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Loi de 1968 sur le droit d'auteur (version consolidée au 15 avril 2013), Australie

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Détails Détails Année de version 2013 Dates Entrée en vigueur: 1 mai 1969 Adopté/e: 27 juin 1968 Type de texte Principales lois de propriété intellectuelle Sujet Dessins et modèles industriels, Droit d'auteur, Mise en application des droits, Organe de réglementation de la PI Notes This is a compilation of the Copyright Act 1968 as amended and in force on 15 April 2013. It includes any amendment affecting the compiled Act to that date.
This compilation was prepared on 23 April 2013. It was superseded by later compilations.

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Texte(s) principal(aux) Textes connexe(s)
Texte(s) princip(al)(aux) Texte(s) princip(al)(aux) Anglais Copyright Act 1968 (consolidated as of April 15, 2013)        

Copyright Act 1968

No. 63, 1968 as amended

Compilation start date: 15 April 2013

Includes amendments up to: Act No. 13, 2013

Prepared by the Office of Parliamentary Counsel, Canberra

ComLaw Authoritative Act C2013C00145

About this compilation

The compiled Act

This is a compilation of the Copyright Act 1968 as amended and in force on

15 April 2013. It includes any amendment affecting the compiled Act to that

date.

This compilation was prepared on 23 April 2013.

The notes at the end of this compilation (the endnotes) include information

about amending Acts and instruments and the amendment history of each

amended provision.

Uncommenced provisions and amendments

If a provision of the compiled Act is affected by an uncommenced amendment,

the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or

transitional provision, the provision is set out in the endnotes.

Modifications

If a provision of the compiled Act is affected by a textual modification that is in

force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled Act has expired or otherwise ceased to have

effect in accordance with a provision of the Act, details of the provision are set

out in the endnotes.

ComLaw Authoritative Act C2013C00145

Contents

Part I—Preliminary 1 1 Short title...........................................................................1

2 Commencement.................................................................1

4 Extension to external Territories .......................................1

5 Exclusion of Imperial Copyright Act, 1911.......................1

6 Repeal of Copyright Acts ..................................................1

7 Act to bind the Crown .......................................................2

8 Copyright not to subsist except by virtue of this

Act.....................................................................................2

8A Prerogative rights of the Crown in the nature of

copyright ...........................................................................2

9 Operation of other laws .....................................................2

9A Application of the Criminal Code .....................................3

Part II—Interpretation 4 10 Interpretation .....................................................................4

10AA Non-infringing copy of a sound recording.......................24

10AB Non-infringing copy of a computer program ...................25

10AC Non-infringing copy of an electronic literary or

music item .......................................................................26

10AD Accessories to imported articles ......................................26

10A Declarations and notices relating to certain bodies

and institutions ................................................................27

11 Residence in a country not affected by temporary

absence ............................................................................28

12 References to Parliament.................................................28

13 Acts comprised in copyright............................................28

14 Acts done in relation to substantial part of work or

other subject-matter deemed to be done in relation

to the whole .....................................................................28

15 References to acts done with licence of owner of

copyright .........................................................................29

16 References to partial assignment of copyright.................29

17 Statutory employment .....................................................29

18 Libraries established or conducted for profit ...................29

19 References to Copyright Act, 1911 .................................29

20 Names under which work is published ............................30

21 Reproduction and copying of works and other

subject-matter ..................................................................30

22 Provisions relating to the making of a work or

other subject-matter .........................................................31

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23 Sound recordings and records .........................................34

24 References to sounds and visual images embodied

in an article......................................................................34

25 Provisions relating to broadcasting..................................34

27 Performance ....................................................................35

28 Performance and communication of works or other

subject-matter in the course of educational

instruction........................................................................36

29 Publication.......................................................................38

30 Ownership of copyright for particular purposes ..............40

30A Commercial rental arrangement ......................................40

Part III—Copyright in original literary, dramatic, musical and

artistic works 42

Division 1—Nature, duration and ownership of copyright in

works 42

31 Nature of copyright in original works .............................42

32 Original works in which copyright subsists.....................44

33 Duration of copyright in original works ..........................44

34 Duration of copyright in anonymous and

pseudonymous works ......................................................45

35 Ownership of copyright in original works .......................45

Division 2—Infringement of copyright in works 48

36 Infringement by doing acts comprised in the

copyright .........................................................................48

37 Infringement by importation for sale or hire ...................48

38 Infringement by sale and other dealings ..........................49

39 Infringement by permitting place of public

entertainment to be used for performance of work ..........50

39A Infringing copies made on machines installed in

libraries and archives.......................................................50

39B Communication by use of certain facilities .....................51

Division 3—Acts not constituting infringements of copyright in

works 52

40 Fair dealing for purpose of research or study ..................52

41 Fair dealing for purpose of criticism or review ...............54

41A Fair dealing for purpose of parody or satire ....................54

42 Fair dealing for purpose of reporting news......................54

43 Reproduction for purpose of judicial proceedings

or professional advice......................................................55

43A Temporary reproductions made in the course of

communication ................................................................55

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43B Temporary reproductions of works as part of a

technical process of use ...................................................55

43C Reproducing works in books, newspapers and

periodical publications in different form for

private use .......................................................................56

44 Inclusion of works in collections for use by places

of education.....................................................................58

44A Importation etc. of books.................................................58

44B Reproduction of writing on approved label for

containers for chemical product ......................................61

44BA Acts done in relation to certain medicine ........................61

44C Copyright subsisting in accessories etc. to

imported articles ..............................................................63

44D Import of non-infringing copy of sound recording

does not infringe copyright in works recorded ................63

44E Importation and sale etc. of copies of computer

programs..........................................................................64

44F Importation and sale etc. of copies of electronic

literary or music items .....................................................64

Division 4—Acts not constituting infringements of copyright in

literary, dramatic and musical works 66

45 Reading or recitation in public or for a broadcast............66

46 Performance at premises where persons reside or

sleep ................................................................................66

47 Reproduction for purpose of broadcasting.......................66

47AA Reproduction for the purpose of simulcasting .................68

47A Sound broadcasts by holders of print disability

radio licences...................................................................68

Division 4A—Acts not constituting infringements of copyright in

computer programs 72

47AB Meaning of computer program........................................72

47B Reproduction for normal use or study of computer

programs..........................................................................72

47C Back-up copy of computer programs ..............................73

47D Reproducing computer programs to make

interoperable products .....................................................74

47E Reproducing computer programs to correct errors ..........75

47F Reproducing computer programs for security

testing ..............................................................................76

47G Unauthorised use of copies or information......................77

47H Agreements excluding operation of certain

provisions ........................................................................77

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Division 4B—Acts not constituting infringements of copyright in

artistic works 78

47J Reproducing photograph in different format for

private use .......................................................................78

Division 5—Copying of works in libraries or archives 80

48 Interpretation ...................................................................80

48A Copying by Parliamentary libraries for members

of Parliament ...................................................................80

49 Reproducing and communicating works by

libraries and archives for users ........................................80

50 Reproducing and communicating works by

libraries or archives for other libraries or archives ..........85

51 Reproducing and communicating unpublished

works in libraries or archives ..........................................90

51AA Reproducing and communicating works in care of

National Archives of Australia ........................................91

51A Reproducing and communicating works for

preservation and other purposes ......................................92

51B Making preservation copies of significant works in

key cultural institutions‘ collections ................................94

52 Publication of unpublished works kept in libraries

or archives .......................................................................96

53 Application of Division to illustrations

accompanying articles and other works...........................97

Division 6—Recording of musical works 98

54 Interpretation ...................................................................98

55 Conditions upon which manufacturer may make

records of musical work ..................................................99

57 Provisions relating to royalty where 2 or more

works are on the one record...........................................101

59 Conditions upon which manufacturer may include

part of a literary or dramatic work in a record of a

musical work .................................................................101

60 Records made partly for retail sale and partly for

gratuitous disposal.........................................................103

61 Making inquiries in relation to previous records ...........104

64 Sections 55 and 59 to be disregarded in

determining whether an infringement has been

committed by the importation of records.......................105

Division 7—Acts not constituting infringements of copyright in

artistic works 106

65 Sculptures and certain other works in public places ......106

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66 Buildings and models of buildings ................................106

67 Incidental filming or televising of artistic works ...........106

68 Publication of artistic works ..........................................106

70 Reproduction for purpose of including work in

television broadcast .......................................................107

72 Reproduction of part of work in later work ...................108

73 Reconstruction of buildings...........................................108

Division 8—Designs 109

74 Corresponding design....................................................109

75 Copyright protection where corresponding design

registered .......................................................................109

76 False registration of industrial designs under the

Designs Act 2003...........................................................109

77 Application of artistic works as industrial designs

without registration of the designs.................................110

77A Certain reproductions of an artistic work do not

infringe copyright ..........................................................112

Division 9—Works of joint authorship 114

78 References to all of joint authors...................................114

79 References to any one or more of joint authors .............114

80 References to whichever of joint authors died last ........114

81 Works of joint authorship published under

pseudonyms...................................................................114

82 Copyright to subsist in joint works without regard

to any author who is an unqualified person ...................115

83 Inclusion of joint works in collections for use in

places of education ........................................................115

Part IV—Copyright in subject-matter other than works 116

Division 1—Preliminary 116

84 Definitions.....................................................................116

Division 2—Nature of copyright in subject-matter other than

works 118

85 Nature of copyright in sound recordings .......................118

86 Nature of copyright in cinematograph films..................118

87 Nature of copyright in television broadcasts and

sound broadcasts ...........................................................119

88 Nature of copyright in published editions of works.......119

Division 3—Subject-matter, other than works, in which

copyright subsists 120

89 Sound recordings in which copyright subsists...............120

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90 Cinematograph films in which copyright subsists .........120

91 Television broadcasts and sound broadcasts in

which copyright subsists ...............................................120

92 Published editions of works in which copyright

subsists ..........................................................................121

Division 4—Duration of copyright in subject-matter other than

works 122

93 Duration of copyright in sound recordings ....................122

94 Duration of copyright in cinematograph films...............122

95 Duration of copyright in television broadcasts and

sound broadcasts ...........................................................122

96 Duration of copyright in published editions of

works .............................................................................123

Division 5—Ownership of copyright in subject-matter other

than works 124

Subdivision A—Ownership of copyright in subject-matter other

than works 124

97 Ownership of copyright in sound recordings.................124

98 Ownership of copyright in cinematograph films ...........124

99 Ownership of copyright in television broadcasts

and sound broadcasts.....................................................125

100 Ownership of copyright in published editions of

works .............................................................................126

Subdivision B—Specific provisions relating to the ownership of

copyright in pre-commencement sound recordings

of live performances 126

100AA Application....................................................................126

100AB Definitions.....................................................................126

100AC Application of sections 100AD and 100AE ..................126

100AD Makers of pre-commencement sound recordings of

live performances ..........................................................127

100AE Ownership of pre-commencement copyright in

sound recordings of live performances..........................127

100AF Former owners may continue to do any act in

relation to the copyright ................................................128

100AG Actions by new owners of copyright .............................129

100AH References to the owner of the copyright in a

sound recording .............................................................129

Division 6—Infringement of copyright in subject-matter other

than works 131

100A Interpretation .................................................................131

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101 Infringement by doing acts comprised in copyright ......131

102 Infringement by importation for sale or hire .................132

103 Infringement by sale and other dealings ........................132

103A Fair dealing for purpose of criticism or review .............133

103AA Fair dealing for purpose of parody or satire ..................133

103B Fair dealing for purpose of reporting news....................133

103C Fair dealing for purpose of research or study ................134

104 Acts done for purposes of judicial proceeding ..............134

104A Acts done by Parliamentary libraries for members

of Parliament .................................................................135

104B Infringing copies made on machines installed in

libraries and archives.....................................................135

105 Copyright in certain recordings not infringed by

causing recordings to be heard in public or

broadcast .......................................................................135

106 Causing sound recording to be heard at guest

house or club .................................................................136

107 Making of a copy of the sound recording for

purpose of broadcasting.................................................136

108 Copyright in published recording not infringed by

public performance if equitable remuneration paid .......138

109 Copyright in published sound recording not

infringed by broadcast in certain circumstances ............138

109A Copying sound recordings for private and

domestic use ..................................................................140

110 Provisions relating to cinematograph films ...................141

110AA Copying cinematograph film in different format

for private use................................................................141

110A Copying and communicating unpublished sound

recordings and cinematograph films in libraries or

archives .........................................................................143

110B Copying and communicating sound recordings and

cinematograph films for preservation and other

purposes ........................................................................143

110BA Making preservation copies of significant

recordings and films in key cultural institutions‘

collections .....................................................................146

110C Making of a copy of a sound recording or

cinematograph film for the purpose of

simulcasting...................................................................147

111 Recording broadcasts for replaying at more

convenient time .............................................................148

111A Temporary copy made in the course of

communication ..............................................................149

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111B Temporary copy of subject-matter as part of a

technical process of use .................................................149

112 Reproductions of editions of work ................................150

112A Importation and sale etc. of books.................................151

112AA Making preservation copies of significant

published editions in key cultural institutions‘

collections .....................................................................154

112B Reproduction of writing on approved label for

containers for chemical product ....................................155

112C Copyright subsisting in accessories etc. to

imported articles ............................................................155

112D Import of non-infringing copy of a sound

recording does not infringe copyright in the sound

recording .......................................................................155

112DA Importation and sale etc. of copies of electronic

literary or music items ...................................................156

112E Communication by use of certain facilities ...................157

Division 7—Miscellaneous 158

113 Copyrights to subsist independently..............................158

113A Agents may act on behalf of groups of performers........158

113B Consent to the use of a sound recording of a live

performance...................................................................158

113C Use of published sound recordings when owners

cannot be found etc........................................................159

Part V—Remedies and offences 160

Division 1—Preliminary 160

114 Interpretation .................................................................160

Division 2—Actions by owner of copyright 161

115 Actions for infringement ...............................................161

116 Rights of owner of copyright in respect of

infringing copies............................................................163

116AAA Compensation for acquisition of property .....................164

Division 2AA—Limitation on remedies available against

carriage service providers 166

Subdivision A—Preliminary 166

116AA Purpose of this Division ................................................166

116AB Definitions.....................................................................166

Subdivision B—Relevant activities 167

116AC Category A activity .......................................................167

116AD Category B activity........................................................167

viii Copyright Act 1968

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116AE Category C activity........................................................167

116AF Category D activity .......................................................167

Subdivision C—Limitations on remedies 168

116AG Limitations on remedies ................................................168

Subdivision D—Conditions 169

116AH Conditions .....................................................................169

116AI Evidence of compliance with conditions .......................173

Subdivision E—Regulations 173

116AJ Regulations....................................................................173

Division 2A—Actions in relation to technological protection

measures and electronic rights management

information 174

Subdivision A—Technological protection measures 174

116AK Definitions.....................................................................174

116AL Interaction of this Subdivision with Part VAA..............174

116AM Geographical application...............................................174

116AN Circumventing an access control technological

protection measure ........................................................174

116AO Manufacturing etc. a circumvention device for a

technological protection measure ..................................178

116AP Providing etc. a circumvention service for a

technological protection measure ..................................181

116AQ Remedies in actions under this Subdivision ..................184

Subdivision B—Electronic rights management information 185

116B Removal or alteration of electronic rights

management information...............................................185

116C Distribution to the public etc. of works whose

electronic rights management information has

been removed or altered ................................................186

116CA Distribution and importation of electronic rights

management information that has been removed or

altered............................................................................187

116CB Exception relating to national security and law

enforcement...................................................................188

116D Remedies in actions under this Subdivision ..................188

Division 3—Proceedings where copyright is subject to exclusive

licence 189

117 Interpretation .................................................................189

118 Application....................................................................189

119 Rights of exclusive licensee ..........................................189

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120 Joinder of owner or exclusive licensee as a party..........190

121 Defences available against exclusive licensee ...............190

122 Assessment of damages where exclusive licence

granted...........................................................................190

123 Apportionment of profits between owner and

exclusive licensee ..........................................................191

124 Separate actions in relation to the same

infringement ..................................................................191

125 Liability for costs ..........................................................192

Division 4—Proof of facts in civil actions 193

126 Presumptions as to subsistence and ownership of

copyright .......................................................................193

126A Presumptions relating to subsistence of copyright.........193

126B Presumptions relating to ownership of copyright ..........194

127 Presumptions in relation to authorship of work .............195

128 Presumptions in relation to publisher of work...............196

129 Presumptions where author has died .............................197

129A Presumptions relating to computer programs ................197

130 Presumptions relating to sound recordings....................198

130A Acts relating to imported copies of sound

recordings......................................................................199

130B Acts relating to imported copies of computer

programs........................................................................199

130C Acts relating to imported copies of electronic

literary or music items ...................................................200

131 Presumptions relating to films.......................................200

Division 4A—Jurisdiction and appeals 202

131A Exercise of jurisdiction..................................................202

131B Appeals..........................................................................202

131C Jurisdiction of Federal Court of Australia .....................202

131D Jurisdiction of Federal Circuit Court of Australia .........202

Division 5—Offences and summary proceedings 203

Subdivision A—Preliminary 203

132AA Definitions.....................................................................203

132AB Geographical application...............................................203

Subdivision B—Substantial infringement on a commercial scale 204

132AC Commercial-scale infringement prejudicing

copyright owner.............................................................204

Subdivision C—Infringing copies 206

132AD Making infringing copy commercially ..........................206

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132AE Selling or hiring out infringing copy .............................207

132AF Offering infringing copy for sale or hire .......................209

132AG Exhibiting infringing copy in public commercially.......211

132AH Importing infringing copy commercially.......................213

132AI Distributing infringing copy ..........................................215

132AJ Possessing infringing copy for commerce .....................217

132AK Aggravated offence—work etc. converted to

digital form....................................................................219

132AL Making or possessing device for making

infringing copy ..............................................................220

132AM Advertising supply of infringing copy...........................222

Subdivision D—Airing of works, sound recordings and films 222

132AN Causing work to be performed publicly ........................222

132AO Causing recording or film to be heard or seen in

public.............................................................................223

Subdivision E—Technological protection measures 224

132APA Definitions.....................................................................224

132APB Interaction of this Subdivision with Part VAA..............225

132APC Circumventing an access control technological

protection measure ........................................................225

132APD Manufacturing etc. a circumvention device for a

technological protection measure ..................................229

132APE Providing etc. a circumvention service for a

technological protection measure ..................................233

Subdivision F—Electronic rights management information 237

132AQ Removing or altering electronic rights

management information...............................................237

132AR Distributing, importing or communicating copies

after removal or alteration of electronic rights

management information...............................................239

132AS Distributing or importing electronic rights

management information...............................................241

132AT Defences........................................................................244

Subdivision G—Evidence 245

132AU Prosecution to prove profit ............................................245

132A Presumptions in relation to subsistence and

ownership of copyright..................................................245

132AAA Presumptions relating to computer programs ................246

132B Presumptions relating to sound recordings....................247

132C Presumptions relating to films.......................................248

Subdivision H—Extra court orders 249

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133 Destruction or delivery up of infringing copies etc. ......249

Subdivision I—Procedure and jurisdiction 250

133A Courts in which offences may be prosecuted ................250

133B Infringement notices......................................................250

Division 6—Miscellaneous 251

134 Limitation of actions in respect of infringement of

copyright .......................................................................251

134A Affidavit evidence .........................................................251

Division 7—Seizure of imported copies of copyright material 253

134B Interpretation .................................................................253

135 Restriction of importation of copies of works etc..........254

135AA Decision not to seize unless expenses are covered ........256

135AB Secure storage of seized copies .....................................257

135AC Notice of seizure............................................................257

135AD Inspection, release etc. of seized copies ........................258

135AE Forfeiture of seized copies by consent...........................259

135AEA Claim for release of seized copies .................................259

135AEB Seized copies not claimed are forfeited .........................259

135AEC Late claim for release of seized goods...........................260

135AED Objector to be notified of claim.....................................260

135AF Release of seized copies to importer .............................260

135AFA Copies released but not collected are forfeited ..............261

135AG Provision relating to actions for infringement of

copyright .......................................................................261

135AH Retention of control of seized copies.............................262

135AI Disposal of seized copies forfeited to the

Commonwealth .............................................................262

135AJ Failure to meet Commonwealth‘s expenses of

seizure ...........................................................................263

135AK Immunity of the Commonwealth...................................264

Part VAA—Unauthorised access to encoded broadcasts 265

Division 1—Preliminary 265

135AL Definitions.....................................................................265

135AM Counterclaim .................................................................266

135AN This Part does not apply to law enforcement

activity etc. ....................................................................266

Division 2—Actions 267

Subdivision A—Actions relating to unauthorised decoders 267

135AOA Making or dealing with unauthorised decoder...............267

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Subdivision B—Actions relating to decoders for subscription

broadcasts 268

135AOB Making decoder available online...................................268

Subdivision C—Actions for unauthorised access to encoded

broadcasts 269

135AOC Causing unauthorised access .........................................269

135AOD Unauthorised commercial use of subscription

broadcast .......................................................................270

Subdivision D—Court orders 271

135AOE Relief .............................................................................271

135AOF Destruction of decoder ..................................................271

Subdivision E—Jurisdiction and appeals 271

135AP Exercise of jurisdiction..................................................271

135AQ Appeals..........................................................................271

135AR Jurisdiction of Federal Court of Australia .....................272

135AS Jurisdiction of Federal Circuit Court of Australia .........272

Division 3—Offences 273

Subdivision A—Offences 273

135ASA Making unauthorised decoder .......................................273

135ASB Selling or hiring unauthorised decoder..........................273

135ASC Offering unauthorised decoder for sale or hire..............273

135ASD Commercially exhibiting unauthorised decoder in

public.............................................................................274

135ASE Importing unauthorised decoder commercially .............275

135ASF Distributing unauthorised decoder.................................275

135ASG Making unauthorised decoder available online .............276

135ASH Making decoder available online for subscription

broadcast .......................................................................276

135ASI Unauthorised access to subscription broadcast etc. .......277

135ASJ Causing unauthorised access to encoded broadcast

etc. .................................................................................278

Subdivision B—Prosecutions 279

135ATA Courts in which offences may be prosecuted ................279

Subdivision C—Further orders by court 280

135AU Destruction etc. of unauthorised decoders .....................280

Part VA—Copying and communication of broadcasts by

educational and other institutions 281

Division 1—Preliminary 281

135A Interpretation .................................................................281

Copyright Act 1968 xiii

ComLaw Authoritative Act C2013C00145

135B Copies and communications of broadcasts ....................282

135C Extended operation of this Part .....................................282

135D Operation of collecting society rules .............................283

Division 2—Copying and communication of broadcasts 284

135E Copying and communication of broadcasts by

educational institutions etc. ...........................................284

135F Making and communication of preview copies .............285

135G Remuneration notices ....................................................287

135H Records notices .............................................................287

135J Sampling notices ...........................................................289

135JAA Determination of questions relating to this

Division or the collecting society‘s rules.......................291

135JA Agreed notice ................................................................292

135K Marking and record keeping requirements ....................294

135KA Notice requirements in respect of communications.......295

135L Inspection of records etc................................................296

135M Revocation of remuneration notice................................297

135N Request for payment of equitable remuneration............297

Division 3—The collecting society 298

135P Declaration of the collecting society .............................298

135Q Revocation of declaration..............................................299

135R Annual report and accounts ...........................................300

135S Amendment of rules ......................................................300

135SA Applying to Tribunal for review of distribution

arrangement...................................................................301

Division 4—Interim copying 302

135T Appointment of notice holder........................................302

135U Copying before declaration of collecting society ..........302

135V Preview copies...............................................................303

135W Notices by administering bodies....................................303

135X Marking and record keeping requirements ....................304

135Y Effect of declaration of collecting society .....................304

Division 5—Miscellaneous 305

135Z Relevant right holder may authorise copying etc. .........305

135ZA Copyright not to vest in copier ......................................305

Part VB—Reproducing and communicating works etc. by

educational and other institutions 306

Division 1—Preliminary 306

135ZB Interpretation .................................................................306

xiv Copyright Act 1968

ComLaw Authoritative Act C2013C00145

135ZC Eligible items and photographic versions......................307

135ZE Part does not apply to computer programs ....................308

135ZF Operation of collecting society rules .............................308

135ZFA Licensed communications .............................................308

Division 2—Reproduction by educational institutions of works

that are in hardcopy form 309

135ZGA Application of Division .................................................309

135ZG Multiple reproduction of insubstantial parts of

works that are in hardcopy form....................................309

135ZH Copying of printed published editions by

educational institutions..................................................310

135ZJ Multiple reproduction of printed periodical articles

by educational institutions.............................................310

135ZK Multiple reproduction of works published in

printed anthologies ........................................................311

135ZL Multiple reproduction of works that are in

hardcopy form by educational institutions.....................311

135ZM Application of Division to certain illustrations that

are in hardcopy form .....................................................312

Division 2A—Reproduction and communication of works that

are in electronic form 314

135ZMA Application of Division .................................................314

135ZMB Multiple reproduction and communication of

insubstantial parts of works that are in electronic

form...............................................................................314

135ZMC Multiple reproduction and communication of

periodical articles that are in electronic form by

education institutions.....................................................316

135ZMD Multiple reproduction and communication of

works that are in electronic form by educational

institutions .....................................................................316

135ZMDA Reproduction and communication of works from

electronic anthologies by educational institutions .........317

135ZME Application of Division to certain illustrations in

electronic form ..............................................................318

Division 3—Reproduction and communication of works by

institutions assisting persons with a print disability 320

135ZN Copying published editions by institutions

assisting persons with a print disability .........................320

135ZP Multiple reproduction and communication of

works by institutions assisting persons with a print

disability........................................................................320

Copyright Act 1968 xv

ComLaw Authoritative Act C2013C00145

135ZQ Making of relevant reproductions and relevant

communications by institutions assisting persons

with a print disability.....................................................322

Division 4—Reproduction and communication of works etc. by

institutions assisting persons with an intellectual

disability 325

135ZR Copying of published editions by institutions

assisting persons with an intellectual disability .............325

135ZS Copying and communication of eligible items by

institutions assisting persons with an intellectual

disability........................................................................325

135ZT Making of copies etc. for use in making copies or

communications for a person with an intellectual

disability........................................................................326

Division 5—Equitable remuneration 328

135ZU Remuneration notices ....................................................328

135ZV Records notices .............................................................328

135ZW Sampling notices ...........................................................329

135ZWAA Determination of questions relating to this Part or

a collecting society‘s rules.............................................330

135ZWA Electronic use notices ....................................................331

135ZX Records notices and sampling notices: marking

and record-keeping requirements ..................................333

135ZXA Electronic use notices: notice requirements etc. ............334

135ZY Inspection of records etc................................................335

135ZZ Revocation of remuneration notice................................336

135ZZA Request for payment of equitable remuneration............336

Division 6—Collecting societies 337

135ZZB Collecting societies........................................................337

135ZZC Revocation of declaration..............................................339

135ZZD Annual report and accounts ...........................................339

135ZZE Amendment of rules ......................................................340

135ZZEA Applying to Tribunal for review of distribution

arrangement...................................................................340

Division 7—Miscellaneous 341

135ZZF Rights of copyright owners ...........................................341

135ZZG Copyright not to vest in copier ......................................341

135ZZH Unauthorised use of copies............................................341

xvi Copyright Act 1968

ComLaw Authoritative Act C2013C00145

343Part VC—Retransmission of free-to-air broadcasts

Division 1—Preliminary 343

135ZZI Definitions.....................................................................343

135ZZJ Operation of collecting society rules .............................344

135ZZJA Application of Part ........................................................344

Division 2—Retransmission of free-to-air broadcasts 345

135ZZK Retransmission of free-to-air broadcasts .......................345

135ZZL Remuneration notices ....................................................345

135ZZM Amount of equitable remuneration................................346

135ZZN Record system ...............................................................346

135ZZP Inspection of records etc................................................347

135ZZQ Identity cards .................................................................348

135ZZR Revocation of remuneration notice................................348

135ZZS Request for payment of equitable remuneration............349

Division 3—Collecting societies 350

135ZZT Collecting societies........................................................350

135ZZU Revocation of declaration..............................................352

135ZZV Annual report and accounts ...........................................352

135ZZW Amendment of rules ......................................................353

135ZZWA Applying to Tribunal for review of distribution

arrangement...................................................................353

Division 4—Interim retransmissions 354

135ZZX Appointment of notice holder........................................354

135ZZY Retransmitting before declaration of collecting

society ...........................................................................354

135ZZZ Notices by retransmitters ...............................................354

135ZZZA Record keeping requirements ........................................355

135ZZZB Effect of declaration of collecting society .....................355

Division 5—Miscellaneous 357

135ZZZC Relevant copyright owner may authorise

retransmitting ................................................................357

135ZZZD Copyright not to vest under this Part .............................357

135ZZZE Licence to retransmit does not authorise copyright

infringements.................................................................357

Part VD—Re-broadcasts by satellite BSA licensees 358

Division 1—Preliminary 358

135ZZZF Definitions.....................................................................358

135ZZZG Eligible program and original broadcaster.....................359

135ZZZH Operation of collecting society rules .............................359

Copyright Act 1968 xvii

ComLaw Authoritative Act C2013C00145

360Division 2—Re-broadcasts by satellite BSA licensees

135ZZZI Re-broadcasts by satellite BSA licensees ......................360

135ZZZJ Remuneration notices ....................................................362

135ZZZK Amount of equitable remuneration................................363

135ZZZL Record system ...............................................................363

135ZZZM Revocation of remuneration notice................................364

135ZZZN Request for payment of equitable remuneration............364

Division 3—Collecting societies 365

135ZZZO Collecting societies........................................................365

135ZZZP Revocation of declaration..............................................367

135ZZZQ Annual report and accounts ...........................................367

135ZZZR Amendment of rules ......................................................368

135ZZZS Applying to Tribunal for review of distribution

arrangement...................................................................369

Division 4—Interim re-broadcasts 370

135ZZZT Appointment of notice holder........................................370

135ZZZU Re-broadcast before declaration of collecting

society ...........................................................................370

135ZZZV Notices by satellite BSA licensees ................................370

135ZZZW Record keeping requirements ........................................371

135ZZZX Effect of declaration of collecting society .....................371

Division 5—Miscellaneous 373

135ZZZY Relevant copyright owner may authorise

re-broadcast ...................................................................373

135ZZZZ Copyright not to vest under this Part .............................373

135ZZZZA Licence to re-broadcast does not authorise

copyright infringements ................................................373

Part VI—Copyright Tribunal of Australia 374

Division 1—Preliminary 374

136 Interpretation .................................................................374

137 Cases to which licence schemes apply ..........................376

Division 2—Constitution of the Tribunal 377

138 Constitution of Tribunal ................................................377

139 Appointment of members of Tribunal ...........................377

140 Qualifications of members ............................................377

141 Tenure of office .............................................................378

141A Seniority of Deputy Presidents ......................................378

142 Acting President ............................................................378

143 Remuneration and allowances .......................................379

xviii Copyright Act 1968

ComLaw Authoritative Act C2013C00145

144 Oath or affirmation of office .........................................379

144A Disclosure of interests by members...............................379

144B Removal from office for failure to disclose interest ......380

145 Resignation....................................................................380

146 Sittings of the Tribunal..................................................380

147 President to arrange business of Tribunal......................381

Division 3—Applications and references to the Tribunal 382

Subdivision A—Preliminary 382

148 Interpretation .................................................................382

Subdivision B—Applications relating to Parts III and IV 382

149 Applications to Tribunal for determination of

remuneration payable for making recording or film

of a work .......................................................................382

149A Applications to Tribunal under section 47A..................382

150 Applications to Tribunal for determination of

remuneration payable to owner of copyright in

recording for making of a copy of the sound

recording .......................................................................383

151 Applications to Tribunal for determination of

remuneration payable to owner of copyright in

recording in respect of public playing of the

recording .......................................................................383

152 Applications to Tribunal for determination of

amounts payable for broadcasting published sound

recordings......................................................................384

152A Applications to Tribunal for determination of

amount of royalty payable for recording musical

works .............................................................................390

152B Applications to Tribunal for determination of

manner of paying royalty...............................................391

153 Applications to Tribunal for apportionment of

royalty in respect of a record .........................................392

Subdivision C—Applications and references relating to Part VA 392

153A Applications to Tribunal under section 135H,

subsection 135J(1) or subsection 135JA(1) ...................392

153B Applications to Tribunal under subsection 135J(3) .......393

153BAAA Application to the Tribunal under

subsection 135JAA(2) ...................................................394

153BA Application to the Tribunal under

subsection 135JA(3) ......................................................394

153BAA Application to the Tribunal under

subsection 135K(2A).....................................................395

Copyright Act 1968 xix

ComLaw Authoritative Act C2013C00145

153BAB References relating to declaration of collecting

society ...........................................................................395

153BAC References relating to revocation of declaration of

collecting society...........................................................396

153BAD Review of collecting society‘s distribution

arrangement...................................................................396

Subdivision D—Applications and references relating to Part VB 397

153BB Application to the Tribunal under

subsection 135ZME(3) ..................................................397

153C Applications to the Tribunal under section 135ZV

or subsection 135ZW(1) or 135ZWA(1) .......................398

153D Applications to Tribunal under

subsection 135ZW(3) ....................................................398

153DAA Application to the Tribunal under

subsection 135ZWAA(2)...............................................399

153DA Applications to the Tribunal under

subsection 135ZWA(2) .................................................399

153DB Application to the Tribunal under

subsection 135ZX(2A) ..................................................400

153DC References relating to declaration of collecting

society ...........................................................................400

153DD References relating to revocation of declaration of

collecting society...........................................................401

153DE Review of collecting society‘s distribution

arrangement...................................................................402

Subdivision E—Applications relating to Part VII 402

153E Applications to Tribunal under subsection 183(5).........402

153F Applications to Tribunal to declare collecting

society for government copies.......................................403

153G Applications to Tribunal to revoke a declaration of

a collecting society ........................................................405

153H Time limit for deciding applications under

section 153F or 153G ....................................................406

153J Amendment and revocation of a declaration on the

declaration of another collecting society .......................406

153K Applications to Tribunal for method of working

out payment for government copies ..............................407

153KA Review of collecting society‘s distribution

arrangement...................................................................407

Subdivision F—Applications relating to declarations of

institutions 408

153L Applications to Tribunal for review of declarations

of certain educational institutions..................................408

Copyright Act 1968

ComLaw Authoritative Act C2013C00145

xx

Subdivision G—Applications and references relating to Part VC 409

153M Applications to the Tribunal under

subsection 135ZZM(1) ..................................................409

153N Applications to Tribunal under

subsection 135ZZN(3)...................................................410

153P References relating to declaration of collecting

society ...........................................................................410

153Q References relating to revocation of declaration of

collecting society...........................................................411

153R Review of collecting society‘s distribution

arrangement...................................................................411

Subdivision GA—Applications and references relating to Part VD 412

153RA Application to the Tribunal to determine amount

payable to owner of copyright in a broadcast ................412

153S Applications to the Tribunal under

paragraph 135ZZZK(1)(b)—equitable

remuneration .................................................................413

153T Applications to Tribunal under

paragraph 135ZZZL(3)(b)—record system ...................414

153U References relating to declaration of collecting

society ...........................................................................414

153V References relating to revocation of declaration of

collecting society...........................................................415

153W Review of collecting society‘s distribution

arrangement...................................................................416

Subdivision H—References and applications relating to licences

and licence schemes 416

154 Reference of proposed licence schemes to

Tribunal .........................................................................416

155 Reference of existing licence schemes to Tribunal........418

156 Further reference of licence schemes to Tribunal..........420

157 Application to Tribunal in relation to licences ..............421

157A Tribunal must have regard to ACCC guidelines on

request ...........................................................................424

157B Tribunal may make ACCC party to reference or

application .....................................................................425

158 Effect of licence scheme being continued in

operation pending order of the Tribunal ........................425

159 Effect of order of Tribunal in relation to licences..........426

Subdivision I—General provisions 428

160 Interim orders ................................................................428

161 Reference of questions of law to Federal Court of

Australia ........................................................................429

Copyright Act 1968 xxi

ComLaw Authoritative Act C2013C00145

162 Agreements or awards not affected ...............................430

Division 4—Procedure and evidence 431

163 Proceedings to be in public except in special

circumstances ................................................................431

163A Application may be made to Tribunal by the agent

of the copyright owner ..................................................431

164 Procedure.......................................................................431

165 Mistakes or errors in orders of the Tribunal ..................432

166 Regulations as to procedure...........................................432

167 Power to take evidence on oath .....................................433

168 Evidence in form of written statement...........................433

169 Representation...............................................................433

Division 4A—Alternative dispute resolution processes 434

169A Referral of proceeding for alternative dispute

resolution process..........................................................434

169B Directions by President or Deputy President .................435

169C Agreement about the terms of a decision etc. ................435

169D Evidence not admissible ................................................436

169E Eligibility of person conducting alternative dispute

resolution process to sit as a member of the

Tribunal .........................................................................437

169F Participation by telephone etc........................................437

169G Engagement of persons to conduct alternative

dispute resolution processes ..........................................437

Division 5—Miscellaneous 439

170 Registrar ........................................................................439

170A Other staff of the Tribunal.............................................440

171 Protecting persons connected with Tribunal

proceedings ...................................................................440

172 Offences by witnesses ...................................................440

173 Offences relating to the Tribunal...................................442

174 Costs of proceedings .....................................................443

175 Proof of orders of Tribunal............................................444

Part VII—The Crown 445

Division 1—Crown copyright 445

176 Crown copyright in original works made under

direction of Crown ........................................................445

177 Crown copyright in original works first published

in Australia under direction of Crown ...........................445

178 Crown copyright in recordings and films made

under direction of Crown...............................................445

xxii Copyright Act 1968

ComLaw Authoritative Act C2013C00145

179 Provisions relating to ownership of copyright may

be modified by agreement .............................................446

180 Duration of Crown copyright in original works ............446

181 Duration of Crown copyright in recordings and

films ..............................................................................447

182 Application of Parts III and IV to copyright

subsisting by virtue of this Part .....................................447

182A Copyright in statutory instruments and judgments

etc. .................................................................................447

Division 2—Use of copyright material for the Crown 449

182B Definitions.....................................................................449

182C Relevant collecting society............................................449

183 Use of copyright material for the services of the

Crown............................................................................450

183A Special arrangements for copying for services of

government....................................................................451

183B Payment and recovery of equitable remuneration

payable for government copies......................................452

183C Powers of collecting society to carry out sampling .......453

183D Annual report and accounts of collecting society ..........454

183E Alteration of rules of collecting society.........................455

183F Applying to Tribunal for review of distribution

arrangement...................................................................455

Part VIII—Extension or restriction of operation of Act 456 184 Application of Act to countries other than

Australia ........................................................................456

185 Denial of copyright to citizens of countries not

giving adequate protection to Australian works ............458

186 Application of Act to international organizations..........459

187 Original works made or first published by

international organizations ............................................459

188 Subject-matter, other than original works, made or

first published by international organizations................460

Part IX—Moral rights of performers and of authors of literary,

dramatic, musical or artistic works and

cinematograph films 462

Division 1—Preliminary 462

189 Definitions.....................................................................462

190 Moral rights conferred on individuals ...........................466

191 Director, producer and screenwriter of

cinematograph film........................................................466

Copyright Act 1968 xxiii

ComLaw Authoritative Act C2013C00145

191A Staging a performance...................................................467

191B Conductor to be treated as a performer..........................467

192 Rights to be additional to other rights............................468

Division 2—Right of attribution of authorship 469

193 Author‘s right of attribution of authorship ....................469

194 Acts giving rise to right of attribution of

authorship......................................................................469

195 Nature of the identification of author ............................470

195AA Identification of author to be clear and reasonably

prominent ......................................................................470

195AB What is a reasonably prominent identification ..............470

Division 2A—Right of attribution of performership 471

195ABA Performer‘s right of attribution of performership..........471

195ABB Acts giving rise to right of attribution of

performership ................................................................471

195ABC Nature of the identification of performer.......................471

195ABD Identification of performer to be clear and

reasonably prominent or audible ...................................472

195ABE What is a reasonably prominent identification ..............472

Division 3—Right not to have authorship of a work falsely

attributed 473

195AC Author‘s right not to have authorship falsely

attributed .......................................................................473

195AD Acts of false attribution of authorship of a literary,

dramatic or musical work ..............................................473

195AE Acts of false attribution of authorship of artistic

work ..............................................................................474

195AF Acts of false attribution of authorship of

cinematograph film........................................................474

195AG Acts of false attribution of authorship of altered

literary, dramatic, musical or artistic work ....................475

195AH Act of false attribution of authorship of altered

cinematograph film........................................................475

Division 3A—Right not to have performership falsely attributed 476

195AHA Performer‘s right not to have performership falsely

attributed .......................................................................476

195AHB Acts of false attribution of performership......................476

195AHC Act of false attribution of performership of altered

recorded performance....................................................478

Division 4—Right of integrity of authorship of a work 480

195AI Author‘s right of integrity of authorship .......................480

xxiv Copyright Act 1968

ComLaw Authoritative Act C2013C00145

195AJ Derogatory treatment of literary, dramatic or

musical work .................................................................480

195AK Derogatory treatment of artistic work............................480

195AL Derogatory treatment of cinematograph film ................481

Division 4A—Right of integrity of performership 482

195ALA Performer‘s right of integrity of performership .............482

195ALB Derogatory treatment of performance ...........................482

Division 5—Duration and exercise of moral rights 483

Subdivision A—Duration and exercise of moral rights of authors 483

195AM Duration of author‘s moral rights ..................................483

195AN Exercise of author‘s moral rights...................................483

Subdivision B—Duration and exercise of moral rights of

performers 484

195ANA Duration of performer‘s moral rights for recorded

performances .................................................................484

195ANB Exercise of performer‘s moral rights .............................484

Division 6—Infringement of moral rights 486

Subdivision A—Infringement of moral rights of authors 486

195AO Infringement of right of attribution of authorship..........486

195AP Infringement of right not to have authorship

falsely attributed............................................................486

195AQ Infringement of right of integrity of authorship.............486

195AR No infringement of right of attribution of

authorship if it was reasonable not to identify the

author ............................................................................487

195AS No infringement of right of integrity of authorship

if derogatory treatment or other action was

reasonable......................................................................489

195AT Certain treatment of works not to constitute an

infringement of the author‘s right of integrity of

authorship......................................................................490

195AU Infringement by importation for sale or other

dealing...........................................................................494

195AV Infringement by sale and other dealings ........................494

195AVA Matters to be taken into account....................................494

195AVB Communication by use of certain facilities ...................495

195AW Author‘s consent to act or omission—films or

works in films................................................................495

195AWA Author‘s consent to act or omission—work that is

not a film or included in a film ......................................496

Copyright Act 1968 xxv

ComLaw Authoritative Act C2013C00145

497

195AWB Consent invalidated by duress or false or

misleading statements....................................................497

195AX Acts or omissions outside Australia ..............................497

Subdivision B—Infringement of moral rights of performers

195AXA Infringement of right of attribution of

performership ................................................................497

195AXB Infringement of right not to have performership

falsely attributed............................................................498

195AXC Infringement of right of integrity of performership .......498

195AXD No infringement of right of attribution of

performership if it was reasonable not to identify

the performer .................................................................498

195AXE No infringement of right of integrity of

performership if derogatory treatment or other

action was reasonable ....................................................499

195AXF Infringement by importation for sale or other

dealing...........................................................................500

195AXG Infringement by sale and other dealings ........................501

195AXH Matters to be taken into account....................................501

195AXI Communication by use of certain facilities ...................501

195AXJ Performer‘s consent to act or omission .........................502

195AXK Consent invalidated by duress or false or

misleading statements....................................................502

195AXL Acts or omissions outside Australia ..............................503

Division 7—Remedies for infringements of moral rights 504

Subdivision A—Remedies for infringement of moral rights of

authors 504

195AY Definition etc.................................................................504

195AZ Actions for infringement of author‘s moral rights .........504

195AZA Remedies for infringements of author‘s moral

rights..............................................................................504

195AZD Presumption as to subsistence of copyright ...................506

195AZE Presumption as to subsistence of author‘s moral

rights..............................................................................506

195AZF Presumptions in relation to authorship of work.............507

195AZG Other presumptions in relation to literary,

dramatic, musical or artistic work .................................507

Subdivision B—Remedies for infringement of moral rights of

performers 507

195AZGA Definition etc.................................................................507

195AZGB Actions for infringement of performer‘s moral

rights..............................................................................507

xxvi Copyright Act 1968

ComLaw Authoritative Act C2013C00145

195AZGC Remedies for infringements of performer‘s moral

rights..............................................................................508

195AZGD Presumption as to subsistence of copyright ...................509

195AZGE Presumption as to subsistence of performer‘s

moral rights ...................................................................509

195AZGF Presumptions in relation to performership.....................509

Subdivision C—Miscellaneous 510

195AZGG Saving of other rights and remedies ..............................510

195AZGH Jurisdiction of courts .....................................................510

Division 8—Miscellaneous 511

Subdivision A—Miscellaneous provisions about moral rights of

authors 511

195AZH Parts of works................................................................511

195AZI Works of joint authorship..............................................511

195AZJ Cinematograph films that have more than one

principal director ...........................................................511

195AZK Cinematograph films that have more than one

principal producer .........................................................512

195AZL Cinematograph films that have more than one

principal screenwriter ....................................................512

195AZM Application—right of attribution of authorship.............513

195AZN Application—right not to have authorship falsely

attributed .......................................................................513

195AZO Application—right of integrity of authorship ................514

Subdivision B—Miscellaneous provisions about moral rights of

performers 514

195AZP Parts of performances ....................................................514

195AZQ Performances that have more than one performer .........514

195AZR Application....................................................................515

Part X—Miscellaneous 516 195A Interpretation .................................................................516

195B Review of certain decisions...........................................517

196 Assignments and licences in respect of copyright .........518

197 Prospective ownership of copyright ..............................519

198 Copyright to pass under will with unpublished

work ..............................................................................519

198A Non-infringement of trade mark in relation to the

importation of copyright material ..................................520

199 Reception of broadcasts.................................................520

200 Use of works and broadcasts for educational

purposes ........................................................................521

Copyright Act 1968 xxvii

ComLaw Authoritative Act C2013C00145

200AAA Proxy web caching by educational institutions..............522

200AA Use of broadcasts by institutions assisting persons

with an intellectual disability.........................................523

200AB Use of works and other subject-matter for certain

purposes ........................................................................524

201 Delivery of library material to the National Library......526

202 Groundless threats of legal proceedings in relation

to copyright infringement ..............................................527

202A Groundless threats of legal proceedings in relation

to technological protection measures.............................528

203 Limitation on power of courts to grant relief in

proceedings under this Act ............................................529

203A Offence—failing to keep declarations relating to

copying in library or archives........................................529

203D Offence—not arranging declarations

chronologically..............................................................530

203E Inspection of records and declarations retained by

libraries, archives or institutions....................................531

203F False and misleading declarations .................................533

203G Offence—disposing of or destroying certain

declarations ...................................................................533

203H Notation of certain copies etc. .......................................534

Part XI—Transitional 537

Division 1—Preliminary 537

204 Interpretation .................................................................537

205 References to making of works, recordings and

films ..............................................................................538

206 References in other laws or instruments to

copyright .......................................................................538

207 Application....................................................................539

208 Authorship of photographs ............................................539

209 Publication.....................................................................539

Division 2—Original works 541

210 Expired copyright not to revive .....................................541

211 Original works in which copyright subsists...................541

213 Ownership of copyright.................................................541

214 Infringement by importation, sale and other

dealings .........................................................................543

215 Recording of musical works ..........................................543

216 Publication of artistic works ..........................................543

217 Reconstruction of buildings...........................................544

218 Industrial designs...........................................................544

xxviii Copyright Act 1968

ComLaw Authoritative Act C2013C00145

219 Reproduction of work upon payment of royalties .........544

Division 3—Subject-matter other than works 547

220 Sound recordings...........................................................547

221 Cinematograph films .....................................................547

222 Application of Act to dramatic works and

photographs comprised in cinematograph films ............547

223 Television broadcasts and sound broadcasts .................547

224 Published editions of works...........................................548

225 Infringement by importation, sale and other

dealings .........................................................................548

Division 4—Miscellaneous 549

226 Actions for infringement ...............................................549

227 Infringing copies ...........................................................549

228 Actions where copyright subject to exclusive

licence ...........................................................................549

229 Offences and summary proceedings..............................549

230 Limitation of actions .....................................................549

231 Restriction of importation of printed copies of

works .............................................................................550

232 References and applications to Tribunal in relation

to licence schemes .........................................................550

233 Duration of Crown copyright in photographs................550

234 Duration of Crown copyright in recordings...................550

235 Crown copyright in films...............................................551

236 Works made or published by international

organizations .................................................................551

237 Subject-matter, other than original works, made or

published by international organizations .......................551

239 Assignments and licences..............................................551

240 Bequests ........................................................................553

241 Delivery of library material to National Library............554

242 Groundless threats of legal proceedings ........................554

Division 5—Works made before 1 July, 1912 555

243 Interpretation .................................................................555

244 Application....................................................................555

245 Rights conferred by Copyright Act, 1911......................555

246 Performing rights...........................................................555

247 Contributions to periodicals ..........................................556

248 Assignments and licences..............................................556

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558Part XIA—Performers’ protection

Division 1—Preliminary 558

248A Interpretation .................................................................558

248B Educational purposes.....................................................563

248C Exempt recordings cease to be exempt recordings

in certain circumstances ................................................563

248CA Protection period ...........................................................564

248D Private and domestic use ...............................................564

248F Application....................................................................565

Division 2—Actions by performers 566

248G What constitutes unauthorised use ................................566

248H Copying sound recordings for broadcasting ..................567

248J Actions for unauthorised use .........................................568

248K Exercise of jurisdiction..................................................569

248L Appeals..........................................................................570

248M Jurisdiction of Federal Court .........................................570

248MA Jurisdiction of Federal Circuit Court .............................570

248N Right to bring an action not assignable..........................570

Division 3—Offences 571

Subdivision A—General offences 571

248P Scope of this Subdivision ..............................................571

248PA Unauthorised direct recording during protection

period ............................................................................571

248PB Unauthorised indirect recording during protection

period ............................................................................572

248PC Unauthorised communication to public during

20-year protection period ..............................................573

248PD Playing unauthorised recording publicly during

20-year protection period ..............................................574

248PE Possessing equipment to make or copy

unauthorised recording ..................................................575

248PF Copying unauthorised recording ...................................576

248PG Unauthorised copying of exempt recording...................578

248PH Unauthorised copying of authorised sound

recording .......................................................................579

248PI Selling etc. unauthorised recording ...............................580

248PJ Distributing unauthorised recording ..............................582

248PK Commercial possession or import of unauthorised

recording .......................................................................584

248PL Exhibiting unauthorised recording in public by

way of trade...................................................................585

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248PM Importing unauthorised recording for exhibition by

way of trade...................................................................587

Subdivision B—Acts relating to sound recordings of performances

given before 1 July 1995 588

248QA Scope of this Subdivision ..............................................588

248QB Possessing equipment for copying unauthorised

sound recording .............................................................588

248QC Copying unauthorised sound recording .........................589

248QD Selling etc. unauthorised sound recording.....................590

248QE Distributing unauthorised sound recording....................592

248QF Commercial possession or import of unauthorised

sound recording.............................................................593

248QG Exhibiting unauthorised sound recording in public

by way of trade..............................................................595

248QH Importing unauthorised sound recording for

exhibition by way of trade.............................................596

Subdivision C—Prosecution and infringement notices 597

248R Courts in which offences may be prosecuted ................597

248S Protection against multiple proceedings for same

act ..................................................................................598

248SA Infringement notices......................................................598

Subdivision D—Destruction or delivery up of unauthorised

recordings 598

248T Destruction or delivery up of unauthorised

recordings......................................................................598

Division 4—Extension of protection to foreign countries 599

248U Application to foreign countries ....................................599

248V Denial of protection to citizens of countries not

giving adequate protection to Australian

performances .................................................................600

Part XII—Regulations 601 249 Regulations....................................................................601

The Schedule 603

Endnotes 604

Endnote 1—Legislation history 604

Endnote 2—Amendment history 621

Endnote 3—Application, saving and transitional provisions 659

Copyright Amendment Act (No. 1) 1998 (No. 104, 1998)...........................659

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Copyright Amendment Act (No. 2) 1998 (No. 105, 1998)...........................661

Copyright Amendment (Digital Agenda) Act 2000 (No. 110, 2000) ...........661

Copyright Amendment (Moral Rights) Act 2000 (No. 159, 2000)...............662

Law and Justice Legislation Amendment (Application of Criminal

Code) Act 2001 (No. 24, 2001) .....................................662

Copyright Amendment (Parallel Importation) Act 2003 (No. 34, 2003) ......663

Designs (Consequential Amendments) Act 2003 (No. 148, 2003)...............664

US Free Trade Agreement Implementation Act 2004 (No. 120, 2004) ........666

Copyright Legislation Amendment Act 2004 (No. 154, 2004).....................672

Copyright Amendment (Film Directors‘ Rights) Act 2005 (No. 130,

2005) .............................................................................673

Statute Law Revision Act 2006 (No. 9, 2006)..............................................673

Copyright Amendment Act 2006 (No. 158, 2006) .......................................674

Therapeutic Goods Legislation Amendment (Copyright) Act 2011

(No. 39, 2011) ...............................................................681

Acts Interpretation Amendment Act 2011 (No. 46, 2011)............................682

Endnote 4—Uncommenced amendments 683

Endnote 5—Misdescribed amendments 684

Endnote 6—Modifications 685

A.C.T. Self-Government (Consequential Provisions) Regulations

(1989 No. 3) ..................................................................685

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Preliminary Part I

Section 1

An Act relating to copyright and the protection of

certain performances, and for other purposes

Part I—Preliminary

1 Short title

This Act may be cited as the Copyright Act 1968.

2 Commencement

This Act shall come into operation on a date to be fixed by

Proclamation.

4 Extension to external Territories

This Act extends to every external Territory.

5 Exclusion of Imperial Copyright Act, 1911

(1) This Act operates to the exclusion of the Copyright Act, 1911.

(2) For the purposes of section 8 of the Acts Interpretation Act

1901-1966, the Copyright Act, 1911 shall be deemed to be an Act

passed by the Parliament of the Commonwealth and to be repealed

by this Act, and the enactment of Part XI shall not be taken to

affect the operation of section 8 of the Acts Interpretation Act

1901-1966 as it operates by virtue of this subsection in relation to

matters to which that Part does not apply.

6 Repeal of Copyright Acts

The following Acts are repealed:

Copyright Act 1912;

Copyright Act 1933;

Copyright Act 1935;

Copyright Act 1963.

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Part I Preliminary

Section 7

7 Act to bind the Crown

Subject to Part VII, this Act binds the Crown but nothing in this

Act renders the Crown liable to be prosecuted for an offence.

8 Copyright not to subsist except by virtue of this Act

Subject to section 8A, copyright does not subsist otherwise than by

virtue of this Act.

8A Prerogative rights of the Crown in the nature of copyright

(1) Subject to subsection (2), this Act does not affect any prerogative

right or privilege of the Crown.

(2) Where a right or privilege of the Crown by way of copyright

subsists in a work or published edition of a work, a person does not

infringe that right or privilege by doing, or authorizing the doing

of, an act in relation to the work or edition without the licence of

the Crown if, assuming that that right or privilege of the Crown did

not subsist in the work or edition, but copyright subsisted under

this Act in the work or edition and was owned by a person other

than the Crown, the person would not infringe the copyright of that

owner in the work or edition by doing, or by authorizing the doing

of, that act without the licence of the owner.

(3) Nothing in subsection (2) shall be taken to limit the duration of the

right or privilege of the Crown by way of copyright in a work or

published edition of a work.

9 Operation of other laws

(1) This Act does not affect the right of, or of a person deriving title

directly or indirectly from, the Commonwealth or a State to sell,

use or otherwise deal with articles that have been, or are, forfeited

under a law of the Commonwealth or of the State.

(3) This Act does not affect the operation of the law relating to

breaches of trust or confidence.

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Preliminary Part I

Section 9A

9A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this

Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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Part II Interpretation

Section 10

Part II—Interpretation

10 Interpretation

(1) In this Act, unless the contrary intention appears:

access control technological protection measure means a device,

product, technology or component (including a computer program)

that:

(a) is used in Australia or a qualifying country:

(i) by, with the permission of, or on behalf of, the owner or

the exclusive licensee of the copyright in a work or

other subject-matter; and

(ii) in connection with the exercise of the copyright; and

(b) in the normal course of its operation, controls access to the

work or other subject-matter;

but does not include such a device, product, technology or

component to the extent that it:

(c) if the work or other subject-matter is a cinematograph film or

computer program (including a computer game)—controls

geographic market segmentation by preventing the playback

in Australia of a non-infringing copy of the work or other

subject-matter acquired outside Australia; or

(d) if the work is a computer program that is embodied in a

machine or device—restricts the use of goods (other than the

work) or services in relation to the machine or device.

For the purposes of this definition, computer program has the

same meaning as in section 47AB.

accessory, in relation to an article, means one or more of the

following:

(a) a label affixed to, displayed on, incorporated into the surface

of, or accompanying, the article;

(b) the packaging or container in which the article is packaged or

contained;

(c) a label affixed to, displayed on, incorporated into the surface

of, or accompanying, the packaging or container in which the

article is packaged or contained;

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Interpretation Part II

Section 10

(d) a written instruction, warranty or other information provided

with the article;

(e) a record embodying an instructional sound recording, or a

copy of an instructional cinematograph film, provided with

the article;

but does not include any label, packaging or container on which the

olympic symbol (within the meaning of the Olympic Insignia

Protection Act 1987) is reproduced.

Note: See also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

adaptation means:

(a) in relation to a literary work in a non-dramatic form a version

of the work (whether in its original language or in a different

language) in a dramatic form;

(b) in relation to a literary work in a dramatic form a version of

the work (whether in its original language or in a different

language) in a non-dramatic form;

(ba) in relation to a literary work being a computer program—a

version of the work (whether or not in the language, code or

notation in which the work was originally expressed) not

being a reproduction of the work;

(c) in relation to a literary work (whether in a non-dramatic form

or in a dramatic form):

(i) a translation of the work; or

(ii) a version of the work in which a story or action is

conveyed solely or principally by means of pictures; and

(d) in relation to a musical work—an arrangement or

transcription of the work.

alternative dispute resolution processes means procedures and

services for the resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(c) neutral evaluation; and

(d) case appraisal; and

(e) conciliation; and

(f) procedures or services specified in the regulations;

but does not include:

(g) arbitration; or

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Part II Interpretation

Section 10

(h) court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of

this definition.

approved label means a label approved under:

(a) Part 2 of the Agvet Code of a State or of the Northern

Territory; or

(b) Part 2 of the Agvet Code of the participating Territories

within the meaning of the Agricultural and Veterinary

Chemicals Act 1994.

archives means:

(a) archival material in the custody of:

(i) the National Archives of Australia; or

(ii) the Archives Office of New South Wales established by

the Archives Act 1960 of the State of New South Wales;

or

(iii) the Public Record Office established by the Public

Records Act 1973 of the State of Victoria; or

(iv) the Archives Office of Tasmania established by the

Archives Act 1965 of the State of Tasmania; or

(aa) archival material in the custody of a person (other than the

National Archives of Australia) in accordance with an

arrangement referred to in section 64 of the Archives Act

1983; or

(b) a collection of documents or other material to which this

paragraph applies by virtue of subsection (4).

artistic work means:

(a) a painting, sculpture, drawing, engraving or photograph,

whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or

model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in

paragraph (a) or (b);

but does not include a circuit layout within the meaning of the

Circuit Layouts Act 1989.

Australia includes the external Territories.

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Interpretation Part II

Section 10

author, in relation to a photograph, means the person who took the

photograph.

authorized officer, in relation to a library or archives, means the

officer in charge of that library or archives or a person authorized

by that officer to act on his or her behalf.

broadcast means a communication to the public delivered by a

broadcasting service within the meaning of the Broadcasting

Services Act 1992. For the purposes of the application of this

definition to a service provided under a satellite BSA licence,

assume that there is no conditional access system that relates to the

service.

Note: A broadcasting service does not include the following:

(a) a service (including a teletext service) that provides only data or only text (with or without associated images); or

(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service.

building includes a structure of any kind.

calendar year means a period of 12 months commencing on

1 January.

carriage service provider has the same meaning as in the

Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act

1997.

chemical product has the same meaning as in the Schedule to the

Agricultural and Veterinary Chemicals Code Act 1994.

cinematograph film means the aggregate of the visual images

embodied in an article or thing so as to be capable by the use of

that article or thing:

(a) of being shown as a moving picture; or

(b) of being embodied in another article or thing by the use of

which it can be so shown;

and includes the aggregate of the sounds embodied in a

sound-track associated with such visual images.

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Part II Interpretation

Section 10

circumvention device for a technological protection measure

means a device, component or product (including a computer

program) that:

(a) is promoted, advertised or marketed as having the purpose or

use of circumventing the technological protection measure;

or

(b) has only a limited commercially significant purpose or use,

or no such purpose or use, other than the circumvention of

the technological protection measure; or

(c) is primarily or solely designed or produced to enable or

facilitate the circumvention of the technological protection

measure.

For the purposes of this definition, computer program has the

same meaning as in section 47AB.

circumvention service for a technological protection measure

means a service that:

(a) is promoted, advertised or marketed as having the purpose or

use of circumventing the technological protection measure;

or

(b) has only a limited commercially significant purpose or use,

or no such purpose or use, other than the circumvention of

the technological protection measure; or

(c) is primarily or solely designed or produced to enable or

facilitate the circumvention of the technological protection

measure.

communicate means make available online or electronically

transmit (whether over a path, or a combination of paths, provided

by a material substance or otherwise) a work or other

subject-matter, including a performance or live performance within

the meaning of this Act.

computer program means a set of statements or instructions to be

used directly or indirectly in a computer in order to bring about a

certain result.

construction includes erection, and reconstruction has a

corresponding meaning.

controls access: a device, product, technology or component

(including a computer program) controls access to a work or other

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Interpretation Part II

Section 10

subject-matter if it requires the application of information or a

process, with the permission of the owner or exclusive licensee of

the copyright in the work or other subject-matter, to gain access to

the work or other subject-matter.

copy, in relation to a cinematograph film, means any article or

thing in which the visual images or sounds comprising the film are

embodied.

device includes a plate.

dramatic work includes:

(a) a choreographic show or other dumb show; and

(b) a scenario or script for a cinematograph film;

but does not include a cinematograph film as distinct from the

scenario or script for a cinematograph film.

drawing includes a diagram, map, chart or plan.

educational institution means:

(aa) an institution at which education is provided at pre-school or

kindergarten standard;

(a) a school or similar institution at which full-time primary

education or full-time secondary education is provided or

both full-time primary education and full-time secondary

education are provided;

(b) a university, a college of advanced education or a technical

and further education institution;

(c) an institution that conducts courses of primary, secondary or

tertiary education by correspondence or on an external study

basis;

(d) a school of nursing in relation to which a notice published

under subsection 10A(4) is in force;

(e) an undertaking within a hospital, being an undertaking:

(i) that conducts courses of study or training in the

provision of medical services, or in the provision of

services incidental to the provision of medical services;

and

(ii) in relation to which a notice published under

subsection 10A(4) is in force;

(f) a teacher education centre in relation to which a notice

published under subsection 10A(4) is in force;

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Part II Interpretation

Section 10

(g) an institution in relation to which there is in force a notice

published under subsection 10A(4) that includes a

declaration that the principal function of the institution is the

provision of courses of study or training for one of the

following purposes:

(i) general education;

(ii) the preparation of people for a particular occupation or

profession;

(iii) the continuing education of people engaged in a

particular occupation or profession;

(iv) the teaching of English to people whose first language is

not English;

(h) an undertaking within a body administering an educational

institution of a kind referred to in a preceding paragraph of

this definition in relation to which there is in force a notice

published under subsection 10A(4) that includes a

declaration that the principal function, or one of the principal

functions, of the undertaking is the provision of teacher

training to people engaged as instructors in educational

institutions of a kind referred to in a preceding paragraph of

this definition, or of 2 or more such kinds; or

(i) an institution, or an undertaking within a body administering

an educational institution of a kind referred to in a preceding

paragraph of this definition, in relation to which there is in

force a notice published under subsection 10A(4) that

includes a declaration that the principal function, or one of

the principal functions, of the institution, or undertaking, is

the providing of material to educational institutions of a kind

referred to in a preceding paragraph of this definition, or to

educational institutions of 2 or more such kinds, and that that

activity is undertaken for the purpose of helping those

institutions in their teaching purposes.

electronic literary or music item means:

(a) a book in electronic form; or

(b) a periodical publication in electronic form; or

(c) sheet music in electronic form;

regardless of whether there is a printed form.

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Interpretation Part II

Section 10

electronic rights management information, in relation to a work

or other subject-matter, means information that:

(a) is electronic; and

(b) either:

(i) is or was attached to, or is or was embodied in, a copy

of the work or subject-matter; or

(ii) appears or appeared in connection with a

communication, or the making available, of the work or

subject-matter; and

(c) either:

(i) identifies the work or subject-matter, and its author or

copyright owner (including such information

represented as numbers or codes); or

(ii) identifies or indicates some or all of the terms and

conditions on which the work or subject-matter may be

used, or indicates that the use of the work or

subject-matter is subject to terms or conditions

(including such information represented as numbers or

codes).

engraving includes an etching, lithograph, product of

photogravure, woodcut, print or similar work, not being a

photograph.

exclusive licence means a licence in writing, signed by or on

behalf of the owner or prospective owner of copyright, authorizing

the licensee, to the exclusion of all other persons, to do an act that,

by virtue of this Act, the owner of the copyright would, but for the

licence, have the exclusive right to do, and exclusive licensee has a

corresponding meaning.

free-to-air broadcast means:

(a) a broadcast delivered by a national broadcasting service,

commercial broadcasting service or community broadcasting

service within the meaning of the Broadcasting Services Act

1992; or

(b) a broadcast delivered by a broadcasting service within the

meaning of the Broadcasting Services Act 1992 that does no

more than transmit program material supplied by National

Indigenous TV Limited.

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Part II Interpretation

Section 10

future copyright means copyright to come into existence at a

future time or upon the happening of a future event.

infringing copy means:

(a) in relation to a work—a reproduction of the work, or of an

adaptation of the work, not being a copy of a cinematograph

film of the work or adaptation;

(b) in relation to a sound recording—a copy of the sound

recording not being a sound-track associated with visual

images forming part of a cinematograph film;

(c) in relation to a cinematograph film—a copy of the film;

(d) in relation to a television broadcast or a sound broadcast—a

copy of a cinematograph film of the broadcast or a record

embodying a sound recording of the broadcast; and

(e) in relation to a published edition of a work—a facsimile copy

of the edition;

being an article (which may be an electronic reproduction or copy

of the work, recording, film, broadcast or edition) the making of

which constituted an infringement of the copyright in the work,

recording, film, broadcast or edition or, in the case of an article

imported without the licence of the owner of the copyright, would

have constituted an infringement of that copyright if the article had

been made in Australia by the importer, but does not include:

(f) a non-infringing book whose importation does not constitute

an infringement of that copyright; or

(g) a non-infringing accessory whose importation does not

constitute an infringement of that copyright; or

(h) a non-infringing copy of a sound recording whose

importation does not infringe that copyright; or

(i) a non-infringing copy of a computer program whose

importation does not infringe that copyright; or

(j) a non-infringing copy of an electronic literary or music item

whose importation does not infringe that copyright.

institution includes an educational institution.

institution assisting persons with an intellectual disability means:

(a) an educational institution; or

(b) any other institution which has as its principal function, or

one or its principal functions, the provision of assistance to

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Interpretation Part II

Section 10

persons with an intellectual disability and in relation to which

a declaration under paragraph 10A(1)(d) is in force.

institution assisting persons with a print disability means:

(a) an educational institution; or

(b) any other institution which has as its principal function, or

one of its principal functions, the provision of literary or

dramatic works to persons with a print disability and in

relation to which a declaration under paragraph 10A(1)(c) is

in force.

international organization to which this Act applies means an

organization that is declared by regulations made for the purposes

of section 186 to be an international organization to which this Act

applies, and includes:

(a) an organ of, or office within, an organization that is so

declared; and

(b) a commission, council or other body established by such an

organization or organ.

judicial proceeding means a proceeding before a court, tribunal or

person having by law power to hear, receive and examine evidence

on oath.

law of the Commonwealth includes a law of a Territory.

literary work includes:

(a) a table, or compilation, expressed in words, figures or

symbols; and

(b) a computer program or compilation of computer programs.

manuscript, in relation to a literary, dramatic or musical work,

means the document embodying the work as initially prepared by

the author, whether the document is in hardcopy form, electronic

form or any other form.

material form, in relation to a work or an adaptation of a work,

includes any form (whether visible or not) of storage of the work or

adaptation, or a substantial part of the work or adaptation, (whether

or not the work or adaptation, or a substantial part of the work or

adaptation, can be reproduced).

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Part II Interpretation

Section 10

non-infringing accessory means an accessory made in:

(a) a country that is a party to the International Convention for

the Protection of Literary and Artistic Works concluded at

Berne on 9 September 1886 as revised from time to time; or

(b) a country that is a member of the World Trade Organization

and has a law that provides consistently with the TRIPS

Agreement for:

(i) the ownership and duration of copyright or a related

right in works, sound recordings and cinematograph

films; and

(ii) the owner of the copyright or related right to have rights

relating to the reproduction of the work, sound

recording or cinematograph film;

where:

(c) the making of any copy of a work, or any reproduction of a

published edition of a work, that is, or is on, or is embodied

in, the accessory; or

(d) the making of any record embodying a sound recording, or

any copy of a cinematograph film, that is the accessory;

was authorised by the owner of the copyright in that country in the

work, edition, recording or film, as the case may be.

non-infringing book means a book made (otherwise than under a

compulsory licence) in a country specified in regulations made for

the purposes of subsection 184(1), being a book whose making did

not constitute an infringement of any copyright subsisting in a

work, or in a published edition of a work, under a law of that

country.

non-infringing copy:

(a) in relation to a sound recording, has the meaning given by

section 10AA; and

(b) in relation to a computer program, has the meaning given by

section 10AB; and

(c) in relation to an electronic literary or music item, has the

meaning given by section 10AC.

officer in charge means:

(a) in relation to archives—the archivist or other person having,

for the time being, immediate care and control of the

collection comprising the archives; and

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Interpretation Part II

Section 10

(c) in relation to a library—the librarian or other person having,

for the time being, immediate care and control of the

collection comprising the library.

person with a print disability means:

(a) a person without sight; or

(b) a person whose sight is severely impaired; or

(c) a person unable to hold or manipulate books or to focus or

move his or her eyes; or

(d) a person with a perceptual disability.

photograph means a product of photography or of a process

similar to photography, other than an article or thing in which

visual images forming part of a cinematograph film have been

embodied, and includes a product of xerography, and photographic

has a corresponding meaning.

plate includes a stereotype, stone, block, mould, matrix, transfer,

negative or other similar appliance.

private and domestic use means private and domestic use on or off

domestic premises.

prospective owner means:

(a) in relation to a future copyright that is not the subject of an

agreement of a kind referred to in subsection 19(1)—the

person who will be the owner of the copyright on its coming

into existence; or

(b) in relation to a future copyright that is the subject of such an

agreement—the person in whom, by virtue of that subsection,

the copyright will vest on its coming into existence.

qualifying country means:

(a) a country that is a party to the International Convention for

the Protection of Literary and Artistic Works concluded at

Berne on 9 September 1886 as revised from time to time; or

(b) a country that is a member of the World Trade Organization

and has a law that provides consistently with the TRIPS

Agreement for:

(i) the ownership and duration of copyright or a related

right in works, sound recordings and cinematograph

films; and

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Part II Interpretation

Section 10

(ii) the owner of the copyright or related right to have rights

relating to the reproduction of the work, sound

recording or cinematograph film.

reception equipment means equipment whose operation, either

alone or together with other equipment, enables people to hear or

see a work or other subject-matter that is communicated.

record includes a disc, tape, paper, electronic file or other device in

which sounds are embodied.

registered charity means an entity that is registered under the

Australian Charities and Not-for-profits Commission Act 2012 as

the type of entity mentioned in column 1 of item 1 of the table in

subsection 25-5(5) of that Act.

Registrar means the Registrar of the Tribunal provided for by

section 170.

retransmission, in relation to a broadcast, means a retransmission

of the broadcast, where:

(a) the content of the broadcast is unaltered (even if the

technique used to achieve retransmission is different to the

technique used to achieve the original transmission); and

(b) either:

(i) in any case—the retransmission is simultaneous with

the original transmission; or

(ii) if the retransmission is in an area that has, wholly or

partly, different local time to the area of the original

transmission—the retransmission is delayed until no

later than the equivalent local time.

satellite BSA licence means a commercial television broadcasting

licence allocated under section 38C of the Broadcasting Services

Act 1992.

satellite BSA licensee means the licensee of a satellite BSA

licence.

sculpture includes a cast or model made for purposes of sculpture.

simulcasting means simultaneously broadcasting a broadcasting

service in both analog and digital form in accordance with the

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Interpretation Part II

Section 10

requirements of the Broadcasting Services Act 1992 or of any

prescribed legislative provisions relating to digital broadcasting.

sound broadcast means sounds broadcast otherwise than as part of

a television broadcast.

sound recording means the aggregate of the sounds embodied in a

record.

sound-track, in relation to visual images forming part of a

cinematograph film, means:

(a) the part of any article or thing, being an article or thing in

which those visual images are embodied, in which sounds are

embodied; or

(b) a disc, tape or other device in which sounds are embodied

and which is made available by the maker of the film for use

in conjunction with the article or thing in which those visual

images are embodied.

sufficient acknowledgement, in relation to a work, means an

acknowledgement identifying the work by its title or other

description and, unless the work is anonymous or pseudonymous

or the author has previously agreed or directed that an

acknowledgement of his or her name is not to be made, also

identifying the author.

technological protection measure means:

(a) an access control technological protection measure; or

(b) a device, product, technology or component (including a

computer program) that:

(i) is used in Australia or a qualifying country by, with the

permission of, or on behalf of, the owner or the

exclusive licensee of the copyright in a work or other

subject-matter; and

(ii) in the normal course of its operation, prevents, inhibits

or restricts the doing of an act comprised in the

copyright;

but does not include such a device, product, technology or

component to the extent that it:

(iii) if the work or other subject-matter is a cinematograph

film or computer program (including a computer

game)—controls geographic market segmentation by

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preventing the playback in Australia of a non-infringing

copy of the work or other subject-matter acquired

outside Australia; or

(iv) if the work is a computer program that is embodied in a

machine or device—restricts the use of goods (other

than the work) or services in relation to the machine or

device.

For the purposes of this definition, computer program has the

same meaning as in section 47AB.

television broadcast means visual images broadcast by way of

television, together with any sounds broadcast for reception along

with those images.

the Australian Broadcasting Commission means the Australian

Broadcasting Commission that was established under the

Broadcasting and Television Act 1942.

the Australian Broadcasting Corporation means the Australian

Broadcasting Corporation established under the Australian

Broadcasting Corporation Act 1983.

the Commonwealth includes the Administration of a Territory.

the Copyright Act, 1911 means the Imperial Act known as the

Copyright Act, 1911.

the Copyright Tribunal or the Tribunal means the Copyright

Tribunal of Australia provided for by Part VI, and includes a

member of that Tribunal exercising powers of that Tribunal.

the Crown includes the Crown in right of a State, the Crown in

right of the Northern Territory and the Crown in right of Norfolk

Island and also includes the Administration of a Territory other

than the Northern Territory or Norfolk Island.

the National Librarian has the same meaning as in the National

Library Act 1960-1967.

the National Library means the National Library established under

the National Library Act 1960-1967.

the Special Broadcasting Service means the Special Broadcasting

Service that was referred to in section 5 of the Special

Broadcasting Service Act 1991.

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the Special Broadcasting Service Corporation means the body

corporate preserved and continued in existence as the Special

Broadcasting Service Corporation under section 5 of the Special

Broadcasting Service Act 1991.

to the public means to the public within or outside Australia.

TRIPS Agreement means the Agreement on Trade-Related

Aspects of Intellectual Property Rights set out in Annex 1C to the

Marrakesh Agreement establishing the World Trade Organization,

done at Marrakesh on 15 April 1994.

Note: The English text of the Marrakesh Agreement establishing the World Trade Organization is set out in Australian Treaty Series 1995 No. 8.

will includes a codicil.

work means a literary, dramatic, musical or artistic work.

work of joint authorship means a work that has been produced by

the collaboration of two or more authors and in which the

contribution of each author is not separate from the contribution of

the other author or the contributions of the other authors.

writing means a mode of representing or reproducing words,

figures or symbols in a visible form, and written has a

corresponding meaning.

(1A) Without limiting the meaning of the expression educational

purposes in this Act, a copy of the whole or a part of a work or

other subject-matter shall be taken, for the purposes of the

provision in which the expression appears, to have been made,

used or retained, as the case may be, for the educational purposes

of an educational institution if:

(a) it is made or retained for use, or is used, in connection with a

particular course of instruction provided by the institution; or

(b) it is made or retained for inclusion, or is included, in the

collection of a library of the institution.

(2) Without limiting the meaning of the expression reasonable portion

in this Act, where a literary, dramatic or musical work (other than a

computer program) is contained in a published edition of that

work, being an edition of not less than 10 pages, a copy of part of

that work, as it appears in that edition, shall be taken to contain

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only a reasonable portion of that work if the pages that are copied

in the edition:

(a) do not exceed, in the aggregate, 10% of the number of pages

in that edition; or

(b) in a case where the work is divided into chapters exceed, in

the aggregate, 10% of the number of pages in that edition but

contain only the whole or part of a single chapter of the

work.

(2A) Without limiting the meaning of the expression reasonable portion

in this Act, if a person makes a reproduction of a part of:

(a) a published literary work (other than a computer program or

an electronic compilation, such as a database); or

(b) a published dramatic work;

being a work that is in electronic form, the reproduction is taken to

contain only a reasonable portion of the work if:

(c) the number of words copied does not exceed, in the

aggregate, 10% of the number of words in the work; or

(d) if the work is divided into chapters—the number of words

copied exceeds, in the aggregate, 10% of the number of

words in the work, but the reproduction contains only the

whole or part of a single chapter of the work.

(2B) If a published literary or dramatic work is contained in a published

edition of the work and is separately available in electronic form, a

reproduction of a part of the work is taken to contain only a

reasonable portion of the work if it is taken to do so either under

subsection (2) or (2A), whether or not it does so under both of

them.

(2C) If:

(a) a person makes a reproduction of a part of a published

literary or dramatic work; and

(b) the reproduction is taken to contain only a reasonable portion

of the work under subsection (2) or (2A);

subsection (2) or (2A) does not apply in relation to any subsequent

reproduction made by the person of any other part of the same

work.

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(3) In this Act, unless the contrary intention appears:

(a) a reference to the body administering an institution shall be

read as:

(i) in a case where the institution is a body corporate—a

reference to the institution; or

(ii) in any other case—a reference to the body or person

(including the Crown) having ultimate responsibility for

the administration of the institution; and

(b) a reference to the body administering a library or archives is

to be read:

(i) in the case of archives covered by paragraph (aa) of the

definition of archives in subsection (1)—as a reference

to the person having the custody of the archives in

accordance with the relevant arrangement referred to in

that paragraph; or

(ii) otherwise—as a reference to the body (whether

incorporated or not), or the person (including the

Crown), having ultimate responsibility for the

administration of the library or archives; and

(c) a reference to a copy of a sound recording shall be read as a

reference to a record embodying a sound recording or a

substantial part of a sound recording being a record derived

directly or indirectly from a record produced upon the

making of a sound recording; and

(e) a reference to the Crown in right of a State shall be read as

including a reference to the Crown in right of the Northern

Territory and the Crown in right of Norfolk Island; and

(f) a reference to the custodian in charge of the copying records

of an educational institution, an institution assisting persons

with a print disability or an institution assisting persons with

an intellectual disability shall be read as a reference to the

person having responsibility for the day-to-day

administration of the institution; and

(g) a reference to the making, by reprographic reproduction, of a

copy of a document, or of the whole or a part of a work, shall

be read as a reference to the making of a facsimile copy of

the document or the whole or that part of the work, being a

facsimile copy of any size or form; and

(h) a reference to a copy of a work, or of a part of a work, for a

person with a print disability is taken to be a reference to:

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

of the part of the work, being a record made by, or on

behalf of, the body administering an institution assisting

persons with a print disability and so made for the sole

purpose of use in the provision, whether by the

institution or otherwise, of assistance to a person or

persons with a print disability; or

(ii) a Braille version, large-print version or photographic

version of the work, or of the part of the work, being a

Braille version, large-print version or photographic

version, as the case may be, made by, or on behalf of,

the body administering an institution assisting persons

with a print disability and so made for the sole purpose

of use in the provision, whether by the institution or

otherwise, of assistance to a person or persons with a

print disability; and

(ha) a reference to a copy for a person with an intellectual

disability, in relation to the whole or a part of an eligible item

within the meaning of Part VB, shall be read as a reference to

a copy, within the meaning of that Part, of an eligible item, or

of a part of an eligible item, as the case may be, made by, or

on behalf of, the body administering an institution assisting

persons with an intellectual disability, being a copy that is

made for the sole purpose of use in the provision, whether by

the institution or otherwise, of assistance to a person or

persons with an intellectual disability; and

(j) a reference to a microform copy of the whole or a part of a

work shall be read as a reference to a copy of the whole or a

part of the work produced by miniaturizing the graphic

symbols of which the work is composed; and

(k) a reference to a periodical publication shall be read as a

reference to an issue of a periodical publication and a

reference to articles contained in the same periodical

publication shall be read as a reference to articles contained

in the same issue of that periodical publication; and

(l) a reference to a record embodying a sound recording shall be

read as a reference to:

(i) a record produced upon the making of a sound

recording; or

(ii) another record embodying the sound recording directly

or indirectly derived from a record so produced; and

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Section 10

(m) a reference to a relevant record, or a relevant declaration, in

relation to the making, in reliance on a particular section

(other than section 49):

(i) of a copy, or a copy for a person with a print disability,

of the whole or a part of a work; or

(ia) of a copy for a person with an intellectual disability of

the whole or a part of an eligible item; or

(ii) of a copy of a sound recording or a cinematograph film;

shall be read as a reference to any record or declaration of a

kind referred to in that section that is required by this Act to

be made in relation to the making of that copy; and

(ma) a reference to a relevant declaration, in relation to the

making, in reliance on section 49, of a copy of the whole or a

part of a work, shall be read as a reference to:

(i) in a case where the copy is made in reliance on

subsection 49(2)—a declaration of the kind referred to

in subsection 49(1) that is furnished in relation to the

making of the copy; or

(ii) in a case where the copy is made in reliance on

subsection 49(2C)—a declaration of the kind referred to

in paragraph 49(2C)(b) that is made in relation to the

making of the copy; or

(iii) in any case—a declaration of the kind referred to in

subsection 49(5) that is made in relation to the making

of the copy; and

(n) a reference to a State shall be read as including a reference to

the Northern Territory and Norfolk Island and a reference to

a Territory shall be read as not including a reference to the

Northern Territory or Norfolk Island.

(3A) For the purposes of this Act, something held in, or forming part of,

the collection of any archives covered by paragraph (aa) of the

definition of archives in subsection (1) is taken not to be held in,

and not to form part of, the collection of the National Archives of

Australia.

Note: Paragraph (aa) of the definition of archives covers archival material in the custody of a person other than the National Archives of Australia under an arrangement referred to in section 64 of the Archives Act 1983.

(4) Where:

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Section 10AA

(a) a collection of documents or other material of historical

significance or public interest that is in the custody of a body,

whether incorporated or unincorporated, is being maintained

by the body for the purpose of conserving and preserving

those documents or other material; and

(b) the body does not maintain and operate the collection for the

purpose of deriving a profit;

paragraph (b) of the definition of archives in subsection (1) applies

to that collection.

Example: Museums and galleries are examples of bodies that could have collections covered by paragraph (b) of the definition of archives.

(5) For the purposes of the definition of copy in subsection (1), such a

copy includes any form (whether visible or not) of storage of a

cinematograph film, or a substantial part of a cinematograph film,

(whether or not the copy of the film, or a substantial part of the

film, can be reproduced).

(6) For the purposes of paragraph 10(3)(c), a reference to a copy of a

sound recording includes any form (whether visible or not) of

storage of the sound recording, or a substantial part of the sound

recording, (whether or not the copy of the recording, or a

substantial part of the recording, can be reproduced).

10AA Non-infringing copy of a sound recording

Minimum requirements

(1) A copy of a sound recording is a non-infringing copy only if it is

made by or with the consent of:

(a) the owner of the copyright or related right in the sound

recording in the country (the copy country) in which the copy

was made; or

(b) the owner of the copyright or related right in the sound

recording in the country (the original recording country) in

which the sound recording was made, if the law of the copy

country did not provide for copyright or a related right in

sound recordings when the sound recording was made; or

(c) the maker of the sound recording, if neither the law of the

copy country nor the law of the original recording country

(whether those countries are different or not) provided for

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Section 10AB

copyright or a related right in sound recordings when the

sound recording was made.

Extra requirements for copies of recordings of works subject to

Australian copyright

(2) If the sound recording is of a work that is a literary, dramatic or

musical work in which copyright subsists in Australia, the copy is a

non-infringing copy only if:

(a) copyright subsists in the work under the law of the copy

country; and

(b) the making of the copy does not infringe the copyright in the

work under the law of the copy country; and

(c) the copy country meets the requirements of subsection (3).

To avoid doubt, the requirements of this subsection are additional

to those of subsection (1).

Requirements for copy country

(3) The copy country mentioned in subsection (2) must:

(a) be a party to the International Convention for the Protection

of Literary and Artistic Works concluded at Berne on

9 September 1886 as revised from time to time; or

(b) be a member of the World Trade Organization and have a

law that provides consistently with the TRIPS Agreement

for:

(i) the ownership and duration of copyright in literary,

dramatic and musical works; and

(ii) the owner of the copyright in the work to have rights

relating to the reproduction of the work.

Australian copyright may result from Act or regulations

(4) For the purposes of subsection (2) it does not matter whether the

copyright in the work subsists in Australia as a result of this Act or

as a result of the regulations made for the purposes of section 184.

10AB Non-infringing copy of a computer program

A copy of a computer program is a non-infringing copy only if:

(a) it is made in a qualifying country; and

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Part II Interpretation

Section 10AC

(b) its making did not constitute an infringement of any

copyright in a work under a law of that country.

10AC Non-infringing copy of an electronic literary or music item

A copy of an electronic literary or music item is a non-infringing

copy only if:

(a) it is made in a qualifying country; and

(b) its making did not constitute an infringement of any

copyright in a work, or in a published edition of a work,

under a law of that country.

10AD Accessories to imported articles

Accessories

(1) If a person imports into Australia:

(a) an article that has embodied in it a copy of a computer

program; or

(b) an article that has embodied in it a copy of an electronic

literary or music item; or

(c) an article that has embodied in it a copy of a sound recording;

a copy of any work or other subject matter (other than a feature

film) that is on, embodied in, or included with, the article on its

importation is taken to be an accessory to the article.

Note: See also sections 44C and 112C (about the non-infringement of copyright in works or other subject matter that are accessories to imported articles).

Definition

(2) In this section:

feature film means a cinematograph film that:

(a) is produced wholly or principally:

(i) for exhibition to the public in cinemas or by way of

television broadcasting; or

(ii) for sale or rental to the public where it is reasonable to

assume that the viewing of the film (without electronic

interactive involvement with the film) would be the

primary object of any such sale or rental; and

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Interpretation Part II

Section 10A

(b) is more than 20 minutes in duration.

Interpretation

(3) This section does not limit the meaning of accessory in

subsection 10(1).

10A Declarations and notices relating to certain bodies and

institutions

(1) The Attorney-General may, by notice in writing published in the

Gazette:

(c) declare an institution to be, for the purposes of this Act, an

institution assisting persons with a print disability; or

(d) declare an institution to be, for the purposes of this Act, an

institution assisting persons with an intellectual disability.

(2) The Attorney-General may, by notice in writing published in the

Gazette, revoke a declaration made under subsection (1).

(3) The Attorney-General shall cause a copy of a notice under

subsection (1) or (2) to be laid before each House of the Parliament

within 15 sitting days of that House after the notice is published in

the Gazette.

(4) The body administering an institution may cause to be published in

the Gazette a notice that:

(a) sets out full particulars of the name and address of the

institution; and

(aa) sets out the principal function or principal functions of the

institution or of an undertaking within the body administering

the institution; and

(b) contains a statement to the effect that the notice is published

for the purposes of this subsection.

(5) The body administering an institution may cause to be published in

the Gazette a notice revoking a notice published under

subsection (4) in relation to the institution.

(5A) A collecting society may apply to the Copyright Tribunal for

review of a declaration included in a notice published under

subsection (4) of this section for the purposes of paragraph (g), (h)

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Section 11

or (i) of the definition of educational institution in

subsection 10(1).

Note: For applications to the Tribunal for review see section 153L.

(6) In this section, institution includes a school of nursing, an

undertaking within a hospital, a teacher education centre and an

undertaking within a body administering an educational institution.

11 Residence in a country not affected by temporary absence

For the purposes of this Act, a person who, at a material time, was

ordinarily resident in a country (including Australia) but was

temporarily absent from that country shall be treated as if he or she

had been resident in that country at that time.

12 References to Parliament

A reference in this Act to a Parliament shall be read as a reference

to the Parliament of the Commonwealth or of a State or a

legislature of a Territory.

13 Acts comprised in copyright

(1) A reference in this Act to an act comprised in the copyright in a

work or other subject-matter shall be read as a reference to any act

that, under this Act, the owner of the copyright has the exclusive

right to do.

(2) For the purposes of this Act, the exclusive right to do an act in

relation to a work, an adaptation of a work or any other

subject-matter includes the exclusive right to authorize a person to

do that act in relation to that work, adaptation or other

subject-matter.

14 Acts done in relation to substantial part of work or other

subject-matter deemed to be done in relation to the whole

(1) In this Act, unless the contrary intention appears:

(a) a reference to the doing of an act in relation to a work or

other subject-matter shall be read as including a reference to

the doing of that act in relation to a substantial part of the

work or other subject-matter; and

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Interpretation Part II

Section 15

(b) a reference to a reproduction, adaptation or copy of a work

shall be read as including a reference to a reproduction,

adaptation or copy of a substantial part of the work, as the

case may be.

(2) This section does not affect the interpretation of any reference in

sections 32, 177, 180, 187 and 198 to the publication, or absence of

publication, of a work.

15 References to acts done with licence of owner of copyright

For the purposes of this Act, an act shall be deemed to have been

done with the licence of the owner of a copyright if the doing of

the act was authorized by a licence binding the owner of the

copyright.

16 References to partial assignment of copyright

A reference in this Act to a partial assignment of copyright shall be

read as a reference to an assignment of copyright that is limited in

any way.

17 Statutory employment

For the purposes of this Act, the employment of a person, or the

employment of a person as an apprentice, under a law of the

Commonwealth or of a State but otherwise than under a contract of

service or contract of apprenticeship shall be treated as if that

employment were employment under a contract of service or

employment under a contract of apprenticeship, as the case may be.

18 Libraries established or conducted for profit

For the purposes of this Act, a library shall not be taken to be

established or conducted for profit by reason only that the library is

owned by a person carrying on business for profit.

19 References to Copyright Act, 1911

A reference in a provision of this Act to the Copyright Act, 1911,

in relation to any time before the commencement of this Act, shall,

for the purposes of the application of that provision in relation to a

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Section 20

State or a Territory, be read as a reference to the Copyright Act,

1911 as it applied in that State or Territory at that time.

20 Names under which work is published

(1) A reference in this Act to the name or names under which a work

was published shall be read as a reference to the name or names

specified in the work as the name of the author or the names of the

authors of the work.

(2) For the purposes of this Act, a publication of a work under two or

more names shall not be taken to be pseudonymous unless all those

names are pseudonyms.

21 Reproduction and copying of works and other subject-matter

(1) For the purposes of this Act, a literary, dramatic or musical work

shall be deemed to have been reproduced in a material form if a

sound recording or cinematograph film is made of the work, and

any record embodying such a recording and any copy of such a

film shall be deemed to be a reproduction of the work.

(1A) For the purposes of this Act, a work is taken to have been

reproduced if it is converted into or from a digital or other

electronic machine-readable form, and any article embodying the

work in such a form is taken to be a reproduction of the work.

Note: The reference to the conversion of a work into a digital or other electronic machine-readable form includes the first digitisation of the work.

(2) Subsections (1) and (1A) apply in relation to an adaptation of a

work in the same way as they apply in relation to a work.

(3) For the purposes of this Act, an artistic work shall be deemed to

have been reproduced:

(a) in the case of a work in a two-dimensional form—if a version

of the work is produced in a three-dimensional form; or

(b) in the case of a work in a three-dimensional form—if a

version of the work is produced in a two-dimensional form;

and the version of the work so produced shall be deemed to be a

reproduction of the work.

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Interpretation Part II

Section 22

(4) The last preceding subsection has effect subject to Division 7 of

Part III.

(5) For the purposes of this Act, a computer program is taken to have

been reproduced if:

(a) an object code version of the program is derived from the

program in source code by any process, including

compilation; or

(b) a source code version of the program is derived from the

program in object code by any process, including

decompilation;

and any such version is taken to be a reproduction of the program.

(6) For the purposes of this Act, a sound recording or cinematograph

film is taken to have been copied if it is converted into or from a

digital or other electronic machine-readable form, and any article

embodying the recording or film in such a form is taken to be a

copy of the recording or film.

Note: The reference to the conversion of a sound recording or cinematograph film into a digital or other electronic machine-readable form includes the first digitisation of the recording or film.

22 Provisions relating to the making of a work or other

subject-matter

Literary, dramatic, musical or artistic works

(1) A reference in this Act to the time when, or the period during

which, a literary, dramatic, musical or artistic work was made shall

be read as a reference to the time when, or the period during which,

as the case may be, the work was first reduced to writing or to

some other material form.

(2) For the purposes of this Act, a literary, dramatic or musical work

that exists in the form of sounds embodied in an article or thing

shall be deemed to have been reduced to a material form and to

have been so reduced at the time when those sounds were

embodied in that article or thing.

Sound recordings

(3) For the purposes of this Act:

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Section 22

(a) a sound recording, other than a sound recording of a live

performance, shall be deemed to have been made at the time

when the first record embodying the recording was produced;

and

(b) the maker of the sound recording is the person who owned

that record at that time.

(3A) For the purposes of this Act, the makers of a sound recording of a

live performance are:

(a) the person or persons who, at the time of the recording, own

the record on which the recording is made; and

(b) the performer or performers who performed in the

performance (other than a performer who is already covered

by paragraph (a)).

Note: A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.

(3B) If:

(a) a sound recording of a live performance is made; and

(b) a performer performs in that performance under the terms of

his or her employment by another person (the employer)

under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken

to be a maker instead of that performer.

(3C) Subsection (3B) may be excluded or modified by agreement

between the performer and the employer.

Cinematograph films

(4) For the purposes of this Act:

(a) a reference to the making of a cinematograph film shall be

read as a reference to the doing of the things necessary for

the production of the first copy of the film; and

(b) the maker of the cinematograph film is the person by whom

the arrangements necessary for the making of the film were

undertaken.

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Interpretation Part II

Section 22

Broadcasts and other communications

(5) For the purposes of this Act, a broadcast is taken to have been

made by the person who provided the broadcasting service by

which the broadcast was delivered.

(6) For the purposes of this Act, a communication other than a

broadcast is taken to have been made by the person responsible for

determining the content of the communication.

(6A) To avoid doubt, for the purposes of subsection (6), a person is not

responsible for determining the content of a communication merely

because the person takes one or more steps for the purpose of:

(a) gaining access to what is made available online by someone

else in the communication; or

(b) receiving the electronic transmission of which the

communication consists.

Example: A person is not responsible for determining the content of the communication to the person of a web page merely because the person clicks on a link to gain access to the page.

Definitions

(7) In this section:

live performance means:

(a) a performance (including an improvisation) of a dramatic

work, or part of such a work, including such a performance

given with the use of puppets; or

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

work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part

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

literary work; or

(d) a performance of a dance; or

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

presentation or show; or

(f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience

or otherwise.

performer in a live performance:

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Part II Interpretation

Section 23

(a) means each person who contributed to the sounds of the

performance; and

(b) if the performance includes a performance of a musical

work—includes the conductor.

sound recording of a live performance means a sound recording,

made at the time of the live performance, consisting of, or

including, the sounds of the performance.

23 Sound recordings and records

(1) For the purposes of this Act, sounds embodied in a sound-track

associated with visual images forming part of cinematograph film

shall be deemed not to be a sound recording.

(2) A reference in this Act to a record of a work or other

subject-matter shall, unless the contrary intention appears, be read

as a reference to a record by means of which the work or other

subject-matter can be performed.

24 References to sounds and visual images embodied in an article

For the purposes of this Act, sounds or visual images shall be taken

to have been embodied in an article or thing if the article or thing

has been so treated in relation to those sounds or visual images that

those sounds or visual images are capable, with or without the aid

of some other device, of being reproduced from the article or thing.

25 Provisions relating to broadcasting

(1) A reference in this Act to broadcasting shall, unless the contrary

intention appears, be read as a reference to broadcasting whether

by way of sound broadcasting or of television.

(2) A reference in this Act to the doing of an act by the reception of a

television broadcast or sound broadcast shall be read as a reference

to the doing of that act by means of receiving a broadcast:

(a) from the transmission by which the broadcast is made; or

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Interpretation Part II

Section 27

(b) from a transmission made otherwise than by way of

broadcasting, but simultaneously with the transmission

referred to in the last preceding paragraph;

whether the reception of the broadcast is directly from the

transmission concerned or from a re-transmission made by any

person from any place.

(3) Where a record embodying a sound recording or a copy of a

cinematograph film is used for the purpose of making a broadcast

(in this subsection referred to as the primary broadcast), a person

who makes a broadcast (in this subsection referred to as the

secondary broadcast) by receiving and making a retransmission of:

(a) the transmission by which the primary broadcast was made;

or

(b) a transmission made otherwise than by way of broadcasting

but simultaneously with the transmission referred to in the

last preceding paragraph;

shall, for the purposes of this Act, be deemed not to have used the

record or copy for the purpose of making the secondary broadcast.

(4) In this Act:

(a) a reference to a cinematograph film of a television broadcast

shall be read as including a reference to a cinematograph

film, or a photograph, of any of the visual images comprised

in the broadcast; and

(b) a reference to a copy of a cinematograph film of a television

broadcast shall be read as including a reference to a copy of a

cinematograph film, or a reproduction of a photograph, of

any of those images.

27 Performance

(1) Subject to this section, a reference in this Act to performance shall:

(a) be read as including a reference to any mode of visual or

aural presentation, whether the presentation is by the use of

reception equipment, by the exhibition of a cinematograph

film, by the use of a record or by any other means; and

(b) in relation to a lecture, address, speech or sermon—be read

as including a reference to delivery;

and a reference in this Act to performing a work or an adaptation

of a work has a corresponding meaning.

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Part II Interpretation

Section 28

(2) For the purposes of this Act, the communication of a work or other

subject-matter to the public does not constitute:

(a) performance; or

(b) causing visual images to be seen or sounds to be heard.

(3) Where visual images or sounds are displayed or emitted by any

reception equipment to which they are communicated, the

operation of any equipment by which the images or sounds are

communicated, directly or indirectly, to the reception equipment

shall be deemed not to constitute performance or to constitute

causing visual images to be seen or sounds to be heard but, in so

far as the display or emission of the images or sounds constitutes a

performance, or causes the images to be seen or the sounds to be

heard, the performance, or the causing of the images to be seen or

sounds to be heard, as the case may be, shall be deemed to be

effected by the operation of the reception equipment.

(4) Without prejudice to the last two preceding subsections, where a

work or an adaptation of a work is performed or visual images are

caused to be seen or sounds to be heard by the operation of any

equipment referred to in the last preceding subsection or of any

equipment for reproducing sounds by the use of a record, being

equipment provided by or with the consent of the occupier of the

premises where the equipment is situated, the occupier of those

premises shall, for the purposes of this Act, be deemed to be the

person giving the performance or causing the images to be seen or

the sounds to be heard, whether he or she is the person operating

the equipment or not.

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

Part XIA.

28 Performance and communication of works or other

subject-matter in the course of educational instruction

(1) Where a literary, dramatic or musical work:

(a) is performed in class, or otherwise in the presence of an

audience; and

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Interpretation Part II

Section 28

(b) is so performed by a teacher in the course of giving

educational instruction, not being instruction given for profit,

or by a student in the course of receiving such instruction;

the performance shall, for the purposes of this Act, be deemed not

to be a performance in public if the audience is limited to persons

who are taking part in the instruction or are otherwise directly

connected with the place where the instruction is given.

(2) For the purposes of this section, educational instruction given by a

teacher at a place of education that is not conducted for profit shall

not be taken to be given for profit by reason only that the teacher

receives remuneration for giving the instruction.

(3) For the purposes of this section, a person shall not be taken to be

directly connected with a place where instruction is given by

reason only that he or she is a parent or guardian of a student who

receives instruction at that place.

(4) The last three preceding subsections apply in relation to sound

recordings and cinematograph films in like manner as they apply in

relation to literary, dramatic and musical works but, in the

application of those subsections in relation to such recordings or

films, any reference to performance shall be read as a reference to

the act of causing the sounds concerned to be heard or the visual

images concerned to be seen.

(5) A communication of a literary, dramatic or musical work, a sound

recording or a cinematograph film is taken for the purposes of this

Act not to be a communication to the public if the communication

is made merely to facilitate:

(a) a performance of the work that, because of this section, is not

a performance in public; or

(b) an act of causing sounds forming part of the recording to be

heard that, because of this section, is not an act of causing the

sound recording to be heard in public; or

(c) an act of causing visual images or sounds forming part of the

cinematograph film to be seen or heard that, because of this

section, is not an act of causing the film to be seen or heard

in public.

(6) A communication of a television broadcast or sound broadcast is

taken for the purposes of this Act not to be a communication of the

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Part II Interpretation

Section 29

broadcast, or of a work or other subject-matter included in the

broadcast, to the public if:

(a) the communication is made merely to facilitate the television

broadcast being seen and heard, or the sound broadcast being

heard, in class or otherwise in the presence of an audience, in

the course of educational instruction that:

(i) is given by a teacher; and

(ii) is not given for profit; and

(b) the audience is limited to persons who are taking part in the

instruction or are otherwise directly connected with the place

where the instruction is given.

(7) A communication of an artistic work is taken for the purposes of

this Act not to be a communication of the work to the public if:

(a) the communication is made merely to facilitate the work

being seen in class or otherwise in the presence of an

audience, in the course of educational instruction that:

(i) is given by a teacher; and

(ii) is not given for profit; and

(b) the audience is limited to persons who are taking part in the

instruction or are otherwise directly connected with the place

where the instruction is given.

29 Publication

(1) Subject to this section, for the purposes of this Act:

(a) a literary, dramatic, musical or artistic work, or an edition of

such a work, shall be deemed to have been published if, but

only if, reproductions of the work or edition have been

supplied (whether by sale or otherwise) to the public;

(b) a cinematograph film shall be deemed to have been published

if, but only if, copies of the film have been sold, let on hire,

or offered or exposed for sale or hire, to the public; and

(c) a sound recording shall be deemed to have been published if,

but only if, records embodying the recording or a part of the

recording have been supplied (whether by sale or otherwise)

to the public.

(2) In determining, for the purposes of paragraph (1)(a), whether

reproductions of a work or edition have been supplied to the

public, section 14 does not apply.

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Interpretation Part II

Section 29

(3) For the purposes of this Act, the performance of a literary,

dramatic or musical work, the supplying (whether by sale or

otherwise) to the public of records of a literary, dramatic or

musical work, the exhibition of an artistic work, the construction of

a building or of a model of a building, or the supplying (whether by

sale or otherwise) to the public of photographs or engravings of a

building, of a model of a building or of a sculpture, does not

constitute publication of the work.

(4) A publication that is merely colourable and is not intended to

satisfy the reasonable requirements of the public shall be

disregarded for the purposes of this Act except in so far as it may

constitute an infringement of copyright or a breach of a duty under

Part IX.

(5) For the purposes of this Act, a publication in Australia or in any

other country shall not be treated as being other than the first

publication by reason only of an earlier publication elsewhere, if

the two publications took place within a period of not more than

thirty days.

(6) In determining, for the purposes of any provision of this Act:

(a) whether a work or other subject-matter has been published;

(b) whether a publication of a work or other subject-matter was

the first publication of the work or other subject-matter; or

(c) whether a work or other subject-matter was published or

otherwise dealt with in the life-time of a person;

any unauthorized publication or the doing of any other

unauthorized act shall be disregarded.

(7) Subject to section 52, a publication or other act shall, for the

purposes of the last preceding subsection, be taken to have been

unauthorized if, but only if:

(a) copyright subsisted in the work or other subject-matter and

the act concerned was done otherwise than by, or with the

licence of, the owner of the copyright; or

(b) copyright did not subsist in the work or other subject-matter

and the act concerned was done otherwise than by, or with

the licence of:

(i) the author or, in the case of a sound recording,

cinematograph film or edition of a work, the maker or

publisher, as the case may be; or

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Part II Interpretation

Section 30

(ii) persons lawfully claiming under the author, maker or

publisher.

(8) Nothing in either of the last two preceding subsections affects any

provisions of this Act relating to the acts comprised in a copyright

or to acts constituting infringements of copyrights or any

provisions of Part IX.

30 Ownership of copyright for particular purposes

In the case of a copyright of which (whether as a result of a partial

assignment or otherwise) different persons are the owners in

respect of its application to:

(a) the doing of different acts or classes of acts; or

(b) the doing of one or more acts or classes of acts in different

countries or at different times;

the owner of the copyright, for any purpose of this Act, shall be

deemed to be the person who is the owner of the copyright in

respect of its application to the doing of the particular act or class

of acts, or to the doing of the particular act or class of acts in the

particular country or at the particular time, as the case may be, that

is relevant to that purpose, and a reference in this Act to the

prospective owner of a future copyright of which different persons

are the prospective owners has a corresponding meaning.

30A Commercial rental arrangement

(1) In this Act, the expression commercial rental arrangement, in

relation to a work reproduced in a sound recording, signifies an

arrangement that has the following features:

(a) however the arrangement is expressed, it is in substance an

arrangement under which a copy of the sound recording is

made available by a person on terms that it will or may be

returned to the person;

(b) the arrangement is made in the course of the conduct of a

business;

(c) the arrangement provides for the copy to be made available:

(i) for payment in money or money‘s worth; or

(ii) as part of the provision of a service for which payment

in money or money‘s worth is to be made.

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Interpretation Part II

Section 30A

(2) In this Act, the expression commercial rental arrangement, in

relation to a sound recording or a computer program, signifies an

arrangement that has the following features:

(a) however the arrangement is expressed, it is in substance an

arrangement under which a copy of the sound recording or

computer program is made available by a person on terms

that it will or may be returned to the person;

(b) the arrangement is made in the course of the conduct of a

business;

(c) the arrangement provides for the copy to be made available:

(i) for payment in money or money‘s worth; or

(ii) as part of the provision of a service for which payment

in money or money‘s worth is to be made.

(3) It is not the intention of the Parliament that a lending arrangement

should be regarded as a commercial rental arrangement for the

purposes of subsection (1) or (2).

(4) An arrangement is to be regarded as a lending arrangement if,

regardless of the way in which the arrangement is expressed, the

true nature of the arrangement is that it is an arrangement for the

lending of a copy of a sound recording or computer program under

which no amount, other than a deposit to secure the return of the

copy, is payable.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 1 Nature, duration and ownership of copyright in works

Section 31

Part III—Copyright in original literary, dramatic,

musical and artistic works

Division 1—Nature, duration and ownership of copyright

in works

31 Nature of copyright in original works

(1) For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a work, is the exclusive right:

(a) in the case of a literary, dramatic or musical work, to do all

or any of the following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to communicate the work to the public;

(vi) to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the

first-mentioned work, any of the acts specified in

relation to the first-mentioned work in subparagraphs (i)

to (iv), inclusive; and

(b) in the case of an artistic work, to do all or any of the

following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to communicate the work to the public; and

(c) in the case of a literary work (other than a computer

program) or a musical or dramatic work, to enter into a

commercial rental arrangement in respect of the work

reproduced in a sound recording; and

(d) in the case of a computer program, to enter into a commercial

rental arrangement in respect of the program.

(2) The generality of subparagraph (1)(a)(i) is not affected by

subparagraph (1)(a)(vi).

(3) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement in respect of a machine or device in which a computer

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Copyright in original literary, dramatic, musical and artistic works Part III

Nature, duration and ownership of copyright in works Division 1

Section 31

program is embodied if the program is not able to be copied in the

course of the ordinary use of the machine or device.

(4) The reference in subsection (3) to a device does not include a

device of a kind ordinarily used to store computer programs (for

example, a floppy disc, a device of the kind commonly known as a

CD ROM, or an integrated circuit).

(5) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement if the computer program is not the essential object of

the rental.

(6) Paragraph (1)(c) does not extend to entry into a commercial rental

arrangement if:

(a) the copy of the sound recording concerned was purchased by

a person (the record owner) before the commencement of

Part 2 of the Copyright (World Trade Organization

Amendments) Act 1994; and

(b) the commercial rental arrangement is entered into in the

ordinary course of a business conducted by the record owner;

and

(c) the record owner was conducting the same business, or

another business that consisted of, or included, the making of

commercial rental arrangements of the same kind, when the

copy was purchased.

(7) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement in respect of a computer program if:

(a) the copy of the computer program was purchased by a person

(the program owner) before the commencement of Part 2 of

the Copyright (World Trade Organization Amendments) Act

1994; and

(b) the commercial rental arrangement is entered into in the

ordinary course of a business conducted by the program

owner; and

(c) the program owner was conducting the same business, or

another business that consisted of, or included, the making of

commercial rental arrangements in respect of computer

programs, when the copy was purchased.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 1 Nature, duration and ownership of copyright in works

Section 32

32 Original works in which copyright subsists

(1) Subject to this Act, copyright subsists in an original literary,

dramatic, musical or artistic work that is unpublished and of which

the author:

(a) was a qualified person at the time when the work was made;

or

(b) if the making of the work extended over a period—was a

qualified person for a substantial part of that period.

(2) Subject to this Act, where an original literary, dramatic, musical or

artistic work has been published:

(a) copyright subsists in the work; or

(b) if copyright in the work subsisted immediately before its first

publication—copyright continues to subsist in the work;

if, but only if:

(c) the first publication of the work took place in Australia;

(d) the author of the work was a qualified person at the time

when the work was first published; or

(e) the author died before that time but was a qualified person

immediately before his or her death.

(3) Notwithstanding the last preceding subsection but subject to the

remaining provisions of this Act, copyright subsists in:

(a) an original artistic work that is a building situated in

Australia; or

(b) an original artistic work that is attached to, or forms part of,

such a building.

(4) In this section, qualified person means an Australian citizen or a

person resident in Australia.

33 Duration of copyright in original works

(1) This section has effect subject to subsection 32(2) and to

section 34.

(2) Subject to this section, copyright that subsists in a literary,

dramatic, musical or artistic work by virtue of this Part continues to

subsist until the end of 70 years after the end of the calendar year

in which the author of the work died.

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Copyright in original literary, dramatic, musical and artistic works Part III

Nature, duration and ownership of copyright in works Division 1

Section 34

(3) If, before the death of the author of a literary work (other than a

computer program) or a dramatic or musical work:

(a) the work had not been published;

(b) the work had not been performed in public;

(c) the work had not been broadcast; and

(d) records of the work had not been offered or exposed for sale

to the public;

the copyright in the work continues to subsist until the end of 70

years after the end of the calendar year in which the work is first

published, performed in public, or broadcast, or records of the

work are first offered or exposed for sale to the public, whichever

is the earliest of those events to happen.

(4) A reference in the last preceding subsection to the doing of an act

in relation to a work shall be read as including a reference to the

doing of that act in relation to an adaptation of the work.

(5) If, before the death of the author of an engraving, the engraving

had not been published, the copyright in the engraving continues to

subsist until the end of 70 years after the end of the calendar year

in which the engraving is first published.

34 Duration of copyright in anonymous and pseudonymous works

(1) Subject to subsection (2), if the first publication of a literary,

dramatic, musical or artistic work is anonymous or pseudonymous,

any copyright subsisting in the work by virtue of this Part

continues to subsist until the end of the period of 70 years after the

end of the calendar year in which the work was first published.

(2) Subsection (1) does not apply in relation to a work if, at any time

before the end of the period referred to in that subsection, the

identity of the author of the work is generally known or can be

ascertained by reasonable inquiry.

35 Ownership of copyright in original works

(1) This section has effect subject to Parts VII and X.

(2) Subject to this section, the author of a literary, dramatic, musical or

artistic work is the owner of any copyright subsisting in the work

by virtue of this Part.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 1 Nature, duration and ownership of copyright in works

Section 35

(3) The operation of any of the next three succeeding subsections in

relation to copyright in a particular work may be excluded or

modified by agreement.

(4) If a literary, dramatic or artistic work:

(a) is made by the author under the terms of his or her

employment by the proprietor of a newspaper, magazine or

similar periodical under a contract of service or

apprenticeship; and

(b) is so made for the purpose of inclusion in a newspaper,

magazine or similar periodical;

the following paragraphs apply:

(c) the author is the owner of the copyright only in so far as the

copyright relates to:

(i) reproduction of the work for the purpose of inclusion in

a book; or

(ii) reproduction of the work in the form of a hard copy

facsimile (other than a hard copy facsimile made as part

of a process of transmission) made from a paper edition

of, or from another hard copy facsimile made from a

paper edition of, an issue of the newspaper, magazine or

similar periodical, but not including reproduction by the

proprietor for a purpose connected with the publication

of the newspaper, magazine or similar periodical;

(d) except as provided by paragraph (c), the proprietor is the

owner of the copyright.

(5) Subject to the last preceding subsection, where:

(a) a person makes, for valuable consideration, an agreement

with another person for the taking of a photograph for a

private or domestic purpose, the painting or drawing of a

portrait or the making of an engraving by the other person;

and

(b) the work is made in pursuance of the agreement;

the first-mentioned person is the owner of any copyright subsisting

in the work by virtue of this Part, but, if at the time the agreement

was made that person made known, expressly or by implication, to

the author of the work the purpose for which the work was

required, the author is entitled to restrain the doing, otherwise than

for that purpose, of any act comprised in the copyright in the work.

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Copyright in original literary, dramatic, musical and artistic works Part III

Nature, duration and ownership of copyright in works Division 1

Section 35

(6) Where a literary, dramatic or artistic work to which neither of the

last two preceding subsections applies, or a musical work, is made

by the author in pursuance of the terms of his or her employment

by another person under a contract of service or apprenticeship,

that other person is the owner of any copyright subsisting in the

work by virtue of this Part.

(7) In this section:

hard copy facsimile, in relation to a literary, dramatic or artistic

work, means a facsimile which is in a material form and from

which the work is visible to a human being without the use of any

device.

private or domestic purpose includes a portrait of family members,

a wedding party or children.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 2 Infringement of copyright in works

Section 36

Division 2—Infringement of copyright in works

36 Infringement by doing acts comprised in the copyright

(1) Subject to this Act, the copyright in a literary, dramatic, musical or

artistic work is infringed by a person who, not being the owner of

the copyright, and without the licence of the owner of the

copyright, does in Australia, or authorizes the doing in Australia

of, any act comprised in the copyright.

(1A) In determining, for the purposes of subsection (1), whether or not a

person has authorised the doing in Australia of any act comprised

in the copyright in a work, without the licence of the owner of the

copyright, the matters that must be taken into account include the

following:

(a) the extent (if any) of the person‘s power to prevent the doing

of the act concerned;

(b) the nature of any relationship existing between the person

and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or

avoid the doing of the act, including whether the person

complied with any relevant industry codes of practice.

(2) The next three succeeding sections do not affect the generality of

this section.

37 Infringement by importation for sale or hire

(1) Subject to Division 3, the copyright in a literary, dramatic, musical

or artistic work is infringed by a person who, without the licence of

the owner of the copyright, imports an article into Australia for the

purpose of:

(a) selling, letting for hire, or by way of trade offering or

exposing for sale or hire, the article;

(b) distributing the article:

(i) for the purpose of trade; or

(ii) for any other purpose to an extent that will affect

prejudicially the owner of the copyright; or

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Copyright in original literary, dramatic, musical and artistic works Part III

Infringement of copyright in works Division 2

Section 38

(c) by way of trade exhibiting the article in public;

if the importer knew, or ought reasonably to have known, that the

making of the article would, if the article had been made in

Australia by the importer, have constituted an infringement of the

copyright.

(2) In relation to an accessory to an article that is or includes a copy of

a work, being a copy that was made without the licence of the

owner of the copyright in the work in the country in which the

copy was made, subsection (1) has effect as if the words ―the

importer knew, or ought reasonably to have known, that‖ were

omitted.

38 Infringement by sale and other dealings

(1) Subject to Division 3, the copyright in a literary, dramatic, musical

or artistic work is infringed by a person who, in Australia, and

without the licence of the owner of the copyright:

(a) sells, lets for hire, or by way of trade offers or exposes for

sale or hire, an article; or

(b) by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the

making of the article constituted an infringement of the copyright

or, in the case of an imported article, would, if the article had been

made in Australia by the importer, have constituted such an

infringement.

(2) For the purposes of the last preceding subsection, the distribution

of any articles:

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially

the owner of the copyright concerned;

shall be taken to be the sale of those articles.

(3) In this section:

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 2 Infringement of copyright in works

Section 39

39 Infringement by permitting place of public entertainment to be

used for performance of work

(1) The copyright in a literary, dramatic or musical work is infringed

by a person who permits a place of public entertainment to be used

for the performance in public of the work, where the performance

constitutes an infringement of the copyright in the work.

(2) This section does not apply where the person permitting the place

to be so used establishes:

(a) that he or she was not aware, and had no reasonable grounds

for suspecting, that the performance would be an

infringement of the copyright; or

(b) that he or she gave the permission gratuitously, or for a

consideration that was only nominal or, if more than

nominal, did not exceed a reasonable estimate of the

expenses to be incurred by him or her by reason of the use of

the place for the performance.

(3) In this section, place of public entertainment includes any

premises that are occupied principally for purposes other than

public entertainment but are from time to time made available for

hire for purposes of public entertainment.

39A Infringing copies made on machines installed in libraries and

archives

Where:

(a) a person makes an infringing copy of, or of part of, a work on

a machine (including a computer), being a machine installed

by or with the approval of the body administering a library or

archives on the premises of the library or archives, or outside

those premises for the convenience of persons using the

library or archives; and

(b) there is affixed to, or in close proximity to, the machine, in a

place readily visible to persons using the machine, a notice of

the prescribed dimensions and in accordance with the

prescribed form;

neither the body administering the library or archives nor the

officer in charge of the library or archives shall be taken to have

authorized the making of the infringing copy by reason only that

the copy was made on that machine.

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Copyright in original literary, dramatic, musical and artistic works Part III

Infringement of copyright in works Division 2

Section 39B

39B Communication by use of certain facilities

A person (including a carrier or carriage service provider) who

provides facilities for making, or facilitating the making of, a

communication is not taken to have authorised any infringement of

copyright in a work merely because another person uses the

facilities so provided to do something the right to do which is

included in the copyright.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 40

Division 3—Acts not constituting infringements of

copyright in works

40 Fair dealing for purpose of research or study

(1) A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, for the

purpose of research or study does not constitute an infringement of

the copyright in the work.

(1A) A fair dealing with a literary work (other than lecture notes) does

not constitute an infringement of the copyright in the work if it is

for the purpose of, or associated with, an approved course of study

or research by an enrolled external student of an educational

institution.

(1B) In subsection (1A) the expression lecture notes means any literary

work produced for the purpose of the course of study or research

by a person lecturing or teaching in or in connection with the

course of study or research.

(2) For the purposes of this Act, the matters to which regard shall be

had, in determining whether a dealing with a literary, dramatic,

musical or artistic work or with an adaptation of a literary,

dramatic or musical work, being a dealing by way of reproducing

the whole or a part of the work or adaptation, constitutes a fair

dealing with the work or adaptation for the purpose of research or

study include:

(a) the purpose and character of the dealing;

(b) the nature of the work or adaptation;

(c) the possibility of obtaining the work or adaptation within a

reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or

value of, the work or adaptation; and

(e) in a case where part only of the work or adaptation is

reproduced—the amount and substantiality of the part copied

taken in relation to the whole work or adaptation.

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1

2

Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 40

(3) Despite subsection (2), a reproduction, for the purpose of research

or study, of all or part of a literary, dramatic or musical work, or of

an adaptation of such a work, contained in an article in a periodical

publication is taken to be a fair dealing with the work or adaptation

for the purpose of research or study.

(4) Subsection (3) does not apply if another article in the publication is

also reproduced for the purpose of different research or a different

course of study.

(5) Despite subsection (2), a reproduction, for the purpose of research

or study, of not more than a reasonable portion of a work or

adaptation that is described in an item of the table and is not

contained in an article in a periodical publication is taken to be a

fair dealing with the work or adaptation for the purpose of research

or study. For this purpose, reasonable portion means the amount

described in the item.

Works, adaptations and reasonable portions

Item Work or adaptation Amount that is reasonable portion

A literary, dramatic or musical work (a) 10% of the number of pages in

(except a computer program), or an the edition; or

adaptation of such a work, that is (b) if the work or adaptation is contained in a published edition of at divided into chapters—a single least 10 pages chapter

A published literary work in

electronic form (except a computer

program or an electronic compilation,

such as a database), a published

dramatic work in electronic form or

an adaptation published in electronic

form of such a literary or dramatic

work

(a) 10% of the number of words in

the work or adaptation; or

(b) if the work or adaptation is

divided into chapters—a single

chapter

(6) Subsection (5) applies to a reproduction of a work or adaptation

described in both items of the table in that subsection even if the

amount of the work or adaptation reproduced is not more than a

reasonable portion (as defined in that subsection) on the basis of

only one of those items.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 41

(7) If:

(a) a person makes a reproduction of a part of a published

literary or dramatic work or published adaptation of a literary

or dramatic work; and

(b) the reproduction is of not more than a reasonable portion (as

defined in subsection (5)) of the work or adaptation;

subsection (5) does not apply in relation to any subsequent

reproduction made by the person of any other part of the same

work or adaptation.

(8) Subsections 10(2), (2A), (2B) and (2C) do not affect

subsection (5), (6) or (7) of this section.

41 Fair dealing for purpose of criticism or review

A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if it is for

the purpose of criticism or review, whether of that work or of

another work, and a sufficient acknowledgement of the work is

made.

41A Fair dealing for purpose of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if it is for

the purpose of parody or satire.

42 Fair dealing for purpose of reporting news

(1) A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if:

(a) it is for the purpose of, or is associated with, the reporting of

news in a newspaper, magazine or similar periodical and a

sufficient acknowledgement of the work is made; or

(b) it is for the purpose of, or is associated with, the reporting of

news by means of a communication or in a cinematograph

film.

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 43

(2) The playing of a musical work in the course of reporting news by

means of a communication or in a cinematograph film is not a fair

dealing with the work for the purposes of this section if the playing

of the work does not form part of the news being reported.

43 Reproduction for purpose of judicial proceedings or professional

advice

(1) The copyright in a literary, dramatic, musical or artistic work is not

infringed by anything done for the purposes of a judicial

proceeding or of a report of a judicial proceeding.

(2) A fair dealing with a literary, dramatic, musical or artistic work

does not constitute an infringement of the copyright in the work if

it is for the purpose of the giving of professional advice by:

(a) a legal practitioner; or

(b) a person registered as a patent attorney under the Patents Act

1990; or

(c) a person registered as a trade marks attorney under the Trade

Marks Act 1995.

43A Temporary reproductions made in the course of

communication

(1) The copyright in a work, or an adaptation of a work, is not

infringed by making a temporary reproduction of the work or

adaptation as part of the technical process of making or receiving a

communication.

(2) Subsection (1) does not apply in relation to the making of a

temporary reproduction of a work, or an adaptation of a work, as

part of the technical process of making a communication if the

making of the communication is an infringement of copyright.

43B Temporary reproductions of works as part of a technical

process of use

(1) Subject to subsection (2), the copyright in a work is not infringed

by the making of a temporary reproduction of the work if the

reproduction is incidentally made as a necessary part of a technical

process of using a copy of the work.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 43C

(2) Subsection (1) does not apply to:

(a) the making of a temporary reproduction of a work if the

reproduction is made from:

(i) an infringing copy of the work; or

(ii) a copy of the work where the copy is made in another

country and would be an infringing copy of the work if

the person who made the copy had done so in Australia;

or

(b) the making of a temporary reproduction of a work as a

necessary part of a technical process of using a copy of the

work if that use constitutes an infringement of the copyright

in the work.

(3) Subsection (1) does not apply to any subsequent use of a temporary

reproduction of a work other than as a part of the technical process

in which the temporary reproduction was made.

43C Reproducing works in books, newspapers and periodical

publications in different form for private use

(1) This section applies if:

(a) the owner of a book, newspaper or periodical publication

makes from it a reproduction (the main copy) of a work

contained in the book, newspaper or periodical publication;

and

(b) the main copy is made for his or her private and domestic use

instead of the work as contained in the book, newspaper or

periodical publication; and

(c) the main copy embodies the work in a form different from

the form in which the work is embodied in the book,

newspaper or periodical publication; and

(d) the book, newspaper or periodical publication itself is not an

infringing copy of either the work or a published edition of

the work; and

(e) at the time the owner makes the main copy, he or she has not

made, and is not making, another copy that embodies the

work in a form substantially identical to the form of the main

copy.

For this purpose, disregard a temporary reproduction of the work

incidentally made as a necessary part of the technical process of

making the main copy.

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 43C

(2) The making of the main copy is not an infringement of copyright in

the work or a published edition of the work.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

main copy by the lender to a member of the lender‘s family or

household for the member‘s private and domestic use.

Reproducing work from main copy may infringe copyright

(5) Subsection (2) does not prevent the main copy from being an

infringing copy for the purpose of working out whether this section

applies again in relation to the making of another reproduction of

the work from the main copy.

Disposal of book etc. may make the main copy an infringing copy

(6) Subsection (2) is taken never to have applied if the owner of the

book, newspaper or periodical publication disposes of it (in the

form from which the main copy was made) to another person.

Status of temporary reproduction

(7) If subsection (2) applies to the making of the main copy only as a

result of disregarding the incidental making of a temporary

reproduction of the work as a necessary part of the technical

process of making the main copy, then:

(a) if the temporary reproduction is destroyed at the first

practicable time during or after the making of the main

copy—the making of the temporary reproduction does not

infringe copyright in the work or a published edition of the

work; or

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 44

(b) if the temporary reproduction is not destroyed at that time—

the making of the temporary reproduction is taken always to

have infringed copyright (if any) subsisting in the work and

the published edition of the work from which the main copy

was made.

44 Inclusion of works in collections for use by places of education

(1) The copyright in a published literary, dramatic, musical or artistic

work is not infringed by the inclusion of a short extract from the

work, or, in the case of a published literary, dramatic or musical

work, from an adaptation of the work, in a collection of literary,

dramatic, musical or artistic works contained in a book, sound

recording or cinematograph film and intended for use by places of

education if:

(a) the collection is described in an appropriate place in the

book, on the label of each record embodying the recording or

of its container, or in the film, as being intended for use by

places of education;

(b) the work or adaptation was not published for the purpose of

being used by places of education;

(c) the collection consists principally of matter in which

copyright does not subsist; and

(d) a sufficient acknowledgement of the work or adaptation is

made.

(2) The last preceding subsection does not apply in relation to the

copyright in a work if, in addition to the extract concerned, 2 or

more other extracts from, or from adaptations of, works (being

works in which copyright subsists at the time when the collection

is published) by the author of the first-mentioned work are

contained in that collection, or are contained in that collection

taken together with every similar collection, if any, of works

intended for use by places of education and published by the same

publisher within the period of 5 years immediately preceding the

publication of the first-mentioned collection.

44A Importation etc. of books

(1) The copyright in an overseas work first published on or after the

commencing day is not infringed by a person who, without the

licence of the owner of the copyright, imports a non-infringing

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 44A

book into Australia for a purpose mentioned in paragraph 37(1)(a),

(b) or (c).

(2) Subject to this section, the copyright in:

(a) an overseas work first published before the commencing day;

or

(b) a work first published in Australia, whether before, on or

after the commencing day;

is not infringed by a person who, without the licence of the owner

of the copyright, imports a copy (in this subsection called the

imported copy) of a hardback or paperback version of a

non-infringing book into Australia for a purpose mentioned in

paragraph 37(1)(a), (b) or (c) if:

(c) the person had ordered in writing from the copyright owner,

or the owner‘s licensee or agent, one or more copies of that

version of the book (not being second-hand copies or more

copies than were needed to satisfy the person‘s reasonable

requirements); and

(d) when the person ordered the imported copy, the original

order mentioned in paragraph (c) had not been withdrawn or

cancelled by, or with the consent of, the person and:

(i) at least 7 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not notified the person in writing that the

original order would be filled within 90 days after it was

placed; or

(ii) at least 90 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not filled the order.

(3) The copyright in a published work (whether first published before,

on or after the commencing day) is not infringed by a person who,

without the licence of the owner of the copyright, imports a single

copy of a non-infringing book into Australia if the importation is

for the purpose of filling a written order, or a verifiable telephone

order, by a customer of the person and:

(a) in the case of a written order, the order contains a statement,

signed by the customer; or

(b) in the case of a telephone order, the customer makes a

verifiable statement;

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 44A

to the effect that the customer does not intend to use the book for a

purpose mentioned in paragraph 37(1)(a), (b) or (c).

(4) The copyright in a published work (whether first published before,

on or after the commencing day) is not infringed by a person who,

without the licence of the owner of the copyright, imports 2 or

more copies of a non-infringing book into Australia if:

(a) the importation is for the purpose of filling a written order, or

a verifiable telephone order, placed with the person by or on

behalf of a library, other than a library conducted for the

profit (direct or indirect) of a person or organisation; and

(b) in the case of a written order—the order contains a statement,

signed by the person placing the order, to the effect that the

library does not intend to use any of the books for a purpose

mentioned in paragraph 37(1)(a), (b) or (c); and

(c) in the case of a telephone order—the person placing the order

makes a verifiable statement to the effect referred to in

paragraph (b); and

(d) the number of copies so imported is not more than the

number of copies so ordered.

(5) Without limiting the ways in which a telephone order under

subsection (3) or (4), or a statement under paragraph (3)(b) or

(4)(c) relating to such an order, may be verified, such an order or

statement is, for the purposes of this section, taken to be verifiable

if the person who takes the order, or to whom the statement is

made, makes a written note of the details of the order or statement

when, or immediately after, the order is placed, or the statement is

made, as the case may be.

(6) Where:

(a) a book is imported into Australia for a purpose mentioned in

paragraph 37(1)(a), (b) or (c); and

(b) the importation does not, under this section, constitute an

infringement of copyright in a published work;

the use of the book for any such purpose does not constitute an

infringement of the copyright in the work and subsection 38(1)

does not apply to the book.

(7) Subsection (2) does not apply to the importation of a copy of a

hardback version of a non-infringing book into Australia if the

copyright owner, or his or her licensee or agent, is able to supply in

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 44B

Australia enough copies of a paperback version of the book to fill

any reasonable order.

(8) For the purposes of paragraph (2)(d), a copyright owner, licensee

or agent is not taken to have filled an order by a person for one or

more copies of a version of a book unless and until the copyright

owner, licensee or agent sends the copy, or all of the copies, as the

case requires, to the person.

(9) In this section:

book does not include:

(a) a book whose main content is one or more musical works,

with or without any related literary, dramatic or artistic work;

or

(b) a manual sold with computer software for use in connection

with that software; or

(c) a periodical publication.

commencing day means the day on which the Copyright

Amendment Act 1991 commences.

overseas work means a work:

(a) that was first published in a country other than Australia; and

(b) that was not published in Australia within 30 days after its

first publication in that other country.

Note: A work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).

44B Reproduction of writing on approved label for containers for

chemical product

The reproduction on a label on a container for a chemical product

of any writing appearing on an approved label is not an

infringement of any copyright subsisting under this Part in relation

to that writing.

44BA Acts done in relation to certain medicine

(1) The following acts are not an infringement of any copyright

subsisting under this Part in a work that is product information

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 44BA

approved under section 25AA of the Therapeutic Goods Act 1989

in relation to medicine:

(a) an act that is done under that Act and that is in respect of

product information in relation to:

(i) restricted medicine; or

(ii) medicine in respect of which the applicant for the

registration of that medicine under that Act has been

given a notice of the kind referred to in

subparagraph 25(1)(da)(ii) of that Act; or

(iii) medicine in respect of which subsection 25AA(2) or (3)

of that Act applies;

(b) an act that is ancillary or incidental to an act referred to in

paragraph (a).

(2) The following acts are not an infringement of any copyright

subsisting under this Part in a work that is product information

approved under section 25AA of the Therapeutic Goods Act 1989

in relation to medicine:

(a) supplying, in Australia, some or all of any product

information that is approved under that section in relation to

medicine;

(b) reproducing, in Australia, some or all of the information

referred to in paragraph (a);

(c) publishing, in Australia, some or all of the information

referred to in paragraph (a);

(d) communicating, in Australia, some or all of the information

referred to in paragraph (a);

(e) adapting, in Australia, some or all of the information referred

to in paragraph (a);

to the extent that the supply, reproduction, publication,

communication or adaptation is for a purpose related to the safe

and effective use of the medicine referred to in paragraph (a).

(3) An act done in Australia that is ancillary or incidental to a supply,

reproduction, publication, communication or adaptation referred to

in subsection (2) is not an infringement of any copyright subsisting

under this Part in the work referred to in subsection (2).

(4) For the purposes of this section, medicine, product information

and restricted medicine have the same meanings as in the

Therapeutic Goods Act 1989.

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 44C

44C Copyright subsisting in accessories etc. to imported articles

(1) The copyright in a work a copy of which is, or is on, or embodied

in, a non-infringing accessory to an article is not infringed by

importing the accessory with the article.

Note: See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

(2) Section 38 does not apply to a copy of a work, being a copy that is,

or is on, or embodied in, a non-infringing accessory to an article, if

the importation of the accessory is not an infringement of copyright

in the work.

44D Import of non-infringing copy of sound recording does not

infringe copyright in works recorded

(1) The copyright in a literary, dramatic or musical work is not

infringed by a person who:

(a) imports into Australia a non-infringing copy of a sound

recording of the work; or

(b) does an act described in section 38 involving an article that is

a non-infringing copy of a sound recording of the work and

has been imported into Australia by anyone.

Note: In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non-infringing copy of the sound recording unless the defendant proves it is. See section 130A.

(2) This section applies to a copy of a sound recording only if, when

the copy is imported into Australia, the sound recording has been

published:

(a) in Australia; or

(b) in another country (the publication country) by or with the

consent of:

(i) the owner of the copyright or related right in the sound

recording in the publication country; or

(ii) the owner of the copyright or related right in the sound

recording in the country (the original recording

country) in which the sound recording was made, if the

law of the publication country did not provide for

copyright or a related right in sound recordings when

publication occurred; or

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 3 Acts not constituting infringements of copyright in works

Section 44E

(iii) the maker of the sound recording, if neither the law of

the publication country nor the law of the original

recording country (whether those countries are different

or not) provided for copyright or a related right in sound

recordings when publication occurred.

Note: Subsection 29(6) deals with unauthorised publication.

(3) In subsection (2):

owner of the copyright or related right in the sound recording

means the owner at the time publication of the sound recording

occurred.

(4) The definition of article in section 38 does not affect this section.

44E Importation and sale etc. of copies of computer programs

(1) The copyright in a literary work:

(a) that is a computer program; and

(b) that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c) imports into Australia an article that has embodied in it a

non-infringing copy of the program; or

(d) does an act mentioned in section 38 involving an article that

has embodied in it a non-infringing copy of the program and

that has been imported into Australia by anyone.

Note: Section 130B deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

(2) The definition of article in section 38 does not affect this section.

44F Importation and sale etc. of copies of electronic literary or

music items

(1) The copyright in a work:

(a) that is, or is part of, an electronic literary or music item; and

(b) that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c) imports into Australia an article that has embodied in it a

non-infringing copy of the electronic literary or music item;

or

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in works Division 3

Section 44F

(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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Part III Copyright in original literary, dramatic, musical and artistic works

Division 4 Acts not constituting infringements of copyright in literary, dramatic and

musical works

Section 45

Division 4—Acts not constituting infringements of

copyright in literary, dramatic and musical works

45 Reading or recitation in public or for a broadcast

The reading or recitation in public, or the inclusion in a sound

broadcast or television broadcast of a reading or recitation, of an

extract of reasonable length from a published literary or dramatic

work, or from an adaptation of such a work, does not constitute an

infringement of the copyright in the work if a sufficient

acknowledgement of the work is made.

46 Performance at premises where persons reside or sleep

Where a literary, dramatic or musical work, or an adaptation of

such a work, is performed in public, by the operation of reception

equipment or by the use of a record, at premises where persons

reside or sleep, as part of the amenities provided exclusively for

residents or inmates of the premises or for those residents or

inmates and their guests, the performance does not constitute an

infringement of the copyright in the work.

47 Reproduction for purpose of broadcasting

(1) Where the broadcasting by a person of a literary, dramatic or

musical work, or of an adaptation of such a work, would not

(whether by reason of an assignment or licence or of the operation

of a provision of this Act) constitute an infringement of the

copyright in the work, but the making by the person of a sound

recording or a cinematograph film of the work or adaptation

would, apart from this subsection, constitute such an infringement,

the copyright in the work is not infringed by the making by the

person of such a recording or film solely for the purpose of the

broadcasting of the work or adaptation.

(2) The last preceding subsection does not apply in relation to a

recording or film if a record embodying the recording or a copy of

the film is used for a purpose other than:

(a) the broadcasting of the work or adaptation in circumstances

that do not (whether by reason of an assignment or licence or

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of the operation of a provision of this Act) constitute an

infringement of the copyright in the work; or

(b) the making of further records embodying the recording or

further copies of the film for the purpose of the broadcasting

of the work or adaptation in such circumstances.

(3) Subsection (1) does not apply in relation to a recording or film

where a record embodying the recording or a copy of the film is

used for the purpose of the broadcasting of the work or adaptation

by a person who is not the maker of the recording or film unless

the maker has paid to the owner of the copyright in the work such

amount as they agree or, in default of agreement, has given an

undertaking in writing to the owner to pay to the owner such

amount as is determined by the Copyright Tribunal, on the

application of either of them, to be equitable remuneration to the

owner for the making of the recording or film.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the work and the owner

may recover that amount in a court of competent jurisdiction from

the person as a debt due to the owner.

(5) Subsection (1) of this section does not apply in relation to a

recording or film unless, before the expiration of the period of 12

months commencing on the day on which any of the records

embodying the recording or any of the copies of the film is first

used for broadcasting the work or adaptation in accordance with

that subsection, or before the expiration of such further period, if

any, as is agreed between the maker of the recording or film and

the owner of the copyright in the work, all the records embodying

the recording or all the copies of the film are destroyed or are

transferred, with the consent of the Director-General of the

National Archives of Australia, to the care (within the meaning of

the Archives Act 1983) of the National Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a record embodying

a recording or of a copy of a film unless he or she has certified that

the recording or film is of an exceptional documentary character.

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musical works

Section 47AA

(7) In this section:

broadcasting does not include simulcasting.

47AA Reproduction for the purpose of simulcasting

(1) If the broadcasting of a literary, dramatic or musical work, or of an

adaptation of such a work, would not for any reason constitute an

infringement of the copyright in the work, but the making of a

sound recording or a cinematograph film of the work or adaptation

would, apart from this subsection, constitute such an infringement,

the copyright in the work is not infringed by the making of such a

recording or film solely for the purpose of simulcasting the work or

adaptation in digital form.

(2) Subsection (1) does not apply in relation to a recording or film if a

record embodying the recording or a copy of the film is used for a

purpose other than:

(a) the simulcasting of the work or adaptation in circumstances

that do not for any reason constitute an infringement of the

copyright in the work; or

(b) the making of further records embodying the recording or

further copies of the film for the purpose of simulcasting the

work or adaptation in such circumstances.

(3) Subsection (1) does not apply in relation to a recording or film

unless all records embodying the recording, or all copies of the

film, made under that subsection are destroyed on or before the

relevant date specified in the regulations.

(4) For the purposes of subsection (3), the regulations may specify

different dates in relation to different classes of sound recordings

or cinematograph films.

47A Sound broadcasts by holders of print disability radio licences

(1) The making of a sound broadcast of, or of an adaptation of, a

published literary or dramatic work does not constitute an

infringement of copyright in the work if:

(a) the broadcast is made by a person being the holder of a print

disability radio licence and is made under the licence; and

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(b) there is made by or on behalf of the person, as soon as

practicable after the making of the broadcast, a record of the

making of the broadcast that:

(i) sets out the time and date of the making of the

broadcast;

(ii) identifies the work; and

(iii) contains particulars of such other matters in relation to

the work or in relation to the broadcast as are

prescribed.

(2) For the purposes of paragraph (1)(b), a record of the making of a

broadcast:

(a) may be made in writing or in any other manner prescribed by

the regulations; and

(b) if it is made in writing, shall be in accordance with the form

prescribed by the regulations.

(3) Where, at any time before the expiration of the prescribed retention

period after the making by a person of a sound broadcast of a

literary or dramatic work in reliance on subsection (1), a record

made for the purposes of paragraph (1)(b) in relation to the making

of the sound broadcast is not retained by the person, the person is

guilty of an offence punishable, upon conviction, by a fine not

exceeding $500.

(3A) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) It is a defence to a prosecution of a person under subsection (3) in

relation to the retention of a record if the person satisfies the court

that he or she took all reasonable precautions, and exercised due

diligence, to ensure the retention of the record.

(5) A person is not liable to be convicted twice of an offence against

subsection (3) in relation to the retention of the same record.

(6) The owner of the copyright in a literary or dramatic work, or the

agent of such an owner, may notify in writing a person who holds

or held a print disability radio licence that the owner or agent

wishes to inspect:

(a) all the records of the person made by or on behalf of the

person for the purposes of paragraph (1)(b); or

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Section 47A

(b) such of those records as relate to the works of a specified

author;

on a day specified in the notice, being a day (other than a Saturday,

Sunday or public holiday) not less than 7 days after the day on

which the notice is given.

(7) Where a person who receives a notice under subsection (6) does

not allow the owner or agent to inspect the records to which the

notice relates during business hours on the day specified in the

notice, the person is guilty of an offence punishable, upon

conviction, by a fine not exceeding $500.

(7A) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(7B) Subsection (7) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

(8) Where:

(a) a sound broadcast of, or of an adaptation of, a literary or

dramatic work is made by a person (in this subsection

referred to as the licence holder) being the holder of a print

disability radio licence;

(b) by virtue of subsection (1), the making of the sound

broadcast does not infringe copyright in the work; and

(c) the owner of the copyright in the work makes a request in

writing at any time during the prescribed retention period

after the making of the sound broadcast for payment for the

making of the sound broadcast;

the licence holder shall pay to the owner of the copyright such an

amount by way of equitable remuneration for the making of the

sound broadcast as is agreed upon between the owner of the

copyright and the licence holder or, in default of agreement, as is

determined by the Copyright Tribunal on the application of either

the owner of the copyright or the licence holder.

(9) Where the Copyright Tribunal has under subsection (8) determined

the amount of equitable remuneration payable by a person to the

owner of the copyright in a work, the owner of the copyright may

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recover that amount from the person in a court of competent

jurisdiction as a debt due to the owner of the copyright.

(10) Nothing in this section affects the right of the owner of the

copyright in a literary or dramatic work to grant a licence

authorising a person being the holder of a print disability radio

licence to make sound broadcasts of, or of adaptations of, the work

without infringement of that copyright.

(11) In this section:

(a) prescribed retention period means the period prescribed by

the regulations for the purposes of this paragraph; and

(b) print disability radio licence means a licence in force under

the Broadcasting Services Act 1992 or the

Radiocommunications Act 1992, being a licence that was

granted for the purpose of authorising the making of sound

broadcasts to persons who by reason of old age, disability or

literacy problems are unable to handle books or newspapers

or to read or comprehend written material.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 4A Acts not constituting infringements of copyright in computer programs

Section 47AB

Division 4A—Acts not constituting infringements of

copyright in computer programs

47AB Meaning of computer program

In this Division:

computer program includes any literary work that is:

(a) incorporated in, or associated with, a computer program; and

(b) essential to the effective operation of a function of that

computer program.

47B Reproduction for normal use or study of computer programs

(1) Subject to subsection (2), the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

of the work if:

(a) the reproduction is incidentally and automatically made as

part of the technical process of running a copy of the

program for the purposes for which the program was

designed; and

(b) the running of the copy is done by, or on behalf of, the owner

or licensee of the copy.

(2) Subsection (1) does not apply to the making of a reproduction of a

computer program:

(a) from an infringing copy of the computer program; or

(b) contrary to an express direction or licence given by, or on

behalf of, the owner of the copyright in the computer

program to the owner or licensee of the copy from which the

reproduction is made when the owner or licensee of that copy

acquired it.

(3) Subject to subsection (4), the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

of the work if:

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Section 47C

(a) the reproduction is incidentally and automatically made as

part of the technical process of running a copy of the

program for the purpose of studying the ideas behind the

program and the way in which it functions; and

(b) the running of the copy is done by, or on behalf of, the owner

or licensee of the copy.

(4) Subsection (3) does not apply to the making of a reproduction of a

computer program from an infringing copy of the computer

program.

(5) In this section:

reproduction, in relation to a computer program, does not include a

version of the program of the kind referred to in

paragraph 21(5)(b).

47C Back-up copy of computer programs

(1) Subject to subsection (4), the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

of the work if:

(a) the reproduction is made by, or on behalf of, the owner or

licensee of the copy (the original copy) from which the

reproduction is made; and

(b) the reproduction is made for use only by, or on behalf of, the

owner or licensee of the original copy; and

(c) the reproduction is made for any of the following purposes:

(i) to enable the owner or licensee of the original copy to

use the reproduction in lieu of the original copy and to

store the original copy;

(ii) to enable the owner or licensee of the original copy to

store the reproduction for use in lieu of the original copy

if the original copy is lost, destroyed or rendered

unusable;

(iii) to enable the owner or licensee of the original copy to

use the reproduction in lieu of the original copy, or of

another reproduction made under this subsection, if the

original copy, or the other reproduction, is lost,

destroyed or rendered unusable.

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Division 4A Acts not constituting infringements of copyright in computer programs

Section 47D

(2) Subject to subsection (4), the copyright in a literary work that is a

computer program, and in any work or other subject-matter held

together with the program on the same computer system, is not

infringed by the making of a reproduction of the program, or of

such a work or other subject-matter if:

(a) the reproduction is made by, or on behalf of, the owner or

licensee of the copy (the original copy) from which the

reproduction is made; and

(b) the making of the reproduction is part of the normal back-up

copying of data for security purposes.

(3) Subsection (1) applies in relation to a reproduction of a work made

for a purpose referred to in subparagraph (1)(c)(iii) whether or not

other reproductions of the work have previously been made for the

same purpose from the same copy.

(4) Subsections (1) and (2) do not apply to the making of a

reproduction of a computer program:

(a) from an infringing copy of the computer program; or

(b) if the owner of the copyright in the computer program has so

designed the program that copies of it cannot be made

without modifying the program; or

(c) if a licence to use the original copy, given by, or on behalf of,

the owner of the copyright in the computer program to the

owner of the original copy when the owner of that copy

acquired it, has expired or been terminated.

(5) For the purposes of this section, a reference to a copy of a

computer program is a reference to any article in which the

computer program is reproduced in a material form.

(6) In this section:

reproduction, in relation to a computer program, does not include a

version of the program of the kind referred to in

paragraph 21(5)(b).

47D Reproducing computer programs to make interoperable

products

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

or adaptation of the work if:

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(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original program) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of

obtaining information necessary to enable the owner or

licensee, or a person acting on behalf of the owner or

licensee, to make independently another program (the new

program), or an article, to connect to and be used together

with, or otherwise to interoperate with, the original program

or any other program; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to obtain the information referred to in

paragraph (b); and

(d) to the extent that the new program reproduces or adapts the

original program, it does so only to the extent necessary to

enable the new program to connect to and be used together

with, or otherwise to interoperate with, the original program

or the other program; and

(e) the information referred to in paragraph (b) is not readily

available to the owner or licensee from another source when

the reproduction or adaptation is made.

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47E Reproducing computer programs to correct errors

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making, on or after

23 February 1999, of a reproduction or adaptation of the work if:

(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original copy) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of

correcting an error in the original copy that prevents it from

operating (including in conjunction with other programs or

with hardware):

(i) as intended by its author; or

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Division 4A Acts not constituting infringements of copyright in computer programs

Section 47F

(ii) in accordance with any specifications or other

documentation supplied with the original copy; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to correct the error referred to in

paragraph (b); and

(d) when the reproduction or adaptation is made, another copy of

the program that does operate as mentioned in paragraph (b)

is not available to the owner or licensee within a reasonable

time at an ordinary commercial price.

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47F Reproducing computer programs for security testing

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

or adaptation of the work if:

(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original copy) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of:

(i) testing in good faith the security of the original copy, or

of a computer system or network of which the original

copy is a part; or

(ii) investigating, or correcting, in good faith a security flaw

in, or the vulnerability to unauthorised access of, the

original copy, or of a computer system or network of

which the original copy is a part; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to achieve a purpose referred to in

paragraph (b); and

(d) the information resulting from the making of the

reproduction or adaptation is not readily available to the

owner or licensee from another source when the reproduction

or adaptation is made.

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Section 47G

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47G Unauthorised use of copies or information

(1) If:

(a) a reproduction or adaptation of a literary work that is a

computer program is made under a prescribed provision; and

(b) the reproduction or adaptation, or any information derived

from it, is, without the consent of the owner of the copyright

in the computer program, used, or sold or otherwise supplied

to a person, for a purpose other than a purpose specified in

the prescribed provision;

the prescribed provision does not apply, and is taken never to have

applied, to the making of the reproduction or adaptation.

(2) For the purposes of this section, sections 47B, 47C, 47D, 47E and

47F are prescribed provisions.

47H Agreements excluding operation of certain provisions

An agreement, or a provision of an agreement, that excludes or

limits, or has the effect of excluding or limiting, the operation of

subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 4B Acts not constituting infringements of copyright in artistic works

Section 47J

Division 4B—Acts not constituting infringements of

copyright in artistic works

47J Reproducing photograph in different format for private use

(1) This section applies if:

(a) the owner of a photograph (the original photograph) makes

a reproduction (the main copy) of it for his or her private and

domestic use instead of the original photograph; and

(b) the original photograph itself is not an infringing copy of a

work or published edition of a work; and

(c) either:

(i) the original photograph is in hardcopy form and the

main copy is in electronic form; or

(ii) the original photograph is in electronic form and the

main copy is in hardcopy form; and

(d) at the time the owner makes the main copy, he or she has not

made, and is not making, another reproduction of the original

photograph that embodies the original photograph in a form

substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the original

photograph incidentally made as a necessary part of the technical

process of making the main copy.

(2) The making of the main copy is not an infringement of copyright:

(a) in the original photograph; or

(b) in a work, or published edition of a work, included in the

original photograph.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

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Section 47J

(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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Part III Copyright in original literary, dramatic, musical and artistic works

Division 5 Copying of works in libraries or archives

Section 48

Division 5—Copying of works in libraries or archives

48 Interpretation

In this Division, a reference to an article contained in a periodical

publication shall be read as a reference to anything (other than an

artistic work) appearing in such a publication.

48A Copying by Parliamentary libraries for members of Parliament

The copyright in a work is not infringed by anything done, for the

sole purpose of assisting a person who is a member of a Parliament

in the performance of the person‘s duties as such a member, by an

authorized officer of a library, being a library the principal purpose

of which is to provide library services for members of that

Parliament.

49 Reproducing and communicating works by libraries and archives

for users

(1) A person may furnish to the officer in charge of a library or

archives:

(a) a request in writing to be supplied with a reproduction of an

article, or a part of an article, contained in a periodical

publication or of the whole or a part of a published work

other than an article contained in a periodical publication,

being a periodical publication or a published work held in the

collection of a library or archives; and

(b) a declaration signed by him or her stating:

(i) that he or she requires the reproduction for the purpose

of research or study and will not use it for any other

purpose; and

(ii) that he or she has not previously been supplied with a

reproduction of the same article or other work, or the

same part of the article or other work, as the case may

be, by an authorized officer of the library or archives.

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Section 49

(2) Subject to this section, where a request and declaration referred to

in subsection (1) are furnished to the officer in charge of a library

or archives, an authorized officer of the library or archives may,

unless the declaration contains a statement that to his or her

knowledge is untrue in a material particular, make, or cause to be

made, the reproduction to which the request relates and supply the

reproduction to the person who made the request.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(2A) A person may make to an authorized officer of a library or

archives:

(a) a request to be supplied with a reproduction of an article, or

part of an article, contained in a periodical publication, or of

the whole or a part of a published work other than an article

contained in a periodical publication, being a periodical

publication or a published work held in the collection of a

library or archives; and

(b) a declaration to the effect that:

(i) the person requires the reproduction for the purpose of

research or study and will not use it for any other

purpose;

(ii) the person has not previously been supplied with a

reproduction of the same article or other work, or the

same part of the article or other work, as the case may

be, by an authorized officer of the library or archives;

and

(iii) by reason of the remoteness of the person‘s location, the

person cannot conveniently furnish to the officer in

charge of the library or archives a request and

declaration referred to in subsection (1) in relation to the

reproduction soon enough to enable the reproduction to

be supplied to the person before the time by which the

person requires it.

(2B) A request or declaration referred to in subsection (2A) is not

required to be made in writing.

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Division 5 Copying of works in libraries or archives

Section 49

(2C) Subject to this section, where:

(a) a request and declaration referred to in subsection (2A) are

made by a person to an authorized officer of a library or

archives; and

(b) the authorized officer makes a declaration setting out

particulars of the request and declaration made by the person

and stating that:

(i) the declaration made by the person, so far as it relates to

the matters specified in subparagraphs (2A)(b)(i) and

(ii), does not contain a statement that, to the knowledge

of the authorized officer, is untrue in a material

particular; and

(ii) the authorized officer is satisfied that the declaration

made by the person is true so far as it relates to the

matter specified in subparagraph (2A)(b)(iii);

an authorized officer of the library or archives may make, or cause

to be made, the reproduction to which the request relates and

supply the reproduction to the person.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(3) Where a charge is made for making and supplying a reproduction

to which a request under subsection (1) or (2A) relates,

subsection (2) or (2C), as the case may be, does not apply in

relation to the request if the amount of the charge exceeds the cost

of making and supplying the reproduction.

(4) Subsection (2) or (2C) does not apply in relation to a request for a

reproduction of, or parts of, 2 or more articles contained in the

same periodical publication unless the articles are requested for the

same research or course of study.

(5) Subsection (2) or (2C) does not apply to a request for a

reproduction of the whole of a work (other than an article

contained in a periodical publication), or to a reproduction of a part

of such a work that contains more than a reasonable portion of the

work unless:

(a) the work forms part of the library or archives collection; and

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(b) before the reproduction is made, an authorized officer has,

after reasonable investigation, made a declaration stating that

he or she is satisfied that a reproduction (not being a

second-hand reproduction) of the work cannot be obtained

within a reasonable time at an ordinary commercial price.

(5AA) For the purposes of subsection (5), if the characteristics of the work

are such that subsection 10(2) or (2A) is relevant to the question

whether the reproduction contains only a reasonable portion of the

work, then that question is to be determined solely by reference to

subsection 10(2) or (2A) and not by reference to the ordinary

meaning of reasonable portion.

(5AB) For the purposes of paragraph (5)(b), in determining whether a

reproduction (not being a second-hand reproduction) of the work

cannot be obtained within a reasonable time at an ordinary

commercial price, the authorized officer must take into account:

(a) the time by which the person requesting the reproduction

requires it; and

(b) the time within which a reproduction (not being a

second-hand reproduction) of the work at an ordinary

commercial price could be delivered to the person; and

(c) whether an electronic reproduction of the work can be

obtained within a reasonable time at an ordinary commercial

price.

(5A) If an article contained in a periodical publication, or a published

work (other than an article contained in a periodical publication) is

acquired, in electronic form, as part of a library or archives

collection, the officer in charge of the library or archives may make

it available online within the premises of the library or archives in

such a manner that users cannot, by using any equipment supplied

by the library or archives:

(a) make an electronic reproduction of the article or work; or

(b) communicate the article or work.

(6) The copyright in an article contained in a periodical publication is

not infringed by the making, in relation to a request under

subsection (1) or (2A), of a reproduction of the article, or of a part

of the article, in accordance with subsection (2) or (2C), as the case

may be, unless the reproduction is supplied to a person other than

the person who made the request.

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(7) The copyright in a published work other than an article contained

in a periodical publication is not infringed by the making, in

relation to a request under subsection (1) or (2A), of a reproduction

of the work, or of a part of the work, in accordance with

subsection (2) or (2C), as the case may be, unless the reproduction

is supplied to a person other than the person who made the request.

(7A) Subsections (6) and (7) do not apply to the making under

subsection (2) or (2C) of an electronic reproduction of:

(a) an article, or a part of an article, contained in a periodical

publication; or

(b) the whole or part of a published work, other than such an

article;

in relation to a request under this section for communication to the

person who made the request unless:

(c) before or when the reproduction is communicated to the

person, the person is notified in accordance with the

regulations:

(i) that the reproduction has been made under this section

and that the article or work might be subject to

copyright protection under this Act; and

(ii) about such other matters (if any) as are prescribed; and

(d) as soon as practicable after the reproduction is communicated

to the person, the reproduction made under subsection (2) or

(2C) and held by the library or archives is destroyed.

(7B) It is not an infringement of copyright in an article contained in a

periodical publication, or of copyright in a published work, to

communicate it in accordance with subsection (2), (2C) or (5A).

(8) The regulations may exclude the application of subsection (6) or

(7) in such cases as are specified in the regulations.

(9) In this section:

archives means an archives all or part of whose collection is

accessible to members of the public.

library means a library all or part of whose collection is accessible

to members of the public directly or through interlibrary loans.

supply includes supply by way of a communication.

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Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

50 Reproducing and communicating works by libraries or archives

for other libraries or archives

(1) The officer in charge of a library may request, or cause another

person to request, the officer in charge of another library to supply

the officer in charge of the first-mentioned library with a

reproduction of an article, or a part of an article, contained in a

periodical publication, or of the whole or a part of a published

work other than an article contained in a periodical publication,

being a periodical publication or a published work held in the

collection of a library:

(a) for the purpose of including the reproduction in the collection

of the first-mentioned library;

(aa) in a case where the principal purpose of the first-mentioned

library is to provide library services for members of a

Parliament—for the purpose of assisting a person who is a

member of that Parliament in the performance of the person‘s

duties as such a member; or

(b) for the purpose of supplying the reproduction to a person

who has made a request for the reproduction under

section 49.

(2) Subject to this section, where a request is made by or on behalf of

the officer in charge of a library to the officer in charge of another

library under subsection (1), an authorized officer of the

last-mentioned library may make, or cause to be made, the

reproduction to which the request relates and supply the

reproduction to the officer in charge of the first-mentioned library.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the other library that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(3) Where, under subsection (2), an authorized officer of a library

makes, or causes to be made, a reproduction of the whole or part of

a work (including an article contained in a periodical publication)

and supplies it to the officer in charge of another library in

accordance with a request made under subsection (1):

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(a) the reproduction shall, for all purposes of this Act, be deemed

to have been made on behalf of an authorized officer of the

other library for the purpose for which the reproduction was

requested; and

(b) an action shall not be brought against the body administering

that first-mentioned library, or against any officer or

employee of that library, for infringement of copyright by

reason of the making or supplying of that reproduction.

(4) Subject to this section, if a reproduction of the whole or a part of

an article contained in a periodical publication, or of any other

published work, is, by virtue of subsection (3), taken to have been

made on behalf of an authorised officer of a library, the copyright

in the article or other work is not infringed:

(a) by the making of the reproduction; or

(b) if the work is supplied under subsection (2) by way of a

communication—by the making of the communication.

(5) The regulations may exclude the application of subsection (4) in

such cases as are specified in the regulations.

(6) Where a charge is made for making and supplying a reproduction

to which a request under subsection (1) relates, subsection (3) does

not apply in relation to the request if the amount of the charge

exceeds the cost of making and supplying the reproduction.

(7) Where:

(a) a reproduction (in this subsection referred to as the relevant

reproduction) of, or of a part of, an article, or of the whole or

a part of another work, is supplied under subsection (2) to the

officer in charge of a library; and

(b) a reproduction of the same article or other work, or of the

same part of the article or other work, as the case may be, has

previously been supplied under subsection (2) for the purpose

of inclusion in the collection of the library;

subsection (4) does not apply to or in relation to the relevant

reproduction unless, as soon as practicable after the request under

subsection (1) relating to the relevant reproduction is made, an

authorized officer of the library makes a declaration:

(c) setting out particulars of the request (including the purpose

for which the relevant reproduction was requested); and

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(d) stating that the reproduction referred to in paragraph (b) has

been lost, destroyed or damaged, as the case requires.

(7A) If:

(a) a reproduction is made of the whole of a work (other than an

article contained in a periodical publication) or of a part of

such a work, being a part that contains more than a

reasonable portion of the work; and

(b) the work from which the reproduction is made is in hardcopy

form; and

(c) the reproduction is supplied under subsection (2) to the

officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

(d) in a case where the principal purpose of the library is to

provide library services for members of a Parliament—the

reproduction is so supplied for the purpose of assisting a

person who is a member of that Parliament in the

performance of the person‘s duties as such a member; or

(e) as soon as practicable after the request under subsection (1)

relating to the reproduction is made, an authorized officer of

the library makes a declaration:

(i) setting out particulars of the request (including the

purpose for which the reproduction was requested); and

(ii) stating that, after reasonable investigation, the

authorized officer is satisfied that a copy (not being a

second-hand copy) of the work cannot be obtained

within a reasonable time at an ordinary commercial

price.

(7B) If:

(a) a reproduction is made of the whole of a work (including an

article contained in a periodical publication) or of a part of

such a work, whether or not the part contains more than a

reasonable portion of the work; and

(b) the work from which the reproduction is made is in electronic

form; and

(c) the reproduction is supplied under subsection (2) to the

officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

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(d) in a case where the principal purpose of the library is to

provide library services for members of a Parliament—the

reproduction is so supplied for the purpose of assisting a

person who is a member of that Parliament in the

performance of the person‘s duties as such a member; or

(e) as soon as practicable after the request under subsection (1)

relating to the reproduction is made, an authorized officer of

the library makes a declaration:

(i) setting out particulars of the request (including the

purpose for which the reproduction was requested); and

(ii) if the reproduction is of the whole, or of more than a

reasonable portion, of a work other than an article—

stating that, after reasonable investigation, the

authorised officer is satisfied that the work cannot be

obtained in electronic form within a reasonable time at

an ordinary commercial price; and

(iii) if the reproduction is of a reasonable portion, or less

than a reasonable portion, of a work other than an

article—stating that, after reasonable investigation, the

authorised officer is satisfied that the portion cannot be

obtained in electronic form, either separately or together

with a reasonable amount of other material, within a

reasonable time at an ordinary commercial price; and

(iv) if the reproduction is of the whole or of a part of an

article—stating that, after reasonable investigation, the

authorised officer is satisfied that the article cannot be

obtained on its own in electronic form within a

reasonable time at an ordinary commercial price.

(7BA) For the purposes of subsections (7A) and (7B), if the

characteristics of the work are such that subsection 10(2) or (2A) is

relevant to the question whether the reproduction contains only a

reasonable portion of the work, then that question is to be

determined solely by reference to subsection 10(2) or (2A) and not

by reference to the ordinary meaning of reasonable portion.

(7BB) For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii)

and (iv), in determining whether a copy of the work, the work, the

portion of the work or the article (as appropriate) cannot be

obtained within a reasonable time at an ordinary commercial price,

the authorized officer must take into account:

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(a) the time by which the person requesting the reproduction

under section 49 requires the reproduction; and

(b) the time within which a reproduction (not being a

second-hand reproduction) of the work at an ordinary

commercial price could be delivered to the person; and

(c) whether the copy, work, portion or article can be obtained in

electronic form within a reasonable time at an ordinary

commercial price.

(7C) If:

(a) a reproduction is made in electronic form by or on behalf of

an authorised officer of a library of the whole of a work

(including an article contained in a periodical publication) or

of a part of such a work; and

(b) the reproduction is supplied under subsection (2) to the

officer in charge of another library;

subsection (3) does not apply in relation to the reproduction unless,

as soon as practicable after the reproduction is supplied to the other

library the reproduction made for the purpose of the supply and

held by the first-mentioned library is destroyed.

(8) Subsection (4) does not apply to a reproduction or communication

of all or part of 2 or more articles that are contained in the same

periodical publication and that have been requested for the same

purpose unless:

(a) the purpose is the one described in paragraph (1)(aa)

(assisting a member of a Parliament perform his or her

duties); or

(b) the purpose is the one described in paragraph (1)(b)

(supplying a reproduction to a person requesting it under

section 49 for research or study) and the reproduction of the

articles was requested under section 49 for the same research

or course of study.

(10) In this section:

library means:

(a) a library all or part of whose collection is accessible to

members of the public directly or through interlibrary loans;

or

(b) a library whose principal purpose is to provide library

services for members of a Parliament; or

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(c) an archives all or part of whose collection is accessible to

members of the public.

supply includes supply by way of a communication.

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

51 Reproducing and communicating unpublished works in libraries

or archives

(1) Where, at a time more than 50 years after the end of the calendar

year in which the author of a literary, dramatic, musical or artistic

work died, copyright subsists in the work but:

(a) the work has not been published; and

(b) a reproduction of the work, or, in the case of a literary,

dramatic or musical work, the manuscript of the work, is kept

in the collection of a library or archives where it is, subject to

any regulations governing that collection, open to public

inspection;

the copyright in the work is not infringed:

(c) by the making or communication of a reproduction of the

work by a person for the purposes of research or study or

with a view to publication; or

(d) by the making or communication of a reproduction of the

work by, or on behalf of, the officer in charge of the library

or archives if the reproduction is supplied (whether by way of

communication or otherwise) to a person who satisfies the

officer in charge of the library or archives that the person

requires the reproduction for the purposes of research or

study, or with a view to publication, and that the person will

not use it for any other purpose.

(2) If the manuscript, or a reproduction, of an unpublished thesis or

other similar literary work is kept in a library of a university or

other similar institution, or in an archives, the copyright in the

thesis or other work is not infringed by the making or

communication of a reproduction of the thesis or other work by or

on behalf of the officer in charge of the library or archives if the

reproduction is supplied (whether by communication or otherwise)

to a person who satisfies an authorized officer of the library or

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archives that he or she requires the reproduction for the purposes of

research or study.

51AA Reproducing and communicating works in care of National

Archives of Australia

(1) The copyright in a work that is kept in the collection of an archives

covered by subparagraph (a)(i) or paragraph (aa) of the definition

of archives in subsection 10(1), where it is open to public

inspection, is not infringed by the making or communication by, or

on behalf of, the officer in charge of the archives:

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

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

central office of the National Archives of Australia; or

(c) on the written request for a reference copy of the work by an

officer of the National Archives of Australia in a regional

office of the Archives, where the officer in charge is satisfied

that a reference copy of the work has not been previously

supplied to that regional office—of a single reference copy of

the work for supply to that regional office; or

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

of the work supplied to a regional office of the National

Archives of Australia is lost, damaged or destroyed and an

officer of the Archives in that regional office makes a written

request for a replacement copy of the work—of a single

replacement copy of the work for supply to that regional

office; or

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

of the work supplied to the central office of the National

Archives of Australia is lost, damaged or destroyed—of a

single replacement copy of the work for supply to that central

office.

(2) In this section:

reference copy, in relation to a work, means a reproduction of the

work made from a working copy for supply to the central office, or

to a regional office, of the National Archives of Australia for use

by that office in providing access to the work to members of the

public.

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replacement copy, in relation to a work, means a reproduction of

the work made from a working copy for the purpose of replacing a

reference copy of the work that is lost, damaged or destroyed.

working copy, in relation to a work, means a reproduction of the

work made for the purpose of enabling the National Archives of

Australia to retain the copy and use it for making reference copies

and replacement copies of the work.

51A Reproducing and communicating works for preservation and

other purposes

(1) Subject to subsection (4), the copyright in a work that forms, or

formed, part of the collection of a library or archives is not

infringed by the making or communicating, by or on behalf of the

officer in charge of the library or archives, of a reproduction of the

work:

(a) if the work is held in manuscript form or is an original artistic

work—for the purpose of preserving the manuscript or

original artistic work, as the case may be, against loss or

deterioration or for the purpose of research that is being, or is

to be, carried out at the library or archives in which the work

is held or at another library or other archives;

(b) if the work is held in the collection in a published form but

has been damaged or has deteriorated—for the purpose of

replacing the work; or

(c) if the work has been held in the collection in a published

form but has been lost or stolen—for the purpose of replacing

the work.

(2) The copyright in a work that is held in the collection of a library or

archives is not infringed by the making, by or on behalf of the

officer in charge of the library or archives, of a reproduction of the

work for administrative purposes.

(3) The copyright in a work that is held in the collection of a library or

archives is not infringed by the communication, by or on behalf of

the officer in charge of the library or archives, of a reproduction of

the work made under subsection (2) to officers of the library or

archives by making it available online to be accessed through the

use of a computer terminal installed within the premises of the

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library or archives with the approval of the body administering the

library or archives.

(3A) The copyright in an original artistic work that is held in the

collection of a library or archives is not infringed in the

circumstances described in subsection (3B) by the communication,

by or on behalf of the officer in charge of the library or archives, of

a preservation reproduction of the work by making it available

online to be accessed through the use of a computer terminal:

(a) that is installed within the premises of the library or archives;

and

(b) that cannot be used by a person accessing the work to make

an electronic copy or a hardcopy of the reproduction, or to

communicate the reproduction.

(3B) The circumstances in which the copyright in the original artistic

work is not infringed because of subsection (3A) are that either:

(a) the work has been lost, or has deteriorated, since the

preservation reproduction of the work was made; or

(b) the work has become so unstable that it cannot be displayed

without risk of significant deterioration.

(4) Subsection (1) does not apply in relation to a work held in

published form in the collection of a library or archives unless an

authorized officer of the library or archives has, after reasonable

investigation, made a declaration:

(a) stating that he or she is satisfied that a copy (not being a

second-hand copy) of the work, or of the edition in which the

work is held in the collection, cannot be obtained within a

reasonable time at an ordinary commercial price; and

(b) if he or she is satisfied that a copy (not being a second-hand

copy) of another edition of the work can be obtained within a

reasonable time at an ordinary commercial price—stating

why the reproduction should be made from the copy of the

work held in the collection.

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

(5) Where a reproduction of an unpublished work is made under

subsection (1) by or on behalf of the officer in charge of a library

or archives for the purpose of research that is being, or is to be,

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carried out at another library or archives, the supply or

communication of the reproduction by or on behalf of the officer to

the other library or archives does not, for any purpose of this Act,

constitute the publication of the work.

(6) In this section:

administrative purposes means purposes directly related to the

care or control of the collection.

officers of the library or archives includes volunteers assisting

with the care or control of the collection.

preservation reproduction, in relation to an artistic work, means a

reproduction of the work made under subsection (1) for the

purpose of preserving the work against loss or deterioration.

51B Making preservation copies of significant works in key cultural

institutions’ collections

(1) This section applies in relation to a work held in the collection of a

library or archives if:

(a) the body administering the library or archives:

(i) has, under a law of the Commonwealth or a State or

Territory, the function of developing and maintaining

the collection; or

(ii) is prescribed by the regulations for the purposes of this

subparagraph; and

(b) an authorized officer of the library or archives is satisfied that

the work is of historical or cultural significance to Australia.

Manuscript

(2) If the work is held in the form of a manuscript, the copyright in the

work is not infringed by an authorized officer of the library or

archives making up to 3 reproductions of the work from the

manuscript for the purpose of preserving it against loss or

deterioration.

Original artistic work

(3) If the work is held in the form of an original artistic work, the

copyright in the work is not infringed by an authorized officer of

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the library or archives making up to 3 comprehensive photographic

reproductions of the work from the original artistic work for the

purpose of preserving it against loss or deterioration if the officer is

satisfied that a photographic reproduction (not being a second-hand

reproduction) of the work cannot be obtained within a reasonable

time at an ordinary commercial price.

Published work

(4) If the work is held in published form, the copyright in the work is

not infringed by an authorized officer of the library or archives

making up to 3 reproductions of the work from the copy held in the

collection, for the purpose of preserving the work against loss or

deterioration, if the officer is satisfied that:

(a) a copy (not being a second-hand copy) of the work, or of the

edition in which the work is held in the collection, cannot be

obtained within a reasonable time at an ordinary commercial

price; and

(b) if the officer is satisfied that a copy (not being a second-hand

copy) of another edition of the work can be obtained within a

reasonable time at an ordinary commercial price—it is

appropriate that the reproduction should be made from the

copy of the work held in the collection.

Electronic copies and commercial availability

(5) In determining for the purposes of subsection (3) or (4) whether a

reproduction or copy (not being a second-hand reproduction or

copy) of the work, or of a particular edition of the work, cannot be

obtained within a reasonable time at an ordinary commercial price,

the authorized officer must take into account whether an electronic

copy of the work or edition can be obtained within a reasonable

time at an ordinary commercial price.

Relationship with the rest of this Division

(6) This section does not limit the rest of this Division. The rest of this

Division does not limit this section.

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52 Publication of unpublished works kept in libraries or archives

(1) Where:

(a) a published literary, dramatic or musical work (in this section

referred to as the new work) incorporates the whole or a part

of a work (in this section referred to as the old work) to

which subsection 51(1) applied immediately before the new

work was published;

(b) before the new work was published, the prescribed notice of

the intended publication of the work had been given; and

(c) immediately before the new work was published, the identity

of the owner of the copyright in the old work was not known

to the publishers of the new work;

then, for the purposes of this Act, the first publication of the new

work, and any subsequent publication of the new work whether in

the same or in an altered form, shall, in so far as it constitutes a

publication of the old work, be deemed not to be an infringement

of the copyright in the old work or an unauthorized publication of

the old work.

(2) The last preceding subsection does not apply to a subsequent

publication of the new work incorporating a part of the old work

that was not included in the first publication of the new work

unless:

(a) subsection 51(1) would, but for this section, have applied to

that part of the old work immediately before that subsequent

publication;

(b) before that subsequent publication, the prescribed notice of

the intended publication had been given; and

(c) immediately before that subsequent publication, the identity

of the owner of the copyright in the old work was not known

to the publisher of that subsequent publication.

(3) If a work, or part of a work, has been published and, because of

this section, the publication is taken not to be an infringement of

the copyright in the work, the copyright in the work is not

infringed by a person who, after the publication took place:

(a) broadcasts the work, or that part of the work; or

(b) electronically transmits the work, or that part of the work

(other than in a broadcast) for a fee payable to the person

who made the transmission; or

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(c) performs the work, or that part of the work, in public; or

(d) makes a record of the work, or that part of the work.

53 Application of Division to illustrations accompanying articles and

other works

Where an article, thesis or literary, dramatic or musical work is

accompanied by artistic works provided for the purpose of

explaining or illustrating the article, thesis or other work (in this

section referred to as the illustrations), the preceding sections of

this Division apply as if:

(a) where any of those sections provides that the copyright in the

article, thesis or work is not infringed—the reference to that

copyright included a reference to any copyright in the

illustrations;

(b) a reference in section 49, section 50, section 51 or 51A to a

reproduction of the article, thesis or work included a

reference to a reproduction of the article, thesis or work

together with a reproduction of the illustrations;

(c) a reference in section 49 or section 50 to a reproduction of a

part of the article or work included a reference to a

reproduction of that part of the article or work together with a

reproduction of the illustrations that were provided for the

purpose of explaining or illustrating that part; and

(d) a reference in section 51A or section 52 to the doing of any

act in relation to the work included a reference to the doing

of that act in relation to the work together with the

illustrations.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 6 Recording of musical works

Section 54

Division 6—Recording of musical works

54 Interpretation

(1A) In this Division:

record means a disc, tape, paper or other device in which sounds

are embodied.

(1) For the purposes of this Division:

(a) a reference to a musical work shall be read as a reference to

the work in its original form or to an adaptation of the work;

(b) a reference to the owner of the copyright in a literary,

dramatic or musical work shall, unless the contrary intention

appears, be read as a reference to the person who is entitled

to authorize the making in, and the importation into,

Australia of records of the work; and

(c) a reference to sale of a record by retail or to retail sale of a

record shall be read as not including a reference to:

(i) sale for a consideration not consisting wholly of money;

or

(ii) sale by a person not ordinarily carrying on the business

of making or selling records.

(2) For the purposes of this Division, where a musical work is

comprised partly in one record and partly in another record or other

records, all the records shall be treated as if they constituted a

single record.

(3) A reference in this Division to a record of a musical work does not

include a reference to a sound-track associated with visual images

forming part of a cinematograph film.

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

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

(5) Section 55:

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

previous record referred to in paragraph 55(1)(a) was a

record of the whole work; and

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Copyright in original literary, dramatic, musical and artistic works Part III

Recording of musical works Division 6

Section 55

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

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

55 Conditions upon which manufacturer may make records of

musical work

(1) Subject to this Division, the copyright in a musical work is not

infringed by a person (in this section referred to as the

manufacturer) who makes, in Australia, a record of the work if:

(a) a record of the work:

(i) has previously been made in, or imported into, Australia

for the purpose of retail sale and was so made or

imported by, or with the licence of, the owner of the

copyright in the work;

(ii) has previously been made in Australia for use in making

other records for the purpose of retail sale and was so

made by, or with the licence of, the owner of the

copyright in the work;

(iii) has previously been made in, or imported into, a country

other than Australia for the purpose of retail sale, being

a country that, at the time of the previous making or

importation, was specified in the regulations to be a

country in relation to which this Division applies, and

was so made or imported by, or with the licence of, the

person who was, under the law of that country, the

owner of the copyright in the work; or

(iv) has previously been made in a country other than

Australia for use in making other records for the

purpose of retail sale, being a country that, at the time of

the previous making, was specified in the regulations to

be a country in relation to which this Division applies,

and was so made by, or with the licence of, the person

who was, under the law of that country, the owner of the

copyright in the work;

(b) before the making of the record, the prescribed notice of the

intended making of the record was given to the owner of the

copyright;

(c) the manufacturer intends to sell the record by retail, or to

supply it for the purpose of its being sold by retail by a

person other than the manufacturer, or intends to use it for

making other records that are to be so sold or supplied; and

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 6 Recording of musical works

Section 55

(d) where the record is so sold or supplied by the manufacturer:

(i) the sale or supply is made with the licence of the owner

of the copyright; and

(ii) the prescribed royalty is paid to the owner of the

copyright in the manner agreed between the

manufacturer and the owner of the copyright or, failing

such agreement, determined by the Copyright Tribunal

under section 152B.

(3) Subparagraph (1)(d)(i) does not apply in relation to a record of a

work (other than a work that was made for the purpose of being

performed, or has been performed, in association with a dramatic

work or has been included in a cinematograph film) if the sale or

supply is made after the expiration of the prescribed period after

the earliest of the following dates:

(a) the date of the first making in, or the date of the first

importation into, Australia of a previous record of the work

in circumstances referred to in subparagraph (1)(a)(i) or (ii);

(b) the date of the first supplying (whether by sale or otherwise)

to the public in a country referred to in

subparagraph (1)(a)(iii) or (iv) of a previous record of the

work made in, or imported into, that country in

circumstances referred to in that subparagraph.

(4) Regulations prescribing a period for the purposes of the last

preceding subsection may prescribe different periods in relation to

different classes of records.

(5) If, apart from this subsection, the amount of royalty payable in

respect of a record under this section would be less than one cent,

that amount of royalty is one cent.

(6) In this section:

prescribed royalty, in relation to a record of a musical work,

means:

(a) such amount of royalty as is agreed between the

manufacturer and the owner of the copyright in the work or,

failing such agreement, as is determined by the Copyright

Tribunal under section 152A; or

(b) if no such agreement or determination is in force—an amount

equal to 6.25% of the retail selling price of the record.

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Copyright in original literary, dramatic, musical and artistic works Part III

Recording of musical works Division 6

Section 57

57 Provisions relating to royalty where 2 or more works are on the

one record

Where a record comprises 2 or more musical works, whether or not

there is any other matter comprised in the record:

(a) if the record includes a work in which copyright does not

subsist or works in which copyrights do not subsist the

royalty payable in respect of the record is, subject to the next

succeeding paragraph, the amount that bears to the amount

that, but for this section, would be the amount of the royalty

the same proportion as the number of works in the record in

which copyrights subsist bears to the total number of works

in the record; and

(b) if the record includes 2 or more works in which copyrights

subsist:

(i) subject to this Division, the royalty payable in respect of

the record shall not be less than One cent in respect of

each work in the record in which copyright subsists; and

(ii) if the owners of the copyrights in the works in the

record in which copyrights subsist are different persons

there shall be paid to the owner of the copyright in each

work, in respect of that work, an amount ascertained by

dividing the amount of the royalty payable in respect of

the record by the number of works in the record in

which copyrights subsist.

59 Conditions upon which manufacturer may include part of a

literary or dramatic work in a record of a musical work

(1) Where:

(a) a person makes in Australia a record comprising the

performance of a musical work in which words are sung, or

are spoken incidentally to or in association with the music,

whether or not there is any other matter comprised in the

record;

(b) copyright does not subsist in that work or, if copyright so

subsists, the requirements specified in subsection 55(1) are

complied with in relation to that copyright;

(c) the words consist or form part of a literary or dramatic work

in which copyright subsists;

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Section 59

(d) a record of the musical work in which those words, or words

substantially the same as those words, were sung, or were

spoken incidentally to or in association with the music:

(i) has previously been made in, or imported into, Australia

for the purpose of retail sale and was so made or

imported by, or with the licence of, the owner of the

copyright in the literary or dramatic work;

(ii) has previously been made in Australia for use in making

other records for the purpose of retail sale and was so

made by, or with the licence of, the owner of the

copyright in the literary or dramatic work;

(iii) has previously been made in, or imported into, a country

other than Australia for the purpose of retail sale, being

a country that, at the time of the previous making or

importation, was specified in the regulations to be a

country in relation to which this Division applies, and

was so made or imported by, or with the licence of, the

person who was, under the law of that country, the

owner of the copyright in the literary or dramatic work;

or

(iv) has previously been made in a country other than

Australia for use in making other records for the

purpose of retail sale, being a country that, at the time of

the previous making, was specified in the regulations to

be a country in relation to which this Division applies,

and was so made by, or with the licence of, the person

who was, under the law of that country, the owner of the

copyright in the literary or dramatic work; and

(e) the like notice was given to the owner of the copyright in the

literary or dramatic work as is required by paragraph 55(1)(b)

to be given to the owner of the copyright (if any) in the

musical work and there is paid to the owner of the copyright

in the literary or dramatic work such amount (if any) as is

ascertained in accordance with this section;

the making of the record does not constitute an infringement of the

copyright in the literary or dramatic work.

(2) Where copyright does not subsist in the musical work, the amount

to be paid in respect of the literary or dramatic work is an amount

equal to the royalty that, but for this section, would have been

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Recording of musical works Division 6

Section 60

payable in respect of the musical work if copyright had subsisted in

the musical work.

(3) Where copyright subsists in the musical work as well as in the

literary or dramatic work:

(a) if the copyrights in those works are owned by the same

person—an amount is not payable in respect of the literary or

dramatic work; or

(b) if the copyrights in those works are owned by different

persons—the royalty that, but for this section, would have

been payable in respect of the musical work shall be

apportioned between them in such manner as they agree, or,

in default of the agreement, as is determined by the

Copyright Tribunal on the application of either of them.

(4) Where the owner of the copyright in a musical work and the owner

of the copyright in a literary or dramatic work do not agree on the

manner in which an amount is to be apportioned between them but

the person who made the record gives an undertaking in writing to

each owner to pay to him or her the portion of that amount that the

Tribunal determines to be payable to him or her, then:

(a) paragraph 55(1)(d) and paragraph (1)(e) of this section have

effect as if the payments referred to in those paragraphs had

been made; and

(b) the person who made the record is liable, when the amount to

which an undertaking relates is determined, to pay that

amount to the owner of the copyright to whom the

undertaking was given and the owner may recover that

amount in a court of competent jurisdiction from that person

as a debt due to the owner.

60 Records made partly for retail sale and partly for gratuitous

disposal

Where a person makes, in Australia, a number of records

embodying the same sound recording, being a recording of a

musical work or of a musical work and of words consisting or

forming part of a literary or dramatic work, with the intention of:

(a) selling by retail, or supplying for sale by retail by another

person, a substantial proportion of the records (in this section

referred to as the records made for retail sale); and

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Division 6 Recording of musical works

Section 61

(b) disposing gratuitously of the remainder of the records or

supplying the remainder of the records for gratuitous disposal

by another person;

this Division applies in relation to the records other than the

records made for retail sale as if:

(c) those records had been made with the intention of selling

them by retail or of supplying them for sale by retail by

another person;

(d) the gratuitous disposal of those records by the maker of the

records, or the supplying of those records by the maker of the

records for gratuitous disposal by another person, were a sale

of the records by retail; and

(e) the retail selling price of those records were the same as the

retail selling price of the records made for retail sale.

61 Making inquiries in relation to previous records

Where:

(a) a person makes inquiries, as prescribed, for the purpose of

ascertaining whether a record of a musical work, or a record

of a musical work in which words consisting or forming part

of a literary or dramatic work were sung or spoken, has

previously been made in, or imported into, Australia by, or

with the licence of, the owner of the copyright in the musical

work or in the literary or dramatic work, as the case may be,

for the purpose of retail sale or for use in making other

records for the purpose of retail sale; and

(b) an answer to those inquiries is not received within the

prescribed period;

a record of that musical work, or a record of that work in which

those words were sung or spoken, as the case may be, shall, for the

purposes of the application of this Division:

(c) in relation to the person who made the inquiries; or

(d) in relation to a person who makes records of the musical

work, or records of that work in which those words or

substantially the same words are sung or spoken, for the

purpose of supplying those records to the person who made

the inquiries in pursuance of an agreement entered into

between those persons for the making of the records;

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Copyright in original literary, dramatic, musical and artistic works Part III

Recording of musical works Division 6

Section 64

be taken to have been previously made in, or imported into,

Australia with the licence of the owner of that copyright for the

purpose of retail sale or for use in making other records for the

purpose of retail sale, as the case may be.

64 Sections 55 and 59 to be disregarded in determining whether an

infringement has been committed by the importation of

records

For the purpose of any provision of this Act relating to imported

articles, in determining whether the making of a record made

outside Australia would have constituted an infringement of

copyright if the record had been made in Australia by the importer,

sections 55 and 59 shall be disregarded.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 7 Acts not constituting infringements of copyright in artistic works

Section 65

Division 7—Acts not constituting infringements of

copyright in artistic works

65 Sculptures and certain other works in public places

(1) This section applies to sculptures and to works of artistic

craftsmanship of the kind referred to in paragraph (c) of the

definition of artistic work in section 10.

(2) The copyright in a work to which this section applies that is

situated, otherwise than temporarily, in a public place, or in

premises open to the public, is not infringed by the making of a

painting, drawing, engraving or photograph of the work or by the

inclusion of the work in a cinematograph film or in a television

broadcast.

66 Buildings and models of buildings

The copyright in a building or a model of a building is not

infringed by the making of a painting, drawing, engraving or

photograph of the building or model or by the inclusion of the

building or model in a cinematograph film or in a television

broadcast.

67 Incidental filming or televising of artistic works

Without prejudice to the last two preceding sections, the copyright

in an artistic work is not infringed by the inclusion of the work in a

cinematograph film or in a television broadcast if its inclusion in

the film or broadcast is only incidental to the principal matters

represented in the film or broadcast.

68 Publication of artistic works

The copyright in an artistic work is not infringed by the publication

of a painting, drawing, engraving, photograph or cinematograph

film if, by virtue of section 65, section 66 or section 67, the making

of that painting, drawing, engraving, photograph or film did not

constitute an infringement of the copyright.

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Copyright in original literary, dramatic, musical and artistic works Part III

Acts not constituting infringements of copyright in artistic works Division 7

Section 70

70 Reproduction for purpose of including work in television

broadcast

(1) Where the inclusion of an artistic work in a television broadcast

made by a person would not (whether by reason of an assignment

or licence or of the operation of a provision of this Act) constitute

an infringement of copyright in the work but the making by the

person of a cinematograph film of the work would, apart from this

subsection, constitute such an infringement, the copyright in the

work is not infringed by the making by the person of such a film

solely for the purpose of the inclusion of the work in a television

broadcast.

(2) The last preceding subsection does not apply in relation to a film if

a copy of the film is used for a purpose other than:

(a) the inclusion of the work in a television broadcast in

circumstances that do not (whether by reason of an

assignment or licence or of the operation of a provision of

this Act) constitute an infringement of the copyright in the

work; or

(b) the making of further copies of the film for the purpose of the

inclusion of the work in such a broadcast.

(3) Subsection (1) does not apply in relation to a film where a copy of

the film is used for the purpose of the inclusion of the work in a

television broadcast made by a person who is not the maker of the

film unless the maker has paid to the owner of the copyright in the

work such amount as they agree or, in default of agreement, has

given an undertaking in writing to the owner to pay to the owner

such amount as is determined by the Copyright Tribunal, on the

application of either of them, to be equitable remuneration to the

owner for the making of the film.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the work and the owner

may recover that amount in a court of competent jurisdiction from

the person as a debt due to the owner.

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Division 7 Acts not constituting infringements of copyright in artistic works

Section 72

(5) Subsection (1) does not apply in relation to a film unless, before

the expiration of the period of 12 months commencing on the day

on which any of the copies of the film is first used for including the

work in a television broadcast in accordance with that subsection,

or before the expiration of such further period, if any, as is agreed

between the maker of the film and the owner of the copyright in

the work, all the copies of the film are destroyed or are transferred,

with the consent of the Director-General of the National Archives

of Australia, to the care (within the meaning of the Archives Act

1983) of the National Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a copy of a film

unless he or she has certified that the film is of an exceptional

documentary character.

72 Reproduction of part of work in later work

(1) The copyright in an artistic work is not infringed by the making of

a later artistic work by the same author if, in making the later work,

the author does not repeat or imitate the main design of the earlier

work.

(2) The last preceding subsection has effect notwithstanding that part

of the earlier work is reproduced in the later work and that, in

reproducing the later work, the author used a mould, cast, sketch,

plan, model or study made for the purposes of the earlier work.

73 Reconstruction of buildings

(1) Where copyright subsists in a building, the copyright is not

infringed by a reconstruction of that building.

(2) Where a building has been constructed in accordance with

architectural drawings or plans in which copyright subsists and has

been so constructed by, or with the licence of, the owner of that

copyright, that copyright is not infringed by a later reconstruction

of the building by reference to those drawings or plans.

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Copyright in original literary, dramatic, musical and artistic works Part III

Designs Division 8

Section 74

Division 8—Designs

74 Corresponding design

(1) In this Division:

corresponding design, in relation to an artistic work, means visual

features of shape or configuration which, when embodied in a

product, result in a reproduction of that work, whether or not the

visual features constitute a design that is capable of being

registered under the Designs Act 2003.

(2) For the purposes of subsection (1):

embodied in, in relation to a product, includes woven into,

impressed on or worked into the product.

75 Copyright protection where corresponding design registered

Subject to section 76, where copyright subsists in an artistic work

(whether made before the commencement of this section or

otherwise) and a corresponding design is or has been registered

under the Designs Act 1906 or the Designs Act 2003 on or after

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

reproduce the work by embodying that, or any other,

corresponding design in a product.

76 False registration of industrial designs under the Designs Act

2003

(1) This section applies if:

(a) proceedings (copyright proceedings) are brought under this

Act in relation to an artistic work in which copyright subsists;

and

(b) a corresponding design was registered under the Designs Act

2003; and

(c) the exclusive right in the design had not expired by effluxion

of time before the copyright proceedings began; and

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 8 Designs

Section 77

(d) it is established in the copyright proceedings that:

(i) none of the persons who are registered owners of the

registered design are entitled persons in relation to the

design; and

(ii) none of those persons were registered with the

knowledge of the owner of the copyright in the artistic

work.

(2) Subject to subsection (3), for the purposes of the copyright

proceedings:

(a) the design is taken never to have been registered under the

Designs Act 2003; and

(b) section 75 does not apply in relation to anything done in

respect of the design; and

(c) nothing in the Designs Act 2003 constitutes a defence.

(3) Ignore subsection (2) if it is established in the copyright

proceedings that the act to which the proceedings relate was done:

(a) by an assignee of, or under a licence granted by, the

registered owner of the registered design; and

(b) in good faith relying on the registration and without notice of

any proceedings (whether or not before a court) to revoke the

registration or to rectify the entry in the Register of Designs

in relation to the design.

77 Application of artistic works as industrial designs without

registration of the designs

(1) This section applies where:

(a) copyright subsists in an artistic work (other than a building or

a model of a building, or a work of artistic craftsmanship)

whether made before the commencement of this section or

otherwise;

(b) a corresponding design is or has been applied industrially,

whether in Australia or elsewhere, and whether before or

after the commencement of this section, by or with the

licence of the owner of the copyright in the place of

industrial application; and

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Copyright in original literary, dramatic, musical and artistic works Part III

Designs Division 8

Section 77

(c) at any time on or after the commencement of this section,

products to which the corresponding design has been so

applied (the products made to the corresponding design) are

sold, let for hire or offered or exposed for sale or hire,

whether in Australia or elsewhere; and

(d) at that time, the corresponding design is not registrable under

the Designs Act 2003 or has not been registered under that

Act or under the Designs Act 1906.

(1A) This section also applies if:

(a) a complete specification that discloses a product made to the

corresponding design; or

(b) a representation of a product made to the corresponding

design and included in a design application;

is published in Australia, whether or not paragraphs (1)(b) and (c)

are satisfied in relation to the corresponding design.

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

reproduce the work, on or after the day on which:

(a) products made to the corresponding design are first sold, let

for hire or offered or exposed for sale or hire; or

(b) a complete specification that discloses a product made to the

corresponding design is first published in Australia; or

(c) a representation of a product made to the corresponding

design and included in a design application is first published

in Australia;

by embodying that, or any other, corresponding design in a

product.

(3) This section does not apply in relation to any articles or products in

respect of which, at the time when they were sold, let for hire or

offered or exposed for sale or hire, the corresponding design

concerned was excluded from registration by regulations made

under the Designs Act 1906 or the Designs Act 2003, and, for the

purposes of any proceedings under this Act, a design shall be

conclusively presumed to have been so excluded if:

(a) before the commencement of the proceedings, an application

for the registration of the design under the Designs Act 1906

in respect of those articles, or under the Designs Act 2003 in

respect of those products, had been refused;

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Division 8 Designs

Section 77A

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

that the design was excluded from registration under that Act

by regulations made under that Act; and

(c) when the proceedings were commenced, no appeal against

the refusal had been allowed or was pending.

(4) The regulations may specify the circumstances in which a design

is, for the purposes of this section, to be taken to be applied

industrially.

(5) In this section:

building or model of a building does not include a portable

building such as a shed, a pre-constructed swimming pool, a

demountable building or similar portable building.

complete specification has the same meaning as in the Patents Act

1990.

design application has the same meaning as in the Designs Act

2003.

representation, in relation to a design, has the same meaning as

in the Designs Act 2003.

77A Certain reproductions of an artistic work do not infringe

copyright

(1) It is not an infringement of copyright in an artistic work to

reproduce the artistic work, or communicate that reproduction, if:

(a) the reproduction is derived from a three-dimensional product

that embodies a corresponding design in relation to the

artistic work; and

(b) the reproduction is in the course of, or incidental to:

(i) making a product (the non-infringing product), if the

making of the product did not, or would not, infringe the

copyright in the artistic work because of the operation

of this Division; or

(ii) selling or letting for hire the non-infringing product, or

offering or exposing the non-infringing product for sale

or hire.

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Section 77A

(2) It is not an infringement of copyright in an artistic work to make a

cast or mould embodying a corresponding design in relation to the

artistic work, if:

(a) the cast or mould is for the purpose of making products; and

(b) the making of the products would not infringe copyright

because of the operation of this Division.

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Part III Copyright in original literary, dramatic, musical and artistic works

Division 9 Works of joint authorship

Section 78

Division 9—Works of joint authorship

78 References to all of joint authors

Subject to this Division, a reference in this Act to the author of a

work shall, unless otherwise expressly provided by this Act, be

read, in relation to a work of joint authorship, as a reference to all

the authors of the work.

79 References to any one or more of joint authors

The references in section 32, and in subsection 34(2) to the author

of a work shall, in relation to a work of joint authorship, be read as

references to any one or more of the authors of the work.

80 References to whichever of joint authors died last

The references in sections 33 and 51 to the author of a work shall,

in relation to a work of joint authorship other than a work to which

the next succeeding section applies, be read as references to the

author who died last.

81 Works of joint authorship published under pseudonyms

(1) This section applies to a work of joint authorship that was first

published under 2 or more names of which one was a pseudonym

or 2 or more (but not all) were pseudonyms.

(2) This section also applies to a work of joint authorship that was first

published under 2 or more names all of which were pseudonyms if,

at any time within 70 years after the end of the calendar year in

which the work was first published, the identity of one or more

(but not all) of the authors was generally known or could be

ascertained by reasonable inquiry.

(3) The references in section 33 to the author of a work shall, in

relation to a work to which this section applies, be read as

references to the author whose identity was disclosed or, if the

identity of 2 or more of the authors was disclosed, as references to

whichever of those authors died last.

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Copyright in original literary, dramatic, musical and artistic works Part III

Works of joint authorship Division 9

Section 82

(4) For the purposes of this section, the identity of an author shall be

deemed to have been disclosed if:

(a) one of the names under which the work was published was

the name of that author; or

(b) the identity of that author is generally known or can be

ascertained by reasonable inquiry.

82 Copyright to subsist in joint works without regard to any author

who is an unqualified person

(1) Subsection 35(2) has effect, in relation to a work of joint

authorship of which one of the authors is an unqualified person, or

2 or more (but not all) of the authors are unqualified persons, as if

the author or authors, other than unqualified persons, had alone

been the author or authors, as the case may be, of the work.

(2) For the purposes of the last preceding subsection, a person is an

unqualified person in relation to a work where, if he or she had

alone been the author of the work, copyright would not have

subsisted in the work by virtue of this Part.

83 Inclusion of joint works in collections for use in places of

education

The reference in subsection 44(2) to other extracts from, or from

adaptations of, works by the author of the extract concerned:

(a) shall be read as including a reference to extracts from, or

from adaptations of, works by the author of the extract

concerned in collaboration with any other person; or

(b) if the extract concerned is from, or from an adaptation of, a

work of joint authorship shall be read as including a

reference to extracts from, or from adaptations of, works by

any one or more of the authors of the extract concerned, or

by any one or more of those authors in collaboration with any

other person.

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Part IV Copyright in subject-matter other than works

Division 1 Preliminary

Section 84

Part IV—Copyright in subject-matter other than

works

Division 1—Preliminary

84 Definitions

In this Part:

live performance means:

(a) a performance (including an improvisation) of a dramatic

work, or part of such a work, including such a performance

given with the use of puppets; or

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

work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part

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

literary work; or

(d) a performance of a dance; or

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

presentation or show; or

(f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience

or otherwise.

performer in a live performance:

(a) means each person who contributed to the sounds of the

performance; and

(b) if the performance includes a performance of a musical

work—includes the conductor.

qualified person means:

(a) an Australian citizen or a person (other than a body

corporate) resident in Australia; or

(b) a body corporate incorporated under a law of the

Commonwealth or of a State.

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Preliminary Division 1

Section 84

sound recording of a live performance means a sound recording,

made at the time of the live performance, consisting of, or

including, the sounds of the performance.

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Part IV Copyright in subject-matter other than works

Division 2 Nature of copyright in subject-matter other than works

Section 85

Division 2—Nature of copyright in subject-matter other

than works

85 Nature of copyright in sound recordings

(1) For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a sound recording, is the exclusive right to

do all or any of the following acts:

(a) to make a copy of the sound recording;

(b) to cause the recording to be heard in public;

(c) to communicate the recording to the public;

(d) to enter into a commercial rental arrangement in respect of

the recording.

(2) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement in respect of a sound recording if:

(a) the copy of the sound recording was purchased by a person

(the record owner) before the commencement of Part 2 of

the Copyright (World Trade Organization Amendments) Act

1994; and

(b) the commercial rental arrangement is entered into in the

ordinary course of a business conducted by the record owner;

and

(c) the record owner was conducting the same business, or

another business that consisted of, or included, the making of

commercial rental arrangements in respect of copies of sound

recordings, when the copy was purchased.

86 Nature of copyright in cinematograph films

For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a cinematograph film, is the exclusive right

to do all or any of the following acts:

(a) to make a copy of the film;

(b) to cause the film, in so far as it consists of visual images, to

be seen in public, or, in so far as it consists of sounds, to be

heard in public;

(c) to communicate the film to the public.

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Nature of copyright in subject-matter other than works Division 2

Section 87

87 Nature of copyright in television broadcasts and sound

broadcasts

For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a television broadcast or sound broadcast,

is the exclusive right:

(a) in the case of a television broadcast in so far as it consists of

visual images—to make a cinematograph film of the

broadcast, or a copy of such a film;

(b) in the case of a sound broadcast, or of a television broadcast

in so far as it consists of sounds—to make a sound recording

of the broadcast, or a copy of such a sound recording; and

(c) in the case of a television broadcast or of a sound

broadcast—to re-broadcast it or communicate it to the public

otherwise than by broadcasting it.

88 Nature of copyright in published editions of works

For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a published edition of a literary, dramatic,

musical or artistic work or of two or more literary, dramatic,

musical or artistic works, is the exclusive right to make a facsimile

copy of the edition.

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Part IV Copyright in subject-matter other than works

Division 3 Subject-matter, other than works, in which copyright subsists

Section 89

Division 3—Subject-matter, other than works, in which

copyright subsists

89 Sound recordings in which copyright subsists

(1) Subject to this Act, copyright subsists in a sound recording of

which the maker was a qualified person at the time when the

recording was made.

(2) Without prejudice to the last preceding subsection, copyright

subsists, subject to this Act, in a sound recording if the recording

was made in Australia.

(3) Without prejudice to the last two preceding subsections, copyright

subsists, subject to this Act, in a published sound recording if the

first publication of the recording took place in Australia.

90 Cinematograph films in which copyright subsists

(1) Subject to this Act, copyright subsists in a cinematograph film of

which the maker was a qualified person for the whole or a

substantial part of the period during which the film was made.

(2) Without prejudice to the last preceding subsection, copyright

subsists, subject to this Act, in a cinematograph film if the film was

made in Australia.

(3) Without prejudice to the last two preceding subsections, copyright

subsists, subject to this Act, in a published cinematograph film if

the first publication of the film took place in Australia.

91 Television broadcasts and sound broadcasts in which copyright

subsists

Subject to this Act, copyright subsists in a television broadcast or

sound broadcast made from a place in Australia:

(a) under the authority of a licence or a class licence under the

Broadcasting Services Act 1992; or

(b) by the Australian Broadcasting Corporation or the Special

Broadcasting Service Corporation.

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Copyright in subject-matter other than works Part IV

Subject-matter, other than works, in which copyright subsists Division 3

Section 92

92 Published editions of works in which copyright subsists

(1) Subject to this Act, copyright subsists in a published edition of a

literary, dramatic, musical or artistic work, or of 2 or more literary,

dramatic, musical or artistic works, where:

(a) the first publication of the edition took place in Australia; or

(b) the publisher of the edition was a qualified person at the date

of the first publication of the edition.

(2) The last preceding subsection does not apply to an edition that

reproduces a previous edition of the same work or works.

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Part IV Copyright in subject-matter other than works

Division 4 Duration of copyright in subject-matter other than works

Section 93

Division 4—Duration of copyright in subject-matter other

than works

93 Duration of copyright in sound recordings

Copyright subsisting in a sound recording by virtue of this Part

continues to subsist until the end of 70 years after the end of the

calendar year in which the recording is first published.

94 Duration of copyright in cinematograph films

(1) Copyright subsisting in a cinematograph film by virtue of

subsection 90(1) or (2) continues to subsist until the film is

published and, after the publication of the film, until the end of 70

years after the end of the calendar year in which the film was first

published.

(2) Copyright subsisting in a cinematograph film by virtue only of

subsection 90(3) continues to subsist until the end of 70 years after

the end of the calendar year in which the film was first published.

95 Duration of copyright in television broadcasts and sound

broadcasts

(1) Copyright subsisting in a television broadcast or sound broadcast

by virtue of this Part continues to subsist until the expiration of 50

years after the expiration of the calendar year in which the

broadcast was made.

(2) In so far as a television broadcast or sound broadcast is a repetition

(whether the first or a subsequent repetition) of a previous

television broadcast or sound broadcast to which section 91

applies, and is made by broadcasting visual images or sounds

embodied in any article or thing:

(a) if it is made before the expiration of the period of 50 years

after the expiration of the calendar year in which the previous

broadcast was made—any copyright subsisting in it expires

at the expiration of that period; and

(b) if it is made after the expiration of that period—copyright

does not subsist in it by virtue of this Part.

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Duration of copyright in subject-matter other than works Division 4

Section 96

96 Duration of copyright in published editions of works

Copyright subsisting in a published edition of a work or works

by virtue of this Part continues to subsist until the expiration of 25

years after the expiration of the calendar year in which the edition

was first published.

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Part IV Copyright in subject-matter other than works

Division 5 Ownership of copyright in subject-matter other than works

Section 97

Division 5—Ownership of copyright in subject-matter

other than works

Subdivision A—Ownership of copyright in subject-matter

other than works

97 Ownership of copyright in sound recordings

(1) This section has effect subject to Parts VII and X.

(2) Subject to subsection (3), the maker of a sound recording is the

owner of any copyright subsisting in the recording by virtue of this

Part.

(2A) If there is more than one owner of the copyright in a sound

recording of a live performance, the owners own the copyright as

tenants in common in equal shares.

(3) Where:

(a) a person makes, for valuable consideration, an agreement

with another person for the making of a sound recording by

the other person; and

(b) the recording is made in pursuance of the agreement;

the first-mentioned person is, in the absence of any agreement to

the contrary, the owner of any copyright subsisting in the recording

by virtue of this Part.

98 Ownership of copyright in cinematograph films

(1) This section has effect subject to Parts VII and X.

(2) Subject to the next succeeding subsection, the maker of a

cinematograph film is the owner of any copyright subsisting in the

film by virtue of this Part.

(3) Where:

(a) a person makes, for valuable consideration, an agreement

with another person for the making of a cinematograph film

by the other person; and

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Ownership of copyright in subject-matter other than works Division 5

Section 99

(b) the film is made in pursuance of the agreement;

the first-mentioned person is, in the absence of any agreement to

the contrary, the owner of any copyright subsisting in the film by

virtue of this Part.

(4) If the film is not a commissioned film, then the reference in

subsection (2) to the maker of the film includes a reference to each

director of the film.

(5) If a director directed the film under the terms of his or her

employment under a contract of service or apprenticeship with

another person (the employer), then, in the absence of any

agreement to the contrary, the employer is to be substituted for the

director for the purposes of subsection (4).

(6) If a person becomes an owner of the copyright:

(a) because of the operation of subsection (4); or

(b) because of the operation of subsections (4) and (5);

then the person becomes the owner of the copyright only so far as

the copyright consists of the right to include the film in a

retransmission of a free-to-air broadcast.

(7) In this section:

commissioned film means a film made as mentioned in

paragraphs (3)(a) and (b).

director has the same meaning as in Part IX.

retransmission means a retransmission (as defined in section 10)

to which Part VC applies.

99 Ownership of copyright in television broadcasts and sound

broadcasts

Subject to Parts VII and X, the maker of a television broadcast or

sound broadcast is the owner of any copyright subsisting in the

broadcast.

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Part IV Copyright in subject-matter other than works

Division 5 Ownership of copyright in subject-matter other than works

Section 100

100 Ownership of copyright in published editions of works

Subject to Parts VII and X, the publisher of an edition of a work or

works is the owner of any copyright subsisting in the edition by

virtue of this Part.

Subdivision B—Specific provisions relating to the ownership of

copyright in pre-commencement sound recordings of

live performances

100AA Application

This Subdivision applies to a sound recording of a live

performance if:

(a) copyright subsists in the recording on the day on which this

section commences; and

(b) at least one person would become a maker of the recording

under paragraph 100AD(1)(b) or subsection 100AD(2).

100AB Definitions

In this Subdivision:

former owner of the copyright in a sound recording of a live

performance means a person mentioned in paragraph 100AD(1)(a).

new owner of the copyright in a sound recording of a live

performance means the following people:

(a) a person who becomes a maker of a sound recording under

paragraph 100AD(1)(b);

(b) if subsection 100AD(2) applies—an employer who becomes

a maker of a sound recording under that subsection.

Note: Other expressions used in this Subdivision are defined in section 84.

100AC Application of sections 100AD and 100AE

Sections 100AD and 100AE have effect subject to Parts VII and X.

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Copyright in subject-matter other than works Part IV

Ownership of copyright in subject-matter other than works Division 5

Section 100AD

100AD Makers of pre-commencement sound recordings of live

performances

(1) For the purpose of section 100AE, the makers of a sound recording

of a live performance are:

(a) the person or persons who, immediately before the

commencement of this section, owned the copyright

subsisting in the recording; and

(b) the performer or performers who performed in the

performance (other than a performer who is already covered

by paragraph (a)).

Employer may be a maker of the sound recording

(2) If:

(a) a sound recording of a live performance was made; and

(b) a performer performed in that performance under the terms

of his or her employment by another person (the employer)

under a contract of service or apprenticeship;

then, for the purposes of paragraph (1)(b), the employer is taken to

be a maker instead of that performer.

(3) Subsection (2) may be excluded or modified by an agreement

(whether made before or after the live performance) between the

performer and the employer.

100AE Ownership of pre-commencement copyright in sound

recordings of live performances

Ownership of the copyright

(1) On and after the day on which this section commences, all makers

of a sound recording of a live performance are owners of any

copyright subsisting in the recording by virtue of this Part.

Division of the ownership of the copyright

(2) The former owners of the copyright and the new owners of the

copyright each own half of the copyright as tenants in common in 2

equal shares.

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Part IV Copyright in subject-matter other than works

Division 5 Ownership of copyright in subject-matter other than works

Section 100AF

(3) The former owners own their half of the copyright in the same

proportions as the whole copyright was owned by them

immediately before the commencement of this section.

(4) The new owners own their half of the copyright as tenants in

common in equal shares.

(5) Subsections (3) and (4) do not limit section 196.

(6) Subsection (3) does not otherwise affect the terms on which the

former owners own their half of the copyright.

Copyright to devolve if a new owner is not alive

(7) If a new owner is not alive on the day on which this section

commences, then, for the purposes of subsections (2) and (4), that

owner is replaced by the person to whom the copyright would have

devolved if the new owner had owned the copyright immediately

before his or her death. If the copyright would have devolved to

more than one person, those persons are to be treated as a single

new owner for the purposes of subsections (2) and (4).

100AF Former owners may continue to do any act in relation to the

copyright

(1) On and after the day on which this section commences, a former

owner of the copyright in a sound recording of a live performance

may:

(a) do an act comprised in the copyright; or

(b) do any other act in relation to the copyright;

as if each new owner of the copyright had granted a licence or

permission (however described) to the former owner to do the act.

Note: However, the former owner may still need to obtain the consent of other former owners of the copyright before doing the act.

(2) Subsection (1) applies to:

(a) the former owner‘s licensees and successors in title; and

(b) any persons who are authorised by the former owner; and

(c) any persons who are authorised by the former owner‘s

licensees or successors in title;

in the same way as it applies to the former owner.

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Ownership of copyright in subject-matter other than works Division 5

Section 100AG

(3) Subsections (1) and (2) may be excluded or modified by an

agreement (whether made before or after this section commences)

between the former owner and a new owner.

100AG Actions by new owners of copyright

If a new owner of the copyright in a sound recording of a live

performance brings an action under this Act in respect of the

copyright, the new owner is not entitled to the remedies listed in

the table.

Actions under this Act

Item In this case... the new owner is not entitled to:

1 the action is for an infringement of

the copyright under section 115

(a) damages (other than additional

damages); or

(b) an account of profits

2 the action is for conversion or

detention under section 116

(a) damages (other than additional

damages); or

(b) an account of profits; or

(c) any other pecuniary remedy

(other than costs); or

(d) delivery up of an infringing copy

2A the action is brought under

section 116AN, 116AO or 116AP

(a) damages (other than additional

damages); or

(b) an account of profits; or

(c) destruction or delivery up of a

circumvention device

3 the action is brought under

section 116B or 116C

(a) damages (other than additional

damages); or

(b) an account of profits

100AH References to the owner of the copyright in a sound

recording

A new owner of the copyright in a sound recording of a live

performance is taken not to be the owner of the copyright for the

purposes of the following provisions:

(a) sections 107, 108 and 109 (in Part IV);

(b) sections 119 and 133 (in Part V);

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Part IV Copyright in subject-matter other than works

Division 5 Ownership of copyright in subject-matter other than works

Section 100AH

(c) the definitions of licence and licensor in subsection 136(1),

and sections 150, 151, 152, 153E, 153F, 153G, 159 and 163A

(in Part VI);

(d) section 183 (in Part VII).

Note: A new owner of the copyright in a sound recording of a live performance is not a relevant right holder under section 135A, nor a relevant copyright owner under section 135ZB, 135ZZI or 135ZZZF.

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Copyright in subject-matter other than works Part IV

Infringement of copyright in subject-matter other than works Division 6

Section 100A

Division 6—Infringement of copyright in subject-matter

other than works

100A Interpretation

In this Division, audio-visual item means a sound recording, a

cinematograph film, a sound broadcast or a television broadcast.

101 Infringement by doing acts comprised in copyright

(1) Subject to this Act, a copyright subsisting by virtue of this Part is

infringed by a person who, not being the owner of the copyright,

and without the licence of the owner of the copyright, does in

Australia, or authorizes the doing in Australia of, any act

comprised in the copyright.

(1A) In determining, for the purposes of subsection (1), whether or not a

person has authorised the doing in Australia of any act comprised

in a copyright subsisting by virtue of this Part without the licence

of the owner of the copyright, the matters that must be taken into

account include the following:

(a) the extent (if any) of the person‘s power to prevent the doing

of the act concerned;

(b) the nature of any relationship existing between the person

and the person who did the act concerned;

(c) whether the person took any other reasonable steps to prevent

or avoid the doing of the act, including whether the person

complied with any relevant industry codes of practice.

(2) The next two succeeding sections do not affect the generality of the

last preceding subsection.

(3) Subsection (1) applies in relation to an act done in relation to a

sound recording whether the act is done by directly or indirectly

making use of a record embodying the recording.

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Part IV Copyright in subject-matter other than works

Division 6 Infringement of copyright in subject-matter other than works

Section 102

(4) Subsection (1) applies in relation to an act done in relation to a

television broadcast or a sound broadcast whether the act is done

by the reception of the broadcast or by making use of any article or

thing in which the visual images and sounds comprised in the

broadcast have been embodied.

102 Infringement by importation for sale or hire

(1) Subject to sections 112A, 112C, 112D and 112DA, a copyright

subsisting by virtue of this Part is infringed by a person who,

without the licence of the owner of the copyright, imports an article

into Australia for the purpose of:

(a) selling, letting for hire, or by way of trade offering or

exposing for sale or hire, the article;

(b) distributing the article:

(i) for the purpose of trade; or

(ii) for any other purpose to an extent that will affect

prejudicially the owner of the copyright; or

(c) by way of trade exhibiting the article in public;

if the importer knew, or ought reasonably to have known, that the

making of the article would, if the article had been made in

Australia by the importer, have constituted an infringement of the

copyright.

(2) In relation to an accessory to an article that is or includes a copy of

subject-matter in which copyright subsists by virtue of this Part,

being a copy that was made without the licence of the owner of the

copyright in the country in which the copy was made,

subsection (1) has effect as if the words ―the importer knew, or

ought reasonably to have known, that‖ were omitted.

103 Infringement by sale and other dealings

(1) Subject to sections 112A, 112C, 112D and 112DA, a copyright

subsisting by virtue of this Part is infringed by a person who, in

Australia, and without the licence of the owner of the copyright:

(a) sells, lets for hire, or by way of trade offers or exposes for

sale or hire, an article; or

(b) by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the

making of the article constituted an infringement of the copyright

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Infringement of copyright in subject-matter other than works Division 6

Section 103A

or, in the case of an imported article, would, if the article had been

made in Australia by the importer, have constituted an

infringement of the copyright.

(2) For the purposes of the last preceding subsection, the distribution

of any articles:

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially

the owner of the copyright concerned;

shall be taken to be the sale of those articles.

(3) In this section:

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

103A Fair dealing for purpose of criticism or review

A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

criticism or review, whether of the first-mentioned audio-visual

item, another audio-visual item or a work, and a sufficient

acknowledgement of the first-mentioned audio-visual item is made.

103AA Fair dealing for purpose of parody or satire

A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

parody or satire.

103B Fair dealing for purpose of reporting news

(1) A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if:

(a) it is for the purpose of, or is associated with, the reporting of

news in a newspaper, magazine or similar periodical and a

sufficient acknowledgement of the first-mentioned

audio-visual item is made; or

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Part IV Copyright in subject-matter other than works

Division 6 Infringement of copyright in subject-matter other than works

Section 103C

(b) it is for the purpose of, or is associated with, the reporting of

news by means of a communication or in a cinematograph

film.

103C Fair dealing for purpose of research or study

(1) A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

research or study.

(2) For the purposes of this Act, the matters to which regard shall be

had in determining whether a dealing with an audio-visual item

constitutes a fair dealing for the purpose of research or study

include:

(a) the purpose and character of the dealing;

(b) the nature of the audio-visual item;

(c) the possibility of obtaining the audio-visual item within a

reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or

value of, the audio-visual item; and

(e) in a case where part only of the audio-visual item is

copied—the amount and substantiality of the part copied

taken in relation to the whole item.

104 Acts done for purposes of judicial proceeding

A copyright subsisting by virtue of this Part is not infringed by

anything done:

(a) for the purpose of a judicial proceeding or a report of a

judicial proceeding; or

(b) for the purpose of seeking professional advice from:

(i) a legal practitioner; or

(ii) a person registered as a patent attorney under the

Patents Act 1990; or

(iii) a person registered as a trade marks attorney under the

Trade Marks Act 1995; or

(c) for the purpose of, or in the course of, the giving of

professional advice by:

(i) a legal practitioner; or

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Infringement of copyright in subject-matter other than works Division 6

Section 104A

(ii) a person registered as a patent attorney under the

Patents Act 1990; or

(iii) a person registered as a trade marks attorney under the

Trade Marks Act 1995.

104A Acts done by Parliamentary libraries for members of

Parliament

A copyright subsisting by virtue of this Part is not infringed by

anything done, for the sole purpose of assisting a person who is a

member of a Parliament in the performance of the person‘s duties

as such a member, by an authorized officer of a library, being a

library the principal purpose of which is to provide library services

for members of that Parliament.

104B Infringing copies made on machines installed in libraries and

archives

If:

(a) a person makes an infringing copy of, or of part of, an

audio-visual item or a published edition of a work on a

machine (including a computer), being a machine installed

by or with the approval of the body administering a library or

archives on the premises of the library or archives, or outside

those premises for the convenience of persons using the

library or archives; and

(b) there is affixed to, or in close proximity to, the machine, in a

place readily visible to persons using the machine, a notice of

the prescribed dimensions and in accordance with the

prescribed form;

neither the body administering the library or archives, nor the

officer in charge of the library or archives, is taken to have

authorised the making of the infringing copy merely because the

copy was made on that machine.

105 Copyright in certain recordings not infringed by causing

recordings to be heard in public or broadcast

Copyright subsisting in a sound recording by virtue only of

subsection 89(3) is not infringed by the causing of the recording to

be heard in public or by the broadcasting of the recording.

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106 Causing sound recording to be heard at guest house or club

(1) Where a sound recording is caused to be heard in public:

(a) at premises where persons reside or sleep, as part of the

amenities provided exclusively for residents or inmates of the

premises or for those residents or inmates and their guests; or

(b) as part of the activities of, or for the benefit of, a registered

charity;

the act of causing the recording to be so heard does not constitute

an infringement of the copyright in the recording.

(2) The last preceding subsection does not apply:

(a) in relation to premises of a kind referred to in paragraph (a)

of that subsection, if a specific charge is made for admission

to the part of the premises where the recording is to be heard;

or

(b) in relation to a registered charity of a kind referred to in

paragraph (b) of that subsection, if a charge is made for

admission to the place where the recording is to be heard and

any of the proceeds of the charge are applied otherwise than

for the purposes of the registered charity.

(3) A reference in the last preceding subsection to a specific charge, or

a charge, made for admission includes a reference to a specific

charge, or a charge, made partly for admission and partly for other

purposes.

107 Making of a copy of the sound recording for purpose of

broadcasting

(1) Where the broadcasting by a person of a sound recording would

not (whether by reason of an assignment or licence or of the

operation of a provision of this Act) constitute an infringement of

the copyright in the recording but the making by the person of a

copy of the sound recording would, apart from this subsection,

constitute such an infringement, the copyright in the recording is

not infringed by the making by the person of a copy of the sound

recording in association with other matter solely for the purpose of

the broadcasting of the recording in association with the other

matter.

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(2) The last preceding subsection does not apply in relation to a copy

of a sound recording if the copy is used for a purpose other than:

(a) the broadcasting of the recording in circumstances that do not

(whether by reason of an assignment or licence or of the

operation of a provision of this Act) constitute an

infringement of the copyright in the recording; or

(b) the making of further copies of the sound recording for the

purpose of the broadcasting of the recording in such

circumstances.

(3) Subsection (1) does not apply in relation to a copy of a sound

recording where the copy is used for the purpose of the

broadcasting of the recording by a person who is not the maker of

the copy unless the maker has paid to the owner of the copyright in

the recording such amount as they agree or, in default of

agreement, has given an undertaking in writing to the owner to pay

to the owner such amount as is determined by the Copyright

Tribunal, on the application of either of them, to be equitable

remuneration to the owner for the making of the copy.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the recording and the

owner may recover that amount in a court of competent jurisdiction

from the person as a debt due to the owner.

(5) Subsection (1) does not apply in relation to a copy of a sound

recording unless, before the expiration of the period of 12 months

commencing on the day on which any of the copies made in

accordance with that subsection is first used for broadcasting the

recording in accordance with that subsection, or before the

expiration of such further period, if any, as is agreed between the

maker of the copy and the owner of the copyright in the recording,

all the copies made in accordance with that subsection are

destroyed or are transferred, with the consent of the

Director-General of the National Archives of Australia, to the care

(within the meaning of the Archives Act 1983) of the National

Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a copy of a sound

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recording unless he or she has certified that the recording is of an

exceptional documentary character.

(7) In this section:

broadcasting does not include simulcasting.

108 Copyright in published recording not infringed by public

performance if equitable remuneration paid

(1) The copyright in a sound recording that has been published is not

infringed by a person who causes the recording to be heard in

public if:

(a) the person has paid to the owner of the copyright in the

recording such amount as they agree or, in default of

agreement, has given an undertaking in writing to the owner

to pay to the owner such amount as is determined by the

Copyright Tribunal, on the application of either of them, to

be equitable remuneration to the owner for the causing of the

recording to be heard in public; and

(b) in the case of a recording that was first published outside

Australia—the recording has been published in Australia or

the prescribed period after the date of the first publication of

the recording has expired.

(2) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the recording and the

owner may recover that amount in a court of competent jurisdiction

from the person as a debt due to the owner.

(3) Regulations prescribing a period for the purposes of

paragraph (1)(b) may prescribe different periods in relation to

different classes of sound recordings.

109 Copyright in published sound recording not infringed by

broadcast in certain circumstances

(1) Subject to this section, the copyright in a published sound

recording is not infringed by the making of a broadcast (other than

a broadcast transmitted for a fee payable to the person who made

the broadcast) of that recording if:

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(a) where there is no order of the Tribunal in force under

section 152 applying to the maker of that broadcast in

relation to the time when that broadcast was made—the

maker of that broadcast has given an undertaking in writing

to the person who is the owner of the copyright in that

recording to pay to the owner such amounts (if any) as may

be specified in, or determined in accordance with, an order of

the Tribunal made under that section in respect of the

broadcasting by the maker, during a period within which that

broadcast was made, of published sound recordings in which

the copyrights are owned by that person and which include

that recording; or

(b) where there is an order of the Tribunal in force under that

section applying to the maker of that broadcast in relation to

the time when that broadcast was made:

(i) the copyright in that recording is owned by a person

who is specified in the order as one of the persons

among whom the amount specified in, or determined in

accordance with, the order is to be divided and the

maker of the broadcast makes payments to the person in

accordance with the order; or

(ii) the copyright in that recording is owned by a person

who is not so specified in the order.

(2) The last preceding subsection does not apply in relation to a

broadcast of a sound recording if the broadcast was made in

accordance with an agreement between the maker of the broadcast

and the owner of the copyright in the recording.

(3) Subsection (1) does not apply in relation to a broadcast of a sound

recording that has not been published in Australia if the broadcast

was made before the expiration of the prescribed period after the

date of the first publication of the recording.

(4) Regulations prescribing a period for the purposes of the last

preceding subsection may prescribe different periods in relation to

different classes of sound recordings.

(5) Subsection (1) does not apply in relation to a broadcast of a sound

recording that has not been published in Australia if:

(a) the recording consists of, or includes, a musical work in

which copyright subsists;

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(b) the musical work was made for the purpose of being

performed, or has been performed, in association with a

dramatic work or has been included in a cinematograph film;

and

(c) records of the musical work have not been supplied (whether

by sale or otherwise) to the public in Australia.

(6) For the purposes of paragraph (5)(c), a supplying of records of a

musical work shall be disregarded if the supplying was done

otherwise than by, or with the licence of, the owner of the

copyright in the work.

109A Copying sound recordings for private and domestic use

(1) This section applies if:

(a) the owner of a copy (the earlier copy) of a sound recording

makes another copy (the later copy) of the sound recording

using the earlier copy; and

(b) the sole purpose of making the later copy is the owner‘s

private and domestic use of the later copy with a device that:

(i) is a device that can be used to cause sound recordings to

be heard; and

(ii) he or she owns; and

(c) the earlier copy was not made by downloading over the

internet a digital recording of a radio broadcast or similar

program; and

(d) the earlier copy is not an infringing copy of the sound

recording, a broadcast or a literary, dramatic or musical work

included in the sound recording.

(2) The making of the later copy does not infringe copyright in the

sound recording, or in a literary, dramatic or musical work or other

subject-matter included in the sound recording.

(3) Subsection (2) is taken never to have applied if the earlier copy or

the later copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise; or

(e) used for causing the sound recording to be heard in public; or

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(f) used for broadcasting the sound recording.

Note: If the earlier or later copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the later copy but also by a dealing with the later copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

earlier copy or the later copy by the lender to a member of the

lender‘s family or household for the member‘s private and

domestic use.

110 Provisions relating to cinematograph films

(1) Where the visual images forming part of a cinematograph film

consist wholly or principally of images that, at the time when they

were first embodied in an article or thing, were means of

communicating news, the copyright in the film is not infringed by

the causing of the film to be seen or heard, or to be both seen and

heard, in public after the expiration of 50 years after the expiration

of the calendar year in which the principal events depicted in the

film occurred.

(2) Where, by virtue of this Part, copyright has subsisted in a

cinematograph film, a person who, after that copyright has expired,

causes the film to be seen or heard, or to be seen and heard, in

public does not, by so doing, infringe any copyright subsisting by

virtue of Part III in a literary, dramatic, musical or artistic work.

(3) Where the sounds that are embodied in a sound-track associated

with the visual images forming part of a cinematograph film are

also embodied in a record, other than such a sound-track or a

record derived directly or indirectly from such a sound-track, the

copyright in the cinematograph film is not infringed by any use

made of that record.

110AA Copying cinematograph film in different format for private

use

(1) This section applies if:

(a) the owner of videotape embodying a cinematograph film in

analog form makes a copy (the main copy) of the film in

electronic form for his or her private and domestic use

instead of the videotape; and

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(b) the videotape itself is not an infringing copy of the film or of

a broadcast, sound recording, work or published edition of a

work; and

(c) at the time the owner makes the main copy, he or she has not

made, and is not making, another copy that embodies the film

in an electronic form substantially identical to the electronic

form in which the film is embodied in the main copy.

For this purpose, disregard a temporary copy of the film

incidentally made as a necessary part of the technical process of

making the main copy.

(2) The making of the main copy is not an infringement of copyright in

the cinematograph film or in a work or other subject-matter

included in the film.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

main copy by the lender to a member of the lender‘s family or

household for the member‘s private and domestic use.

Disposal of videotape may make the main copy an infringing copy

(5) Subsection (2) is taken never to have applied if the owner of the

videotape disposes of it to another person.

Status of temporary copy

(6) If subsection (2) applies to the making of the main copy only as a

result of disregarding the incidental making of a temporary copy of

the film as a necessary part of the technical process of making the

main copy, then:

(a) if the temporary copy is destroyed at the first practicable time

during or after the making of the main copy—the making of

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the temporary copy does not infringe copyright in the film or

in any work or other subject-matter included in the film; or

(b) if the temporary copy is not destroyed at that time—the

making of the temporary copy is taken always to have

infringed copyright (if any) subsisting in the film and in any

work or other subject-matter included in the film.

110A Copying and communicating unpublished sound recordings

and cinematograph films in libraries or archives

Where, at a time more than 50 years after the time at which, or the

expiration of the period during which, a sound recording or

cinematograph film was made, copyright subsists in the sound

recording or cinematograph film but:

(a) the sound recording or cinematograph film has not been

published; and

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

cinematograph film, is kept in the collection of a library or

archives where it is, subject to any regulations governing that

collection, accessible to the public;

the copyright in the sound recording or cinematograph film and in

any work or other subject-matter included in the sound recording

or cinematograph film is not infringed:

(c) by the making of a copy or the communication of the sound

recording or cinematograph film by a person for the purpose

of research or study or with a view to publication; or

(d) by the making of a copy or the communication of the sound

recording or cinematograph film by, or on behalf of, the

officer in charge of the library or archives if the copy is

supplied or communicated to a person who satisfies the

officer that he or she requires the copy for the purpose of

research or study, or with a view to publication and that he or

she will not use it for any other purpose.

110B Copying and communicating sound recordings and

cinematograph films for preservation and other purposes

(1) Subject to subsection (3), where a copy of a sound recording, being

a sound recording that forms, or formed, part of the collection of a

library or archives, is made by or on behalf of the officer in charge

of the library or archives:

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(a) if the sound recording is held in the collection in the form of

a first record—for the purpose of preserving the record

against loss or deterioration or for the purpose of research

that is being, or is to be, carried out at the library or archives

in which the record is held or at another library or archives;

(b) if the sound recording is held in the collection in a published

form but has been damaged or has deteriorated—for the

purpose of replacing the sound recording; or

(c) if the sound recording has been held in the collection in a

published form but has been lost or stolen—for the purpose

of replacing the sound recording;

the making of the copy does not infringe copyright in the sound

recording or in any work or other subject-matter included in the

sound recording.

(2) Subject to subsection (3), where a copy of a cinematograph film,

being a cinematograph film that forms, or formed, part of the

collection of a library or archives, is made by or on behalf of the

officer in charge of the library or archives:

(a) if the cinematograph film is held in the collection in the form

of a first copy—for the purpose of preserving the copy

against loss or deterioration or for the purpose of research

that is being, or is to be, carried out at the library or archives

in which the copy is held or at another library or archives;

(b) if the cinematograph film is held in the collection in a

published form but has been damaged or has

deteriorated—for the purpose of replacing the cinematograph

film; or

(c) if the cinematograph film has been held in the collection in a

published form but has been lost or stolen—for the purpose

of replacing the cinematograph film;

the making of the copy does not infringe copyright in the

cinematograph film or in any work or other subject-matter included

in the cinematograph film.

(2A) The copyright in a sound recording or cinematograph film that

forms, or formed, part of the collection of a library or archives, or

in any work or other subject-matter included in such a sound

recording or film, is not infringed by the communication, by or on

behalf of the officer in charge of the library or archives, of a copy

of the sound recording or film made under subsection (1) or (2) to

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officers of the library or archives by making it available online to

be accessed through the use of a computer terminal installed within

the premises of the library or archives with the approval of the

body administering the library or archives.

(2B) If:

(a) a copy of a sound recording or a cinematograph film is made

by or on behalf of the officer in charge of a library or

archives under this section; and

(b) the copy is made for the purpose of research that is being, or

is to be, carried out at another library or archives;

the copyright in the sound recording or film, or in any work or

other subject-matter included in it, is not infringed by the

communication, by or on behalf of the officer in charge, of the

copy to the other library or archives by making it available online

to be accessed through the use of a computer terminal installed

within the premises of the other library or archives with the

approval of the body administering the other library or archives.

(3) Subsection (1) does not apply in relation to a sound recording, and

subsection (2) does not apply in relation to a cinematograph film,

held in a published form in the collection of a library or archives

unless an authorised officer of the library or archives has, after

reasonable investigation, made a declaration stating that he or she

is satisfied that a copy (not being a second-hand copy) of the sound

recording or cinematograph film, as the case may be, cannot be

obtained within a reasonable time at an ordinary commercial price.

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

(4) Where a copy of an unpublished sound recording or an

unpublished cinematograph film is made under subsection (1) or

(2) by or on behalf of the officer in charge of a library or archives

for the purpose of research that is being, or is to be, carried out at

another library or archives, the supply or communication of the

copy by or on behalf of the officer to the other library or archives

does not, for any purpose of this Act, constitute the publication of

the sound recording or cinematograph film or of any work or other

subject-matter included in the sound recording or cinematograph

film.

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110BA Making preservation copies of significant recordings and

films in key cultural institutions’ collections

(1) This section applies in relation to a sound recording or

cinematograph film held in the collection of a library or archives if:

(a) the body administering the library or archives:

(i) has, under a law of the Commonwealth or a State or

Territory, the function of developing and maintaining

the collection; or

(ii) is prescribed by the regulations for the purposes of this

subparagraph; and

(b) an authorized officer of the library or archives is satisfied that

the recording or film is of historical or cultural significance

to Australia.

First record, or unpublished record, embodying sound recording

(2) If the sound recording is held in the form of the first record, or an

unpublished record, embodying the recording, copyright in the

recording is not infringed by an authorized officer of the library or

archives making up to 3 copies of the recording from the record for

the purpose of preserving the recording against loss or

deterioration.

Published sound recording

(3) If the sound recording is held in published form, the copyright in

the recording is not infringed by an authorized officer of the library

or archives making up to 3 copies of the recording from the

published record for the purpose of preserving the recording

against loss or deterioration if the officer is satisfied that a copy of

the recording (not being a second-hand copy) cannot be obtained

within a reasonable time at an ordinary commercial price.

First copy, or unpublished copy, of film

(4) If the cinematograph film is held in the form of the first copy, or an

unpublished copy, of the film, copyright in the film is not infringed

by an authorized officer of the library or archives making up to 3

copies of the film from the first copy or unpublished copy for the

purpose of preserving the film against loss or deterioration.

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Published film

(5) If the cinematograph film is held in a published form, copyright in

the film is not infringed by an authorized officer of the library or

archives making up to 3 copies of the film from the published copy

held in the collection, for the purpose of preserving the film against

loss or deterioration, if the officer is satisfied that a copy of the

film (not being a second-hand copy) cannot be obtained within a

reasonable time at an ordinary commercial price.

Commercial availability of copy of recording or film

(6) For the purposes of subsections (3) and (5), in determining whether

a copy (not being a second-hand copy) cannot be obtained within a

reasonable time at an ordinary commercial price, the authorized

officer must take into account whether an electronic copy can be

obtained within a reasonable time at an ordinary commercial price.

Work or other subject-matter included in recording or film

(7) If under this section, copyright in the sound recording or

cinematograph film is not infringed by the making of a copy of the

recording or film, the making of that copy does not infringe

copyright in any work or other subject-matter included in the

recording or film.

Relationship with the rest of this Division

(8) This section does not limit any of the other provisions of this

Division that provide that an act (however described) does not

infringe copyright. Those other provisions do not limit this section.

110C Making of a copy of a sound recording or cinematograph film

for the purpose of simulcasting

(1) If the broadcasting of a sound recording or a cinematograph film

would not for any reason constitute an infringement of the

copyright in the recording or film, but the making of a copy of the

recording or film would, apart from this section, constitute an

infringement of the copyright, the copyright is not infringed by the

making of a copy of the recording or film if:

(a) the recording or film from which the copy is made is in

analog form; and

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(b) the copy is made solely for the purpose of simulcasting the

recording or film in digital form.

(2) Subsection (1) does not apply in relation to a copy of a recording

or film if the copy is used for a purpose other than:

(a) the simulcasting of the recording or film in circumstances

that do not for any reason constitute an infringement of the

copyright in the recording or film; or

(b) the making of further copies of the recording or film for the

purpose of simulcasting the recording or film in such

circumstances.

(3) Subsection (1) does not apply in relation to a copy of a recording

or film unless all copies of the recording or film made under that

subsection are destroyed on or before the relevant date specified in

the regulations.

(4) For the purposes of subsection (3), the regulations may specify

different dates in relation to different classes of sound recordings

or cinematograph films.

111 Recording broadcasts for replaying at more convenient time

(1) This section applies if a person makes a cinematograph film or

sound recording of a broadcast solely for private and domestic use

by watching or listening to the material broadcast at a time more

convenient than the time when the broadcast is made.

Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

Making the film or recording does not infringe copyright

(2) The making of the film or recording does not infringe copyright in

the broadcast or in any work or other subject-matter included in the

broadcast.

Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

(3) Subsection (2) is taken never to have applied if an article or thing

embodying the film or recording is:

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(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise; or

(e) used for causing the film or recording to be seen or heard in

public; or

(f) used for broadcasting the film or recording.

Note: If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

article or thing by the lender to a member of the lender‘s family or

household for the member‘s private and domestic use.

111A Temporary copy made in the course of communication

(1) A copyright subsisting under this Part is not infringed by making a

temporary copy of an audio-visual item as part of the technical

process of making or receiving a communication.

(2) Subsection (1) does not apply in relation to the making of a

temporary copy of an audio-visual item as part of the technical

process of making a communication if the making of the

communication is an infringement of copyright.

111B Temporary copy of subject-matter as part of a technical

process of use

(1) Subject to subsection (2), the copyright in a subject-matter is not

infringed by the making of a temporary copy of the subject-matter

if the temporary copy is incidentally made as a necessary part of a

technical process of using a copy of the subject-matter.

(2) Subsection (1) does not apply to:

(a) the making of a temporary copy of a subject-matter if the

temporary copy is made from:

(i) an infringing copy of the subject-matter; or

(ii) a copy of the subject-matter where the copy is made in

another country and would be an infringing copy of the

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subject-matter if the person who made the copy had

done so in Australia; or

(b) the making of a temporary copy of a subject-matter as a

necessary part of a technical process of using a copy of the

subject-matter if that use constitutes an infringement of the

copyright in the subject-matter.

(3) Subsection (1) does not apply to any subsequent use of a temporary

copy of a subject-matter other than as a part of the technical

process in which the temporary copy was made.

112 Reproductions of editions of work

The copyright in a published edition of a work or works is not

infringed by the making of a reproduction of the whole or a part of

that edition if that reproduction is made in the course of:

(a) where the edition contains one work only:

(i) a dealing with that work, being a dealing that does not,

by virtue of section 40, 41, 42, 43 or 44, infringe

copyright in that work; or

(ii) the making of a copy (including a copy for a person

with a print disability or a copy for a person with an

intellectual disability) of the whole or a part of that

work, being a copy the making of which does not, by

virtue of section 49, 50, 51A, 51B, 135ZG, 135ZJ,

135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ,

135ZR, 135ZS, 135ZT or 182A, infringe copyright in

that work; or

(b) where the edition contains more than one work:

(i) a dealing with one of those works or dealings with some

or all of those works, being a dealing that does not, or

dealings that do not, by virtue of section 40, 41, 42, 43

or 44, infringe copyright in that work or those works; or

(ii) the making of a copy (including a copy for a person

with a print disability or a copy for a person with an

intellectual disability) of the whole or a part of one of

those works or the making of copies (including copies

for persons with a print disability or copies for persons

with an intellectual disability) of the whole or parts of

some or all of those works, being a copy the making of

which does not, or copies the making of which do not,

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Section 112A

by virtue of section 49, 50, 51A, 51B, 135ZG, 135ZJ,

135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ,

135ZR, 135ZS, 135ZT or 182A, infringe copyright in

that work or in those works.

112A Importation and sale etc. of books

(1) The copyright in an overseas edition first published on or after the

commencing day, is not infringed by a person who, without the

licence of the owner of the copyright, imports a non-infringing

book into Australia for a purpose mentioned in

paragraph 102(1)(a), (b) or (c).

(2) Subject to this section, the copyright in:

(a) an overseas edition first published before the commencing

day; or

(b) a published edition of a work, being an edition first published

in Australia, whether before, on or after the commencing

day;

is not infringed by a person who, without the licence of the owner

of the copyright, imports a copy (in this subsection called the

imported copy) of a hardback or paperback version of a

non-infringing book into Australia for a purpose mentioned in

paragraph 102(1)(a), (b) or (c) if:

(c) the person had ordered in writing from the copyright owner,

or the owner‘s licensee or agent, one or more copies of that

version of the book (not being second-hand copies or more

copies than were needed to satisfy the person‘s reasonable

requirements); and

(d) when the person ordered the imported copy, the original

order mentioned in paragraph (c) had not been withdrawn or

cancelled by, or with the consent of, the person and:

(i) at least 7 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not notified the person in writing that the

original order would be filled within 90 days after it was

placed; or

(ii) at least 90 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not filled the order.

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Part IV Copyright in subject-matter other than works

Division 6 Infringement of copyright in subject-matter other than works

Section 112A

(3) The copyright in a published edition of a work (whether the edition

was first published before, on or after the commencing day) is not

infringed by a person who, without the licence of the owner of the

copyright, imports a single copy of a non-infringing book into

Australia if the importation is for the purpose of filling a written

order, or a verifiable telephone order, by a customer of the person

and:

(a) in the case of a written order, the order contains a statement,

signed by the customer; or

(b) in the case of a telephone order, the customer makes a

verifiable statement;

to the effect that the customer does not intend to use the book for a

purpose mentioned in paragraph 102(1)(a), (b) or (c).

(4) The copyright in a published edition of a work (whether the edition

was first published before, on or after the commencing day) is not

infringed by a person who, without the licence of the owner of the

copyright, imports 2 or more copies of a non-infringing book into

Australia if:

(a) the importation is for the purpose of filling a written order, or

a verifiable telephone order, placed with the person by or on

behalf of a library, other than a library conducted for the

profit (direct or indirect) of a person or organisation; and

(b) in the case of a written order—the order contains a statement,

signed by the person placing the order, to the effect that the

library does not intend to use any of the books for a purpose

mentioned in paragraph 102(1)(a), (b) or (c); and

(c) in the case of a telephone order—the person placing the order

makes a verifiable statement to the effect referred to in

paragraph (b); and

(d) the number of copies so imported is not more than the

number of copies so ordered.

(5) Without limiting the ways in which a telephone order under

subsection (3) or (4), or a statement under paragraph (3)(b) or

(4)(c) relating to such an order, may be verified, such an order or

statement is, for the purposes of this section, taken to be verifiable

if the person who takes the order, or to whom the statement is

made, makes a written note of the details of the order or statement

when, or immediately after, the order is placed, or the statement is

made, as the case may be.

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(6) Where:

(a) a book is imported into Australia for a purpose mentioned in

paragraph 102(1)(a), (b) or (c); and

(b) the importation does not, under this section, constitute an

infringement of copyright in a published edition of a work;

the use of the book for any such purpose does not constitute an

infringement of the copyright in the edition and subsection 103(1)

does not apply to the book.

(7) Subsection (2) does not apply to the importation of a copy of a

hardback version of a non-infringing book into Australia if the

copyright owner, or his or her licensee or agent, is able to supply in

Australia enough copies of a paperback version of the book to fill

any reasonable order.

(8) For the purposes of paragraph (2)(d), a copyright owner, licensee

or agent is not taken to have filled an order by a person for one or

more copies of a version of a book unless and until the copyright

owner, licensee or agent sends the copy, or all of the copies, as the

case requires, to the person.

(9) In this section:

book does not include:

(a) a book whose main content is one or more musical works,

with or without any related literary, dramatic or artistic work;

or

(b) a manual sold with computer software for use in connection

with that software; or

(c) a periodical publication.

commencing day means the day on which the Copyright

Amendment Act 1991 commences.

overseas edition means a published edition of a work, being an

edition:

(a) that was first published in a country other than Australia; and

(b) that was not published in Australia within 30 days after its

first publication in that other country.

Note: An edition of a work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).

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Part IV Copyright in subject-matter other than works

Division 6 Infringement of copyright in subject-matter other than works

Section 112AA

112AA Making preservation copies of significant published editions

in key cultural institutions’ collections

(1) This section applies in relation to a published edition of one or

more works held in the collection of a library or archives if:

(a) the body administering the library or archives:

(i) has, under a law of the Commonwealth or a State or

Territory, the function of developing and maintaining

the collection; or

(ii) is prescribed by the regulations for the purposes of this

subparagraph; and

(b) an authorized officer of the library or archives is satisfied that

the edition is of historical or cultural significance to

Australia.

Published editions

(2) The copyright in the published edition is not infringed by an

authorized officer of the library or archives making up to 3

facsimile copies of the edition from the copy held in the collection,

for the purpose of preserving the edition against loss or

deterioration, if the officer is satisfied that a copy or facsimile copy

of the edition (not being a second-hand copy) cannot be obtained

within a reasonable time at an ordinary commercial price.

(3) In determining whether a copy (not being a second-hand copy)

cannot be obtained within a reasonable time at an ordinary

commercial price, the authorized officer must take into account

whether an electronic copy of the edition can be obtained within a

reasonable time at an ordinary commercial price.

Works in published editions

(4) If, under this section, copyright in the published edition is not

infringed by the making of a facsimile copy of the edition, the

making of that copy does not infringe copyright in any of the

works in the published edition.

Relationship with the rest of this Division

(5) This section does not limit any of the other provisions of this

Division that provide that an act (however described) does not

infringe copyright. Those other provisions do not limit this section.

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Section 112B

112B Reproduction of writing on approved label for containers for

chemical product

The reproduction on a label on a container for a chemical product

of any writing appearing on an approved label is not an

infringement of any copyright subsisting under section 92 in

relation to that writing.

112C Copyright subsisting in accessories etc. to imported articles

(1) The copyright in:

(a) a published edition of a work a reproduction of which is on,

or embodied in, a non-infringing accessory to an article; or

(b) a cinematograph film a copy of which is a non-infringing

accessory to an article; or

(c) a sound recording a record of which is a non-infringing

accessory to an article;

is not infringed by importing the accessory with the article.

Note: See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

(2) Section 103 does not apply to:

(a) a reproduction of a published edition of a work, being a

reproduction that is on, or embodied in, a non-infringing

accessory to an article; or

(b) a copy of a cinematograph film, being a copy that is a

non-infringing accessory to an article; or

(c) a record embodying a sound recording, being a record that is

a non-infringing accessory to an article;

if the importation of the accessory is not an infringement of

copyright in the edition, film or recording, as the case may be.

(3) The definition of article in section 103 does not affect this section.

112D Import of non-infringing copy of a sound recording does not

infringe copyright in the sound recording

(1) The copyright in a sound recording is not infringed by a person

who:

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Part IV Copyright in subject-matter other than works

Division 6 Infringement of copyright in subject-matter other than works

Section 112DA

(a) imports into Australia a non-infringing copy of the sound

recording; or

(b) does an act described in section 103 involving an article that

is a non-infringing copy of the sound recording and has been

imported into Australia by anyone.

Note: In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non-infringing copy of the sound recording unless the defendant proves it is. See section 130A.

(2) This section applies to a copy of a sound recording only if, when

the copy is imported into Australia, the sound recording has been

published:

(a) in Australia; or

(b) in another country (the publication country) by or with the

consent of:

(i) the owner of the copyright or related right in the sound

recording in the publication country; or

(ii) the owner of the copyright or related right in the sound

recording in the country (the original recording

country) in which the sound recording was made, if the

law of the publication country did not provide for

copyright or a related right in sound recordings when

publication occurred; or

(iii) the maker of the sound recording, if neither the law of

the publication country nor the law of the original

recording country (whether those countries are different

or not) provided for copyright or a related right in sound

recordings when publication occurred.

Note: Subsection 29(6) deals with unauthorised publication.

(3) In subsection (2):

owner of the copyright or related right in the sound recording

means the owner at the time publication of the sound recording

occurred.

(4) The definition of article in section 103 does not affect this section.

112DA Importation and sale etc. of copies of electronic literary or

music items

(1) If, in relation to a published edition of a work:

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Section 112E

(a) the work is, or is part of, an electronic literary or music item;

and

(b) the edition has been published in Australia or a qualifying

country;

then the copyright in the published edition is not infringed by a

person who:

(c) imports into Australia an article that has embodied in it a

non-infringing copy of the electronic literary or music item;

or

(d) does an act mentioned in section 103 involving an article that

has embodied in it a non-infringing copy of the electronic

literary or music item and that has been imported into

Australia by anyone.

Note: Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

(2) The definition of article in section 103 does not affect this section.

112E Communication by use of certain facilities

A person (including a carrier or carriage service provider) who

provides facilities for making, or facilitating the making of, a

communication is not taken to have authorised any infringement of

copyright in an audio-visual item merely because another person

uses the facilities so provided to do something the right to do

which is included in the copyright.

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Part IV Copyright in subject-matter other than works

Division 7 Miscellaneous

Section 113

Division 7—Miscellaneous

113 Copyrights to subsist independently

(1) Subject to subsection 110(2), where copyright subsists in any

subject-matter by virtue of this Part, nothing in this Part shall be

taken to affect the operation of Part III in relation to any literary,

dramatic, musical or artistic work from which that subject-matter is

wholly or partly derived, and any copyright subsisting by virtue of

this Part is in addition to, and independent of, any copyright

subsisting by virtue of Part III.

(2) The subsistence of copyright under any provision of this Part does

not affect the operation of any other provision of this Part under

which copyright can subsist.

113A Agents may act on behalf of groups of performers

(1) This section applies in respect of all members of a group of

performers who have an interest in the copyright in a sound

recording of a live performance.

(2) All members of the group are taken to have granted a licence or

permission (however described) to a person:

(a) to do an act comprised in the copyright; or

(b) to do any other act in relation to the copyright;

if an agent of the group, acting within the scope of his or her actual

or apparent authority, has granted a licence or permission to the

person to do the act.

Note: The person may still need to obtain the licence or permission of other owners of the copyright before doing the act.

113B Consent to the use of a sound recording of a live performance

A person is taken to have been granted a licence or permission

(however described) by a performer to use a sound recording of a

live performance if:

(a) the performer has given his or her consent to recording the

performance for a particular purpose; and

(b) the recording is used for that purpose in accordance with the

terms of the consent.

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Miscellaneous Division 7

Section 113C

Note: The person may still need to obtain the consent of the other owners of the copyright in the sound recording of the live performance before using the sound recording.

113C Use of published sound recordings when owners cannot be

found etc.

(1) An owner (the first owner) of the copyright in a sound recording of

a live performance that is a published sound recording is taken to

have been granted a licence or permission (however described) by

another owner of the copyright to do an act comprised in the

copyright, or to do any other act in relation to the copyright, if:

(a) the first owner has entered into an agreement with another

person to do the act; and

(b) the first owner, after making reasonable inquiries, cannot

discover the identity or location of the other owner or a

person representing the other owner.

Note: The first owner may still need to obtain a licence or permission from any other owners of the copyright in the sound recording of the live performance.

(2) If the first owner does the act, then the first owner must hold the

other owner‘s share of any amount received in respect of it on trust

for 4 years after the day on which the agreement is entered into

(unless the amount is distributed to, or on behalf of, the other

owner before then).

(3) If during the 4 year period, the other owner is identified and

located, the first owner must distribute the amount held on trust to,

or on behalf of, the other owner. If at the end of the 4 year period,

the other owner remains unidentified or is not located, the first

owner may retain the amount.

(4) After initially making reasonable inquiries, the first owner is not

required to continue making reasonable inquiries during the 4 year

period.

(5) The other owner cannot prevent the first owner doing the act

comprised in the copyright during the term of the agreement if the

other owner is identified or located.

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Part V Remedies and offences

Division 1 Preliminary

Section 114

Part V—Remedies and offences

Division 1—Preliminary

114 Interpretation

(1) In this Part, action means a proceeding of a civil nature between

parties, and includes a counterclaim.

(2) In the application of this Part in relation to a counterclaim,

references to the plaintiff and to the defendant shall be read as

references to the defendant and to the plaintiff, respectively.

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Remedies and offences Part V

Actions by owner of copyright Division 2

Section 115

Division 2—Actions by owner of copyright

115 Actions for infringement

(1) Subject to this Act, the owner of a copyright may bring an action

for an infringement of the copyright.

(2) Subject to this Act, the relief that a court may grant in an action for

an infringement of copyright includes an injunction (subject to

such terms, if any, as the court thinks fit) and either damages or an

account of profits.

(3) Where, in an action for infringement of copyright, it is established

that an infringement was committed but it is also established that,

at the time of the infringement, the defendant was not aware, and

had no reasonable grounds for suspecting, that the act constituting

the infringement was an infringement of the copyright, the plaintiff

is not entitled under this section to any damages against the

defendant in respect of the infringement, but is entitled to an

account of profits in respect of the infringement whether any other

relief is granted under this section or not.

(4) Where, in an action under this section:

(a) an infringement of copyright is established; and

(b) the court is satisfied that it is proper to do so, having regard

to:

(i) the flagrancy of the infringement; and

(ia) the need to deter similar infringements of copyright; and

(ib) the conduct of the defendant after the act constituting

the infringement or, if relevant, after the defendant was

informed that the defendant had allegedly infringed the

plaintiff‘s copyright; and

(ii) whether the infringement involved the conversion of a

work or other subject-matter from hardcopy or analog

form into a digital or other electronic machine-readable

form; and

(iii) any benefit shown to have accrued to the defendant by

reason of the infringement; and

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Division 2 Actions by owner of copyright

Section 115

(iv) all other relevant matters;

the court may, in assessing damages for the infringement, award

such additional damages as it considers appropriate in the

circumstances.

Consideration for relief for electronic commercial infringement

(5) Subsection (6) applies to a court hearing an action for infringement

of copyright if the court is satisfied that:

(a) the infringement (the proved infringement) occurred

(whether as a result of the doing of an act comprised in the

copyright, the authorising of the doing of such an act or the

doing of another act); and

(b) the proved infringement involved a communication of a work

or other subject-matter to the public; and

(c) because the work or other subject-matter was communicated

to the public, it is likely that there were other infringements

(the likely infringements) of the copyright by the defendant

that the plaintiff did not prove in the action; and

(d) taken together, the proved infringement and likely

infringements were on a commercial scale.

(6) The court may have regard to the likelihood of the likely

infringements (as well as the proved infringement) in deciding

what relief to grant in the action.

(7) In determining for the purposes of paragraph (5)(d) whether, taken

together, the proved infringement and the likely infringements

were on a commercial scale, the following matters are to be taken

into account:

(a) the volume and value of any articles that:

(i) are infringing copies that constitute the proved

infringement; or

(ii) assuming the likely infringements actually occurred,

would be infringing copies constituting those

infringements;

(b) any other relevant matter.

(8) In subsection (7):

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

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Actions by owner of copyright Division 2

Section 116

116 Rights of owner of copyright in respect of infringing copies

(1) The owner of the copyright in a work or other subject-matter may

bring an action for conversion or detention in relation to:

(a) an infringing copy; or

(b) a device (including a circumvention device) used or intended

to be used for making infringing copies.

(1A) In an action for conversion or detention, a court may grant to the

owner of the copyright all or any of the remedies that are available

in such an action as if:

(a) the owner of the copyright had been the owner of the

infringing copy since the time the copy was made; or

(b) the owner of the copyright had been the owner of the device

since the time when it was used or intended to be used for

making infringing copies.

(1B) Any relief granted by a court in an action for conversion or

detention is in addition to any relief that the court may grant under

section 115.

(1C) A court is not to grant any relief to the owner of the copyright in an

action for conversion or detention if the relief that the court has

granted or proposes to grant under section 115 is, in the opinion of

the court, a sufficient remedy.

(1D) In deciding whether to grant relief in an action for conversion or

detention and in assessing the amount of damages payable, the

court may have regard to the following:

(a) the expenses incurred by the defendant, being a person who

marketed or otherwise dealt with the infringing copy, in

manufacturing or acquiring the infringing copy;

(b) whether the expenses were incurred before or after the

infringing copy was sold or otherwise disposed of by the

defendant;

(c) any other matter that the court considers relevant.

(1E) If the infringing copy is an article of which only part consists of

material that infringes copyright, the court, in deciding whether to

grant relief and in assessing the amount of damages payable, may

also have regard to the following:

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Part V Remedies and offences

Division 2 Actions by owner of copyright

Section 116AAA

(a) the importance to the market value of the article of the

material that infringes the copyright;

(b) the proportion the material that infringes copyright bears to

the article;

(c) the extent to which the material that infringes copyright may

be separated from the article.

(2) A plaintiff is not entitled by virtue of this section to any damages

or to any other pecuniary remedy, other than costs, if it is

established that, at the time of the conversion or detention:

(a) the defendant was not aware, and had no reasonable grounds

for suspecting, that copyright subsisted in the work or other

subject-matter to which the action relates;

(b) where the articles converted or detained were infringing

copies—the defendant believed, and had reasonable grounds

for believing, that they were not infringing copies; or

(c) where an article converted or detained was a device used or

intended to be used for making articles—the defendant

believed, and had reasonable grounds for believing, that the

articles so made or intended to be made were not or would

not be, as the case may be, infringing copies.

116AAA Compensation for acquisition of property

(1) This section applies if, apart from this section, subsections 22(3A)

and 97(2) and (2A) would result in the acquisition of property from

a maker of a sound recording of a live performance by a performer

in the performance otherwise than on just terms.

(2) There is payable to the maker by the performer such amount of

compensation as is agreed on between those persons, or, failing

agreement, as is determined by a court of competent jurisdiction.

(3) Any damages or compensation recovered or other remedy given in

a proceeding that is commenced otherwise than under this section

is to be taken into account in assessing compensation payable in a

proceeding that is commenced under this section and that arises out

of the same event or transaction.

(4) Any compensation payable in a proceeding that is commenced

under this section is to be taken into account in assessing any

damages or compensation or other remedy to be awarded in a

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Actions by owner of copyright Division 2

Section 116AAA

proceeding that is commenced otherwise than under this section

and that arises out of the same event or transaction.

(5) In this section:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

maker of a sound recording of a live performance means a person

mentioned in paragraph 22(3A)(a).

performer in a live performance means the following people:

(a) a person who becomes a maker of a sound recording under

paragraph 22(3A)(b);

(b) if subsection 22(3B) applies—an employer who becomes a

maker of a sound recording under that subsection.

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Part V Remedies and offences

Division 2AA Limitation on remedies available against carriage service providers

Section 116AA

Division 2AA—Limitation on remedies available against

carriage service providers

Subdivision A—Preliminary

116AA Purpose of this Division

(1) The purpose of this Division is to limit the remedies that are

available against carriage service providers for infringements of

copyright that relate to the carrying out of certain online activities

by carriage service providers. A carriage service provider must

satisfy certain conditions to take advantage of the limitations.

Note 1: Subdivision B contains a description of the relevant activities.

Note 2: Subdivision C contains details of the limitations on remedies.

Note 3: Subdivision D sets out the conditions that must be satisfied for a carriage service provider to take advantage of the limitations. The limitations are automatic if a carriage service provider complies with the relevant conditions.

(2) This Division does not limit the operation of provisions of this Act

outside this Division in relation to determining whether copyright

has been infringed.

116AB Definitions

In this Division:

caching means the reproduction of copyright material on a system

or network controlled or operated by or for a carriage service

provider in response to an action by a user in order to facilitate

efficient access to that material by that user or other users.

copyright material means:

(a) a work; or

(b) a published edition of a work; or

(c) a sound recording; or

(d) a cinematograph film; or

(e) a television or sound broadcast; or

(f) a work that is included in a sound recording, a cinematograph

film or a television or sound broadcast.

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Limitation on remedies available against carriage service providers Division 2AA

Section 116AC

industry code means:

(a) an industry code that:

(i) meets any prescribed requirements; and

(ii) is registered under Part 6 of the Telecommunications Act

1997; or

(b) an industry code developed in accordance with the

regulations.

Subdivision B—Relevant activities

116AC Category A activity

A carriage service provider carries out a Category A activity by

providing facilities or services for transmitting, routing or

providing connections for copyright material, or the intermediate

and transient storage of copyright material in the course of

transmission, routing or provision of connections.

116AD Category B activity

A carriage service provider carries out a Category B activity by

caching copyright material through an automatic process. The

carriage service provider must not manually select the copyright

material for caching.

116AE Category C activity

A carriage service provider carries out a Category C activity by

storing, at the direction of a user, copyright material on a system or

network controlled or operated by or for the carriage service

provider.

116AF Category D activity

A carriage service provider carries out a Category D activity by

referring users to an online location using information location

tools or technology.

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Part V Remedies and offences

Division 2AA Limitation on remedies available against carriage service providers

Section 116AG

Subdivision C—Limitations on remedies

116AG Limitations on remedies

Relevant conditions must be satisfied

(1) A carriage service provider must satisfy the relevant conditions set

out in Subdivision D before the limitations in this section apply.

General limitations

(2) For infringements of copyright that occur in the course of carrying

out any of the categories of activities set out in Subdivision B, a

court must not grant relief against a carriage service provider that

consists of:

(a) damages or an account of profits; or

(b) additional damages; or

(c) other monetary relief.

Category specific limitations

(3) For an infringement of copyright that occurs in the course of the

carrying out of a Category A activity, the relief that a court may

grant against a carriage service provider is limited to one or more

of the following orders:

(a) an order requiring the carriage service provider to take

reasonable steps to disable access to an online location

outside Australia;

(b) an order requiring the carriage service provider to terminate a

specified account.

(4) For an infringement of copyright that occurs in the course of the

carrying out of a Category B, C or D activity, the relief that a court

may grant against a carriage service provider is limited to one or

more of the following orders:

(a) an order requiring the carriage service provider to remove or

disable access to infringing copyright material, or to a

reference to infringing copyright material;

(b) an order requiring the carriage service provider to terminate a

specified account;

(c) some other less burdensome but comparably effective

non-monetary order if necessary.

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Relevant matters

(5) In deciding whether to make an order of a kind referred to in

subsection (3) or (4), a court must have regard to:

(a) the harm that has been caused to the owner or exclusive

licensee of the copyright; and

(b) the burden that the making of the order will place on the

carriage service provider; and

(c) the technical feasibility of complying with the order; and

(d) the effectiveness of the order; and

(e) whether some other comparably effective order would be less

burdensome.

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

Subdivision D—Conditions

116AH Conditions

(1) This table sets out the conditions for each of the categories of

activities.

Conditions

Item Activity Conditions

All categories 1. The carriage service provider must adopt and

reasonably implement a policy that provides for

termination, in appropriate circumstances, of the

accounts of repeat infringers.

2. If there is a relevant industry code in force—the

carriage service provider must comply with the relevant

provisions of that code relating to accommodating and

not interfering with standard technical measures used to

protect and identify copyright material.

Category A 1. Any transmission of copyright material in carrying out

this activity must be initiated by or at the direction of a

person other than the carriage service provider.

2. The carriage service provider must not make

substantive modifications to copyright material

transmitted. This does not apply to modifications made

as part of a technical process.

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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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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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Conditions

Item Activity Conditions

5 Category D 1. The carriage service provider must not receive a

financial benefit that is directly attributable to the

infringing activity if the carriage service provider has

the right and ability to control the activity.

2. The carriage service provider must expeditiously

remove or disable access to a reference residing on its

system or network upon receipt of a notice in the

prescribed form that the copyright material to which it

refers has been found to be infringing by a court.

2A. The carriage service provider must act expeditiously to

remove or disable access to a reference residing on its

system or network if the carriage service provider:

(a) becomes aware that the copyright material to

which it refers is infringing; or

(b) becomes aware of facts or circumstances that

make it apparent that the copyright material to

which it refers is likely to be infringing.

The carriage service provider does not, in an action

relating to this Division, bear any onus of proving a

matter referred to in paragraph (a) or (b).

3. The carriage service provider must comply with the

prescribed procedure in relation to removing or

disabling a reference residing on its system or network.

(2) Nothing in the conditions is to be taken to require a carriage

service provider to monitor its service or to seek facts to indicate

infringing activity except to the extent required by a standard

technical measure mentioned in condition 2 in table item 1 in the

table in subsection (1).

(3) In deciding, for the purposes of condition 1 in table items 4 and 5

in the table in subsection (1), whether a financial benefit is

otherwise directly attributable to the infringing activity referred to

in that condition, a court must have regard to:

(a) industry practice in relation to the charging of services by

carriage service providers, including charging based on level

of activity; and

(b) whether the financial benefit was greater than the benefit that

would usually result from charging in accordance with

accepted industry practice.

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

(4) An act done by a carriage service provider in complying with the

prescribed procedure referred to in condition 3 in table item 4 in

the table in subsection (1) does not constitute a failure to satisfy

condition 2A in that item.

116AI Evidence of compliance with conditions

If a carriage service provider, in an action relating to this Division,

points to evidence, as prescribed, that suggests that the carriage

service provider has complied with a condition, the court must

presume, in the absence of evidence to the contrary, that the

carriage service provider has complied with the condition.

Subdivision E—Regulations

116AJ Regulations

(1) The regulations may provide that a carriage service provider is not

liable for damages or any other civil remedy as a result of action

taken in good faith to comply with a condition.

(2) The regulations may provide civil remedies for conduct by relevant

parties in relation to conditions.

(3) The regulations may prescribe offences for conduct by persons

issuing notices under the regulations, and prescribe penalties for

offences against those regulations. The penalties must not exceed

50 penalty units.

Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalty stated above.

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rights management information

Section 116AK

Division 2A—Actions in relation to technological

protection measures and electronic rights

management information

Subdivision A—Technological protection measures

116AK Definitions

In this Subdivision, computer program has the same meaning as in

section 47AB.

116AL Interaction of this Subdivision with Part VAA

This Subdivision does not apply to encoded broadcasts (within the

meaning of Part VAA).

116AM Geographical application

(1) This Subdivision applies to acts done in Australia.

(2) This section does not, by implication, affect the interpretation of

any other provision of this Act.

116AN Circumventing an access control technological protection

measure

(1) An owner or exclusive licensee of the copyright in a work or other

subject-matter may bring an action against a person if:

(a) the work or other subject-matter is protected by an access

control technological protection measure; and

(b) the person does an act that results in the circumvention of the

access control technological protection measure; and

(c) the person knows, or ought reasonably to know, that the act

would have that result.

Exception—permission

(2) Subsection (1) does not apply to the person if the person has the

permission of the copyright owner or exclusive licensee to

circumvent the access control technological protection measure.

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Exception—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable:

(i) the person; or

(ii) if the person is a body corporate—an employee of the

person;

to do an act; and

(b) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(c) the person or employee is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

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(ii) employed, trained or experienced in the field of

encryption technology; and

(d) the person or employee:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Exception—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Exception—online privacy

(6) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy; and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

disabling an undisclosed capability to collect or

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disseminate personally identifying information about

the online activities of a natural person; and

(iv) will not affect the ability of the person or any other

person to gain access to the work or other subject-matter

or any other work or subject-matter.

Exception—law enforcement and national security

(7) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Exception—libraries etc.

(8) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the person is:

(i) a library (other than a library that is conducted for the

profit, direct or indirect, of an individual or individuals);

or

(ii) a body mentioned in paragraph (a) of the definition of

archives in subsection 10(1), or in subsection 10(4); or

(iii) an educational institution; and

(c) the act will be done for the sole purpose of making an

acquisition decision in relation to the work or other

subject-matter; and

(d) the work or other subject-matter will not be otherwise

available to the person when the act is done.

Note: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Exception—prescribed acts

(9) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

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(b) the act will not infringe the copyright in a work or other

subject-matter; and

(c) the doing of the act by the person is prescribed by the

regulations.

Note: For the making of regulations prescribing the doing of an act by a person, see section 249.

Burden of proof

(10) The defendant bears the burden of establishing the matters referred

to in subsections (2) to (9).

116AO Manufacturing etc. a circumvention device for a

technological protection measure

(1) An owner or exclusive licensee of the copyright in a work or other

subject-matter may bring an action against a person if:

(a) the person does any of the following acts with a device:

(i) manufactures it with the intention of providing it to

another person;

(ii) imports it into Australia with the intention of providing

it to another person;

(iii) distributes it to another person;

(iv) offers it to the public;

(v) provides it to another person;

(vi) communicates it to another person; and

(b) the person knows, or ought reasonably to know, that the

device is a circumvention device for a technological

protection measure; and

(c) the work or other subject-matter is protected by the

technological protection measure.

Exception - no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the device is a circumvention device for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

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(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Exception—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the circumvention device will be used to circumvent the

technological protection measure to enable the doing of an

act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

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(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(e) the researcher:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Exception—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

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Exception—law enforcement and national security

(6) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Burden of proof

(7) The defendant bears the burden of establishing the matters referred

to in subsections (2) to (6).

116AP Providing etc. a circumvention service for a technological

protection measure

(1) An owner or exclusive licensee of the copyright in a work or other

subject-matter may bring an action against a person if:

(a) the person:

(i) provides a service to another person; or

(ii) offers a service to the public; and

(b) the person knows, or ought reasonably to know, that the

service is a circumvention service for a technological

protection measure; and

(c) the work or other subject-matter is protected by the

technological protection measure.

Exception - no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the service is a circumvention service for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

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(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Exception—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the circumvention service will be used to circumvent a

technological protection measure to enable the doing of an

act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention service will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

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(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(e) the researcher:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Exception—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention service will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

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Section 116AQ

Exception—law enforcement and national security

(6) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Burden of proof

(7) The defendant bears the burden of establishing the matters referred

to in subsections (2) to (6).

116AQ Remedies in actions under this Subdivision

(1) Without limiting the relief that a court may grant in an action under

this Subdivision, the relief may include:

(a) an injunction, subject to such terms, if any, as the court

thinks fit; and

(b) damages or an account of profits; and

(c) if the doing of an act, which is the subject of the action,

involved a circumvention device—an order that the

circumvention device be destroyed or dealt with as specified

in the order.

(2) In assessing damages, the court may award such additional

damages as it considers appropriate, having regard to:

(a) the flagrancy of the defendant‘s acts that are the subject of

the action; and

(b) the need to deter similar acts; and

(c) the conduct of the defendant after the acts or, if relevant,

after the defendant was informed that the defendant had

allegedly done an act that would be the subject of an action

under this Subdivision; and

(d) any benefit shown to have accrued to the defendant as a

result of those acts; and

(e) any other relevant matters.

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Section 116B

(3) If:

(a) an action has been commenced against a person under this

Subdivision; and

(b) the doing of an act by the person, which is the subject of the

action, involved a device; and

(c) the device appears to the court to be a circumvention device;

the court may order that the device be delivered up to the court

upon such conditions as the court considers appropriate.

(4) This section does not, by implication, affect the interpretation of

any other provision of this Act.

Subdivision B—Electronic rights management information

116B Removal or alteration of electronic rights management

information

(1) This section applies if:

(a) either:

(i) a person removes, from a copy of a work or other

subject-matter in which copyright subsists, any

electronic rights management information that relates to

the work or other subject-matter; or

(ii) a person alters any electronic rights management

information that relates to a work or other

subject-matter in which copyright subsists; and

(b) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(c) the person knew, or ought reasonably to have known, that the

removal or alteration would induce, enable, facilitate or

conceal an infringement of the copyright in the work or other

subject-matter.

(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant knew, or ought reasonably to have known, that the

removal or alteration to which the action relates would have the

effect referred to in paragraph (1)(c) unless the defendant proves

otherwise.

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Section 116C

116C Distribution to the public etc. of works whose electronic rights

management information has been removed or altered

(1) This section applies if:

(a) a person does any of the following acts in relation to a work

or other subject-matter in which copyright subsists without

the permission of the owner or exclusive licensee of the

copyright:

(i) distributes a copy of the work or other subject-matter to

the public;

(ii) imports into Australia a copy of the work or other

subject-matter for distribution to the public;

(iii) communicates a copy of the work or other

subject-matter to the public; and

(b) either:

(i) any electronic rights management information that

relates to the work or other subject-matter has been

removed from the copy of the work or subject-matter; or

(ii) any electronic rights management information that

relates to the work or other subject-matter has been

altered; and

(c) the person knew that the electronic rights management

information had been so removed or altered without the

permission of the owner or exclusive licensee of the

copyright; and

(d) the person knew, or ought reasonably to have known, that the

act referred to in paragraph (a) that was done by the person

would induce, enable, facilitate or conceal an infringement of

the copyright in the work or other subject-matter.

(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant:

(a) had the knowledge referred to in paragraph (1)(c); and

(b) knew, or ought reasonably to have known, that the doing of

the act to which the action relates would have the effect

referred to in paragraph (1)(d);

unless the defendant proves otherwise.

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Actions in relation to technological protection measures and electronic rights

management information Division 2A

Section 116CA

116CA Distribution and importation of electronic rights

management information that has been removed or

altered

(1) This section applies if:

(a) a person does either of the following acts in relation to

electronic rights management information that relates to a

work or other subject-matter in which copyright subsists:

(i) distributes the electronic rights management

information;

(ii) imports into Australia the electronic rights management

information for distribution; and

(b) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(c) either:

(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

or exclusive licensee of the copyright but the

information has been altered without that permission;

and

(d) the person knew that the information had been removed or

altered without that permission; and

(e) the person knew, or ought reasonably to have known, that the

act referred to in paragraph (a) that was done by the person

would induce, enable, facilitate or conceal an infringement of

the copyright.

(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant:

(a) had the knowledge referred to in paragraph (1)(d); and

(b) knew, or ought reasonably to have known, that the doing of

the act to which the action relates would have the effect

referred to in paragraph (1)(e);

unless the defendant proves otherwise.

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rights management information

Section 116CB

116CB Exception relating to national security and law enforcement

Sections 116B to 116CA do not apply in respect of anything

lawfully done for the purposes of law enforcement or national

security by or on behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

116D Remedies in actions under this Subdivision

(1) The relief that a court may grant in an action under this

Subdivision includes an injunction (subject to such terms, if any, as

the court thinks fit) and either damages or an account of profits.

(2) If, in an action under this Subdivision, the court is satisfied that it

is proper to do so, having regard to:

(a) the flagrancy of the defendant‘s actions that are the subject of

the action; and

(b) any benefit shown to have accrued to the defendant as a

result of those acts; and

(c) any other relevant matters;

the court may, in assessing damages, award such additional

damages as it considers appropriate in the circumstances.

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Proceedings where copyright is subject to exclusive licence Division 3

Section 117

Division 3—Proceedings where copyright is subject to

exclusive licence

117 Interpretation

In this Division:

if the licence had been an assignment means if, instead of the

licence, there had been granted (subject to conditions

corresponding as nearly as practicable with those subject to which

the licence was granted) an assignment of the copyright in respect

of its application to the doing, at the places and times authorized by

the licence, of the acts so authorized.

the other party means:

(a) in relation to the owner of the copyright—the exclusive

licensee; and

(b) in relation to the exclusive licensee—the owner of the

copyright.

118 Application

This Division applies to proceedings in relation to a copyright in

respect of which an exclusive licence has been granted and is in

force at the time of the events to which the proceedings relate.

119 Rights of exclusive licensee

Subject to the succeeding sections of this Division:

(a) except against the owner of the copyright, the exclusive

licensee has the same rights of action as he or she would

have, and is entitled to the same remedies as he or she would

be entitled to, by virtue of section 115 if the licence had been

an assignment, and those rights and remedies are concurrent

with the rights and remedies of the owner of the copyright

under that section;

(b) except against the owner of the copyright, the exclusive

licensee has the same rights of action as he or she would

have, and is entitled to the same remedies as he or she would

be entitled to, by virtue of section 116 if the licence had been

an assignment; and

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(c) the owner of the copyright does not have any rights of action

that he or she would not have, and is not entitled to any

remedies that he or she would not be entitled to, by virtue of

section 116 if the licence had been an assignment.

120 Joinder of owner or exclusive licensee as a party

(1) Where:

(a) an action is brought by the owner of the copyright or by the

exclusive licensee; and

(b) the action, in so far as it is brought under section 115, relates,

in whole or in part, to an infringement in respect of which the

owner and the licensee have concurrent rights of action under

that section;

the owner or licensee, as the case may be, is not entitled, except

with the leave of the court, to proceed with the action, in so far as it

is brought under that section and relates to that infringement,

unless the other party is joined as a plaintiff in the action or added

as a defendant.

(2) This section does not affect the granting of an interlocutory

injunction on the application of the owner of the copyright or of the

exclusive licensee.

121 Defences available against exclusive licensee

In an action brought by the exclusive licensee by virtue of this

Division, a defence under this Act that would have been available

to a defendant in the action if the action had been brought by the

owner of the copyright is available to that defendant as against the

exclusive licensee.

122 Assessment of damages where exclusive licence granted

Where an action to which section 120 applies is brought and the

owner of the copyright and the exclusive licensee are not both

plaintiffs in the action, the court, in assessing damages in respect of

an infringement of a kind referred to in that section, shall:

(a) if the plaintiff is the exclusive licensee—take into account

any liabilities, in respect of royalties or otherwise, to which

the licence is subject; and

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Section 123

(b) whether the plaintiff is the owner of the copyright or the

exclusive licensee—take into account any pecuniary remedy

already awarded to the other party under section 115 in

respect of that infringement, or any right of action

exercisable by the other party under that section in respect of

that infringement, as the case requires.

123 Apportionment of profits between owner and exclusive licensee

Where:

(a) an action, in so far as it is brought under section 115, relates,

in whole or in part, to an infringement in respect of which the

owner of the copyright and the exclusive licensee have

concurrent rights of action under that section; and

(b) in that action, whether the owner of the copyright and the

exclusive licensee are both parties or not, an account of

profits is directed to be taken in respect of that infringement;

then, subject to any agreement of which the court is aware by

which the application of those profits is determined as between the

owner of the copyright and the exclusive licensee, the court shall

apportion the profits between them in such a manner as the court

considers just and shall give such directions as the court considers

appropriate for giving effect to that apportionment.

Note: However, not all owners of the copyright are entitled to an account of profits: see section 100AG.

124 Separate actions in relation to the same infringement

In an action brought by the owner of the copyright or by the

exclusive licensee:

(a) a judgment or order for the payment of damages in respect of

an infringement of copyright shall not be given or made

under section 115 if a final judgment or order has been given

or made in favour of the other party directing an account of

profits under that section in respect of the same infringement;

and

(b) a judgment or order for an account of profits in respect of an

infringement of copyright shall not be given or made under

that section if a final judgment or order has been given or

made in favour of the other party awarding damages or

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Section 125

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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Proof of facts in civil actions Division 4

Section 126

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

(4) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (3) is, unless the

contrary intention is established, taken to be such a certificate or

document.

126B Presumptions relating to ownership of copyright

(1) This section applies to an action under this Part in which the

defendant puts in issue the question of the plaintiff‘s ownership of

copyright in the work or other subject matter to which the action

relates.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating that a person was the owner of copyright in the

work or other subject matter at a particular time, then the person is

presumed to have been the owner of the copyright at the time,

unless the contrary is established.

Foreign certificates

(3) If a certificate or other document issued in a qualifying country in

accordance with a law of that country states that a person was the

owner of copyright in the work or other subject matter at a

particular time, then the person is presumed to have been the owner

of the copyright at the time, unless the contrary is established.

(4) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (3) is, unless the

contrary intention is established, taken to be such a certificate or

document.

Chains of ownership

(5) If:

(a) subsection (2) or (3) applies; and

(b) the plaintiff produces a document stating the following:

(i) each subsequent owner of the copyright the subject of

the action (including the plaintiff‘s ownership);

(ii) the date each subsequent owner became the owner of

that copyright;

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(iii) a description of the transaction resulting in each

subsequent owner becoming the owner of that

copyright;

then the matters described in subparagraphs (b)(i), (ii) and (iii) are

presumed to be as stated in the document, unless the contrary is

established.

(6) If:

(a) neither subsection (2) nor (3) applies; and

(b) the plaintiff produces a document stating the following:

(i) the original owner of the copyright the subject of the

action;

(ii) each subsequent owner of that copyright (including the

plaintiff‘s ownership);

(iii) the date each owner became the owner of that

copyright;

(iv) a description of the transaction resulting in each owner

becoming the owner of that copyright;

then the matters described in subparagraphs (b)(i), (ii), (iii) and (iv)

are presumed to be as stated in the document, unless the contrary is

established.

Offence

(7) A person is guilty of an offence if:

(a) the person produces a document under subsection (5) or (6);

and

(b) the person is reckless as to whether the document is false or

misleading.

Penalty: 30 penalty units.

127 Presumptions in relation to authorship of work

(1) Where a name purporting to be that of the author of a literary,

dramatic, musical or artistic work appeared on copies of the work

as published or a name purporting to be that of the author of an

artistic work appeared on the work when it was made, the person

whose name so appeared, if it was his or her true name or a name

by which he or she was commonly known, shall, in an action

brought by virtue of this Part, be presumed, unless the contrary is

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Section 128

established, to be the author of the work and to have made the

work in circumstances to which subsections 35(4), (5) and (6) do

not apply.

(2) Where a work is alleged to be a work of joint authorship, the last

preceding subsection applies in relation to each person alleged to

be one of the authors of the work as if references in that subsection

to the author were references to one of the authors.

(3) Where, in an action brought by virtue of this Part in relation to a

photograph:

(a) it is established that, at the time when the photograph was

taken, a person was the owner of the material on which the

photograph was taken or, if the ownership of that material as

at that time is not established, that a person was the owner of

the apparatus by which the photograph was taken; or

(b) neither the ownership as at the time when the photograph was

taken of the material on which it was taken nor the ownership

as at that time of the apparatus by which it was taken is

established but it is established that, at the time of the death

of a person, the photograph was owned by the person or, if

the ownership of the photograph as at that time is not

established, was in the possession or custody of the person;

the person shall be presumed, unless the contrary is established, to

have been the person who took the photograph.

(4) However, if the owner of the material or apparatus was a body

corporate, then paragraph (3)(a) only applies if the presumption is

required to determine the ownership of the copyright in the

photograph.

Note: For example, the presumption does not apply if it is required to determine the duration of the copyright in the photograph.

128 Presumptions in relation to publisher of work

Where, in an action brought by virtue of this Part in relation to a

literary, dramatic, musical or artistic work, the last preceding

section does not apply, but it is established:

(a) that the work was first published in Australia and was so

published during the period of 70 years that ended

immediately before the commencement of the calendar year

in which the action was brought; and

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(b) that a name purporting to be that of the publisher appeared on

copies of the work as first published;

then, unless the contrary is established, copyright shall be

presumed to subsist in the work and the person whose name so

appeared shall be presumed to have been the owner of that

copyright at the time of the publication.

129 Presumptions where author has died

(1) Where, in an action brought by virtue of this Part in relation to a

literary, dramatic, musical or artistic work, it is established that the

author is dead:

(a) the work shall be presumed to be an original work unless the

contrary is established; and

(b) if it is alleged by the plaintiff that a publication specified in

the allegation was the first publication of the work, and that it

took place in a country and on a date so specified—that

publication shall be presumed, unless the contrary is

established, to have been the first publication of the work,

and to have taken place in that country and on that date.

(2) Where:

(a) a literary, dramatic, musical or artistic work has been

published;

(b) the publication was anonymous or is alleged by the plaintiff

to have been pseudonymous; and

(c) it is not established that the work has ever been published

under the true name of the author, or under a name by which

he or she was commonly known, or that the identity of the

author is generally known or can be ascertained by

reasonable inquiry;

paragraphs (1)(a) and (b) apply, in an action brought by virtue of

this Part in relation to the work, in like manner as those paragraphs

apply where it is established that the author is dead.

129A Presumptions relating to computer programs

(1) This section applies to an action under this Part relating to

copyright in a literary work that is a computer program if:

(a) articles or things embodying all or part of the program have

been supplied (by sale or otherwise) to the public; and

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Section 130

(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

―C‖ in a circle accompanied by a specified year and the name

of a person.

(2) It is presumed that:

(a) the computer program is an original literary work; and

(b) the computer program was first published in the year; and

(c) the person was the owner of copyright in the program when

and where the articles, things or containers were labelled or

marked;

unless the contrary is established.

(3) A presumption about a person under subsection (2) does not imply

that the person was the only owner of copyright in the program

when and where the articles, things or containers were labelled or

marked.

130 Presumptions relating to sound recordings

(1) This section applies to an action under this Part relating to

copyright in a sound recording if:

(a) records embodying all or part of the recording have been

supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the records or their containers bore

a label or other mark.

(2) If the label or mark contained a statement described in an item of

the table, the matter described in the item is presumed, unless the

contrary is established.

Statements and matters presumed unless the contrary is established

Item Statement Matter presumed

A specified person was the maker of The person was the maker of the

the recording recording

The recording was first published in The recording was first published in

a specified year the year

The recording was first published in The recording was first published in

a specified country the country

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(3) If the label or mark consisted of the letter ―P‖ in a circle

accompanied by a specified year and the name of a person, it is

presumed that:

(a) the recording was first published in the year; and

(b) the person was the owner of copyright in the recording when

and where the records or containers were labelled or marked;

unless the contrary is established.

(4) A presumption about a person under this section does not imply

that the person was:

(a) the only maker of the recording; or

(b) the only owner of copyright in the recording when and where

the records or containers were labelled or marked.

130A Acts relating to imported copies of sound recordings

(1) In an action for infringement of copyright described in section 37,

38, 102 or 103 by an act involving an article that is a copy of a

sound recording, it must be presumed that the copy is not a

non-infringing copy unless the defendant proves that the copy is a

non-infringing copy.

Note 1: Sections 37 and 38 deal with infringement of copyright in literary, dramatic and musical works (among other things) by commercial importation and dealings involving articles.

Note 2: Sections 102 and 103 deal with infringement of copyright in sound recordings (among other things) by commercial importation and dealings involving articles.

(2) The definition of article in sections 38 and 103 does not affect this

section.

130B Acts relating to imported copies of computer programs

(1) In an action by a plaintiff for infringement of copyright described

in section 37 or 38:

(a) relating to the plaintiff‘s copyright in a literary work that is a

computer program; and

(b) involving an article that has embodied in it a copy of the

program;

it must be presumed, unless the defendant proves otherwise, that

the copy is not a non-infringing copy so far as it relates to the

plaintiff‘s copyright.

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Section 130C

Note: Sections 37 and 38 deal with infringement of copyright in literary works (among other things) by commercial importation and dealings involving articles.

(2) The definition of article in section 38 does not affect this section.

130C Acts relating to imported copies of electronic literary or music

items

(1) In an action by a plaintiff for infringement of copyright described

in section 37, 38, 102 or 103:

(a) relating to the plaintiff‘s copyright in a work, or in a

published edition of a work, that is, or is part of, an electronic

literary or music item; and

(b) involving an article that has embodied in it a copy of the

electronic literary or music item;

it must be presumed, unless the defendant proves otherwise, that

the copy is not a non-infringing copy so far as it relates to the

plaintiff‘s copyright.

Note 1: Sections 37 and 38 deal with infringement of copyright in a work by commercial importation and dealings involving articles.

Note 2: Sections 102 and 103 deal with infringement of copyright in a published edition of a work (among other things) by commercial importation and dealings involving articles.

(2) The definition of article in sections 38 and 103 does not affect this

section.

131 Presumptions relating to films

(1) Where the name of a person appeared on copies of a

cinematograph film as made available to the public in such a way

as to imply that the person was the maker of the film and, in the

case of a person other than a body corporate, that name was his or

her true name or a name by which he or she was commonly known,

that person shall, in an action brought by virtue of this Part, be

presumed, unless the contrary is established, to be the maker of the

film and to have made the film in circumstances to which

subsection 98(3) does not apply.

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(2) Subsection (3) applies to an action under this Part relating to

copyright in a cinematograph film, if:

(a) articles or things embodying the film have been supplied

commercially; and

(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

―C‖ in a circle accompanied by a specified year and the name

of a person.

(3) It is presumed that:

(a) the film was first made in the year; and

(b) the person was the owner of copyright in the film when and

where the articles, things or containers were labelled or

marked;

unless the contrary is established.

(4) A presumption about a person under subsection (3) does not imply

that the person was the only owner of copyright in the film when

and where the articles, things or containers were labelled or

marked.

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Division 4A Jurisdiction and appeals

Section 131A

Division 4A—Jurisdiction and appeals

131A Exercise of jurisdiction

The jurisdiction of the Supreme Court of a State or Territory in an

action under this Part shall be exercised by a single Judge of the

Court.

131B Appeals

(1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) under this Part is final and

conclusive.

(2) An appeal lies from a decision of a court of a State or Territory

under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

131C Jurisdiction of Federal Court of Australia

Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under this Part.

131D Jurisdiction of Federal Circuit Court of Australia

Jurisdiction is conferred on the Federal Circuit Court of Australia

with respect to civil actions under this Part.

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Offences and summary proceedings Division 5

Section 132AA

Division 5—Offences and summary proceedings

Subdivision A—Preliminary

132AA Definitions

In this Division:

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

copyright material means:

(a) a work; or

(b) a published edition of a work; or

(c) a sound recording; or

(d) a cinematograph film; or

(e) a television or sound broadcast; or

(f) a work that is included in a sound recording, a cinematograph

film or a television or sound broadcast.

distribute, except in Subdivision E, includes distribute by way of

communication.

place of public entertainment includes premises that are occupied

principally for purposes other than public entertainment but are

from time to time made available for hire for purposes of public

entertainment.

profit does not include any advantage, benefit, or gain, that:

(a) is received by a person; and

(b) results from, or is associated with, the person‘s private or

domestic use of any copyright material.

132AB Geographical application

(1) Subdivisions B, C, D, E and F apply only to acts done in Australia.

(2) This section has effect despite section 14.1 (Standard geographical

jurisdiction) of the Criminal Code.

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Section 132AC

Subdivision B—Substantial infringement on a commercial scale

132AC Commercial-scale infringement prejudicing copyright owner

Indictable offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in one or more infringements of the

copyright in a work or other subject-matter; and

(c) the infringement or infringements have a substantial

prejudicial impact on the owner of the copyright; and

(d) the infringement or infringements occur on a commercial

scale.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in one or more infringements of the

copyright in a work or other subject-matter; and

(c) the infringement or infringements have a substantial

prejudicial impact on the owner of the copyright and the

person is negligent as to that fact; and

(d) the infringement or infringements occur on a commercial

scale and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

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Section 132AC

Determining whether infringements occur on commercial scale

(5) In determining whether one or more infringements occur on a

commercial scale for the purposes of paragraph (1)(d) or (3)(d), the

following matters are to be taken into account:

(a) the volume and value of any articles that are infringing

copies that constitute the infringement or infringements;

(b) any other relevant matter.

Defence relating to law enforcement and national security

(6) This section does not apply in respect of anything lawfully done

for the purposes of law enforcement or national security by or on

behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence for certain public institutions etc.

(7) This section does not apply in respect of anything lawfully done by

the following in performing their functions:

(a) a library (other than a library that is conducted for the profit,

direct or indirect, of an individual or individuals);

(b) a body mentioned in:

(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster, including:

(i) a body that provides a national broadcasting service

within the meaning of the Broadcasting Services Act

1992; and

(ii) a body that holds a community broadcasting licence

within the meaning of that Act.

Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

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(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (7), it would be lawful for the National

Archives of Australia to do that thing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

Subdivision C—Infringing copies

132AD Making infringing copy commercially

Indictable offence

(1) A person commits an offence if:

(a) the person makes an article, with the intention of:

(i) selling it; or

(ii) letting it for hire; or

(iii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter when

the article is made.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person makes an article, with the intention of:

(i) selling it; or

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(ii) letting it for hire; or

(iii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter when

the article is made and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes an article in preparation for, or in the

course of:

(i) selling it; or

(ii) letting it for hire; or

(iii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter when

the article is made.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AE Selling or hiring out infringing copy

Indictable offence

(1) A person commits an offence if:

(a) the person sells an article or lets an article for hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting.

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(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person sells an article or lets an article for hire; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person sells an article or lets an article for hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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132AF Offering infringing copy for sale or hire

Indictable offences

(1) A person commits an offence if:

(a) the person by way of trade offers or exposes an article for

sale or hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

(2) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, with

the intention of obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

(4) A person commits an offence if:

(a) the person by way of trade offers or exposes an article for

sale or hire; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure and the person is negligent as to

that fact.

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Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, with

the intention of obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offences

(7) A person commits an offence if:

(a) the person by way of trade offers or exposes an article for

sale or hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

Penalty: 60 penalty units.

(8) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, in

preparation for, or in the course of, obtaining a commercial

advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

Penalty: 60 penalty units.

(9) Subsections (7) and (8) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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132AG Exhibiting infringing copy in public commercially

Indictable offences

(1) A person commits an offence if:

(a) the person by way of trade exhibits an article in public; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

(2) A person commits an offence if:

(a) the person exhibits an article in public, with the intention of

obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

(4) A person commits an offence if:

(a) the person by way of trade exhibits an article in public; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

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Section 132AG

(5) A person commits an offence if:

(a) the person exhibits an article in public, with the intention of

obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offences

(7) A person commits an offence if:

(a) the person by way of trade exhibits an article in public; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

Penalty: 60 penalty units.

(8) A person commits an offence if:

(a) the person exhibits an article in public in preparation for, or

in the course of, obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

Penalty: 60 penalty units.

(9) Subsections (7) and (8) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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132AH Importing infringing copy commercially

Indictable offence

(1) A person commits an offence if:

(a) the person imports an article into Australia, with the intention

of doing any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the import.

(2) An offence against this section is punishable on conviction by a

fine of not more than 650 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person imports an article into Australia, with the intention

of doing any of the following with the article:

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(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the import and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person imports an article into Australia in preparation for,

or in the course of, doing any of the following with the

article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

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(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the import.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AI Distributing infringing copy

Indictable offences

(1) A person commits an offence if:

(a) the person distributes an article, with the intention of:

(i) trading; or

(ii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the distribution.

(2) A person commits an offence if:

(a) the person distributes an article; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the distribution; and

(d) the extent of the distribution affects prejudicially the owner

of the copyright.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

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Section 132AI

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offences

(4) A person commits an offence if:

(a) the person distributes an article, with the intention of:

(i) trading; or

(ii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the distribution and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person distributes an article; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the distribution and the person is negligent as to that

fact; and

(d) the extent of the distribution affects prejudicially the owner

of the copyright and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offence

(7) A person commits an offence if:

(a) the person distributes an article in preparation for, or in the

course of:

(i) trading; or

(ii) obtaining a commercial advantage or profit; and

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(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the distribution.

Penalty: 60 penalty units.

(9) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AJ Possessing infringing copy for commerce

Indictable offence

(1) A person commits an offence if:

(a) the person possesses an article, with the intention of doing

any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the possession.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

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Section 132AJ

Note 2: If the infringing copy was made by converting the work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person possesses an article, with the intention of doing

any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the possession and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person possesses an article in preparation for, or in the

course of, doing any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the possession.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AK Aggravated offence—work etc. converted to digital form

(1) An indictable offence against a provision (the basic offence

provision) of this Subdivision (except sections 132AL and

132AM) relating to an infringing copy is an aggravated offence if

the infringing copy was made by converting a work or other

subject-matter from a hard copy or analog form into a digital or

other electronic machine-readable form.

(2) An aggravated offence is punishable on conviction by a fine of not

more than 850 penalty units or imprisonment for not more than 5

years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

(3) To prove an aggravated offence, the prosecution must prove that

the defendant was reckless with respect to the circumstance that the

infringing copy was made by converting a work or other

subject-matter from a hard copy or analog form into a digital or

other electronic machine-readable form.

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Note: The prosecution must also prove all the physical and fault elements of the offence against the basic offence provision.

(4) If the prosecution intends to prove an aggravated offence, the

charge must allege that the infringing copy was made by

converting a work or other subject-matter from a hard copy or

analog form into a digital or other electronic machine-readable

form.

132AL Making or possessing device for making infringing copy

Indictable offences

(1) A person commits an offence if:

(a) the person makes a device, intending it to be used for making

an infringing copy of a work or other subject-matter; and

(b) copyright subsists in the work or other subject-matter at the

time of the making of the device.

(2) A person commits an offence if:

(a) the person possesses a device, intending it to be used for

making an infringing copy of a work or other subject-matter;

and

(b) copyright subsists in the work or other subject-matter at the

time of the possession.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offences

(4) A person commits an offence if:

(a) the person makes a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy and the person is

negligent as to that fact; and

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(d) copyright subsists in the work or other subject-matter at the

time of the making of the device and the person is negligent

as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person possesses a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy and the person is

negligent as to that fact; and

(d) copyright subsists in the work or other subject-matter at the

time of the possession and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) To avoid doubt, recklessness is the fault element for the

circumstance in paragraphs (4)(b) and (5)(b) that the device is to be

used for copying a work or other subject-matter.

(7) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offence

(8) A person commits an offence if:

(a) the person makes a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy; and

(d) copyright subsists in the work or other subject-matter at the

time of the making of the device.

Penalty: 60 penalty units.

(10) Subsection (8) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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Section 132AM

No need to prove which work etc. is to be copied

(11) In a prosecution for an offence against this section, it is not

necessary to prove which particular work or other subject-matter is

intended to be, or will be, copied using the device.

132AM Advertising supply of infringing copy

Summary offence

(1) A person commits an offence if:

(a) the person, by any means, publishes, or causes to be

published, an advertisement for the supply in Australia of a

copy (whether from within or outside Australia) of a work or

other subject-matter; and

(b) the copy is, or will be, an infringing copy.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Location of supply of copy by communication resulting in creation

of copy

(2) For the purposes of this section, a communication of a work or

other subject-matter that, when received and recorded, will result

in the creation of a copy of the work or other subject-matter is

taken to constitute the supply of a copy of the work or other

subject-matter at the place where the copy will be created.

Subdivision D—Airing of works, sound recordings and films

132AN Causing work to be performed publicly

Indictable offence

(1) A person commits an offence if:

(a) the person causes a literary, dramatic or musical work to be

performed; and

(b) the performance is in public at a place of public

entertainment; and

(c) the performance infringes copyright in the work.

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(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person causes a literary, dramatic or musical work to be

performed; and

(b) the performance is in public at a place of public

entertainment; and

(c) the performance infringes copyright in the work and the

person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

132AO Causing recording or film to be heard or seen in public

Indictable offence

(1) A person commits an offence if:

(a) the person causes:

(i) a sound recording to be heard; or

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(c) causing the hearing or seeing infringes copyright in the

recording or film.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

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Summary offence

(3) A person commits an offence if:

(a) the person causes:

(i) a sound recording to be heard; or

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(c) causing the hearing or seeing infringes copyright in the

recording or film and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person causes:

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(c) causing the hearing or seeing infringes copyright in the

recording or film.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision E—Technological protection measures

132APA Definitions

In this Subdivision, computer program has the same meaning as in

section 47AB.

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132APB Interaction of this Subdivision with Part VAA

This Subdivision does not apply to encoded broadcasts (within the

meaning of Part VAA).

132APC Circumventing an access control technological protection

measure

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in the circumvention of a technological

protection measure; and

(c) the technological protection measure is an access control

technological protection measure; and

(d) the person engages in the conduct with the intention of

obtaining a commercial advantage or profit.

Penalty: 60 penalty units.

Defence—permission

(2) Subsection (1) does not apply to the person if the person has the

permission of the copyright owner or exclusive licensee to

circumvent the access control technological protection measure.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person when the

circumvention occurs; and

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(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable:

(i) the person; or

(ii) if the person is a body corporate—an employee of the

person;

to do an act; and

(b) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(c) the person or employee is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(d) the person or employee:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

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Defence—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—online privacy

(6) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy; and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

disabling an undisclosed capability to collect or

disseminate personally identifying information about

the online activities of a natural person; and

(iv) will not affect the ability of the person or any other

person to gain access to the work or other subject-matter

or any other work or subject-matter.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

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Defence—law enforcement and national security

(7) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

(8) Subsection (1) does not apply in respect of anything lawfully done

by the following bodies in performing their functions:

(a) a library (other than a library that is conducted for the profit,

direct or indirect, of an individual or individuals);

(b) a body mentioned in:

(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster (including a body that

provides a national broadcasting service, within the meaning

of the Broadcasting Services Act 1992, and a body that holds

a community broadcasting licence within the meaning of that

Act).

Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

(8A) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (8), it would be lawful for the National

Archives of Australia to do that thing.

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Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).

Defence—prescribed acts

(9) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act will not infringe the copyright in a work or other

subject-matter; and

(c) the doing of the act by the person is prescribed by the

regulations.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

Note 2: For the making of regulations prescribing the doing of an act by a person, see section 249.

132APD Manufacturing etc. a circumvention device for a

technological protection measure

(1) A person commits an offence if:

(a) the person does any of the following acts with a device:

(i) manufactures it with the intention of providing it to

another person;

(ii) imports it into Australia with the intention of providing

it to another person;

(iii) distributes it to another person;

(iv) offers it to the public;

(v) provides it to another person;

(vi) communicates it to another person; and

(b) the person does the act with the intention of obtaining a

commercial advantage or profit; and

(c) the device is a circumvention device for a technological

protection measure.

Penalty: 550 penalty units or imprisonment for 5 years, or both.

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Defence—no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the device is a circumvention device for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the circumvention device will be used to circumvent the

technological protection measure to enable the doing of an

act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

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Defence—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(e) the researcher:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Defence—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

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(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—law enforcement and national security

(6) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

(7) Subsection (1) does not apply in respect of anything lawfully done

by the following bodies in performing their functions:

(a) a library (other than a library that is conducted for the profit,

direct or indirect, of an individual or individuals);

(b) a body mentioned in:

(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

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(d) a public non-commercial broadcaster (including a body that

provides a national broadcasting service, within the meaning

of the Broadcasting Services Act 1992, and a body that holds

a community broadcasting licence within the meaning of that

Act).

Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (7), it would be lawful for the National

Archives of Australia to do that thing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

132APE Providing etc. a circumvention service for a technological

protection measure

(1) A person commits an offence if:

(a) the person:

(i) provides a service to another person; or

(ii) offers a service to the public; and

(b) the person does so with the intention of obtaining a

commercial advantage or profit; and

(c) the service is a circumvention service for a technological

protection measure.

Penalty: 550 penalty units or imprisonment for 5 years, or both.

Defence—no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the service is a circumvention service for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

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(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the circumvention service will be used to circumvent a

technological protection measure to enable the doing of an

act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention service will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

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(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(e) the researcher:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Defence—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention service will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

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(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Defence—law enforcement and national security

(6) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Defence—libraries etc.

(7) Subsection (1) does not apply in respect of anything lawfully done

by the following bodies in performing their functions:

(a) a library (other than a library that is conducted for the profit,

direct or indirect, of an individual or individuals);

(b) a body mentioned in:

(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster (including a body that

provides a national broadcasting service, within the meaning

of the Broadcasting Services Act 1992, and a body that holds

a community broadcasting licence within the meaning of that

Act).

Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

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(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (7), it would be lawful for the National

Archives of Australia to do that thing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

Subdivision F—Electronic rights management information

132AQ Removing or altering electronic rights management

information

Indictable offence

(1) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) either:

(i) the person removes, from a copy of the work or

subject-matter, any electronic rights management

information that relates to the work or subject-matter; or

(ii) the person alters any electronic rights management

information that relates to the work or subject-matter;

and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) the removal or alteration will induce, enable, facilitate or

conceal an infringement of the copyright.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

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(b) either:

(i) the person removes, from a copy of the work or

subject-matter, any electronic rights management

information that relates to the work or subject-matter; or

(ii) the person alters any electronic rights management

information that relates to the work or subject-matter;

and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) the removal or alteration will induce, enable, facilitate or

conceal an infringement of the copyright and the person is

negligent as to that result.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) either:

(i) the person removes, from a copy of the work or

subject-matter, any electronic rights management

information that relates to the work or subject-matter; or

(ii) the person alters any electronic rights management

information that relates to the work or subject-matter;

and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) the removal or alteration will induce, enable, facilitate or

conceal an infringement of the copyright.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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132AR Distributing, importing or communicating copies after

removal or alteration of electronic rights management

information

Indictable offence

(1) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does any of the following acts in relation to the

work or subject-matter:

(i) distributes a copy of the work or subject-matter with the

intention of trading or obtaining a commercial

advantage or profit;

(ii) imports a copy of the work or subject-matter into

Australia with the intention of trading or obtaining a

commercial advantage or profit;

(iii) communicates a copy of the work or subject-matter to

the public; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) either:

(i) any electronic rights management information that

relates to the work or subject-matter has been removed

from the copy of the work or subject-matter; or

(ii) any electronic rights management information that

relates to the work or subject-matter has been altered;

without the permission of the owner or exclusive licensee of

the copyright; and

(e) the person knows that the information has been removed or

altered without that permission; and

(f) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

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Summary offence

(3) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does any of the following acts in relation to the

work or subject-matter:

(i) distributes a copy of the work or subject-matter with the

intention of trading or obtaining a commercial

advantage or profit;

(ii) imports a copy of the work or subject-matter into

Australia with the intention of trading or obtaining a

commercial advantage or profit;

(iii) communicates a copy of the work or subject-matter to

the public; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) either:

(i) any electronic rights management information that

relates to the work or subject-matter has been removed

from the copy of the work or subject-matter; or

(ii) any electronic rights management information that

relates to the work or subject-matter has been altered;

without the permission of the owner or exclusive licensee of

the copyright; and

(e) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright and the

person is negligent as to that result.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does any of the following acts in relation to the

work or subject-matter:

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(i) distributes a copy of the work or subject-matter in

preparation for, or in the course of, trading or for

obtaining a commercial advantage or profit;

(ii) imports a copy of the work or subject-matter into

Australia in preparation for, or in the course of, trading

or in preparation for, or in the course of, obtaining a

commercial advantage or profit;

(iii) communicates a copy of the work or subject-matter to

the public; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) either:

(i) any electronic rights management information that

relates to the work or subject-matter has been removed

from the copy of the work or subject-matter; or

(ii) any electronic rights management information that

relates to the work or subject-matter has been altered;

without the permission of the owner or exclusive licensee of

the copyright; and

(e) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AS Distributing or importing electronic rights management

information

Indictable offence

(1) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does either of the following acts in relation to

electronic rights management information that relates to the

work or subject-matter:

(i) distributes the electronic rights management

information with the intention of trading or obtaining a

commercial advantage or profit;

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(ii) imports the electronic rights management information

into Australia with the intention of trading or obtaining

a commercial advantage or profit; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) either:

(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

or exclusive licensee of the copyright but the

information has been altered without that permission;

and

(e) the person knows that the information has been removed or

altered without that permission; and

(f) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does either of the following acts in relation to

electronic rights management information that relates to the

work or subject-matter:

(i) distributes the electronic rights management

information with the intention of trading or obtaining a

commercial advantage or profit;

(ii) imports the electronic rights management information

into Australia with the intention of trading or obtaining

a commercial advantage or profit; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

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(d) either:

(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

or exclusive licensee of the copyright but the

information has been altered without that permission;

and

(e) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright and the

person is negligent as to that result.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) copyright subsists in a work or other subject-matter; and

(b) the person does either of the following acts in relation to

electronic rights management information that relates to the

work or subject-matter:

(i) distributes the electronic rights management

information in preparation for, or in the course of,

trading or in preparation for, or in the course of,

obtaining a commercial advantage or profit;

(ii) imports the electronic rights management information

into Australia in preparation for, or in the course of,

trading or in preparation for, or in the course of,

obtaining a commercial advantage or profit; and

(c) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(d) either:

(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

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or exclusive licensee of the copyright but the

information has been altered without that permission;

and

(e) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AT Defences

Law enforcement and national security

(1) This Subdivision does not apply in respect of anything lawfully

done for the purposes of law enforcement or national security by or

on behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code).

Certain public institutions etc.

(2) This Subdivision does not apply in respect of anything lawfully

done by the following in performing their functions:

(a) a library (other than a library that is conducted for the profit,

direct or indirect, of an individual or individuals);

(b) a body mentioned in:

(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster, including:

(i) a body that provides a national broadcasting service

within the meaning of the Broadcasting Services Act

1992; and

(ii) a body that holds a community broadcasting licence

within the meaning of that Act.

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Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) This Subdivision does not apply in respect of anything lawfully

done by a person in connection with a work or other subject-matter

if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (2), it would be lawful for the National

Archives of Australia to do that thing.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Subdivision G—Evidence

132AU Prosecution to prove profit

(1) This section applies if, in the prosecution of an offence against this

Division, either of the following questions is relevant:

(a) whether the defendant intended to obtain a profit;

(b) whether the defendant did something for, in preparation for,

or in the course of, obtaining a profit.

(2) The burden of proving that any advantage, benefit or gain does not

result from, or is not associated with, any private or domestic use

of any copyright material is on the prosecution.

Note: For the purposes of this Division, section 132AA defines profit as not including any advantage, benefit, or gain, that:

(a) is received by a person; and

(b) results from, or is associated with, the person‘s private or domestic use of any copyright material.

132A Presumptions in relation to subsistence and ownership of

copyright

(1) This section applies to a prosecution for an offence against this

Division, except section 132AM, in relation to a work or other

subject matter.

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Section 132AAA

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating the year and place of the first publication, or of the

making, of the work or other subject matter, then that year and

place are presumed to be as stated on the label or mark, unless the

contrary is established.

(3) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating that a person was the owner of copyright in the

work or other subject matter at a particular time, then the person is

presumed to have been the owner of the copyright at the time,

unless the contrary is established.

Foreign certificates

(4) If a certificate or other document issued in a qualifying country in

accordance with a law of that country states the year and place of

the first publication, or of the making, of the work or other subject

matter, then that year and place are presumed to be as stated in the

certificate or document, unless the contrary is established.

(5) If a certificate or other document issued in a qualifying country in

accordance with a law of that country states that a person was the

owner of copyright in the work or other subject matter at a

particular time, then the person is presumed to have been the owner

of the copyright at the time, unless the contrary is established.

(6) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (4) or (5) is, unless

the contrary intention is established, taken to be such a certificate

or document.

132AAA Presumptions relating to computer programs

(1) This section applies to a prosecution for an offence against this

Division, except section 132AM, relating to copyright in a literary

work that is a computer program if:

(a) articles or things embodying all or part of the program have

been supplied (by sale or otherwise) to the public; and

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(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

―C‖ in a circle accompanied by a specified year and the name

of a person.

(2) It is presumed that:

(a) the computer program is an original literary work; and

(b) the computer program was first published in the year; and

(c) the person was the owner of copyright in the program when

and where the articles, things or containers were labelled or

marked;

unless the contrary is established.

(3) A presumption about a person under subsection (2) does not imply

that the person was the only owner of copyright in the program

when and where the articles, things or containers were labelled or

marked.

132B Presumptions relating to sound recordings

(1) This section applies to a prosecution for an offence against this

Division, except section 132AM, relating to copyright in a sound

recording if:

(a) records embodying all or part of the recording have been

supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the records or their containers bore

a label or other mark.

(2) If the label or other mark contained a statement described in an

item of the table, the matter described in the item is presumed,

unless the contrary is established.

Statements and matters to be presumed unless the contrary is established

Item Statement Matter presumed

A specified person was the maker of The person was the maker of the

the recording recording

The recording was first published in The recording was first published in

a specified year the year

The recording was first published in The recording was first published in

a specified country the country

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(3) If the label or mark consisted of the letter ―P‖ in a circle

accompanied by a specified year and the name of a person, it is

presumed that:

(a) the recording was first published in the year; and

(b) the person was the owner of copyright in the recording when

and where the records or containers were labelled or marked;

unless the contrary is established.

(4) A presumption about a person under this section does not imply

that the person was:

(a) the only maker of the recording; or

(b) the only owner of copyright in the recording when and where

the records or containers were labelled or marked.

132C Presumptions relating to films

Presumption about film maker

(1) Subsection (2) applies to a prosecution for an offence against this

Division, except section 132AM, relating to copyright in a

cinematograph film if:

(a) copies of the film were made available to the public; and

(b) a person‘s name appeared on the copies in such a way as to

imply that the person was the maker of the film; and

(c) if the person is not a body corporate—the name is his or her

true name or a name by which he or she is commonly known.

(2) It is presumed that:

(a) the person is the maker of the film; and

(b) the person made the film in circumstances to which

subsection 98(3) does not apply;

unless the contrary is established.

Presumption about time of making and owner of copyright

(3) Subsection (4) applies to a prosecution for an offence against this

Division, except section 132AM, relating to copyright in a

cinematograph film, if:

(a) articles or things embodying the film have been supplied

commercially; and

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(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

―C‖ in a circle accompanied by a specified year and the name

of a person.

(4) It is presumed that:

(a) the film was first made in the year; and

(b) the person was the owner of copyright in the film when and

where the articles, things or containers were labelled or

marked;

unless the contrary is established.

(5) A presumption about a person under subsection (4) does not imply

that the person was the only owner of copyright in the film when

and where the articles, things or containers were labelled or

marked.

Subdivision H—Extra court orders

133 Destruction or delivery up of infringing copies etc.

(1) This section applies if:

(a) a person is charged before a court with an offence against

this Division, except section 132AM, whether or not the

person is convicted of the offence; and

(b) the person possesses an article that appears to the court to be

any of the following:

(i) a circumvention device used or intended to be used in

conduct constituting an offence against Subdivision E;

(ii) an infringing copy;

(iii) a device or equipment used or intended to be used for

making infringing copies.

(2) The court may order that the article be destroyed, delivered up to

the owner of the copyright concerned or dealt with as the court

thinks fit.

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Section 133A

Subdivision I—Procedure and jurisdiction

133A Courts in which offences may be prosecuted

(1) Prosecutions for offences against this Division may be brought in

the Federal Court of Australia or in any other court of competent

jurisdiction.

(2) However, the Federal Court of Australia does not have jurisdiction

to hear or determine prosecutions for indictable offences, despite

section 15C of the Acts Interpretation Act 1901.

(3) The Federal Court of Australia has jurisdiction to hear and

determine prosecutions of the following offences against this

Division:

(a) summary offences;

(b) offences of strict liability.

133B Infringement notices

(1) The regulations may make provision enabling a person who is

alleged to have committed an offence of strict liability against this

Division to do both of the following as an alternative to

prosecution:

(a) pay a penalty to the Commonwealth;

(b) forfeit to the Commonwealth:

(i) each article (if any) that is alleged to be an infringing

copy of a work or other subject-matter and that is

alleged to have been involved in the commission of the

offence; and

(ii) each device (if any) that is alleged to have been made to

be used for making an infringing copy of a work or

other subject-matter and that is alleged to have been

involved in the commission of the offence.

Note: Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).

(2) The penalty must equal one-fifth of the maximum fine that a court

could impose on the person as a penalty for that offence.

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Miscellaneous Division 6

Section 134

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

(2) If a party to a proceeding referred to in subsection (1) desires in

good faith that the person who made an affidavit referred to in that

subsection that is proposed to be used in the proceeding be

cross-examined with respect to the matters in the affidavit, the

affidavit may not be used in the proceeding unless the person

appears as a witness for such cross-examination or the court in

which the proceeding is being tried, in its discretion, permits the

affidavit to be used without the person so appearing.

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Section 134B

Division 7—Seizure of imported copies of copyright

material

134B Interpretation

In this Division:

action period, in relation to particular seized copies, means the

period prescribed by the regulations after notice of a claim for

release of the copies is given to the objector under

section 135AED.

CEO means the Chief Executive Officer of Customs.

claim period, in relation to particular seized copies, means the

period prescribed by the regulations after notice of seizure of the

copies is given to the importer under section 135AC.

copy, in relation to copyright material, means:

(a) if the copyright material is a work—an article in which the

work is embodied; or

(b) if the copyright material is a sound recording, or a sound

broadcast as recorded in a sound recording—a record

embodying the sound recording; or

(c) if the copyright material is a cinematograph film or a

television broadcast as recorded in a cinematograph film—an

article in which the visual images or sounds comprising the

film are embodied; or

(d) if the copyright material is a published edition of a work—an

article in which the edition is embodied.

copyright material means:

(a) a work; or

(b) a sound recording; or

(c) a cinematograph film; or

(d) a published edition of a work; or

(e) a television or sound broadcast as recorded in a

cinematograph film or a sound recording.

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Section 135

importer, in relation to copies of copyright material, includes a

person who or which is, or holds himself, herself or itself out to be,

the owner or importer of the goods comprising the copies.

objector, in relation to particular seized copies, means the person

who gave the notice under subsection 135(2) as a result of the

giving of which the copies were seized.

owner, in relation to the copyright in copyright material, includes

an exclusive licensee of the copyright in the material.

personal information has the same meaning as in the Privacy Act

1988.

seized copies means copies seized under subsection 135(7).

working day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(c) a public holiday in the Australian Capital Territory.

135 Restriction of importation of copies of works etc.

(1) In this section:

(a) a reference to Australia does not include a reference to the

external Territories; and

(b) a reference to importation into Australia does not include a

reference to importation from such a Territory.

(2) A person may give the CEO a written notice stating:

(a) that the person is the owner of the copyright in copyright

material; and

(b) that the person objects to the importation into Australia of

copies of the copyright material to which this section applies.

(3) A notice under subsection (2):

(a) is to be given together with any prescribed document; and

(b) is to be accompanied by the prescribed fee (if any).

(4) This section applies to a copy of copyright material if the making

of the copy would, if it had been carried out in Australia by the

person importing the copy, have constituted an infringement of the

copyright in the copyright material.

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(5) Unless it is revoked under subsection (6) or declared to be

ineffective under subsection (6A), a notice under subsection (2)

remains in force until:

(a) the end of the period of 4 years commencing on the day on

which the notice was given; or

(b) the end of the period for which the copyright in the copyright

material to which the notice relates is to subsist;

whichever is the earlier.

(6) A notice under subsection (2) may be revoked by written notice

given to the CEO by the person who gave the first-mentioned

notice or by a subsequent owner of the copyright in the copyright

material to which the notice relates.

(6A) If the CEO believes, on reasonable grounds, that it is no longer

appropriate to give effect to a notice given under subsection (2),

the CEO may, by writing, declare the notice to be ineffective.

Note: Subsection 195B(3) requires the CEO to notify the person who gave the notice of the decision declaring the notice to be ineffective.

(7) If:

(a) a notice has been given under subsection (2) in respect of

copyright material; and

(b) the notice has not been declared to be ineffective or revoked;

and

(c) a person imports copies of the copyright material to which

this section applies into Australia for the purpose of:

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

exposing for sale or hire, the copies; or

(ii) distributing the copies for the purpose of trade; or

(iii) distributing the copies for any other purpose to an extent

that will affect prejudicially the owner of the copyright

in the copyright material; or

(iv) by way of trade exhibiting the copies in public; and

(d) the copies are subject to the control of the Customs within

the meaning of the Customs Act 1901;

the CEO may seize the copies.

(8) The regulations may make provision for or in relation to:

(a) the forms of notices under this section; and

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Section 135AA

(b) the times at which, and the manner in which, notices are to be

given; and

(c) the giving of information and evidence to the CEO.

(9) The regulations may contain provisions similar to the provisions of

this Division in relation to the importation into external Territories

(other than importation from Australia or from another such

Territory) of copies of copyright material.

(10) This Division does not apply to the importation into Australia of

copies of copyright material whose importation does not constitute

an infringement of copyright because of section 44A, 44D, 44E,

44F, 112A, 112D or 112DA.

(10A) This Division does not apply to the importation into Australia of

copies of copyright material whose importation does not constitute

an infringement of copyright because of section 44C or 112C.

135AA Decision not to seize unless expenses are covered

(1) Subject to subsection (2), the CEO may decide not to seize the

copies under subsection 135(7) unless he or she has been given by

the objector (or by one or more of the objectors) a written

undertaking acceptable to the CEO to repay to the Commonwealth

the expenses of seizing the copies.

(2) The CEO may decide not to seize the copies under

subsection 135(7) unless he or she has been given by the objector

(or one or more of the objectors), instead of an undertaking,

security in an amount that the CEO considers sufficient to repay to

the Commonwealth the expenses of seizing the copies if:

(a) an amount payable under an undertaking given by the

objector (or one or more of the objectors) in relation to other

copies has not been paid in accordance with the undertaking;

and

(b) the CEO considers it reasonable in all the circumstances to

require the security.

(3) An undertaking may be withdrawn or varied if the CEO consents

in writing to a written request from the objector or objectors to do

so.

(4) In this section:

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Section 135AB

expenses of seizing the copies means the expenses that may be

incurred by the Commonwealth if the copies were seized.

135AB Secure storage of seized copies

Seized copies must be taken to such secure place as the CEO

directs.

135AC Notice of seizure

(1) As soon as is practicable after copies are seized under

subsection 135(7), the CEO must give to the importer and the

objector, either personally or by post, a written notice (the seizure

notice) identifying the copies and stating that the identified copies

have been seized.

(2) The seizure notice must state that the copies will be released to the

importer if:

(a) the importer makes a claim for the release of the copies

within the claim period; and

(b) the objector has not, by the end of the action period:

(i) instituted an action for infringement of copyright in

relation to the copies; and

(ii) given the CEO written notice of that action.

(3) The seizure notice must also:

(a) set out the claim period for the copies; and

(b) set out the action period for the copies and state that the

action period will begin only if the importer makes a claim

for the release of the copies; and

(c) if the notice is given to the objector—state the name and the

address of the place of business or residence of the importer

(if known); and

(d) if the notice is given to the importer—state the name and the

address of the place of business or residence of:

(i) the objector; or

(ii) if the objector has nominated a person to be the

objector‘s agent or representative for the purposes of

this Division—that person.

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Section 135AD

(8) The CEO may, at any time after the copies are seized, give to the

objector:

(a) the name, and the address of the place of business or

residence, of any person or body (whether in or outside

Australia) that made arrangements, on behalf of the importer,

for the copies to be brought to Australia or any information

that the CEO has, and believes on reasonable grounds may

help in identifying and locating such a person or body; and

(b) any information (including personal information) that the

CEO has, and believes on reasonable grounds may be

relevant for the purpose of identifying and locating the

importer.

135AD Inspection, release etc. of seized copies

(1) The CEO may permit the objector or the importer to inspect the

seized copies.

(2) If the objector gives the CEO the requisite undertakings, the CEO

may permit the objector to remove one or more samples of the

seized copies from the custody of the CEO for inspection by the

objector.

(3) If the importer gives the CEO the requisite undertakings, the CEO

may permit the importer to remove one or more samples of the

seized copies from the custody of the CEO for inspection by the

importer.

(4) The requisite undertakings are undertakings in writing that the

person giving the undertaking will:

(a) return the sample copies to the CEO at a specified time that is

satisfactory to the CEO; and

(b) take reasonable care to prevent damage to the sample copies.

(5) If the CEO permits inspection of the seized copies, or the removal

of sample copies, by the objector in accordance with this section,

the Commonwealth is not liable to the importer for any loss or

damage suffered by the importer arising out of:

(a) damage to any of the seized copies incurred during that

inspection; or

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Section 135AE

(b) anything done by the objector or any other person to, or in

relation to, sample copies removed from the custody of the

CEO or any use made by the objector of such sample copies.

135AE Forfeiture of seized copies by consent

(1) Subject to subsection (2), the importer may, by written notice to

the CEO, consent to the seized copies being forfeited to the

Commonwealth.

(2) The notice must be given before any action for infringement of

copyright in relation to the copies is instituted.

(3) If the importer gives such a notice, the copies are forfeited to the

Commonwealth.

135AEA Claim for release of seized copies

(1) The importer may make a claim to the CEO for the release of

seized copies.

(2) The claim must be made before the end of the claim period for the

copies.

(3) The claim must:

(a) be in the form (if any) prescribed by the regulations; and

(b) include the information prescribed by the regulations.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

135AEB Seized copies not claimed are forfeited

(1) Seized copies are forfeited to the Commonwealth if a claim for the

release of the goods is not made within the claim period for the

copies.

(2) However, if the CEO allows a late claim for the copies (see

section 135AEC), the copies are taken not to have been forfeited.

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Division 7 Seizure of imported copies of copyright material

Section 135AEC

135AEC Late claim for release of seized goods

(1) The CEO may allow the importer to make a claim (the late claim)

to the CEO for the release of seized copies after the end of the

claim period for the copies.

(2) The CEO may allow the late claim only if:

(a) an action for infringement of copyright in relation to the

copies has not been instituted; and

(b) the CEO considers it reasonable in the circumstances; and

(c) the goods have not been disposed of under section 135AI.

135AED Objector to be notified of claim

(1) If the importer makes a claim for the release of seized copies, the

CEO must, as soon as practicable, give notice of the claim to the

objector.

(2) The notice:

(a) must be in writing; and

(b) may include any information that the CEO has, and believes

on reasonable grounds may be relevant, for the purpose of

identifying and locating either or both of the following:

(i) the importer of the copies;

(ii) any other person or body (whether in or outside

Australia) that made arrangements for the copies to be

brought to Australia.

135AF Release of seized copies to importer

(1) The CEO must release seized copies to the importer if:

(a) the objector gives written notice to the CEO stating that the

objector consents to the release of the seized copies; and

(b) the copies have not been disposed of under section 135AI.

(2) The CEO may release seized copies to the importer at any time if:

(a) the CEO, having regard to information that has come to his

or her knowledge after the copies were seized, is satisfied

that there are no reasonable grounds for believing that

copyright has been infringed by the importation of the

copies; and

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Section 135AFA

(b) the objector has not brought an action for infringement of

copyright in relation to the copies.

(3) The CEO must release seized copies to the importer if:

(a) the importer has made a claim for the release of the copies;

and

(b) the objector has not, by the end of the action period:

(i) instituted an action for infringement of copyright in

relation to the copies; and

(ii) given the CEO written notice of that action.

(4) The CEO must release seized copies to the importer if:

(a) the importer has made a claim for the release of the copies;

and

(b) an action for infringement of copyright has been instituted in

relation to the copies; and

(c) at the end of a period of 20 working days commencing on the

day on which the action was instituted, there is not in force

an order of the court in which the action was instituted

preventing the release of the copies.

(5) This section has effect subject to section 135AH.

135AFA Copies released but not collected are forfeited

Seized copies are forfeited to the Commonwealth if:

(a) the copies are released by the CEO to the importer; and

(b) the importer does not take possession of the copies within 90

days of the release.

135AG Provision relating to actions for infringement of copyright

(1) In this section, infringement action means an action for an

infringement of copyright constituted by the importation of seized

copies.

(2) The court in which an infringement action is pending may, on the

application of a person having a sufficient interest in the

subject-matter of the action, allow the person to be joined as a

defendant to the action.

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Section 135AH

(3) The CEO is entitled to be heard on the hearing of an infringement

action.

(4) In addition to any relief that may be granted apart from this

section, the court may:

(a) at any time, order that the seized copies be released to the

importer subject to such conditions (if any) as the court

thinks fit; or

(b) order that the seized copies not be released to the importer

before the end of a specified period; or

(c) order that the goods be forfeited to the Commonwealth.

(5) A court may not make an order under paragraph (4)(a) if it is

satisfied that the CEO is required or permitted, under any other law

of the Commonwealth, to retain control of the seized copies.

(6) The CEO must comply with an order made under subsection (4).

(7) If:

(a) the court decides that the relevant copyright was not

infringed by the importation of the seized copies; and

(b) a defendant to the infringement action satisfies the court that

he or she has suffered loss or damage as a result of the

seizure of the copies;

the court may order the objector to pay to that defendant such

amount as the court determines as compensation for any part of

that loss or damage that is attributable to a period beginning on or

after the day on which the action was commenced.

135AH Retention of control of seized copies

In spite of section 135AF, in a case in which no order has been

made under subsection 135AG(4) in relation to seized copies, the

CEO is not obliged to release or dispose of the copies if the CEO is

required or permitted, under any other law of the Commonwealth,

to retain control of the copies.

135AI Disposal of seized copies forfeited to the Commonwealth

(1) Seized copies forfeited to the Commonwealth must be disposed of:

(a) in the manner prescribed by the regulations; or

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Section 135AJ

(b) if no manner of disposal is so prescribed—as the CEO

directs.

(2) However, copies forfeited under section 135AEB must not be

disposed of until 30 days after their forfeiture.

(3) Subsection (1) does not require the disposal of copies that are

required in relation to an action for infringement of copyright.

Right of compensation in certain circumstances

(4) Despite the forfeiture of seized copies to the Commonwealth, a

person may apply to a court of competent jurisdiction under this

section for compensation for the disposal of the copies.

(5) A right to compensation exists if:

(a) the copies did not infringe the objector‘s copyright; and

(b) the person establishes, to the satisfaction of the court:

(i) that he or she was the owner of the copies immediately

before they were forfeited; and

(ii) that there were circumstances providing a reasonable

excuse for the failure to make a claim for the release of

the copies.

(6) If a right to compensation exists under subsection (4), the court

must order the payment by the Commonwealth to the person of an

amount equal to the market value of the copies at the time of their

disposal.

135AJ Failure to meet Commonwealth’s expenses of seizure

(1) If an amount payable under an undertaking in relation to copies

covered by a notice given under section 135 is not paid in

accordance with the undertaking, the CEO may decide not to seize

copies covered by the notice until the amount owing is paid.

(2) An amount not paid under an undertaking:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

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Section 135AK

(3) If the amount paid under an undertaking in relation to copies

covered by a notice given under section 135 is in accordance with

the undertaking but is not sufficient to meet the expenses incurred

by the Commonwealth as a result of the action taken by the CEO

under this Division because of the notice, the amount of the

difference between those expenses and the amount paid:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

(4) If security given under subsection 135AA(2) by the objector or

objectors who gave notice under section 135 is not sufficient to

meet the expenses incurred by the Commonwealth as a result of the

action taken by the CEO under this Division because of the notice,

the amount of the difference between those expenses and the

amount of security:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

135AK Immunity of the Commonwealth

The Commonwealth is not liable for any loss or damage suffered

by a person:

(a) because of the seizure of copies, or the failure of the CEO to

seize copies, under this Division; or

(b) because of the release of any seized copies.

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Preliminary Division 1

Section 135AL

Part VAA—Unauthorised access to encoded

broadcasts

Division 1—Preliminary

135AL Definitions

In this Part:

action means a proceeding of a civil nature between parties,

including a counterclaim.

broadcaster means a person licensed under the Broadcasting

Services Act 1992 to provide a broadcasting service (as defined in

that Act) by which an encoded broadcast is delivered.

channel provider means a person who:

(a) packages a channel (which might include programs produced

by the person); and

(b) supplies a broadcaster with the channel; and

(c) carries on a business that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission

of incidental matter, the channel is broadcast as part of an encoded

broadcast service.

decoder means a device (including a computer program) designed

or adapted to decrypt, or facilitate the decryption of, an encoded

broadcast.

encoded broadcast means:

(a) a subscription broadcast; or

(b) a broadcast (except a radio broadcast or subscription

broadcast) that is encrypted and is delivered by a commercial

broadcasting service, or a national broadcasting service,

within the meaning of the Broadcasting Services Act 1992.

subscription broadcast means a broadcast that is encrypted and is

made available by the broadcaster only to persons authorised by

the broadcaster to access the broadcast in intelligible form.

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Division 1 Preliminary

Section 135AM

unauthorised decoder means a device (including a computer

program) designed or adapted to decrypt, or facilitate the

decryption of, an encoded broadcast without the authorisation of

the broadcaster.

135AM Counterclaim

In the application of this Part in relation to a counterclaim,

references to the defendant are to be read as references to the

plaintiff.

135AN This Part does not apply to law enforcement activity etc.

This Part does not apply in relation to anything lawfully done for

the purposes of law enforcement or national security by or on

behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

Note: A defendant in proceedings for an offence against this Part bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

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Actions Division 2

Section 135AOA

Division 2—Actions

Subdivision A—Actions relating to unauthorised decoders

135AOA Making or dealing with unauthorised decoder

(1) A channel provider, or anyone with an interest in the copyright in

either an encoded broadcast or the content of an encoded

broadcast, may bring an action against a person if:

(a) the person does any of the acts described in subsection (2)

with an unauthorised decoder; and

(b) the person knows, or ought reasonably to know, that the

unauthorised decoder will be used to enable someone to gain

access to an encoded broadcast without the authorisation of

the broadcaster.

(2) The acts with the unauthorised decoder are as follows:

(a) making the unauthorised decoder;

(b) selling the unauthorised decoder or letting it for hire;

(c) by way of trade, or with the intention of obtaining a

commercial advantage or profit, offering or exposing the

unauthorised decoder for sale or hire;

(d) exhibiting the unauthorised decoder in public by way of trade

or with the intention of obtaining a commercial advantage or

profit;

(e) distributing the unauthorised decoder (including by exporting

it from Australia) for the purpose of trade, or for a purpose

that will prejudicially affect a channel provider or anyone

with an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast;

(f) importing the unauthorised decoder into Australia for the

purpose of:

(i) selling the unauthorised decoder or letting it for hire; or

(ii) by way of trade, or with the intention of obtaining a

commercial advantage or profit, offering or exposing

the unauthorised decoder for sale or hire; or

(iii) exhibiting the unauthorised decoder in public by way of

trade or with the intention of obtaining a commercial

advantage or profit; or

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Division 2 Actions

Section 135AOB

(iv) distributing the unauthorised decoder for the purpose of

trade, or for a purpose that will prejudicially affect a

channel provider or anyone with an interest in the

copyright in either an encoded broadcast or the content

of an encoded broadcast;

(g) making the unauthorised decoder available online to an

extent that will prejudicially affect a channel provider or

anyone with an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast.

(3) The action may be brought only within 6 years of the act.

(4) In an action under this section it must be presumed that the

defendant knew, or ought reasonably to have known, that the

unauthorised decoder would be used as described in

paragraph (1)(b), unless the defendant proves otherwise.

Subdivision B—Actions relating to decoders for subscription

broadcasts

135AOB Making decoder available online

(1) This section permits an action to be brought against a person if:

(a) a decoder was supplied (to the person or someone else) by, or

with the authorisation of, the broadcaster (the supplying

broadcaster) of a subscription broadcast; and

(b) the person makes the decoder available online to an extent

that will prejudicially affect any of the following persons (the

affected parties):

(i) anyone with an interest in the copyright in a

subscription broadcast by the supplying broadcaster;

(ii) anyone with an interest in the copyright in the content of

a subscription broadcast by the supplying broadcaster;

(iii) a channel provider who supplies the supplying

broadcaster with a channel for a subscription broadcast;

and

(c) the person knows, or ought reasonably to know, that the

decoder will be used to enable someone to gain access to a

subscription broadcast without the authorisation of the

broadcaster.

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Actions Division 2

Section 135AOC

(2) The action may be brought by any of the affected parties but only

within 6 years of the person first making the decoder available

online as described in paragraph (1)(b).

(3) In an action under this section it must be presumed that the

defendant knew, or ought reasonably to have known, that the

decoder would be used as described in paragraph (1)(c), unless the

defendant proves otherwise.

Subdivision C—Actions for unauthorised access to encoded

broadcasts

135AOC Causing unauthorised access

(1) This section permits an action to be brought against a person if:

(a) without the authorisation of the broadcaster of an encoded

broadcast, the person does an act causing the person or

anyone else to gain access in intelligible form to the

broadcast or sounds or images from the broadcast; and

(b) the access will prejudicially affect any of the following

persons (the affected parties):

(i) anyone with an interest in the copyright in an encoded

broadcast by the broadcaster;

(ii) anyone with an interest in the copyright in the content of

an encoded broadcast by the broadcaster;

(iii) a channel provider who supplies the broadcaster with a

channel for an encoded broadcast; and

(c) the person knows, or ought reasonably to know, that the

access is not authorised by the broadcaster.

Note: Paragraph (a)—examples of causing a person to gain access to the broadcast or sounds or images from the broadcast include:

(a) using, or authorising the use of, a decoder so the person gains access to the broadcast, sounds or images; and

(b) distributing, or authorising the distribution of, the sounds or images to the person after they are obtained from the broadcast using a decoder.

(2) The action may be brought by any of the affected parties but only

within 6 years of the act.

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Division 2 Actions

Section 135AOD

(3) Subsection (1) does not apply to:

(a) an act consisting merely of one or more of the following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) listening to sounds in or from the broadcast and/or

seeing images in or from the broadcast;

(iii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

the household and the broadcaster about authorisation of

private access to the broadcast; or

(b) access to the sounds or images gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (b)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

135AOD Unauthorised commercial use of subscription broadcast

(1) This section permits an action to be brought against a person if:

(a) without the authorisation of the broadcaster of a subscription

broadcast, the person uses the broadcast, or sounds or images

from the broadcast, by way of trade or with the intention of

obtaining a commercial advantage or profit; and

(b) the use prejudicially affects any of the following persons (the

affected parties):

(i) anyone with an interest in the copyright in the

broadcast;

(ii) anyone with an interest in the copyright in any content

of the broadcast;

(iii) the channel provider who supplied the broadcaster with

the channel for the broadcast; and

(c) the person knows, or ought reasonably to know, that the use

is not authorised by the broadcaster.

(2) The action may be brought by any of the affected parties but only

within 6 years of the use.

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Actions Division 2

Section 135AOE

Subdivision D—Court orders

135AOE Relief

(1) The relief that a court may grant in an action under this Division

includes an injunction (subject to the terms, if any, the court thinks

fit) and either damages or an account of profits.

(2) In assessing damages, the court may award such additional

damages as it considers appropriate, having regard to:

(a) the flagrancy with which the defendant did any of the

relevant acts; and

(b) the need to deter acts similar to the relevant acts; and

(c) any benefit shown in an action under Subdivision A or B to

have accrued to the defendant as a result of making or

dealing with the decoder; and

(d) any benefit shown in an action under Subdivision C to have

accrued to the defendant or any trade or business carried on

by, or in association with, the defendant; and

(e) all other relevant matters.

135AOF Destruction of decoder

In an action under this Division, the court may order that the

relevant decoder (if any) be destroyed or dealt with as specified in

the order.

Subdivision E—Jurisdiction and appeals

135AP Exercise of jurisdiction

The jurisdiction of the Supreme Court of a State or Territory in an

action under the Part is to be exercised by a single Judge of the

Court.

135AQ Appeals

(1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) under this Part is final and

conclusive.

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Division 2 Actions

Section 135AR

(2) An appeal lies from a decision of a court of a State or Territory

under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

135AR Jurisdiction of Federal Court of Australia

Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under this Part.

135AS Jurisdiction of Federal Circuit Court of Australia

Jurisdiction is conferred on the Federal Circuit Court of Australia

with respect to actions under this Part.

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Offences Division 3

Section 135ASA

Division 3—Offences

Subdivision A—Offences

135ASA Making unauthorised decoder

(1) A person commits an offence if:

(a) the person makes an unauthorised decoder; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASB Selling or hiring unauthorised decoder

(1) A person commits an offence if:

(a) the person sells or lets for hire an unauthorised decoder; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASC Offering unauthorised decoder for sale or hire

(1) A person commits an offence if:

(a) with the intention of obtaining a commercial advantage or

profit, the person offers or exposes an unauthorised decoder

for sale or hire; and

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Division 3 Offences

Section 135ASD

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) A person commits an offence if:

(a) the person offers or exposes an unauthorised decoder for sale

or hire; and

(b) the offer or exposure is by way of trade; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASD Commercially exhibiting unauthorised decoder in public

(1) A person commits an offence if:

(a) the person exhibits an unauthorised decoder in public with

the intention of obtaining a commercial advantage or profit;

and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) A person commits an offence if:

(a) the person exhibits an unauthorised decoder in public; and

(b) the exhibition is by way of trade; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

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Offences Division 3

Section 135ASE

135ASE Importing unauthorised decoder commercially

(1) A person commits an offence if:

(a) the person imports an unauthorised decoder into Australia

with the intention of doing any of the following with the

unauthorised decoder:

(i) selling the unauthorised decoder;

(ii) letting the unauthorised decoder for hire;

(iii) offering or exposing the unauthorised decoder for sale

or hire, by way of trade or to obtain a commercial

advantage or profit;

(iv) exhibiting the unauthorised decoder in public by way of

trade or to obtain a commercial advantage or profit;

(v) distributing the unauthorised decoder for trade;

(vi) distributing the unauthorised decoder to obtain a

commercial advantage or profit;

(vii) distributing the unauthorised decoder in preparation for,

or in the course of, engaging in an activity that will

prejudicially affect a channel provider or anyone with

an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASF Distributing unauthorised decoder

(1) A person commits an offence if:

(a) the person distributes (including by exporting from Australia)

an unauthorised decoder with the intention of:

(i) trading; or

(ii) obtaining a commercial advantage or profit; or

(iii) engaging in any other activity that will prejudicially

affect a channel provider or anyone with an interest in

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Division 3 Offences

Section 135ASG

the copyright in either an encoded broadcast or the

content of an encoded broadcast; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASG Making unauthorised decoder available online

(1) A person commits an offence if:

(a) the person makes an unauthorised decoder available online;

and

(b) the unauthorised decoder is made available online to an

extent that will prejudicially affect a channel provider or

anyone with an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASH Making decoder available online for subscription broadcast

(1) A person commits an offence if:

(a) a decoder was supplied (to the person or anyone else) by, or

with the authorisation of, the broadcaster of a subscription

broadcast; and

(b) the person makes the decoder available online; and

(c) the decoder is made available online without the

authorisation of the broadcaster; and

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(d) the decoder will be used to enable a person to gain access to

a subscription broadcast without the authorisation of the

broadcaster; and

(e) the decoder is made available online to an extent that will

prejudicially affect any of the following:

(i) anyone with an interest in the copyright in a

subscription broadcast by the broadcaster;

(ii) anyone with an interest in the copyright in the content of

a subscription broadcast by the broadcaster;

(iii) a channel provider who supplies the broadcaster with a

channel for a subscription broadcast.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

135ASI Unauthorised access to subscription broadcast etc.

A person commits an offence if:

(a) the person does an act; and

(b) the act (either alone or in conjunction with other acts) results

in the person gaining access in intelligible form to a

subscription broadcast or sounds or images from a

subscription broadcast; and

(c) the access is not authorised by the broadcaster and the person

knows that; and

(d) the act does not consist merely of one or more of the

following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) listening to sounds in or from the broadcast and/or

seeing images in or from the broadcast;

(iii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

the household and the broadcaster about authorisation of

private access to the broadcast; and

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(e) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: The making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

Penalty: 60 penalty units.

135ASJ Causing unauthorised access to encoded broadcast etc.

(1) A person commits an offence if:

(a) the person does an act; and

(b) the act is done by way of trade; and

(c) the act results in the person or anyone else gaining access in

intelligible form to an encoded broadcast or sounds or images

from an encoded broadcast; and

(d) the access is not authorised by the broadcaster; and

(e) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

(2) A person commits an offence if:

(a) the person does an act with the intention of obtaining a

commercial advantage or profit; and

(b) the act results in the person or anyone else gaining access in

intelligible form to an encoded broadcast or sounds or images

from an encoded broadcast; and

(c) the access is not authorised by the broadcaster; and

(d) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

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(3) A person commits an offence if:

(a) the person does an act; and

(b) the act results in anyone else gaining access in intelligible

form to an encoded broadcast or sounds or images from an

encoded broadcast; and

(c) the access is not authorised by the broadcaster and the person

knows that; and

(d) the act does not consist merely of one or more of the

following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

the household and the broadcaster about authorisation of

private access to the broadcast; and

(e) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

(4) An offence against subsection (1), (2) or (3) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).

Subdivision B—Prosecutions

135ATA Courts in which offences may be prosecuted

(1) Prosecutions for offences against this Division may be brought in

the Federal Court of Australia or in any other court of competent

jurisdiction.

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(2) However, the Federal Court of Australia does not have jurisdiction

to hear or determine prosecutions for indictable offences, despite

section 15C of the Acts Interpretation Act 1901.

(3) The Federal Court of Australia has jurisdiction to hear and

determine prosecutions of summary offences against this Division.

(4) Also, section 4J (except subsection 4J(2)) of the Crimes Act 1914

applies in relation to the Federal Court of Australia and an

indictable offence against this Division in the way in which that

section would apply if that court were a court of summary

jurisdiction.

Note: Section 4J of the Crimes Act 1914 lets a court of summary jurisdiction try indictable offences in certain circumstances and subject to limits on the penalties the court can impose.

Subdivision C—Further orders by court

135AU Destruction etc. of unauthorised decoders

(1) The court trying a person for an offence against this Division may

order that any article in the person‘s possession that appears to the

court to be an unauthorised decoder be destroyed or otherwise dealt

with as specified in the order.

(2) The court may make the order whether the person is convicted of

the offence or not.

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Preliminary Division 1

Section 135A

Part VA—Copying and communication of

broadcasts by educational and other

institutions

Division 1—Preliminary

135A Interpretation

In this Part:

administering body means a body administering an institution.

agreed notice means a remuneration notice specifying that the

amount of equitable remuneration payable to the collecting society

by the administering body giving the notice is to be assessed on the

basis of an agreed system.

collecting society means the body that is, for the time being,

declared to be the collecting society under section 135P.

institution means:

(a) an educational institution; or

(b) an institution assisting persons with an intellectual disability.

notice holder means the person who is, for the time being,

appointed to be the notice holder under section 135T.

performance has the same meaning as in Part XIA.

performer has the same meaning as in Part XIA.

preview copy means a copy of a broadcast referred to in

section 135F.

records notice means a remuneration notice specifying that the

amount of equitable remuneration payable to the collecting society

by the administering body giving the notice is to be assessed on the

basis of a records system.

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Section 135B

relevant right holder means:

(a) the owner of the copyright in a work, a sound recording or a

cinematograph film (other than a new owner of the copyright

in a sound recording of a live performance as defined in

section 100AB); or

(b) a performer in a performance.

remuneration notice means a notice referred to in

subsection 135G(1).

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

the memorandum and articles of association of the society.

sampling notice means a remuneration notice specifying that the

amount of equitable remuneration payable to the collecting society

by the administering body giving the notice is to be assessed on the

basis of a sampling system.

135B Copies and communications of broadcasts

In this Part:

(a) a reference to a copy of a broadcast is a reference to a record

embodying a sound recording of the broadcast or a copy of a

cinematograph film of the broadcast; and

(b) a reference to the making of a copy of a broadcast is a

reference to the making of a copy of the whole or a part of

the broadcast; and

(c) a reference to the communication of a copy of a broadcast is

a reference to the communication of a copy of the whole or a

part of the broadcast.

135C Extended operation of this Part

(1) This Part, and the rest of this Act so far as it relates to this Part or

to a provision of this Part, apply in relation to a communication of

the content of a free-to-air broadcast, by the broadcaster making

the content available online at or after the time of the broadcast, in

the same way as they apply in relation to the broadcast.

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Section 135D

(2) The reference to free-to-air broadcast in subsection (1) does not

include a reference to a broadcast within the meaning of

paragraph (b) of the definition of free-to-air broadcast in

subsection 10(1).

135D Operation of collecting society rules

This Part applies to the collecting society despite anything in the

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

as they can operate together with this Part.

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Section 135E

Division 2—Copying and communication of broadcasts

135E Copying and communication of broadcasts by educational

institutions etc.

(1) The copyright in a broadcast, or in any work, sound recording or

cinematograph film included in a broadcast, is not infringed by the

making or communication, by or on behalf of an administering

body, of a copy of the broadcast if:

(a) a remuneration notice, given by or on behalf of the

administering body to the collecting society, is in force;

(b) where the copy or communication is made by, or on behalf

of, a body administering an educational institution—the copy

or communication is made solely for the educational

purposes of the institution or of another educational

institution;

(c) where the copy or communication is made by, or on behalf

of, a body administering an institution assisting persons with

an intellectual disability—the copy or communication is

made solely for the purposes of use in the provision of

assistance to persons with an intellectual disability by the

institution or by another similar institution; and

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

(3), or section 135KA, as the case requires, in relation to the

copy or communication.

(1A) For the purposes of Part XIA, each performer of a performance is

taken to have authorised an administering body, or a person on

behalf of an administering body, to make or communicate a copy

of a broadcast of the performance if the following paragraphs are

satisfied:

(a) a remuneration notice, given by or on behalf of the

administering body to the collecting society, is in force;

(b) if the copy or communication is made by, or on behalf of, a

body administering an educational institution—the copy or

communication is made solely for the educational purposes

of the institution or of another educational institution;

(c) if the copy or communication is made by, or on behalf of, a

body administering an institution assisting persons with an

intellectual disability—the copy or communication is made

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

persons with an intellectual disability by the institution or by

another similar institution;

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

(3), or section 135KA, as the case requires, in relation to the

copy or communication.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the copy or communication under Part XIA (performers‘ protection).

(2) Where a copy, or communication of a copy, of a broadcast referred

to in subsection (1) or (1A):

(a) is used for a purpose other than a purpose referred to in

paragraph (1)(b) or (c) or (1A)(b) or (c);

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

(c) is given to an administering body when there is not in force a

remuneration notice given by that body to the collecting

society;

with the consent of the administering body by whom, or on whose

behalf, it is made, subsection (1) or (1A) does not apply, and shall

be taken never to have applied, to the making of the copy or

communication.

135F Making and communication of preview copies

(1) The copyright in a broadcast, or in any work, sound recording or

cinematograph film included in a broadcast, is not infringed by the

making of a preview copy of the broadcast.

(1A) For the purposes of Part XIA, each performer of a performance is

taken to have authorised the making of a preview copy of a

broadcast of the performance.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the preview copy under Part XIA (performers‘ protection).

(2) A copy of a broadcast is a preview copy if:

(a) the copy is made by, or on behalf of, an administering body;

(b) a remuneration notice, given by, or on behalf of, the

administering body to the collecting society, is in force; and

(c) the copy is made and used solely for the purpose of enabling

that body to decide whether or not the copy should be

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retained for the educational purposes of the institution

administered by it, or for use in the provision of assistance to

persons with an intellectual disability by the institution

administered by it, as the case may be.

(3) Subject to this section, a preview copy shall be destroyed within 14

days after the day on which it was made (in this section called the

preview period).

(4) A preview copy may be retained after the end of the preview

period if:

(a) where the relevant institution is an educational

institution—the copy is retained solely for the educational

purposes of the institution; or

(b) where the relevant institution is an institution assisting

persons with an intellectual disability—the copy is retained

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

such persons by the institution.

(5) Where a preview copy is retained under subsection (4),

subsection 135E(1) or (1A) applies in relation to the copy after the

end of the preview period as if the copy had been made solely for a

purpose referred to in paragraph 135E(1)(b) or (c) or (1A)(b) or

(c), as the case requires.

(6) Where a preview copy is neither destroyed within the preview

period nor retained under subsection (4), subsections (1) and (1A)

do not apply, and shall be taken never to have applied, to the

making of the copy.

(7) The copyright in a broadcast, or in any work, sound recording or

cinematograph film included in a broadcast, is not infringed by the

communication of a preview copy of the broadcast if:

(a) the communication is made solely to enable an administering

body to decide whether or not that copy should be retained:

(i) for the educational purposes of the institution

administered by it; or

(ii) for use in the provision of assistance to persons with an

intellectual disability by the institution administered by

it; and

(b) the communication is made only to the extent necessary for

the purpose mentioned in paragraph (a); and

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(c) the communication is made within the preview period.

(8) For the purposes of Part XIA, each performer in a performance is

taken to have authorised a communication of a preview copy of a

broadcast of the performance if:

(a) the communication is made solely to enable an administering

body to decide whether or not that copy should be retained:

(i) for the educational purposes of the institution

administered by it; or

(ii) for use in the provision of assistance to persons with an

intellectual disability by the institution administered by

it; and

(b) the communication is made only to the extent necessary for

the purpose mentioned in paragraph (a); and

(c) the communication is made within the preview period.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA (performers‘ protection).

135G Remuneration notices

(1) An administering body may, by notice in writing given to the

collecting society by it, or on its behalf, undertake to pay equitable

remuneration to the society for:

(a) copies of broadcasts made by it, or on its behalf, while the

notice is in force; and

(b) communications of such copies made by it, or on its behalf,

while the notice is in force.

(2) A remuneration notice shall specify whether the amount of

equitable remuneration is to be assessed on the basis of a records

system, a sampling system or an agreed system.

(3) A remuneration notice comes into force on the day on which it is

given to the collecting society, or on such later day as is specified

in the notice, and remains in force until it is revoked.

135H Records notices

(1) If a records notice is given by, or on behalf of, an administering

body, the amount of equitable remuneration payable to the

collecting society by the administering body for:

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(a) each copy of a broadcast made by, or on behalf of, the

administering body while the notice is in force; and

(b) each communication of such a copy of a broadcast made by

or on behalf of the administering body while the notice is in

force;

is such amount as is determined by agreement between the

administering body and the collecting society or, failing such

agreement, by the Copyright Tribunal on application made by

either of them.

(1A) If a determination has been made by the Tribunal under

subsection (1), either the administering body or the collecting

society may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of the amount of equitable

remuneration payable to the collecting society by the administering

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

broadcast and for the communication by, or on behalf of that body,

of a copy of the broadcast.

(2) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to:

(a) different classes of works, performances, sound recordings or

cinematograph films included in broadcasts;

(b) different institutions administered by the administering body;

or

(c) different classes of students of an institution administered by

the administering body.

(3) If:

(a) a broadcast is copied by, or on behalf of, an administering

body, or is taken under this subsection to have been so

copied; and

(b) the copy is communicated by, or on behalf of, the body by

being made available online, or is taken under this subsection

to have been so communicated; and

(c) the copy remains so available online for longer than the

prescribed period;

then, when that period ends:

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(d) the broadcast is taken to have been copied again by, or on

behalf of, the body; and

(e) the copy mentioned in paragraph (a) is taken to have been

communicated again by, or on behalf of, the body by making

it available online for a further prescribed period.

(4) For the purposes of subsection (1), an amount of equitable

remuneration must be determined (whether by agreement or by the

Copyright Tribunal) having regard to:

(a) copies and communications to which paragraphs (3)(d) and

(e) apply; and

(b) such matters (if any) as are prescribed; and

(c) such other matters (if any) as are relevant in the

circumstances.

(5) In this section:

prescribed period means the period of 12 months, or if another

period is agreed between the relevant administering body and

collecting society for the purposes of subsection (3), that other

period.

135J Sampling notices

(1) If a sampling notice is given by, or on behalf of, an administering

body, the amount of equitable remuneration payable to the

collecting society by the administering body for:

(a) copies of broadcasts made by, or on behalf of, the

administering body while the notice is in force; and

(b) communications of such copies made by, or on behalf of, the

administering body while the notice is in force;

is such annual amount as is determined by agreement between the

administering body and the collecting society or, failing such

agreement, by the Copyright Tribunal on application made by

either of them.

(1A) If a determination has been made by the Tribunal under

subsection (1), either the administering body or the collecting

society may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of the amount of equitable

remuneration payable to the collecting society by the administering

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body for copies of broadcasts made by, or on behalf of, that body

and for communications by, or on behalf of, that body of such

copies.

(1B) If:

(a) a broadcast is copied by, or on behalf of, an administering

body, or is taken under this subsection to have been so

copied; and

(b) the copy is communicated by, or on behalf of, the body by

being made available online, or is taken under this subsection

to have been so communicated; and

(c) the copy remains so available online for longer than the

prescribed period;

then, when that period ends:

(d) the broadcast is taken to have been copied again by, or on

behalf of, the body; and

(e) the copy mentioned in paragraph (a) is taken to have been

communicated again by, or on behalf of, the body by making

it available online for a further prescribed period.

(2) The annual amount referred to in subsection (1) must be

determined (whether by agreement or by the Copyright Tribunal)

having regard to:

(a) copies and communications to which paragraphs (1B)(d)

and (e) apply; and

(b) the extent to which other copies of broadcasts are made and

communicated by, or on behalf of, the administering body in

a particular period; and

(c) such matters (if any) as are prescribed; and

(d) such other matters (if any) as are relevant in the

circumstances.

(3) The extent of copying of broadcasts and the communication of

those copies, and any other matters that are necessary or

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

assessed by use of a sampling system determined by agreement

between the administering body and the collecting society or,

failing such agreement, by the Copyright Tribunal on application

made by either of them.

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

be determined (whether by agreement or by the Copyright

Tribunal) in relation to different institutions administered by the

administering body.

(4A) To avoid doubt, an annual amount (whether for one or more

institutions administered by the administering body) may be

determined for the purposes of subsection (1) by reference to

amounts for copies and communications that differ on one or both

of the following bases:

(a) different classes of works, performances, sound recordings or

cinematograph films included in broadcasts;

(b) different classes of students of an institution administered by

the administering body.

(5) Where:

(a) a sampling notice is given by, or on behalf of, an

administering body to the collecting society; and

(b) during any period, the administering body does not comply

with one or more of the requirements of the sampling system

determined under this section in relation to the notice;

sections 135E and 135F do not apply to any copy of a broadcast, or

communication of a copy of a broadcast, made by, or on behalf of,

the administering body during that period.

(6) In this section:

prescribed period means the period of 12 months, or if another

period is agreed between the relevant administering body and

collecting society for the purposes of subsection (1B), that other

period.

135JAA Determination of questions relating to this Division or the

collecting society’s rules

(1) This section applies if:

(a) it is necessary or convenient to determine a question to

facilitate future compliance by an administering body or the

collecting society with this Division or the provisions of the

collecting society‘s rules described in paragraph 135P(3)(d);

and

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(b) the question is not determined by another provision of this

Part or regulations made for the purposes of this Part; and

(c) determination of the question affects both the administering

body and the collecting society.

Note: An example of such a question might be whether there should be a particular sampling system to provide information to enable the collecting society to determine how to distribute amounts it collects.

(2) The question must be determined by agreement between the

collecting society and the administering body or, failing such

agreement, by the Tribunal on the application of either of them.

(3) If, during a period, the administering body does not comply with

the agreement or order of the Tribunal determining the question,

sections 135E and 135F do not apply to a copy of a broadcast, or

communication of a copy of a broadcast, made by or on behalf of

the administering body during the period.

135JA Agreed notice

(1) If an agreed notice is given by, or on behalf of an administering

body, the amount of equitable remuneration payable to the

collecting society by the administering body for:

(a) copies of broadcasts made by, or on behalf of, the

administering body while the notice is in force; and

(b) communications of such copies made by, or on behalf of, the

administering body while the notice is in force;

is an amount (whether an annual amount or otherwise) determined

by agreement between the administering body and the collecting

society or, failing such agreement, by the Copyright Tribunal on

application made by either of them.

(2) If a determination has been made by the Tribunal under

subsection (1), either the administering body or the collecting

society may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of the amount of equitable

remuneration payable to the collecting society by the administering

body for copies of broadcasts made and communicated by, or on

behalf of, that body.

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(3) Subject to subsection (5), the matters and processes constituting an

agreed system, and any matters that are necessary or convenient to

be assessed or taken into account for the purposes of the system,

must be determined by agreement between the administering body

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

Copyright Tribunal on application made by either of them.

(4) If:

(a) a broadcast is copied by, or on behalf of, an administering

body, or is taken under this subsection to have been so

copied; and

(b) the copy is communicated by, or on behalf of, the body by

being made available online, or is taken under this subsection

to have been so communicated; and

(c) the copy remains so available online for longer than the

prescribed period;

then, when that period ends:

(d) the broadcast is taken to have been copied again by, or on

behalf of, the body; and

(e) the copy mentioned in paragraph (a) is taken to have been

communicated again by, or on behalf of, the body by making

it available online for a further prescribed period.

(5) An agreed system (whether determined by agreement or by the

Copyright Tribunal) must require the assessment of an amount of

equitable remuneration by a method or process that takes account

of copies and communications to which paragraphs (4)(d) and (e)

apply.

(6) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different institutions administered by the

administering body.

(7) If:

(a) an agreed notice is given by, or on behalf of, an

administering body to the collecting society; and

(b) during any period, the administering body does not comply

with one or more of the requirements of the agreed system

determined under this section in relation to the notice;

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Division 2 Copying and communication of broadcasts

Section 135K

sections 135E and 135F do not apply to any copy of a broadcast, or

communication of a copy of a broadcast, made by, or on behalf of,

the administering body during that period.

(8) In this section:

prescribed period means the period of 12 months or, if another

period is agreed between the relevant administering body and

collecting society for the purposes of subsection (4), that other

period.

135K Marking and record keeping requirements

If records notice is given

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

administering body, the body shall:

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

regulations, each copy in analog form of a broadcast made by

it, or on its behalf, while the notice is in force, or any

container in which such a copy is kept;

(b) make, or cause to be made, a record of each copying of a

broadcast, and each communication of such a copy, carried

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

record containing such particulars as are prescribed;

(c) retain that record for the prescribed retention period after the

making of the copy or communication to which it relates; and

(d) send copies of all such records to the collecting society in

accordance with the regulations.

(2) A record of the kind referred to in paragraph (1)(b):

(a) may be kept in writing or in any other manner prescribed in

the regulations; and

(b) if it is kept in writing, shall be in accordance with the

prescribed form.

(2A) A matter that:

(a) relates to an activity required by paragraph (1)(b), (c) or (d);

and

(b) needs, or is convenient, to be determined; and

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Section 135KA

(c) is not determined by subsection (1) or (2) or regulations

made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a)

or (b);

is to be determined by agreement between the administering body

and the collecting society or, failing such agreement, the Copyright

Tribunal on the application of either of them.

(2B) Sections 135E and 135F do not apply to a copy of a broadcast, or a

communication of a copy of a broadcast, made by or on behalf of

the administering body during a period in which:

(a) an agreement, or an order of the Copyright Tribunal,

determining a matter described in subsection (2A) is in force;

and

(b) the body does not comply with the agreement or order.

If sampling notice is given

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

administering body, the body shall mark, or cause to be marked, in

accordance with the regulations, each copy in analog form of a

broadcast made by it, or on its behalf, while the notice is in force,

or any container in which such a copy is kept.

135KA Notice requirements in respect of communications

If a remuneration notice is given by, or on behalf of, an

administering body to a collecting society in respect of

communication of copies of broadcasts made by, or on behalf of,

the body while the remuneration notice is in force, the body must,

except in such circumstances (if any) as are prescribed:

(a) give a notice, in accordance with the regulations, in relation

to each such communication made by it, or on its behalf,

while the remuneration notice is in force, containing:

(i) statements to the effect that the communication has been

made under this Part and that any work or other

subject-matter contained in the communication might be

subject to copyright or performers‘ protection under this

Act; and

(ii) such other information or particulars (if any) as are

prescribed; and

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Section 135L

(b) in the case of each such communication made by it, or on its

behalf, while the remuneration notice is in force—take all

reasonable steps to ensure that the communication can only

be received or accessed by persons entitled to receive or

access it (for example, teachers or persons receiving

educational instruction or other assistance provided by the

relevant institution); and

(c) comply with such other requirements (if any) as are

prescribed in relation to each such communication made by

it, or on its behalf, while the remuneration notice is in force.

135L Inspection of records etc.

(1) Where a remuneration notice is or has been in force, the collecting

society may, in writing, notify the administering body which gave

the notice that the society wishes, on a day specified in the notice,

being an ordinary working day of the institution specified in the

notice not earlier than 7 days after the day on which the notice is

given, to do such of the following things as are specified in the

notice:

(a) assess the amount of copying of broadcasts and

communication of such copies carried out at the premises of

the institution;

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

relate to the making and communication of copies of

broadcasts in reliance on section 135E;

(c) inspect such other records held at those premises as are

relevant to the assessment of the amount of equitable

remuneration payable by the administering body to the

society.

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

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

the relevant institution on the day specified in the notice (but not

before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect

the records, to which the notice relates and, for that purpose, may

enter the premises of the institution.

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Section 135M

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

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

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

administered by the body for the purpose of exercising the powers

conferred by that subsection is provided with all reasonable and

necessary facilities and assistance for the effective exercise of

those powers.

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

an offence punishable, on conviction, by a fine not exceeding 5

penalty units.

135M Revocation of remuneration notice

A remuneration notice may be revoked at any time by the relevant

administering body by notice in writing given to the collecting

society, and the revocation takes effect at the end of 3 months after

the date of the notice or on such later day as is specified in the

notice.

135N Request for payment of equitable remuneration

(1) Subject to this section, where a remuneration notice is or has been

in force, the collecting society may, by notice in writing given to

the administering body which gave the notice, request the body to

pay to the society, within a reasonable time after the date of the

notice, the amount of equitable remuneration specified in the

notice, being an amount payable under section 135H, 135J or

135JA, as the case may be, for copies of broadcasts and

communications of such copies made by, or on behalf of, the body

while the remuneration notice is or was in force.

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

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

relevant administering body by the collecting society in the Federal

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

debt due to the society.

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

respect to actions under subsection (3).

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Division 3 The collecting society

Section 135P

Division 3—The collecting society

135P Declaration of the collecting society

(1) A body may apply to the Minister to be declared as the collecting

society.

(1A) After receiving the application, the Minister must do one of the

following:

(a) declare the body to be the collecting society, by notice in the

Gazette;

(b) refuse to declare the body to be the collecting society;

(c) refer the application to the Copyright Tribunal in the way

prescribed by the regulations and notify the body of the

referral.

(1B) A declaration made under paragraph (1A)(a) is not a legislative

instrument.

(1C) If the Minister refers the application to the Copyright Tribunal, the

Tribunal may declare the body to be the collecting society.

Note: Section 153BAB sets out the procedure of the Copyright Tribunal in dealing with the reference.

(2) Only one body can be declared to be the collecting society at a

time. The body cannot be declared to be the collecting society

while another body is declared to be the collecting society.

(3) The Minister and the Copyright Tribunal must not declare a body

to be the collecting society unless:

(a) it is a company limited by guarantee and incorporated under

a law in force in a State or Territory relating to companies;

and

(b) all relevant right holders, or their agents, are entitled to

become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

being provisions necessary to ensure that the interests of the

collecting society‘s members who are relevant right holders

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Section 135Q

or their agents are protected adequately, including, in

particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable by administering bodies under section 135H,

135J or 135JA; and

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

out of amounts collected by it; and

(iii) the distribution of amounts collected by it; and

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

relevant right holders who are not its members; and

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

135Q Revocation of declaration

(1) This section applies if the Minister is satisfied that the body

declared as the collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant right

holders or their agents; or

(c) has altered its rules so that they no longer comply with

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

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

with section 135R or 135S.

(2) The Minister may:

(a) by notice in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153BAC sets out the procedure of the Copyright Tribunal in dealing with the reference.

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Division 3 The collecting society

Section 135R

135R Annual report and accounts

(1) The collecting society shall, as soon as practicable after the end of

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

(2) The Minister shall cause a copy of the report sent to the Minister

under subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

(3) The society shall keep accounting records correctly recording and

explaining the transactions of the society (including any

transactions as trustee) and the financial position of the society.

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

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

time to time and those accounts to be conveniently and properly

audited.

(5) The society shall, as soon as practicable after the end of each

financial year, cause its accounts to be audited by an auditor who is

not a member of the society, and shall send to the Minister a copy

of its accounts as so audited.

(6) The society shall give its members reasonable access to copies of

all reports and audited accounts prepared under this section.

(7) This section does not affect any obligations of the society relating

to the preparation and lodging of annual returns or accounts under

the law under which it is incorporated.

135S Amendment of rules

The collecting society shall, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out the effect of the alteration and the reasons

why it was made.

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Section 135SA

135SA Applying to Tribunal for review of distribution arrangement

(1) The collecting society or a member of the collecting society may

apply to the Copyright Tribunal for review of the arrangement

adopted, or proposed to be adopted, by the collecting society for

distributing amounts it collects in a period.

(2) If the Tribunal makes an order under section 153BAD varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal‘s order has effect as if it had

been adopted in accordance with the collecting society‘s rules, but

does not affect a distribution started before the order was made.

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Part VA Copying and communication of broadcasts by educational and other

institutions

Division 4 Interim copying

Section 135T

Division 4—Interim copying

135T Appointment of notice holder

The Attorney-General may, by notice in the Gazette, appoint a

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

135U Copying before declaration of collecting society

(1) The copyright in a broadcast, or in any work, sound recording or

cinematograph film included in a broadcast, is not infringed by the

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

broadcast if:

(a) at the time the copy is made, the first collecting society has

not been declared;

(b) a notice given by the administering body to the notice holder

under subsection 135W(1) is in force;

(c) where the copy is made by, or on behalf of, a body

administering an educational institution—the copy is made

solely for the educational purposes of the institution or of

another educational institution;

(d) where the copy is made by, or on behalf of a body

administering an institution assisting persons with an

intellectual disability—the copy is made solely for the

purposes of use in the provision of assistance to persons with

an intellectual disability by the institution or by another

similar institution; and

(e) the administering body complies with paragraphs

135K(1)(a), (b) and (c) or subsection 135K(3), in so far as

those provisions apply.

(2) Where a copy of a broadcast referred to in subsection (1):

(a) is used for a purpose other than a purpose referred to in

paragraph (1)(c) or (d);

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

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Section 135V

(c) is given to an administering body when there is not in force a

notice given by that body to the notice holder under

subsection 135W(1);

with the consent of the administering body by whom, or on whose

behalf, it is made, subsection (1) does not apply, and shall be taken

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

135V Preview copies

Section 135F applies to the making of preview copies of broadcasts

before the first collecting society is declared as if:

(a) the reference in paragraph 135F(2)(b) to a remuneration

notice given by an administering body to the collecting

society were a reference to a notice under

subsection 135W(1) given by the administering body to the

notice holder; and

(b) the references in subsection 135F(5) to subsection 135E(1),

and paragraphs 135E(1)(b) and (c), were references to

subsection 135U(1), and paragraphs 135U(1)(c) and (d),

respectively.

135W Notices by administering bodies

(1) An administering body may at any time before the declaration of

the first collecting society, by notice in writing given to the notice

holder, undertake to pay equitable remuneration to the collecting

society, when it is declared, for copies of broadcasts made by, or

on behalf of, the administering body while the notice is in force.

(2) A notice shall specify whether the amount of equitable

remuneration is to be assessed on the basis of a records system or a

sampling system.

(3) A notice comes into force on the day on which it is given to the

notice holder, or on such later day as is specified in the notice, and

remains in force until it is revoked.

(4) A notice may be revoked at any time by the relevant administering

body by notice in writing given to the notice holder, and the

revocation takes effect on the date of the notice of revocation or on

such later date as is specified in it.

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Part VA Copying and communication of broadcasts by educational and other

institutions

Division 4 Interim copying

Section 135X

135X Marking and record keeping requirements

(1) Where an administering body gives a notice under

subsection 135W(1) that specifies that the amount of equitable

remuneration is to be assessed on the basis of a records system,

paragraphs 135K(1)(a), (b) and (d) and subsection 135K(2) apply

as if:

(a) the reference to the collecting society were a reference to the

notice holder; and

(b) references to a records notice were references to the notice

under subsection 135W(1).

(2) Where an administering body gives a notice under

subsection 135W(1) that specifies that the amount of equitable

remuneration is to be assessed on the basis of a sampling system,

subsection 135K(3) applies as if:

(a) the reference to the collecting society were a reference to the

notice holder; and

(b) references to a sampling notice were references to the notice

under subsection 135W(1).

135Y Effect of declaration of collecting society

(1) Where the first collecting society is declared, a notice given by an

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

and in force immediately before that declaration shall, on and after

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

records notice or a sampling notice, as the case may be, given by

that body to the collecting society, being a records notice or

sampling notice that came into force on the day on which the

notice came into force.

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

notice, the relevant administering body shall cause copies of all

records made under paragraph 135K(1)(b) on or after the day on

which the notice is taken to have come into force to be sent to the

collecting society within 21 days after the declaration of the

collecting society.

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Miscellaneous Division 5

Section 135Z

Division 5—Miscellaneous

135Z Relevant right holder may authorise copying etc.

(1) Nothing in this Part affects the right of the owner of the copyright

in a broadcast, or in a work, sound recording or cinematograph

film included in a broadcast, to grant a licence authorising an

administering body to make, or cause to be made, a copy of the

broadcast, sound recording or film, or a reproduction of the work

and to communicate, or cause to be communicated, that copy or

reproduction, without infringing that copyright.

(2) Nothing in this Part affects the right of a performer in a

performance included in a broadcast to authorise an administering

body:

(a) to make, or cause to be made, a sound recording or a

cinematograph film of the performance; and

(b) to communicate, or cause to be communicated, that recording

or film.

135ZA Copyright not to vest in copier

Despite any other provision of this Act, the making or

communication of a copy of a broadcast by, or on behalf of, an

administering body that is not an infringement of copyright under

this Part, does not vest copyright in any work or other

subject-matter in any person.

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 1 Preliminary

Section 135ZB

Part VB—Reproducing and communicating works

etc. by educational and other institutions

Division 1—Preliminary

135ZB Interpretation

In this Part:

administering body means a body administering an institution.

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

to be a collecting society under section 135ZZB.

electronic use notice means a remuneration notice specifying that

the amount of remuneration payable in respect of licensed copies in

electronic form, or licensed communications, made by, or on

behalf of, the administering body giving the notice is to be assessed

on the basis of an electronic use system.

eligible item has the meaning given by section 135ZC.

institution means:

(a) an educational institution;

(b) an institution assisting persons with a print disability; or

(c) an institution assisting persons with an intellectual disability.

licensed communication means a communication made by, or on

behalf of, a body administering an institution in reliance on

section 135ZMC, 135ZMD, 135ZP or 135ZS.

licensed copy means:

(a) a reproduction of the whole or a part of the work, being a

reproduction that is made by, or on behalf of, a body

administering an educational institution in reliance on

section 135ZJ, 135ZK, 135ZL, 135ZMC or 135ZMD;

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

of a literary or dramatic work, or a Braille version, a

large-print version, a photographic version or an electronic

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

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

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Section 135ZC

institution assisting persons with a print disability in reliance

on section 135ZP; or

(c) a copy of the whole or a part of an eligible item, being a copy

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

assisting persons with an intellectual disability in reliance on

section 135ZS.

records notice means a remuneration notice specifying that the

amount of equitable remuneration payable in respect of licensed

copies made in hardcopy form or analog form by, or on behalf of,

the administering body giving the notice is to be assessed on the

basis of a records system.

relevant collecting society, in relation to a remuneration notice,

means the collecting society for the owners of the copyright in

works, or other subject-matter, of the same kind as that to which

the remuneration notice relates.

relevant copyright owner means the owner of the copyright in a

work or an eligible item other than a work, but does not include a

new owner of the copyright in a sound recording of a live

performance within the meaning of Subdivision B of Division 5 of

Part IV.

remuneration notice means a notice referred to in

subsection 135ZU(1).

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

the memorandum and articles of association of the society.

sampling notice means a remuneration notice specifying that the

amount of equitable remuneration payable in respect of licensed

copies made in hardcopy form or analog form by, or on behalf of,

the administering body giving the notice is to be assessed on the

basis of a sampling system.

135ZC Eligible items and photographic versions

In this Part:

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

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

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

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Division 1 Preliminary

Section 135ZE

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

a sound broadcast;

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

dramatic or musical work, is a reference to any of the

following:

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

(ii) an adaptation of the work;

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

work;

(c) a reference to a copy of an eligible item, being an artistic

work, is a reference to a reproduction in a material form of

the work;

(d) a reference to a copy of an eligible item, being a sound

recording or a cinematograph film, is a reference to a copy of

the sound recording or cinematograph film; and

(e) a reference to a photographic version of a work or a part of a

work is a reference to a copy of the work or part of the work

produced as a film-strip, or series of separate transparencies,

designed to meet the needs of persons with a print disability.

135ZE Part does not apply to computer programs

Nothing in this Part applies in relation to a literary work, being a

computer program or a compilation of computer programs.

135ZF Operation of collecting society rules

This Part applies to a collecting society despite anything in the

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

as they can operate together with this Part.

135ZFA Licensed communications

For the purposes of this Part, a reference to a licensed

communication of a work, or part of a work, or other

subject-matter includes a reference to a licensed communication of

a licensed copy of the work or other subject-matter.

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Reproduction by educational institutions of works that are in hardcopy form Division 2

Section 135ZGA

Division 2—Reproduction by educational institutions of

works that are in hardcopy form

135ZGA Application of Division

(1) This Division applies in relation to the reproduction of a work

(including an article contained in a periodical publication), or part

of a work, and to the copying of a published edition of a work, or

part of such an edition, only if the reproduction or copy is made

from a document that is in hardcopy form.

(2) For the purposes of this Division:

(a) a reference to a reproduction of a work (including an article

contained in a periodical publication), or a part of a work, is

to be read as a reference to a reproduction of that work or

part made from a document that is in hardcopy form; and

(b) a reference to a facsimile copy of a printed published edition

of a work, or part of such an edition, is to be read as a

reference to a facsimile copy of that edition or part made

from a document that is in hardcopy form.

135ZG Multiple reproduction of insubstantial parts of works that

are in hardcopy form

(1) Subject to this section, copyright in a literary or dramatic work is

not infringed by the making of one or more reproductions of a page

or pages of the work in an edition of the work if the reproduction is

carried out on the premises of an educational institution for the

purposes of a course of education provided by it.

(2) Subsection (1) does not apply to the making of a reproduction of

the whole of a work.

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

more than 2 of the pages of a work in an edition of the work

unless:

(a) there are more than 200 pages in the edition; and

(b) the total number of pages so reproduced does not exceed 1%

of the total number of pages in the edition.

(4) Where:

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 2 Reproduction by educational institutions of works that are in hardcopy form

Section 135ZH

(a) a person makes, or causes to be made, a reproduction of a

part of a work contained on a page or pages in an edition; and

(b) subsection (1) applies to the making of that reproduction;

that subsection does not apply to the making, by or on behalf of

that person, of a reproduction of any other part of that work within

14 days after the day on which the previous reproduction was

made.

(5) In this section, a reference to an edition of a work includes a

reference to an edition of works that include that work.

135ZH Copying of printed published editions by educational

institutions

The copyright in a printed published edition of a work (being a

work in which copyright does not subsist) is not infringed by the

making of one or more facsimile copies of the whole or a part of

the edition, if the copy, or each of the copies, is made in the course

of the making of a reproduction of the whole or a part of the work

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

for the educational purposes of that institution or of another

educational institution.

135ZJ Multiple reproduction of printed periodical articles by

educational institutions

(1) Subject to this section, the copyright in an article contained in a

printed periodical publication is not infringed by the making of one

or more reproductions of the whole or a part of that article by, or

on behalf of, a body administering an educational institution if:

(a) a remuneration notice, given by or on behalf of the body to

the relevant collecting society, is in force;

(b) the reproduction is carried out solely for the educational

purposes of the institution or of another educational

institution; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

reproduction.

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Reproduction by educational institutions of works that are in hardcopy form Division 2

Section 135ZK

(2) This section does not apply in relation to reproductions of, or of

parts of, 2 or more articles contained in the same periodical

publication unless the articles relate to the same subject-matter.

135ZK Multiple reproduction of works published in printed

anthologies

The copyright in a literary or dramatic work, being a work

contained in a printed published anthology of works and

comprising not more than 15 pages in that anthology, is not

infringed by the making of one or more reproductions of the whole

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

educational institution if:

(a) a remuneration notice given by, or on behalf of, the body to

the relevant collecting society is in force; and

(b) the reproduction is carried out solely for the educational

purposes of the institution or of another educational

institution; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

reproduction.

135ZL Multiple reproduction of works that are in hardcopy form by

educational institutions

(1) Subject to this section, the copyright in a literary, dramatic,

musical or artistic work (other than an article contained in a

periodical publication) is not infringed by the making of one or

more reproductions of the whole or a part of the work by, or on

behalf of, a body administering an educational institution if:

(a) a remuneration notice, given by or on behalf of the body to

the relevant collecting society, is in force;

(b) the reproduction is carried out solely for the educational

purposes of the institution or of another educational

institution; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

reproduction.

(2) This section does not apply in relation to reproductions of the

whole, or of more than a reasonable portion, of a work that has

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Division 2 Reproduction by educational institutions of works that are in hardcopy form

Section 135ZM

been separately published unless the person who makes the

reproductions, or causes the reproductions to be made, for, or on

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

reproductions (other than second-hand reproductions) of the work

cannot be obtained within a reasonable time at an ordinary

commercial price.

135ZM Application of Division to certain illustrations that are in

hardcopy form

(1) Where an article or other literary, dramatic or musical work is

accompanied by an artistic work or artistic works provided for the

purpose of explaining or illustrating the article or other work, the

preceding sections of this Division apply as if:

(a) where any of those sections provides that the copyright in the

article or other work is not infringed—the reference to that

copyright included a reference to any copyright in that

artistic work or those artistic works;

(b) a reference to a reproduction of an article or other work

included a reference to a reproduction of the article or other

work together with a reproduction of that artistic work or

those artistic works;

(c) a reference to a reproduction of a part of an article or other

work included a reference to a reproduction of that part of the

article or other work together with a reproduction of the

artistic work or artistic works provided for the purpose of

explaining or illustrating that part;

(d) a reference to a reproduction of a page of a literary or

dramatic work in an edition of the work included a reference

to a reproduction of a page in such an edition that contained

that work and an artistic work or artistic works provided for

the purpose of explaining or illustrating that part of that

work; and

(e) a reference to a reproduction of pages of a literary or

dramatic work in an edition of the work included a reference

to a reproduction of pages in such an edition that contained a

part of that work and an artistic work or artistic works

provided for the purpose of explaining or illustrating that part

of that work.

(2) If:

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Section 135ZM

(a) any remuneration is paid under this Part in respect of a page

of a document that is:

(i) a reproduction of the whole or a part of an article (other

than a part that is an artistic work) contained in a

periodical publication; or

(ii) a reproduction of the whole or a part of a literary or

dramatic work contained in a published anthology of

works; or

(iii) a reproduction of the whole or a part of a literary,

dramatic or musical work other than an article contained

in a periodical publication; and

(b) the making of the page is not an infringement of the

copyright in the article or work because of section 135ZJ,

135ZK or 135ZL; and

(c) the page includes an artistic work or artistic works provided

for the purpose of explaining or illustrating the article or

work;

the following paragraphs apply:

(d) one-half of the remuneration paid in respect of the making of

the page is to be paid to the owner, or divided equally among

the owners, of the copyright in the literary, dramatic or

musical work or works which, or a part of which, appear on

the page; and

(e) one-half of that remuneration is to be paid to the owner, or

divided equally among the owners, of the copyright in the

artistic work or artistic works which, or a part of which,

appear on the page.

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 2A Reproduction and communication of works that are in electronic form

Section 135ZMA

Division 2A—Reproduction and communication of works

that are in electronic form

135ZMA Application of Division

(1) This Division applies in relation to the reproduction of a work

(including articles contained in periodical publications) or part of a

work, only if the reproduction is made from an electronic form of

the work.

(2) For the purposes of this Division, a reference to a reproduction of a

work (including an article contained in a periodical publication), or

a part of a work, is to be read as a reference to a reproduction made

from an electronic form of the work or part.

135ZMB Multiple reproduction and communication of insubstantial

parts of works that are in electronic form

Exception from infringement

(1) Subject to this section, copyright in a published literary or dramatic

work is not infringed by:

(a) the making of one or more reproductions of a part of the

work; or

(b) communicating a part of the work;

if the reproduction or communication is carried out on the premises

of an educational institution for the purposes of a course of study

provided by it.

No exception for more than 2 pages or 1% of the number of pages

(1A) Subsection (1) does not apply to the reproduction or

communication if all the following circumstances exist:

(a) the published electronic form of the literary or dramatic work

from which the reproduction or communication is made

contains pages whose content is unlikely to change regardless

of the system used to view, reproduce or communicate them;

(b) the reproduction or communication is of more than 2 of those

pages without altering any of their content (in terms of the

work);

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(c) there are more than 200 pages in that form of the work;

(d) the number of pages reproduced or communicated exceeds

1% of the number of pages in that form of the work.

No exception for more than 1% of words if work is not paginated

(2) Subsection (1) does not apply to the reproduction or

communication if both the following circumstances exist:

(a) the circumstance in paragraph (1A)(a) does not exist;

(b) the reproduction or communication is of more than 1% of the

number of words in the work.

No exception for dealing with another part within 14 days

(3) If:

(a) a person makes, or causes to be made, a reproduction of a

part of a work or communicates a part of a work; and

(b) subsection (1) applies to the making of the reproduction or to

the communication;

that subsection does not apply to the making by, or on behalf of,

that person of a reproduction or to the communication by that

person, of any other part of that work within 14 days after the day

on which the previous reproduction or the first communication of

the work was made.

No exception for putting another part online at same time

(4) If:

(a) a person communicates a part of a work by making the part

available online; and

(b) subsection (1) applies to the communication;

that subsection does not apply to the making available online by

that person of any other part of that work while the part previously

made available online continues to be so available.

Non-continuous passages are different parts

(5) For the purposes of this section, passages from the work that are

not continuous are all different parts of the work.

(6) Subsection (5) does not affect by implication the meaning of a

reference outside this section to a part of a work.

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 2A Reproduction and communication of works that are in electronic form

Section 135ZMC

135ZMC Multiple reproduction and communication of periodical

articles that are in electronic form by education

institutions

(1) Subject to this section, the copyright in an article contained in a

periodical publication is not infringed by:

(a) the making of one or more reproductions of the whole or a

part of the article; or

(b) the communication of the whole or a part of the article;

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

if:

(c) a remuneration notice given by, or on behalf of, the body to

the relevant collecting society is in force; and

(d) the reproduction or communication is carried out solely for

the educational purposes of the institution or of another

educational institution; and

(e) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

reproduction or communication.

(2) This section does not apply in relation to the reproduction or

communication of, or of parts of, 2 or more articles contained in

the same periodical publication unless the articles relate to the

same subject-matter.

135ZMD Multiple reproduction and communication of works that

are in electronic form by educational institutions

(1) Subject to this section, the copyright in a literary, dramatic,

musical or artistic work (other than an article contained in a

periodical publication) is not infringed by:

(a) the making of one or more reproductions of the whole or a

part of the work; or

(b) the communication of the whole or a part of the work;

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

if:

(c) a remuneration notice given by, or on behalf of, the body to

the relevant collecting society is in force; and

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(d) the reproduction or communication is carried out solely for

the educational purposes of the institution or of another

educational institution; and

(e) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

reproduction or communication.

(2) This section does not apply in relation to the reproduction or

communication of:

(a) the whole, or of more than a reasonable portion of, a literary

or dramatic work; or

(b) the whole, or of more than 10% of, a musical work;

that has been separately published unless the person who makes the

reproduction or communication, or causes it to be made, for, or on

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

the work is not available in electronic form within a reasonable

time at an ordinary commercial price.

(3) If:

(a) a person communicates a part of a work by or on behalf of a

body administering an educational institution, by making the

part available online; and

(b) subsection (1) applies to the communication;

that subsection does not apply to the making available online by, or

on behalf of, that body of any other part of that work while the part

previously made available online continues to be so available.

135ZMDA Reproduction and communication of works from

electronic anthologies by educational institutions

Reproduction or communication of all or part of a literary or

dramatic work does not infringe copyright in the work if:

(a) the work is contained in an anthology published in electronic

form; and

(b) the published electronic form of the anthology from which

the reproduction or communication is made contains pages

whose content is unlikely to change regardless of the system

used to view, reproduce or communicate them; and

(c) the work occupies not more than 15 of those pages; and

(d) the reproduction or communication is made by or on behalf

of a body administering an educational institution; and

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 2A Reproduction and communication of works that are in electronic form

Section 135ZME

(e) a remuneration notice given by or on behalf of the body to

the relevant collecting society is in force; and

(f) the reproduction or communication is made solely for the

educational purposes of the institution or of another

educational institution; and

(g) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA in relation to each reproduction or

communication.

135ZME Application of Division to certain illustrations in electronic

form

(1) If an article or other literary, dramatic or musical work that is in

electronic form is accompanied by an artistic work or artistic works

in electronic form provided for the purpose of explaining or

illustrating the article or other work, the preceding sections of this

Division apply as if:

(a) where any of those sections provides that the copyright in the

article or other work is not infringed—the reference to that

copyright included a reference to any copyright in the artistic

work or artistic works; and

(b) a reference to a reproduction or communication of an article

or other work included a reference to a reproduction or

communication of the article or other work together with a

reproduction or communication of the artistic work or artistic

works; and

(c) a reference to a reproduction or communication of a part of

an article or other work included a reference to a

reproduction or communication of that part of the article or

other work together with a reproduction or communication of

the artistic work or artistic works provided for the purpose of

explaining or illustrating that part.

(2) If:

(a) remuneration is paid under this Part in respect of:

(i) the reproduction or communication of the whole or part

of an article (other than a part that is an artistic work)

contained in a periodical publication; or

(ii) the reproduction or communication of the whole or part

of a literary, dramatic or musical work, other than an

article contained in a periodical publication; and

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(b) the reproduction or communication is not an infringement of

the copyright in the article or work because of

section 135ZMC or 135ZMD; and

(c) the reproduction that is made or communicated includes an

artistic work or artistic works provided for the purpose of

explaining or illustrating the article or work;

the amount of the remuneration must be divided among the owner

or owners of the copyright in the artistic work or artistic works and

the owner or owners of the copyright in the article or other literary,

dramatic or musical work or works.

(3) The division of an amount of remuneration under subsection (2) is

to be carried out as agreed between the relevant copyright owners

or, failing such agreement, as determined by the Copyright

Tribunal on application made by any of them.

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 3 Reproduction and communication of works by institutions assisting persons

with a print disability

Section 135ZN

Division 3—Reproduction and communication of works by

institutions assisting persons with a print

disability

135ZN Copying published editions by institutions assisting persons

with a print disability

The copyright in a published edition of a work (being a work in

which copyright does not subsist) is not infringed by the making of

one or more facsimile copies of the whole or a part of the edition if

the copy, or each of the copies, is made in the course of the making

of a reproduction of the whole or a part of the work by, or on

behalf of, a body administering an institution assisting persons with

a print disability for use in the provision, whether by the institution

or otherwise, of assistance to such persons.

135ZP Multiple reproduction and communication of works by

institutions assisting persons with a print disability

(1) The copyright in a literary or dramatic work is not infringed by the

making or communication by, or on behalf of, a body

administering an institution assisting persons with a print disability

of one or more records embodying a sound recording of the work

or of a part of the work if:

(a) a remuneration notice, given by or on behalf of the body to

the relevant collecting society, is in force;

(b) each record is made, or each communication is carried out

solely for the purpose of use in the provision, whether by the

institution or otherwise, of assistance to persons with a print

disability; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

copy or communication.

(2) The copyright in a published literary or dramatic work is not

infringed by the making or communication by, or on behalf of, a

body administering an institution assisting persons with a print

disability, of one or more Braille versions, large-print versions,

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Reproduction and communication of works by institutions assisting persons with a print

disability Division 3

Section 135ZP

photographic versions or electronic versions of the work or of a

part of the work if:

(a) a remuneration notice given by, or on behalf of, the body to

the relevant collecting society is in force; and

(b) each version is made, or each communication is carried out,

solely for the purpose of the provision, whether by the

institution or otherwise of assistance to persons with a print

disability; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to each

version or communication.

(3) Where a sound recording of a work has been published,

subsection (1) does not apply to the making of any record

embodying a sound recording of the work (including a record that

is a copy of that first-mentioned sound recording) for, or on behalf

of, a body administering an institution assisting persons with a

print disability unless the person who makes that record, or causes

that record to be made, is satisfied, after reasonable investigation,

that no new record that embodies only a sound recording of the

work can be obtained within a reasonable time at an ordinary

commercial price.

(4) Where a Braille version of a work has been separately published,

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

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

that version, or causes that version to be made, for, or on behalf of,

a body administering an institution assisting persons with a print

disability is satisfied, after reasonable investigation, that no new

copy of a Braille version of the work, being a version that has been

separately published, can be obtained within a reasonable time at

an ordinary commercial price.

(5) Where a large-print version of a work has been separately

published, subsection (2) does not apply to the making of a

large-print version of the work, or of a part of the work, unless the

person who makes the version, or causes the version to be made,

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

persons with a print disability is satisfied, after reasonable

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

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 3 Reproduction and communication of works by institutions assisting persons

with a print disability

Section 135ZQ

work, being a version that has been separately published, can be

obtained within a reasonable time at an ordinary commercial price.

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

published, subsection (2) does not apply to the making of a

photographic version of the work, or of a part of the work, unless

the person who makes the version, or causes the version to be

made, for, or on behalf of, a body administering an institution

assisting persons with a print disability is satisfied, after reasonable

investigation, that no new copy of a photographic version of the

work, being a version that has been separately published, can be

obtained within a reasonable time at an ordinary commercial price.

(6A) Subsection (2) does not apply to the making or communication of

an electronic version of the work, or of a part of the work, unless

the person who makes or communicates the version, or causes the

version to be made, or communicated, for, or on behalf of, a body

administering an institution assisting persons with a print disability

is satisfied, after reasonable investigation, that an electronic

version of the work, being a version that has been separately

published, is not available within a reasonable time at an ordinary

commercial price.

(7) For the purposes of this section, a record or a version shall be taken

to be a new record or version if it is not second-hand.

135ZQ Making of relevant reproductions and relevant

communications by institutions assisting persons with a

print disability

(1) Subject to this section, the copyright in a published literary or

dramatic work is not infringed by the making by, or on behalf of, a

body administering an institution assisting persons with a print

disability, of a relevant reproduction or a relevant communication

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

communication is made solely for use in the making by, or on

behalf of that body, of a reproduction or communication of the

work, or of a part of the work, under section 135ZP for a person

with a print disability.

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Reproduction and communication of works by institutions assisting persons with a print

disability Division 3

Section 135ZQ

(2) If:

(a) a relevant reproduction or a relevant communication of a

work, or of a part of a work, is made by, or on behalf of, a

body administering an institution assisting persons with a

print disability; and

(b) the reproduction or communication is used otherwise than for

use in the making by, or on behalf of that body, of a

reproduction or communication of the work, or a part of the

work, under section 135ZP for a person with a print

disability;

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

to the making of the relevant reproduction or relevant

communication.

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

reproduction, being a record embodying a sound recording in

analog form, of a work, or of a part of a work, unless, at the time

the record was made, there was embodied on the record,

immediately before the beginning of that sound recording, a sound

recording of the prescribed message.

(4) Subsection (1) does not apply to the making of a relevant

reproduction in hardcopy form of a work, or of a part of a work,

unless the body by whom, or on whose behalf, the relevant

reproduction is made marks it, or causes it to be marked, in

accordance with the regulations.

(4A) Subsection (1) is to be taken never to have applied to the making of

a relevant reproduction or relevant communication of a work, or of

a part of a work, if, within 3 months after the relevant reproduction

or relevant communication was made, the body by whom, or on

whose behalf, the relevant reproduction or relevant communication

was made has not given to a collecting society (if any) a notice of

the making of the relevant reproduction or relevant

communication.

(4B) The notice referred to in subsection (4A) must be in writing and

must specify:

(a) the name of the body; and

(b) the work, or the part of the work, reproduced or

communicated; and

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Part VB Reproducing and communicating works etc. by educational and other

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Division 3 Reproduction and communication of works by institutions assisting persons

with a print disability

Section 135ZQ

(c) the date on which the reproduction or communication was

made.

(4C) The copyright in a published literary or dramatic work is infringed

by a person who does any of the acts specified in section 38 in

relation to a relevant reproduction of a work, or of a part of a work,

if the person knows, or ought reasonably to have known, that the

reproduction was made solely for use in the making by, or on

behalf of, a body administering an institution assisting persons with

a print disability of a copy of the work, or of a part of the work, as

the case may be, for a person with a print disability.

(5) In this section:

relevant communication, in relation to a work or part of a work,

means:

(a) the communication of a sound recording of the work, or part

of the work; or

(b) the communication of an electronic version of the work.

relevant reproduction, in relation to a work or part of a work,

means:

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

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

the work; or

(c) a Braille version, a large-print version, a photographic

version or an electronic version of the work, or part of the

work.

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Reproduction and communication of works etc. by institutions assisting persons with an

intellectual disability Division 4

Section 135ZR

Division 4—Reproduction and communication of works

etc. by institutions assisting persons with an

intellectual disability

135ZR Copying of published editions by institutions assisting

persons with an intellectual disability

The copyright in a published edition of a work (being a work in

which copyright does not subsist) is not infringed by the making of

one or more facsimile copies of the whole or a part of the edition in

the course of making one or more reproductions of the whole or a

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

institution assisting persons with an intellectual disability for use in

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

to such persons.

135ZS Copying and communication of eligible items by institutions

assisting persons with an intellectual disability

(1) The copyright in an eligible item, or in any work or other

subject-matter included in an eligible item, is not infringed by the

making or communication by, or on behalf of, a body

administering an institution assisting persons with an intellectual

disability of a copy of the whole or a part of the eligible item if:

(a) a remuneration notice, given by or on behalf of the body to

the relevant collecting society, is in force; and

(b) the copying or communication is carried out solely for the

purpose of use in the provision, whether by the institution or

otherwise, of assistance to persons with an intellectual

disability; and

(c) the body complies with subsection 135ZX(1) or (3) or

section 135ZXA, as the case requires, in relation to the copy

or communication.

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Part VB Reproducing and communicating works etc. by educational and other

institutions

Division 4 Reproduction and communication of works etc. by institutions assisting

persons with an intellectual disability

Section 135ZT

(2) Subsection (1) does not apply to the making or communication of a

copy of the whole or a part of:

(a) an eligible item, being a work that has been separately

published in a form that would be suitable for use in the

provision of the assistance referred to in that subsection; or

(b) an eligible item that is not a work;

unless the person who makes the copy or communication, or

causes the copy or communication to be made, is satisfied after

reasonable investigation that:

(c) in the case of an eligible item referred to in paragraph (a)—

no new copy of the eligible item in a form suitable for use in

the provision of that assistance can be obtained or is available

electronically within a reasonable time at an ordinary

commercial price; or

(d) in the case of an eligible item referred to in paragraph (b)—

no new copy of the eligible item alone can be obtained or is

available electronically within a reasonable time at an

ordinary commercial price.

(3) For the purposes of this section, a copy shall be taken to be new if

it is not second-hand.

135ZT Making of copies etc. for use in making copies or

communications for a person with an intellectual

disability

(1) Subject to this section, the copyright in an eligible item or in a

television broadcast is not infringed by the making by, or on behalf

of, a body administering an institution assisting persons with an

intellectual disability of a copy or communication of the whole or a

part of the eligible item or broadcast, if the copy or communication

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

of a copy or communication of the whole or the part of the eligible

item or broadcast, as the case may be, for a person with an

intellectual disability.

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Section 135ZT

(2) Where:

(a) a copy or communication of the whole or a part of an eligible

item or a television broadcast is made by, or on behalf of, a

body administering an institution assisting persons with an

intellectual disability; and

(b) the copy or communication is used otherwise than in the

making by, or on behalf of, that body of a copy or

communication of the whole or the part of the eligible item

or broadcast, as the case may be, for a person with an

intellectual disability;

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

applied, to the making of the copy or communication.

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

a sound recording in analog form of the whole or part of an eligible

item unless, at the time the record was made, there was embodied

on the record, immediately before the beginning of that sound

recording, a sound recording of the prescribed message.

(4) Subsection (1) does not apply to the making of a copy, in hardcopy

form or analog form, of the whole or part of an eligible item or a

television broadcast unless the body by whom, or on whose behalf,

the copy is made, marks it, or causes it to be marked, in accordance

with the regulations.

Copyright Act 1968

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Division 5 Equitable remuneration

Section 135ZU

Division 5—Equitable remuneration

135ZU Remuneration notices

(1) An administering body may, by notice in writing given to the

relevant collecting society, undertake to pay equitable

remuneration to the society for licensed copies and licensed

communications made by it, or on its behalf, being copies and

communications made while the notice is in force.

(2) A remuneration notice shall specify whether the amount of

equitable remuneration is to be assessed on the basis of a records

system, a sampling system or an electronic use system.

(2A) An administering body may give either a records notice or a

sampling notice in respect of licensed copies made in hardcopy

form or analog form, but may only give an electronic use notice in

respect of licensed copies made in electronic form, or in respect of

licensed communications.

(3) A remuneration notice comes into force on the day on which it is

given to the collecting society, or on such later day as is specified

in the notice, and remains in force until it is revoked.

135ZV Records notices

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

administering body, the amount of equitable remuneration payable

to the relevant collecting society by the administering body for

each licensed copy made by it, or on its behalf, while the notice is

in force is such amount as is determined by agreement between the

administering body and that collecting society or, failing such

agreement, by the Copyright Tribunal on application made by

either of them.

(1A) If a determination has been made by the Tribunal under

subsection (1), either the administering body or the collecting

society may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of the amount of equitable

remuneration payable to the collecting society by the administering

body for each licensed copy made by or on behalf of that body.

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Section 135ZW

(2) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to:

(a) different classes of works or eligible items; or

(b) different institutions administered by the administering body;

or

(c) different classes of students of an institution administered by

the administering body.

135ZW Sampling notices

(1) Where a sampling notice is given by, or on behalf of, an

administering body, the amount of equitable remuneration payable

to the relevant collecting society by the administering body for

licensed copies made by it, or on its behalf, while the notice is in

force is such annual amount as is determined by agreement

between the administering body and that collecting society or,

failing such agreement, by the Copyright Tribunal on application

made by either of them.

(1A) If a determination has been made by the Tribunal under

subsection (1), either the administering body or the collecting

society may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of the amount of equitable

remuneration payable to the collecting society by the administering

body for licensed copies made by or on behalf of that body.

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

determined (whether by agreement or by the Copyright Tribunal)

having regard to the number of licensed copies made by, or on

behalf of, the administering body in a particular period and to such

other matters (if any) as are relevant in the circumstances.

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

matters that are necessary or convenient to be assessed by use of a

sampling system, shall be assessed by use of a sampling system

determined by agreement between the administering body and the

relevant collecting society or, failing such agreement, by the

Copyright Tribunal on application made by either of them.

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

be determined (whether by agreement or by the Copyright

Tribunal) in relation to different institutions administered by the

administering body.

(4A) To avoid doubt, an annual amount (whether for one or more

institutions administered by the administering body) may be

determined for the purposes of subsection (1) by reference to

amounts for licensed copies that differ on one or both of the

following bases:

(a) different classes of works or eligible items;

(b) different classes of students of an institution administered by

the administering body.

(5) Where:

(a) a sampling notice is given by, or on behalf of, an

administering body to a collecting society; and

(b) during any period, the administering body does not comply

with one or more of the requirements of the sampling system

determined under this section in relation to that notice;

sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and

135ZS do not apply to any reproduction or copy of a work or other

subject-matter made during that period by, or on behalf of, the

administering body, being a reproduction or copy to which the

sampling notice applies.

135ZWAA Determination of questions relating to this Part or a

collecting society’s rules

(1) This section applies if:

(a) it is necessary or convenient to determine a question to

facilitate future compliance by an administering body or a

collecting society with:

(i) section 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD,

135ZMDA, 135ZP, 135ZQ, 135ZS or 135ZT; or

(ii) this Division; or

(iii) the provisions of a collecting society‘s rules described

in paragraph 135ZZB(3)(d); and

(b) the question is not determined by another provision of this

Part or regulations made for the purposes of this Part; and

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(c) determination of the question affects both the administering

body and the collecting society.

Note: An example of such a matter might be a sampling system to provide information to enable a collecting society to determine how to distribute amounts it collects.

(2) The question must be determined by agreement between the

collecting society and the administering body or, failing such

agreement, by the Tribunal on the application of either of them.

(3) If, during a period, the administering body does not comply with

the agreement or order of the Tribunal determining the question,

sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA,

135ZP, 135ZQ, 135ZS and 135ZT do not apply to a reproduction,

copy or communication of a work or other subject-matter made

during that period by or on behalf of the administering body.

135ZWA Electronic use notices

(1) If an electronic use notice is given by, or on behalf of, an

administering body, the amount of equitable remuneration payable

to the relevant collecting society by the administering body for

licensed copies and licensed communications made by it, or on its

behalf, while the notice is in force is an amount (whether an

amount per year or otherwise) determined by agreement between

the administering body and the collecting society or, failing such

agreement, by the Copyright Tribunal on application made by

either of them.

(2) The matters and processes constituting an electronic use system,

and any matters that are necessary or convenient to be assessed or

taken into account for the purposes of the system, must be

determined by agreement between the administering body and the

relevant collecting society or, failing such agreement, by the

Copyright Tribunal on application made by either of them.

(2A) If:

(a) a work is reproduced by, or on behalf of, an administering

body, or is taken under this subsection to have been so

reproduced; and

(b) the reproduction is communicated by, or on behalf of, the

body by being made available online, or is taken under this

subsection to have been so communicated; and

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Section 135ZWA

(c) the reproduction remains so available online for longer than

the prescribed period;

then, when that period ends:

(d) the work is taken to have been reproduced again by, or on

behalf of, the body; and

(e) the reproduction mentioned in paragraph (a) is taken to have

been communicated again by, or on behalf of, the body by

making it available online for a further prescribed period.

(2B) An electronic use system (whether determined by agreement or by

the Copyright Tribunal) must require the assessment of an amount

of equitable remuneration by a method or process that takes

account of reproductions and communications to which

paragraphs (2A)(d) and (e) apply.

(2C) Subject to subsection (2B) but without limiting subsection (2), an

electronic use system (whether determined by agreement or by the

Copyright Tribunal) may be based upon a records system, a

sampling system or any other process or system.

(2D) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different institutions administered by the

administering body.

(3) If:

(a) an electronic use notice is given by, or on behalf of, an

administering body to a collecting society; and

(b) during any period the administering body does not comply

with one or more of the requirements of the electronic use

system determined under this section in relation to the notice;

sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and

135ZS do not apply to any reproduction, copy or communication

of a work or other subject-matter made during that period by, or on

behalf of, the administering body, being a reproduction, copy or

communication to which the electronic use notice applies.

(4) In this section:

prescribed period means the period of 12 months, or if another is

agreed between the relevant administering body and collecting

society for the purposes of subsection (2A), that other period.

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Section 135ZX

135ZX Records notices and sampling notices: marking and

record-keeping requirements

If records notice is given

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

administering body to a collecting society in respect of licensed

copies made in hardcopy form or analog form, the administering

body shall:

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

regulations, each such licensed copy made by it, or on its

behalf, while the notice is in force, or any container in which

such a copy is kept;

(b) make, or cause to be made, a record of the making of each

such licensed copy that is carried out by it, or on its behalf,

while the notice is in force, being a record containing such

particulars as are prescribed;

(c) retain that record for the prescribed retention period after the

making of the copy to which it relates; and

(d) send copies of all such records to the collecting society in

accordance with the regulations.

(2) For the purposes of subsection (1), a record of the making of a

licensed copy:

(a) may be kept in writing or in any other manner prescribed;

and

(b) if it is kept in writing, shall be in accordance with the

prescribed form.

(2A) A matter that:

(a) relates to an activity required by paragraph (1)(b), (c) or (d);

and

(b) needs, or is convenient, to be determined; and

(c) is not determined by subsection (1) or (2) or regulations

made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a)

or (b);

is to be determined by agreement between the administering body

and the collecting society or, failing such agreement, the Copyright

Tribunal on the application of either of them.

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Section 135ZXA

(2B) Sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA,

135ZP and 135ZS do not apply to a reproduction or copy of a work

or other subject-matter made in hardcopy form or analog form by

or on behalf of the administering body during a period in which:

(a) an agreement, or an order of the Copyright Tribunal,

determining a matter described in subsection (2A) is in force;

and

(b) the body does not comply with the agreement or order.

If sampling notice is given

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

body to a collecting society in respect of licensed copies made in

hardcopy form or analog form, the administering body must mark,

or cause to be marked, in accordance with the regulations, each

such licensed copy made by it, or on its behalf, while the notice is

in force, or any container in which such a copy is kept.

Regulations relevant to records notices and sampling notices

(4) Regulations made for the purposes of paragraph (1)(a) or (b) or

subsection (3) may prescribe different marks or particulars, and

impose different requirements, in relation to different kinds of

licensed copies or different kinds of works or eligible items.

135ZXA Electronic use notices: notice requirements etc.

If an electronic use notice is given by, or on behalf of, an

administering body to a collecting society, in respect of licensed

copies made in electronic form or licensed communications, the

administering body must:

(a) give a notice, in accordance with the regulations, in relation

to each such copy or communication made by it, or on its

behalf, while the electronic use notice is in force, containing:

(i) statements to the effect that the copy or communication

has been made under this Part and that any work or

other subject-matter contained in the copy or

communication might be subject to copyright protection

under this Act; and

(ii) such other information or particulars (if any) as are

prescribed; and

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Section 135ZY

(b) in the case of each such communication made by it, or on its

behalf, while the electronic use notice is in force—take all

reasonable steps to ensure that the communication can only

be received or accessed by persons entitled to receive or

access it (for example, teachers or persons receiving

educational instruction or other assistance provided by the

relevant institution); and

(c) comply with such other requirements (if any) as are

prescribed in relation to each such copy or communication

made by it, or on its behalf, while the electronic use notice is

in force.

135ZY Inspection of records etc.

(1) Where a remuneration notice is or has been in force, the relevant

collecting society to which the notice was given may, in writing,

notify the administering body which gave the notice that the

society wishes, on a day specified in the notice, being an ordinary

working day of the institution specified in the notice not earlier

than 7 days after the day on which the notice is given to do such of

the following things as are specified in the notice:

(a) assess the amount of licensed copying or licensed

communication carried out at the premises of the institution;

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

relate to the making of licensed copies or licensed

communications;

(c) inspect such other records held at those premises as are

relevant to the assessment of the amount of equitable

remuneration payable by the administering body to the

society.

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

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

the relevant institution on the day specified in the notice (but not

before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect

the records, to which the notice relates and, for that purpose, may

enter the premises of the institution.

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

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

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

administered by the body for the purpose of exercising the powers

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Section 135ZZ

conferred by that subsection is provided with all reasonable and

necessary facilities and assistance for the effective exercise of

those powers.

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

an offence punishable, on conviction, by a fine not exceeding 5

penalty units.

135ZZ Revocation of remuneration notice

A remuneration notice may be revoked at any time by the relevant

administering body by notice in writing given to the relevant

collecting society and the revocation takes effect at the end of 3

months after the date of the notice or on such later day as is

specified in the notice.

135ZZA Request for payment of equitable remuneration

(1) Subject to this section, where a remuneration notice is or has been

in force, the relevant collecting society may, by notice in writing

given to the administering body which gave the notice, request the

body to pay to the society, within a reasonable time after the date

of the notice, the amount of equitable remuneration specified in the

notice, being an amount payable under section 135ZV, 135ZW or

135ZWA, as the case may be, for licensed copies or licensed

communications made by, or on behalf of, the body while the

remuneration notice is or was in force.

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

the request, it may be recovered from the relevant administering

body by the relevant collecting society in the Federal Court of

Australia or in any other court of competent jurisdiction as a debt

due to the society.

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

respect to actions under subsection (3).

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Collecting societies Division 6

Section 135ZZB

Division 6—Collecting societies

135ZZB Collecting societies

(1) A body may apply to the Minister to be declared as a collecting

society for all relevant copyright owners or for specified classes of

relevant copyright owners.

(1A) After receiving the application, the Minister must do one of the

following:

(a) declare the body to be a collecting society, by notice in the

Gazette;

(b) refuse to declare the body to be a collecting society;

(c) refer the application to the Copyright Tribunal in the way

prescribed by the regulations and notify the body of the

referral.

(1B) A declaration made under paragraph (1A)(a) is not a legislative

instrument.

(1C) If the Minister refers the application to the Copyright Tribunal, the

Tribunal may declare the body to be a collecting society.

Note: Section 153DC sets out the procedure of the Copyright Tribunal in dealing with the reference.

(1D) A declaration of the body as a collecting society must declare the

body to be:

(a) the collecting society for all relevant copyright owners; or

(b) the collecting society for classes of relevant copyright owners

specified in the declaration.

(2) If a body is declared to be the collecting society for a specified

class of copyright owners and another body is subsequently

declared to be the collecting society for that class of copyright

owners:

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

collecting society for that class of copyright owners on the

day on which the subsequent declaration is made; and

(b) any remuneration notice given to that collecting society

ceases to be in force to the extent to which it relates to

licensed copies of works or other subject-matter the

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Section 135ZZB

copyright owners of which are included in that class of

copyright owners.

(3) The Minister and the Copyright Tribunal must not declare the body

to be the collecting society unless:

(a) it is a company limited by guarantee and incorporated under

a law in force in a State or Territory relating to companies;

and

(b) all persons who are included in a class of relevant copyright

owners to be specified in the declaration, or their agents, are

entitled to become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

being provisions necessary to ensure that the interests of

members of the collecting society who are relevant copyright

owners or their agents are protected adequately, including, in

particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable by administering bodies under section 135ZV,

135ZW or 135ZWA; and

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

society out of amounts collected by it; and

(iii) the distribution of amounts collected by the collecting

society; and

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

for relevant copyright owners who are not its members;

and

(v) access to records of the collecting society by its

members.

(4) If the Minister or the Copyright Tribunal has declared a body to be

the collecting society for a specified class of copyright owners, the

Minister and the Copyright Tribunal may refuse to declare another

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

unless satisfied that to do so would be in the interests of those

copyright owners, having regard to the number of members of the

first-mentioned society, the scope of its activities and such other

considerations as are relevant.

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Collecting societies Division 6

Section 135ZZC

135ZZC Revocation of declaration

(1) This section applies if the Minister is satisfied that a body declared

as a collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant copyright

owners, or their agents; or

(c) has altered its rules so that they no longer comply with

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

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

with section 135ZZD or 135ZZE.

(2) The Minister may:

(a) by notice in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153DD sets out the procedure of the Copyright Tribunal in dealing with the reference.

135ZZD Annual report and accounts

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

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

(2) The Minister shall cause a copy of the report sent to the Minister

under subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

(3) A collecting society shall keep accounting records correctly

recording and explaining the transactions of the society (including

any transactions as trustee) and the financial position of the

society.

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Section 135ZZE

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

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

time to time and those accounts to be conveniently and properly

audited.

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

each financial year, cause its accounts to be audited by an auditor

who is not a member of the society, and shall send to the Minister a

copy of its accounts as so audited.

(6) A collecting society shall give its members reasonable access to

copies of all reports and audited accounts prepared by it under this

section.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the law under which it is incorporated.

135ZZE Amendment of rules

A collecting society shall, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out the effect of the alteration and the reasons

why it was made.

135ZZEA Applying to Tribunal for review of distribution

arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153DE varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal‘s order has effect as if it had

been adopted in accordance with the collecting society‘s rules, but

does not affect a distribution started before the order was made.

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Miscellaneous Division 7

Section 135ZZF

Division 7—Miscellaneous

135ZZF Rights of copyright owners

(1) Nothing in this Part affects the right of the owner of the copyright

in a work to grant a licence authorising the body administering an

educational institution to make, or cause to be made, a copy or

communication of the whole or a part of the work without

infringement of that copyright.

(2) Nothing in this Part affects the right of the owner of the copyright

in a work to grant a licence authorising the body administering an

institution assisting persons with a print disability to do any of the

following without infringement of that copyright:

(a) make, or cause to be made, a sound recording of, or a Braille,

large-print, photographic or electronic version of, the whole

or a part of the work;

(b) communicate, or cause to be communicated, the whole or a

part of the work.

(3) Nothing in this Part affects the right of the owner of the copyright

in an eligible item to grant a licence authorising the body

administering an institution assisting persons with an intellectual

disability to make, or cause to be made, a copy or communication

of the whole or a part of the eligible item without infringement of

that copyright.

135ZZG Copyright not to vest in copier

Despite any other provision of this Act, copyright does not vest in

the maker of a copy or communication of the whole or part of a

work for a person with a print disability, or of a copy or

communication of the whole or part of an eligible item for a person

with an intellectual disability, merely because of the making of the

copy or communication.

135ZZH Unauthorised use of copies

(1) Where a copy, record or version of a work, a sound recording or a

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

prescribed provision of this Part:

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Section 135ZZH

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

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

prescribed provision; or

(c) is given to an administering body when there is not in force a

remuneration notice given by that body to the relevant

collecting society;

with the consent of the administering body by whom, or on whose

behalf, it is made or communicated, the prescribed provision does

not apply, and is taken never to have applied, to the making or

communication of the copy, record or version.

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

subsection 135ZJ(1), section 135ZK and subsections 135ZL(1),

135ZMB(1), 135ZMC(1), 135ZMD(1), 135ZP(1) and (2) and

135ZS(1) are prescribed provisions.

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Retransmission of free-to-air broadcasts Part VC

Preliminary Division 1

Section 135ZZI

Part VC—Retransmission of free-to-air broadcasts

Division 1—Preliminary

135ZZI Definitions

In this Part:

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

to be a collecting society under section 135ZZT.

delayed retransmission, in relation to a free-to-air broadcast,

means a retransmission of the broadcast in an area that has, wholly

or partly, different local time to the area of the original

transmission and that is delayed until no later than the equivalent

local time.

notice holder means the person who is, for the time being,

appointed to be the notice holder under section 135ZZX.

relevant collecting society, in relation to a remuneration notice,

means a collecting society for owners of copyright in the same

kind of work or other subject-matter as that to which the

remuneration notice relates.

relevant copyright owner means the owner of the copyright in a

work, a sound recording or a cinematograph film, but does not

include a new owner of the copyright in a sound recording of a live

performance within the meaning of Subdivision B of Division 5 of

Part IV.

remuneration notice means a notice referred to in section 135ZZL.

retransmitter means a person who makes a retransmission of a

free-to-air broadcast.

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

the memorandum and articles of association of the society.

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Part VC Retransmission of free-to-air broadcasts

Division 1 Preliminary

Section 135ZZJ

135ZZJ Operation of collecting society rules

This Part applies to a collecting society despite anything in the

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

far as they can operate together with this Part.

135ZZJA Application of Part

(1) This Part does not apply in relation to a retransmission of a

free-to-air broadcast if the retransmission takes place over the

internet.

(2) This Part does not apply in relation to a retransmission if:

(a) the retransmission is a re-broadcast by a satellite BSA

licensee; and

(b) subsection 135ZZZI(1) or (2) applies to the re-broadcast.

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Retransmission of free-to-air broadcasts Division 2

Section 135ZZK

Division 2—Retransmission of free-to-air broadcasts

135ZZK Retransmission of free-to-air broadcasts

(1) The copyright in a work, sound recording or cinematograph film

included in a free-to-air broadcast is not infringed by the

retransmission of the broadcast if:

(a) a remuneration notice given by, or on behalf of, the

retransmitter to the relevant collecting society is in force; and

(b) the free-to-air broadcast was made by a broadcaster specified

in the remuneration notice; and

(c) the retransmitter complies with section 135ZZN.

(2) The copyright in a work, sound recording or cinematograph film

included in a free-to-air broadcast is not infringed by the making of

a copy of the broadcast for the sole purpose of enabling a delayed

retransmission of the broadcast to be made.

(3) Subsection (2) does not apply if the retransmission of the broadcast

would infringe the copyright in the broadcast.

(4) If a copy of a broadcast made for the purpose referred to in

subsection (2) is not destroyed within 7 days after it is made,

subsection (2) does not apply, and is taken never to have applied,

in relation to the making of the copy.

(5) In this section, a reference to the making of a copy of a free-to-air

broadcast is a reference to making a cinematograph film or sound

recording of the broadcast, or a copy of such a film or sound

recording.

135ZZL Remuneration notices

(1) A retransmitter may, by notice in writing given to the relevant

collecting society by, or on behalf of, the retransmitter, undertake

to pay equitable remuneration to the society for retransmissions of

free-to-air broadcasts by specified broadcasters, being

retransmissions made by, or on behalf of, the retransmitter while

the notice is in force.

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Division 2 Retransmission of free-to-air broadcasts

Section 135ZZM

(2) A remuneration notice must specify that the amount of equitable

remuneration is to be assessed on the basis of the records to be kept

by the retransmitter under section 135ZZN.

(3) A remuneration notice comes into force on the day on which it is

given to the collecting society, or on such earlier day as is specified

in the notice, and remains in force until it is revoked.

135ZZM Amount of equitable remuneration

(1) If a retransmitter gives a remuneration notice to a collecting

society, the amount of equitable remuneration payable to the

collecting society for each retransmission made by, or on behalf of,

the retransmitter while the notice is in force is the amount

determined by agreement between the retransmitter and the

collecting society or, failing such agreement, by the Copyright

Tribunal on application made by either of them.

(2) If a determination has been made by the Copyright Tribunal under

subsection (1), either the retransmitter or the collecting society

may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination payable to the collecting

society by the retransmitter for retransmissions made by, or on

behalf of, the retransmitter.

(3) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different classes of works, sound recordings or

cinematograph films included in retransmissions.

135ZZN Record system

(1) If a remuneration notice is given to a collecting society by, or on

behalf of, a retransmitter, the retransmitter must establish and

maintain a record system.

(2) The record system must provide for a record to be kept of the title

of each program included in each retransmission made by, or on

behalf of, the retransmitter of each broadcast made by each

broadcaster specified in the remuneration notice.

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Section 135ZZP

(3) Subject to subsection (2), the record system must be determined by

agreement between the retransmitter and the collecting society or,

failing such agreement, by the Copyright Tribunal on application

made by either of them.

135ZZP Inspection of records etc.

(1) If a remuneration notice is or has been in force, the collecting

society to which it was given may, in writing, notify the relevant

retransmitter that the society wishes, on a day specified in the

notice, being an ordinary working day of the retransmitter specified

in the notice, not earlier than 7 days after the day on which the

notice is given, to do such of the following things as are specified

in the notice:

(a) assess the number of retransmissions carried out at the

premises of the retransmitter;

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

relate to the making of retransmissions in reliance on

section 135ZZK;

(c) inspect such other records held at those premises as are

relevant to the assessment of the amount of equitable

remuneration payable by the retransmitter to the society.

(2) Subject to section 135ZZQ, if a collecting society gives a notice, a

person authorised in writing by the society may, during the

ordinary working hours of the retransmitter on the day specified in

the notice (but not before 10 am or after 3 pm), carry out the

assessment, or inspect the records, to which the notice relates and,

for that purpose, may enter the premises of the retransmitter.

(3) A retransmitter must take all reasonable precautions, and exercise

reasonable diligence, to ensure that a person referred to in

subsection (2) who attends the premises of the retransmitter for the

purpose of exercising the powers conferred by that subsection is

provided with all reasonable and necessary facilities and assistance

for the effective exercise of those powers.

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Division 2 Retransmission of free-to-air broadcasts

Section 135ZZQ

(4) A retransmitter who contravenes subsection (3) is guilty of an

offence punishable, on conviction, by a fine not exceeding 10

penalty units.

Note: A corporation may be fined up to 5 times the amount of the maximum fine. See subsection 4B(3) of the Crimes Act 1914.

135ZZQ Identity cards

(1) The chief executive officer (however described) of a collecting

society must issue an identity card in the prescribed form to each

person authorised by the society for the purposes of

subsection 135ZZP(2). The identity card must contain a recent

photograph of the authorised person.

(2) If an authorised person who attends or enters premises for the

purpose of exercising powers conferred by subsection 135ZZP(2)

fails to produce his or her identity card when asked to do so by a

person apparently in charge of the premises, the authorised person

must not enter or remain on the premises or exercise any other

powers under subsection 135ZZP(2) at the premises.

(3) A person is guilty of an offence punishable on conviction by a fine

not exceeding 1 penalty unit if:

(a) the person has been issued with an identity card; and

(b) the person stops being an authorised person; and

(c) the person does not, immediately after he or she stops being

an authorised person, return the identity card to the relevant

collecting society.

(4) An authorised person must carry his or her identity card at all times

when exercising powers under subsection 135ZZP(2).

135ZZR Revocation of remuneration notice

A remuneration notice may be revoked at any time by the relevant

retransmitter by notice in writing given to the collecting society to

which the remuneration notice was given, and the revocation takes

effect at the end of 3 months after the date of the notice, or on such

later day as is specified in it.

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Section 135ZZS

135ZZS Request for payment of equitable remuneration

(1) Subject to this section, where a remuneration notice is or has been

in force, the collecting society to which the notice was given may,

by notice in writing given to the relevant retransmitter, request the

retransmitter to pay to the society, within a reasonable time after

the date of the notice, the amount of equitable remuneration

specified in the notice, being an amount payable under

section 135ZZM for retransmissions made by, or on behalf of, the

retransmitter while the remuneration notice is or was in force.

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

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

retransmitter by the collecting society in the Federal Court of

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

to the society.

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Part VC Retransmission of free-to-air broadcasts

Division 3 Collecting societies

Section 135ZZT

Division 3—Collecting societies

135ZZT Collecting societies

(1) A body may apply to the Minister to be declared as a collecting

society for all relevant copyright owners or for specified classes of

relevant copyright owners.

(1A) After receiving the application, the Minister must do one of the

following:

(a) declare the body to be a collecting society, by notice in the

Gazette;

(b) refuse to declare the body to be a collecting society;

(c) refer the application to the Copyright Tribunal in the way

prescribed by the regulations and notify the body of the

referral.

(1B) A declaration made under paragraph (1A)(a) is not a legislative

instrument.

(1C) If the Minister refers the application to the Copyright Tribunal, the

Tribunal may declare the body to be a collecting society.

Note: Section 153P sets out the procedure of the Copyright Tribunal in dealing with the reference.

(1D) A declaration of the body as a collecting society must declare the

body to be:

(a) the collecting society for all relevant copyright owners; or

(b) the collecting society for classes of relevant copyright owners

specified in the declaration.

(2) If a body is declared to be the collecting society for a specified

class of copyright owners and another body is subsequently

declared to be the collecting society for that class of copyright

owners:

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

collecting society for that class of copyright owners on the

day on which the subsequent declaration is made; and

(b) any remuneration notice given to that collecting society

ceases to be in force to the extent to which it relates to

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Collecting societies Division 3

Section 135ZZT

relevant copyright owners included in that class of copyright

owners.

(3) The Minister and the Copyright Tribunal must not declare a body

to be a collecting society unless:

(a) it is a company limited by guarantee and incorporated under

a law in force in a State or Territory relating to companies;

and

(b) all persons who are included in a class of relevant copyright

owners to be specified in the declaration, or their agents, are

entitled to become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

being provisions necessary to ensure that the interests of

members of the collecting society who are relevant copyright

owners, or their agents, are protected adequately, including,

in particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable under section 135ZZM; and

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

society out of amounts collected by it; and

(iii) the distribution of amounts collected by the collecting

society; and

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

for relevant copyright owners who are not its members;

and

(v) access to records of the collecting society by its

members.

(4) If the Minister or the Copyright Tribunal has declared a body to be

the collecting society for a specified class of copyright owners, the

Minister and the Copyright Tribunal may refuse to declare another

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

unless satisfied that to do so would be in the interests of those

copyright owners, having regard to the number of members of the

first-mentioned society, the scope of its activities and such other

considerations as are relevant.

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Part VC Retransmission of free-to-air broadcasts

Division 3 Collecting societies

Section 135ZZU

135ZZU Revocation of declaration

(1) This section applies if the Minister is satisfied that a body declared

as a collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant copyright

owners, or their agents; or

(c) has altered its rules so that they no longer comply with

paragraphs 135ZZT(3)(c) and (d); or

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

with section 135ZZV or 135ZZW.

(2) The Minister may:

(a) by notice in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153Q sets out the procedure of the Copyright Tribunal in dealing with the reference.

135ZZV Annual report and accounts

(1) A collecting society must, as soon as practicable after the end of

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

(2) The Minister must cause a copy of the report sent to the Minister

under subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

(3) A collecting society must keep accounting records correctly

recording and explaining the transactions of the society (including

any transactions as trustee) and the financial position of the

society.

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Collecting societies Division 3

Section 135ZZW

(4) The accounting records must be kept in such a manner as will

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

time to time and those accounts to be conveniently and properly

audited.

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

each financial year, cause its accounts to be audited by an auditor

who is not a member of the society, and must send to the Minister

a copy of its accounts as so audited.

(6) A collecting society must give its members reasonable access to

copies of all reports and audited accounts prepared by it under this

section.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the law under which it is incorporated.

135ZZW Amendment of rules

A collecting society must, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out the effect of the alteration and the reasons

why it was made.

135ZZWA Applying to Tribunal for review of distribution

arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153R varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal‘s order has effect as if it had

been adopted in accordance with the collecting society‘s rules, but

does not affect a distribution started before the order was made.

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Part VC Retransmission of free-to-air broadcasts

Division 4 Interim retransmissions

Section 135ZZX

Division 4—Interim retransmissions

135ZZX Appointment of notice holder

The Attorney-General may, by notice in the Gazette, appoint a

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

135ZZY Retransmitting before declaration of collecting society

The copyright in any work, sound recording or cinematograph film

included in a retransmission of a free-to-air broadcast is not

infringed by the making of the retransmission if:

(a) at the time the retransmission is made, a collecting society

has not been declared; and

(b) a notice given by the retransmitter by whom, or on whose

behalf, the retransmission was made to the notice holder

under subsection 135ZZZ(1) is in force; and

(c) the retransmitter complies with section 135ZZN.

135ZZZ Notices by retransmitters

(1) A retransmitter may at any time before the declaration of the first

collecting society, by notice in writing given to the notice holder

by, or on behalf of, the retransmitter, undertake to pay equitable

remuneration to a collecting society, when it is declared, for

retransmissions made by, or on behalf of, the retransmitter while

the notice is in force.

(2) A notice must specify that the amount of equitable remuneration is

to be assessed on the basis of the records to be kept by the

retransmitter under section 135ZZN.

(3) A notice comes into force on the day on which it is given to the

notice holder, or on such later day as is specified in the notice, and

remains in force until it is revoked.

(4) A notice may be revoked at any time by the retransmitter by notice

in writing given to the notice holder, and the revocation takes

effect on the date of the notice of revocation or on such later date

as is specified in it.

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Interim retransmissions Division 4

Section 135ZZZA

135ZZZA Record keeping requirements

If a retransmitter gives a notice to the notice holder under

section 135ZZZ, sections 135ZZM and 135ZZN apply as if:

(a) references to a collecting society were references to the

notice holder; and

(b) references to a remuneration notice were references to a

notice under section 135ZZZ.

135ZZZB Effect of declaration of collecting society

(1) If:

(a) as a result of the declaration of one or more collecting

societies, there is a society for all relevant copyright owners;

and

(b) a notice under section 135ZZZ was in force immediately

before the day on which the declaration came into force;

then, on and after that day, the notice ceases to have effect as such

a notice, but is taken, for the purposes of this Part, to be a

remuneration notice that:

(c) was given by the relevant retransmitter to the collecting

society, or to each of the collecting societies, as the case may

be; and

(d) came into force on the same day as the notice came into

force.

(2) If:

(a) one or more collecting societies are declared for one or more,

but not for all, classes of relevant copyright owners; and

(b) a notice was in force immediately before the day on which

the declaration came into force;

then, on and after that day:

(c) the notice ceases to have effect as such a notice in relation to

the relevant copyright owners in the class or classes of

copyright owners for whom a collecting society is declared,

but is taken, for the purposes of this Part, to be a

remuneration notice that:

(i) was given by the relevant retransmitter to the collecting

society or to each of the collecting societies, as the case

may be; and

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Division 4 Interim retransmissions

Section 135ZZZB

(ii) came into force on the same day as the notice came into

force; and

(d) the notice continues to have effect as such a notice in relation

to all other relevant copyright owners.

(3) When a notice is, under this section, taken to be a remuneration

notice, the relevant retransmitter must cause copies of all records

made under section 135ZZN on or after the day on which the

notice is taken to have come into force to be sent to the relevant

collecting society within 21 days after the declaration of the

collecting society.

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Miscellaneous Division 5

Section 135ZZZC

Division 5—Miscellaneous

135ZZZC Relevant copyright owner may authorise retransmitting

Nothing in this Part affects the right of the owner of the copyright

in a work, sound recording or cinematograph film included in a

free-to-air broadcast to grant a licence authorising a retransmitter

to make, or cause to be made, a retransmission of the free-to-air

broadcast without infringing that copyright.

135ZZZD Copyright not to vest under this Part

Despite any other provision of this Act, the retransmission of a

free-to-air broadcast by, or on behalf of, a retransmitter that is not

an infringement of copyright under this Part, does not vest

copyright in any work or other subject-matter in any person.

135ZZZE Licence to retransmit does not authorise copyright

infringements

The owner of the copyright in a free-to-air broadcast is not taken,

for the purpose of this Act, to have authorised the infringement of

copyright in any work, sound recording or cinematograph film

included in the broadcast merely because the owner licences the

retransmission of the broadcast.

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Part VD Re-broadcasts by satellite BSA licensees

Division 1 Preliminary

Section 135ZZZF

Part VD—Re-broadcasts by satellite BSA licensees

Division 1—Preliminary

135ZZZF Definitions

In this Part:

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

to be a collecting society under section 135ZZZO.

commercial television broadcasting licence has the same meaning

as in the Broadcasting Services Act 1992.

eligible program has the meaning given by section 135ZZZG.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

notice holder means the person who is, for the time being,

appointed to be the notice holder under section 135ZZZT.

original broadcaster has the meaning given by section 135ZZZG.

relevant collecting society, in relation to a remuneration notice,

means a collecting society for owners of copyright in the same

kind of work or other subject-matter as that to which the

remuneration notice relates.

relevant copyright owner means the owner of the copyright in a

work, a sound recording or a cinematograph film, but does not

include a new owner of the copyright in a sound recording of a live

performance within the meaning of Subdivision B of Division 5 of

Part IV.

remuneration notice means a notice referred to in

section 135ZZZJ.

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

the memorandum and articles of association of the society.

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Re-broadcasts by satellite BSA licensees Part VD

Preliminary Division 1

Section 135ZZZG

135ZZZG Eligible program and original broadcaster

(2) For the purposes of this Part, if the following conditions are

satisfied in relation to a program:

(a) the program is broadcast by the licensee of a commercial

television broadcasting licence for a regional licence area

(within the meaning of section 43AA of the Broadcasting

Services Act 1992);

(b) the licensee is required to provide the program to a satellite

BSA licensee under section 43AA of that Act;

then:

(c) the program is an eligible program; and

(d) the licensee mentioned in paragraph (a) is the original

broadcaster of the eligible program.

(3) For the purposes of this Part, if the following conditions are

satisfied in relation to a program:

(a) the program is broadcast by the licensee of a commercial

television broadcasting licence;

(b) the licensee is required to provide the program to a satellite

BSA licensee under section 43AB or 43AC of the

Broadcasting Services Act 1992;

then:

(c) the program is an eligible program; and

(d) the licensee mentioned in paragraph (a) is the original

broadcaster of the eligible program.

135ZZZH Operation of collecting society rules

This Part applies to a collecting society despite anything in the

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

far as they can operate together with this Part.

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Part VD Re-broadcasts by satellite BSA licensees

Division 2 Re-broadcasts by satellite BSA licensees

Section 135ZZZI

Division 2—Re-broadcasts by satellite BSA licensees

135ZZZI Re-broadcasts by satellite BSA licensees

Copyright in a work, sound recording or cinematograph film

included in an eligible program

(1) The copyright in a work, sound recording or cinematograph film

included in a broadcast of an eligible program is not infringed by

the re-broadcast of the eligible program if:

(a) the eligible program is re-broadcast by a satellite BSA

licensee; and

(b) the eligible program is re-broadcast on a service authorised

by the satellite BSA licensee‘s satellite BSA licence; and

(c) the re-broadcast of the eligible program complies with the

conditions of the satellite BSA licensee‘s satellite BSA

licence that are set out in clause 7A of Schedule 2 to the

Broadcasting Services Act 1992; and

(d) a remuneration notice given by the satellite BSA licensee to

the relevant collecting society is in force; and

(e) the original broadcaster of the eligible program was specified

in the remuneration notice; and

(f) the satellite BSA licensee complies with section 135ZZZL.

Copyright in a broadcast of an eligible program

(2) The copyright in a broadcast of an eligible program is not infringed

by the re-broadcast of the eligible program if:

(a) the eligible program is re-broadcast by a satellite BSA

licensee; and

(b) the eligible program is re-broadcast on a service authorised

by the satellite BSA licensee‘s satellite BSA licence; and

(c) the re-broadcast of the eligible program complies with the

conditions of the satellite BSA licensee‘s satellite BSA

licence that are set out in clause 7A of Schedule 2 to the

Broadcasting Services Act 1992; and

(d) any of the following conditions is satisfied:

(i) there is an agreement in force between the satellite BSA

licensee and the owner of the copyright in the broadcast

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Re-broadcasts by satellite BSA licensees Division 2

Section 135ZZZI

of the eligible program as to the amount payable by the

satellite BSA licensee to the owner of the copyright for

the re-broadcast of eligible programs during a particular

period;

(ii) if there is no agreement—there is in force a

determination of the Copyright Tribunal under

section 153RA of the amount payable by the satellite

BSA licensee to the owner of the copyright in the

broadcast of the eligible program for the re-broadcast of

eligible programs during a particular period;

(iii) if there is no agreement or determination—the satellite

BSA licensee has given the owner of the copyright in

the broadcast of the eligible program a written

undertaking to pay to the owner of the copyright such

amount as is determined by the Copyright Tribunal

under section 153RA for the re-broadcast of eligible

programs during a particular period; and

(e) the eligible program is re-broadcast by the satellite BSA

licensee during the period mentioned in whichever of

subparagraphs (d)(i), (ii) or (iii) applies.

Making a copy for the purpose of a re-broadcast

(3) The copyright in a work, sound recording or cinematograph film

included in a broadcast of an eligible program is not infringed by

the making of a copy of the eligible program if:

(a) the sole purpose of making the copy is to enable a

re-broadcast of the eligible program at a later time; and

(b) subsection (1) would apply to the re-broadcast of the eligible

program at the later time.

(4) The copyright in a broadcast of an eligible program is not infringed

by the making of a copy of the eligible program if:

(a) the sole purpose of making the copy is to enable a

re-broadcast of the eligible program at a later time; and

(b) subsection (2) would apply to the re-broadcast of the eligible

program at the later time.

(5) If:

(a) a copy of an eligible program is made for a purpose referred

to in subsection (3) or (4); and

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Part VD Re-broadcasts by satellite BSA licensees

Division 2 Re-broadcasts by satellite BSA licensees

Section 135ZZZJ

(b) under a law of the Commonwealth, the satellite BSA licensee

is required to retain the copy for a period longer than 7 days

after the copy is made; and

(c) the copy is not destroyed as soon as practicable after the end

of that period;

subsection (3) or (4), as the case requires, does not apply, and is

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

(5A) If:

(a) a copy of an eligible program is made for a purpose referred

to in subsection (3) or (4); and

(b) subsection (5) does not apply; and

(c) the copy is not destroyed within 7 days after it is made;

subsection (3) or (4), as the case requires, does not apply, and is

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

(6) In this section, a reference to the making of a copy of an eligible

program is a reference to making a cinematograph film or sound

recording of the broadcast of the eligible program, or a copy of

such a film or sound recording.

135ZZZJ Remuneration notices

(1) A satellite BSA licensee may, by written notice given to the

relevant collecting society, undertake to pay equitable

remuneration to the society for re-broadcasts of eligible programs

broadcast by specified original broadcasters, where the eligible

programs are re-broadcast by the satellite BSA licensee while the

notice is in force.

(2) A remuneration notice must specify that the amount of equitable

remuneration is to be assessed on the basis of the records to be kept

by the satellite BSA licensee under section 135ZZZL.

(3) A remuneration notice comes into force on:

(a) the day on which it is given to the collecting society; or

(b) such earlier day as is specified in the notice;

and remains in force until it is revoked.

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Re-broadcasts by satellite BSA licensees Division 2

Section 135ZZZK

135ZZZK Amount of equitable remuneration

(1) If a satellite BSA licensee gives a remuneration notice to a

collecting society, the amount of equitable remuneration payable to

the collecting society for re-broadcasts of eligible programs by the

satellite BSA licensee while the notice is in force is the amount:

(a) determined by agreement between the satellite BSA licensee

and the collecting society; or

(b) failing such agreement—determined by the Copyright

Tribunal on application made by either of them.

(2) If a determination has been made by the Copyright Tribunal under

subsection (1), either:

(a) the satellite BSA licensee; or

(b) the collecting society;

may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of amounts payable to the

collecting society by the satellite BSA licensee for re-broadcasts of

eligible programs by the satellite BSA licensee.

(3) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different classes of:

(a) works; or

(b) sound recordings; or

(c) cinematograph films;

included in re-broadcasts.

135ZZZL Record system

(1) If a remuneration notice is given to a collecting society by a

satellite BSA licensee, the satellite BSA licensee must establish

and maintain a record system.

(2) The record system must provide:

(a) for a record to be kept of the title of each eligible program

that is:

(i) broadcast by an original broadcaster specified in the

remuneration notice; and

(ii) re-broadcast by the satellite BSA licensee; and

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Division 2 Re-broadcasts by satellite BSA licensees

Section 135ZZZM

(b) for the collecting society to have access to such a record.

(3) The record system must be:

(a) determined by agreement between the satellite BSA licensee

and the collecting society; or

(b) failing such agreement—determined by the Copyright

Tribunal on application made by either of them.

(4) Subsection (3) has effect subject to subsection (2).

135ZZZM Revocation of remuneration notice

(1) A remuneration notice may be revoked at any time by the relevant

satellite BSA licensee by written notice given to the collecting

society to which the remuneration notice was given.

(2) The revocation takes effect:

(a) at the end of 3 months after the date of the notice; or

(b) on such later day as is specified in the notice.

135ZZZN Request for payment of equitable remuneration

(1) If a remuneration notice is or has been in force, the collecting

society to which the notice was given may, by written notice given

to the relevant satellite BSA licensee, request the satellite BSA

licensee to pay to the society, within a reasonable time after the

date of the notice, the amount of equitable remuneration specified

in the notice.

(2) The amount specified in the notice must be an amount payable

under section 135ZZZK for re-broadcasts made by the satellite

BSA licensee while the remuneration notice is or was in force.

(3) Subsection (1) has effect subject to subsection (4).

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

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

satellite BSA licensee by the collecting society in:

(a) the Federal Court of Australia; or

(b) any other court of competent jurisdiction;

as a debt due to the society.

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Collecting societies Division 3

Section 135ZZZO

Division 3—Collecting societies

135ZZZO Collecting societies

(1) A body may apply to the Minister to be declared as a collecting

society for:

(a) all relevant copyright owners; or

(b) specified classes of relevant copyright owners.

(2) After receiving the application, the Minister must do one of the

following:

(a) by notice published in the Gazette, declare the body to be a

collecting society;

(b) refuse to declare the body to be a collecting society;

(c) both:

(i) refer the application to the Copyright Tribunal in the

way prescribed by the regulations; and

(ii) notify the body of the referral.

(3) A declaration made under paragraph (2)(a) is not a legislative

instrument.

(4) If the Minister refers the application to the Copyright Tribunal, the

Tribunal may declare the body to be a collecting society.

Note: Section 153U sets out the procedure of the Copyright Tribunal in dealing with the reference.

(5) A declaration of the body as a collecting society must declare the

body to be:

(a) the collecting society for all relevant copyright owners; or

(b) the collecting society for classes of relevant copyright owners

specified in the declaration.

(6) If:

(a) a body is declared to be the collecting society for a specified

class of copyright owners; and

(b) another body is subsequently declared to be the collecting

society for that class of copyright owners:

then:

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Section 135ZZZO

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

collecting society for that class of copyright owners on the

day on which the subsequent declaration is made; and

(d) any remuneration notice given to that collecting society

ceases to be in force to the extent to which it relates to

relevant copyright owners included in that class of copyright

owners.

(7) The Minister and the Copyright Tribunal must not declare a body

to be a collecting society unless:

(a) it is:

(i) registered as a company under Part 2A.2 of the

Corporations Act 2001; and

(ii) a company limited by guarantee; and

(b) all persons who are included in a class of relevant copyright

owners to be specified in the declaration, or their agents, are

entitled to become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

where the provisions are necessary to ensure that the interests

of members of the collecting society who are relevant

copyright owners, or their agents, are protected adequately,

including, in particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable under section 135ZZZK; and

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

society out of amounts collected by it; and

(iii) the distribution of amounts collected by the collecting

society; and

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

for relevant copyright owners who are not its members;

and

(v) access to records of the collecting society by its

members.

(8) If the Minister or the Copyright Tribunal has declared a body to be

the collecting society for a specified class of copyright owners, the

Minister and the Copyright Tribunal may refuse to declare another

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

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Collecting societies Division 3

Section 135ZZZP

unless satisfied that to do so would be in the interests of those

copyright owners, having regard to:

(a) the number of members of the first-mentioned society; and

(b) the scope of its activities; and

(c) such other considerations as are relevant.

135ZZZP Revocation of declaration

(1) This section applies if the Minister is satisfied that a body declared

as a collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant copyright

owners, or their agents; or

(c) has altered its rules so that they no longer comply with

paragraphs 135ZZZO(7)(c) and (d); or

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

with section 135ZZZQ or 135ZZZR.

(2) The Minister may:

(a) by notice published in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153V sets out the procedure of the Copyright Tribunal in dealing with the reference.

135ZZZQ Annual report and accounts

(1) A collecting society must, as soon as practicable after the end of

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

(2) The Minister must cause a copy of the report sent to the Minister

under subsection (1) to be tabled in each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

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Division 3 Collecting societies

Section 135ZZZR

(3) A collecting society must keep accounting records correctly

recording and explaining:

(a) the transactions of the society (including any transactions as

trustee); and

(b) the financial position of the society.

(4) The accounting records must be kept in such a manner as will

enable:

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

to time; and

(b) those accounts to be conveniently and properly audited.

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

each financial year:

(a) cause its accounts to be audited by an auditor who is not a

member of the society; and

(b) send to the Minister a copy of its accounts as so audited.

(6) A collecting society must give its members reasonable access to

copies of all reports and audited accounts prepared by it under this

section.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the Corporations Act 2001.

(8) For the purposes of this section, the period:

(a) beginning at the commencement of this section; and

(b) ending at the end of 30 June 2010;

is taken to be a financial year.

135ZZZR Amendment of rules

A collecting society must, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out:

(a) the effect of the alteration; and

(b) the reasons why it was made.

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Section 135ZZZS

135ZZZS Applying to Tribunal for review of distribution

arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153W varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal‘s order has effect as if it had

been adopted in accordance with the collecting society‘s rules, but

does not affect a distribution started before the order was made.

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Division 4 Interim re-broadcasts

Section 135ZZZT

Division 4—Interim re-broadcasts

135ZZZT Appointment of notice holder

The Minister may, by notice published in the Gazette, appoint a

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

135ZZZU Re-broadcast before declaration of collecting society

The copyright in a work, sound recording or cinematograph film

included in a broadcast of an eligible program is not infringed by

the re-broadcast of the eligible program if:

(a) the eligible program is re-broadcast by a satellite BSA

licensee; and

(b) the eligible program is re-broadcast on a service authorised

by the satellite BSA licensee‘s satellite BSA licence; and

(c) the re-broadcast of the eligible program complies with the

conditions of the satellite BSA licensee‘s satellite BSA

licence that are set out in clause 7A of Schedule 2 to the

Broadcasting Services Act 1992; and

(d) at the time the re-broadcast is made, a collecting society has

not been declared; and

(e) a notice given by the satellite BSA licensee to the notice

holder under subsection 135ZZZV(1) is in force; and

(f) the satellite BSA licensee complies with section 135ZZZL.

135ZZZV Notices by satellite BSA licensees

(1) A satellite BSA licensee may, at any time before the declaration of

the first collecting society, by written notice given to the notice

holder by the satellite BSA licensee, undertake to pay equitable

remuneration to a collecting society, when it is declared, for

re-broadcasts of eligible programs by the satellite BSA licensee

while the notice is in force.

(2) A notice must specify that the amount of equitable remuneration is

to be assessed on the basis of the records to be kept by the satellite

BSA licensee under section 135ZZZL.

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Interim re-broadcasts Division 4

Section 135ZZZW

(3) A notice comes into force on:

(a) the day on which it is given to the notice holder; or

(b) such later day as is specified in the notice;

and remains in force until it is revoked.

(4) A notice may be revoked at any time by the satellite BSA licensee

by written notice given to the notice holder.

(5) The revocation takes effect:

(a) on the date of the notice of revocation; or

(b) on such later date as is specified in the notice of revocation.

135ZZZW Record keeping requirements

If a satellite BSA licensee gives a notice to the notice holder under

section 135ZZZV, sections 135ZZZK and 135ZZZL apply as if:

(a) references to a collecting society were references to the

notice holder; and

(b) references to a remuneration notice were references to a

notice under section 135ZZZV.

135ZZZX Effect of declaration of collecting society

(1) If:

(a) as a result of the declaration of one or more collecting

societies, there is a society for all relevant copyright owners;

and

(b) a notice under section 135ZZZV was in force immediately

before the day on which the declaration came into force;

then, on and after that day, the notice ceases to have effect as such

a notice, but is taken, for the purposes of this Part, to be a

remuneration notice that:

(c) was given by the relevant satellite BSA licensee to the

collecting society, or to each of the collecting societies, as the

case may be; and

(d) came into force on the same day as the notice came into

force.

(2) If:

(a) one or more collecting societies are declared for one or more,

but not for all, classes of relevant copyright owners; and

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Section 135ZZZX

(b) a notice was in force immediately before the day on which

the declaration came into force;

then, on and after that day:

(c) the notice ceases to have effect as such a notice in relation to

the relevant copyright owners in the class or classes of

copyright owners for whom a collecting society is declared,

but is taken, for the purposes of this Part, to be a

remuneration notice that:

(i) was given by the relevant satellite BSA licensee to the

collecting society or to each of the collecting societies,

as the case may be; and

(ii) came into force on the same day as the notice came into

force; and

(d) the notice continues to have effect as such a notice in relation

to all other relevant copyright owners.

(3) When a notice is, under this section, taken to be a remuneration

notice, the relevant satellite BSA licensee must cause copies of all

records made under section 135ZZZL on or after the day on which

the notice is taken to have come into force to be sent to the relevant

collecting society within 21 days after the declaration of the

collecting society.

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Miscellaneous Division 5

Section 135ZZZY

Division 5—Miscellaneous

135ZZZY Relevant copyright owner may authorise re-broadcast

(1) Nothing in this Part affects the right of the owner of the copyright

in a broadcast of an eligible program to grant a licence authorising

a satellite BSA licensee to re-broadcast the eligible program

without infringing that copyright.

(2) Nothing in this Part affects the right of the owner of the copyright

in a work, sound recording or cinematograph film included in a

broadcast of an eligible program to grant a licence authorising a

satellite BSA licensee to re-broadcast the eligible program without

infringing that copyright.

135ZZZZ Copyright not to vest under this Part

Despite any other provision of this Act, the re-broadcast of an

eligible program that is not an infringement of copyright under this

Part does not vest copyright in any work or other subject-matter in

any person.

135ZZZZA Licence to re-broadcast does not authorise copyright

infringements

The owner of the copyright in a broadcast of an eligible program is

not taken, for the purposes of this Act, to have authorised the

infringement of copyright in any work, sound recording or

cinematograph film included in the broadcast of the eligible

program merely because the owner licenses the re-broadcast of the

eligible program.

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Part VI Copyright Tribunal of Australia

Division 1 Preliminary

Section 136

Part VI—Copyright Tribunal of Australia

Division 1—Preliminary

136 Interpretation

(1) In this Part, unless the contrary intention appears:

Deputy President means a Deputy President of the Tribunal.

Judge means:

(a) a Judge of a federal court or of the Supreme Court of a State

or Territory; or

(b) a person who has the same designation and status as a Judge

of a federal court.

licence means a licence granted by or on behalf of the owner or

prospective owner of the copyright in a work or other

subject-matter to do an act comprised in the copyright.

licence scheme means a scheme (including anything in the nature

of a scheme, whether called a scheme or tariff or called by any

other name) formulated by a licensor or licensors and setting out

the classes of cases in which the licensor or each of the licensors is

willing, or the persons on whose behalf the licensor or each of the

licensors acts are willing, to grant licences and the charges (if any)

subject to payment of which, and the conditions subject to which,

licences would be granted in those classes of cases.

licensor means a body corporate for which both the following

conditions are met:

(a) the body is incorporated under a law in force in a State or

Territory relating to companies;

(b) the body‘s constitution:

(i) entitles any owner of copyright, or any owner of

copyright of a specified kind, to become a member of

the body; and

(ii) requires the body to protect the interests of its members

connected with copyright; and

(iii) provides that the main business of the body is granting

licences; and

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Preliminary Division 1

Section 136

(iv) requires the body to distribute to its members the

proceeds (after deduction of the body‘s administrative

expenses) from payments to the body for licences; and

(v) prevents the body from paying dividends.

member means a member of the Tribunal, and includes the

President and a Deputy President.

order includes an interim order.

organization means an organization or association of persons

whether corporate or unincorporate.

the President means the President of the Tribunal.

(2) In this Part:

(a) a reference to conditions is a reference to any conditions

other than conditions relating to the payment of a charge;

(b) a reference to giving an opportunity to a person or

organization of presenting a case is a reference to giving the

person or organization an opportunity, at the option of the

person or organization, of submitting representations in

writing, or of being heard, or of submitting representations in

writing and being heard;

(c) a reference to a person who requires a licence of a particular

kind includes a reference to a person who holds a licence of

that kind if the person will, at the expiration of the period for

which the licence was granted, require a renewal of that

licence or a grant of a further licence of the same kind; and

(d) a reference to proceedings for infringement of copyright

includes a reference to a prosecution of an offence against

Subdivision D of Division 5 of Part V.

(3) For the purposes of this Part, a person shall not be taken not to

require a licence to cause a sound recording to be heard in public

by reason only of the operation of section 108.

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Part VI Copyright Tribunal of Australia

Division 1 Preliminary

Section 137

137 Cases to which licence schemes apply

(1) For the purposes of this Part, a case shall, subject to the next

succeeding subsection, be deemed to be a case to which a licence

scheme applies if, in accordance with a licence scheme for the time

being in operation, a licence would be granted in that case.

(2) For the purposes of this Part, where, in accordance with a licence

scheme:

(a) the licences that would be granted would be subject to

conditions by virtue of which particular matters would be

excepted from the licences; and

(b) a case relates to one or more matters falling within such an

exception;

that case shall be deemed not to be a case to which the scheme

applies.

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Constitution of the Tribunal Division 2

Section 138

Division 2—Constitution of the Tribunal

138 Constitution of Tribunal

The Copyright Tribunal established by the section for which this

section was substituted by section 138 of the Statute Law

(Miscellaneous Amendments) Act (No. 1) 1982 continues in

existence as the Copyright Tribunal of Australia but shall consist of

a President, and such number of Deputy Presidents and other

members as are appointed in accordance with this Division.

139 Appointment of members of Tribunal

A member of the Tribunal shall be appointed by the

Governor-General.

140 Qualifications of members

(1) A person shall not be appointed as the President unless he or she is

a Judge of the Federal Court of Australia.

(1A) A person is not to be appointed as a Deputy President unless he or

she is, or has been, a Judge of a federal court or of the Supreme

Court of a State or Territory.

(2) A person shall not be appointed as a member (other than the

President or a Deputy President) unless:

(a) he or she is or has been a Judge;

(b) he or she is enrolled as a legal practitioner of the High Court,

of another federal court or of the Supreme Court of a State or

Territory and has been so enrolled for not less than 5 years;

(c) he or she has had experience, for not less than 5 years, at a

high level in industry, commerce, business, public

administration, education or the practice of a profession;

(d) he or she has obtained a degree of a university, or an

educational qualification of a similar standing, after studies

in the field of law, economics or public administration; or

(e) he or she has, in the opinion of the Governor-General, special

knowledge or skill relevant to the duties of a member.

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Part VI Copyright Tribunal of Australia

Division 2 Constitution of the Tribunal

Section 141

141 Tenure of office

(1) Subject to this section, a member holds office for such period, not

exceeding 7 years, as is specified in the instrument of his or her

appointment, but is eligible for re-appointment.

(2) Where a member who is a Judge ceases to be a Judge, he or she

ceases to hold office as a member, but he or she is eligible for

appointment as a member (other than the President).

(3) The Governor-General may terminate the appointment of a

member (other than a member who is a Judge) for physical or

mental incapacity.

(4) The Governor-General shall terminate the appointment of a

member (other than a member who is a Judge) if:

(a) the member is guilty of misbehaviour; or

(b) the member becomes bankrupt, applies to take the benefit of

any law for the relief of bankrupt or insolvent debtors,

compounds with his or her creditors or makes an assignment

of his or her remuneration for their benefit.

141A Seniority of Deputy Presidents

(1) The Deputy Presidents have seniority as Deputy Presidents

according to the dates of their first appointment to the Tribunal, or,

if 2 or more Deputy Presidents were appointed on the same day,

according to the precedence assigned to them in their instruments

of appointment.

(2) At any time when only one person is holding office as a Deputy

President, any reference in this Part to ‗the senior Deputy

President‘ is to be taken to be a reference to the Deputy President.

142 Acting President

The Governor-General may appoint the senior Deputy President

available to act in the office of President:

(a) during a vacancy in that office; or

(b) during any period when the person holding that office is

absent from duty or from Australia or is, for any other

reason, unable to perform the functions of that office.

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Constitution of the Tribunal Division 2

Section 143

143 Remuneration and allowances

(1) Subject to this section, a member shall be paid such remuneration

as is determined by the Remuneration Tribunal but, if no

determination of that remuneration by the Tribunal is in operation,

the member shall be paid such remuneration as is prescribed.

(2) A member shall be paid such allowances as are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973.

(4) A member who is a Judge is not, while he or she receives salary or

annual allowance as a Judge, entitled to remuneration under this

Act.

144 Oath or affirmation of office

(1) A member shall, before proceeding to discharge the duties of his or

her office, take an oath or make an affirmation in accordance with

the form of oath or affirmation in the Schedule to this Act.

(2) An oath or affirmation shall be taken or made before a justice or

judge of a federal court or of the Supreme Court of a State.

144A Disclosure of interests by members

(1) Where a member is, or is to be, the Tribunal, or a member of the

Tribunal, as constituted for the purposes of a proceeding and the

member has or acquires any interest, pecuniary or otherwise, that

could conflict with the proper performance of his or her functions

in relation to that proceeding:

(a) he or she shall disclose the interest to the parties to the

proceeding; and

(b) except with the consent of all the parties to the proceeding,

he or she shall not take part in the proceeding.

(2) Where the President becomes aware that a member is, or is to be,

the Tribunal, or a member of the Tribunal, as constituted for the

purposes of a proceeding and that the member has, in relation to

that proceeding, such an interest as is mentioned under

subsection (1):

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Division 2 Constitution of the Tribunal

Section 144B

(a) if the President considers that the member should not take

part, or should not continue to take part, in the

proceeding—he or she shall give a direction to the member

accordingly; or

(b) in any other case—he or she shall cause the interest of the

member to be disclosed to the parties to the proceeding.

(3) In this section, a reference to a proceeding includes a reference to a

proceeding by way of an application or reference to the Tribunal

under this Act.

144B Removal from office for failure to disclose interest

Where the Governor-General is satisfied that a member (other than

a member who is a Judge) has failed, without reasonable excuse, to

make a disclosure that he or she is, under subsection 144A(1),

required to make, the Governor-General shall remove that member

from office.

145 Resignation

A member may resign the office of member by giving a signed

notice of resignation to the Governor-General.

146 Sittings of the Tribunal

(1) Sittings of the Tribunal shall be held at such places and times as

the President determines.

(2) Subject to the next succeeding subsection, the Tribunal shall be

constituted by a single member.

(3) If a party to an application or reference requests that the Tribunal

be constituted by more than one member for the purposes of the

application or reference, the Tribunal must, for the purposes of the

application or reference, be constituted by not less than 2 members

of whom one must be the President or a Deputy President.

(3A) Nothing in subsection (3) prevents a single member from

exercising the powers of the Tribunal in relation to matters of

procedure.

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Constitution of the Tribunal Division 2

Section 147

(4) At a proceeding before the Tribunal constituted by more than one

member:

(a) if the President is one of the members constituting the

Tribunal—he or she shall preside; and

(b) in any other case—the senior Deputy President who is

present is to preside.

(5) Where the Tribunal constituted by more than one member is

divided in opinion on a question, the question shall be decided

according to the decision of the majority, if there is a majority, but

if the Tribunal as so constituted is equally divided in opinion, the

question shall be decided according to the opinion of the President

or, if he or she is not one of the members constituting the Tribunal,

according to the opinion of the senior Deputy President who is

present.

(6) The Tribunal constituted by a member or members may sit and

exercise the powers of the Tribunal notwithstanding that the

Tribunal constituted by another member or other members is at the

same time sitting and exercising those powers.

(7) The exercise of the powers of the Tribunal is not affected by a

vacancy or vacancies in the membership of the Tribunal.

(8) Where the hearing of any proceeding has been commenced before

the Tribunal constituted by 2 or more members and one or more of

those members has ceased to be a member or has ceased to be

available for the purposes of the proceeding, the remaining

member or members may continue the hearing of the proceeding if

the remaining member, or one of the remaining members, is the

President or a Deputy President.

147 President to arrange business of Tribunal

The President may give directions as to the arrangement of the

business of the Tribunal and, subject to subsection 146(2) or (3), as

to the constitution of the Tribunal for the purposes of particular

proceedings.

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Part VI Copyright Tribunal of Australia

Division 3 Applications and references to the Tribunal

Section 148

Division 3—Applications and references to the Tribunal

Subdivision A—Preliminary

148 Interpretation

In this Division:

copyright material, government and government copy have the

same meanings as in Division 2 of Part VII.

Subdivision B—Applications relating to Parts III and IV

149 Applications to Tribunal for determination of remuneration

payable for making recording or film of a work

(1) This section applies where an application is made to the Tribunal

in pursuance of subsection 47(3) or 70(3) for the determination of

an equitable remuneration to be paid to the owner of the copyright

in a work for the making of a sound recording or cinematograph

film of the work or of an adaptation of the work.

(2) The parties to an application in relation to which this section

applies are:

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

(b) the maker of the recording or film.

(3) Where an application in relation to which this section applies is

made to the Tribunal, the Tribunal shall consider the application

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

presenting their cases, shall make an order determining the amount

that it considers to be equitable remuneration to the owner of the

copyright for the making of the recording or film.

149A Applications to Tribunal under section 47A

(1) This section applies to any application made to the Tribunal under

subsection 47A(8) for the determining of an amount payable by a

person or body by way of equitable remuneration to an owner of

copyright.

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(2) The parties to an application to which this section applies are the

person or body, and the owner of the copyright, referred to in

subsection (1).

(3) Where an application to which this section applies is made to the

Tribunal, the Tribunal shall consider the application and, after

giving the parties to the application opportunities of presenting

their cases, shall make an order determining the amount that it

considers to be payable by the person or body by way of equitable

remuneration to the owner of the copyright.

150 Applications to Tribunal for determination of remuneration

payable to owner of copyright in recording for making of

a copy of the sound recording

(1) This section applies where an application is made to the Tribunal

in pursuance of subsection 107(3) for the determination of an

equitable remuneration to be paid to the owner of the copyright in a

sound recording for the making of a copy of the sound recording.

(2) The parties to an application in relation to which this section

applies are:

(a) the owner of the copyright in the sound recording; and

(b) the maker of the copy of the sound recording.

(3) Where an application in relation to which this section applies is

made to the Tribunal, the Tribunal shall consider the application

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

presenting their cases, shall make an order determining the amount

that it considers to be equitable remuneration to the owner of the

copyright for the making of the copy of the sound recording.

151 Applications to Tribunal for determination of remuneration

payable to owner of copyright in recording in respect of

public playing of the recording

(1) This section applies where an application is made to the Tribunal

in pursuance of subsection 108(1) for the determination of an

equitable remuneration to be paid to the owner of the copyright in a

sound recording for the causing of the recording to be heard in

public.

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(2) The parties to an application in relation to which this section

applies are:

(a) the owner of the copyright in the recording; and

(b) the person who caused the recording to be heard in public.

(3) Where an application in relation to which this section applies is

made to the Tribunal, the Tribunal shall consider the application

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

presenting their cases, shall make an order determining the amount

that it considers to be equitable remuneration to the owner of the

copyright for the causing of the recording to be heard in public.

152 Applications to Tribunal for determination of amounts payable

for broadcasting published sound recordings

(1) In this section, unless the contrary intention appears:

Australia does not include the external Territories.

broadcaster means:

(a) the Australian Broadcasting Corporation; or

(aa) the Special Broadcasting Service Corporation; or

(b) the holder of a licence allocated by the Australian

Communications and Media Authority under the

Broadcasting Services Act 1992; or

(c) a person making a broadcast under the authority of a class

licence determined by the Australian Communications and

Media Authority under the Broadcasting Services Act 1992.

broadcasting does not include broadcasting by a transmission for a

fee payable to the person who made the broadcast.

(1A) For the purposes of the application of this section in relation to a

period before the commencement of this subsection, this section

has effect as if any act or thing done during that period by the

Australian Broadcasting Commission had been done by the

Australian Broadcasting Corporation and any earnings of the

Australian Broadcasting Commission during that period were

earnings of the Australian Broadcasting Corporation.

(1B) In its application in relation to a period before the commencement

of this subsection, this section has effect as if any act or thing done

during that period by the Special Broadcasting Service had been

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done by the Special Broadcasting Service Corporation and any

earnings of the Special Broadcasting Service during that period

were earnings of the Special Broadcasting Service Corporation.

(2) Subject to this section, an application may be made to the Tribunal

for an order determining, or making provision for determining, the

amount payable by a broadcaster to the owners of copyrights in

published sound recordings in respect of the broadcasting, during a

period specified in the application, of those recordings by that

broadcaster.

(3) An application under the last preceding subsection may be made by

the broadcaster or by the owner of a copyright in a published sound

recording.

(4) The parties to an application under subsection (2) are:

(a) the person making the application; and

(b) such organizations or persons as apply to the Tribunal to be

made parties to the application and, in accordance with the

next succeeding subsection, are made parties to the

application.

(5) Where an organization (whether claiming to be representative of

broadcasters or of the owners of copyrights in published sound

recordings or not) or a person (whether a broadcaster or the owner

of a copyright in a published sound recording or not) applies to the

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

and the Tribunal is satisfied that the organization or person has a

substantial interest in the matter that is the subject of the

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

organization or person a party to the application.

(6) The Tribunal shall consider an application under subsection (2)

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

presenting their cases, shall make an order:

(a) determining, or making provision for determining, the

amount payable by the broadcaster to the owners of

copyrights in published sound recordings in respect of the

broadcasting, during the period to which the order applies, by

the broadcaster of those recordings;

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(b) specifying as the persons among whom that amount is to be

divided such of the persons who were, or were represented

by, parties to the application as the Tribunal is satisfied are

the owners of copyrights in published sound recordings; and

(c) specifying as the respective shares in that amount of the

persons among whom that amount is to be divided and as the

times at which those shares are to be paid such shares and

times as those persons agree or, in default of agreement, as

the Tribunal thinks equitable.

(7) In so making an order in relation to a broadcaster, the Tribunal

shall take into account all relevant matters, including the extent to

which the broadcaster uses, for the purposes of broadcasting,

records embodying sound recordings (other than recordings in

relation to which section 105 applies) in which copyrights subsist,

being copyrights owned by persons who are, or are represented by,

parties to the application.

(8) The Tribunal must not make an order that would require a

broadcaster who is:

(a) the holder of a licence allocated by the Australian

Communications and Media Authority under the

Broadcasting Services Act 1992 that authorises the holder to

broadcast radio programs; or

(b) a person authorised by a class licence determined by that

Authority under that Act to broadcast radio programs;

to pay, in respect of the broadcasting of published sound

recordings during the period covered by the order, an amount

exceeding 1% of the amount determined by the Tribunal to be the

gross earnings of the broadcaster during the period equal to the

period covered by the order that ended on the last 30 June that

occurred before the period covered by the order.

(9) If a broadcaster that is:

(a) the holder of a licence allocated by the Australian

Communications and Media Authority under the

Broadcasting Services Act 1992 that authorises the holder to

broadcast radio programs; or

(b) a person authorised by a class licence determined by that

Authority under that Act to broadcast radio programs;

has, with the permission of that Authority, adopted an accounting

period ending on a day other than 30 June, the reference in

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subsection (8) to 30 June is, in relation to that broadcaster, a

reference to that other day.

(10) Subsection (8) does not apply to an order in relation to a

broadcaster unless:

(a) the broadcaster establishes to the satisfaction of the Tribunal

the amount of the gross earnings of the broadcaster during

the period in respect of which those earnings are to be

determined; and

(b) the broadcaster carried on the transmission of programmes by

way of sound broadcasting throughout the whole of that

period.

(11) Where an application is made to the Tribunal under subsection (2)

in relation to the Australian Broadcasting Corporation, the

Tribunal:

(a) shall make separate orders in respect of sound broadcasts by

the Corporation of published sound recordings and in respect

of television broadcasts by the Corporation of such

recordings; and

(b) shall not make an order that would require the Corporation to

pay, in respect of sound broadcasts of published sound

recordings during the period in relation to which the order

applies, an amount exceeding the sum of:

(i) in respect of each complete year included in that period

the amount ascertained by multiplying one-half of One

cent by the number equal to the number of persons

comprised in the estimated population of Australia as

last set out in statistics published by the Commonwealth

Statistician before the making of the order; and

(ii) in respect of each part of a year included in that

period—the amount that bears to the amount ascertained

in accordance with the last preceding subparagraph in

relation to a complete year the same proportion as that

part of a year bears to a complete year.

(12) A person who is not specified in an order in force under

subsection (6) as one of the persons among whom the amount

specified in, or determined in accordance with, the order is to be

divided may, before the expiration of the period to which the order

applies, apply to the Tribunal for an amendment of the order so as

to specify him or her as one of those persons.

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(13) The parties to an application under the last preceding subsection

for an amendment of an order are:

(a) the person making the application;

(b) the broadcaster in relation to whom the order applies;

(c) the persons specified in the order as the persons among

whom the amount specified in, or determined in accordance

with, the order is to be divided; and

(d) such organizations or persons as apply to the Tribunal to be

made parties to the application and, in accordance with

subsection (5), are made parties to the application.

(14) The Tribunal shall consider an application under subsection (12)

for an amendment of an order in force under subsection (6) (in this

subsection referred to as the principal order) and, after giving the

parties to the application an opportunity of presenting their cases,

shall, if it is satisfied that the applicant is the owner of the

copyright or copyrights in one or more published sound recordings,

make an order amending the principal order so as to:

(a) specify the applicant as one of the persons among whom the

amount specified in, or determined in accordance with, the

principal order is to be divided; and

(b) specify as the share of the applicant in that amount and as the

times at which that share is to be paid such share and times as

the applicant and the other persons among whom that amount

is to be divided agree or, in default of agreement, as the

Tribunal thinks equitable and make any consequential

alterations in respect of the shares of those other persons.

(15) An order of the Tribunal made under subsection (6) in relation to a

broadcaster applies in relation to the period commencing on the

date specified in the order and ending on 30 June next succeeding

the date of making of the order.

(16) The date that may be so specified in an order of the Tribunal made

under subsection (6) in relation to a broadcaster may be a date

before the date of making of the order or before the date of making

of the application but shall not be a date before the date of

expiration of the period in relation to which the last preceding

order (if any) of the Tribunal made under that subsection in

relation to that broadcaster applied or before the date of

commencement of this Act.

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(17) An order of the Tribunal made under subsection (14) amending an

order of the Tribunal made under subsection (6) applies in relation

to the period commencing on the date of making of the amending

order and ending on the date of expiration of the period in relation

to which the order that is being amended applies.

(18) Where an order of the Tribunal is in force under this section, the

broadcaster in relation to whom the order applies is liable to pay to

each of the persons specified in the order as the persons among

whom the amount specified in, or determined in accordance with,

the order is to be divided the share so specified in relation to that

person and is so liable to pay that share at the times so specified

and that person may recover any amount that is not paid in

accordance with the order in a court of competent jurisdiction from

the broadcaster as a debt due to the person.

(19) For the purposes of this section, the gross earnings of a broadcaster

in respect of a period are the gross earnings of the broadcaster

during that period in respect of the broadcasting by the broadcaster

of advertisements or other matter, including the gross earnings of

the broadcaster during that period in respect of the provision by the

broadcaster of, or otherwise in respect of, matter broadcast by the

broadcaster.

(20) Where, in connexion with a transaction, any consideration is paid

or given otherwise than in cash, the money value of that

consideration shall, for the purposes of the last preceding

subsection, be deemed to have been paid or given.

(21) Where the Tribunal is of the opinion that:

(a) an amount, or part of an amount, earned during any period by

a person other than a broadcaster would, if the broadcaster

and that person were the same person, form part of the gross

earnings of the broadcaster in respect of that period for the

purposes of this section; and

(b) a relationship exists between the broadcaster and the other

person (whether by reason of any shareholding or of any

agreement or arrangement, or for any other reason) of such a

kind that the amount or the part of the amount, as the case

may be, should, for the purposes of this section, be treated as

part of the gross earnings of the broadcaster in respect of that

period;

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the Tribunal may so treat the amount or the part of the amount, as

the case may be.

152A Applications to Tribunal for determination of amount of

royalty payable for recording musical works

(1) In this section:

manufacturer has the same meaning as in section 55.

(2) Subject to this section, an application may be made to the Tribunal

for an order determining, or making provision for determining, the

amount of royalty payable by the manufacturer of a record of a

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

period specified in the application.

(3) An application may be made by the manufacturer or the owner of

the copyright in the musical work recorded by the manufacturer.

(4) The parties to an application are:

(a) the manufacturer and the owner of the copyright in the

musical work; and

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

application.

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

shall consider the application and, after giving the parties an

opportunity of presenting their cases, make an order determining,

or making provision for determining, an equitable amount of

royalty payable by the manufacturer of the record of the musical

work to the owner of the copyright in the work during the period

specified in the order.

(6) Where an organisation (whether claiming to represent

manufacturers or the owners of copyrights in musical works or not)

or a person (whether a manufacturer or the owner of the copyright

in a musical work or not) applies to the Tribunal to be made a party

to an application under this section, the Tribunal may, if it thinks

fit, make that organisation or person a party to the application if the

Tribunal is satisfied that the organisation or person has a

substantial interest in the application.

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

in relation to a manufacturer may be a period beginning before the

date of making of the order or before the date of making of the

application but shall not be a period beginning before:

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

any) made under that subsection in relation to that

manufacturer; or

(b) the commencement of this section.

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

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

specified in the order the amount of royalty so specified at the

times so specified and that person may recover the amount, if it is

not paid in accordance with the order, in a court of competent

jurisdiction from the manufacturer as a debt due to the person.

152B Applications to Tribunal for determination of manner of

paying royalty

(1) In this section:

manufacturer has the same meaning as in section 55.

(2) An application may be made to the Tribunal for an order

determining the manner in which amounts of royalty payable by

the manufacturer of a record of a musical work to the owner of the

copyright in the work are to be paid.

(3) An application may be made by the manufacturer or the owner of

the copyright in the musical work recorded by the manufacturer.

(4) The parties to an application are:

(a) the manufacturer and the owner of the copyright in the

musical work; and

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

application.

(5) Where an organisation (whether claiming to represent

manufacturers or the owners of copyrights in musical works or not)

or a person (whether a manufacturer or the owner of the copyright

in a musical work or not) applies to the Tribunal to be made a party

to an application under this section, the Tribunal may, if it thinks

fit, make that organisation or person a party to the application if the

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Tribunal is satisfied that the organisation or person has a

substantial interest in the application.

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

shall consider the application and, after giving the parties an

opportunity of presenting their cases, make an order determining

the manner in which amounts of royalty payable by the

manufacturer of the record of the musical work to the owner of the

copyright in the work are to be paid.

153 Applications to Tribunal for apportionment of royalty in respect

of a record

(1) This section applies where an application is made to the Tribunal

in pursuance of paragraph 5