action relating to this Division,
points to evidence, as prescribed, that suggests that the carriage
service provider has complied with a condition, the court must
presume, in the absence of evidence to the contrary, that the
carriage service provider has complied with the condition.
Subdivision E—Regulations
116AJ Regulations
(1) The regulations may provide that a carriage service provider is not
liable for damages or any other civil remedy as a result of action
taken in good faith to comply with a condition.
(2) The regulations may provide civil remedies for conduct by relevant
parties in relation to conditions.
(3) The regulations may prescribe offences for conduct by persons
issuing notices under the regulations, and prescribe penalties for
offences against those regulations. The penalties must not exceed
50 penalty units.
Note: If a body corporate is convicted of an offence against regulations
made under this section, subsection 4B(3) of the Crimes Act 1914
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Section 116AJ
Copyright Act 1968 193
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allows a court to impose fines of up to 5 times the penalty stated
above.
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Division 2A Actions in relation to technological protection measures and electronic
rights management information
Section 116AK
194 Copyright Act 1968
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Division 2A—Actions in relation to technological
protection measures and electronic rights
management information
Subdivision A—Technological protection measures
116AK Definitions
In this Subdivision, computer program has the same meaning as in
section 47AB.
116AL Interaction of this Subdivision with Part VAA
This Subdivision does not apply to encoded broadcasts (within the
meaning of Part VAA).
116AM Geographical application
(1) This Subdivision applies to acts done in Australia.
(2) This section does not, by implication, affect the interpretation of
any other provision of this Act.
116AN Circumventing an access control technological protection
measure
(1) An owner or exclusive licensee of the copyright in a work or other
subject-matter may bring an action against a person if:
(a) the work or other subject-matter is protected by an access
control technological protection measure; and
(b) the person does an act that results in the circumvention of the
access control technological protection measure; and
(c) the person knows, or ought reasonably to know, that the act
would have that result.
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Section 116AN
Copyright Act 1968 195
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Exception—permission
(2) Subsection (1) does not apply to the person if the person has the
permission of the copyright owner or exclusive licensee to
circumvent the access control technological protection measure.
Exception—interoperability
(3) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person when the
circumvention occurs; and
(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Exception—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable:
(i) the person; or
(ii) if the person is a body corporate—an employee of the
person;
to do an act; and
(b) the act:
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Section 116AN
196 Copyright Act 1968
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(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(c) the person or employee is:
(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of
encryption technology; and
(d) the person or employee:
(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
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Section 116AN
Copyright Act 1968 197
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(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
Exception—online privacy
(6) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy; and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
disabling an undisclosed capability to collect or
disseminate personally identifying information about
the online activities of a natural person; and
(iv) will not affect the ability of the person or any other
person to gain access to the work or other subject-matter
or any other work or subject-matter.
Exception—law enforcement and national security
(7) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
Exception—libraries etc.
(8) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the person is:
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Section 116AO
198 Copyright Act 1968
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(i) a library (other than a library that is conducted for the
profit, direct or indirect, of an individual or individuals);
or
(ii) a body mentioned in paragraph (a) of the definition of
archives in subsection 10(1), or in subsection 10(4); or
(iii) an educational institution; and
(c) the act will be done for the sole purpose of making an
acquisition decision in relation to the work or other
subject-matter; and
(d) the work or other subject-matter will not be otherwise
available to the person when the act is done.
Note: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Exception—prescribed acts
(9) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act will not infringe the copyright in a work or other
subject-matter; and
(c) the doing of the act by the person is prescribed by the
regulations.
Note: For the making of regulations prescribing the doing of an act by a
person, see section 249.
Burden of proof
(10) The defendant bears the burden of establishing the matters referred
to in subsections (2) to (9).
116AO Manufacturing etc. a circumvention device for a
technological protection measure
(1) An owner or exclusive licensee of the copyright in a work or other
subject-matter may bring an action against a person if:
(a) the person does any of the following acts with a device:
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Section 116AO
Copyright Act 1968 199
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(i) manufactures it with the intention of providing it to
another person;
(ii) imports it into Australia with the intention of providing
it to another person;
(iii) distributes it to another person;
(iv) offers it to the public;
(v) provides it to another person;
(vi) communicates it to another person; and
(b) the person knows, or ought reasonably to know, that the
device is a circumvention device for a technological
protection measure; and
(c) the work or other subject-matter is protected by the
technological protection measure.
Exception - no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the device is a circumvention device for the technological
protection measure only because it was promoted, advertised
or marketed as having the purpose of circumventing the
technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or
marketing;
(ii) the person did not direct or request (expressly or
impliedly) another person to do such promoting,
advertising or marketing.
Exception—interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention device will be used to circumvent the
technological protection measure to enable the doing of an
act; and
(b) the act:
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Section 116AO
200 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person doing the act when the
circumvention occurs; and
(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Exception—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention device will be used to circumvent the
access control technological protection measure to enable a
person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of
encryption technology; and
(e) the researcher:
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Section 116AO
Copyright Act 1968 201
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(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention device will be used to circumvent the
access control technological protection measure to enable the
doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
Exception—law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
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Section 116AP
202 Copyright Act 1968
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Burden of proof
(7) The defendant bears the burden of establishing the matters referred
to in subsections (2) to (6).
116AP Providing etc. a circumvention service for a technological
protection measure
(1) An owner or exclusive licensee of the copyright in a work or other
subject-matter may bring an action against a person if:
(a) the person:
(i) provides a service to another person; or
(ii) offers a service to the public; and
(b) the person knows, or ought reasonably to know, that the
service is a circumvention service for a technological
protection measure; and
(c) the work or other subject-matter is protected by the
technological protection measure.
Exception - no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the service is a circumvention service for the technological
protection measure only because it was promoted, advertised
or marketed as having the purpose of circumventing the
technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or
marketing;
(ii) the person did not direct or request (expressly or
impliedly) another person to do such promoting,
advertising or marketing.
Exception—interoperability
(3) Subsection (1) does not apply to the person if:
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Section 116AP
Copyright Act 1968 203
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(a) the circumvention service will be used to circumvent a
technological protection measure to enable the doing of an
act; and
(b) the act:
(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person doing the act when the
circumvention occurs; and
(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Exception—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention service will be used to circumvent the
access control technological protection measure to enable a
person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(d) the researcher is:
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Section 116AP
204 Copyright Act 1968
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(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of
encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Exception—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention service will be used to circumvent the
access control technological protection measure to enable the
doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
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Section 116AQ
Copyright Act 1968 205
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Exception—law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of establishing the matters referred
to in subsections (2) to (6).
116AQ Remedies in actions under this Subdivision
(1) Without limiting the relief that a court may grant in an action under
this Subdivision, the relief may include:
(a) an injunction, subject to such terms, if any, as the court
thinks fit; and
(b) damages or an account of profits; and
(c) if the doing of an act, which is the subject of the action,
involved a circumvention device—an order that the
circumvention device be destroyed or dealt with as specified
in the order.
(2) In assessing damages, the court may award such additional
damages as it considers appropriate, having regard to:
(a) the flagrancy of the defendant’s acts that are the subject of
the action; and
(b) the need to deter similar acts; and
(c) the conduct of the defendant after the acts or, if relevant, after
the defendant was informed that the defendant had allegedly
done an act that would be the subject of an action under this
Subdivision; and
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Section 116B
206 Copyright Act 1968
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(d) any benefit shown to have accrued to the defendant as a
result of those acts; and
(e) any other relevant matters.
(3) If:
(a) an action has been commenced against a person under this
Subdivision; and
(b) the doing of an act by the person, which is the subject of the
action, involved a device; and
(c) the device appears to the court to be a circumvention device;
the court may order that the device be delivered up to the court
upon such conditions as the court considers appropriate.
(4) This section does not, by implication, affect the interpretation of
any other provision of this Act.
Subdivision B—Electronic rights management information
116B Removal or alteration of electronic rights management
information
(1) This section applies if:
(a) either:
(i) a person removes, from a copy of a work or other
subject-matter in which copyright subsists, any
electronic rights management information that relates to
the work or other subject-matter; or
(ii) a person alters any electronic rights management
information that relates to a work or other
subject-matter in which copyright subsists; and
(b) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(c) the person knew, or ought reasonably to have known, that the
removal or alteration would induce, enable, facilitate or
conceal an infringement of the copyright in the work or other
subject-matter.
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Section 116C
Copyright Act 1968 207
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(2) If this section applies, the owner or exclusive licensee of the
copyright may bring an action against the person.
(3) In an action under subsection (2), it must be presumed that the
defendant knew, or ought reasonably to have known, that the
removal or alteration to which the action relates would have the
effect referred to in paragraph (1)(c) unless the defendant proves
otherwise.
116C Distribution to the public etc. of works whose electronic rights
management information has been removed or altered
(1) This section applies if:
(a) a person does any of the following acts in relation to a work
or other subject-matter in which copyright subsists without
the permission of the owner or exclusive licensee of the
copyright:
(i) distributes a copy of the work or other subject-matter to
the public;
(ii) imports into Australia a copy of the work or other
subject-matter for distribution to the public;
(iii) communicates a copy of the work or other
subject-matter to the public; and
(b) either:
(i) any electronic rights management information that
relates to the work or other subject-matter has been
removed from the copy of the work or subject-matter; or
(ii) any electronic rights management information that
relates to the work or other subject-matter has been
altered; and
(c) the person knew that the electronic rights management
information had been so removed or altered without the
permission of the owner or exclusive licensee of the
copyright; and
(d) the person knew, or ought reasonably to have known, that the
act referred to in paragraph (a) that was done by the person
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Section 116CA
208 Copyright Act 1968
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would induce, enable, facilitate or conceal an infringement of
the copyright in the work or other subject-matter.
(2) If this section applies, the owner or exclusive licensee of the
copyright may bring an action against the person.
(3) In an action under subsection (2), it must be presumed that the
defendant:
(a) had the knowledge referred to in paragraph (1)(c); and
(b) knew, or ought reasonably to have known, that the doing of
the act to which the action relates would have the effect
referred to in paragraph (1)(d);
unless the defendant proves otherwise.
116CA Distribution and importation of electronic rights
management information that has been removed or
altered
(1) This section applies if:
(a) a person does either of the following acts in relation to
electronic rights management information that relates to a
work or other subject-matter in which copyright subsists:
(i) distributes the electronic rights management
information;
(ii) imports into Australia the electronic rights management
information for distribution; and
(b) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(c) either:
(i) the information has been removed from a copy of the
work or subject-matter without the permission of the
owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the
work or subject-matter with the permission of the owner
or exclusive licensee of the copyright but the
information has been altered without that permission;
and
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(d) the person knew that the information had been removed or
altered without that permission; and
(e) the person knew, or ought reasonably to have known, that the
act referred to in paragraph (a) that was done by the person
would induce, enable, facilitate or conceal an infringement of
the copyright.
(2) If this section applies, the owner or exclusive licensee of the
copyright may bring an action against the person.
(3) In an action under subsection (2), it must be presumed that the
defendant:
(a) had the knowledge referred to in paragraph (1)(d); and
(b) knew, or ought reasonably to have known, that the doing of
the act to which the action relates would have the effect
referred to in paragraph (1)(e);
unless the defendant proves otherwise.
116CB Exception relating to national security and law enforcement
Sections 116B to 116CA do not apply in respect of anything
lawfully done for the purposes of law enforcement or national
security by or on behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
116D Remedies in actions under this Subdivision
(1) The relief that a court may grant in an action under this
Subdivision includes an injunction (subject to such terms, if any, as
the court thinks fit) and either damages or an account of profits.
(2) If, in an action under this Subdivision, the court is satisfied that it
is proper to do so, having regard to:
(a) the flagrancy of the defendant’s actions that are the subject of
the action; and
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210 Copyright Act 1968
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(b) any benefit shown to have accrued to the defendant as a
result of those acts; and
(c) any other relevant matters;
the court may, in assessing damages, award such additional
damages as it considers appropriate in the circumstances.
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Section 117
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Division 3—Proceedings where copyright is subject to
exclusive licence
117 Interpretation
In this Division:
if the licence had been an assignment means if, instead of the
licence, there had been granted (subject to conditions
corresponding as nearly as practicable with those subject to which
the licence was granted) an assignment of the copyright in respect
of its application to the doing, at the places and times authorized by
the licence, of the acts so authorized.
the other party means:
(a) in relation to the owner of the copyright—the exclusive
licensee; and
(b) in relation to the exclusive licensee—the owner of the
copyright.
118 Application
This Division applies to proceedings in relation to a copyright in
respect of which an exclusive licence has been granted and is in
force at the time of the events to which the proceedings relate.
119 Rights of exclusive licensee
Subject to the succeeding sections of this Division:
(a) except against the owner of the copyright, the exclusive
licensee has the same rights of action as he or she would
have, and is entitled to the same remedies as he or she would
be entitled to, by virtue of section 115 or 115A if the licence
had been an assignment, and those rights and remedies are
concurrent with the rights and remedies of the owner of the
copyright under that section;
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Section 120
212 Copyright Act 1968
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(b) except against the owner of the copyright, the exclusive
licensee has the same rights of action as he or she would
have, and is entitled to the same remedies as he or she would
be entitled to, by virtue of section 116 if the licence had been
an assignment; and
(c) the owner of the copyright does not have any rights of action
that he or she would not have, and is not entitled to any
remedies that he or she would not be entitled to, by virtue of
section 116 if the licence had been an assignment.
120 Joinder of owner or exclusive licensee as a party
(1) Where:
(a) an action is brought by the owner of the copyright or by the
exclusive licensee; and
(b) the action, in so far as it is brought under section 115 or
115A, relates, in whole or in part, to an infringement in
respect of which the owner and the licensee have concurrent
rights of action under that section;
the owner or licensee, as the case may be, is not entitled, except
with the leave of the court, to proceed with the action, in so far as it
is brought under that section and relates to that infringement,
unless the other party is joined as a plaintiff in the action or added
as a defendant.
(2) This section does not affect the granting of an interlocutory
injunction on the application of the owner of the copyright or of the
exclusive licensee.
121 Defences available against exclusive licensee
In an action brought by the exclusive licensee by virtue of this
Division, a defence under this Act that would have been available
to a defendant in the action if the action had been brought by the
owner of the copyright is available to that defendant as against the
exclusive licensee.
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Section 122
Copyright Act 1968 213
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122 Assessment of damages where exclusive licence granted
Where an action to which section 120 applies is brought and the
owner of the copyright and the exclusive licensee are not both
plaintiffs in the action, the court, in assessing damages in respect of
an infringement of a kind referred to in that section, shall:
(a) if the plaintiff is the exclusive licensee—take into account
any liabilities, in respect of royalties or otherwise, to which
the licence is subject; and
(b) whether the plaintiff is the owner of the copyright or the
exclusive licensee—take into account any pecuniary remedy
already awarded to the other party under section 115 in
respect of that infringement, or any right of action
exercisable by the other party under that section in respect of
that infringement, as the case requires.
123 Apportionment of profits between owner and exclusive licensee
Where:
(a) an action, in so far as it is brought under section 115, relates,
in whole or in part, to an infringement in respect of which the
owner of the copyright and the exclusive licensee have
concurrent rights of action under that section; and
(b) in that action, whether the owner of the copyright and the
exclusive licensee are both parties or not, an account of
profits is directed to be taken in respect of that infringement;
then, subject to any agreement of which the court is aware by
which the application of those profits is determined as between the
owner of the copyright and the exclusive licensee, the court shall
apportion the profits between them in such a manner as the court
considers just and shall give such directions as the court considers
appropriate for giving effect to that apportionment.
Note: However, not all owners of the copyright are entitled to an account of
profits: see section 100AG.
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Section 124
214 Copyright Act 1968
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124 Separate actions in relation to the same infringement
In an action brought by the owner of the copyright or by the
exclusive licensee:
(a) a judgment or order for the payment of damages in respect of
an infringement of copyright shall not be given or made
under section 115 if a final judgment or order has been given
or made in favour of the other party directing an account of
profits under that section in respect of the same infringement;
and
(b) a judgment or order for an account of profits in respect of an
infringement of copyright shall not be given or made under
that section if a final judgment or order has been given or
made in favour of the other party awarding damages or
directing an account of profits under that section in respect of
the same infringement.
Note: However, not all owners of the copyright are entitled to damages
(other than additional damages) or an account of profits: see
section 100AG.
125 Liability for costs
Where, in an action to which section 120 applies, whether brought
by the owner of the copyright or by the exclusive licensee, the
other party is not joined as a plaintiff (either at the commencement
of the action or at a later time), but is added as a defendant, the
other party is not liable for any costs in the action unless he or she
enters an appearance and takes part in the proceedings.
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Section 126
Copyright Act 1968 215
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Division 4—Proof of facts in civil actions
126 Presumptions as to subsistence and ownership of copyright
In an action brought by virtue of this Part:
(a) copyright shall be presumed to subsist in the work or other
subject-matter to which the action relates if the defendant
does not put in issue the question whether copyright subsists
in the work or other subject-matter; and
(b) where the subsistence of the copyright is established—the
plaintiff shall be presumed to be the owner of the copyright if
he or she claims to be the owner of the copyright and the
defendant does not put in issue the question of his or her
ownership.
126A Presumptions relating to subsistence of copyright
(1) This section applies to an action under this Part in which the
defendant puts in issue the question whether copyright subsists in
the work or other subject matter to which the action relates.
Labels or marks
(2) If a copy of the work or other subject matter, or the packaging or
container in which the copy is packaged or contained, bears a label
or mark stating the year and place of the first publication, or of the
making, of the work or other subject matter, then that year and
place are presumed to be as stated on the label or mark, unless the
contrary is established.
Foreign certificates
(3) If a certificate or other document issued in a qualifying country in
accordance with a law of that country states the year and place of
the first publication, or of the making, of the work or other subject
matter, then that year and place are presumed to be as stated in the
certificate or document, unless the contrary is established.
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Section 126B
216 Copyright Act 1968
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(4) For the purposes of this section, a document purporting to be a
certificate or document referred to in subsection (3) is, unless the
contrary intention is established, taken to be such a certificate or
document.
126B Presumptions relating to ownership of copyright
(1) This section applies to an action under this Part in which the
defendant puts in issue the question of the plaintiff’s ownership of
copyright in the work or other subject matter to which the action
relates.
Labels or marks
(2) If a copy of the work or other subject matter, or the packaging or
container in which the copy is packaged or contained, bears a label
or mark stating that a person was the owner of copyright in the
work or other subject matter at a particular time, then the person is
presumed to have been the owner of the copyright at the time,
unless the contrary is established.
Foreign certificates
(3) If a certificate or other document issued in a qualifying country in
accordance with a law of that country states that a person was the
owner of copyright in the work or other subject matter at a
particular time, then the person is presumed to have been the owner
of the copyright at the time, unless the contrary is established.
(4) For the purposes of this section, a document purporting to be a
certificate or document referred to in subsection (3) is, unless the
contrary intention is established, taken to be such a certificate or
document.
Chains of ownership
(5) If:
(a) subsection (2) or (3) applies; and
(b) the plaintiff produces a document stating the following:
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(i) each subsequent owner of the copyright the subject of
the action (including the plaintiff’s ownership);
(ii) the date each subsequent owner became the owner of
that copyright;
(iii) a description of the transaction resulting in each
subsequent owner becoming the owner of that
copyright;
then the matters described in subparagraphs (b)(i), (ii) and (iii) are
presumed to be as stated in the document, unless the contrary is
established.
(6) If:
(a) neither subsection (2) nor (3) applies; and
(b) the plaintiff produces a document stating the following:
(i) the original owner of the copyright the subject of the
action;
(ii) each subsequent owner of that copyright (including the
plaintiff’s ownership);
(iii) the date each owner became the owner of that
copyright;
(iv) a description of the transaction resulting in each owner
becoming the owner of that copyright;
then the matters described in subparagraphs (b)(i), (ii), (iii) and (iv)
are presumed to be as stated in the document, unless the contrary is
established.
Offence
(7) A person commits an offence if:
(a) the person produces a document under subsection (5) or (6);
and
(b) the person is reckless as to whether the document is false or
misleading.
Penalty: 30 penalty units.
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Section 127
218 Copyright Act 1968
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127 Presumptions in relation to authorship of work
(1) Where a name purporting to be that of the author of a literary,
dramatic, musical or artistic work appeared on copies of the work
as published or a name purporting to be that of the author of an
artistic work appeared on the work when it was made, the person
whose name so appeared, if it was his or her true name or a name
by which he or she was commonly known, shall, in an action
brought by virtue of this Part, be presumed, unless the contrary is
established, to be the author of the work and to have made the
work in circumstances to which subsections 35(4), (5) and (6) do
not apply.
(2) Where a work is alleged to be a work of joint authorship, the last
preceding subsection applies in relation to each person alleged to
be one of the authors of the work as if references in that subsection
to the author were references to one of the authors.
(3) Where, in an action brought by virtue of this Part in relation to a
photograph:
(a) it is established that, at the time when the photograph was
taken, a person was the owner of the material on which the
photograph was taken or, if the ownership of that material as
at that time is not established, that a person was the owner of
the apparatus by which the photograph was taken; or
(b) neither the ownership as at the time when the photograph was
taken of the material on which it was taken nor the ownership
as at that time of the apparatus by which it was taken is
established but it is established that, at the time of the death
of a person, the photograph was owned by the person or, if
the ownership of the photograph as at that time is not
established, was in the possession or custody of the person;
the person shall be presumed, unless the contrary is established, to
have been the person who took the photograph.
(4) However, if the owner of the material or apparatus was a body
corporate, then paragraph (3)(a) only applies if the presumption is
required to determine the ownership of the copyright in the
photograph.
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Note: For example, the presumption does not apply if it is required to
determine the duration of the copyright in the photograph.
128 Presumptions in relation to publisher of work
Where, in an action brought by virtue of this Part in relation to a
literary, dramatic, musical or artistic work, the last preceding
section does not apply, but it is established:
(a) that the work was first published in Australia and was so
published during the period of 70 years that ended
immediately before the commencement of the calendar year
in which the action was brought; and
(b) that a name purporting to be that of the publisher appeared on
copies of the work as first published;
then, unless the contrary is established, copyright shall be
presumed to subsist in the work and the person whose name so
appeared shall be presumed to have been the owner of that
copyright at the time of the publication.
129 Presumptions where author has died
(1) Where, in an action brought by virtue of this Part in relation to a
literary, dramatic, musical or artistic work, it is established that the
author is dead:
(a) the work shall be presumed to be an original work unless the
contrary is established; and
(b) if it is alleged by the plaintiff that a publication specified in
the allegation was the first publication of the work, and that it
took place in a country and on a date so specified—that
publication shall be presumed, unless the contrary is
established, to have been the first publication of the work,
and to have taken place in that country and on that date.
(2) Where:
(a) a literary, dramatic, musical or artistic work has been
published;
(b) the publication was anonymous or is alleged by the plaintiff
to have been pseudonymous; and
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(c) it is not established that the work has ever been published
under the true name of the author, or under a name by which
he or she was commonly known, or that the identity of the
author is generally known or can be ascertained by
reasonable inquiry;
paragraphs (1)(a) and (b) apply, in an action brought by virtue of
this Part in relation to the work, in like manner as those paragraphs
apply where it is established that the author is dead.
129A Presumptions relating to computer programs
(1) This section applies to an action under this Part relating to
copyright in a literary work that is a computer program if:
(a) articles or things embodying all or part of the program have
been supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the articles or things, or their
containers, bore a label or other mark consisting of the letter
“C” in a circle accompanied by a specified year and the name
of a person.
(2) It is presumed that:
(a) the computer program is an original literary work; and
(b) the computer program was first published in the year; and
(c) the person was the owner of copyright in the program when
and where the articles, things or containers were labelled or
marked;
unless the contrary is established.
(3) A presumption about a person under subsection (2) does not imply
that the person was the only owner of copyright in the program
when and where the articles, things or containers were labelled or
marked.
130 Presumptions relating to sound recordings
(1) This section applies to an action under this Part relating to
copyright in a sound recording if:
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(a) records embodying all or part of the recording have been
supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the records or their containers bore
a label or other mark.
(2) If the label or mark contained a statement described in an item of
the table, the matter described in the item is presumed, unless the
contrary is established.
Statements and matters presumed unless the contrary is established
Item Statement Matter presumed
1 A specified person was the maker of
the recording
The person was the maker of the
recording
2 The recording was first published in
a specified year
The recording was first published in
the year
3 The recording was first published in
a specified country
The recording was first published in
the country
(3) If the label or mark consisted of the letter “P” in a circle
accompanied by a specified year and the name of a person, it is
presumed that:
(a) the recording was first published in the year; and
(b) the person was the owner of copyright in the recording when
and where the records or containers were labelled or marked;
unless the contrary is established.
(4) A presumption about a person under this section does not imply
that the person was:
(a) the only maker of the recording; or
(b) the only owner of copyright in the recording when and where
the records or containers were labelled or marked.
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Section 130A
222 Copyright Act 1968
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130A Acts relating to imported copies of sound recordings
(1) In an action for infringement of copyright described in section 37,
38, 102 or 103 by an act involving an article that is a copy of a
sound recording, it must be presumed that the copy is not a
non-infringing copy unless the defendant proves that the copy is a
non-infringing copy.
Note 1: Sections 37 and 38 deal with infringement of copyright in literary,
dramatic and musical works (among other things) by commercial
importation and dealings involving articles.
Note 2: Sections 102 and 103 deal with infringement of copyright in sound
recordings (among other things) by commercial importation and
dealings involving articles.
(2) The definition of article in sections 38 and 103 does not affect this
section.
130B Acts relating to imported copies of computer programs
(1) In an action by a plaintiff for infringement of copyright described
in section 37 or 38:
(a) relating to the plaintiff’s copyright in a literary work that is a
computer program; and
(b) involving an article that has embodied in it a copy of the
program;
it must be presumed, unless the defendant proves otherwise, that
the copy is not a non-infringing copy so far as it relates to the
plaintiff’s copyright.
Note: Sections 37 and 38 deal with infringement of copyright in literary
works (among other things) by commercial importation and dealings
involving articles.
(2) The definition of article in section 38 does not affect this section.
130C Acts relating to imported copies of electronic literary or music
items
(1) In an action by a plaintiff for infringement of copyright described
in section 37, 38, 102 or 103:
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(a) relating to the plaintiff’s copyright in a work, or in a
published edition of a work, that is, or is part of, an electronic
literary or music item; and
(b) involving an article that has embodied in it a copy of the
electronic literary or music item;
it must be presumed, unless the defendant proves otherwise, that
the copy is not a non-infringing copy so far as it relates to the
plaintiff’s copyright.
Note 1: Sections 37 and 38 deal with infringement of copyright in a work by
commercial importation and dealings involving articles.
Note 2: Sections 102 and 103 deal with infringement of copyright in a
published edition of a work (among other things) by commercial
importation and dealings involving articles.
(2) The definition of article in sections 38 and 103 does not affect this
section.
131 Presumptions relating to films
(1) Where the name of a person appeared on copies of a
cinematograph film as made available to the public in such a way
as to imply that the person was the maker of the film and, in the
case of a person other than a body corporate, that name was his or
her true name or a name by which he or she was commonly known,
that person shall, in an action brought by virtue of this Part, be
presumed, unless the contrary is established, to be the maker of the
film and to have made the film in circumstances to which
subsection 98(3) does not apply.
(2) Subsection (3) applies to an action under this Part relating to
copyright in a cinematograph film, if:
(a) articles or things embodying the film have been supplied
commercially; and
(b) at the time of the supply, the articles or things, or their
containers, bore a label or other mark consisting of the letter
“C” in a circle accompanied by a specified year and the name
of a person.
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Section 131
224 Copyright Act 1968
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(3) It is presumed that:
(a) the film was first made in the year; and
(b) the person was the owner of copyright in the film when and
where the articles, things or containers were labelled or
marked;
unless the contrary is established.
(4) A presumption about a person under subsection (3) does not imply
that the person was the only owner of copyright in the film when
and where the articles, things or containers were labelled or
marked.
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Section 131A
Copyright Act 1968 225
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Division 4A—Jurisdiction and appeals
131A Exercise of jurisdiction
(1) The jurisdiction of the Supreme Court of a State or Territory in an
action under this Part shall be exercised by a single Judge of the
Court.
(2) Despite subsection 39(2) of the Judiciary Act 1903, the Supreme
Court of a State or Territory does not have jurisdiction in relation
to applications under section 115A of this Act (injunctions against
carriage service providers providing access to online locations
outside Australia).
131B Appeals
(1) Subject to subsection (2), a decision of a court of a State or
Territory (however constituted) under this Part is final and
conclusive.
(2) An appeal lies from a decision of a court of a State or Territory
under this Part:
(a) to the Federal Court of Australia; or
(b) by special leave of the High Court, to the High Court.
131C Jurisdiction of Federal Court of Australia
Jurisdiction is conferred on the Federal Court of Australia with
respect to actions under this Part.
131D Jurisdiction of Federal Circuit Court of Australia
Jurisdiction is conferred on the Federal Circuit Court of Australia
with respect to civil actions under this Part (other than
section 115A).
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Section 132AA
226 Copyright Act 1968
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Division 5—Offences and summary proceedings
Subdivision A—Preliminary
132AA Definitions
In this Division:
article includes a reproduction or copy of a work or other
subject-matter, being a reproduction or copy in electronic form.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast; or
(f) a work that is included in a sound recording, a cinematograph
film or a television or sound broadcast.
distribute, except in Subdivision E, includes distribute by way of
communication.
place of public entertainment includes premises that are occupied
principally for purposes other than public entertainment but are
from time to time made available for hire for purposes of public
entertainment.
profit does not include any advantage, benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated with, the person’s private or
domestic use of any copyright material.
132AB Geographical application
(1) Subdivisions B, C, D, E and F apply only to acts done in Australia.
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(2) This section has effect despite section 14.1 (Standard geographical
jurisdiction) of the Criminal Code.
Subdivision B—Substantial infringement on a commercial scale
132AC Commercial-scale infringement prejudicing copyright owner
Indictable offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the
copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial
prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial
scale.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the
copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial
prejudicial impact on the owner of the copyright and the
person is negligent as to that fact; and
(d) the infringement or infringements occur on a commercial
scale and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
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228 Copyright Act 1968
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(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Determining whether infringements occur on commercial scale
(5) In determining whether one or more infringements occur on a
commercial scale for the purposes of paragraph (1)(d) or (3)(d), the
following matters are to be taken into account:
(a) the volume and value of any articles that are infringing
copies that constitute the infringement or infringements;
(b) any other relevant matter.
Defence relating to law enforcement and national security
(6) This section does not apply in respect of anything lawfully done
for the purposes of law enforcement or national security by or on
behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence for certain public institutions etc.
(7) This section does not apply in respect of anything lawfully done by
the following in performing their functions:
(a) a library (other than a library that is conducted for the profit,
direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in
subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non-commercial broadcaster, including:
(i) a body that provides a national broadcasting service
within the meaning of the Broadcasting Services Act
1992; and
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(ii) a body that holds a community broadcasting licence
within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in
subsection (7) (see subsection 13.3(3) of the Criminal Code).
(8) This section does not apply in respect of anything lawfully done by
a person in connection with a work or other subject-matter if:
(a) the person has custody of the work or other subject-matter
under an arrangement referred to in section 64 of the
Archives Act 1983; and
(b) under subsection (7), it would be lawful for the National
Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (8) (see subsection 13.3(3) of the Criminal Code).
Subdivision C—Infringing copies
132AD Making infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person makes an article, with the intention of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter when
the article is made.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
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230 Copyright Act 1968
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Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person makes an article, with the intention of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter when
the article is made and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person makes an article in preparation for, or in the
course of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter when
the article is made.
Penalty: 60 penalty units.
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Section 132AE
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(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AE Selling or hiring out infringing copy
Indictable offence
(1) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the sale or letting.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the sale or letting and the person is negligent as to
that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
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232 Copyright Act 1968
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Strict liability offence
(5) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the sale or letting.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AF Offering infringing copy for sale or hire
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade offers or exposes an article for
sale or hire; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure.
(2) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, with
the intention of obtaining a commercial advantage or profit;
and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure.
(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
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Section 132AF
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Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade offers or exposes an article for
sale or hire; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure and the person is negligent as to
that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, with
the intention of obtaining a commercial advantage or profit;
and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure and the person is negligent as to
that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence,
despite section 4G of the Crimes Act 1914.
Strict liability offences
(7) A person commits an offence if:
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234 Copyright Act 1968
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(a) the person by way of trade offers or exposes an article for
sale or hire; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, in
preparation for, or in the course of, obtaining a commercial
advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the offer or exposure.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AG Exhibiting infringing copy in public commercially
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition.
(2) A person commits an offence if:
(a) the person exhibits an article in public, with the intention of
obtaining a commercial advantage or profit; and
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(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition.
(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition and the person is negligent as to that
fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person exhibits an article in public, with the intention of
obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition and the person is negligent as to that
fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
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Section 132AH
236 Copyright Act 1968
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(6) An offence against subsection (4) or (5) is a summary offence,
despite section 4G of the Crimes Act 1914.
Strict liability offences
(7) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person exhibits an article in public in preparation for, or
in the course of, obtaining a commercial advantage or profit;
and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the exhibition.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AH Importing infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person imports an article into Australia, with the intention
of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
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(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the import.
(2) An offence against this section is punishable on conviction by a
fine of not more than 650 penalty units or imprisonment for not
more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person imports an article into Australia, with the intention
of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
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238 Copyright Act 1968
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(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the import and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person imports an article into Australia in preparation for,
or in the course of, doing any of the following with the
article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
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(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the import.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AI Distributing infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person distributes an article, with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the distribution.
(2) A person commits an offence if:
(a) the person distributes an article; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the distribution; and
(d) the extent of the distribution affects prejudicially the owner
of the copyright.
(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
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Section 132AI
240 Copyright Act 1968
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Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person distributes an article, with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the distribution and the person is negligent as to that
fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person distributes an article; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject-matter at the
time of the distribution and the person is negligent as to that
fact; and
(d) the extent of the distribution affects prejudicially the owner
of the copyright and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence,
despite section 4G of the Crimes Act 1914.
Strict liability offence
(7) A person commits an offence if:
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(a) the person distributes an article in preparation for, or in the
course of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the distribution.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AJ Possessing infringing copy for commerce
Indictable offence
(1) A person commits an offence if:
(a) the person possesses an article, with the intention of doing
any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
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(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the possession.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other
subject-matter from a hard copy or analog form into a digital or other
electronic machine-readable form, there is an aggravated offence with
a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person possesses an article, with the intention of doing
any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
(b) the article is an infringing copy of a work or other
subject-matter and the person is negligent as to that fact; and
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(c) copyright subsists in the work or other subject-matter at the
time of the possession and the person is negligent as to that
fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses an article in preparation for, or in the
course of, doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a
commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or
profit;
(vii) distributing it to an extent that will affect prejudicially
the owner of the copyright in the work or other
subject-matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage
or profit; and
(b) the article is an infringing copy of a work or other
subject-matter; and
(c) copyright subsists in the work or other subject-matter at the
time of the possession.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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244 Copyright Act 1968
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132AK Aggravated offence—work etc. converted to digital form
(1) An indictable offence against a provision (the basic offence
provision) of this Subdivision (except sections 132AL and
132AM) relating to an infringing copy is an aggravated offence if
the infringing copy was made by converting a work or other
subject-matter from a hard copy or analog form into a digital or
other electronic machine-readable form.
(2) An aggravated offence is punishable on conviction by a fine of not
more than 850 penalty units or imprisonment for not more than 5
years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
(3) To prove an aggravated offence, the prosecution must prove that
the defendant was reckless with respect to the circumstance that the
infringing copy was made by converting a work or other
subject-matter from a hard copy or analog form into a digital or
other electronic machine-readable form.
Note: The prosecution must also prove all the physical and fault elements of
the offence against the basic offence provision.
(4) If the prosecution intends to prove an aggravated offence, the
charge must allege that the infringing copy was made by
converting a work or other subject-matter from a hard copy or
analog form into a digital or other electronic machine-readable
form.
132AL Making or possessing device for making infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person makes a device, intending it to be used for making
an infringing copy of a work or other subject-matter; and
(b) copyright subsists in the work or other subject-matter at the
time of the making of the device.
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(2) A person commits an offence if:
(a) the person possesses a device, intending it to be used for
making an infringing copy of a work or other subject-matter;
and
(b) copyright subsists in the work or other subject-matter at the
time of the possession.
(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offences
(4) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for copying a work or other
subject-matter; and
(c) the copy will be an infringing copy and the person is
negligent as to that fact; and
(d) copyright subsists in the work or other subject-matter at the
time of the making of the device and the person is negligent
as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person possesses a device; and
(b) the device is to be used for copying a work or other
subject-matter; and
(c) the copy will be an infringing copy and the person is
negligent as to that fact; and
(d) copyright subsists in the work or other subject-matter at the
time of the possession and the person is negligent as to that
fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
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(6) To avoid doubt, recklessness is the fault element for the
circumstance in paragraphs (4)(b) and (5)(b) that the device is to be
used for copying a work or other subject-matter.
(7) An offence against subsection (4) or (5) is a summary offence,
despite section 4G of the Crimes Act 1914.
Strict liability offence
(8) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for copying a work or other
subject-matter; and
(c) the copy will be an infringing copy; and
(d) copyright subsists in the work or other subject-matter at the
time of the making of the device.
Penalty: 60 penalty units.
(10) Subsection (8) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
No need to prove which work etc. is to be copied
(11) In a prosecution for an offence against this section, it is not
necessary to prove which particular work or other subject-matter is
intended to be, or will be, copied using the device.
132AM Advertising supply of infringing copy
Summary offence
(1) A person commits an offence if:
(a) the person, by any means, publishes, or causes to be
published, an advertisement for the supply in Australia of a
copy (whether from within or outside Australia) of a work or
other subject-matter; and
(b) the copy is, or will be, an infringing copy.
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Penalty: 30 penalty units or imprisonment for 6 months, or both.
Location of supply of copy by communication resulting in creation
of copy
(2) For the purposes of this section, a communication of a work or
other subject-matter that, when received and recorded, will result
in the creation of a copy of the work or other subject-matter is
taken to constitute the supply of a copy of the work or other
subject-matter at the place where the copy will be created.
Subdivision D—Airing of works, sound recordings and films
132AN Causing work to be performed publicly
Indictable offence
(1) A person commits an offence if:
(a) the person causes a literary, dramatic or musical work to be
performed; and
(b) the performance is in public at a place of public
entertainment; and
(c) the performance infringes copyright in the work.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person causes a literary, dramatic or musical work to be
performed; and
(b) the performance is in public at a place of public
entertainment; and
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(c) the performance infringes copyright in the work and the
person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
132AO Causing recording or film to be heard or seen in public
Indictable offence
(1) A person commits an offence if:
(a) the person causes:
(i) a sound recording to be heard; or
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public
entertainment; and
(c) causing the hearing or seeing infringes copyright in the
recording or film.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) the person causes:
(i) a sound recording to be heard; or
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public
entertainment; and
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(c) causing the hearing or seeing infringes copyright in the
recording or film and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) the person causes:
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public
entertainment; and
(c) causing the hearing or seeing infringes copyright in the
recording or film.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision E—Technological protection measures
132APA Definitions
In this Subdivision, computer program has the same meaning as in
section 47AB.
132APB Interaction of this Subdivision with Part VAA
This Subdivision does not apply to encoded broadcasts (within the
meaning of Part VAA).
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132APC Circumventing an access control technological protection
measure
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the circumvention of a technological
protection measure; and
(c) the technological protection measure is an access control
technological protection measure; and
(d) the person engages in the conduct with the intention of
obtaining a commercial advantage or profit.
Penalty: 60 penalty units.
Defence—permission
(2) Subsection (1) does not apply to the person if the person has the
permission of the copyright owner or exclusive licensee to
circumvent the access control technological protection measure.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
Defence—interoperability
(3) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person when the
circumvention occurs; and
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(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable:
(i) the person; or
(ii) if the person is a body corporate—an employee of the
person;
to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(c) the person or employee is:
(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of
encryption technology; and
(d) the person or employee:
(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
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In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
Defence—online privacy
(6) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy; and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
disabling an undisclosed capability to collect or
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disseminate personally identifying information about
the online activities of a natural person; and
(iv) will not affect the ability of the person or any other
person to gain access to the work or other subject-matter
or any other work or subject-matter.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—law enforcement and national security
(7) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (7) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(8) Subsection (1) does not apply in respect of anything lawfully done
by the following bodies in performing their functions:
(a) a library (other than a library that is conducted for the profit,
direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in
subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non-commercial broadcaster (including a body that
provides a national broadcasting service, within the meaning
of the Broadcasting Services Act 1992, and a body that holds
a community broadcasting licence within the meaning of that
Act).
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Note 1: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in
subsection (8) (see subsection 13.3(3) of the Criminal Code).
(8A) This section does not apply in respect of anything lawfully done by
a person in connection with a work or other subject-matter if:
(a) the person has custody of the work or other subject-matter
under an arrangement referred to in section 64 of the
Archives Act 1983; and
(b) under subsection (8), it would be lawful for the National
Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (8A) (see subsection 13.3(3) of the Criminal Code).
Defence—prescribed acts
(9) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological
protection measure to enable the person to do an act; and
(b) the act will not infringe the copyright in a work or other
subject-matter; and
(c) the doing of the act by the person is prescribed by the
regulations.
Note 1: A defendant bears an evidential burden in relation to the matter in
subsection (9) (see subsection 13.3(3) of the Criminal Code).
Note 2: For the making of regulations prescribing the doing of an act by a
person, see section 249.
132APD Manufacturing etc. a circumvention device for a
technological protection measure
(1) A person commits an offence if:
(a) the person does any of the following acts with a device:
(i) manufactures it with the intention of providing it to
another person;
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(ii) imports it into Australia with the intention of providing
it to another person;
(iii) distributes it to another person;
(iv) offers it to the public;
(v) provides it to another person;
(vi) communicates it to another person; and
(b) the person does the act with the intention of obtaining a
commercial advantage or profit; and
(c) the device is a circumvention device for a technological
protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence—no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the device is a circumvention device for the technological
protection measure only because it was promoted, advertised
or marketed as having the purpose of circumventing the
technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or
marketing;
(ii) the person did not direct or request (expressly or
impliedly) another person to do such promoting,
advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
Defence—interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention device will be used to circumvent the
technological protection measure to enable the doing of an
act; and
(b) the act:
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(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person doing the act when the
circumvention occurs; and
(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention device will be used to circumvent the
access control technological protection measure to enable a
person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
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(ii) employed, trained or experienced in the field of
encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention device will be used to circumvent the
access control technological protection measure to enable the
doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
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Defence—law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(7) Subsection (1) does not apply in respect of anything lawfully done
by the following bodies in performing their functions:
(a) a library (other than a library that is conducted for the profit,
direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in
subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non-commercial broadcaster (including a body that
provides a national broadcasting service, within the meaning
of the Broadcasting Services Act 1992, and a body that holds
a community broadcasting licence within the meaning of that
Act).
Note 1: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in
subsection (7) (see subsection 13.3(3) of the Criminal Code).
(8) This section does not apply in respect of anything lawfully done by
a person in connection with a work or other subject-matter if:
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(a) the person has custody of the work or other subject-matter
under an arrangement referred to in section 64 of the
Archives Act 1983; and
(b) under subsection (7), it would be lawful for the National
Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (8) (see subsection 13.3(3) of the Criminal Code).
132APE Providing etc. a circumvention service for a technological
protection measure
(1) A person commits an offence if:
(a) the person:
(i) provides a service to another person; or
(ii) offers a service to the public; and
(b) the person does so with the intention of obtaining a
commercial advantage or profit; and
(c) the service is a circumvention service for a technological
protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence—no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the service is a circumvention service for the technological
protection measure only because it was promoted, advertised
or marketed as having the purpose of circumventing the
technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or
marketing;
(ii) the person did not direct or request (expressly or
impliedly) another person to do such promoting,
advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
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Defence—interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention service will be used to circumvent a
technological protection measure to enable the doing of an
act; and
(b) the act:
(i) relates to a copy of a computer program (the original
program) that is not an infringing copy and that was
lawfully obtained; and
(ii) will not infringe the copyright in the original program;
and
(iia) relates to elements of the original program that will not
be readily available to the person doing the act when the
circumvention occurs; and
(iii) will be done for the sole purpose of achieving
interoperability of an independently created computer
program with the original program or any other
program.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention service will be used to circumvent the
access control technological protection measure to enable a
person (the researcher) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject-matter that is
not an infringing copy and that was lawfully obtained;
and
(ii) will not infringe the copyright in the work or other
subject-matter; and
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(iii) will be done for the sole purpose of identifying and
analysing flaws and vulnerabilities of encryption
technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational
institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of
encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive
licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain
such permission.
In this subsection, encryption technology means the scrambling
and descrambling of information using mathematical formulas or
algorithms.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control
technological protection measure; and
(b) the circumvention service will be used to circumvent the
access control technological protection measure to enable the
doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an
infringing copy; and
(ii) will not infringe the copyright in the computer program;
and
(iii) will be done for the sole purpose of testing,
investigating or correcting the security of a computer,
computer system or computer network; and
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(iv) will be done with the permission of the owner of the
computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
Defence—law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done
for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an
authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(7) Subsection (1) does not apply in respect of anything lawfully done
by the following bodies in performing their functions:
(a) a library (other than a library that is conducted for the profit,
direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in
subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non-commercial broadcaster (including a body that
provides a national broadcasting service, within the meaning
of the Broadcasting Services Act 1992, and a body that holds
a community broadcasting licence within the meaning of that
Act).
Note 1: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in
subsection (7) (see subsection 13.3(3) of the Criminal Code).
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Copyright Act 1968 263
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(8) This section does not apply in respect of anything lawfully done by
a person in connection with a work or other subject-matter if:
(a) the person has custody of the work or other subject-matter
under an arrangement referred to in section 64 of the
Archives Act 1983; and
(b) under subsection (7), it would be lawful for the National
Archives of Australia to do that thing.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (8) (see subsection 13.3(3) of the Criminal Code).
Subdivision F—Electronic rights management information
132AQ Removing or altering electronic rights management
information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) either:
(i) the person removes, from a copy of the work or
subject-matter, any electronic rights management
information that relates to the work or subject-matter; or
(ii) the person alters any electronic rights management
information that relates to the work or subject-matter;
and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or
conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
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Section 132AQ
264 Copyright Act 1968
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Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) either:
(i) the person removes, from a copy of the work or
subject-matter, any electronic rights management
information that relates to the work or subject-matter; or
(ii) the person alters any electronic rights management
information that relates to the work or subject-matter;
and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or
conceal an infringement of the copyright and the person is
negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) either:
(i) the person removes, from a copy of the work or
subject-matter, any electronic rights management
information that relates to the work or subject-matter; or
(ii) the person alters any electronic rights management
information that relates to the work or subject-matter;
and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or
conceal an infringement of the copyright.
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Section 132AR
Copyright Act 1968 265
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Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AR Distributing, importing or communicating copies after
removal or alteration of electronic rights management
information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does any of the following acts in relation to the
work or subject-matter:
(i) distributes a copy of the work or subject-matter with the
intention of trading or obtaining a commercial
advantage or profit;
(ii) imports a copy of the work or subject-matter into
Australia with the intention of trading or obtaining a
commercial advantage or profit;
(iii) communicates a copy of the work or subject-matter to
the public; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that
relates to the work or subject-matter has been removed
from the copy of the work or subject-matter; or
(ii) any electronic rights management information that
relates to the work or subject-matter has been altered;
without the permission of the owner or exclusive licensee of
the copyright; and
(e) the person knows that the information has been removed or
altered without that permission; and
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(f) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does any of the following acts in relation to the
work or subject-matter:
(i) distributes a copy of the work or subject-matter with the
intention of trading or obtaining a commercial
advantage or profit;
(ii) imports a copy of the work or subject-matter into
Australia with the intention of trading or obtaining a
commercial advantage or profit;
(iii) communicates a copy of the work or subject-matter to
the public; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that
relates to the work or subject-matter has been removed
from the copy of the work or subject-matter; or
(ii) any electronic rights management information that
relates to the work or subject-matter has been altered;
without the permission of the owner or exclusive licensee of
the copyright; and
(e) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright and the
person is negligent as to that result.
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Section 132AR
Copyright Act 1968 267
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Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does any of the following acts in relation to the
work or subject-matter:
(i) distributes a copy of the work or subject-matter in
preparation for, or in the course of, trading or for
obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject-matter into
Australia in preparation for, or in the course of, trading
or in preparation for, or in the course of, obtaining a
commercial advantage or profit;
(iii) communicates a copy of the work or subject-matter to
the public; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that
relates to the work or subject-matter has been removed
from the copy of the work or subject-matter; or
(ii) any electronic rights management information that
relates to the work or subject-matter has been altered;
without the permission of the owner or exclusive licensee of
the copyright; and
(e) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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268 Copyright Act 1968
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132AS Distributing or importing electronic rights management
information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does either of the following acts in relation to
electronic rights management information that relates to the
work or subject-matter:
(i) distributes the electronic rights management
information with the intention of trading or obtaining a
commercial advantage or profit;
(ii) imports the electronic rights management information
into Australia with the intention of trading or obtaining
a commercial advantage or profit; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the
work or subject-matter without the permission of the
owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the
work or subject-matter with the permission of the owner
or exclusive licensee of the copyright but the
information has been altered without that permission;
and
(e) the person knows that the information has been removed or
altered without that permission; and
(f) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
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Section 132AS
Copyright Act 1968 269
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Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does either of the following acts in relation to
electronic rights management information that relates to the
work or subject-matter:
(i) distributes the electronic rights management
information with the intention of trading or obtaining a
commercial advantage or profit;
(ii) imports the electronic rights management information
into Australia with the intention of trading or obtaining
a commercial advantage or profit; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the
work or subject-matter without the permission of the
owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the
work or subject-matter with the permission of the owner
or exclusive licensee of the copyright but the
information has been altered without that permission;
and
(e) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright and the
person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite
section 4G of the Crimes Act 1914.
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
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270 Copyright Act 1968
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(b) the person does either of the following acts in relation to
electronic rights management information that relates to the
work or subject-matter:
(i) distributes the electronic rights management
information in preparation for, or in the course of,
trading or in preparation for, or in the course of,
obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information
into Australia in preparation for, or in the course of,
trading or in preparation for, or in the course of,
obtaining a commercial advantage or profit; and
(c) the person does so without the permission of the owner or
exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the
work or subject-matter without the permission of the
owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the
work or subject-matter with the permission of the owner
or exclusive licensee of the copyright but the
information has been altered without that permission;
and
(e) the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
132AT Defences
Law enforcement and national security
(1) This Subdivision does not apply in respect of anything lawfully
done for the purposes of law enforcement or national security by or
on behalf of:
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Section 132AT
Copyright Act 1968 271
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(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code).
Certain public institutions etc.
(2) This Subdivision does not apply in respect of anything lawfully
done by the following in performing their functions:
(a) a library (other than a library that is conducted for the profit,
direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in
subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non-commercial broadcaster, including:
(i) a body that provides a national broadcasting service
within the meaning of the Broadcasting Services Act
1992; and
(ii) a body that holds a community broadcasting licence
within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit
might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) This Subdivision does not apply in respect of anything lawfully
done by a person in connection with a work or other subject-matter
if:
(a) the person has custody of the work or other subject-matter
under an arrangement referred to in section 64 of the
Archives Act 1983; and
(b) under subsection (2), it would be lawful for the National
Archives of Australia to do that thing.
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Section 132AU
272 Copyright Act 1968
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Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
Subdivision G—Evidence
132AU Prosecution to prove profit
(1) This section applies if, in the prosecution of an offence against this
Division, either of the following questions is relevant:
(a) whether the defendant intended to obtain a profit;
(b) whether the defendant did something for, in preparation for,
or in the course of, obtaining a profit.
(2) The burden of proving that any advantage, benefit or gain does not
result from, or is not associated with, any private or domestic use
of any copyright material is on the prosecution.
Note: For the purposes of this Division, section 132AA defines profit as not
including any advantage, benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated with, the person’s private or domestic use of any copyright material.
132A Presumptions in relation to subsistence and ownership of
copyright
(1) This section applies to a prosecution for an offence against this
Division, except section 132AM, in relation to a work or other
subject matter.
Labels or marks
(2) If a copy of the work or other subject matter, or the packaging or
container in which the copy is packaged or contained, bears a label
or mark stating the year and place of the first publication, or of the
making, of the work or other subject matter, then that year and
place are presumed to be as stated on the label or mark, unless the
contrary is established.
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Section 132AAA
Copyright Act 1968 273
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(3) If a copy of the work or other subject matter, or the packaging or
container in which the copy is packaged or contained, bears a label
or mark stating that a person was the owner of copyright in the
work or other subject matter at a particular time, then the person is
presumed to have been the owner of the copyright at the time,
unless the contrary is established.
Foreign certificates
(4) If a certificate or other document issued in a qualifying country in
accordance with a law of that country states the year and place of
the first publication, or of the making, of the work or other subject
matter, then that year and place are presumed to be as stated in the
certificate or document, unless the contrary is established.
(5) If a certificate or other document issued in a qualifying country in
accordance with a law of that country states that a person was the
owner of copyright in the work or other subject matter at a
particular time, then the person is presumed to have been the owner
of the copyright at the time, unless the contrary is established.
(6) For the purposes of this section, a document purporting to be a
certificate or document referred to in subsection (4) or (5) is, unless
the contrary intention is established, taken to be such a certificate
or document.
132AAA Presumptions relating to computer programs
(1) This section applies to a prosecution for an offence against this
Division, except section 132AM, relating to copyright in a literary
work that is a computer program if:
(a) articles or things embodying all or part of the program have
been supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the articles or things, or their
containers, bore a label or other mark consisting of the letter
“C” in a circle accompanied by a specified year and the name
of a person.
(2) It is presumed that:
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274 Copyright Act 1968
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(a) the computer program is an original literary work; and
(b) the computer program was first published in the year; and
(c) the person was the owner of copyright in the program when
and where the articles, things or containers were labelled or
marked;
unless the contrary is established.
(3) A presumption about a person under subsection (2) does not imply
that the person was the only owner of copyright in the program
when and where the articles, things or containers were labelled or
marked.
132B Presumptions relating to sound recordings
(1) This section applies to a prosecution for an offence against this
Division, except section 132AM, relating to copyright in a sound
recording if:
(a) records embodying all or part of the recording have been
supplied (by sale or otherwise) to the public; and
(b) at the time of the supply, the records or their containers bore
a label or other mark.
(2) If the label or other mark contained a statement described in an
item of the table, the matter described in the item is presumed,
unless the contrary is established.
Statements and matters to be presumed unless the contrary is established
Item Statement Matter presumed
1 A specified person was the maker of
the recording
The person was the maker of the
recording
2 The recording was first published in
a specified year
The recording was first published in
the year
3 The recording was first published in
a specified country
The recording was first published in
the country
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Section 132C
Copyright Act 1968 275
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(3) If the label or mark consisted of the letter “P” in a circle
accompanied by a specified year and the name of a person, it is
presumed that:
(a) the recording was first published in the year; and
(b) the person was the owner of copyright in the recording when
and where the records or containers were labelled or marked;
unless the contrary is established.
(4) A presumption about a person under this section does not imply
that the person was:
(a) the only maker of the recording; or
(b) the only owner of copyright in the recording when and where
the records or containers were labelled or marked.
132C Presumptions relating to films
Presumption about film maker
(1) Subsection (2) applies to a prosecution for an offence against this
Division, except section 132AM, relating to copyright in a
cinematograph film if:
(a) copies of the film were made available to the public; and
(b) a person’s name appeared on the copies in such a way as to
imply that the person was the maker of the film; and
(c) if the person is not a body corporate—the name is his or her
true name or a name by which he or she is commonly known.
(2) It is presumed that:
(a) the person is the maker of the film; and
(b) the person made the film in circumstances to which
subsection 98(3) does not apply;
unless the contrary is established.
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276 Copyright Act 1968
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Presumption about time of making and owner of copyright
(3) Subsection (4) applies to a prosecution for an offence against this
Division, except section 132AM, relating to copyright in a
cinematograph film, if:
(a) articles or things embodying the film have been supplied
commercially; and
(b) at the time of the supply, the articles or things, or their
containers, bore a label or other mark consisting of the letter
“C” in a circle accompanied by a specified year and the name
of a person.
(4) It is presumed that:
(a) the film was first made in the year; and
(b) the person was the owner of copyright in the film when and
where the articles, things or containers were labelled or
marked;
unless the contrary is established.
(5) A presumption about a person under subsection (4) does not imply
that the person was the only owner of copyright in the film when
and where the articles, things or containers were labelled or
marked.
Subdivision H—Extra court orders
133 Destruction or delivery up of infringing copies etc.
(1) This section applies if:
(a) a person is charged before a court with an offence against this
Division, except section 132AM, whether or not the person is
convicted of the offence; and
(b) the person possesses an article that appears to the court to be
any of the following:
(i) a circumvention device used or intended to be used in
conduct constituting an offence against Subdivision E;
(ii) an infringing copy;
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Section 133A
Copyright Act 1968 277
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(iii) a device or equipment used or intended to be used for
making infringing copies.
(2) The court may order that the article be destroyed, delivered up to
the owner of the copyright concerned or dealt with as the court
thinks fit.
Subdivision I—Procedure and jurisdiction
133A Courts in which offences may be prosecuted
(1) Prosecutions for offences against this Division may be brought in
the Federal Court of Australia or in any other court of competent
jurisdiction.
(2) However, the Federal Court of Australia does not have jurisdiction
to hear or determine prosecutions for indictable offences, despite
section 15C of the Acts Interpretation Act 1901.
(3) The Federal Court of Australia has jurisdiction to hear and
determine prosecutions of the following offences against this
Division:
(a) summary offences;
(b) offences of strict liability.
133B Infringement notices
(1) The regulations may make provision enabling a person who is
alleged to have committed an offence of strict liability against this
Division to do both of the following as an alternative to
prosecution:
(a) pay a penalty to the Commonwealth;
(b) forfeit to the Commonwealth:
(i) each article (if any) that is alleged to be an infringing
copy of a work or other subject-matter and that is
alleged to have been involved in the commission of the
offence; and
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278 Copyright Act 1968
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(ii) each device (if any) that is alleged to have been made to
be used for making an infringing copy of a work or
other subject-matter and that is alleged to have been
involved in the commission of the offence.
Note: Regulations made for this purpose will make provision to the effect
that a prosecution of an alleged offender will be avoided if the alleged
offender both pays a penalty to the Commonwealth and forfeits to the
Commonwealth all relevant articles and devices (if any).
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
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Section 134
Copyright Act 1968 279
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Division 6—Miscellaneous
134 Limitation of actions in respect of infringement of copyright
(1) An action shall not be brought for an infringement of copyright or
in respect of the conversion or detention of an infringing copy, or
of a device (including a circumvention device) used or intended to
be used for making infringing copies, after the expiration of six
years from the time when the infringement took place or the
infringing copy or device was made, as the case may be.
(2) An action may not be brought under section 116AN, 116AO,
116AP, 116B, 116C or 116CA in respect of an act done by a
person if more than 6 years have elapsed from the time when the
act was done.
134A Affidavit evidence
(1) Subject to subsection (2), at the trial of a proceeding, being:
(a) an action brought by virtue of this Part; or
(b) a prosecution for an offence against this Act;
evidence that:
(c) at a particular time, copyright subsisted in the work or other
subject-matter to which the proceeding relates; or
(d) at a particular time, copyright in that work or subject-matter
was owned by, or exclusively licensed to, a particular person;
or
(e) at a particular time, copyright in that work or subject-matter
was not owned by, or exclusively licensed to, a particular
person; or
(f) a particular act was done without the licence of the owner of
the copyright, or of the exclusive licensee of the copyright, in
that work or subject-matter;
may be given by affidavit.
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Section 134A
280 Copyright Act 1968
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(2) If a party to a proceeding referred to in subsection (1) desires in
good faith that the person who made an affidavit referred to in that
subsection that is proposed to be used in the proceeding be
cross-examined with respect to the matters in the affidavit, the
affidavit may not be used in the proceeding unless the person
appears as a witness for such cross-examination or the court in
which the proceeding is being tried, in its discretion, permits the
affidavit to be used without the person so appearing.
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Section 134B
Copyright Act 1968 281
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Division 7—Seizure of imported copies of copyright
material
134B Interpretation
In this Division:
action period, in relation to particular seized copies, means the
period prescribed by the regulations after notice of a claim for
release of the copies is given to the objector under
section 135AED.
claim period, in relation to particular seized copies, means the
period prescribed by the regulations after notice of seizure of the
copies is given to the importer under section 135AC.
Comptroller-General of Customs means the person who is the
Comptroller-General of Customs in accordance with
subsection 11(3) or 14(2) of the Australian Border Force Act 2015.
copy, in relation to copyright material, means:
(a) if the copyright material is a work—an article in which the
work is embodied; or
(b) if the copyright material is a sound recording, or a sound
broadcast as recorded in a sound recording—a record
embodying the sound recording; or
(c) if the copyright material is a cinematograph film or a
television broadcast as recorded in a cinematograph film—an
article in which the visual images or sounds comprising the
film are embodied; or
(d) if the copyright material is a published edition of a work—an
article in which the edition is embodied.
copyright material means:
(a) a work; or
(b) a sound recording; or
(c) a cinematograph film; or
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(d) a published edition of a work; or
(e) a television or sound broadcast as recorded in a
cinematograph film or a sound recording.
importer, in relation to copies of copyright material, includes a
person who or which is, or holds himself, herself or itself out to be,
the owner or importer of the goods comprising the copies.
objector, in relation to particular seized copies, means the person
who gave the notice under subsection 135(2) as a result of the
giving of which the copies were seized.
owner, in relation to the copyright in copyright material, includes
an exclusive licensee of the copyright in the material.
personal information has the same meaning as in the Privacy Act
1988.
seized copies means copies seized under subsection 135(7).
working day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory.
135 Restriction of importation of copies of works etc.
(1) In this section:
(a) a reference to Australia does not include a reference to the
external Territories; and
(b) a reference to importation into Australia does not include a
reference to importation from such a Territory.
(2) A person may give the Comptroller-General of Customs a written
notice stating:
(a) that the person is the owner of the copyright in copyright
material; and
(b) that the person objects to the importation into Australia of
copies of the copyright material to which this section applies.
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Section 135
Copyright Act 1968 283
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(3) A notice under subsection (2):
(a) is to be given together with any prescribed document; and
(b) is to be accompanied by the prescribed fee (if any).
(4) This section applies to a copy of copyright material if the making
of the copy would, if it had been carried out in Australia by the
person importing the copy, have constituted an infringement of the
copyright in the copyright material.
(5) Unless it is revoked under subsection (6) or declared to be
ineffective under subsection (6A), a notice under subsection (2)
remains in force until:
(a) the end of the period of 4 years commencing on the day on
which the notice was given; or
(b) the end of the period for which the copyright in the copyright
material to which the notice relates is to subsist;
whichever is the earlier.
(6) A notice under subsection (2) may be revoked by written notice
given to the Comptroller-General of Customs by the person who
gave the first-mentioned notice or by a subsequent owner of the
copyright in the copyright material to which the notice relates.
(6A) If the Comptroller-General of Customs believes, on reasonable
grounds, that it is no longer appropriate to give effect to a notice
given under subsection (2), the Comptroller-General of Customs
may, by writing, declare the notice to be ineffective.
Note: Subsection 195B(3) requires the Comptroller-General of Customs to
notify the person who gave the notice of the decision declaring the
notice to be ineffective.
(7) If:
(a) a notice has been given under subsection (2) in respect of
copyright material; and
(b) the notice has not been declared to be ineffective or revoked;
and
(c) a person imports copies of the copyright material to which
this section applies into Australia for the purpose of:
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(i) selling, letting for hire, or by way of trade offering or
exposing for sale or hire, the copies; or
(ii) distributing the copies for the purpose of trade; or
(iii) distributing the copies for any other purpose to an extent
that will affect prejudicially the owner of the copyright
in the copyright material; or
(iv) by way of trade exhibiting the copies in public; and
(d) the copies are subject to customs control under the Customs
Act 1901;
the Comptroller-General of Customs may seize the copies.
(8) The regulations may make provision for or in relation to:
(a) the forms of notices under this section; and
(b) the times at which, and the manner in which, notices are to be
given; and
(c) the giving of information and evidence to the
Comptroller-General of Customs.
(9) The regulations may contain provisions similar to the provisions of
this Division in relation to the importation into external Territories
(other than importation from Australia or from another such
Territory) of copies of copyright material.
(10) This Division does not apply to the importation into Australia of
copies of copyright material whose importation does not constitute
an infringement of copyright because of section 44A, 44D, 44E,
44F, 112A, 112D or 112DA.
(10A) This Division does not apply to the importation into Australia of
copies of copyright material whose importation does not constitute
an infringement of copyright because of section 44C or 112C.
135AA Decision not to seize unless expenses are covered
(1) Subject to subsection (2), the Comptroller-General of Customs
may decide not to seize the copies under subsection 135(7) unless
he or she has been given by the objector (or by one or more of the
objectors) a written undertaking acceptable to the
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Section 135AB
Copyright Act 1968 285
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Comptroller-General of Customs to repay to the Commonwealth
the expenses of seizing the copies.
(2) The Comptroller-General of Customs may decide not to seize the
copies under subsection 135(7) unless he or she has been given by
the objector (or one or more of the objectors), instead of an
undertaking, security in an amount that the Comptroller-General of
Customs considers sufficient to repay to the Commonwealth the
expenses of seizing the copies if:
(a) an amount payable under an undertaking given by the
objector (or one or more of the objectors) in relation to other
copies has not been paid in accordance with the undertaking;
and
(b) the Comptroller-General of Customs considers it reasonable
in all the circumstances to require the security.
(3) An undertaking may be withdrawn or varied if the
Comptroller-General of Customs consents in writing to a written
request from the objector or objectors to do so.
(4) In this section:
expenses of seizing the copies means the expenses that may be
incurred by the Commonwealth if the copies were seized.
135AB Secure storage of seized copies
Seized copies must be taken to such secure place as the
Comptroller-General of Customs directs.
135AC Notice of seizure
(1) As soon as is practicable after copies are seized under
subsection 135(7), the Comptroller-General of Customs must give
to the importer and the objector, either personally or by post, a
written notice (the seizure notice) identifying the copies and
stating that the identified copies have been seized.
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Section 135AC
286 Copyright Act 1968
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(2) The seizure notice must state that the copies will be released to the
importer if:
(a) the importer makes a claim for the release of the copies
within the claim period; and
(b) the objector has not, by the end of the action period:
(i) instituted an action for infringement of copyright in
relation to the copies; and
(ii) given the Comptroller-General of Customs written
notice of that action.
(3) The seizure notice must also:
(a) set out the claim period for the copies; and
(b) set out the action period for the copies and state that the
action period will begin only if the importer makes a claim
for the release of the copies; and
(c) if the notice is given to the objector—state the name and the
address of the place of business or residence of the importer
(if known); and
(d) if the notice is given to the importer—state the name and the
address of the place of business or residence of:
(i) the objector; or
(ii) if the objector has nominated a person to be the
objector’s agent or representative for the purposes of
this Division—that person.
(8) The Comptroller-General of Customs may, at any time after the
copies are seized, give to the objector:
(a) the name, and the address of the place of business or
residence, of any person or body (whether in or outside
Australia) that made arrangements, on behalf of the importer,
for the copies to be brought to Australia or any information
that the Comptroller-General of Customs has, and believes
on reasonable grounds may help in identifying and locating
such a person or body; and
(b) any information (including personal information) that the
Comptroller-General of Customs has, and believes on
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Section 135AD
Copyright Act 1968 287
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reasonable grounds may be relevant for the purpose of
identifying and locating the importer.
135AD Inspection, release etc. of seized copies
(1) The Comptroller-General of Customs may permit the objector or
the importer to inspect the seized copies.
(2) If the objector gives the Comptroller-General of Customs the
requisite undertakings, the Comptroller-General of Customs may
permit the objector to remove one or more samples of the seized
copies from the custody of the Comptroller-General of Customs for
inspection by the objector.
(3) If the importer gives the Comptroller-General of Customs the
requisite undertakings, the Comptroller-General of Customs may
permit the importer to remove one or more samples of the seized
copies from the custody of the Comptroller-General of Customs for
inspection by the importer.
(4) The requisite undertakings are undertakings in writing that the
person giving the undertaking will:
(a) return the sample copies to the Comptroller-General of
Customs at a specified time that is satisfactory to the
Comptroller-General of Customs; and
(b) take reasonable care to prevent damage to the sample copies.
(5) If the Comptroller-General of Customs permits inspection of the
seized copies, or the removal of sample copies, by the objector in
accordance with this section, the Commonwealth is not liable to
the importer for any loss or damage suffered by the importer
arising out of:
(a) damage to any of the seized copies incurred during that
inspection; or
(b) anything done by the objector or any other person to, or in
relation to, sample copies removed from the custody of the
Comptroller-General of Customs or any use made by the
objector of such sample copies.
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Section 135AE
288 Copyright Act 1968
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135AE Forfeiture of seized copies by consent
(1) Subject to subsection (2), the importer may, by written notice to
the Comptroller-General of Customs, consent to the seized copies
being forfeited to the Commonwealth.
(2) The notice must be given before any action for infringement of
copyright in relation to the copies is instituted.
(3) If the importer gives such a notice, the copies are forfeited to the
Commonwealth.
135AEA Claim for release of seized copies
(1) The importer may make a claim to the Comptroller-General of
Customs for the release of seized copies.
(2) The claim must be made before the end of the claim period for the
copies.
(3) The claim must:
(a) be in the form (if any) prescribed by the regulations; and
(b) include the information prescribed by the regulations.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for
providing false or misleading information or documents.
135AEB Seized copies not claimed are forfeited
(1) Seized copies are forfeited to the Commonwealth if a claim for the
release of the goods is not made within the claim period for the
copies.
(2) However, if the Comptroller-General of Customs allows a late
claim for the copies (see section 135AEC), the copies are taken not
to have been forfeited.
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Section 135AEC
Copyright Act 1968 289
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135AEC Late claim for release of seized copies
(1) The Comptroller-General of Customs may allow the importer to
make a claim (the late claim) to the Comptroller-General of
Customs for the release of seized copies after the end of the claim
period for the copies.
(2) The Comptroller-General of Customs may allow the late claim
only if:
(a) an action for infringement of copyright in relation to the
copies has not been instituted; and
(b) the Comptroller-General of Customs considers it reasonable
in the circumstances; and
(c) the copies have not been disposed of under section 135AI.
135AED Objector to be notified of claim
(1) If the importer makes a claim for the release of seized copies, the
Comptroller-General of Customs must, as soon as practicable, give
notice of the claim to the objector.
(2) The notice:
(a) must be in writing; and
(b) may include any information that the Comptroller-General of
Customs has, and believes on reasonable grounds may be
relevant, for the purpose of identifying and locating either or
both of the following:
(i) the importer of the copies;
(ii) any other person or body (whether in or outside
Australia) that made arrangements for the copies to be
brought to Australia.
135AF Release of seized copies to importer
(1) The Comptroller-General of Customs must release seized copies to
the importer if:
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(a) the objector gives written notice to the Comptroller-General
of Customs stating that the objector consents to the release of
the seized copies; and
(b) the copies have not been disposed of under section 135AI.
(2) The Comptroller-General of Customs may release seized copies to
the importer at any time if:
(a) the Comptroller-General of Customs, having regard to
information that has come to his or her knowledge after the
copies were seized, is satisfied that there are no reasonable
grounds for believing that copyright has been infringed by
the importation of the copies; and
(b) the objector has not brought an action for infringement of
copyright in relation to the copies.
(3) The Comptroller-General of Customs must release seized copies to
the importer if:
(a) the importer has made a claim for the release of the copies;
and
(b) the objector has not, by the end of the action period:
(i) instituted an action for infringement of copyright in
relation to the copies; and
(ii) given the Comptroller-General of Customs written
notice of that action.
(4) The Comptroller-General of Customs must release seized copies to
the importer if:
(a) the importer has made a claim for the release of the copies;
and
(b) an action for infringement of copyright has been instituted in
relation to the copies; and
(c) at the end of a period of 20 working days commencing on the
day on which the action was instituted, there is not in force
an order of the court in which the action was instituted
preventing the release of the copies.
(5) This section has effect subject to section 135AH.
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Section 135AFA
Copyright Act 1968 291
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135AFA Copies released but not collected are forfeited
Seized copies are forfeited to the Commonwealth if:
(a) the copies are released by the Comptroller-General of
Customs to the importer; and
(b) the importer does not take possession of the copies within 90
days of the release.
135AG Provision relating to actions for infringement of copyright
(1) In this section, infringement action means an action for an
infringement of copyright constituted by the importation of seized
copies.
(2) The court in which an infringement action is pending may, on the
application of a person having a sufficient interest in the
subject-matter of the action, allow the person to be joined as a
defendant to the action.
(3) The Comptroller-General of Customs is entitled to be heard on the
hearing of an infringement action.
(4) In addition to any relief that may be granted apart from this
section, the court may:
(a) at any time, order that the seized copies be released to the
importer subject to such conditions (if any) as the court
thinks fit; or
(b) order that the seized copies not be released to the importer
before the end of a specified period; or
(c) order that the goods be forfeited to the Commonwealth.
(5) A court may not make an order under paragraph (4)(a) if it is
satisfied that the Comptroller-General of Customs is required or
permitted, under any other law of the Commonwealth, to retain
control of the seized copies.
(6) The Comptroller-General of Customs must comply with an order
made under subsection (4).
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Section 135AH
292 Copyright Act 1968
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(7) If:
(a) the court decides that the relevant copyright was not
infringed by the importation of the seized copies; and
(b) a defendant to the infringement action satisfies the court that
he or she has suffered loss or damage as a result of the
seizure of the copies;
the court may order the objector to pay to that defendant such
amount as the court determines as compensation for any part of
that loss or damage that is attributable to a period beginning on or
after the day on which the action was commenced.
135AH Retention of control of seized copies
In spite of section 135AF, in a case in which no order has been
made under subsection 135AG(4) in relation to seized copies, the
Comptroller-General of Customs is not obliged to release or
dispose of the copies if the Comptroller-General of Customs is
required or permitted, under any other law of the Commonwealth,
to retain control of the copies.
135AI Disposal of seized copies forfeited to the Commonwealth
(1) Seized copies forfeited to the Commonwealth must be disposed of:
(a) in the manner prescribed by the regulations; or
(b) if no manner of disposal is so prescribed—as the
Comptroller-General of Customs directs.
(2) However, copies forfeited under section 135AEB must not be
disposed of until 30 days after their forfeiture.
(3) Subsection (1) does not require the disposal of copies that are
required in relation to an action for infringement of copyright.
Right of compensation in certain circumstances
(4) Despite the forfeiture of seized copies to the Commonwealth, a
person may apply to a court of competent jurisdiction under this
section for compensation for the disposal of the copies.
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Section 135AJ
Copyright Act 1968 293
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(5) A right to compensation exists if:
(a) the copies did not infringe the objector’s copyright; and
(b) the person establishes, to the satisfaction of the court:
(i) that he or she was the owner of the copies immediately
before they were forfeited; and
(ii) that there were circumstances providing a reasonable
excuse for the failure to make a claim for the release of
the copies.
(6) If a right to compensation exists under subsection (4), the court
must order the payment by the Commonwealth to the person of an
amount equal to the market value of the copies at the time of their
disposal.
135AJ Failure to meet Commonwealth’s expenses of seizure
(1) If an amount payable under an undertaking in relation to copies
covered by a notice given under section 135 is not paid in
accordance with the undertaking, the Comptroller-General of
Customs may decide not to seize copies covered by the notice until
the amount owing is paid.
(2) An amount not paid under an undertaking:
(a) is a debt due by the objector, or by the objectors jointly or
each of them separately, to the Commonwealth; and
(b) may be recovered by an action taken in a court of competent
jurisdiction.
(3) If the amount paid under an undertaking in relation to copies
covered by a notice given under section 135 is in accordance with
the undertaking but is not sufficient to meet the expenses incurred
by the Commonwealth as a result of the action taken by the
Comptroller-General of Customs under this Division because of
the notice, the amount of the difference between those expenses
and the amount paid:
(a) is a debt due by the objector, or by the objectors jointly or
each of them separately, to the Commonwealth; and
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294 Copyright Act 1968
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(b) may be recovered by an action taken in a court of competent
jurisdiction.
(4) If security given under subsection 135AA(2) by the objector or
objectors who gave notice under section 135 is not sufficient to
meet the expenses incurred by the Commonwealth as a result of the
action taken by the Comptroller-General of Customs under this
Division because of the notice, the amount of the difference
between those expenses and the amount of security:
(a) is a debt due by the objector, or by the objectors jointly or
each of them separately, to the Commonwealth; and
(b) may be recovered by an action taken in a court of competent
jurisdiction.
135AK Immunity of the Commonwealth
The Commonwealth is not liable for any loss or damage suffered
by a person:
(a) because of the seizure of copies, or the failure of the
Comptroller-General of Customs to seize copies, under this
Division; or
(b) because of the release of any seized copies.
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Unauthorised access to encoded broadcasts Part VAA
Preliminary Division 1
Section 135AL
Copyright Act 1968 295
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Part VAA—Unauthorised access to encoded
broadcasts
Division 1—Preliminary
135AL Definitions
In this Part:
action means a proceeding of a civil nature between parties,
including a counterclaim.
broadcaster means a person licensed under the Broadcasting
Services Act 1992 to provide a broadcasting service (as defined in
that Act) by which an encoded broadcast is delivered.
channel provider means a person who:
(a) packages a channel (which might include programs produced
by the person); and
(b) supplies a broadcaster with the channel; and
(c) carries on a business that involves the supply of the channel;
where, apart from any breaks for the purposes of the transmission
of incidental matter, the channel is broadcast as part of an encoded
broadcast service.
decoder means a device (including a computer program) designed
or adapted to decrypt, or facilitate the decryption of, an encoded
broadcast.
encoded broadcast means:
(a) a subscription broadcast; or
(b) a broadcast (except a radio broadcast or subscription
broadcast) that is encrypted and is delivered by a commercial
broadcasting service, or a national broadcasting service,
within the meaning of the Broadcasting Services Act 1992.
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Section 135AM
296 Copyright Act 1968
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subscription broadcast means a broadcast that is encrypted and is
made available by the broadcaster only to persons authorised by
the broadcaster to access the broadcast in intelligible form.
unauthorised decoder means a device (including a computer
program) designed or adapted to decrypt, or facilitate the
decryption of, an encoded broadcast without the authorisation of
the broadcaster.
135AM Counterclaim
In the application of this Part in relation to a counterclaim,
references to the defendant are to be read as references to the
plaintiff.
135AN This Part does not apply to law enforcement activity etc.
This Part does not apply in relation to anything lawfully done for
the purposes of law enforcement or national security by or on
behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
Note: A defendant in proceedings for an offence against this Part bears an
evidential burden in relation to the matter in this section (see
subsection 13.3(3) of the Criminal Code).
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Actions Division 2
Section 135AOA
Copyright Act 1968 297
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Division 2—Actions
Subdivision A—Actions relating to unauthorised decoders
135AOA Making or dealing with unauthorised decoder
(1) A channel provider, or anyone with an interest in the copyright in
either an encoded broadcast or the content of an encoded
broadcast, may bring an action against a person if:
(a) the person does any of the acts described in subsection (2)
with an unauthorised decoder; and
(b) the person knows, or ought reasonably to know, that the
unauthorised decoder will be used to enable someone to gain
access to an encoded broadcast without the authorisation of
the broadcaster.
(2) The acts with the unauthorised decoder are as follows:
(a) making the unauthorised decoder;
(b) selling the unauthorised decoder or letting it for hire;
(c) by way of trade, or with the intention of obtaining a
commercial advantage or profit, offering or exposing the
unauthorised decoder for sale or hire;
(d) exhibiting the unauthorised decoder in public by way of trade
or with the intention of obtaining a commercial advantage or
profit;
(e) distributing the unauthorised decoder (including by exporting
it from Australia) for the purpose of trade, or for a purpose
that will prejudicially affect a channel provider or anyone
with an interest in the copyright in either an encoded
broadcast or the content of an encoded broadcast;
(f) importing the unauthorised decoder into Australia for the
purpose of:
(i) selling the unauthorised decoder or letting it for hire; or
(ii) by way of trade, or with the intention of obtaining a
commercial advantage or profit, offering or exposing
the unauthorised decoder for sale or hire; or
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Section 135AOB
298 Copyright Act 1968
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(iii) exhibiting the unauthorised decoder in public by way of
trade or with the intention of obtaining a commercial
advantage or profit; or
(iv) distributing the unauthorised decoder for the purpose of
trade, or for a purpose that will prejudicially affect a
channel provider or anyone with an interest in the
copyright in either an encoded broadcast or the content
of an encoded broadcast;
(g) making the unauthorised decoder available online to an
extent that will prejudicially affect a channel provider or
anyone with an interest in the copyright in either an encoded
broadcast or the content of an encoded broadcast.
(3) The action may be brought only within 6 years of the act.
(4) In an action under this section it must be presumed that the
defendant knew, or ought reasonably to have known, that the
unauthorised decoder would be used as described in
paragraph (1)(b), unless the defendant proves otherwise.
Subdivision B—Actions relating to decoders for subscription
broadcasts
135AOB Making decoder available online
(1) This section permits an action to be brought against a person if:
(a) a decoder was supplied (to the person or someone else) by, or
with the authorisation of, the broadcaster (the supplying
broadcaster) of a subscription broadcast; and
(b) the person makes the decoder available online to an extent
that will prejudicially affect any of the following persons (the
affected parties):
(i) anyone with an interest in the copyright in a
subscription broadcast by the supplying broadcaster;
(ii) anyone with an interest in the copyright in the content of
a subscription broadcast by the supplying broadcaster;
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(iii) a channel provider who supplies the supplying
broadcaster with a channel for a subscription broadcast;
and
(c) the person knows, or ought reasonably to know, that the
decoder will be used to enable someone to gain access to a
subscription broadcast without the authorisation of the
broadcaster.
(2) The action may be brought by any of the affected parties but only
within 6 years of the person first making the decoder available
online as described in paragraph (1)(b).
(3) In an action under this section it must be presumed that the
defendant knew, or ought reasonably to have known, that the
decoder would be used as described in paragraph (1)(c), unless the
defendant proves otherwise.
Subdivision C—Actions for unauthorised access to encoded
broadcasts
135AOC Causing unauthorised access
(1) This section permits an action to be brought against a person if:
(a) without the authorisation of the broadcaster of an encoded
broadcast, the person does an act causing the person or
anyone else to gain access in intelligible form to the
broadcast or sounds or images from the broadcast; and
(b) the access will prejudicially affect any of the following
persons (the affected parties):
(i) anyone with an interest in the copyright in an encoded
broadcast by the broadcaster;
(ii) anyone with an interest in the copyright in the content of
an encoded broadcast by the broadcaster;
(iii) a channel provider who supplies the broadcaster with a
channel for an encoded broadcast; and
(c) the person knows, or ought reasonably to know, that the
access is not authorised by the broadcaster.
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Section 135AOD
300 Copyright Act 1968
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Note: Paragraph (a)—examples of causing a person to gain access to the
broadcast or sounds or images from the broadcast include:
(a) using, or authorising the use of, a decoder so the person gains access to the broadcast, sounds or images; and
(b) distributing, or authorising the distribution of, the sounds or images to the person after they are obtained from the broadcast using a decoder.
(2) The action may be brought by any of the affected parties but only
within 6 years of the act.
(3) Subsection (1) does not apply to:
(a) an act consisting merely of one or more of the following:
(i) starting the playing of sounds or images in or from the
broadcast on a device (for example by switching the
device on);
(ii) listening to sounds in or from the broadcast and/or
seeing images in or from the broadcast;
(iii) distributing the sounds or images within a single
dwelling that is occupied by a single household and is
the subject of an arrangement involving a member of
the household and the broadcaster about authorisation of
private access to the broadcast; or
(b) access to the sounds or images gained from:
(i) a cinematograph film, or sound recording, made of the
encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (b)—the making of such a film, recording or copy may be
an infringement of copyright: see paragraphs 87(a) and (b) and
section 101.
135AOD Unauthorised commercial use of subscription broadcast
(1) This section permits an action to be brought against a person if:
(a) without the authorisation of the broadcaster of a subscription
broadcast, the person uses the broadcast, or sounds or images
from the broadcast, by way of trade or with the intention of
obtaining a commercial advantage or profit; and
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(b) the use prejudicially affects any of the following persons (the
affected parties):
(i) anyone with an interest in the copyright in the
broadcast;
(ii) anyone with an interest in the copyright in any content
of the broadcast;
(iii) the channel provider who supplied the broadcaster with
the channel for the broadcast; and
(c) the person knows, or ought reasonably to know, that the use
is not authorised by the broadcaster.
(2) The action may be brought by any of the affected parties but only
within 6 years of the use.
Subdivision D—Court orders
135AOE Relief
(1) The relief that a court may grant in an action under this Division
includes an injunction (subject to the terms, if any, the court thinks
fit) and either damages or an account of profits.
(2) In assessing damages, the court may award such additional
damages as it considers appropriate, having regard to:
(a) the flagrancy with which the defendant did any of the
relevant acts; and
(b) the need to deter acts similar to the relevant acts; and
(c) any benefit shown in an action under Subdivision A or B to
have accrued to the defendant as a result of making or
dealing with the decoder; and
(d) any benefit shown in an action under Subdivision C to have
accrued to the defendant or any trade or business carried on
by, or in association with, the defendant; and
(e) all other relevant matters.
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Section 135AOF
302 Copyright Act 1968
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135AOF Destruction of decoder
In an action under this Division, the court may order that the
relevant decoder (if any) be destroyed or dealt with as specified in
the order.
Subdivision E—Jurisdiction and appeals
135AP Exercise of jurisdiction
The jurisdiction of the Supreme Court of a State or Territory in an
action under the Part is to be exercised by a single Judge of the
Court.
135AQ Appeals
(1) Subject to subsection (2), a decision of a court of a State or
Territory (however constituted) under this Part is final and
conclusive.
(2) An appeal lies from a decision of a court of a State or Territory
under this Part:
(a) to the Federal Court of Australia; or
(b) by special leave of the High Court, to the High Court.
135AR Jurisdiction of Federal Court of Australia
Jurisdiction is conferred on the Federal Court of Australia with
respect to actions under this Part.
135AS Jurisdiction of Federal Circuit Court of Australia
Jurisdiction is conferred on the Federal Circuit Court of Australia
with respect to actions under this Part.
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Section 135ASA
Copyright Act 1968 303
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Division 3—Offences
Subdivision A—Offences
135ASA Making unauthorised decoder
(1) A person commits an offence if:
(a) the person makes an unauthorised decoder; and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASB Selling or hiring unauthorised decoder
(1) A person commits an offence if:
(a) the person sells or lets for hire an unauthorised decoder; and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASC Offering unauthorised decoder for sale or hire
(1) A person commits an offence if:
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Section 135ASD
304 Copyright Act 1968
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(a) with the intention of obtaining a commercial advantage or
profit, the person offers or exposes an unauthorised decoder
for sale or hire; and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) A person commits an offence if:
(a) the person offers or exposes an unauthorised decoder for sale
or hire; and
(b) the offer or exposure is by way of trade; and
(c) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASD Commercially exhibiting unauthorised decoder in public
(1) A person commits an offence if:
(a) the person exhibits an unauthorised decoder in public with
the intention of obtaining a commercial advantage or profit;
and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) A person commits an offence if:
(a) the person exhibits an unauthorised decoder in public; and
(b) the exhibition is by way of trade; and
(c) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
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Section 135ASE
Copyright Act 1968 305
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(3) An offence against subsection (1) or (2) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASE Importing unauthorised decoder commercially
(1) A person commits an offence if:
(a) the person imports an unauthorised decoder into Australia
with the intention of doing any of the following with the
unauthorised decoder:
(i) selling the unauthorised decoder;
(ii) letting the unauthorised decoder for hire;
(iii) offering or exposing the unauthorised decoder for sale
or hire, by way of trade or to obtain a commercial
advantage or profit;
(iv) exhibiting the unauthorised decoder in public by way of
trade or to obtain a commercial advantage or profit;
(v) distributing the unauthorised decoder for trade;
(vi) distributing the unauthorised decoder to obtain a
commercial advantage or profit;
(vii) distributing the unauthorised decoder in preparation for,
or in the course of, engaging in an activity that will
prejudicially affect a channel provider or anyone with
an interest in the copyright in either an encoded
broadcast or the content of an encoded broadcast; and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
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Section 135ASF
306 Copyright Act 1968
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135ASF Distributing unauthorised decoder
(1) A person commits an offence if:
(a) the person distributes (including by exporting from Australia)
an unauthorised decoder with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; or
(iii) engaging in any other activity that will prejudicially
affect a channel provider or anyone with an interest in
the copyright in either an encoded broadcast or the
content of an encoded broadcast; and
(b) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASG Making unauthorised decoder available online
(1) A person commits an offence if:
(a) the person makes an unauthorised decoder available online;
and
(b) the unauthorised decoder is made available online to an
extent that will prejudicially affect a channel provider or
anyone with an interest in the copyright in either an encoded
broadcast or the content of an encoded broadcast; and
(c) the unauthorised decoder will be used to enable a person to
gain access to an encoded broadcast without the authorisation
of the broadcaster.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
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Section 135ASH
Copyright Act 1968 307
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Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASH Making decoder available online for subscription broadcast
(1) A person commits an offence if:
(a) a decoder was supplied (to the person or anyone else) by, or
with the authorisation of, the broadcaster of a subscription
broadcast; and
(b) the person makes the decoder available online; and
(c) the decoder is made available online without the
authorisation of the broadcaster; and
(d) the decoder will be used to enable a person to gain access to a
subscription broadcast without the authorisation of the
broadcaster; and
(e) the decoder is made available online to an extent that will
prejudicially affect any of the following:
(i) anyone with an interest in the copyright in a
subscription broadcast by the broadcaster;
(ii) anyone with an interest in the copyright in the content of
a subscription broadcast by the broadcaster;
(iii) a channel provider who supplies the broadcaster with a
channel for a subscription broadcast.
(2) An offence against subsection (1) is punishable on conviction by a
fine of not more than 550 penalty units or imprisonment for not
more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
135ASI Unauthorised access to subscription broadcast etc.
A person commits an offence if:
(a) the person does an act; and
(b) the act (either alone or in conjunction with other acts) results
in the person gaining access in intelligible form to a
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Section 135ASJ
308 Copyright Act 1968
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subscription broadcast or sounds or images from a
subscription broadcast; and
(c) the access is not authorised by the broadcaster and the person
knows that; and
(d) the act does not consist merely of one or more of the
following:
(i) starting the playing of sounds or images in or from the
broadcast on a device (for example by switching the
device on);
(ii) listening to sounds in or from the broadcast and/or
seeing images in or from the broadcast;
(iii) distributing the sounds or images within a single
dwelling that is occupied by a single household and is
the subject of an arrangement involving a member of
the household and the broadcaster about authorisation of
private access to the broadcast; and
(e) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the
encoded broadcast; or
(ii) a copy of such a film or recording.
Note: The making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
Penalty: 60 penalty units.
135ASJ Causing unauthorised access to encoded broadcast etc.
(1) A person commits an offence if:
(a) the person does an act; and
(b) the act is done by way of trade; and
(c) the act results in the person or anyone else gaining access in
intelligible form to an encoded broadcast or sounds or images
from an encoded broadcast; and
(d) the access is not authorised by the broadcaster; and
(e) the access to the sounds or images is not gained from:
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Section 135ASJ
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(i) a cinematograph film, or sound recording, made of the
encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)—the making of such a film, recording or copy may be
an infringement of copyright: see paragraphs 87(a) and (b) and
section 101.
(2) A person commits an offence if:
(a) the person does an act with the intention of obtaining a
commercial advantage or profit; and
(b) the act results in the person or anyone else gaining access in
intelligible form to an encoded broadcast or sounds or images
from an encoded broadcast; and
(c) the access is not authorised by the broadcaster; and
(d) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the
encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)—the making of such a film, recording or copy may be
an infringement of copyright: see paragraphs 87(a) and (b) and
section 101.
(3) A person commits an offence if:
(a) the person does an act; and
(b) the act results in anyone else gaining access in intelligible
form to an encoded broadcast or sounds or images from an
encoded broadcast; and
(c) the access is not authorised by the broadcaster and the person
knows that; and
(d) the act does not consist merely of one or more of the
following:
(i) starting the playing of sounds or images in or from the
broadcast on a device (for example by switching the
device on);
(ii) distributing the sounds or images within a single
dwelling that is occupied by a single household and is
the subject of an arrangement involving a member of
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Section 135ATA
310 Copyright Act 1968
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the household and the broadcaster about authorisation of
private access to the broadcast; and
(e) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the
encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)—the making of such a film, recording or copy may be
an infringement of copyright: see paragraphs 87(a) and (b) and
section 101.
(4) An offence against subsection (1), (2) or (3) is punishable on
conviction by a fine of not more than 550 penalty units or
imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine (see subsection 4B(3) of the Crimes Act 1914).
Subdivision B—Prosecutions
135ATA Courts in which offences may be prosecuted
(1) Prosecutions for offences against this Division may be brought in
the Federal Court of Australia or in any other court of competent
jurisdiction.
(2) However, the Federal Court of Australia does not have jurisdiction
to hear or determine prosecutions for indictable offences, despite
section 15C of the Acts Interpretation Act 1901.
(3) The Federal Court of Australia has jurisdiction to hear and
determine prosecutions of summary offences against this Division.
(4) Also, section 4J (except subsection 4J(2)) of the Crimes Act 1914
applies in relation to the Federal Court of Australia and an
indictable offence against this Division in the way in which that
section would apply if that court were a court of summary
jurisdiction.
Note: Section 4J of the Crimes Act 1914 lets a court of summary jurisdiction
try indictable offences in certain circumstances and subject to limits
on the penalties the court can impose.
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Section 135AU
Copyright Act 1968 311
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Subdivision C—Further orders by court
135AU Destruction etc. of unauthorised decoders
(1) The court trying a person for an offence against this Division may
order that any article in the person’s possession that appears to the
court to be an unauthorised decoder be destroyed or otherwise dealt
with as specified in the order.
(2) The court may make the order whether the person is convicted of
the offence or not.
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Part VA Copying and communication of broadcasts by educational and other
institutions
Division 1 Preliminary
Section 135A
312 Copyright Act 1968
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Part VA—Copying and communication of
broadcasts by educational and other
institutions
Division 1—Preliminary
135A Interpretation
In this Part:
administering body means a body administering an institution.
agreed notice means a remuneration notice specifying that the
amount of equitable remuneration payable to the collecting society
by the administering body giving the notice is to be assessed on the
basis of an agreed system.
collecting society means the body that is, for the time being,
declared to be the collecting society under section 135P.
institution means:
(a) an educational institution; or
(b) an institution assisting persons with an intellectual disability.
notice holder means the person who is, for the time being,
appointed to be the notice holder under section 135T.
performance has the same meaning as in Part XIA.
performer has the same meaning as in Part XIA.
preview copy means a copy of a broadcast referred to in
section 135F.
records notice means a remuneration notice specifying that the
amount of equitable remuneration payable to the collecting society
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Section 135B
Copyright Act 1968 313
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by the administering body giving the notice is to be assessed on the
basis of a records system.
relevant right holder means:
(a) the owner of the copyright in a work, a sound recording or a
cinematograph film (other than a new owner of the copyright
in a sound recording of a live performance as defined in
section 100AB); or
(b) a performer in a performance.
remuneration notice means a notice referred to in
subsection 135G(1).
rules, in relation to the collecting society, means the provisions of
the memorandum and articles of association of the society.
sampling notice means a remuneration notice specifying that the
amount of equitable remuneration payable to the collecting society
by the administering body giving the notice is to be assessed on the
basis of a sampling system.
135B Copies and communications of broadcasts
In this Part:
(a) a reference to a copy of a broadcast is a reference to a record
embodying a sound recording of the broadcast or a copy of a
cinematograph film of the broadcast; and
(b) a reference to the making of a copy of a broadcast is a
reference to the making of a copy of the whole or a part of
the broadcast; and
(c) a reference to the communication of a copy of a broadcast is
a reference to the communication of a copy of the whole or a
part of the broadcast.
135C Extended operation of this Part
(1) This Part, and the rest of this Act so far as it relates to this Part or
to a provision of this Part, apply in relation to a communication of
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Division 1 Preliminary
Section 135D
314 Copyright Act 1968
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the content of a free-to-air broadcast, by the broadcaster making
the content available online at or after the time of the broadcast, in
the same way as they apply in relation to the broadcast.
(2) The reference to free-to-air broadcast in subsection (1) does not
include a reference to a broadcast within the meaning of
paragraph (b) of the definition of free-to-air broadcast in
subsection 10(1).
135D Operation of collecting society rules
This Part applies to the collecting society despite anything in the
rules of the society but nothing in this Part affects those rules so far
as they can operate together with this Part.
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Copying and communication of broadcasts Division 2
Section 135E
Copyright Act 1968 315
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Division 2—Copying and communication of broadcasts
135E Copying and communication of broadcasts by educational
institutions etc.
(1) The copyright in a broadcast, or in any work, sound recording or
cinematograph film included in a broadcast, is not infringed by the
making or communication, by or on behalf of an administering
body, of a copy of the broadcast if:
(a) a remuneration notice, given by or on behalf of the
administering body to the collecting society, is in force;
(b) where the copy or communication is made by, or on behalf
of, a body administering an educational institution—the copy
or communication is made solely for the educational
purposes of the institution or of another educational
institution;
(c) where the copy or communication is made by, or on behalf
of, a body administering an institution assisting persons with
an intellectual disability—the copy or communication is
made solely for the purposes of use in the provision of
assistance to persons with an intellectual disability by the
institution or by another similar institution; and
(d) the administering body complies with subsection 135K(1) or
(3), or section 135KA, as the case requires, in relation to the
copy or communication.
(1A) For the purposes of Part XIA, each performer of a performance is
taken to have authorised an administering body, or a person on
behalf of an administering body, to make or communicate a copy
of a broadcast of the performance if the following paragraphs are
satisfied:
(a) a remuneration notice, given by or on behalf of the
administering body to the collecting society, is in force;
(b) if the copy or communication is made by, or on behalf of, a
body administering an educational institution—the copy or
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Division 2 Copying and communication of broadcasts
Section 135F
316 Copyright Act 1968
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communication is made solely for the educational purposes
of the institution or of another educational institution;
(c) if the copy or communication is made by, or on behalf of, a
body administering an institution assisting persons with an
intellectual disability—the copy or communication is made
solely for the purposes of use in the provision of assistance to
persons with an intellectual disability by the institution or by
another similar institution;
(d) the administering body complies with subsection 135K(1) or
(3), or section 135KA, as the case requires, in relation to the
copy or communication.
Note: The effect of this subsection is that no right of action and no offence
occurs in respect of the copy or communication under Part XIA
(performers’ protection).
(2) Where a copy, or communication of a copy, of a broadcast referred
to in subsection (1) or (1A):
(a) is used for a purpose other than a purpose referred to in
paragraph (1)(b) or (c) or (1A)(b) or (c);
(b) is made, sold or otherwise supplied for a financial profit; or
(c) is given to an administering body when there is not in force a
remuneration notice given by that body to the collecting
society;
with the consent of the administering body by whom, or on whose
behalf, it is made, subsection (1) or (1A) does not apply, and shall
be taken never to have applied, to the making of the copy or
communication.
135F Making and communication of preview copies
(1) The copyright in a broadcast, or in any work, sound recording or
cinematograph film included in a broadcast, is not infringed by the
making of a preview copy of the broadcast.
(1A) For the purposes of Part XIA, each performer of a performance is
taken to have authorised the making of a preview copy of a
broadcast of the performance.
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Section 135F
Copyright Act 1968 317
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Note: The effect of this subsection is that no right of action and no offence
occurs in respect of the preview copy under Part XIA (performers’
protection).
(2) A copy of a broadcast is a preview copy if:
(a) the copy is made by, or on behalf of, an administering body;
(b) a remuneration notice, given by, or on behalf of, the
administering body to the collecting society, is in force; and
(c) the copy is made and used solely for the purpose of enabling
that body to decide whether or not the copy should be
retained for the educational purposes of the institution
administered by it, or for use in the provision of assistance to
persons with an intellectual disability by the institution
administered by it, as the case may be.
(3) Subject to this section, a preview copy shall be destroyed within 14
days after the day on which it was made (in this section called the
preview period).
(4) A preview copy may be retained after the end of the preview
period if:
(a) where the relevant institution is an educational
institution—the copy is retained solely for the educational
purposes of the institution; or
(b) where the relevant institution is an institution assisting
persons with an intellectual disability—the copy is retained
solely for the purpose of use in the provision of assistance to
such persons by the institution.
(5) Where a preview copy is retained under subsection (4),
subsection 135E(1) or (1A) applies in relation to the copy after the
end of the preview period as if the copy had been made solely for a
purpose referred to in paragraph 135E(1)(b) or (c) or (1A)(b) or
(c), as the case requires.
(6) Where a preview copy is neither destroyed within the preview
period nor retained under subsection (4), subsections (1) and (1A)
do not apply, and shall be taken never to have applied, to the
making of the copy.
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Division 2 Copying and communication of broadcasts
Section 135G
318 Copyright Act 1968
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(7) The copyright in a broadcast, or in any work, sound recording or
cinematograph film included in a broadcast, is not infringed by the
communication of a preview copy of the broadcast if:
(a) the communication is made solely to enable an administering
body to decide whether or not that copy should be retained:
(i) for the educational purposes of the institution
administered by it; or
(ii) for use in the provision of assistance to persons with an
intellectual disability by the institution administered by
it; and
(b) the communication is made only to the extent necessary for
the purpose mentioned in paragraph (a); and
(c) the communication is made within the preview period.
(8) For the purposes of Part XIA, each performer in a performance is
taken to have authorised a communication of a preview copy of a
broadcast of the performance if:
(a) the communication is made solely to enable an administering
body to decide whether or not that copy should be retained:
(i) for the educational purposes of the institution
administered by it; or
(ii) for use in the provision of assistance to persons with an
intellectual disability by the institution administered by
it; and
(b) the communication is made only to the extent necessary for
the purpose mentioned in paragraph (a); and
(c) the communication is made within the preview period.
Note: The effect of this subsection is that no right of action and no offence
occurs in respect of the communication of the preview copy under
Part XIA (performers’ protection).
135G Remuneration notices
(1) An administering body may, by notice in writing given to the
collecting society by it, or on its behalf, undertake to pay equitable
remuneration to the society for:
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(a) copies of broadcasts made by it, or on its behalf, while the
notice is in force; and
(b) communications of such copies made by it, or on its behalf,
while the notice is in force.
(2) A remuneration notice shall specify whether the amount of
equitable remuneration is to be assessed on the basis of a records
system, a sampling system or an agreed system.
(3) A remuneration notice comes into force on the day on which it is
given to the collecting society, or on such later day as is specified
in the notice, and remains in force until it is revoked.
135H Records notices
(1) If a records notice is given by, or on behalf of, an administering
body, the amount of equitable remuneration payable to the
collecting society by the administering body for:
(a) each copy of a broadcast made by, or on behalf of, the
administering body while the notice is in force; and
(b) each communication of such a copy of a broadcast made by
or on behalf of the administering body while the notice is in
force;
is such amount as is determined by agreement between the
administering body and the collecting society or, failing such
agreement, by the Copyright Tribunal on application made by
either of them.
(1A) If a determination has been made by the Tribunal under
subsection (1), either the administering body or the collecting
society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination of the amount of equitable
remuneration payable to the collecting society by the administering
body for the making, by or on behalf of that body, of a copy of a
broadcast and for the communication by, or on behalf of that body,
of a copy of the broadcast.
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Section 135H
320 Copyright Act 1968
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(2) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to:
(a) different classes of works, performances, sound recordings or
cinematograph films included in broadcasts;
(b) different institutions administered by the administering body;
or
(c) different classes of students of an institution administered by
the administering body.
(3) If:
(a) a broadcast is copied by, or on behalf of, an administering
body, or is taken under this subsection to have been so
copied; and
(b) the copy is communicated by, or on behalf of, the body by
being made available online, or is taken under this subsection
to have been so communicated; and
(c) the copy remains so available online for longer than the
prescribed period;
then, when that period ends:
(d) the broadcast is taken to have been copied again by, or on
behalf of, the body; and
(e) the copy mentioned in paragraph (a) is taken to have been
communicated again by, or on behalf of, the body by making
it available online for a further prescribed period.
(4) For the purposes of subsection (1), an amount of equitable
remuneration must be determined (whether by agreement or by the
Copyright Tribunal) having regard to:
(a) copies and communications to which paragraphs (3)(d) and
(e) apply; and
(b) such matters (if any) as are prescribed; and
(c) such other matters (if any) as are relevant in the
circumstances.
(5) In this section:
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prescribed period means the period of 12 months, or if another
period is agreed between the relevant administering body and
collecting society for the purposes of subsection (3), that other
period.
135J Sampling notices
(1) If a sampling notice is given by, or on behalf of, an administering
body, the amount of equitable remuneration payable to the
collecting society by the administering body for:
(a) copies of broadcasts made by, or on behalf of, the
administering body while the notice is in force; and
(b) communications of such copies made by, or on behalf of, the
administering body while the notice is in force;
is such annual amount as is determined by agreement between the
administering body and the collecting society or, failing such
agreement, by the Copyright Tribunal on application made by
either of them.
(1A) If a determination has been made by the Tribunal under
subsection (1), either the administering body or the collecting
society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination of the amount of equitable
remuneration payable to the collecting society by the administering
body for copies of broadcasts made by, or on behalf of, that body
and for communications by, or on behalf of, that body of such
copies.
(1B) If:
(a) a broadcast is copied by, or on behalf of, an administering
body, or is taken under this subsection to have been so
copied; and
(b) the copy is communicated by, or on behalf of, the body by
being made available online, or is taken under this subsection
to have been so communicated; and
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Section 135J
322 Copyright Act 1968
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(c) the copy remains so available online for longer than the
prescribed period;
then, when that period ends:
(d) the broadcast is taken to have been copied again by, or on
behalf of, the body; and
(e) the copy mentioned in paragraph (a) is taken to have been
communicated again by, or on behalf of, the body by making
it available online for a further prescribed period.
(2) The annual amount referred to in subsection (1) must be
determined (whether by agreement or by the Copyright Tribunal)
having regard to:
(a) copies and communications to which paragraphs (1B)(d)
and (e) apply; and
(b) the extent to which other copies of broadcasts are made and
communicated by, or on behalf of, the administering body in
a particular period; and
(c) such matters (if any) as are prescribed; and
(d) such other matters (if any) as are relevant in the
circumstances.
(3) The extent of copying of broadcasts and the communication of
those copies, and any other matters that are necessary or
convenient to be assessed by use of a sampling system, shall be
assessed by use of a sampling system determined by agreement
between the administering body and the collecting society or,
failing such agreement, by the Copyright Tribunal on application
made by either of them.
(4) For the purposes of subsection (1), different annual amounts may
be determined (whether by agreement or by the Copyright
Tribunal) in relation to different institutions administered by the
administering body.
(4A) To avoid doubt, an annual amount (whether for one or more
institutions administered by the administering body) may be
determined for the purposes of subsection (1) by reference to
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Copyright Act 1968 323
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amounts for copies and communications that differ on one or both
of the following bases:
(a) different classes of works, performances, sound recordings or
cinematograph films included in broadcasts;
(b) different classes of students of an institution administered by
the administering body.
(5) Where:
(a) a sampling notice is given by, or on behalf of, an
administering body to the collecting society; and
(b) during any period, the administering body does not comply
with one or more of the requirements of the sampling system
determined under this section in relation to the notice;
sections 135E and 135F do not apply to any copy of a broadcast, or
communication of a copy of a broadcast, made by, or on behalf of,
the administering body during that period.
(6) In this section:
prescribed period means the period of 12 months, or if another
period is agreed between the relevant administering body and
collecting society for the purposes of subsection (1B), that other
period.
135JAA Determination of questions relating to this Division or the
collecting society’s rules
(1) This section applies if:
(a) it is necessary or convenient to determine a question to
facilitate future compliance by an administering body or the
collecting society with this Division or the provisions of the
collecting society’s rules described in paragraph 135P(3)(d);
and
(b) the question is not determined by another provision of this
Part or regulations made for the purposes of this Part; and
(c) determination of the question affects both the administering
body and the collecting society.
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Section 135JA
324 Copyright Act 1968
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Note: An example of such a question might be whether there should be a
particular sampling system to provide information to enable the
collecting society to determine how to distribute amounts it collects.
(2) The question must be determined by agreement between the
collecting society and the administering body or, failing such
agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering body does not comply with
the agreement or order of the Tribunal determining the question,
sections 135E and 135F do not apply to a copy of a broadcast, or
communication of a copy of a broadcast, made by or on behalf of
the administering body during the period.
135JA Agreed notice
(1) If an agreed notice is given by, or on behalf of an administering
body, the amount of equitable remuneration payable to the
collecting society by the administering body for:
(a) copies of broadcasts made by, or on behalf of, the
administering body while the notice is in force; and
(b) communications of such copies made by, or on behalf of, the
administering body while the notice is in force;
is an amount (whether an annual amount or otherwise) determined
by agreement between the administering body and the collecting
society or, failing such agreement, by the Copyright Tribunal on
application made by either of them.
(2) If a determination has been made by the Tribunal under
subsection (1), either the administering body or the collecting
society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination of the amount of equitable
remuneration payable to the collecting society by the administering
body for copies of broadcasts made and communicated by, or on
behalf of, that body.
(3) Subject to subsection (5), the matters and processes constituting an
agreed system, and any matters that are necessary or convenient to
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Copyright Act 1968 325
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be assessed or taken into account for the purposes of the system,
must be determined by agreement between the administering body
and the collecting society or, failing such agreement, by the
Copyright Tribunal on application made by either of them.
(4) If:
(a) a broadcast is copied by, or on behalf of, an administering
body, or is taken under this subsection to have been so
copied; and
(b) the copy is communicated by, or on behalf of, the body by
being made available online, or is taken under this subsection
to have been so communicated; and
(c) the copy remains so available online for longer than the
prescribed period;
then, when that period ends:
(d) the broadcast is taken to have been copied again by, or on
behalf of, the body; and
(e) the copy mentioned in paragraph (a) is taken to have been
communicated again by, or on behalf of, the body by making
it available online for a further prescribed period.
(5) An agreed system (whether determined by agreement or by the
Copyright Tribunal) must require the assessment of an amount of
equitable remuneration by a method or process that takes account
of copies and communications to which paragraphs (4)(d) and (e)
apply.
(6) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to different institutions administered by the
administering body.
(7) If:
(a) an agreed notice is given by, or on behalf of, an
administering body to the collecting society; and
(b) during any period, the administering body does not comply
with one or more of the requirements of the agreed system
determined under this section in relation to the notice;
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Section 135K
326 Copyright Act 1968
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sections 135E and 135F do not apply to any copy of a broadcast, or
communication of a copy of a broadcast, made by, or on behalf of,
the administering body during that period.
(8) In this section:
prescribed period means the period of 12 months or, if another
period is agreed between the relevant administering body and
collecting society for the purposes of subsection (4), that other
period.
135K Marking and record keeping requirements
If records notice is given
(1) Where a records notice is given by, or on behalf of, an
administering body, the body shall:
(a) mark, or cause to be marked, in accordance with the
regulations, each copy in analog form of a broadcast made by
it, or on its behalf, while the notice is in force, or any
container in which such a copy is kept;
(b) make, or cause to be made, a record of each copying of a
broadcast, and each communication of such a copy, carried
out by it, or on its behalf, while the notice is in force, being a
record containing such particulars as are prescribed;
(c) retain that record for the prescribed retention period after the
making of the copy or communication to which it relates; and
(d) send copies of all such records to the collecting society in
accordance with the regulations.
(2) A record of the kind referred to in paragraph (1)(b):
(a) may be kept in writing or in any other manner prescribed in
the regulations; and
(b) if it is kept in writing, shall be in accordance with the
prescribed form.
(2A) A matter that:
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(a) relates to an activity required by paragraph (1)(b), (c) or (d);
and
(b) needs, or is convenient, to be determined; and
(c) is not determined by subsection (1) or (2) or regulations
made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a)
or (b);
is to be determined by agreement between the administering body
and the collecting society or, failing such agreement, the Copyright
Tribunal on the application of either of them.
(2B) Sections 135E and 135F do not apply to a copy of a broadcast, or a
communication of a copy of a broadcast, made by or on behalf of
the administering body during a period in which:
(a) an agreement, or an order of the Copyright Tribunal,
determining a matter described in subsection (2A) is in force;
and
(b) the body does not comply with the agreement or order.
If sampling notice is given
(3) Where a sampling notice is given by, or on behalf of, an
administering body, the body shall mark, or cause to be marked, in
accordance with the regulations, each copy in analog form of a
broadcast made by it, or on its behalf, while the notice is in force,
or any container in which such a copy is kept.
135KA Notice requirements in respect of communications
If a remuneration notice is given by, or on behalf of, an
administering body to a collecting society in respect of
communication of copies of broadcasts made by, or on behalf of,
the body while the remuneration notice is in force, the body must,
except in such circumstances (if any) as are prescribed:
(a) give a notice, in accordance with the regulations, in relation
to each such communication made by it, or on its behalf,
while the remuneration notice is in force, containing:
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Section 135L
328 Copyright Act 1968
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(i) statements to the effect that the communication has been
made under this Part and that any work or other
subject-matter contained in the communication might be
subject to copyright or performers’ protection under this
Act; and
(ii) such other information or particulars (if any) as are
prescribed; and
(b) in the case of each such communication made by it, or on its
behalf, while the remuneration notice is in force—take all
reasonable steps to ensure that the communication can only
be received or accessed by persons entitled to receive or
access it (for example, teachers or persons receiving
educational instruction or other assistance provided by the
relevant institution); and
(c) comply with such other requirements (if any) as are
prescribed in relation to each such communication made by
it, or on its behalf, while the remuneration notice is in force.
135L Inspection of records etc.
(1) Where a remuneration notice is or has been in force, the collecting
society may, in writing, notify the administering body which gave
the notice that the society wishes, on a day specified in the notice,
being an ordinary working day of the institution specified in the
notice not earlier than 7 days after the day on which the notice is
given, to do such of the following things as are specified in the
notice:
(a) assess the amount of copying of broadcasts and
communication of such copies carried out at the premises of
the institution;
(b) inspect all the relevant records held at those premises that
relate to the making and communication of copies of
broadcasts in reliance on section 135E;
(c) inspect such other records held at those premises as are
relevant to the assessment of the amount of equitable
remuneration payable by the administering body to the
society.
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Section 135M
Copyright Act 1968 329
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(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) commits an
offence punishable, on conviction, by a fine not exceeding 5
penalty units.
135M Revocation of remuneration notice
A remuneration notice may be revoked at any time by the relevant
administering body by notice in writing given to the collecting
society, and the revocation takes effect at the end of 3 months after
the date of the notice or on such later day as is specified in the
notice.
135N Request for payment of equitable remuneration
(1) Subject to this section, where a remuneration notice is or has been
in force, the collecting society may, by notice in writing given to
the administering body which gave the notice, request the body to
pay to the society, within a reasonable time after the date of the
notice, the amount of equitable remuneration specified in the
notice, being an amount payable under section 135H, 135J or
135JA, as the case may be, for copies of broadcasts and
communications of such copies made by, or on behalf of, the body
while the remuneration notice is or was in force.
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Section 135N
330 Copyright Act 1968
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(3) If an amount specified in a request under subsection (1) is not paid
in accordance with the request, it may be recovered from the
relevant administering body by the collecting society in the Federal
Court of Australia or any other court of competent jurisdiction as a
debt due to the society.
(4) Jurisdiction is conferred on the Federal Court of Australia with
respect to actions under subsection (3).
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Section 135P
Copyright Act 1968 331
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Division 3—The collecting society
135P Declaration of the collecting society
(1) A body may apply to the Minister to be declared as the collecting
society.
(1A) After receiving the application, the Minister must do one of the
following:
(a) declare the body to be the collecting society, by notice in the
Gazette;
(b) refuse to declare the body to be the collecting society;
(c) refer the application to the Copyright Tribunal in the way
prescribed by the regulations and notify the body of the
referral.
(1B) A declaration made under paragraph (1A)(a) is not a legislative
instrument.
(1C) If the Minister refers the application to the Copyright Tribunal, the
Tribunal may declare the body to be the collecting society.
Note: Section 153BAB sets out the procedure of the Copyright Tribunal in
dealing with the reference.
(2) Only one body can be declared to be the collecting society at a
time. The body cannot be declared to be the collecting society
while another body is declared to be the collecting society.
(3) The Minister and the Copyright Tribunal must not declare a body
to be the collecting society unless:
(a) it is a company limited by guarantee and incorporated under
a law in force in a State or Territory relating to companies;
and
(b) all relevant right holders, or their agents, are entitled to
become its members; and
(c) its rules prohibit the payment of dividends to its members;
and
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Section 135Q
332 Copyright Act 1968
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(d) its rules contain such other provisions as are prescribed,
being provisions necessary to ensure that the interests of the
collecting society’s members who are relevant right holders
or their agents are protected adequately, including, in
particular, provisions about:
(i) the collection of amounts of equitable remuneration
payable by administering bodies under section 135H,
135J or 135JA; and
(ii) the payment of the administrative costs of the society
out of amounts collected by it; and
(iii) the distribution of amounts collected by it; and
(iv) the holding on trust by the society of amounts for
relevant right holders who are not its members; and
(v) access to records of the society by its members.
135Q Revocation of declaration
(1) This section applies if the Minister is satisfied that the body
declared as the collecting society:
(a) is not functioning adequately as the collecting society; or
(b) is not acting in accordance with its rules or in the best
interests of those of its members who are relevant right
holders or their agents; or
(c) has altered its rules so that they no longer comply with
paragraphs 135P(3)(c) and (d); or
(d) has refused or failed, without reasonable excuse, to comply
with section 135R or 135S.
(2) The Minister may:
(a) by notice in the Gazette, revoke the declaration; or
(b) refer the question whether the declaration should be revoked
to the Copyright Tribunal in the way prescribed by the
regulations.
(3) If the Minister refers the question to the Copyright Tribunal, the
Tribunal may revoke the declaration if it is satisfied that any of
paragraphs (1)(a), (b), (c) and (d) applies to the body.
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Section 135R
Copyright Act 1968 333
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Note: Section 153BAC sets out the procedure of the Copyright Tribunal in
dealing with the reference.
135R Annual report and accounts
(1) The collecting society shall, as soon as practicable after the end of
each financial year, prepare a report of its operations during that
financial year and send a copy of the report to the Minister.
(2) The Minister shall cause a copy of the report sent to the Minister
under subsection (1) to be laid before each House of the Parliament
within 15 sitting days of that House after the receipt of the report
by the Minister.
(3) The society shall keep accounting records correctly recording and
explaining the transactions of the society (including any
transactions as trustee) and the financial position of the society.
(4) The accounting records shall be kept in such a manner as will
enable true and fair accounts of the society to be prepared from
time to time and those accounts to be conveniently and properly
audited.
(5) The society shall, as soon as practicable after the end of each
financial year, cause its accounts to be audited by an auditor who is
not a member of the society, and shall send to the Minister a copy
of its accounts as so audited.
(6) The society shall give its members reasonable access to copies of
all reports and audited accounts prepared under this section.
(7) This section does not affect any obligations of the society relating
to the preparation and lodging of annual returns or accounts under
the law under which it is incorporated.
135S Amendment of rules
The collecting society shall, within 21 days after it alters its rules,
send a copy of the rules as so altered to the Minister, together with
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Section 135SA
334 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
a statement setting out the effect of the alteration and the reasons
why it was made.
135SA Applying to Tribunal for review of distribution arrangement
(1) The collecting society or a member of the collecting society may
apply to the Copyright Tribunal for review of the arrangement
adopted, or proposed to be adopted, by the collecting society for
distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153BAD varying the
arrangement or substituting for it another arrangement, the
arrangement reflecting the Tribunal’s order has effect as if it had
been adopted in accordance with the collecting society’s rules, but
does not affect a distribution started before the order was made.
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Interim copying Division 4
Section 135T
Copyright Act 1968 335
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Division 4—Interim copying
135T Appointment of notice holder
The Attorney-General may, by notice in the Gazette, appoint a
person to be the notice holder for the purposes of this Division.
135U Copying before declaration of collecting society
(1) The copyright in a broadcast, or in any work, sound recording or
cinematograph film included in a broadcast, is not infringed by the
making, by or on behalf of an administering body, of a copy of the
broadcast if:
(a) at the time the copy is made, the first collecting society has
not been declared;
(b) a notice given by the administering body to the notice holder
under subsection 135W(1) is in force;
(c) where the copy is made by, or on behalf of, a body
administering an educational institution—the copy is made
solely for the educational purposes of the institution or of
another educational institution;
(d) where the copy is made by, or on behalf of a body
administering an institution assisting persons with an
intellectual disability—the copy is made solely for the
purposes of use in the provision of assistance to persons with
an intellectual disability by the institution or by another
similar institution; and
(e) the administering body complies with paragraphs
135K(1)(a), (b) and (c) or subsection 135K(3), in so far as
those provisions apply.
(2) Where a copy of a broadcast referred to in subsection (1):
(a) is used for a purpose other than a purpose referred to in
paragraph (1)(c) or (d);
(b) is made, sold or otherwise supplied for a financial profit; or
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Division 4 Interim copying
Section 135V
336 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(c) is given to an administering body when there is not in force a
notice given by that body to the notice holder under
subsection 135W(1);
with the consent of the administering body by whom, or on whose
behalf, it is made, subsection (1) does not apply, and shall be taken
never to have applied, to the making of the copy.
135V Preview copies
Section 135F applies to the making of preview copies of broadcasts
before the first collecting society is declared as if:
(a) the reference in paragraph 135F(2)(b) to a remuneration
notice given by an administering body to the collecting
society were a reference to a notice under
subsection 135W(1) given by the administering body to the
notice holder; and
(b) the references in subsection 135F(5) to subsection 135E(1),
and paragraphs 135E(1)(b) and (c), were references to
subsection 135U(1), and paragraphs 135U(1)(c) and (d),
respectively.
135W Notices by administering bodies
(1) An administering body may at any time before the declaration of
the first collecting society, by notice in writing given to the notice
holder, undertake to pay equitable remuneration to the collecting
society, when it is declared, for copies of broadcasts made by, or
on behalf of, the administering body while the notice is in force.
(2) A notice shall specify whether the amount of equitable
remuneration is to be assessed on the basis of a records system or a
sampling system.
(3) A notice comes into force on the day on which it is given to the
notice holder, or on such later day as is specified in the notice, and
remains in force until it is revoked.
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Section 135X
Copyright Act 1968 337
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(4) A notice may be revoked at any time by the relevant administering
body by notice in writing given to the notice holder, and the
revocation takes effect on the date of the notice of revocation or on
such later date as is specified in it.
135X Marking and record keeping requirements
(1) Where an administering body gives a notice under
subsection 135W(1) that specifies that the amount of equitable
remuneration is to be assessed on the basis of a records system,
paragraphs 135K(1)(a), (b) and (d) and subsection 135K(2) apply
as if:
(a) the reference to the collecting society were a reference to the
notice holder; and
(b) references to a records notice were references to the notice
under subsection 135W(1).
(2) Where an administering body gives a notice under
subsection 135W(1) that specifies that the amount of equitable
remuneration is to be assessed on the basis of a sampling system,
subsection 135K(3) applies as if:
(a) the reference to the collecting society were a reference to the
notice holder; and
(b) references to a sampling notice were references to the notice
under subsection 135W(1).
135Y Effect of declaration of collecting society
(1) Where the first collecting society is declared, a notice given by an
administering body to the notice holder under subsection 135W(1)
and in force immediately before that declaration shall, on and after
that declaration, be taken, for the purposes of this Part, to be a
records notice or a sampling notice, as the case may be, given by
that body to the collecting society, being a records notice or
sampling notice that came into force on the day on which the
notice came into force.
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Part VA Copying and communication of broadcasts by educational and other
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Division 4 Interim copying
Section 135Y
338 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) Where a notice is to be taken under this section to be a records
notice, the relevant administering body shall cause copies of all
records made under paragraph 135K(1)(b) on or after the day on
which the notice is taken to have come into force to be sent to the
collecting society within 21 days after the declaration of the
collecting society.
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Miscellaneous Division 5
Section 135Z
Copyright Act 1968 339
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Division 5—Miscellaneous
135Z Relevant right holder may authorise copying etc.
(1) Nothing in this Part affects the right of the owner of the copyright
in a broadcast, or in a work, sound recording or cinematograph
film included in a broadcast, to grant a licence authorising an
administering body to make, or cause to be made, a copy of the
broadcast, sound recording or film, or a reproduction of the work
and to communicate, or cause to be communicated, that copy or
reproduction, without infringing that copyright.
(2) Nothing in this Part affects the right of a performer in a
performance included in a broadcast to authorise an administering
body:
(a) to make, or cause to be made, a sound recording or a
cinematograph film of the performance; and
(b) to communicate, or cause to be communicated, that recording
or film.
135ZA Copyright not to vest in copier
Despite any other provision of this Act, the making or
communication of a copy of a broadcast by, or on behalf of, an
administering body that is not an infringement of copyright under
this Part, does not vest copyright in any work or other
subject-matter in any person.
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Part VB Reproducing and communicating works etc. by educational and other
institutions
Division 1 Preliminary
Section 135ZB
340 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Part VB—Reproducing and communicating works
etc. by educational and other institutions
Division 1—Preliminary
135ZB Interpretation
In this Part:
administering body means a body administering an institution.
collecting society means a body that is, for the time being, declared
to be a collecting society under section 135ZZB.
electronic use notice means a remuneration notice specifying that
the amount of remuneration payable in respect of licensed copies in
electronic form, or licensed communications, made by, or on
behalf of, the administering body giving the notice is to be assessed
on the basis of an electronic use system.
eligible item has the meaning given by section 135ZC.
institution means:
(a) an educational institution;
(b) an institution assisting persons with a print disability; or
(c) an institution assisting persons with an intellectual disability.
licensed communication means a communication made by, or on
behalf of, a body administering an institution in reliance on
section 135ZMC, 135ZMD, 135ZP or 135ZS.
licensed copy means:
(a) a reproduction of the whole or a part of the work, being a
reproduction that is made by, or on behalf of, a body
administering an educational institution in reliance on
section 135ZJ, 135ZK, 135ZL, 135ZMC or 135ZMD;
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Section 135ZB
Copyright Act 1968 341
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(b) a record embodying a sound recording of the whole or a part
of a literary or dramatic work, or a Braille version, a
large-print version, a photographic version or an electronic
version of the whole or a part of such a work, being a record
or version made by, or on behalf of, a body administering an
institution assisting persons with a print disability in reliance
on section 135ZP; or
(c) a copy of the whole or a part of an eligible item, being a copy
made by, or on behalf of, a body administering an institution
assisting persons with an intellectual disability in reliance on
section 135ZS.
records notice means a remuneration notice specifying that the
amount of equitable remuneration payable in respect of licensed
copies made in hardcopy form or analog form by, or on behalf of,
the administering body giving the notice is to be assessed on the
basis of a records system.
relevant collecting society, in relation to a remuneration notice,
means the collecting society for the owners of the copyright in
works, or other subject-matter, of the same kind as that to which
the remuneration notice relates.
relevant copyright owner means the owner of the copyright in a
work or an eligible item other than a work, but does not include a
new owner of the copyright in a sound recording of a live
performance within the meaning of Subdivision B of Division 5 of
Part IV.
remuneration notice means a notice referred to in
subsection 135ZU(1).
rules, in relation to a collecting society, means the provisions of
the memorandum and articles of association of the society.
sampling notice means a remuneration notice specifying that the
amount of equitable remuneration payable in respect of licensed
copies made in hardcopy form or analog form by, or on behalf of,
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Division 1 Preliminary
Section 135ZC
342 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
the administering body giving the notice is to be assessed on the
basis of a sampling system.
135ZC Eligible items and photographic versions
In this Part:
(a) a reference to an eligible item is a reference to:
(i) a published literary, dramatic, musical or artistic work;
(ii) a published sound recording or cinematograph film; or
(iii) a work referred to in subparagraph (i) that is included in
a sound broadcast;
(b) a reference to a copy of an eligible item, being a literary,
dramatic or musical work, is a reference to any of the
following:
(i) a reproduction of the work in a material form;
(ii) an adaptation of the work;
(iii) a reproduction in a material form of an adaptation of the
work;
(c) a reference to a copy of an eligible item, being an artistic
work, is a reference to a reproduction in a material form of
the work;
(d) a reference to a copy of an eligible item, being a sound
recording or a cinematograph film, is a reference to a copy of
the sound recording or cinematograph film; and
(e) a reference to a photographic version of a work or a part of a
work is a reference to a copy of the work or part of the work
produced as a film-strip, or series of separate transparencies,
designed to meet the needs of persons with a print disability.
135ZE Part does not apply to computer programs
Nothing in this Part applies in relation to a literary work, being a
computer program or a compilation of computer programs.
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Preliminary Division 1
Section 135ZF
Copyright Act 1968 343
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135ZF Operation of collecting society rules
This Part applies to a collecting society despite anything in the
rules of the society but nothing in this Part affects those rules so far
as they can operate together with this Part.
135ZFA Licensed communications
For the purposes of this Part, a reference to a licensed
communication of a work, or part of a work, or other
subject-matter includes a reference to a licensed communication of
a licensed copy of the work or other subject-matter.
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Division 2 Reproduction by educational institutions of works that are in hardcopy form
Section 135ZGA
344 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 2—Reproduction by educational institutions of
works that are in hardcopy form
135ZGA Application of Division
(1) This Division applies in relation to the reproduction of a work
(including an article contained in a periodical publication), or part
of a work, and to the copying of a published edition of a work, or
part of such an edition, only if the reproduction or copy is made
from a document that is in hardcopy form.
(2) For the purposes of this Division:
(a) a reference to a reproduction of a work (including an article
contained in a periodical publication), or a part of a work, is
to be read as a reference to a reproduction of that work or
part made from a document that is in hardcopy form; and
(b) a reference to a facsimile copy of a printed published edition
of a work, or part of such an edition, is to be read as a
reference to a facsimile copy of that edition or part made
from a document that is in hardcopy form.
135ZG Multiple reproduction of insubstantial parts of works that
are in hardcopy form
(1) Subject to this section, copyright in a literary or dramatic work is
not infringed by the making of one or more reproductions of a page
or pages of the work in an edition of the work if the reproduction is
carried out on the premises of an educational institution for the
purposes of a course of education provided by it.
(2) Subsection (1) does not apply to the making of a reproduction of
the whole of a work.
(3) Subsection (1) does not apply to the making of a reproduction of
more than 2 of the pages of a work in an edition of the work
unless:
(a) there are more than 200 pages in the edition; and
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Section 135ZH
Copyright Act 1968 345
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(b) the total number of pages so reproduced does not exceed 1%
of the total number of pages in the edition.
(4) Where:
(a) a person makes, or causes to be made, a reproduction of a
part of a work contained on a page or pages in an edition; and
(b) subsection (1) applies to the making of that reproduction;
that subsection does not apply to the making, by or on behalf of
that person, of a reproduction of any other part of that work within
14 days after the day on which the previous reproduction was
made.
(5) In this section, a reference to an edition of a work includes a
reference to an edition of works that include that work.
135ZH Copying of printed published editions by educational
institutions
The copyright in a printed published edition of a work (being a
work in which copyright does not subsist) is not infringed by the
making of one or more facsimile copies of the whole or a part of
the edition, if the copy, or each of the copies, is made in the course
of the making of a reproduction of the whole or a part of the work
by, or on behalf of, a body administering an educational institution
for the educational purposes of that institution or of another
educational institution.
135ZJ Multiple reproduction of printed periodical articles by
educational institutions
(1) Subject to this section, the copyright in an article contained in a
printed periodical publication is not infringed by the making of one
or more reproductions of the whole or a part of that article by, or
on behalf of, a body administering an educational institution if:
(a) a remuneration notice, given by or on behalf of the body to
the relevant collecting society, is in force;
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Division 2 Reproduction by educational institutions of works that are in hardcopy form
Section 135ZK
346 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(b) the reproduction is carried out solely for the educational
purposes of the institution or of another educational
institution; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
reproduction.
(2) This section does not apply in relation to reproductions of, or of
parts of, 2 or more articles contained in the same periodical
publication unless the articles relate to the same subject-matter.
135ZK Multiple reproduction of works published in printed
anthologies
The copyright in a literary or dramatic work, being a work
contained in a printed published anthology of works and
comprising not more than 15 pages in that anthology, is not
infringed by the making of one or more reproductions of the whole
or part of the work by, or on behalf of, a body administering an
educational institution if:
(a) a remuneration notice given by, or on behalf of, the body to
the relevant collecting society is in force; and
(b) the reproduction is carried out solely for the educational
purposes of the institution or of another educational
institution; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
reproduction.
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Reproduction by educational institutions of works that are in hardcopy form Division 2
Section 135ZL
Copyright Act 1968 347
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135ZL Multiple reproduction of works that are in hardcopy form by
educational institutions
(1) Subject to this section, the copyright in a literary, dramatic,
musical or artistic work (other than an article contained in a
periodical publication) is not infringed by the making of one or
more reproductions of the whole or a part of the work by, or on
behalf of, a body administering an educational institution if:
(a) a remuneration notice, given by or on behalf of the body to
the relevant collecting society, is in force;
(b) the reproduction is carried out solely for the educational
purposes of the institution or of another educational
institution; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
reproduction.
(2) This section does not apply in relation to reproductions of the
whole, or of more than a reasonable portion, of a work that has
been separately published unless the person who makes the
reproductions, or causes the reproductions to be made, for, or on
behalf of, the body is satisfied, after reasonable investigation, that
reproductions (other than second-hand reproductions) of the work
cannot be obtained within a reasonable time at an ordinary
commercial price.
135ZM Application of Division to certain illustrations that are in
hardcopy form
(1) Where an article or other literary, dramatic or musical work is
accompanied by an artistic work or artistic works provided for the
purpose of explaining or illustrating the article or other work, the
preceding sections of this Division apply as if:
(a) where any of those sections provides that the copyright in the
article or other work is not infringed—the reference to that
copyright included a reference to any copyright in that artistic
work or those artistic works;
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Division 2 Reproduction by educational institutions of works that are in hardcopy form
Section 135ZM
348 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(b) a reference to a reproduction of an article or other work
included a reference to a reproduction of the article or other
work together with a reproduction of that artistic work or
those artistic works;
(c) a reference to a reproduction of a part of an article or other
work included a reference to a reproduction of that part of the
article or other work together with a reproduction of the
artistic work or artistic works provided for the purpose of
explaining or illustrating that part;
(d) a reference to a reproduction of a page of a literary or
dramatic work in an edition of the work included a reference
to a reproduction of a page in such an edition that contained
that work and an artistic work or artistic works provided for
the purpose of explaining or illustrating that part of that
work; and
(e) a reference to a reproduction of pages of a literary or
dramatic work in an edition of the work included a reference
to a reproduction of pages in such an edition that contained a
part of that work and an artistic work or artistic works
provided for the purpose of explaining or illustrating that part
of that work.
(2) If:
(a) any remuneration is paid under this Part in respect of a page
of a document that is:
(i) a reproduction of the whole or a part of an article (other
than a part that is an artistic work) contained in a
periodical publication; or
(ii) a reproduction of the whole or a part of a literary or
dramatic work contained in a published anthology of
works; or
(iii) a reproduction of the whole or a part of a literary,
dramatic or musical work other than an article contained
in a periodical publication; and
(b) the making of the page is not an infringement of the
copyright in the article or work because of section 135ZJ,
135ZK or 135ZL; and
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Section 135ZM
Copyright Act 1968 349
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(c) the page includes an artistic work or artistic works provided
for the purpose of explaining or illustrating the article or
work;
the following paragraphs apply:
(d) one-half of the remuneration paid in respect of the making of
the page is to be paid to the owner, or divided equally among
the owners, of the copyright in the literary, dramatic or
musical work or works which, or a part of which, appear on
the page; and
(e) one-half of that remuneration is to be paid to the owner, or
divided equally among the owners, of the copyright in the
artistic work or artistic works which, or a part of which,
appear on the page.
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZMA
350 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 2A—Reproduction and communication of works
that are in electronic form
135ZMA Application of Division
(1) This Division applies in relation to the reproduction of a work
(including articles contained in periodical publications) or part of a
work, only if the reproduction is made from an electronic form of
the work.
(2) For the purposes of this Division, a reference to a reproduction of a
work (including an article contained in a periodical publication), or
a part of a work, is to be read as a reference to a reproduction made
from an electronic form of the work or part.
135ZMB Multiple reproduction and communication of insubstantial
parts of works that are in electronic form
Exception from infringement
(1) Subject to this section, copyright in a published literary or dramatic
work is not infringed by:
(a) the making of one or more reproductions of a part of the
work; or
(b) communicating a part of the work;
if the reproduction or communication is carried out on the premises
of an educational institution for the purposes of a course of study
provided by it.
No exception for more than 2 pages or 1% of the number of pages
(1A) Subsection (1) does not apply to the reproduction or
communication if all the following circumstances exist:
(a) the published electronic form of the literary or dramatic work
from which the reproduction or communication is made
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Section 135ZMB
Copyright Act 1968 351
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contains pages whose content is unlikely to change regardless
of the system used to view, reproduce or communicate them;
(b) the reproduction or communication is of more than 2 of those
pages without altering any of their content (in terms of the
work);
(c) there are more than 200 pages in that form of the work;
(d) the number of pages reproduced or communicated exceeds
1% of the number of pages in that form of the work.
No exception for more than 1% of words if work is not paginated
(2) Subsection (1) does not apply to the reproduction or
communication if both the following circumstances exist:
(a) the circumstance in paragraph (1A)(a) does not exist;
(b) the reproduction or communication is of more than 1% of the
number of words in the work.
No exception for dealing with another part within 14 days
(3) If:
(a) a person makes, or causes to be made, a reproduction of a
part of a work or communicates a part of a work; and
(b) subsection (1) applies to the making of the reproduction or to
the communication;
that subsection does not apply to the making by, or on behalf of,
that person of a reproduction or to the communication by that
person, of any other part of that work within 14 days after the day
on which the previous reproduction or the first communication of
the work was made.
No exception for putting another part online at same time
(4) If:
(a) a person communicates a part of a work by making the part
available online; and
(b) subsection (1) applies to the communication;
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZMC
352 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
that subsection does not apply to the making available online by
that person of any other part of that work while the part previously
made available online continues to be so available.
Non-continuous passages are different parts
(5) For the purposes of this section, passages from the work that are
not continuous are all different parts of the work.
(6) Subsection (5) does not affect by implication the meaning of a
reference outside this section to a part of a work.
135ZMC Multiple reproduction and communication of periodical
articles that are in electronic form by education
institutions
(1) Subject to this section, the copyright in an article contained in a
periodical publication is not infringed by:
(a) the making of one or more reproductions of the whole or a
part of the article; or
(b) the communication of the whole or a part of the article;
by, or on behalf of, a body administering an educational institution
if:
(c) a remuneration notice given by, or on behalf of, the body to
the relevant collecting society is in force; and
(d) the reproduction or communication is carried out solely for
the educational purposes of the institution or of another
educational institution; and
(e) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
reproduction or communication.
(2) This section does not apply in relation to the reproduction or
communication of, or of parts of, 2 or more articles contained in
the same periodical publication unless the articles relate to the
same subject-matter.
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Reproduction and communication of works that are in electronic form Division 2A
Section 135ZMD
Copyright Act 1968 353
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135ZMD Multiple reproduction and communication of works that
are in electronic form by educational institutions
(1) Subject to this section, the copyright in a literary, dramatic,
musical or artistic work (other than an article contained in a
periodical publication) is not infringed by:
(a) the making of one or more reproductions of the whole or a
part of the work; or
(b) the communication of the whole or a part of the work;
by, or on behalf of, a body administering an educational institution
if:
(c) a remuneration notice given by, or on behalf of, the body to
the relevant collecting society is in force; and
(d) the reproduction or communication is carried out solely for
the educational purposes of the institution or of another
educational institution; and
(e) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
reproduction or communication.
(2) This section does not apply in relation to the reproduction or
communication of:
(a) the whole, or of more than a reasonable portion of, a literary
or dramatic work; or
(b) the whole, or of more than 10% of, a musical work;
that has been separately published unless the person who makes the
reproduction or communication, or causes it to be made, for, or on
behalf of, the body is satisfied, after reasonable investigation, that
the work is not available in electronic form within a reasonable
time at an ordinary commercial price.
(3) If:
(a) a person communicates a part of a work by or on behalf of a
body administering an educational institution, by making the
part available online; and
(b) subsection (1) applies to the communication;
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZMDA
354 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
that subsection does not apply to the making available online by, or
on behalf of, that body of any other part of that work while the part
previously made available online continues to be so available.
135ZMDA Reproduction and communication of works from
electronic anthologies by educational institutions
Reproduction or communication of all or part of a literary or
dramatic work does not infringe copyright in the work if:
(a) the work is contained in an anthology published in electronic
form; and
(b) the published electronic form of the anthology from which
the reproduction or communication is made contains pages
whose content is unlikely to change regardless of the system
used to view, reproduce or communicate them; and
(c) the work occupies not more than 15 of those pages; and
(d) the reproduction or communication is made by or on behalf
of a body administering an educational institution; and
(e) a remuneration notice given by or on behalf of the body to
the relevant collecting society is in force; and
(f) the reproduction or communication is made solely for the
educational purposes of the institution or of another
educational institution; and
(g) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA in relation to each reproduction or
communication.
135ZME Application of Division to certain illustrations in electronic
form
(1) If an article or other literary, dramatic or musical work that is in
electronic form is accompanied by an artistic work or artistic works
in electronic form provided for the purpose of explaining or
illustrating the article or other work, the preceding sections of this
Division apply as if:
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Section 135ZME
Copyright Act 1968 355
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(a) where any of those sections provides that the copyright in the
article or other work is not infringed—the reference to that
copyright included a reference to any copyright in the artistic
work or artistic works; and
(b) a reference to a reproduction or communication of an article
or other work included a reference to a reproduction or
communication of the article or other work together with a
reproduction or communication of the artistic work or artistic
works; and
(c) a reference to a reproduction or communication of a part of
an article or other work included a reference to a
reproduction or communication of that part of the article or
other work together with a reproduction or communication of
the artistic work or artistic works provided for the purpose of
explaining or illustrating that part.
(2) If:
(a) remuneration is paid under this Part in respect of:
(i) the reproduction or communication of the whole or part
of an article (other than a part that is an artistic work)
contained in a periodical publication; or
(ii) the reproduction or communication of the whole or part
of a literary, dramatic or musical work, other than an
article contained in a periodical publication; and
(b) the reproduction or communication is not an infringement of
the copyright in the article or work because of
section 135ZMC or 135ZMD; and
(c) the reproduction that is made or communicated includes an
artistic work or artistic works provided for the purpose of
explaining or illustrating the article or work;
the amount of the remuneration must be divided among the owner
or owners of the copyright in the artistic work or artistic works and
the owner or owners of the copyright in the article or other literary,
dramatic or musical work or works.
(3) The division of an amount of remuneration under subsection (2) is
to be carried out as agreed between the relevant copyright owners
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Division 2A Reproduction and communication of works that are in electronic form
Section 135ZME
356 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
or, failing such agreement, as determined by the Copyright
Tribunal on application made by any of them.
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Reproduction and communication of works by institutions assisting persons with a print
disability Division 3
Section 135ZN
Copyright Act 1968 357
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Reproduction and communication of works by
institutions assisting persons with a print
disability
135ZN Copying published editions by institutions assisting persons
with a print disability
The copyright in a published edition of a work (being a work in
which copyright does not subsist) is not infringed by the making of
one or more facsimile copies of the whole or a part of the edition if
the copy, or each of the copies, is made in the course of the making
of a reproduction of the whole or a part of the work by, or on
behalf of, a body administering an institution assisting persons with
a print disability for use in the provision, whether by the institution
or otherwise, of assistance to such persons.
135ZP Multiple reproduction and communication of works by
institutions assisting persons with a print disability
(1) The copyright in a literary or dramatic work is not infringed by the
making or communication by, or on behalf of, a body
administering an institution assisting persons with a print disability
of one or more records embodying a sound recording of the work
or of a part of the work if:
(a) a remuneration notice, given by or on behalf of the body to
the relevant collecting society, is in force;
(b) each record is made, or each communication is carried out
solely for the purpose of use in the provision, whether by the
institution or otherwise, of assistance to persons with a print
disability; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
copy or communication.
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Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZP
358 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) The copyright in a published literary or dramatic work is not
infringed by the making or communication by, or on behalf of, a
body administering an institution assisting persons with a print
disability, of one or more Braille versions, large-print versions,
photographic versions or electronic versions of the work or of a
part of the work if:
(a) a remuneration notice given by, or on behalf of, the body to
the relevant collecting society is in force; and
(b) each version is made, or each communication is carried out,
solely for the purpose of the provision, whether by the
institution or otherwise of assistance to persons with a print
disability; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to each
version or communication.
(3) Where a sound recording of a work has been published,
subsection (1) does not apply to the making of any record
embodying a sound recording of the work (including a record that
is a copy of that first-mentioned sound recording) for, or on behalf
of, a body administering an institution assisting persons with a
print disability unless the person who makes that record, or causes
that record to be made, is satisfied, after reasonable investigation,
that no new record that embodies only a sound recording of the
work can be obtained within a reasonable time at an ordinary
commercial price.
(4) Where a Braille version of a work has been separately published,
subsection (2) does not apply to the making of a Braille version of
the work, or of a part of the work, unless the person who makes
that version, or causes that version to be made, for, or on behalf of,
a body administering an institution assisting persons with a print
disability is satisfied, after reasonable investigation, that no new
copy of a Braille version of the work, being a version that has been
separately published, can be obtained within a reasonable time at
an ordinary commercial price.
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Section 135ZQ
Copyright Act 1968 359
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(5) Where a large-print version of a work has been separately
published, subsection (2) does not apply to the making of a
large-print version of the work, or of a part of the work, unless the
person who makes the version, or causes the version to be made,
for, or on behalf of, a body administering an institution assisting
persons with a print disability is satisfied, after reasonable
investigation, that no new copy of a large-print version of the
work, being a version that has been separately published, can be
obtained within a reasonable time at an ordinary commercial price.
(6) Where a photographic version of a work has been separately
published, subsection (2) does not apply to the making of a
photographic version of the work, or of a part of the work, unless
the person who makes the version, or causes the version to be
made, for, or on behalf of, a body administering an institution
assisting persons with a print disability is satisfied, after reasonable
investigation, that no new copy of a photographic version of the
work, being a version that has been separately published, can be
obtained within a reasonable time at an ordinary commercial price.
(6A) Subsection (2) does not apply to the making or communication of
an electronic version of the work, or of a part of the work, unless
the person who makes or communicates the version, or causes the
version to be made, or communicated, for, or on behalf of, a body
administering an institution assisting persons with a print disability
is satisfied, after reasonable investigation, that an electronic
version of the work, being a version that has been separately
published, is not available within a reasonable time at an ordinary
commercial price.
(7) For the purposes of this section, a record or a version shall be taken
to be a new record or version if it is not second-hand.
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Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZQ
360 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZQ Making of relevant reproductions and relevant
communications by institutions assisting persons with a
print disability
(1) Subject to this section, the copyright in a published literary or
dramatic work is not infringed by the making by, or on behalf of, a
body administering an institution assisting persons with a print
disability, of a relevant reproduction or a relevant communication
of the work, or of a part of the work, if the reproduction or
communication is made solely for use in the making by, or on
behalf of that body, of a reproduction or communication of the
work, or of a part of the work, under section 135ZP for a person
with a print disability.
(2) If:
(a) a relevant reproduction or a relevant communication of a
work, or of a part of a work, is made by, or on behalf of, a
body administering an institution assisting persons with a
print disability; and
(b) the reproduction or communication is used otherwise than for
use in the making by, or on behalf of that body, of a
reproduction or communication of the work, or a part of the
work, under section 135ZP for a person with a print
disability;
subsection (1) does not apply, and is taken to never have applied,
to the making of the relevant reproduction or relevant
communication.
(3) Subsection (1) does not apply to the making of a relevant
reproduction, being a record embodying a sound recording in
analog form, of a work, or of a part of a work, unless, at the time
the record was made, there was embodied on the record,
immediately before the beginning of that sound recording, a sound
recording of the prescribed message.
(4) Subsection (1) does not apply to the making of a relevant
reproduction in hardcopy form of a work, or of a part of a work,
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Section 135ZQ
Copyright Act 1968 361
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
unless the body by whom, or on whose behalf, the relevant
reproduction is made marks it, or causes it to be marked, in
accordance with the regulations.
(4A) Subsection (1) is to be taken never to have applied to the making of
a relevant reproduction or relevant communication of a work, or of
a part of a work, if, within 3 months after the relevant reproduction
or relevant communication was made, the body by whom, or on
whose behalf, the relevant reproduction or relevant communication
was made has not given to a collecting society (if any) a notice of
the making of the relevant reproduction or relevant
communication.
(4B) The notice referred to in subsection (4A) must be in writing and
must specify:
(a) the name of the body; and
(b) the work, or the part of the work, reproduced or
communicated; and
(c) the date on which the reproduction or communication was
made.
(4C) The copyright in a published literary or dramatic work is infringed
by a person who does any of the acts specified in section 38 in
relation to a relevant reproduction of a work, or of a part of a work,
if the person knows, or ought reasonably to have known, that the
reproduction was made solely for use in the making by, or on
behalf of, a body administering an institution assisting persons with
a print disability of a copy of the work, or of a part of the work, as
the case may be, for a person with a print disability.
(5) In this section:
relevant communication, in relation to a work or part of a work,
means:
(a) the communication of a sound recording of the work, or part
of the work; or
(b) the communication of an electronic version of the work.
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Division 3 Reproduction and communication of works by institutions assisting persons
with a print disability
Section 135ZQ
362 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
relevant reproduction, in relation to a work or part of a work,
means:
(a) a reproduction of the work, or part of the work; or
(b) a record embodying a sound recording of the work, or part of
the work; or
(c) a Braille version, a large-print version, a photographic
version or an electronic version of the work, or part of the
work.
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Reproduction and communication of works etc. by institutions assisting persons with an
intellectual disability Division 4
Section 135ZR
Copyright Act 1968 363
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Reproduction and communication of works
etc. by institutions assisting persons with an
intellectual disability
135ZR Copying of published editions by institutions assisting
persons with an intellectual disability
The copyright in a published edition of a work (being a work in
which copyright does not subsist) is not infringed by the making of
one or more facsimile copies of the whole or a part of the edition in
the course of making one or more reproductions of the whole or a
part of the work by, or on behalf of, a body administering an
institution assisting persons with an intellectual disability for use in
the provision, whether by the institution or otherwise, of assistance
to such persons.
135ZS Copying and communication of eligible items by institutions
assisting persons with an intellectual disability
(1) The copyright in an eligible item, or in any work or other
subject-matter included in an eligible item, is not infringed by the
making or communication by, or on behalf of, a body
administering an institution assisting persons with an intellectual
disability of a copy of the whole or a part of the eligible item if:
(a) a remuneration notice, given by or on behalf of the body to
the relevant collecting society, is in force; and
(b) the copying or communication is carried out solely for the
purpose of use in the provision, whether by the institution or
otherwise, of assistance to persons with an intellectual
disability; and
(c) the body complies with subsection 135ZX(1) or (3) or
section 135ZXA, as the case requires, in relation to the copy
or communication.
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Division 4 Reproduction and communication of works etc. by institutions assisting
persons with an intellectual disability
Section 135ZT
364 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) Subsection (1) does not apply to the making or communication of a
copy of the whole or a part of:
(a) an eligible item, being a work that has been separately
published in a form that would be suitable for use in the
provision of the assistance referred to in that subsection; or
(b) an eligible item that is not a work;
unless the person who makes the copy or communication, or
causes the copy or communication to be made, is satisfied after
reasonable investigation that:
(c) in the case of an eligible item referred to in paragraph (a)—
no new copy of the eligible item in a form suitable for use in
the provision of that assistance can be obtained or is available
electronically within a reasonable time at an ordinary
commercial price; or
(d) in the case of an eligible item referred to in paragraph (b)—
no new copy of the eligible item alone can be obtained or is
available electronically within a reasonable time at an
ordinary commercial price.
(3) For the purposes of this section, a copy shall be taken to be new if
it is not second-hand.
135ZT Making of copies etc. for use in making copies or
communications for a person with an intellectual
disability
(1) Subject to this section, the copyright in an eligible item or in a
television broadcast is not infringed by the making by, or on behalf
of, a body administering an institution assisting persons with an
intellectual disability of a copy or communication of the whole or a
part of the eligible item or broadcast, if the copy or communication
is made solely for use in the making by, or on behalf of, that body
of a copy or communication of the whole or the part of the eligible
item or broadcast, as the case may be, for a person with an
intellectual disability.
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Reproduction and communication of works etc. by institutions assisting persons with an
intellectual disability Division 4
Section 135ZT
Copyright Act 1968 365
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) Where:
(a) a copy or communication of the whole or a part of an eligible
item or a television broadcast is made by, or on behalf of, a
body administering an institution assisting persons with an
intellectual disability; and
(b) the copy or communication is used otherwise than in the
making by, or on behalf of, that body of a copy or
communication of the whole or the part of the eligible item
or broadcast, as the case may be, for a person with an
intellectual disability;
subsection (1) does not apply, and shall be taken never to have
applied, to the making of the copy or communication.
(3) Subsection (1) does not apply to the making of a record embodying
a sound recording in analog form of the whole or part of an eligible
item unless, at the time the record was made, there was embodied
on the record, immediately before the beginning of that sound
recording, a sound recording of the prescribed message.
(4) Subsection (1) does not apply to the making of a copy, in hardcopy
form or analog form, of the whole or part of an eligible item or a
television broadcast unless the body by whom, or on whose behalf,
the copy is made, marks it, or causes it to be marked, in accordance
with the regulations.
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Division 5 Equitable remuneration
Section 135ZU
366 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Equitable remuneration
135ZU Remuneration notices
(1) An administering body may, by notice in writing given to the
relevant collecting society, undertake to pay equitable
remuneration to the society for licensed copies and licensed
communications made by it, or on its behalf, being copies and
communications made while the notice is in force.
(2) A remuneration notice shall specify whether the amount of
equitable remuneration is to be assessed on the basis of a records
system, a sampling system or an electronic use system.
(2A) An administering body may give either a records notice or a
sampling notice in respect of licensed copies made in hardcopy
form or analog form, but may only give an electronic use notice in
respect of licensed copies made in electronic form, or in respect of
licensed communications.
(3) A remuneration notice comes into force on the day on which it is
given to the collecting society, or on such later day as is specified
in the notice, and remains in force until it is revoked.
135ZV Records notices
(1) Where a records notice is given by, or on behalf of, an
administering body, the amount of equitable remuneration payable
to the relevant collecting society by the administering body for
each licensed copy made by it, or on its behalf, while the notice is
in force is such amount as is determined by agreement between the
administering body and that collecting society or, failing such
agreement, by the Copyright Tribunal on application made by
either of them.
(1A) If a determination has been made by the Tribunal under
subsection (1), either the administering body or the collecting
society may, at any time after 12 months from the day on which the
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Equitable remuneration Division 5
Section 135ZW
Copyright Act 1968 367
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
determination was made, apply to the Tribunal under that
subsection for a new determination of the amount of equitable
remuneration payable to the collecting society by the administering
body for each licensed copy made by or on behalf of that body.
(2) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to:
(a) different classes of works or eligible items; or
(b) different institutions administered by the administering body;
or
(c) different classes of students of an institution administered by
the administering body.
135ZW Sampling notices
(1) Where a sampling notice is given by, or on behalf of, an
administering body, the amount of equitable remuneration payable
to the relevant collecting society by the administering body for
licensed copies made by it, or on its behalf, while the notice is in
force is such annual amount as is determined by agreement
between the administering body and that collecting society or,
failing such agreement, by the Copyright Tribunal on application
made by either of them.
(1A) If a determination has been made by the Tribunal under
subsection (1), either the administering body or the collecting
society may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination of the amount of equitable
remuneration payable to the collecting society by the administering
body for licensed copies made by or on behalf of that body.
(2) The annual amount referred to in subsection (1) shall be
determined (whether by agreement or by the Copyright Tribunal)
having regard to the number of licensed copies made by, or on
behalf of, the administering body in a particular period and to such
other matters (if any) as are relevant in the circumstances.
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Division 5 Equitable remuneration
Section 135ZWAA
368 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(3) The number of copies referred to in subsection (2), and any other
matters that are necessary or convenient to be assessed by use of a
sampling system, shall be assessed by use of a sampling system
determined by agreement between the administering body and the
relevant collecting society or, failing such agreement, by the
Copyright Tribunal on application made by either of them.
(4) For the purposes of subsection (1), different annual amounts may
be determined (whether by agreement or by the Copyright
Tribunal) in relation to different institutions administered by the
administering body.
(4A) To avoid doubt, an annual amount (whether for one or more
institutions administered by the administering body) may be
determined for the purposes of subsection (1) by reference to
amounts for licensed copies that differ on one or both of the
following bases:
(a) different classes of works or eligible items;
(b) different classes of students of an institution administered by
the administering body.
(5) Where:
(a) a sampling notice is given by, or on behalf of, an
administering body to a collecting society; and
(b) during any period, the administering body does not comply
with one or more of the requirements of the sampling system
determined under this section in relation to that notice;
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and
135ZS do not apply to any reproduction or copy of a work or other
subject-matter made during that period by, or on behalf of, the
administering body, being a reproduction or copy to which the
sampling notice applies.
135ZWAA Determination of questions relating to this Part or a
collecting society’s rules
(1) This section applies if:
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Section 135ZWA
Copyright Act 1968 369
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(a) it is necessary or convenient to determine a question to
facilitate future compliance by an administering body or a
collecting society with:
(i) section 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD,
135ZMDA, 135ZP, 135ZQ, 135ZS or 135ZT; or
(ii) this Division; or
(iii) the provisions of a collecting society’s rules described
in paragraph 135ZZB(3)(d); and
(b) the question is not determined by another provision of this
Part or regulations made for the purposes of this Part; and
(c) determination of the question affects both the administering
body and the collecting society.
Note: An example of such a matter might be a sampling system to provide
information to enable a collecting society to determine how to
distribute amounts it collects.
(2) The question must be determined by agreement between the
collecting society and the administering body or, failing such
agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering body does not comply with
the agreement or order of the Tribunal determining the question,
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA,
135ZP, 135ZQ, 135ZS and 135ZT do not apply to a reproduction,
copy or communication of a work or other subject-matter made
during that period by or on behalf of the administering body.
135ZWA Electronic use notices
(1) If an electronic use notice is given by, or on behalf of, an
administering body, the amount of equitable remuneration payable
to the relevant collecting society by the administering body for
licensed copies and licensed communications made by it, or on its
behalf, while the notice is in force is an amount (whether an
amount per year or otherwise) determined by agreement between
the administering body and the collecting society or, failing such
agreement, by the Copyright Tribunal on application made by
either of them.
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Division 5 Equitable remuneration
Section 135ZWA
370 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) The matters and processes constituting an electronic use system,
and any matters that are necessary or convenient to be assessed or
taken into account for the purposes of the system, must be
determined by agreement between the administering body and the
relevant collecting society or, failing such agreement, by the
Copyright Tribunal on application made by either of them.
(2A) If:
(a) a work is reproduced by, or on behalf of, an administering
body, or is taken under this subsection to have been so
reproduced; and
(b) the reproduction is communicated by, or on behalf of, the
body by being made available online, or is taken under this
subsection to have been so communicated; and
(c) the reproduction remains so available online for longer than
the prescribed period;
then, when that period ends:
(d) the work is taken to have been reproduced again by, or on
behalf of, the body; and
(e) the reproduction mentioned in paragraph (a) is taken to have
been communicated again by, or on behalf of, the body by
making it available online for a further prescribed period.
(2B) An electronic use system (whether determined by agreement or by
the Copyright Tribunal) must require the assessment of an amount
of equitable remuneration by a method or process that takes
account of reproductions and communications to which
paragraphs (2A)(d) and (e) apply.
(2C) Subject to subsection (2B) but without limiting subsection (2), an
electronic use system (whether determined by agreement or by the
Copyright Tribunal) may be based upon a records system, a
sampling system or any other process or system.
(2D) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to different institutions administered by the
administering body.
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Equitable remuneration Division 5
Section 135ZX
Copyright Act 1968 371
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(3) If:
(a) an electronic use notice is given by, or on behalf of, an
administering body to a collecting society; and
(b) during any period the administering body does not comply
with one or more of the requirements of the electronic use
system determined under this section in relation to the notice;
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and
135ZS do not apply to any reproduction, copy or communication
of a work or other subject-matter made during that period by, or on
behalf of, the administering body, being a reproduction, copy or
communication to which the electronic use notice applies.
(4) In this section:
prescribed period means the period of 12 months, or if another is
agreed between the relevant administering body and collecting
society for the purposes of subsection (2A), that other period.
135ZX Records notices and sampling notices: marking and
record-keeping requirements
If records notice is given
(1) Where a records notice is given by, or on behalf of, an
administering body to a collecting society in respect of licensed
copies made in hardcopy form or analog form, the administering
body shall:
(a) mark, or cause to be marked, in accordance with the
regulations, each such licensed copy made by it, or on its
behalf, while the notice is in force, or any container in which
such a copy is kept;
(b) make, or cause to be made, a record of the making of each
such licensed copy that is carried out by it, or on its behalf,
while the notice is in force, being a record containing such
particulars as are prescribed;
(c) retain that record for the prescribed retention period after the
making of the copy to which it relates; and
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Section 135ZX
372 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(d) send copies of all such records to the collecting society in
accordance with the regulations.
(2) For the purposes of subsection (1), a record of the making of a
licensed copy:
(a) may be kept in writing or in any other manner prescribed;
and
(b) if it is kept in writing, shall be in accordance with the
prescribed form.
(2A) A matter that:
(a) relates to an activity required by paragraph (1)(b), (c) or (d);
and
(b) needs, or is convenient, to be determined; and
(c) is not determined by subsection (1) or (2) or regulations
made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a)
or (b);
is to be determined by agreement between the administering body
and the collecting society or, failing such agreement, the Copyright
Tribunal on the application of either of them.
(2B) Sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA,
135ZP and 135ZS do not apply to a reproduction or copy of a work
or other subject-matter made in hardcopy form or analog form by
or on behalf of the administering body during a period in which:
(a) an agreement, or an order of the Copyright Tribunal,
determining a matter described in subsection (2A) is in force;
and
(b) the body does not comply with the agreement or order.
If sampling notice is given
(3) If a sampling notice is given by, or on behalf of, an administering
body to a collecting society in respect of licensed copies made in
hardcopy form or analog form, the administering body must mark,
or cause to be marked, in accordance with the regulations, each
such licensed copy made by it, or on its behalf, while the notice is
in force, or any container in which such a copy is kept.
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Equitable remuneration Division 5
Section 135ZXA
Copyright Act 1968 373
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Regulations relevant to records notices and sampling notices
(4) Regulations made for the purposes of paragraph (1)(a) or (b) or
subsection (3) may prescribe different marks or particulars, and
impose different requirements, in relation to different kinds of
licensed copies or different kinds of works or eligible items.
135ZXA Electronic use notices: notice requirements etc.
If an electronic use notice is given by, or on behalf of, an
administering body to a collecting society, in respect of licensed
copies made in electronic form or licensed communications, the
administering body must:
(a) give a notice, in accordance with the regulations, in relation
to each such copy or communication made by it, or on its
behalf, while the electronic use notice is in force, containing:
(i) statements to the effect that the copy or communication
has been made under this Part and that any work or
other subject-matter contained in the copy or
communication might be subject to copyright protection
under this Act; and
(ii) such other information or particulars (if any) as are
prescribed; and
(b) in the case of each such communication made by it, or on its
behalf, while the electronic use notice is in force—take all
reasonable steps to ensure that the communication can only
be received or accessed by persons entitled to receive or
access it (for example, teachers or persons receiving
educational instruction or other assistance provided by the
relevant institution); and
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Division 5 Equitable remuneration
Section 135ZY
374 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(c) comply with such other requirements (if any) as are
prescribed in relation to each such copy or communication
made by it, or on its behalf, while the electronic use notice is
in force.
135ZY Inspection of records etc.
(1) Where a remuneration notice is or has been in force, the relevant
collecting society to which the notice was given may, in writing,
notify the administering body which gave the notice that the
society wishes, on a day specified in the notice, being an ordinary
working day of the institution specified in the notice not earlier
than 7 days after the day on which the notice is given to do such of
the following things as are specified in the notice:
(a) assess the amount of licensed copying or licensed
communication carried out at the premises of the institution;
(b) inspect all the relevant records held at those premises that
relate to the making of licensed copies or licensed
communications;
(c) inspect such other records held at those premises as are
relevant to the assessment of the amount of equitable
remuneration payable by the administering body to the
society.
(2) Where a collecting society gives a notice, a person authorised in
writing by the society may, during the ordinary working hours of
the relevant institution on the day specified in the notice (but not
before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect
the records, to which the notice relates and, for that purpose, may
enter the premises of the institution.
(3) An administering body shall take all reasonable precautions, and
exercise reasonable diligence, to ensure that a person referred to in
subsection (2) who attends at the premises of an institution
administered by the body for the purpose of exercising the powers
conferred by that subsection is provided with all reasonable and
necessary facilities and assistance for the effective exercise of
those powers.
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Equitable remuneration Division 5
Section 135ZZ
Copyright Act 1968 375
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(4) An administering body that contravenes subsection (3) commits an
offence punishable, on conviction, by a fine not exceeding 5
penalty units.
135ZZ Revocation of remuneration notice
A remuneration notice may be revoked at any time by the relevant
administering body by notice in writing given to the relevant
collecting society and the revocation takes effect at the end of 3
months after the date of the notice or on such later day as is
specified in the notice.
135ZZA Request for payment of equitable remuneration
(1) Subject to this section, where a remuneration notice is or has been
in force, the relevant collecting society may, by notice in writing
given to the administering body which gave the notice, request the
body to pay to the society, within a reasonable time after the date
of the notice, the amount of equitable remuneration specified in the
notice, being an amount payable under section 135ZV, 135ZW or
135ZWA, as the case may be, for licensed copies or licensed
communications made by, or on behalf of, the body while the
remuneration notice is or was in force.
(3) If an amount specified in a request is not paid in accordance with
the request, it may be recovered from the relevant administering
body by the relevant collecting society in the Federal Court of
Australia or in any other court of competent jurisdiction as a debt
due to the society.
(4) Jurisdiction is conferred on the Federal Court of Australia with
respect to actions under subsection (3).
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Division 6 Collecting societies
Section 135ZZB
376 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 6—Collecting societies
135ZZB Collecting societies
(1) A body may apply to the Minister to be declared as a collecting
society for all relevant copyright owners or for specified classes of
relevant copyright owners.
(1A) After receiving the application, the Minister must do one of the
following:
(a) declare the body to be a collecting society, by notice in the
Gazette;
(b) refuse to declare the body to be a collecting society;
(c) refer the application to the Copyright Tribunal in the way
prescribed by the regulations and notify the body of the
referral.
(1B) A declaration made under paragraph (1A)(a) is not a legislative
instrument.
(1C) If the Minister refers the application to the Copyright Tribunal, the
Tribunal may declare the body to be a collecting society.
Note: Section 153DC sets out the procedure of the Copyright Tribunal in
dealing with the reference.
(1D) A declaration of the body as a collecting society must declare the
body to be:
(a) the collecting society for all relevant copyright owners; or
(b) the collecting society for classes of relevant copyright owners
specified in the declaration.
(2) If a body is declared to be the collecting society for a specified
class of copyright owners and another body is subsequently
declared to be the collecting society for that class of copyright
owners:
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Collecting societies Division 6
Section 135ZZB
Copyright Act 1968 377
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(a) the first-mentioned collecting society ceases to be the
collecting society for that class of copyright owners on the
day on which the subsequent declaration is made; and
(b) any remuneration notice given to that collecting society
ceases to be in force to the extent to which it relates to
licensed copies of works or other subject-matter the
copyright owners of which are included in that class of
copyright owners.
(3) The Minister and the Copyright Tribunal must not declare the body
to be the collecting society unless:
(a) it is a company limited by guarantee and incorporated under
a law in force in a State or Territory relating to companies;
and
(b) all persons who are included in a class of relevant copyright
owners to be specified in the declaration, or their agents, are
entitled to become its members; and
(c) its rules prohibit the payment of dividends to its members;
and
(d) its rules contain such other provisions as are prescribed,
being provisions necessary to ensure that the interests of
members of the collecting society who are relevant copyright
owners or their agents are protected adequately, including, in
particular, provisions about:
(i) the collection of amounts of equitable remuneration
payable by administering bodies under section 135ZV,
135ZW or 135ZWA; and
(ii) the payment of the administrative costs of the collecting
society out of amounts collected by it; and
(iii) the distribution of amounts collected by the collecting
society; and
(iv) the holding on trust by the collecting society of amounts
for relevant copyright owners who are not its members;
and
(v) access to records of the collecting society by its
members.
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Division 6 Collecting societies
Section 135ZZC
378 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(4) If the Minister or the Copyright Tribunal has declared a body to be
the collecting society for a specified class of copyright owners, the
Minister and the Copyright Tribunal may refuse to declare another
body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those
copyright owners, having regard to the number of members of the
first-mentioned society, the scope of its activities and such other
considerations as are relevant.
135ZZC Revocation of declaration
(1) This section applies if the Minister is satisfied that a body declared
as a collecting society:
(a) is not functioning adequately as a collecting society; or
(b) is not acting in accordance with its rules or in the best
interests of those of its members who are relevant copyright
owners, or their agents; or
(c) has altered its rules so that they no longer comply with
paragraphs 135ZZB(3)(c) and (d); or
(d) has refused or failed, without reasonable excuse, to comply
with section 135ZZD or 135ZZE.
(2) The Minister may:
(a) by notice in the Gazette, revoke the declaration; or
(b) refer the question whether the declaration should be revoked
to the Copyright Tribunal in the way prescribed by the
regulations.
(3) If the Minister refers the question to the Copyright Tribunal, the
Tribunal may revoke the declaration if it is satisfied that any of
paragraphs (1)(a), (b), (c) and (d) applies to the body.
Note: Section 153DD sets out the procedure of the Copyright Tribunal in
dealing with the reference.
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Collecting societies Division 6
Section 135ZZD
Copyright Act 1968 379
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZD Annual report and accounts
(1) A collecting society shall, as soon as practicable after the end of
each financial year, prepare a report of its operations during that
financial year and send a copy of the report to the Minister.
(2) The Minister shall cause a copy of the report sent to the Minister
under subsection (1) to be laid before each House of the Parliament
within 15 sitting days of that House after the receipt of the report
by the Minister.
(3) A collecting society shall keep accounting records correctly
recording and explaining the transactions of the society (including
any transactions as trustee) and the financial position of the
society.
(4) The accounting records shall be kept in such a manner as will
enable true and fair accounts of the society to be prepared from
time to time and those accounts to be conveniently and properly
audited.
(5) A collecting society shall, as soon as practicable after the end of
each financial year, cause its accounts to be audited by an auditor
who is not a member of the society, and shall send to the Minister a
copy of its accounts as so audited.
(6) A collecting society shall give its members reasonable access to
copies of all reports and audited accounts prepared by it under this
section.
(7) This section does not affect any obligations of a collecting society
relating to the preparation and lodging of annual returns or
accounts under the law under which it is incorporated.
135ZZE Amendment of rules
A collecting society shall, within 21 days after it alters its rules,
send a copy of the rules as so altered to the Minister, together with
a statement setting out the effect of the alteration and the reasons
why it was made.
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Division 6 Collecting societies
Section 135ZZEA
380 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZEA Applying to Tribunal for review of distribution
arrangement
(1) A collecting society or a member of a collecting society may apply
to the Copyright Tribunal for review of the arrangement adopted,
or proposed to be adopted, by the collecting society for distributing
amounts it collects in a period.
(2) If the Tribunal makes an order under section 153DE varying the
arrangement or substituting for it another arrangement, the
arrangement reflecting the Tribunal’s order has effect as if it had
been adopted in accordance with the collecting society’s rules, but
does not affect a distribution started before the order was made.
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Miscellaneous Division 7
Section 135ZZF
Copyright Act 1968 381
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 7—Miscellaneous
135ZZF Rights of copyright owners
(1) Nothing in this Part affects the right of the owner of the copyright
in a work to grant a licence authorising the body administering an
educational institution to make, or cause to be made, a copy or
communication of the whole or a part of the work without
infringement of that copyright.
(2) Nothing in this Part affects the right of the owner of the copyright
in a work to grant a licence authorising the body administering an
institution assisting persons with a print disability to do any of the
following without infringement of that copyright:
(a) make, or cause to be made, a sound recording of, or a Braille,
large-print, photographic or electronic version of, the whole
or a part of the work;
(b) communicate, or cause to be communicated, the whole or a
part of the work.
(3) Nothing in this Part affects the right of the owner of the copyright
in an eligible item to grant a licence authorising the body
administering an institution assisting persons with an intellectual
disability to make, or cause to be made, a copy or communication
of the whole or a part of the eligible item without infringement of
that copyright.
135ZZG Copyright not to vest in copier
Despite any other provision of this Act, copyright does not vest in
the maker of a copy or communication of the whole or part of a
work for a person with a print disability, or of a copy or
communication of the whole or part of an eligible item for a person
with an intellectual disability, merely because of the making of the
copy or communication.
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Division 7 Miscellaneous
Section 135ZZH
382 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZH Unauthorised use of copies
(1) Where a copy, record or version of a work, a sound recording or a
cinematograph film, being a copy, record or version referred to in a
prescribed provision of this Part:
(a) is sold or otherwise supplied for a financial profit;
(b) is used for a purpose other than the purpose specified in the
prescribed provision; or
(c) is given to an administering body when there is not in force a
remuneration notice given by that body to the relevant
collecting society;
with the consent of the administering body by whom, or on whose
behalf, it is made or communicated, the prescribed provision does
not apply, and is taken never to have applied, to the making or
communication of the copy, record or version.
(2) For the purposes of this section, subsection 135ZG(1),
subsection 135ZJ(1), section 135ZK and subsections 135ZL(1),
135ZMB(1), 135ZMC(1), 135ZMD(1), 135ZP(1) and (2) and
135ZS(1) are prescribed provisions.
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Preliminary Division 1
Section 135ZZI
Copyright Act 1968 383
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Part VC—Retransmission of free-to-air broadcasts
Division 1—Preliminary
135ZZI Definitions
In this Part:
collecting society means a body that is, for the time being, declared
to be a collecting society under section 135ZZT.
delayed retransmission, in relation to a free-to-air broadcast,
means a retransmission of the broadcast in an area that has, wholly
or partly, different local time to the area of the original
transmission and that is delayed until no later than the equivalent
local time.
notice holder means the person who is, for the time being,
appointed to be the notice holder under section 135ZZX.
relevant collecting society, in relation to a remuneration notice,
means a collecting society for owners of copyright in the same
kind of work or other subject-matter as that to which the
remuneration notice relates.
relevant copyright owner means the owner of the copyright in a
work, a sound recording or a cinematograph film, but does not
include a new owner of the copyright in a sound recording of a live
performance within the meaning of Subdivision B of Division 5 of
Part IV.
remuneration notice means a notice referred to in section 135ZZL.
retransmitter means a person who makes a retransmission of a
free-to-air broadcast.
rules, in relation to a collecting society, means the provisions of
the memorandum and articles of association of the society.
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Division 1 Preliminary
Section 135ZZJ
384 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZJ Operation of collecting society rules
This Part applies to a collecting society despite anything in the
rules of the society, but nothing in this Part affects those rules so
far as they can operate together with this Part.
135ZZJA Application of Part
(1) This Part does not apply in relation to a retransmission of a
free-to-air broadcast if the retransmission takes place over the
internet.
(2) This Part does not apply in relation to a retransmission if:
(a) the retransmission is a re-broadcast by a satellite BSA
licensee; and
(b) subsection 135ZZZI(1) or (2) applies to the re-broadcast.
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Retransmission of free-to-air broadcasts Part VC
Retransmission of free-to-air broadcasts Division 2
Section 135ZZK
Copyright Act 1968 385
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 2—Retransmission of free-to-air broadcasts
135ZZK Retransmission of free-to-air broadcasts
(1) The copyright in a work, sound recording or cinematograph film
included in a free-to-air broadcast is not infringed by the
retransmission of the broadcast if:
(a) a remuneration notice given by, or on behalf of, the
retransmitter to the relevant collecting society is in force; and
(b) the free-to-air broadcast was made by a broadcaster specified
in the remuneration notice; and
(c) the retransmitter complies with section 135ZZN.
(2) The copyright in a work, sound recording or cinematograph film
included in a free-to-air broadcast is not infringed by the making of
a copy of the broadcast for the sole purpose of enabling a delayed
retransmission of the broadcast to be made.
(3) Subsection (2) does not apply if the retransmission of the broadcast
would infringe the copyright in the broadcast.
(4) If a copy of a broadcast made for the purpose referred to in
subsection (2) is not destroyed within 7 days after it is made,
subsection (2) does not apply, and is taken never to have applied,
in relation to the making of the copy.
(5) In this section, a reference to the making of a copy of a free-to-air
broadcast is a reference to making a cinematograph film or sound
recording of the broadcast, or a copy of such a film or sound
recording.
135ZZL Remuneration notices
(1) A retransmitter may, by notice in writing given to the relevant
collecting society by, or on behalf of, the retransmitter, undertake
to pay equitable remuneration to the society for retransmissions of
free-to-air broadcasts by specified broadcasters, being
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Division 2 Retransmission of free-to-air broadcasts
Section 135ZZM
386 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
retransmissions made by, or on behalf of, the retransmitter while
the notice is in force.
(2) A remuneration notice must specify that the amount of equitable
remuneration is to be assessed on the basis of the records to be kept
by the retransmitter under section 135ZZN.
(3) A remuneration notice comes into force on the day on which it is
given to the collecting society, or on such earlier day as is specified
in the notice, and remains in force until it is revoked.
135ZZM Amount of equitable remuneration
(1) If a retransmitter gives a remuneration notice to a collecting
society, the amount of equitable remuneration payable to the
collecting society for each retransmission made by, or on behalf of,
the retransmitter while the notice is in force is the amount
determined by agreement between the retransmitter and the
collecting society or, failing such agreement, by the Copyright
Tribunal on application made by either of them.
(2) If a determination has been made by the Copyright Tribunal under
subsection (1), either the retransmitter or the collecting society
may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination payable to the collecting
society by the retransmitter for retransmissions made by, or on
behalf of, the retransmitter.
(3) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to different classes of works, sound recordings or
cinematograph films included in retransmissions.
135ZZN Record system
(1) If a remuneration notice is given to a collecting society by, or on
behalf of, a retransmitter, the retransmitter must establish and
maintain a record system.
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Retransmission of free-to-air broadcasts Division 2
Section 135ZZP
Copyright Act 1968 387
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) The record system must provide for a record to be kept of the title
of each program included in each retransmission made by, or on
behalf of, the retransmitter of each broadcast made by each
broadcaster specified in the remuneration notice.
(3) Subject to subsection (2), the record system must be determined by
agreement between the retransmitter and the collecting society or,
failing such agreement, by the Copyright Tribunal on application
made by either of them.
135ZZP Inspection of records etc.
(1) If a remuneration notice is or has been in force, the collecting
society to which it was given may, in writing, notify the relevant
retransmitter that the society wishes, on a day specified in the
notice, being an ordinary working day of the retransmitter specified
in the notice, not earlier than 7 days after the day on which the
notice is given, to do such of the following things as are specified
in the notice:
(a) assess the number of retransmissions carried out at the
premises of the retransmitter;
(b) inspect all the relevant records held at those premises that
relate to the making of retransmissions in reliance on
section 135ZZK;
(c) inspect such other records held at those premises as are
relevant to the assessment of the amount of equitable
remuneration payable by the retransmitter to the society.
(2) Subject to section 135ZZQ, if a collecting society gives a notice, a
person authorised in writing by the society may, during the
ordinary working hours of the retransmitter on the day specified in
the notice (but not before 10 am or after 3 pm), carry out the
assessment, or inspect the records, to which the notice relates and,
for that purpose, may enter the premises of the retransmitter.
(3) A retransmitter must take all reasonable precautions, and exercise
reasonable diligence, to ensure that a person referred to in
subsection (2) who attends the premises of the retransmitter for the
purpose of exercising the powers conferred by that subsection is
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Division 2 Retransmission of free-to-air broadcasts
Section 135ZZQ
388 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
provided with all reasonable and necessary facilities and assistance
for the effective exercise of those powers.
(4) A retransmitter who contravenes subsection (3) commits an
offence punishable, on conviction, by a fine not exceeding 10
penalty units.
Note: A corporation may be fined up to 5 times the amount of the maximum
fine. See subsection 4B(3) of the Crimes Act 1914.
135ZZQ Identity cards
(1) The chief executive officer (however described) of a collecting
society must issue an identity card in the prescribed form to each
person authorised by the society for the purposes of
subsection 135ZZP(2). The identity card must contain a recent
photograph of the authorised person.
(2) If an authorised person who attends or enters premises for the
purpose of exercising powers conferred by subsection 135ZZP(2)
fails to produce his or her identity card when asked to do so by a
person apparently in charge of the premises, the authorised person
must not enter or remain on the premises or exercise any other
powers under subsection 135ZZP(2) at the premises.
(3) A person commits an offence punishable on conviction by a fine
not exceeding 1 penalty unit if:
(a) the person has been issued with an identity card; and
(b) the person stops being an authorised person; and
(c) the person does not, immediately after he or she stops being
an authorised person, return the identity card to the relevant
collecting society.
(4) An authorised person must carry his or her identity card at all times
when exercising powers under subsection 135ZZP(2).
135ZZR Revocation of remuneration notice
A remuneration notice may be revoked at any time by the relevant
retransmitter by notice in writing given to the collecting society to
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Section 135ZZS
Copyright Act 1968 389
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
which the remuneration notice was given, and the revocation takes
effect at the end of 3 months after the date of the notice, or on such
later day as is specified in it.
135ZZS Request for payment of equitable remuneration
(1) Subject to this section, where a remuneration notice is or has been
in force, the collecting society to which the notice was given may,
by notice in writing given to the relevant retransmitter, request the
retransmitter to pay to the society, within a reasonable time after
the date of the notice, the amount of equitable remuneration
specified in the notice, being an amount payable under
section 135ZZM for retransmissions made by, or on behalf of, the
retransmitter while the remuneration notice is or was in force.
(2) If an amount specified in a request under subsection (1) is not paid
in accordance with the request, it may be recovered from the
retransmitter by the collecting society in the Federal Court of
Australia or any other court of competent jurisdiction as a debt due
to the society.
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Division 3 Collecting societies
Section 135ZZT
390 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Collecting societies
135ZZT Collecting societies
(1) A body may apply to the Minister to be declared as a collecting
society for all relevant copyright owners or for specified classes of
relevant copyright owners.
(1A) After receiving the application, the Minister must do one of the
following:
(a) declare the body to be a collecting society, by notice in the
Gazette;
(b) refuse to declare the body to be a collecting society;
(c) refer the application to the Copyright Tribunal in the way
prescribed by the regulations and notify the body of the
referral.
(1B) A declaration made under paragraph (1A)(a) is not a legislative
instrument.
(1C) If the Minister refers the application to the Copyright Tribunal, the
Tribunal may declare the body to be a collecting society.
Note: Section 153P sets out the procedure of the Copyright Tribunal in
dealing with the reference.
(1D) A declaration of the body as a collecting society must declare the
body to be:
(a) the collecting society for all relevant copyright owners; or
(b) the collecting society for classes of relevant copyright owners
specified in the declaration.
(2) If a body is declared to be the collecting society for a specified
class of copyright owners and another body is subsequently
declared to be the collecting society for that class of copyright
owners:
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Section 135ZZT
Copyright Act 1968 391
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(a) the first-mentioned collecting society ceases to be the
collecting society for that class of copyright owners on the
day on which the subsequent declaration is made; and
(b) any remuneration notice given to that collecting society
ceases to be in force to the extent to which it relates to
relevant copyright owners included in that class of copyright
owners.
(3) The Minister and the Copyright Tribunal must not declare a body
to be a collecting society unless:
(a) it is a company limited by guarantee and incorporated under
a law in force in a State or Territory relating to companies;
and
(b) all persons who are included in a class of relevant copyright
owners to be specified in the declaration, or their agents, are
entitled to become its members; and
(c) its rules prohibit the payment of dividends to its members;
and
(d) its rules contain such other provisions as are prescribed,
being provisions necessary to ensure that the interests of
members of the collecting society who are relevant copyright
owners, or their agents, are protected adequately, including,
in particular, provisions about:
(i) the collection of amounts of equitable remuneration
payable under section 135ZZM; and
(ii) the payment of the administrative costs of the collecting
society out of amounts collected by it; and
(iii) the distribution of amounts collected by the collecting
society; and
(iv) the holding on trust by the collecting society of amounts
for relevant copyright owners who are not its members;
and
(v) access to records of the collecting society by its
members.
(4) If the Minister or the Copyright Tribunal has declared a body to be
the collecting society for a specified class of copyright owners, the
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Division 3 Collecting societies
Section 135ZZU
392 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Minister and the Copyright Tribunal may refuse to declare another
body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those
copyright owners, having regard to the number of members of the
first-mentioned society, the scope of its activities and such other
considerations as are relevant.
135ZZU Revocation of declaration
(1) This section applies if the Minister is satisfied that a body declared
as a collecting society:
(a) is not functioning adequately as a collecting society; or
(b) is not acting in accordance with its rules or in the best
interests of those of its members who are relevant copyright
owners, or their agents; or
(c) has altered its rules so that they no longer comply with
paragraphs 135ZZT(3)(c) and (d); or
(d) has refused or failed, without reasonable excuse, to comply
with section 135ZZV or 135ZZW.
(2) The Minister may:
(a) by notice in the Gazette, revoke the declaration; or
(b) refer the question whether the declaration should be revoked
to the Copyright Tribunal in the way prescribed by the
regulations.
(3) If the Minister refers the question to the Copyright Tribunal, the
Tribunal may revoke the declaration if it is satisfied that any of
paragraphs (1)(a), (b), (c) and (d) applies to the body.
Note: Section 153Q sets out the procedure of the Copyright Tribunal in
dealing with the reference.
135ZZV Annual report and accounts
(1) A collecting society must, as soon as practicable after the end of
each financial year, prepare a report of its operations during that
financial year and send a copy of the report to the Minister.
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Section 135ZZW
Copyright Act 1968 393
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) The Minister must cause a copy of the report sent to the Minister
under subsection (1) to be laid before each House of the Parliament
within 15 sitting days of that House after the receipt of the report
by the Minister.
(3) A collecting society must keep accounting records correctly
recording and explaining the transactions of the society (including
any transactions as trustee) and the financial position of the
society.
(4) The accounting records must be kept in such a manner as will
enable true and fair accounts of the society to be prepared from
time to time and those accounts to be conveniently and properly
audited.
(5) A collecting society must, as soon as practicable after the end of
each financial year, cause its accounts to be audited by an auditor
who is not a member of the society, and must send to the Minister
a copy of its accounts as so audited.
(6) A collecting society must give its members reasonable access to
copies of all reports and audited accounts prepared by it under this
section.
(7) This section does not affect any obligations of a collecting society
relating to the preparation and lodging of annual returns or
accounts under the law under which it is incorporated.
135ZZW Amendment of rules
A collecting society must, within 21 days after it alters its rules,
send a copy of the rules as so altered to the Minister, together with
a statement setting out the effect of the alteration and the reasons
why it was made.
135ZZWA Applying to Tribunal for review of distribution
arrangement
(1) A collecting society or a member of a collecting society may apply
to the Copyright Tribunal for review of the arrangement adopted,
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Section 135ZZWA
394 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
or proposed to be adopted, by the collecting society for distributing
amounts it collects in a period.
(2) If the Tribunal makes an order under section 153R varying the
arrangement or substituting for it another arrangement, the
arrangement reflecting the Tribunal’s order has effect as if it had
been adopted in accordance with the collecting society’s rules, but
does not affect a distribution started before the order was made.
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Interim retransmissions Division 4
Section 135ZZX
Copyright Act 1968 395
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Interim retransmissions
135ZZX Appointment of notice holder
The Minister may, by notice in the Gazette, appoint a person to be
the notice holder for the purposes of this Division.
135ZZY Retransmitting before declaration of collecting society
The copyright in any work, sound recording or cinematograph film
included in a retransmission of a free-to-air broadcast is not
infringed by the making of the retransmission if:
(a) at the time the retransmission is made, a collecting society
has not been declared; and
(b) a notice given by the retransmitter by whom, or on whose
behalf, the retransmission was made to the notice holder
under subsection 135ZZZ(1) is in force; and
(c) the retransmitter complies with section 135ZZN.
135ZZZ Notices by retransmitters
(1) A retransmitter may at any time before the declaration of the first
collecting society, by notice in writing given to the notice holder
by, or on behalf of, the retransmitter, undertake to pay equitable
remuneration to a collecting society, when it is declared, for
retransmissions made by, or on behalf of, the retransmitter while
the notice is in force.
(2) A notice must specify that the amount of equitable remuneration is
to be assessed on the basis of the records to be kept by the
retransmitter under section 135ZZN.
(3) A notice comes into force on the day on which it is given to the
notice holder, or on such later day as is specified in the notice, and
remains in force until it is revoked.
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Division 4 Interim retransmissions
Section 135ZZZA
396 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(4) A notice may be revoked at any time by the retransmitter by notice
in writing given to the notice holder, and the revocation takes
effect on the date of the notice of revocation or on such later date
as is specified in it.
135ZZZA Record keeping requirements
If a retransmitter gives a notice to the notice holder under
section 135ZZZ, sections 135ZZM and 135ZZN apply as if:
(a) references to a collecting society were references to the
notice holder; and
(b) references to a remuneration notice were references to a
notice under section 135ZZZ.
135ZZZB Effect of declaration of collecting society
(1) If:
(a) as a result of the declaration of one or more collecting
societies, there is a society for all relevant copyright owners;
and
(b) a notice under section 135ZZZ was in force immediately
before the day on which the declaration came into force;
then, on and after that day, the notice ceases to have effect as such
a notice, but is taken, for the purposes of this Part, to be a
remuneration notice that:
(c) was given by the relevant retransmitter to the collecting
society, or to each of the collecting societies, as the case may
be; and
(d) came into force on the same day as the notice came into
force.
(2) If:
(a) one or more collecting societies are declared for one or more,
but not for all, classes of relevant copyright owners; and
(b) a notice was in force immediately before the day on which
the declaration came into force;
then, on and after that day:
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Section 135ZZZB
Copyright Act 1968 397
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(c) the notice ceases to have effect as such a notice in relation to
the relevant copyright owners in the class or classes of
copyright owners for whom a collecting society is declared,
but is taken, for the purposes of this Part, to be a
remuneration notice that:
(i) was given by the relevant retransmitter to the collecting
society or to each of the collecting societies, as the case
may be; and
(ii) came into force on the same day as the notice came into
force; and
(d) the notice continues to have effect as such a notice in relation
to all other relevant copyright owners.
(3) When a notice is, under this section, taken to be a remuneration
notice, the relevant retransmitter must cause copies of all records
made under section 135ZZN on or after the day on which the
notice is taken to have come into force to be sent to the relevant
collecting society within 21 days after the declaration of the
collecting society.
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Division 5 Miscellaneous
Section 135ZZZC
398 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Miscellaneous
135ZZZC Relevant copyright owner may authorise retransmitting
Nothing in this Part affects the right of the owner of the copyright
in a work, sound recording or cinematograph film included in a
free-to-air broadcast to grant a licence authorising a retransmitter
to make, or cause to be made, a retransmission of the free-to-air
broadcast without infringing that copyright.
135ZZZD Copyright not to vest under this Part
Despite any other provision of this Act, the retransmission of a
free-to-air broadcast by, or on behalf of, a retransmitter that is not
an infringement of copyright under this Part, does not vest
copyright in any work or other subject-matter in any person.
135ZZZE Licence to retransmit does not authorise copyright
infringements
The owner of the copyright in a free-to-air broadcast is not taken,
for the purpose of this Act, to have authorised the infringement of
copyright in any work, sound recording or cinematograph film
included in the broadcast merely because the owner licences the
retransmission of the broadcast.
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Preliminary Division 1
Section 135ZZZF
Copyright Act 1968 399
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Part VD—Re-broadcasts by satellite BSA licensees
Division 1—Preliminary
135ZZZF Definitions
In this Part:
collecting society means a body that is, for the time being, declared
to be a collecting society under section 135ZZZO.
commercial television broadcasting licence has the same meaning
as in the Broadcasting Services Act 1992.
eligible program has the meaning given by section 135ZZZG.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
notice holder means the person who is, for the time being,
appointed to be the notice holder under section 135ZZZT.
original broadcaster has the meaning given by section 135ZZZG.
relevant collecting society, in relation to a remuneration notice,
means a collecting society for owners of copyright in the same
kind of work or other subject-matter as that to which the
remuneration notice relates.
relevant copyright owner means the owner of the copyright in a
work, a sound recording or a cinematograph film, but does not
include a new owner of the copyright in a sound recording of a live
performance within the meaning of Subdivision B of Division 5 of
Part IV.
remuneration notice means a notice referred to in
section 135ZZZJ.
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Division 1 Preliminary
Section 135ZZZG
400 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
rules, in relation to a collecting society, means the provisions of
the memorandum and articles of association of the society.
135ZZZG Eligible program and original broadcaster
(2) For the purposes of this Part, if the following conditions are
satisfied in relation to a program:
(a) the program is broadcast by the licensee of a commercial
television broadcasting licence for a regional licence area
(within the meaning of section 43AA of the Broadcasting
Services Act 1992);
(b) the licensee is required to provide the program to a satellite
BSA licensee under section 43AA of that Act;
then:
(c) the program is an eligible program; and
(d) the licensee mentioned in paragraph (a) is the original
broadcaster of the eligible program.
(3) For the purposes of this Part, if the following conditions are
satisfied in relation to a program:
(a) the program is broadcast by the licensee of a commercial
television broadcasting licence;
(b) the licensee is required to provide the program to a satellite
BSA licensee under section 43AB or 43AC of the
Broadcasting Services Act 1992;
then:
(c) the program is an eligible program; and
(d) the licensee mentioned in paragraph (a) is the original
broadcaster of the eligible program.
135ZZZH Operation of collecting society rules
This Part applies to a collecting society despite anything in the
rules of the society, but nothing in this Part affects those rules so
far as they can operate together with this Part.
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Re-broadcasts by satellite BSA licensees Division 2
Section 135ZZZI
Copyright Act 1968 401
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Division 2—Re-broadcasts by satellite BSA licensees
135ZZZI Re-broadcasts by satellite BSA licensees
Copyright in a work, sound recording or cinematograph film
included in an eligible program
(1) The copyright in a work, sound recording or cinematograph film
included in a broadcast of an eligible program is not infringed by
the re-broadcast of the eligible program if:
(a) the eligible program is re-broadcast by a satellite BSA
licensee; and
(b) the eligible program is re-broadcast on a service authorised
by the satellite BSA licensee’s satellite BSA licence; and
(c) the re-broadcast of the eligible program complies with the
conditions of the satellite BSA licensee’s satellite BSA
licence that are set out in clause 7A of Schedule 2 to the
Broadcasting Services Act 1992; and
(d) a remuneration notice given by the satellite BSA licensee to
the relevant collecting society is in force; and
(e) the original broadcaster of the eligible program was specified
in the remuneration notice; and
(f) the satellite BSA licensee complies with section 135ZZZL.
Copyright in a broadcast of an eligible program
(2) The copyright in a broadcast of an eligible program is not infringed
by the re-broadcast of the eligible program if:
(a) the eligible program is re-broadcast by a satellite BSA
licensee; and
(b) the eligible program is re-broadcast on a service authorised
by the satellite BSA licensee’s satellite BSA licence; and
(c) the re-broadcast of the eligible program complies with the
conditions of the satellite BSA licensee’s satellite BSA
licence that are set out in clause 7A of Schedule 2 to the
Broadcasting Services Act 1992; and
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Section 135ZZZI
402 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(d) any of the following conditions is satisfied:
(i) there is an agreement in force between the satellite BSA
licensee and the owner of the copyright in the broadcast
of the eligible program as to the amount payable by the
satellite BSA licensee to the owner of the copyright for
the re-broadcast of eligible programs during a particular
period;
(ii) if there is no agreement—there is in force a
determination of the Copyright Tribunal under
section 153RA of the amount payable by the satellite
BSA licensee to the owner of the copyright in the
broadcast of the eligible program for the re-broadcast of
eligible programs during a particular period;
(iii) if there is no agreement or determination—the satellite
BSA licensee has given the owner of the copyright in
the broadcast of the eligible program a written
undertaking to pay to the owner of the copyright such
amount as is determined by the Copyright Tribunal
under section 153RA for the re-broadcast of eligible
programs during a particular period; and
(e) the eligible program is re-broadcast by the satellite BSA
licensee during the period mentioned in whichever of
subparagraphs (d)(i), (ii) or (iii) applies.
Making a copy for the purpose of a re-broadcast
(3) The copyright in a work, sound recording or cinematograph film
included in a broadcast of an eligible program is not infringed by
the making of a copy of the eligible program if:
(a) the sole purpose of making the copy is to enable a
re-broadcast of the eligible program at a later time; and
(b) subsection (1) would apply to the re-broadcast of the eligible
program at the later time.
(4) The copyright in a broadcast of an eligible program is not infringed
by the making of a copy of the eligible program if:
(a) the sole purpose of making the copy is to enable a
re-broadcast of the eligible program at a later time; and
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Section 135ZZZJ
Copyright Act 1968 403
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(b) subsection (2) would apply to the re-broadcast of the eligible
program at the later time.
(5) If:
(a) a copy of an eligible program is made for a purpose referred
to in subsection (3) or (4); and
(b) under a law of the Commonwealth, the satellite BSA licensee
is required to retain the copy for a period longer than 7 days
after the copy is made; and
(c) the copy is not destroyed as soon as practicable after the end
of that period;
subsection (3) or (4), as the case requires, does not apply, and is
taken never to have applied, in relation to the making of the copy.
(5A) If:
(a) a copy of an eligible program is made for a purpose referred
to in subsection (3) or (4); and
(b) subsection (5) does not apply; and
(c) the copy is not destroyed within 7 days after it is made;
subsection (3) or (4), as the case requires, does not apply, and is
taken never to have applied, in relation to the making of the copy.
(6) In this section, a reference to the making of a copy of an eligible
program is a reference to making a cinematograph film or sound
recording of the broadcast of the eligible program, or a copy of
such a film or sound recording.
135ZZZJ Remuneration notices
(1) A satellite BSA licensee may, by written notice given to the
relevant collecting society, undertake to pay equitable
remuneration to the society for re-broadcasts of eligible programs
broadcast by specified original broadcasters, where the eligible
programs are re-broadcast by the satellite BSA licensee while the
notice is in force.
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Division 2 Re-broadcasts by satellite BSA licensees
Section 135ZZZK
404 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(2) A remuneration notice must specify that the amount of equitable
remuneration is to be assessed on the basis of the records to be kept
by the satellite BSA licensee under section 135ZZZL.
(3) A remuneration notice comes into force on:
(a) the day on which it is given to the collecting society; or
(b) such earlier day as is specified in the notice;
and remains in force until it is revoked.
135ZZZK Amount of equitable remuneration
(1) If a satellite BSA licensee gives a remuneration notice to a
collecting society, the amount of equitable remuneration payable to
the collecting society for re-broadcasts of eligible programs by the
satellite BSA licensee while the notice is in force is the amount:
(a) determined by agreement between the satellite BSA licensee
and the collecting society; or
(b) failing such agreement—determined by the Copyright
Tribunal on application made by either of them.
(2) If a determination has been made by the Copyright Tribunal under
subsection (1), either:
(a) the satellite BSA licensee; or
(b) the collecting society;
may, at any time after 12 months from the day on which the
determination was made, apply to the Tribunal under that
subsection for a new determination of amounts payable to the
collecting society by the satellite BSA licensee for re-broadcasts of
eligible programs by the satellite BSA licensee.
(3) For the purposes of subsection (1), different amounts may be
determined (whether by agreement or by the Copyright Tribunal)
in relation to different classes of:
(a) works; or
(b) sound recordings; or
(c) cinematograph films;
included in re-broadcasts.
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Re-broadcasts by satellite BSA licensees Division 2
Section 135ZZZL
Copyright Act 1968 405
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZZL Record system
(1) If a remuneration notice is given to a collecting society by a
satellite BSA licensee, the satellite BSA licensee must establish
and maintain a record system.
(2) The record system must provide:
(a) for a record to be kept of the title of each eligible program
that is:
(i) broadcast by an original broadcaster specified in the
remuneration notice; and
(ii) re-broadcast by the satellite BSA licensee; and
(b) for the collecting society to have access to such a record.
(3) The record system must be:
(a) determined by agreement between the satellite BSA licensee
and the collecting society; or
(b) failing such agreement—determined by the Copyright
Tribunal on application made by either of them.
(4) Subsection (3) has effect subject to subsection (2).
135ZZZM Revocation of remuneration notice
(1) A remuneration notice may be revoked at any time by the relevant
satellite BSA licensee by written notice given to the collecting
society to which the remuneration notice was given.
(2) The revocation takes effect:
(a) at the end of 3 months after the date of the notice; or
(b) on such later day as is specified in the notice.
135ZZZN Request for payment of equitable remuneration
(1) If a remuneration notice is or has been in force, the collecting
society to which the notice was given may, by written notice given
to the relevant satellite BSA licensee, request the satellite BSA
licensee to pay to the society, within a reasonable time after the
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Section 135ZZZN
406 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
date of the notice, the amount of equitable remuneration specified
in the notice.
(2) The amount specified in the notice must be an amount payable
under section 135ZZZK for re-broadcasts made by the satellite
BSA licensee while the remuneration notice is or was in force.
(3) Subsection (1) has effect subject to subsection (4).
(4) If an amount specified in a request under subsection (1) is not paid
in accordance with the request, it may be recovered from the
satellite BSA licensee by the collecting society in:
(a) the Federal Court of Australia; or
(b) any other court of competent jurisdiction;
as a debt due to the society.
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Collecting societies Division 3
Section 135ZZZO
Copyright Act 1968 407
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Collecting societies
135ZZZO Collecting societies
(1) A body may apply to the Minister to be declared as a collecting
society for:
(a) all relevant copyright owners; or
(b) specified classes of relevant copyright owners.
(2) After receiving the application, the Minister must do one of the
following:
(a) by notice published in the Gazette, declare the body to be a
collecting society;
(b) refuse to declare the body to be a collecting society;
(c) both:
(i) refer the application to the Copyright Tribunal in the
way prescribed by the regulations; and
(ii) notify the body of the referral.
(3) A declaration made under paragraph (2)(a) is not a legislative
instrument.
(4) If the Minister refers the application to the Copyright Tribunal, the
Tribunal may declare the body to be a collecting society.
Note: Section 153U sets out the procedure of the Copyright Tribunal in
dealing with the reference.
(5) A declaration of the body as a collecting society must declare the
body to be:
(a) the collecting society for all relevant copyright owners; or
(b) the collecting society for classes of relevant copyright owners
specified in the declaration.
(6) If:
(a) a body is declared to be the collecting society for a specified
class of copyright owners; and
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Section 135ZZZO
408 Copyright Act 1968
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(b) another body is subsequently declared to be the collecting
society for that class of copyright owners:
then:
(c) the first-mentioned collecting society ceases to be the
collecting society for that class of copyright owners on the
day on which the subsequent declaration is made; and
(d) any remuneration notice given to that collecting society
ceases to be in force to the extent to which it relates to
relevant copyright owners included in that class of copyright
owners.
(7) The Minister and the Copyright Tribunal must not declare a body
to be a collecting society unless:
(a) it is:
(i) registered as a company under Part 2A.2 of the
Corporations Act 2001; and
(ii) a company limited by guarantee; and
(b) all persons who are included in a class of relevant copyright
owners to be specified in the declaration, or their agents, are
entitled to become its members; and
(c) its rules prohibit the payment of dividends to its members;
and
(d) its rules contain such other provisions as are prescribed,
where the provisions are necessary to ensure that the interests
of members of the collecting society who are relevant
copyright owners, or their agents, are protected adequately,
including, in particular, provisions about:
(i) the collection of amounts of equitable remuneration
payable under section 135ZZZK; and
(ii) the payment of the administrative costs of the collecting
society out of amounts collected by it; and
(iii) the distribution of amounts collected by the collecting
society; and
(iv) the holding on trust by the collecting society of amounts
for relevant copyright owners who are not its members;
and
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Section 135ZZZP
Copyright Act 1968 409
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
(v) access to records of the collecting society by its
members.
(8) If the Minister or the Copyright Tribunal has declared a body to be
the collecting society for a specified class of copyright owners, the
Minister and the Copyright Tribunal may refuse to declare another
body to be the collecting society for that class of copyright owners
unless satisfied that to do so would be in the interests of those
copyright owners, having regard to:
(a) the number of members of the first-mentioned society; and
(b) the scope of its activities; and
(c) such other considerations as are relevant.
135ZZZP Revocation of declaration
(1) This section applies if the Minister is satisfied that a body declared
as a collecting society:
(a) is not functioning adequately as a collecting society; or
(b) is not acting in accordance with its rules or in the best
interests of those of its members who are relevant copyright
owners, or their agents; or
(c) has altered its rules so that they no longer comply with
paragraphs 135ZZZO(7)(c) and (d); or
(d) has refused or failed, without reasonable excuse, to comply
with section 135ZZZQ or 135ZZZR.
(2) The Minister may:
(a) by notice published in the Gazette, revoke the declaration; or
(b) refer the question whether the declaration should be revoked
to the Copyright Tribunal in the way prescribed by the
regulations.
(3) If the Minister refers the question to the Copyright Tribunal, the
Tribunal may revoke the declaration if it is satisfied that any of
paragraphs (1)(a), (b), (c) and (d) applies to the body.
Note: Section 153V sets out the procedure of the Copyright Tribunal in
dealing with the reference.
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Division 3 Collecting societies
Section 135ZZZQ
410 Copyright Act 1968
Compilation No. 53 Compilation date: 23/6/17 Registered: 30/6/17
135ZZZQ Annual report and accounts
(1) A collecting society must, as soon as practicable after the end of
each financial year, prepare a report of its operations during that
financial year and send a copy of the report to the Minister.
(2) The Minister must cause a copy of the report sent to the Minister
under subsection (1) to be tabled in each House of the Parliament
within 15 sitting days of that House after the receipt of the report
by the Minister.
(3) A collecting society must keep accounting records correctly
recording and explaining:
(a) the transactions of the society (including any transactions as
trustee); and
(b) the financial position of the society.
(4) The accounting records must be kept in such a manner as will
enable:
(a) true and fair accounts of the society to be prepared from time
to time; and
(b) those accounts to be conveniently and properly audited.
(5) A collecting society must, as soon as practicable after the end of
each financial year:
(a) cause its accounts to be audited by an auditor who is not a
member of the society; and
(b) send to the Minister a copy of its accounts as so audited.
(6) A collecting society must give its members reasonable access to
copies of all reports and audited accounts prepared by it under this
section.
(7) This section does not affect any obligations of a collecting society
relating to the preparation and lodging of annual returns or
accounts under the Corporations Act 2001.
(8) For the purposes of this section, the period:
(a) beginning at the commencement of this section; and
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Section 135ZZZR
Copyright Act 1968 411
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(b) ending at the end of 30 June 2010;
is taken to be a financial year.
135ZZZR Amendment of rules
A collecting society must, within 21 days after it alters its rules,
send a copy of the rules as so altered to the Minister, together with
a statement setting out:
(a) the effect of the alteration; and
(b) the reasons why it was made.
135ZZZS Applying to Tribunal for review of distribution
arrangement
(1) A collecting society or a member of a collecting society may apply
to the Copyright Tribunal for review of the arrangement adopted,
or proposed to be adopted, by the collecting society for distributing
amounts it collects in a period.
(2) If the Tribunal makes an order under section 153W varying the
arrangement or substituting for it another arrangement, the
arrangement reflecting the Tribunal’s order has effect as if it had
been adopted in accordance with the collecting society’s rules, but
does not affect a distribution started before the order was made.
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Section 135ZZZT
412 Copyright Act 1968
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Division 4—Interim re-broadcasts
135ZZZT Appointment of notice holder
The Minister may, by notice published in the Gazette, appoint a
person to be the notice holder for the purposes of this Division.
135ZZZU Re-broadcast before declaration of collecting society
The copyright in a work, sound recording or cinematograph film
included in a broadcast of an eligible program is not infringed by
the re-broadcast of the eligible program if:
(a) the eligible program is re-broadcast by a satellite BSA
licensee; and
(b) the eligible program is re-broadcast on a service authorised
by the satellite BSA licensee’s satellite BSA licence; and
(c) the re-broadcast of the eligible program complies with the
conditions of the satellite BSA licensee’s satellite BSA
licence that are set out in clause 7A of Schedule 2 to the
Broadcasting Services Act 1992; and
(d) at the time the re-broadcast is made, a collecting society has
not been declared; and
(e) a notice given by the satellite BSA licensee to the notice
holder under subsection 135ZZZV(1) is in force; and
(f) the satellite BSA licensee complies with section 135ZZZL.
135ZZZV Notices by satellite BSA licensees
(1) A satellite BSA licensee may, at any time before the declaration of
the first collecting society, by written notice given to the notice
holder by the satellite BSA licensee, undertake to pay equitable
remuneration to a collecting society, when it is declared, for
re-broadcasts of eligible programs by the satellite BSA licensee
while the notice is in force.
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Section 135ZZZW
Copyright Act 1968 413
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(2) A notice must specify that the amount of equitable remuneration is
to be assessed on the basis of the records to be kept by the satellite
BSA licensee under section 135ZZZL.
(3) A notice comes into force on:
(a) the day on which it is given to the notice holder; or
(b) such later day as is specified in the notice;
and remains in force until it is revoked.
(4) A notice may be revoked at any time by the satellite BSA licensee
by written notice given to the notice holder.
(5) The revocation takes effect:
(a) on the date of the notice of revocation; or
(b) on such later date as is specified in the notice of revocation.
135ZZZW Record keeping requirements
If a satellite BSA licensee gives a notice to the notice holder under
section 135ZZZV, sections 135ZZZK and 135ZZZL apply as if:
(a) references to a collecting society were references to the
notice holder; and
(b) references to a remuneration notice were references to a
notice under section 135ZZZV.
135ZZZX Effect of declaration of collecting society
(1) If:
(a) as a result of the declaration of one or more collecting
societies, there is a society for all relevant copyright owners;
and
(b) a notice under section 135ZZZV was in force immediately
before the day on which the declaration came into force;
then, on and after that day, the notice ceases to have effect as such
a notice, but is taken, for the purposes of this Part, to be a
remuneration notice that:
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Section 135ZZZX
414 Copyright Act 1968
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(c) was given by the relevant satellite BSA licensee to the
collecting society, or to each of the collecting societies, as the
case may be; and
(d) came into force on the same day as the notice came into
force.
(2) If:
(a) one or more collecting societies are declared for one or more,
but not for all, classes of relevant copyright owners; and
(b) a notice was in force immediately before the day on which
the declaration came into force;
then, on and after that day:
(c) the notice ceases to have effect as such a notice in relation to
the relevant copyright owners in the class or classes of
copyright owners for whom a collecting society is declared,
but is taken, for the purposes of this Part, to be a
remuneration notice that:
(i) was given by the relevant satellite BSA licensee to the
collecting society or to each of the collecting societies,
as the case may be; and
(ii) came into force on the same day as the notice came into
force; and
(d) the notice continues to have effect as such a notice in relation
to all other relevant copyright owners.
(3) When a notice is, under this section, taken to be a remuneration
notice, the relevant satellite BSA licensee must cause copies of all
records made under section 135ZZZL on or after the day on which
the notice is taken to have come into force to be sent to the relevant
collecting society within 21 days after the declaration of the
collecting society.
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Section 135ZZZY
Copyright Act 1968 415
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Division 5—Miscellaneous
135ZZZY Relevant copyright owner may authorise re-broadcast
(1) Nothing in this Part affects the right of the owner of the copyright
in a broadcast of an eligible program to grant a licence authorising
a satellite BSA licensee to re-broadcast the eligible program
without infringing that copyright.
(2) Nothing in this Part affects the right of the owner of the copyright
in a work, sound recording or cinematograph film included in a
broadcast of an eligible program to grant a licence authorising a
satellite BSA licensee to re-broadcast the eligible program without
infringing that copyright.
135ZZZZ Copyright not to vest under this Part
Despite any other provision of this Act, the re-broadcast of an
eligible program that is not an infringement of copyright under this
Part does not vest copyright in any work or other subject-matter in
any person.
135ZZZZA Licence to re-broadcast does not authorise copyright
infringements
The owner of the copyright in a broadcast of an eligible program is
not taken, for the purposes of this Act, to have authorised the
infringement of copyright in any work, sound recording or
cinematograph film included in the broadcast of the eligible
program merely because the owner licenses the re-broadcast of the
eligible program.
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Division 1 Preliminary
Section 136
416 Copyright Act 1968
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Part VI—Copyright Tribunal of Australia
Division 1—Preliminary
136 Interpretation
(1) In this Part, unless the contrary intention appears:
Deputy President means a Deputy President of the Tribunal.
Judge means:
(a) a Judge of a federal court or of the Supreme Court of a State
or Territory; or
(b) a person who has the same designation and status as a Judge
of a federal court.
licence means a licence granted by or on behalf of the owner or
prospective owner of the copyright in a work or other
subject-matter to do an act comprised in the copyright.
licence scheme means a scheme (including anything in the nature
of a scheme, whether called a scheme or tariff or called by any
other name) formulated by a licensor or licensors and setting out
the classes of cases in which the licensor or each of the licensors is
willing, or the persons on whose behalf the licensor or each of the
licensors acts are willing, to grant licences and the charges (if any)
subject to payment of which, and the conditions subject to which,
licences would be granted in those classes of cases.
licensor means a body corporate for which both the following
conditions are met:
(a) the body is incorporated under a law in force in a State or
Territory relating to companies;
(b) the body’s constitution:
(i) entitles any owner of copyright, or any owner of
copyright of a specified kind, to become a member of
the body; and
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(ii) requires the body to protect the interests of its members
connected with copyright; and
(iii) provides that the main business of the body is granting
licences; and
(iv) requires the body to distribute to its members the
proceeds (after deduction of the body’s administrative
expenses) from payments to the body for licences; and
(v) prevents the body from paying dividends.
member means a member of the Tribunal, and includes the
President and a Deputy President.
order includes an interim order.
organization means an organization or association of persons
whether corporate or unincorporate.
the President means the President of the Tribunal.
(2) In this Part:
(a) a reference to conditions is a reference to any conditions
other than conditions relating to the payment of a charge;
(b) a reference to giving an opportunity to a person or
organization of presenting a case is a reference to giving the
person or organization an opportunity, at the option of the
person or organization, of submitting representations in
writing, or of being heard, or of submitting representations in
writing and being heard;
(c) a reference to a person who requires a licence of a particular
kind includes a reference to a person who holds a licence of
that kind if the person will, at the expiration of the period for
which the licence was granted, require a renewal of that
licence or a grant of a further licence of the same kind; and
(d) a reference to proceedings for infringement of copyright
includes a reference to a prosecution of an offence against
Subdivision D of Division 5 of Part V.
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Section 137
418 Copyright Act 1968
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(3) For the purposes of this Part, a person shall not be taken not to
require a licence to cause a sound recording to be heard in public
by reason only of the operation of section 108.
137 Cases to which licence schemes apply
(1) For the purposes of this Part, a case shall, subject to the next
succeeding subsection, be deemed to be a case to which a licence
scheme applies if, in accordance with a licence scheme for the time
being in operation, a licence would be granted in that case.
(2) For the purposes of this Part, where, in accordance with a licence
scheme:
(a) the licences that would be granted would be subject to
conditions by virtue of which particular matters would be
excepted from the licences; and
(b) a case relates to one or more matters falling within such an
exception;
that case shall be deemed not to be a case to which the scheme
applies.
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Constitution of the Tribunal Division 2
Section 138
Copyright Act 1968 419
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Division 2—Constitution of the Tribunal
138 Constitution of Tribunal
The Copyright Tribunal established by the section for which this
section was substituted by section 138 of the Statute Law
(Miscellaneous Amendments) Act (No. 1) 1982 continues in
existence as the Copyright Tribunal of Australia but shall consist of
a President, and such number of Deputy Presidents and other
members as are appointed in accordance with this Division.
139 Appointment of members of Tribunal
A member of the Tribunal shall be appointed by the
Governor-General.
140 Qualifications of members
(1) A person shall not be appointed as the President unless he or she is
a Judge of the Federal Court of Australia.
(1A) A person is not to be appointed as a Deputy President unless he or
she is, or has been, a Judge of a federal court or of the Supreme
Court of a State or Territory.
(2) A person shall not be appointed as a member (other than the
President or a Deputy President) unless:
(a) he or she is or has been a Judge;
(b) he or she is enrolled as a legal practitioner of the High Court,
of another federal court or of the Supreme Court of a State or
Territory and has been so enrolled for not less than 5 years;
(c) he or she has had experience, for not less than 5 years, at a
high level in industry, commerce, business, public
administration, education or the practice of a profession;
(d) he or she has obtained a degree of a university, or an
educational qualification of a similar standing, after studies
in the field of law, economics or public administration; or
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420 Copyright Act 1968
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(e) he or she has, in the opinion of the Governor-General, special
knowledge or skill relevant to the duties of a member.
141 Tenure of office
(1) Subject to this section, a member holds office for such period, not
exceeding 7 years, as is specified in the instrument of his or her
appointment, but is eligible for re-appointment.
(2) Where a member who is a Judge ceases to be a Judge, he or she
ceases to hold office as a member, but he or she is eligible for
appointment as a member (other than the President).
(3) The Governor-General may terminate the appointment of a
member (other than a member who is a Judge) for physical or
mental incapacity.
(4) The Governor-General shall terminate the appointment of a
member (other than a member who is a Judge) if:
(a) the member is guilty of misbehaviour; or
(b) the member becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit.
141A Seniority of Deputy Presidents
(1) The Deputy Presidents have seniority as Deputy Presidents
according to the dates of their first appointment to the Tribunal, or,
if 2 or more Deputy Presidents were appointed on the same day,
according to the precedence assigned to them in their instruments
of appointment.
(2) At any time when only one person is holding office as a Deputy
President, any reference in this Part to ‘the senior Deputy
President’ is to be taken to be a reference to the Deputy President.
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Section 142
Copyright Act 1968 421
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142 Acting President
The Governor-General may appoint the senior Deputy President
available to act in the office of President:
(a) during a vacancy in that office; or
(b) during any period when the person holding that office is
absent from duty or from Australia or is, for any other
reason, unable to perform the functions of that office.
143 Remuneration and allowances
(1) Subject to this section, a member shall be paid such remuneration
as is determined by the Remuneration Tribunal but, if no
determination of that remuneration by the Tribunal is in operation,
the member shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration
Tribunal Act 1973.
(4) A member who is a Judge is not, while he or she receives salary or
annual allowance as a Judge, entitled to remuneration under this
Act.
144 Oath or affirmation of office
(1) A member shall, before proceeding to discharge the duties of his or
her office, take an oath or make an affirmation in accordance with
the form of oath or affirmation in the Schedule to this Act.
(2) An oath or affirmation shall be taken or made before a justice or
judge of a federal court or of the Supreme Court of a State.
144A Disclosure of interests by members
(1) Where a member is, or is to be, the Tribunal, or a member of the
Tribunal, as constituted for the purposes of a proceeding and the
member has or acquires any interest, pecuniary or otherwise, that
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Section 144B
422 Copyright Act 1968
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could conflict with the proper performance of his or her functions
in relation to that proceeding:
(a) he or she shall disclose the interest to the parties to the
proceeding; and
(b) except with the consent of all the parties to the proceeding,
he or she shall not take part in the proceeding.
(2) Where the President becomes aware that a member is, or is to be,
the Tribunal, or a member of the Tribunal, as constituted for the
purposes of a proceeding and that the member has, in relation to
that proceeding, such an interest as is mentioned under
subsection (1):
(a) if the President considers that the member should not take
part, or should not continue to take part, in the
proceeding—he or she shall give a direction to the member
accordingly; or
(b) in any other case—he or she shall cause the interest of the
member to be disclosed to the parties to the proceeding.
(3) In this section, a reference to a proceeding includes a reference to a
proceeding by way of an application or reference to the Tribunal
under this Act.
144B Removal from office for failure to disclose interest
Where the Governor-General is satisfied that a member (other than
a member who is a Judge) has failed, without reasonable excuse, to
make a disclosure that he or she is, under subsection 144A(1),
required to make, the Governor-General shall remove that member
from office.
145 Resignation
A member may resign the office of member by giving a signed
notice of resignation to the Governor-General.
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Section 146
Copyright Act 1968 423
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146 Sittings of the Tribunal
(1) Sittings of the Tribunal shall be held at such places and times as
the President determines.
(2) Subject to the next succeeding subsection, the Tribunal shall be
constituted by a single member.
(3) If a party to an application or reference requests that the Tribunal
be constituted by more than one member for the purposes of the
application or reference, the Tribunal must, for the purposes of the
application or reference, be constituted by not less than 2 members
of whom one must be the President or a Deputy President.
(3A) Nothing in subsection (3) prevents a single member from
exercising the powers of the Tribunal in relation to matters of
procedure.
(4) At a proceeding before the Tribunal constituted by more than one
member:
(a) if the President is one of the members constituting the
Tribunal—he or she shall preside; and
(b) in any other case—the senior Deputy President who is
present is to preside.
(5) Where the Tribunal constituted by more than one member is
divided in opinion on a question, the question shall be decided
according to the decision of the majority, if there is a majority, but
if the Tribunal as so constituted is equally divided in opinion, the
question shall be decided according to the opinion of the President
or, if he or she is not one of the members constituting the Tribunal,
according to the opinion of the senior Deputy President who is
present.
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424 Copyright Act 1968
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(6) The Tribunal constituted by a member or members may sit and
exercise the powers of the Tribunal notwithstanding that the
Tribunal constituted by another member or other members is at the
same time sitting and exercising those powers.
(7) The exercise of the powers of the Tribunal is not affected by a
vacancy or vacancies in the membership of the Tribunal.
(8) Where the hearing of any proceeding has been commenced before
the Tribunal constituted by 2 or more members and one or more of
those members has ceased to be a member or has ceased to be
available for the purposes of the proceeding, the remaining
member or members may continue the hearing of the proceeding if
the remaining member, or one of the remaining members, is the
President or a Deputy President.
147 President to arrange business of Tribunal
The President may give directions as to the arrangement of the
business of the Tribunal and, subject to subsection 146(2) or (3), as
to the constitution of the Tribunal for the purposes of particular
proceedings.
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Applications and references to the Tribunal Division 3
Section 148
Copyright Act 1968 425
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Division 3—Applications and references to the Tribunal
Subdivision A—Preliminary
148 Interpretation
In this Division:
copyright material, government and government copy have the
same meanings as in Division 2 of Part VII.
Subdivision B—Applications relating to Parts III and IV
149 Applications to Tribunal for determination of remuneration
payable for making recording or film of a work
(1) This section applies where an application is made to the Tribunal
in pursuance of subsection 47(3) or 70(3) for the determination of
an equitable remuneration to be paid to the owner of the copyright
in a work for the making of a sound recording or cinematograph
film of the work or of an adaptation of the work.
(2) The parties to an application in relation to which this section
applies are:
(a) the owner of the copyright in the work; and
(b) the maker of the recording or film.
(3) Where an application in relation to which this section applies is
made to the Tribunal, the Tribunal shall consider the application
and, after giving to the parties to the application an opportunity of
presenting their cases, shall make an or