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Loi de 1968 sur le droit d’auteur (version consolidée au 22 décembre 2017), Australie

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Détails Détails Année de version 2017 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, Règlement extrajudiciaire de litiges (ADR), Organe de réglementation de la PI

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Texte(s) princip(al)(aux) Texte(s) princip(al)(aux) Anglais Copyright Act 1968 (consolidated as of December 22, 2017)        
 Copyright Act 1968 (consolidated as of December 22, 2017)

Authorised Version C2017C00414 registered 22/12/2017

Copyright Act 1968

No. 63, 1968

Compilation No. 54

Compilation date: 22 December 2017

Includes amendments up to: Act No. 49, 2017

Registered: 22 December 2017

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Copyright Act 1968 that shows the text of the law as

amended and in force on 22 December 2017 (the compilation date).

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

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

Authorised Version C2017C00414 registered 22/12/2017

Authorised Version C2017C00414 registered 22/12/2017

Contents

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

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

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

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

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

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

8 Copyright not to subsist except by virtue of this

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

8A Prerogative rights of the Crown in the nature of

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

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

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

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

10AA Non-infringing copy of a sound recording.......................26

10AB Non-infringing copy of a computer program ...................28

10AC Non-infringing copy of an electronic literary or

music item .......................................................................28

10AD Accessories to imported articles ......................................28

11 Residence in a country not affected by temporary

absence ............................................................................29

12 References to Parliament.................................................30

13 Acts comprised in copyright............................................30

14 Acts done in relation to substantial part of work or

other subject-matter deemed to be done in relation

to the whole .....................................................................30

15 References to acts done with licence of owner of

copyright .........................................................................31

16 References to partial assignment of copyright.................31

17 Statutory employment .....................................................31

18 Libraries established or conducted for profit ...................31

19 References to Copyright Act, 1911 .................................31

20 Names under which work is published ............................32

21 Reproduction and copying of works and other

subject-matter ..................................................................32

22 Provisions relating to the making of a work or

other subject-matter .........................................................33

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23 Sound recordings and records .........................................36

24 References to sounds and visual images embodied

in an article......................................................................36

25 Provisions relating to broadcasting..................................37

27 Performance ....................................................................38

28 Performance and communication of works or other

subject-matter in the course of educational

instruction........................................................................39

29 Publication.......................................................................41

30 Ownership of copyright for particular purposes ..............43

30A Commercial rental arrangement ......................................43

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

artistic works 45

Division 1—Nature, duration and ownership of copyright in

works 45

31 Nature of copyright in original works .............................45

32 Original works in which copyright subsists.....................47

33 Duration of copyright in original works ..........................48

34 Duration of copyright in anonymous and

pseudonymous works ......................................................48

35 Ownership of copyright in original works .......................49

Division 2—Infringement of copyright in works 51

36 Infringement by doing acts comprised in the

copyright .........................................................................51

37 Infringement by importation for sale or hire ...................51

38 Infringement by sale and other dealings ..........................52

39 Infringement by permitting place of public

entertainment to be used for performance of work ..........53

39A Infringing copies made on machines installed in

libraries and archives.......................................................53

39B Communication by use of certain facilities .....................54

Division 3—Acts not constituting infringements of copyright in

works 55

40 Fair dealing for purpose of research or study ..................55

41 Fair dealing for purpose of criticism or review ...............57

41A Fair dealing for purpose of parody or satire ....................57

42 Fair dealing for purpose of reporting news......................57

43 Reproduction for purpose of judicial proceedings

or professional advice......................................................58

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43A Temporary reproductions made in the course of

communication ................................................................58

43B Temporary reproductions of works as part of a

technical process of use ...................................................59

43C Reproducing works in books, newspapers and

periodical publications in different form for

private use .......................................................................59

44 Inclusion of works in collections for use by places

of education.....................................................................61

44A Importation etc. of books.................................................62

44B Reproduction of writing on approved label for

containers for chemical product ......................................65

44BA Acts done in relation to certain medicine ........................66

44BB Copyright subsisting in works shared for

healthcare or related purposes .........................................67

44C Copyright subsisting in accessories etc. to

imported articles ..............................................................68

44D Import of non-infringing copy of sound recording

does not infringe copyright in works recorded ................68

44E Importation and sale etc. of copies of computer

programs..........................................................................69

44F Importation and sale etc. of copies of electronic

literary or music items .....................................................70

Division 4—Acts not constituting infringements of copyright in

literary, dramatic and musical works 71

45 Reading or recitation in public or for a broadcast............71

46 Performance at premises where persons reside or

sleep ................................................................................71

47 Reproduction for purpose of broadcasting.......................71

47AA Reproduction for the purpose of simulcasting .................73

Division 4A—Acts not constituting infringements of copyright in

computer programs 75

47AB Meaning of computer program........................................75

47B Reproduction for normal use or study of computer

programs..........................................................................75

47C Back-up copy of computer programs ..............................76

47D Reproducing computer programs to make

interoperable products .....................................................78

47E Reproducing computer programs to correct errors ..........78

47F Reproducing computer programs for security

testing ..............................................................................79

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47G Unauthorised use of copies or information......................80

47H Agreements excluding operation of certain

provisions ........................................................................80

Division 4B—Acts not constituting infringements of copyright in

artistic works 81

47J Reproducing photograph in different format for

private use .......................................................................81

Division 5—Copying of works in libraries or archives 83

48 Interpretation ...................................................................83

48A Copying by Parliamentary libraries for members

of Parliament ...................................................................83

49 Reproducing and communicating works by

libraries and archives for users ........................................83

50 Reproducing and communicating works by

libraries or archives for other libraries or archives ..........88

51 Reproducing and communicating unpublished

works in libraries or archives ..........................................94

51AA Reproducing and communicating works in care of

National Archives of Australia ........................................95

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 99

54 Interpretation ...................................................................99

55 Conditions upon which manufacturer may make

records of musical work ................................................100

57 Provisions relating to royalty where 2 or more

works are on the one record...........................................102

59 Conditions upon which manufacturer may include

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

musical work .................................................................103

60 Records made partly for retail sale and partly for

gratuitous disposal.........................................................105

61 Making inquiries in relation to previous records ...........106

64 Sections 55 and 59 to be disregarded in

determining whether an infringement has been

committed by the importation of records.......................107

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108

Division 7—Acts not constituting infringements of copyright in

artistic works

65 Sculptures and certain other works in public places ......108

66 Buildings and models of buildings ................................108

67 Incidental filming or televising of artistic works ...........108

68 Publication of artistic works ..........................................108

70 Reproduction for purpose of including work in

television broadcast .......................................................109

72 Reproduction of part of work in later work ...................110

73 Reconstruction of buildings...........................................110

Division 8—Designs 112

74 Corresponding design....................................................112

75 Copyright protection where corresponding design

registered .......................................................................112

76 False registration of industrial designs under the

Designs Act 2003...........................................................112

77 Application of artistic works as industrial designs

without registration of the designs.................................113

77A Certain reproductions of an artistic work do not

infringe copyright ..........................................................115

Division 9—Works of joint authorship 117

78 References to all of joint authors...................................117

79 References to any one or more of joint authors .............117

80 References to whichever of joint authors died last ........117

81 Works of joint authorship published under

pseudonyms...................................................................117

82 Copyright to subsist in joint works without regard

to any author who is an unqualified person ...................118

83 Inclusion of joint works in collections for use in

places of education ........................................................118

Part IV—Copyright in subject-matter other than works 119

Division 1—Preliminary 119

84 Definitions.....................................................................119

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

works 121

85 Nature of copyright in sound recordings .......................121

86 Nature of copyright in cinematograph films..................121

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87 Nature of copyright in television broadcasts and

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

88 Nature of copyright in published editions of works.......122

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

copyright subsists 123

89 Sound recordings in which copyright subsists...............123

90 Cinematograph films in which copyright subsists .........123

91 Television broadcasts and sound broadcasts in

which copyright subsists ...............................................123

92 Published editions of works in which copyright

subsists ..........................................................................124

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

works 125

93 Duration of copyright in sound recordings ....................125

94 Duration of copyright in cinematograph films...............125

95 Duration of copyright in television broadcasts and

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

96 Duration of copyright in published editions of

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

Division 5—Ownership of copyright in subject-matter other

than works 127

Subdivision A—Ownership of copyright in subject-matter other

than works 127

97 Ownership of copyright in sound recordings.................127

98 Ownership of copyright in cinematograph films ...........127

99 Ownership of copyright in television broadcasts

and sound broadcasts.....................................................129

100 Ownership of copyright in published editions of

works .............................................................................129

Subdivision B—Specific provisions relating to the ownership of

copyright in pre-commencement sound recordings

of live performances 129

100AA Application....................................................................129

100AB Definitions.....................................................................129

100AC Application of sections 100AD and 100AE ..................130

100AD Makers of pre-commencement sound recordings of

live performances ..........................................................130

100AE Ownership of pre-commencement copyright in

sound recordings of live performances..........................131

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100AF Former owners may continue to do any act in

relation to the copyright ................................................132

100AG Actions by new owners of copyright .............................132

100AH References to the owner of the copyright in a

sound recording .............................................................133

Division 6—Infringement of copyright in subject-matter other

than works 134

100A Interpretation .................................................................134

101 Infringement by doing acts comprised in copyright ......134

102 Infringement by importation for sale or hire .................135

103 Infringement by sale and other dealings ........................135

103A Fair dealing for purpose of criticism or review .............136

103AA Fair dealing for purpose of parody or satire ..................136

103B Fair dealing for purpose of reporting news....................137

103C Fair dealing for purpose of research or study ................137

104 Acts done for purposes of judicial proceeding ..............137

104A Acts done by Parliamentary libraries for members

of Parliament .................................................................138

104B Infringing copies made on machines installed in

libraries and archives.....................................................138

104C Copyright subsisting in sound recordings and

cinematograph films shared for healthcare or

related purposes.............................................................139

105 Copyright in certain recordings not infringed by

causing recordings to be heard in public or

broadcast .......................................................................140

106 Causing sound recording to be heard at guest

house or club .................................................................140

107 Making of a copy of the sound recording for

purpose of broadcasting.................................................141

108 Copyright in published recording not infringed by

public performance if equitable remuneration paid .......142

109 Copyright in published sound recording not

infringed by broadcast in certain circumstances ............143

109A Copying sound recordings for private and

domestic use ..................................................................145

110 Provisions relating to cinematograph films ...................146

110AA Copying cinematograph film in different format

for private use................................................................146

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110A Copying and communicating unpublished sound

recordings and cinematograph films in libraries or

archives .........................................................................148

110C Making of a copy of a sound recording or

cinematograph film for the purpose of

simulcasting...................................................................149

111 Recording broadcasts for replaying at more

convenient time .............................................................150

111A Temporary copy made in the course of

communication ..............................................................151

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

technical process of use .................................................151

112 Reproductions of editions of work ................................152

112A Importation and sale etc. of books.................................152

112B Reproduction of writing on approved label for

containers for chemical product ....................................156

112C Copyright subsisting in accessories etc. to

imported articles ............................................................156

112D Import of non-infringing copy of a sound

recording does not infringe copyright in the sound

recording .......................................................................157

112DA Importation and sale etc. of copies of electronic

literary or music items ...................................................158

112E Communication by use of certain facilities ...................158

Division 7—Miscellaneous 159

113 Copyrights to subsist independently..............................159

113A Agents may act on behalf of groups of performers........159

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

performance...................................................................159

113C Use of published sound recordings when owners

cannot be found etc........................................................160

Part IVA—Uses that do not infringe copyright 162

Division 1—Simplified outline of this Part 162

113D Simplified outline of this Part........................................162

Division 2—Access by or for persons with a disability 163

113E Fair dealing for purpose of access by persons with

a disability .....................................................................163

113F Use of copyright material by organisations

assisting persons with a disability .................................163

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Division 3—Libraries and archives 164

Subdivision A—Public libraries, parliamentary libraries and

archives 164

113G Libraries ........................................................................164

113H Preservation...................................................................164

113J Research ........................................................................165

113K Administration of the collection ....................................166

Subdivision B—Key cultural institutions 166

113L Meaning of key cultural institution ...............................166

113M Preservation...................................................................166

Division 4—Educational institutions—statutory licence 168

113N Simplified outline of this Division ................................168

113P Copying and communicating works and broadcasts......168

113Q Remuneration notices ....................................................171

113R Equitable remuneration .................................................172

113S Educational institutions must assist collecting

society ...........................................................................173

113T Voluntary licences.........................................................174

113U Persons acting on behalf of bodies administering

educational institutions..................................................174

Division 5—Collecting societies 175

Subdivision A—Declaration of collecting society 175

113V Declaration of collecting society ...................................175

113W Requirements for declaration of collecting society .......177

113X Revocation of declaration..............................................178

Subdivision B—Operation of collecting society 179

113Y Scope of this Subdivision ..............................................179

113Z Annual report and accounts ...........................................179

113ZA Amendment of rules ......................................................180

113ZB Review of distribution arrangement by Copyright

Tribunal .........................................................................180

113ZC Operation of collecting society rules .............................181

Part V—Remedies and offences 182

Division 1—Preliminary 182

114 Interpretation .................................................................182

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Division 2—Actions by owner of copyright 183

115 Actions for infringement ...............................................183

115A Injunctions against carriage service providers

providing access to online locations outside

Australia ........................................................................185

116 Rights of owner of copyright in respect of

infringing copies............................................................187

116AAA Compensation for acquisition of property .....................189

Division 2AA—Limitation on remedies available against

carriage service providers 191

Subdivision A—Preliminary 191

116AA Purpose of this Division ................................................191

116AB Definitions.....................................................................191

Subdivision B—Relevant activities 192

116AC Category A activity .......................................................192

116AD Category B activity........................................................192

116AE Category C activity........................................................192

116AF Category D activity .......................................................192

Subdivision C—Limitations on remedies 193

116AG Limitations on remedies ................................................193

Subdivision D—Conditions 194

116AH Conditions .....................................................................194

116AI Evidence of compliance with conditions .......................198

Subdivision E—Regulations 198

116AJ Regulations....................................................................198

Division 2A—Actions in relation to technological protection

measures and electronic rights management

information 200

Subdivision A—Technological protection measures 200

116AK Definitions.....................................................................200

116AL Interaction of this Subdivision with Part VAA..............200

116AM Geographical application...............................................200

116AN Circumventing an access control technological

protection measure ........................................................200

116AO Manufacturing etc. a circumvention device for a

technological protection measure ..................................204

116AP Providing etc. a circumvention service for a

technological protection measure ..................................208

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116AQ Remedies in actions under this Subdivision ..................211

Subdivision B—Electronic rights management information 212

116B Removal or alteration of electronic rights

management information...............................................212

116C Distribution to the public etc. of works whose

electronic rights management information has

been removed or altered ................................................213

116CA Distribution and importation of electronic rights

management information that has been removed or

altered............................................................................214

116CB Exception relating to national security and law

enforcement...................................................................215

116D Remedies in actions under this Subdivision ..................215

Division 3—Proceedings where copyright is subject to exclusive

licence 217

117 Interpretation .................................................................217

118 Application....................................................................217

119 Rights of exclusive licensee ..........................................217

120 Joinder of owner or exclusive licensee as a party..........218

121 Defences available against exclusive licensee ...............218

122 Assessment of damages where exclusive licence

granted...........................................................................219

123 Apportionment of profits between owner and

exclusive licensee ..........................................................219

124 Separate actions in relation to the same

infringement ..................................................................220

125 Liability for costs ..........................................................220

Division 4—Proof of facts in civil actions 221

126 Presumptions as to subsistence and ownership of

copyright .......................................................................221

126A Presumptions relating to subsistence of copyright.........221

126B Presumptions relating to ownership of copyright ..........222

127 Presumptions in relation to authorship of work .............224

128 Presumptions in relation to publisher of work...............225

129 Presumptions where author has died .............................225

129A Presumptions relating to computer programs ................226

130 Presumptions relating to sound recordings....................226

130A Acts relating to imported copies of sound

recordings......................................................................228

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130B Acts relating to imported copies of computer

programs........................................................................228

130C Acts relating to imported copies of electronic

literary or music items ...................................................228

131 Presumptions relating to films.......................................229

Division 4A—Jurisdiction and appeals 231

131A Exercise of jurisdiction..................................................231

131B Appeals..........................................................................231

131C Jurisdiction of Federal Court of Australia .....................231

131D Jurisdiction of Federal Circuit Court of Australia .........231

Division 5—Offences and summary proceedings 232

Subdivision A—Preliminary 232

132AA Definitions.....................................................................232

132AB Geographical application...............................................232

Subdivision B—Substantial infringement on a commercial scale 232

132AC Commercial-scale infringement prejudicing

copyright owner.............................................................232

Subdivision C—Infringing copies 235

132AD Making infringing copy commercially ..........................235

132AE Selling or hiring out infringing copy .............................236

132AF Offering infringing copy for sale or hire .......................238

132AG Exhibiting infringing copy in public commercially .......240

132AH Importing infringing copy commercially.......................242

132AI Distributing infringing copy ..........................................245

132AJ Possessing infringing copy for commerce .....................247

132AK Aggravated offence—work etc. converted to

digital form....................................................................249

132AL Making or possessing device for making

infringing copy ..............................................................250

132AM Advertising supply of infringing copy...........................252

Subdivision D—Airing of works, sound recordings and films 253

132AN Causing work to be performed publicly ........................253

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

public.............................................................................254

Subdivision E—Technological protection measures 255

132APA Definitions.....................................................................255

132APB Interaction of this Subdivision with Part VAA..............255

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132APC Circumventing an access control technological

protection measure ........................................................255

132APD Manufacturing etc. a circumvention device for a

technological protection measure ..................................260

132APE Providing etc. a circumvention service for a

technological protection measure ..................................264

Subdivision F—Electronic rights management information 268

132AQ Removing or altering electronic rights

management information...............................................268

132AR Distributing, importing or communicating copies

after removal or alteration of electronic rights

management information...............................................270

132AS Distributing or importing electronic rights

management information...............................................273

132AT Defences........................................................................276

Subdivision G—Evidence 277

132AU Prosecution to prove profit ............................................277

132A Presumptions in relation to subsistence and

ownership of copyright..................................................278

132AAA Presumptions relating to computer programs ................279

132B Presumptions relating to sound recordings....................279

132C Presumptions relating to films.......................................281

Subdivision H—Extra court orders 282

133 Destruction or delivery up of infringing copies etc. ......282

Subdivision I—Procedure and jurisdiction 282

133A Courts in which offences may be prosecuted ................282

133B Infringement notices......................................................283

Division 6—Miscellaneous 284

134 Limitation of actions in respect of infringement of

copyright .......................................................................284

134A Affidavit evidence .........................................................284

Division 7—Seizure of imported copies of copyright material 286

134B Interpretation .................................................................286

135 Restriction of importation of copies of works etc..........287

135AA Decision not to seize unless expenses are covered ........289

135AB Secure storage of seized copies .....................................290

135AC Notice of seizure............................................................290

135AD Inspection, release etc. of seized copies ........................291

135AE Forfeiture of seized copies by consent...........................292

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135AEA Claim for release of seized copies .................................293

135AEB Seized copies not claimed are forfeited .........................293

135AEC Late claim for release of seized copies ..........................293

135AED Objector to be notified of claim.....................................294

135AF Release of seized copies to importer .............................294

135AFA Copies released but not collected are forfeited ..............295

135AG Provision relating to actions for infringement of

copyright .......................................................................296

135AH Retention of control of seized copies.............................297

135AI Disposal of seized copies forfeited to the

Commonwealth .............................................................297

135AJ Failure to meet Commonwealth’s expenses of

seizure ...........................................................................298

135AK Immunity of the Commonwealth...................................299

Part VAA—Unauthorised access to encoded broadcasts 300

Division 1—Preliminary 300

135AL Definitions.....................................................................300

135AM Counterclaim .................................................................301

135AN This Part does not apply to law enforcement

activity etc. ....................................................................301

Division 2—Actions 302

Subdivision A—Actions relating to unauthorised decoders 302

135AOA Making or dealing with unauthorised decoder...............302

Subdivision B—Actions relating to decoders for subscription

broadcasts 303

135AOB Making decoder available online...................................303

Subdivision C—Actions for unauthorised access to encoded

broadcasts 304

135AOC Causing unauthorised access .........................................304

135AOD Unauthorised commercial use of subscription

broadcast .......................................................................305

Subdivision D—Court orders 306

135AOE Relief .............................................................................306

135AOF Destruction of decoder ..................................................307

Subdivision E—Jurisdiction and appeals 307

135AP Exercise of jurisdiction..................................................307

135AQ Appeals..........................................................................307

135AR Jurisdiction of Federal Court of Australia .....................307

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135AS Jurisdiction of Federal Circuit Court of Australia .........307

Division 3—Offences 308

Subdivision A—Offences 308

135ASA Making unauthorised decoder .......................................308

135ASB Selling or hiring unauthorised decoder..........................308

135ASC Offering unauthorised decoder for sale or hire..............308

135ASD Commercially exhibiting unauthorised decoder in

public.............................................................................309

135ASE Importing unauthorised decoder commercially .............310

135ASF Distributing unauthorised decoder.................................311

135ASG Making unauthorised decoder available online .............311

135ASH Making decoder available online for subscription

broadcast .......................................................................312

135ASI Unauthorised access to subscription broadcast etc. .......312

135ASJ Causing unauthorised access to encoded broadcast

etc. .................................................................................313

Subdivision B—Prosecutions 315

135ATA Courts in which offences may be prosecuted ................315

Subdivision C—Further orders by court 316

135AU Destruction etc. of unauthorised decoders .....................316

Part VC—Retransmission of free-to-air broadcasts 317

Division 1—Preliminary 317

135ZZI Definitions.....................................................................317

135ZZJ Operation of collecting society rules .............................318

135ZZJA Application of Part ........................................................318

Division 2—Retransmission of free-to-air broadcasts 319

135ZZK Retransmission of free-to-air broadcasts .......................319

135ZZL Remuneration notices ....................................................319

135ZZM Amount of equitable remuneration................................320

135ZZN Record system ...............................................................320

135ZZP Inspection of records etc................................................321

135ZZQ Identity cards .................................................................322

135ZZR Revocation of remuneration notice................................322

135ZZS Request for payment of equitable remuneration............323

Division 3—Collecting societies 324

135ZZT Collecting societies........................................................324

135ZZU Revocation of declaration..............................................326

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135ZZV Annual report and accounts ...........................................326

135ZZW Amendment of rules ......................................................327

135ZZWA Applying to Tribunal for review of distribution

arrangement...................................................................327

Division 4—Interim retransmissions 329

135ZZX Appointment of notice holder........................................329

135ZZY Retransmitting before declaration of collecting

society ...........................................................................329

135ZZZ Notices by retransmitters ...............................................329

135ZZZA Record keeping requirements ........................................330

135ZZZB Effect of declaration of collecting society .....................330

Division 5—Miscellaneous 332

135ZZZC Relevant copyright owner may authorise

retransmitting ................................................................332

135ZZZD Copyright not to vest under this Part .............................332

135ZZZE Licence to retransmit does not authorise copyright

infringements.................................................................332

Part VD—Re-broadcasts by satellite BSA licensees 333

Division 1—Preliminary 333

135ZZZF Definitions.....................................................................333

135ZZZG Eligible program and original broadcaster.....................334

135ZZZH Operation of collecting society rules .............................334

Division 2—Re-broadcasts by satellite BSA licensees 335

135ZZZI Re-broadcasts by satellite BSA licensees ......................335

135ZZZJ Remuneration notices ....................................................337

135ZZZK Amount of equitable remuneration................................338

135ZZZL Record system ...............................................................339

135ZZZM Revocation of remuneration notice................................339

135ZZZN Request for payment of equitable remuneration............339

Division 3—Collecting societies 341

135ZZZO Collecting societies........................................................341

135ZZZP Revocation of declaration..............................................343

135ZZZQ Annual report and accounts ...........................................344

135ZZZR Amendment of rules ......................................................345

135ZZZS Applying to Tribunal for review of distribution

arrangement...................................................................345

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Division 4—Interim re-broadcasts 346

135ZZZT Appointment of notice holder........................................346

135ZZZU Re-broadcast before declaration of collecting

society ...........................................................................346

135ZZZV Notices by satellite BSA licensees ................................346

135ZZZW Record keeping requirements ........................................347

135ZZZX Effect of declaration of collecting society .....................347

Division 5—Miscellaneous 349

135ZZZY Relevant copyright owner may authorise

re-broadcast ...................................................................349

135ZZZZ Copyright not to vest under this Part .............................349

135ZZZZA Licence to re-broadcast does not authorise

copyright infringements ................................................349

Part VI—Copyright Tribunal of Australia 350

Division 1—Preliminary 350

136 Interpretation .................................................................350

137 Cases to which licence schemes apply ..........................352

Division 2—Constitution of the Tribunal 353

138 Constitution of Tribunal ................................................353

139 Appointment of members of Tribunal ...........................353

140 Qualifications of members ............................................353

141 Tenure of office .............................................................354

141A Seniority of Deputy Presidents ......................................354

142 Acting President ............................................................355

143 Remuneration and allowances .......................................355

144 Oath or affirmation of office .........................................355

144A Disclosure of interests by members...............................355

144B Removal from office for failure to disclose interest ......356

145 Resignation....................................................................356

146 Sittings of the Tribunal..................................................357

147 President to arrange business of Tribunal......................358

Division 3—Applications and references to the Tribunal 359

Subdivision B—Applications relating to Parts III and IV 359

149 Applications to Tribunal for determination of

remuneration payable for making recording or film

of a work .......................................................................359

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150 Applications to Tribunal for determination of

remuneration payable to owner of copyright in

recording for making of a copy of the sound

recording .......................................................................359

151 Applications to Tribunal for determination of

remuneration payable to owner of copyright in

recording in respect of public playing of the

recording .......................................................................360

152 Applications to Tribunal for determination of

amounts payable for broadcasting published sound

recordings......................................................................360

152A Applications to Tribunal for determination of

amount of royalty payable for recording musical

works .............................................................................367

152B Applications to Tribunal for determination of

manner of paying royalty...............................................368

153 Applications to Tribunal for apportionment of

royalty in respect of a record .........................................369

Subdivision C—Applications and referrals relating to Part IVA 370

153A Applications and referrals relating to Division 4 of

Part IVA ........................................................................370

Subdivision E—Applications relating to Part VII 372

153DF Meaning of copyright material......................................372

153E Applications to Tribunal under subsection 183(5).........372

153F Applications to Tribunal to declare collecting

society for government copies.......................................373

153G Applications to Tribunal to revoke a declaration of

a collecting society ........................................................375

153H Time limit for deciding applications under

section 153F or 153G ....................................................376

153J Amendment and revocation of a declaration on the

declaration of another collecting society .......................376

153K Applications to Tribunal for method of working

out payment for government copies ..............................377

153KA Review of collecting society’s distribution

arrangement...................................................................378

Subdivision G—Applications and references relating to Part VC 379

153M Applications to the Tribunal under

subsection 135ZZM(1) ..................................................379

153N Applications to Tribunal under

subsection 135ZZN(3)...................................................379

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153P References relating to declaration of collecting

society ...........................................................................380

153Q References relating to revocation of declaration of

collecting society...........................................................381

153R Review of collecting society’s distribution

arrangement...................................................................381

Subdivision GA—Applications and references relating to Part VD 382

153RA Application to the Tribunal to determine amount

payable to owner of copyright in a broadcast ................382

153S Applications to the Tribunal under

paragraph 135ZZZK(1)(b)—equitable

remuneration .................................................................383

153T Applications to Tribunal under

paragraph 135ZZZL(3)(b)—record system ...................384

153U References relating to declaration of collecting

society ...........................................................................384

153V References relating to revocation of declaration of

collecting society...........................................................385

153W Review of collecting society’s distribution

arrangement...................................................................386

Subdivision H—References and applications relating to licences

and licence schemes 387

154 Reference of proposed licence schemes to

Tribunal .........................................................................387

155 Reference of existing licence schemes to Tribunal........388

156 Further reference of licence schemes to Tribunal..........390

157 Application to Tribunal in relation to licences ..............392

157A Tribunal must have regard to ACCC guidelines on

request ...........................................................................395

157B Tribunal may make ACCC party to reference or

application .....................................................................396

158 Effect of licence scheme being continued in

operation pending order of the Tribunal ........................396

159 Effect of order of Tribunal in relation to licences..........397

Subdivision I—General provisions 400

160 Interim orders ................................................................400

161 Reference of questions of law to Federal Court of

Australia ........................................................................400

162 Agreements or awards not affected ...............................402

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Division 4—Procedure and evidence 403

163 Proceedings to be in public except in special

circumstances ................................................................403

163A Application may be made to Tribunal by the agent

of the copyright owner ..................................................403

164 Procedure.......................................................................403

165 Mistakes or errors in orders of the Tribunal ..................404

166 Regulations as to procedure...........................................404

167 Power to take evidence on oath .....................................405

168 Evidence in form of written statement...........................405

169 Representation...............................................................405

Division 4A—Alternative dispute resolution processes 407

169A Referral of proceeding for alternative dispute

resolution process..........................................................407

169B Directions by President or Deputy President .................408

169C Agreement about the terms of a decision etc. ................408

169D Evidence not admissible ................................................409

169E Eligibility of person conducting alternative dispute

resolution process to sit as a member of the

Tribunal .........................................................................410

169F Participation by telephone etc........................................410

169G Engagement of persons to conduct alternative

dispute resolution processes ..........................................411

Division 5—Miscellaneous 412

170 Registrar ........................................................................412

170A Other staff of the Tribunal.............................................413

171 Protecting persons connected with Tribunal

proceedings ...................................................................413

172 Offences by witnesses ...................................................414

173 Offences relating to the Tribunal...................................415

174 Costs of proceedings .....................................................417

175 Proof of orders of Tribunal............................................418

Part VII—The Crown 419

Division 1—Crown copyright 419

176 Crown copyright in original works made under

direction of Crown ........................................................419

177 Crown copyright in original works first published

in Australia under direction of Crown ...........................419

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178 Crown copyright in recordings and films made

under direction of Crown...............................................419

179 Provisions relating to ownership of copyright may

be modified by agreement .............................................420

180 Duration of Crown copyright in original works ............420

181 Duration of Crown copyright in recordings and

films ..............................................................................421

182 Application of Parts III and IV to copyright

subsisting by virtue of this Part .....................................421

182A Copyright in statutory instruments and judgments

etc. .................................................................................421

Division 2—Use of copyright material for the Crown 423

182B Definitions.....................................................................423

182C Relevant collecting society............................................423

183 Use of copyright material for the services of the

Crown............................................................................424

183A Special arrangements for copying for services of

government....................................................................426

183B Payment and recovery of equitable remuneration

payable for government copies......................................427

183C Powers of collecting society to carry out sampling .......427

183D Annual report and accounts of collecting society ..........428

183E Alteration of rules of collecting society.........................429

183F Applying to Tribunal for review of distribution

arrangement...................................................................429

Part VIII—Extension or restriction of operation of Act 430 184 Application of Act to countries other than

Australia ........................................................................430

185 Denial of copyright to citizens of countries not

giving adequate protection to Australian works ............432

186 Application of Act to international organizations..........433

187 Original works made or first published by

international organizations ............................................434

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

first published by international organizations................435

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

dramatic, musical or artistic works and

cinematograph films 437

Division 1—Preliminary 437

189 Definitions.....................................................................437

190 Moral rights conferred on individuals ...........................442

191 Director, producer and screenwriter of

cinematograph film........................................................442

191A Staging a performance...................................................443

191B Conductor to be treated as a performer..........................443

192 Rights to be additional to other rights............................443

Division 2—Right of attribution of authorship 444

193 Author’s right of attribution of authorship ....................444

194 Acts giving rise to right of attribution of

authorship......................................................................444

195 Nature of the identification of author ............................445

195AA Identification of author to be clear and reasonably

prominent ......................................................................445

195AB What is a reasonably prominent identification ..............445

Division 2A—Right of attribution of performership 446

195ABA Performer’s right of attribution of performership ..........446

195ABB Acts giving rise to right of attribution of

performership ................................................................446

195ABC Nature of the identification of performer.......................446

195ABD Identification of performer to be clear and

reasonably prominent or audible ...................................447

195ABE What is a reasonably prominent identification ..............447

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

attributed 448

195AC Author’s right not to have authorship falsely

attributed .......................................................................448

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

dramatic or musical work ..............................................448

195AE Acts of false attribution of authorship of artistic

work ..............................................................................449

195AF Acts of false attribution of authorship of

cinematograph film........................................................449

195AG Acts of false attribution of authorship of altered

literary, dramatic, musical or artistic work ....................450

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195AH Act of false attribution of authorship of altered

cinematograph film........................................................450

Division 3A—Right not to have performership falsely attributed 452

195AHA Performer’s right not to have performership falsely

attributed .......................................................................452

195AHB Acts of false attribution of performership......................452

195AHC Act of false attribution of performership of altered

recorded performance....................................................454

Division 4—Right of integrity of authorship of a work 456

195AI Author’s right of integrity of authorship .......................456

195AJ Derogatory treatment of literary, dramatic or

musical work .................................................................456

195AK Derogatory treatment of artistic work............................456

195AL Derogatory treatment of cinematograph film ................457

Division 4A—Right of integrity of performership 458

195ALA Performer’s right of integrity of performership .............458

195ALB Derogatory treatment of performance ...........................458

Division 5—Duration and exercise of moral rights 459

Subdivision A—Duration and exercise of moral rights of authors 459

195AM Duration of author’s moral rights ..................................459

195AN Exercise of author’s moral rights...................................459

Subdivision B—Duration and exercise of moral rights of

performers 460

195ANA Duration of performer’s moral rights for recorded

performances .................................................................460

195ANB Exercise of performer’s moral rights .............................460

Division 6—Infringement of moral rights 462

Subdivision A—Infringement of moral rights of authors 462

195AO Infringement of right of attribution of authorship..........462

195AP Infringement of right not to have authorship

falsely attributed............................................................462

195AQ Infringement of right of integrity of authorship.............462

195AR No infringement of right of attribution of

authorship if it was reasonable not to identify the

author ............................................................................463

195AS No infringement of right of integrity of authorship

if derogatory treatment or other action was

reasonable......................................................................465

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195AT Certain treatment of works not to constitute an

infringement of the author’s right of integrity of

authorship......................................................................466

195AU Infringement by importation for sale or other

dealing...........................................................................470

195AV Infringement by sale and other dealings ........................471

195AVA Matters to be taken into account....................................471

195AVB Communication by use of certain facilities ...................471

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

works in films................................................................472

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

not a film or included in a film ......................................473

195AWB Consent invalidated by duress or false or

misleading statements....................................................474

195AX Acts or omissions outside Australia ..............................474

Subdivision B—Infringement of moral rights of performers 474

195AXA Infringement of right of attribution of

performership ................................................................474

195AXB Infringement of right not to have performership

falsely attributed............................................................475

195AXC Infringement of right of integrity of performership .......475

195AXD No infringement of right of attribution of

performership if it was reasonable not to identify

the performer .................................................................476

195AXE No infringement of right of integrity of

performership if derogatory treatment or other

action was reasonable ....................................................476

195AXF Infringement by importation for sale or other

dealing...........................................................................478

195AXG Infringement by sale and other dealings ........................478

195AXH Matters to be taken into account....................................478

195AXI Communication by use of certain facilities ...................479

195AXJ Performer’s consent to act or omission .........................479

195AXK Consent invalidated by duress or false or

misleading statements....................................................480

195AXL Acts or omissions outside Australia ..............................480

Division 7—Remedies for infringements of moral rights 481

Subdivision A—Remedies for infringement of moral rights of

authors 481

195AY Definition etc.................................................................481

195AZ Actions for infringement of author’s moral rights .........481

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195AZA Remedies for infringements of author’s moral

rights..............................................................................481

195AZD Presumption as to subsistence of copyright ...................483

195AZE Presumption as to subsistence of author’s moral

rights..............................................................................484

195AZF Presumptions in relation to authorship of work .............484

195AZG Other presumptions in relation to literary,

dramatic, musical or artistic work .................................484

Subdivision B—Remedies for infringement of moral rights of

performers 484

195AZGA Definition etc.................................................................484

195AZGB Actions for infringement of performer’s moral

rights..............................................................................485

195AZGC Remedies for infringements of performer’s moral

rights..............................................................................485

195AZGD Presumption as to subsistence of copyright ...................486

195AZGE Presumption as to subsistence of performer’s

moral rights ...................................................................487

195AZGF Presumptions in relation to performership.....................487

Subdivision C—Miscellaneous 488

195AZGG Saving of other rights and remedies ..............................488

195AZGH Jurisdiction of courts .....................................................488

Division 8—Miscellaneous 489

Subdivision A—Miscellaneous provisions about moral rights of

authors 489

195AZH Parts of works................................................................489

195AZI Works of joint authorship..............................................489

195AZJ Cinematograph films that have more than one

principal director ...........................................................489

195AZK Cinematograph films that have more than one

principal producer .........................................................490

195AZL Cinematograph films that have more than one

principal screenwriter ....................................................490

195AZM Application—right of attribution of authorship.............491

195AZN Application—right not to have authorship falsely

attributed .......................................................................492

195AZO Application—right of integrity of authorship ................492

Subdivision B—Miscellaneous provisions about moral rights of

performers 493

195AZP Parts of performances ....................................................493

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195AZQ Performances that have more than one performer .........493

195AZR Application....................................................................494

Part X—Miscellaneous 495

Division 1—Interpretation 495

195A Interpretation .................................................................495

Division 2—Review 496

195B Review of certain decisions...........................................496

Division 3—National Library of Australia 498

195CA Simplified outline..........................................................498

195CB Copy of certain material to be delivered to the

Library...........................................................................498

195CC Library may request a copy of material available

online.............................................................................499

195CD Delivering material to the Library .................................499

195CE Meaning of National Library material ..........................501

195CF Meaning of available online..........................................501

195CG Infringement notices......................................................501

195CH Relationship with State and Territory laws....................502

195CI Delegation .....................................................................502

195CJ Legislative instruments..................................................502

Division 4—Other matters 503

196 Assignments and licences in respect of copyright .........503

197 Prospective ownership of copyright ..............................503

198 Copyright to pass under will with unpublished

work ..............................................................................504

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

importation of copyright material ..................................504

199 Reception of broadcasts.................................................505

200 Use of works and broadcasts for educational

purposes ........................................................................506

200AAA Proxy web caching by educational institutions..............508

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

purposes ........................................................................509

202 Groundless threats of legal proceedings in relation

to copyright infringement ..............................................511

202A Groundless threats of legal proceedings in relation

to technological protection measures.............................512

203 Limitation on power of courts to grant relief in

proceedings under this Act ............................................513

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203A Offence—failing to keep declarations relating to

copying in library or archives........................................513

203E Inspection of records and declarations retained in

records of libraries and archives ....................................514

203F False and misleading declarations .................................517

203G Offence—disposing of or destroying certain

declarations ...................................................................517

203H Notation of certain copies etc. .......................................517

Part XI—Transitional 520

Division 1—Preliminary 520

204 Interpretation .................................................................520

205 References to making of works, recordings and

films ..............................................................................521

206 References in other laws or instruments to

copyright .......................................................................521

207 Application....................................................................522

208 Authorship of photographs ............................................522

209 Publication.....................................................................523

Division 2—Original works 524

210 Expired copyright not to revive .....................................524

211 Original works in which copyright subsists...................524

213 Ownership of copyright.................................................525

214 Infringement by importation, sale and other

dealings .........................................................................526

215 Recording of musical works ..........................................526

216 Publication of artistic works ..........................................527

217 Reconstruction of buildings...........................................527

218 Industrial designs...........................................................527

219 Reproduction of work upon payment of royalties .........528

Division 3—Subject-matter other than works 530

220 Sound recordings...........................................................530

221 Cinematograph films .....................................................530

222 Application of Act to dramatic works and

photographs comprised in cinematograph films ............530

223 Television broadcasts and sound broadcasts .................531

224 Published editions of works...........................................531

225 Infringement by importation, sale and other

dealings .........................................................................531

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532Division 4—Miscellaneous

226 Actions for infringement ...............................................532

227 Infringing copies ...........................................................532

228 Actions where copyright subject to exclusive

licence ...........................................................................532

229 Offences and summary proceedings ..............................532

230 Limitation of actions .....................................................533

231 Restriction of importation of printed copies of

works .............................................................................533

232 References and applications to Tribunal in relation

to licence schemes .........................................................533

233 Duration of Crown copyright in photographs................534

234 Duration of Crown copyright in recordings...................534

235 Crown copyright in films...............................................534

236 Works made or published by international

organizations .................................................................534

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

published by international organizations .......................535

239 Assignments and licences..............................................535

240 Bequests ........................................................................537

242 Groundless threats of legal proceedings ........................537

Division 5—Works made before 1 July, 1912 538

243 Interpretation .................................................................538

244 Application....................................................................538

245 Rights conferred by Copyright Act, 1911......................538

246 Performing rights...........................................................538

247 Contributions to periodicals ..........................................539

248 Assignments and licences..............................................539

Part XIA—Performers’ protection 541

Division 1—Preliminary 541

248A Interpretation .................................................................541

248B Educational purposes.....................................................547

248C Exempt recordings cease to be exempt recordings

in certain circumstances ................................................547

248CA Protection period ...........................................................548

248D Private and domestic use ...............................................549

248F Application....................................................................549

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551Division 2—Actions by performers

248G What constitutes unauthorised use ................................551

248H Copying sound recordings for broadcasting ..................553

248J Actions for unauthorised use .........................................553

248K Exercise of jurisdiction..................................................555

248L Appeals..........................................................................555

248M Jurisdiction of Federal Court .........................................555

248MA Jurisdiction of Federal Circuit Court .............................555

248N Right to bring an action not assignable..........................555

Division 3—Offences 556

Subdivision A—General offences 556

248P Scope of this Subdivision ..............................................556

248PA Unauthorised direct recording during protection

period ............................................................................556

248PB Unauthorised indirect recording during protection

period ............................................................................557

248PC Unauthorised communication to public during

20-year protection period ..............................................558

248PD Playing unauthorised recording publicly during

20-year protection period ..............................................560

248PE Possessing equipment to make or copy

unauthorised recording ..................................................561

248PF Copying unauthorised recording ...................................562

248PG Unauthorised copying of exempt recording...................564

248PH Unauthorised copying of authorised sound

recording .......................................................................565

248PI Selling etc. unauthorised recording ...............................567

248PJ Distributing unauthorised recording ..............................568

248PK Commercial possession or import of unauthorised

recording .......................................................................570

248PL Exhibiting unauthorised recording in public by

way of trade...................................................................572

248PM Importing unauthorised recording for exhibition by

way of trade...................................................................573

Subdivision B—Acts relating to sound recordings of performances

given before 1 July 1995 575

248QA Scope of this Subdivision ..............................................575

248QB Possessing equipment for copying unauthorised

sound recording .............................................................575

248QC Copying unauthorised sound recording .........................577

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248QD Selling etc. unauthorised sound recording.....................578

248QE Distributing unauthorised sound recording....................579

248QF Commercial possession or import of unauthorised

sound recording .............................................................581

248QG Exhibiting unauthorised sound recording in public

by way of trade..............................................................583

248QH Importing unauthorised sound recording for

exhibition by way of trade.............................................584

Subdivision C—Prosecution and infringement notices 586

248R Courts in which offences may be prosecuted ................586

248S Protection against multiple proceedings for same

act ..................................................................................586

248SA Infringement notices......................................................586

Subdivision D—Destruction or delivery up of unauthorised

recordings 587

248T Destruction or delivery up of unauthorised

recordings......................................................................587

Division 4—Extension of protection to foreign countries 588

248U Application to foreign countries ....................................588

248V Denial of protection to citizens of countries not

giving adequate protection to Australian

performances .................................................................589

Part XII—Regulations 591 249 Regulations....................................................................591

The Schedule 594

Endnotes 595

Endnote 1—About the endnotes 595

Endnote 2—Abbreviation key 597

Endnote 3—Legislation history 598

Endnote 4—Amendment history 615

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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;

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Section 7

Copyright Act 1935;

Copyright Act 1963.

7 Act to bind the Crown

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

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

8 Copyright not to subsist except by virtue of this Act

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

virtue of this Act.

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

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

right or privilege of the Crown.

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

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

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

of, an act in relation to the work or edition without the licence of

the Crown if, assuming that that right or privilege of the Crown did

not subsist in the work or edition, but copyright subsisted under

this Act in the work or edition and was owned by a person other

than the Crown, the person would not infringe the copyright of that

owner in the work or edition by doing, or by authorizing the doing

of, that act without the licence of the owner.

(3) Nothing in subsection (2) shall be taken to limit the duration of the

right or privilege of the Crown by way of copyright in a work or

published edition of a work.

9 Operation of other laws

(1) This Act does not affect the right of, or of a person deriving title

directly or indirectly from, the Commonwealth or a State to sell,

use or otherwise deal with articles that have been, or are, forfeited

under a law of the Commonwealth or of the State.

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Section 9A

(3) This Act does not affect the operation of the law relating to

breaches of trust or confidence.

9A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this

Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

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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;

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(c) a label affixed to, displayed on, incorporated into the surface

of, or accompanying, the packaging or container in which the

article is packaged or contained;

(d) a written instruction, warranty or other information provided

with the article;

(e) a record embodying an instructional sound recording, or a

copy of an instructional cinematograph film, provided with

the article;

but does not include any label, packaging or container on which the

olympic symbol (within the meaning of the Olympic Insignia

Protection Act 1987) is reproduced.

Note: See also section 10AD for an expanded meaning of accessory in

relation to certain imported articles.

adaptation means:

(a) in relation to a literary work in a non-dramatic form a version

of the work (whether in its original language or in a different

language) in a dramatic form;

(b) in relation to a literary work in a dramatic form a version of

the work (whether in its original language or in a different

language) in a non-dramatic form;

(ba) in relation to a literary work being a computer program—a

version of the work (whether or not in the language, code or

notation in which the work was originally expressed) not

being a reproduction of the work;

(c) in relation to a literary work (whether in a non-dramatic form

or in a dramatic form):

(i) a translation of the work; or

(ii) a version of the work in which a story or action is

conveyed solely or principally by means of pictures; and

(d) in relation to a musical work—an arrangement or

transcription of the work.

alternative dispute resolution processes means procedures and

services for the resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

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(c) neutral evaluation; and

(d) case appraisal; and

(e) conciliation; and

(f) procedures or services specified in the regulations;

but does not include:

(g) arbitration; or

(h) court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of

this definition.

approved label means a label approved under:

(a) Part 2 of the Agvet Code of a State or of the Northern

Territory; or

(b) Part 2 of the Agvet Code of the participating Territories

within the meaning of the Agricultural and Veterinary

Chemicals Act 1994.

archives means:

(a) archival material in the custody of:

(i) the National Archives of Australia; or

(ii) the Archives Office of New South Wales established by

the Archives Act 1960 of the State of New South Wales;

or

(iii) the Public Record Office established by the Public

Records Act 1973 of the State of Victoria; or

(iv) the Archives Office of Tasmania established by the

Archives Act 1965 of the State of Tasmania; or

(aa) archival material in the custody of a person (other than the

National Archives of Australia) in accordance with an

arrangement referred to in section 64 of the Archives Act

1983; or

(b) a collection of documents or other material to which this

paragraph applies by virtue of subsection (4).

artistic work means:

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(a) a painting, sculpture, drawing, engraving or photograph,

whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or

model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in

paragraph (a) or (b);

but does not include a circuit layout within the meaning of the

Circuit Layouts Act 1989.

Australia includes the external Territories.

author, in relation to a photograph, means the person who took the

photograph.

authorized officer, in relation to a library or archives, means the

officer in charge of that library or archives or a person authorized

by that officer to act on his or her behalf.

available online, in relation to National Library material, has the

meaning given by section 195CF.

body administering:

(a) an institution—means:

(i) if the institution is a body corporate—the institution; or

(ii) otherwise—the body or person (including the Crown)

having ultimate responsibility for administering the

institution; or

(b) a library or archives—means:

(i) if the library or archives is an archives covered by

paragraph (aa) of the definition of archives—the person

having the custody of the archives in accordance with

the relevant arrangement mentioned in that paragraph;

or

(ii) otherwise—the body (whether incorporated or not) or

person (including the Crown) having ultimate

responsibility for administering the library or archives.

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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.

broadcasts collecting society means the body declared to be a

collecting society by a declaration that is in force under

section 113V and to which subparagraph 113V(4)(a)(ii) applies.

building includes a structure of any kind.

carriage service provider has the same meaning as in the

Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act

1997.

chemical product has the same meaning as in the Schedule to the

Agricultural and Veterinary Chemicals Code Act 1994.

cinematograph film means the aggregate of the visual images

embodied in an article or thing so as to be capable by the use of

that article or thing:

(a) of being shown as a moving picture; or

(b) of being embodied in another article or thing by the use of

which it can be so shown;

and includes the aggregate of the sounds embodied in a

sound-track associated with such visual images.

circumvention device for a technological protection measure

means a device, component or product (including a computer

program) that:

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(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.

collecting society means:

(a) a works collecting society; or

(b) the broadcasts collecting society; or

(c) a body that a declaration in force under section 135ZZT

declares to be a collecting society for the purposes of

Part VC; or

(d) a body that a declaration in force under section 135ZZZO

declares to be a collecting society for the purposes of

Part VD; or

(e) a company that a declaration in force under section 153F

declares to be a collecting society for the purposes of

Division 2 of Part VII.

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communicate means make available online or electronically

transmit (whether over a path, or a combination of paths, provided

by a material substance or otherwise) a work or other

subject-matter, including a performance or live performance within

the meaning of this Act.

computer program means a set of statements or instructions to be

used directly or indirectly in a computer in order to bring about a

certain result.

construction includes erection, and reconstruction has a

corresponding meaning.

controls access: a device, product, technology or component

(including a computer program) controls access to a work or other

subject-matter if it requires the application of information or a

process, with the permission of the owner or exclusive licensee of

the copyright in the work or other subject-matter, to gain access to

the work or other subject-matter.

copy:

(a) of a work—means a reproduction; or

(b) of a sound recording—means a record embodying the sound

recording, or a substantial part of the sound recording,

derived directly or indirectly from a record produced on the

making of the sound recording; or

Note: See also subsection (6).

(c) of a cinematograph film—means any article or thing in

which the visual images or sounds comprising the film are

embodied; or

Note: See also subsection (5).

(d) of a broadcast—includes:

(i) a record embodying a sound recording of the whole or a

part of the broadcast; or

(ii) a copy of a cinematograph film of the whole or a part of

the broadcast.

copyright material means anything in which copyright subsists.

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Note: This definition does not apply in Subdivision E of Division 3 of

Part VI or Division 2 of Part VII (use of copyright material for the

Crown): see sections 153DF and 182B.

delivery period has the meaning given by subsection 195CD(2).

device includes a plate.

dramatic work includes:

(a) a choreographic show or other dumb show; and

(b) a scenario or script for a cinematograph film;

but does not include a cinematograph film as distinct from the

scenario or script for a cinematograph film.

drawing includes a diagram, map, chart or plan.

educational institution means:

(aa) an institution at which education is provided at pre-school or

kindergarten standard; or

(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; or

(b) a university, a college of advanced education or a technical

and further education institution; or

(c) an institution that conducts courses of primary, secondary or

tertiary education by correspondence or on an external study

basis; or

(d) a school of nursing; or

(e) an undertaking within a hospital, if the undertaking conducts

courses of study or training in the provision of:

(i) medical services; or

(ii) services incidental to the provision of medical services;

or

(f) a teacher education centre; or

(g) an institution with the principal function of providing courses

of study or training for any of the following purposes:

(i) general education;

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(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; or

(h) an undertaking within a body administering an educational

institution, if:

(i) the educational institution is of a kind referred to in a

preceding paragraph of this definition; and

(ii) 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 mentioned 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, if:

(i) 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 2 or more

such kinds; and

(ii) that activity is undertaken for the purpose of helping

those institutions in their teaching purposes.

electronic literary or music item means:

(a) a book in electronic form; or

(b) a periodical publication in electronic form; or

(c) sheet music in electronic form;

regardless of whether there is a printed form.

electronic rights management information, in relation to a work

or other subject-matter, means information that:

(a) is electronic; and

(b) either:

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(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).

eligible rights holder has the meaning given by

subsection 113V(9).

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

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more than transmit program material supplied by National

Indigenous TV Limited.

future copyright means copyright to come into existence at a

future time or upon the happening of a future event.

government has the meaning given by subsection 182B(1).

government copy has the meaning given by subsection 182B(1).

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

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(j) a non-infringing copy of an electronic literary or music item

whose importation does not infringe that copyright.

institution includes an educational institution.

international agreement means:

(a) a convention to which Australia is a party; or

(b) an agreement or arrangement between Australia and a foreign

country, including an agreement, arrangement or

understanding between a Minister and an official or authority

of a foreign country.

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.

key cultural institution has the meaning given by section 113L.

law of the Commonwealth includes a law of a Territory.

licensed copying or communicating has the meaning given by

subsection 113Q(2).

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

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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).

National Library material has the meaning given by

section 195CE.

National Library Minister means the Minister administering the

National Library Act 1960.

non-infringing accessory means an accessory made in:

(a) a country that is a party to the International Convention for

the Protection of Literary and Artistic Works concluded at

Berne on 9 September 1886 as revised from time to time; or

(b) a country that is a member of the World Trade Organization

and has a law that provides consistently with the TRIPS

Agreement for:

(i) the ownership and duration of copyright or a related

right in works, sound recordings and cinematograph

films; and

(ii) the owner of the copyright or related right to have rights

relating to the reproduction of the work, sound

recording or cinematograph film;

where:

(c) the making of any copy of a work, or any reproduction of a

published edition of a work, that is, or is on, or is embodied

in, the accessory; or

(d) the making of any record embodying a sound recording, or

any copy of a cinematograph film, that is the accessory;

was authorised by the owner of the copyright in that country in the

work, edition, recording or film, as the case may be.

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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

(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.

organisation assisting persons with a disability means:

(a) an educational institution; or

(b) a not-for-profit organisation with a principal function of

providing assistance to persons with a disability (whether or

not the organisation has other principal functions).

original form: a library or archives holds copyright material in

original form if the material is held in the collection comprising

the library or archives in a form that embodies the material as

initially prepared by the author or maker of the material.

Example: A manuscript of a literary, dramatic or musical work.

Note: This definition does not apply in Division 6 of Part III: see

subsection 54(6).

Parliament: see section 12.

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person with a disability means a person with a disability that

causes the person difficulty in reading, viewing, hearing or

comprehending copyright material in a particular form.

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

(ii) the owner of the copyright or related right to have rights

relating to the reproduction of the work, sound

recording or cinematograph film.

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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.

record embodying a sound recording means:

(a) a record produced upon the making of the sound recording;

or

(b) a record that:

(i) embodies the sound recording; and

(ii) is derived directly or indirectly from a record produced

upon the making of the sound recording.

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.

remuneration notice means:

(a) a notice mentioned in section 113Q; or

(b) a notice mentioned in section 135ZZL; or

(c) a notice mentioned in section 135ZZZJ.

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

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transmission—the retransmission is delayed until no

later than the equivalent local time.

rules, of a collecting society, means the constitution of the society.

satellite BSA licence means a commercial television broadcasting

licence allocated under section 38C of the Broadcasting Services

Act 1992.

satellite BSA licensee means the licensee of a satellite BSA

licence.

sculpture includes a cast or model made for purposes of sculpture.

simulcasting means simultaneously broadcasting a broadcasting

service in both analog and digital form in accordance with the

requirements of the Broadcasting Services Act 1992 or of any

prescribed legislative provisions relating to digital broadcasting.

sound broadcast means sounds broadcast otherwise than as part of

a television broadcast.

sound recording means the aggregate of the sounds embodied in a

record.

sound-track, in relation to visual images forming part of a

cinematograph film, means:

(a) the part of any article or thing, being an article or thing in

which those visual images are embodied, in which sounds are

embodied; or

(b) a disc, tape or other device in which sounds are embodied

and which is made available by the maker of the film for use

in conjunction with the article or thing in which those visual

images are embodied.

sufficient acknowledgement, in relation to a work, means an

acknowledgement identifying the work by its title or other

description and, unless the work is anonymous or pseudonymous

or the author has previously agreed or directed that an

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acknowledgement of his or her name is not to be made, also

identifying the author.

technological protection measure means:

(a) an access control technological protection measure; or

(b) a device, product, technology or component (including a

computer program) that:

(i) is used in Australia or a qualifying country by, with the

permission of, or on behalf of, the owner or the

exclusive licensee of the copyright in a work or other

subject-matter; and

(ii) in the normal course of its operation, prevents, inhibits

or restricts the doing of an act comprised in the

copyright;

but does not include such a device, product, technology or

component to the extent that it:

(iii) if the work or other subject-matter is a cinematograph

film or computer program (including a computer

game)—controls geographic market segmentation by

preventing the playback in Australia of a non-infringing

copy of the work or other subject-matter acquired

outside Australia; or

(iv) if the work is a computer program that is embodied in a

machine or device—restricts the use of goods (other

than the work) or services in relation to the machine or

device.

For the purposes of this definition, computer program has the

same meaning as in section 47AB.

television broadcast means visual images broadcast by way of

television, together with any sounds broadcast for reception along

with those images.

the Australian Broadcasting Commission means the Australian

Broadcasting Commission that was established under the

Broadcasting and Television Act 1942.

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the Australian Broadcasting Corporation means the Australian

Broadcasting Corporation established under the Australian

Broadcasting Corporation Act 1983.

the Commonwealth includes the Administration of a Territory.

the Copyright Act, 1911 means the Imperial Act known as the

Copyright Act, 1911.

the Copyright Tribunal or the Tribunal means the Copyright

Tribunal of Australia provided for by Part VI, and includes a

member of that Tribunal exercising powers of that Tribunal.

the Crown includes the Crown in right of a State and the Crown in

right of the Australian Capital Territory and the Northern Territory

and also includes the Administration of a Territory other than the

Australian Capital Territory or the Northern Territory.

the National Library means the National Library established under

the National Library Act 1960-1967.

the Special Broadcasting Service means the Special Broadcasting

Service that was referred to in section 5 of the Special

Broadcasting Service Act 1991.

the Special Broadcasting Service Corporation means the body

corporate preserved and continued in existence as the Special

Broadcasting Service Corporation under section 5 of the Special

Broadcasting Service Act 1991.

to the public means to the public within or outside Australia.

TRIPS Agreement means the Agreement on Trade-Related

Aspects of Intellectual Property Rights set out in Annex 1C to the

Marrakesh Agreement establishing the World Trade Organization,

done at Marrakesh on 15 April 1994.

Note: The English text of the Marrakesh Agreement establishing the World

Trade Organization is set out in Australian Treaty Series 1995 No. 8.

will includes a codicil.

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work means a literary, dramatic, musical or artistic work.

work of joint authorship means a work that has been produced by

the collaboration of two or more authors and in which the

contribution of each author is not separate from the contribution of

the other author or the contributions of the other authors.

works collecting society means a body declared to be a collecting

society by a declaration that is in force under section 113V and to

which subparagraph 113V(4)(a)(i) applies.

writing means a mode of representing or reproducing words,

figures or symbols in a visible form, and written has a

corresponding meaning.

(1A) Without limiting the meaning of the expression educational

purposes in this Act, a copy of the whole or a part of a work or

other subject-matter shall be taken, for the purposes of the

provision in which the expression appears, to have been made,

used or retained, as the case may be, for the educational purposes

of an educational institution if:

(a) it is made or retained for use, or is used, in connection with a

particular course of instruction provided by the institution; or

(b) it is made or retained for inclusion, or is included, in the

collection of a library of the institution.

(2) Without limiting the meaning of the expression reasonable portion

in this Act, where a literary, dramatic or musical work (other than a

computer program) is contained in a published edition of that

work, being an edition of not less than 10 pages, a copy of part of

that work, as it appears in that edition, shall be taken to contain

only a reasonable portion of that work if the pages that are copied

in the edition:

(a) do not exceed, in the aggregate, 10% of the number of pages

in that edition; or

(b) in a case where the work is divided into chapters exceed, in

the aggregate, 10% of the number of pages in that edition but

contain only the whole or part of a single chapter of the

work.

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(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.

(3) In this Act, unless the contrary intention appears:

(e) a reference to the Crown in right of a State shall be read as

including a reference to the Crown in right of the Australian

Capital Territory and the Northern Territory; and

(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

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the document or the whole or that part of the work, being a

facsimile copy of any size or form; 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

(ma) a reference to a relevant declaration, in relation to the

making, in reliance on section 49, of a copy of the whole or a

part of a work, shall be read as a reference to:

(i) in a case where the copy is made in reliance on

subsection 49(2)—a declaration of the kind referred to

in subsection 49(1) that is furnished in relation to the

making of the copy; or

(ii) in a case where the copy is made in reliance on

subsection 49(2C)—a declaration of the kind referred to

in paragraph 49(2C)(b) that is made in relation to the

making of the copy; or

(iii) in any case—a declaration of the kind referred to in

subsection 49(5) that is made in relation to the making

of the copy; and

(n) a reference to a State shall be read as including a reference to

the Australian Capital Territory and the Northern Territory

and Norfolk Island and a reference to a Territory shall be

read as not including a reference to the Australian Capital

Territory or the Northern Territory or Norfolk Island.

(3A) For the purposes of this Act, something held in, or forming part of,

the collection of any archives covered by paragraph (aa) of the

definition of archives in subsection (1) is taken not to be held in,

and not to form part of, the collection of the National Archives of

Australia.

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Note: Paragraph (aa) of the definition of archives covers archival material in

the custody of a person other than the National Archives of Australia

under an arrangement referred to in section 64 of the Archives Act

1983.

(4) Where:

(a) a collection of documents or other material of historical

significance or public interest that is in the custody of a body,

whether incorporated or unincorporated, is being maintained

by the body for the purpose of conserving and preserving

those documents or other material; and

(b) the body does not maintain and operate the collection for the

purpose of deriving a profit;

paragraph (b) of the definition of archives in subsection (1) applies

to that collection.

Example: Museums and galleries are examples of bodies that could have

collections covered by paragraph (b) of the definition of archives.

(5) A reference to a copy of a cinematograph film includes a reference

to 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) A reference to a copy of a sound recording includes a reference to

any form (whether visible or not) of storage of the sound recording,

or a substantial part of the sound recording, (whether or not the

copy of the recording, or a substantial part of the recording, can be

reproduced).

10AA Non-infringing copy of a sound recording

Minimum requirements

(1) A copy of a sound recording is a non-infringing copy only if it is

made by or with the consent of:

(a) the owner of the copyright or related right in the sound

recording in the country (the copy country) in which the copy

was made; or

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(b) the owner of the copyright or related right in the sound

recording in the country (the original recording country) in

which the sound recording was made, if the law of the copy

country did not provide for copyright or a related right in

sound recordings when the sound recording was made; or

(c) the maker of the sound recording, if neither the law of the

copy country nor the law of the original recording country

(whether those countries are different or not) provided for

copyright or a related right in sound recordings when the

sound recording was made.

Extra requirements for copies of recordings of works subject to

Australian copyright

(2) If the sound recording is of a work that is a literary, dramatic or

musical work in which copyright subsists in Australia, the copy is a

non-infringing copy only if:

(a) copyright subsists in the work under the law of the copy

country; and

(b) the making of the copy does not infringe the copyright in the

work under the law of the copy country; and

(c) the copy country meets the requirements of subsection (3).

To avoid doubt, the requirements of this subsection are additional

to those of subsection (1).

Requirements for copy country

(3) The copy country mentioned in subsection (2) must:

(a) be a party to the International Convention for the Protection

of Literary and Artistic Works concluded at Berne on

9 September 1886 as revised from time to time; or

(b) be a member of the World Trade Organization and have a

law that provides consistently with the TRIPS Agreement

for:

(i) the ownership and duration of copyright in literary,

dramatic and musical works; and

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(ii) the owner of the copyright in the work to have rights

relating to the reproduction of the work.

Australian copyright may result from Act or regulations

(4) For the purposes of subsection (2) it does not matter whether the

copyright in the work subsists in Australia as a result of this Act or

as a result of the regulations made for the purposes of section 184.

10AB Non-infringing copy of a computer program

A copy of a computer program is a non-infringing copy only if:

(a) it is made in a qualifying country; and

(b) its making did not constitute an infringement of any

copyright in a work under a law of that country.

10AC Non-infringing copy of an electronic literary or music item

A copy of an electronic literary or music item is a non-infringing

copy only if:

(a) it is made in a qualifying country; and

(b) its making did not constitute an infringement of any

copyright in a work, or in a published edition of a work,

under a law of that country.

10AD Accessories to imported articles

Accessories

(1) If a person imports into Australia:

(a) an article that has embodied in it a copy of a computer

program; or

(b) an article that has embodied in it a copy of an electronic

literary or music item; or

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(c) an article that has embodied in it a copy of a sound recording;

a copy of any work or other subject matter (other than a feature

film) that is on, embodied in, or included with, the article on its

importation is taken to be an accessory to the article.

Note: See also sections 44C and 112C (about the non-infringement of

copyright in works or other subject matter that are accessories to

imported articles).

Definition

(2) In this section:

feature film means a cinematograph film that:

(a) is produced wholly or principally:

(i) for exhibition to the public in cinemas or by way of

television broadcasting; or

(ii) for sale or rental to the public where it is reasonable to

assume that the viewing of the film (without electronic

interactive involvement with the film) would be the

primary object of any such sale or rental; and

(b) is more than 20 minutes in duration.

Interpretation

(3) This section does not limit the meaning of accessory in

subsection 10(1).

11 Residence in a country not affected by temporary absence

For the purposes of this Act, a person who, at a material time, was

ordinarily resident in a country (including Australia) but was

temporarily absent from that country shall be treated as if he or she

had been resident in that country at that time.

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12 References to Parliament

A reference in this Act to a Parliament shall be read as a reference

to the Parliament of the Commonwealth or of a State or a

legislature of a Territory.

13 Acts comprised in copyright

(1) A reference in this Act to an act comprised in the copyright in a

work or other subject-matter shall be read as a reference to any act

that, under this Act, the owner of the copyright has the exclusive

right to do.

(2) For the purposes of this Act, the exclusive right to do an act in

relation to a work, an adaptation of a work or any other

subject-matter includes the exclusive right to authorize a person to

do that act in relation to that work, adaptation or other

subject-matter.

14 Acts done in relation to substantial part of work or other

subject-matter deemed to be done in relation to the whole

(1) In this Act, unless the contrary intention appears:

(a) a reference to the doing of an act in relation to a work or

other subject-matter shall be read as including a reference to

the doing of that act in relation to a substantial part of the

work or other subject-matter; and

(b) a reference to a reproduction, adaptation or copy of a work

shall be read as including a reference to a reproduction,

adaptation or copy of a substantial part of the work, as the

case may be.

(2) This section does not affect the interpretation of any reference in

sections 32, 177, 180, 187 and 198 to the publication, or absence of

publication, of a work.

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15 References to acts done with licence of owner of copyright

For the purposes of this Act, an act shall be deemed to have been

done with the licence of the owner of a copyright if the doing of

the act was authorized by a licence binding the owner of the

copyright.

16 References to partial assignment of copyright

A reference in this Act to a partial assignment of copyright shall be

read as a reference to an assignment of copyright that is limited in

any way.

17 Statutory employment

For the purposes of this Act, the employment of a person, or the

employment of a person as an apprentice, under a law of the

Commonwealth or of a State but otherwise than under a contract of

service or contract of apprenticeship shall be treated as if that

employment were employment under a contract of service or

employment under a contract of apprenticeship, as the case may be.

18 Libraries established or conducted for profit

For the purposes of this Act, a library shall not be taken to be

established or conducted for profit by reason only that the library is

owned by a person carrying on business for profit.

19 References to Copyright Act, 1911

A reference in a provision of this Act to the Copyright Act, 1911,

in relation to any time before the commencement of this Act, shall,

for the purposes of the application of that provision in relation to a

State or a Territory, be read as a reference to the Copyright Act,

1911 as it applied in that State or Territory at that time.

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20 Names under which work is published

(1) A reference in this Act to the name or names under which a work

was published shall be read as a reference to the name or names

specified in the work as the name of the author or the names of the

authors of the work.

(2) For the purposes of this Act, a publication of a work under two or

more names shall not be taken to be pseudonymous unless all those

names are pseudonyms.

21 Reproduction and copying of works and other subject-matter

(1) For the purposes of this Act, a literary, dramatic or musical work

shall be deemed to have been reproduced in a material form if a

sound recording or cinematograph film is made of the work, and

any record embodying such a recording and any copy of such a

film shall be deemed to be a reproduction of the work.

(1A) For the purposes of this Act, a work is taken to have been

reproduced if it is converted into or from a digital or other

electronic machine-readable form, and any article embodying the

work in such a form is taken to be a reproduction of the work.

Note: The reference to the conversion of a work into a digital or other

electronic machine-readable form includes the first digitisation of the

work.

(2) Subsections (1) and (1A) apply in relation to an adaptation of a

work in the same way as they apply in relation to a work.

(3) For the purposes of this Act, an artistic work shall be deemed to

have been reproduced:

(a) in the case of a work in a two-dimensional form—if a version

of the work is produced in a three-dimensional form; or

(b) in the case of a work in a three-dimensional form—if a

version of the work is produced in a two-dimensional form;

and the version of the work so produced shall be deemed to be a

reproduction of the work.

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(4) The last preceding subsection has effect subject to Division 7 of

Part III.

(5) For the purposes of this Act, a computer program is taken to have

been reproduced if:

(a) an object code version of the program is derived from the

program in source code by any process, including

compilation; or

(b) a source code version of the program is derived from the

program in object code by any process, including

decompilation;

and any such version is taken to be a reproduction of the program.

(6) For the purposes of this Act, a sound recording or cinematograph

film is taken to have been copied if it is converted into or from a

digital or other electronic machine-readable form, and any article

embodying the recording or film in such a form is taken to be a

copy of the recording or film.

Note: The reference to the conversion of a sound recording or

cinematograph film into a digital or other electronic machine-readable

form includes the first digitisation of the recording or film.

22 Provisions relating to the making of a work or other

subject-matter

Literary, dramatic, musical or artistic works

(1) A reference in this Act to the time when, or the period during

which, a literary, dramatic, musical or artistic work was made shall

be read as a reference to the time when, or the period during which,

as the case may be, the work was first reduced to writing or to

some other material form.

(2) For the purposes of this Act, a literary, dramatic or musical work

that exists in the form of sounds embodied in an article or thing

shall be deemed to have been reduced to a material form and to

have been so reduced at the time when those sounds were

embodied in that article or thing.

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Sound recordings

(3) For the purposes of this Act:

(a) a sound recording, other than a sound recording of a live

performance, shall be deemed to have been made at the time

when the first record embodying the recording was produced;

and

(b) the maker of the sound recording is the person who owned

that record at that time.

(3A) For the purposes of this Act, the makers of a sound recording of a

live performance are:

(a) the person or persons who, at the time of the recording, own

the record on which the recording is made; and

(b) the performer or performers who performed in the

performance (other than a performer who is already covered

by paragraph (a)).

Note: A performer might be liable to pay compensation under

section 116AAA to a person who owns the record on which the

recording is made.

(3B) If:

(a) a sound recording of a live performance is made; and

(b) a performer performs in that performance under the terms of

his or her employment by another person (the employer)

under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken

to be a maker instead of that performer.

(3C) Subsection (3B) may be excluded or modified by agreement

between the performer and the employer.

Cinematograph films

(4) For the purposes of this Act:

(a) a reference to the making of a cinematograph film shall be

read as a reference to the doing of the things necessary for

the production of the first copy of the film; and

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(b) the maker of the cinematograph film is the person by whom

the arrangements necessary for the making of the film were

undertaken.

Broadcasts and other communications

(5) For the purposes of this Act, a broadcast is taken to have been

made by the person who provided the broadcasting service by

which the broadcast was delivered.

(6) For the purposes of this Act, a communication other than a

broadcast is taken to have been made by the person responsible for

determining the content of the communication.

(6A) To avoid doubt, for the purposes of subsection (6), a person is not

responsible for determining the content of a communication merely

because the person takes one or more steps for the purpose of:

(a) gaining access to what is made available online by someone

else in the communication; or

(b) receiving the electronic transmission of which the

communication consists.

Example: A person is not responsible for determining the content of the

communication to the person of a web page merely because the person

clicks on a link to gain access to the page.

Definitions

(7) In this section:

live performance means:

(a) a performance (including an improvisation) of a dramatic

work, or part of such a work, including such a performance

given with the use of puppets; or

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

work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part

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

literary work; or

(d) a performance of a dance; or

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

presentation or show; or

(f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience

or otherwise.

performer in a live performance:

(a) means each person who contributed to the sounds of the

performance; and

(b) if the performance includes a performance of a musical

work—includes the conductor.

sound recording of a live performance means a sound recording,

made at the time of the live performance, consisting of, or

including, the sounds of the performance.

23 Sound recordings and records

(1) For the purposes of this Act, sounds embodied in a sound-track

associated with visual images forming part of cinematograph film

shall be deemed not to be a sound recording.

(2) A reference in this Act to a record of a work or other

subject-matter shall, unless the contrary intention appears, be read

as a reference to a record by means of which the work or other

subject-matter can be performed.

24 References to sounds and visual images embodied in an article

For the purposes of this Act, sounds or visual images shall be taken

to have been embodied in an article or thing if the article or thing

has been so treated in relation to those sounds or visual images that

those sounds or visual images are capable, with or without the aid

of some other device, of being reproduced from the article or thing.

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25 Provisions relating to broadcasting

(1) A reference in this Act to broadcasting shall, unless the contrary

intention appears, be read as a reference to broadcasting whether

by way of sound broadcasting or of television.

(2) A reference in this Act to the doing of an act by the reception of a

television broadcast or sound broadcast shall be read as a reference

to the doing of that act by means of receiving a broadcast:

(a) from the transmission by which the broadcast is made; or

(b) from a transmission made otherwise than by way of

broadcasting, but simultaneously with the transmission

referred to in the last preceding paragraph;

whether the reception of the broadcast is directly from the

transmission concerned or from a re-transmission made by any

person from any place.

(3) Where a record embodying a sound recording or a copy of a

cinematograph film is used for the purpose of making a broadcast

(in this subsection referred to as the primary broadcast), a person

who makes a broadcast (in this subsection referred to as the

secondary broadcast) by receiving and making a retransmission of:

(a) the transmission by which the primary broadcast was made;

or

(b) a transmission made otherwise than by way of broadcasting

but simultaneously with the transmission referred to in the

last preceding paragraph;

shall, for the purposes of this Act, be deemed not to have used the

record or copy for the purpose of making the secondary broadcast.

(4) In this Act:

(a) a reference to a cinematograph film of a television broadcast

shall be read as including a reference to a cinematograph

film, or a photograph, of any of the visual images comprised

in the broadcast; and

(b) a reference to a copy of a cinematograph film of a television

broadcast shall be read as including a reference to a copy of a

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cinematograph film, or a reproduction of a photograph, of

any of those images.

27 Performance

(1) Subject to this section, a reference in this Act to performance shall:

(a) be read as including a reference to any mode of visual or

aural presentation, whether the presentation is by the use of

reception equipment, by the exhibition of a cinematograph

film, by the use of a record or by any other means; and

(b) in relation to a lecture, address, speech or sermon—be read

as including a reference to delivery;

and a reference in this Act to performing a work or an adaptation

of a work has a corresponding meaning.

(2) For the purposes of this Act, the communication of a work or other

subject-matter to the public does not constitute:

(a) performance; or

(b) causing visual images to be seen or sounds to be heard.

(3) Where visual images or sounds are displayed or emitted by any

reception equipment to which they are communicated, the

operation of any equipment by which the images or sounds are

communicated, directly or indirectly, to the reception equipment

shall be deemed not to constitute performance or to constitute

causing visual images to be seen or sounds to be heard but, in so

far as the display or emission of the images or sounds constitutes a

performance, or causes the images to be seen or the sounds to be

heard, the performance, or the causing of the images to be seen or

sounds to be heard, as the case may be, shall be deemed to be

effected by the operation of the reception equipment.

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(4) Without prejudice to the last two preceding subsections, where a

work or an adaptation of a work is performed or visual images are

caused to be seen or sounds to be heard by the operation of any

equipment referred to in the last preceding subsection or of any

equipment for reproducing sounds by the use of a record, being

equipment provided by or with the consent of the occupier of the

premises where the equipment is situated, the occupier of those

premises shall, for the purposes of this Act, be deemed to be the

person giving the performance or causing the images to be seen or

the sounds to be heard, whether he or she is the person operating

the equipment or not.

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

Part XIA.

28 Performance and communication of works or other

subject-matter in the course of educational instruction

(1) Where a literary, dramatic or musical work:

(a) is performed in class, or otherwise in the presence of an

audience; and

(b) is so performed by a teacher in the course of giving

educational instruction, not being instruction given for profit,

or by a student in the course of receiving such instruction;

the performance shall, for the purposes of this Act, be deemed not

to be a performance in public if the audience is limited to persons

who are taking part in the instruction or are otherwise directly

connected with the place where the instruction is given.

(2) For the purposes of this section, educational instruction given by a

teacher at a place of education that is not conducted for profit shall

not be taken to be given for profit by reason only that the teacher

receives remuneration for giving the instruction.

(3) For the purposes of this section, a person shall not be taken to be

directly connected with a place where instruction is given by

reason only that he or she is a parent or guardian of a student who

receives instruction at that place.

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(4) The last three preceding subsections apply in relation to sound

recordings and cinematograph films in like manner as they apply in

relation to literary, dramatic and musical works but, in the

application of those subsections in relation to such recordings or

films, any reference to performance shall be read as a reference to

the act of causing the sounds concerned to be heard or the visual

images concerned to be seen.

(5) A communication of a literary, dramatic or musical work, a sound

recording or a cinematograph film is taken for the purposes of this

Act not to be a communication to the public if the communication

is made merely to facilitate:

(a) a performance of the work that, because of this section, is not

a performance in public; or

(b) an act of causing sounds forming part of the recording to be

heard that, because of this section, is not an act of causing the

sound recording to be heard in public; or

(c) an act of causing visual images or sounds forming part of the

cinematograph film to be seen or heard that, because of this

section, is not an act of causing the film to be seen or heard

in public.

(6) A communication of a television broadcast or sound broadcast is

taken for the purposes of this Act not to be a communication of the

broadcast, or of a work or other subject-matter included in the

broadcast, to the public if:

(a) the communication is made merely to facilitate the television

broadcast being seen and heard, or the sound broadcast being

heard, in class or otherwise in the presence of an audience, in

the course of educational instruction that:

(i) is given by a teacher; and

(ii) is not given for profit; and

(b) the audience is limited to persons who are taking part in the

instruction or are otherwise directly connected with the place

where the instruction is given.

(7) A communication of an artistic work is taken for the purposes of

this Act not to be a communication of the work to the public if:

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(a) the communication is made merely to facilitate the work

being seen in class or otherwise in the presence of an

audience, in the course of educational instruction that:

(i) is given by a teacher; and

(ii) is not given for profit; and

(b) the audience is limited to persons who are taking part in the

instruction or are otherwise directly connected with the place

where the instruction is given.

29 Publication

(1) Subject to this section, for the purposes of this Act:

(a) a literary, dramatic, musical or artistic work, or an edition of

such a work, shall be deemed to have been published if, but

only if, reproductions of the work or edition have been

supplied (whether by sale or otherwise) to the public;

(b) a cinematograph film shall be deemed to have been published

if, but only if, copies of the film have been sold, let on hire,

or offered or exposed for sale or hire, to the public; and

(c) a sound recording shall be deemed to have been published if,

but only if, records embodying the recording or a part of the

recording have been supplied (whether by sale or otherwise)

to the public.

(2) In determining, for the purposes of paragraph (1)(a), whether

reproductions of a work or edition have been supplied to the

public, section 14 does not apply.

(3) For the purposes of this Act, the performance of a literary,

dramatic or musical work, the supplying (whether by sale or

otherwise) to the public of records of a literary, dramatic or

musical work, the exhibition of an artistic work, the construction of

a building or of a model of a building, or the supplying (whether by

sale or otherwise) to the public of photographs or engravings of a

building, of a model of a building or of a sculpture, does not

constitute publication of the work.

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(4) A publication that is merely colourable and is not intended to

satisfy the reasonable requirements of the public shall be

disregarded for the purposes of this Act except in so far as it may

constitute an infringement of copyright or a breach of a duty under

Part IX.

(5) For the purposes of this Act, a publication in Australia or in any

other country shall not be treated as being other than the first

publication by reason only of an earlier publication elsewhere, if

the two publications took place within a period of not more than

thirty days.

(6) In determining, for the purposes of any provision of this Act:

(a) whether a work or other subject-matter has been published;

(b) whether a publication of a work or other subject-matter was

the first publication of the work or other subject-matter; or

(c) whether a work or other subject-matter was published or

otherwise dealt with in the life-time of a person;

any unauthorized publication or the doing of any other

unauthorized act shall be disregarded.

(7) Subject to section 52, a publication or other act shall, for the

purposes of the last preceding subsection, be taken to have been

unauthorized if, but only if:

(a) copyright subsisted in the work or other subject-matter and

the act concerned was done otherwise than by, or with the

licence of, the owner of the copyright; or

(b) copyright did not subsist in the work or other subject-matter

and the act concerned was done otherwise than by, or with

the licence of:

(i) the author or, in the case of a sound recording,

cinematograph film or edition of a work, the maker or

publisher, as the case may be; or

(ii) persons lawfully claiming under the author, maker or

publisher.

(8) Nothing in either of the last two preceding subsections affects any

provisions of this Act relating to the acts comprised in a copyright

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or to acts constituting infringements of copyrights or any

provisions of Part IX.

30 Ownership of copyright for particular purposes

In the case of a copyright of which (whether as a result of a partial

assignment or otherwise) different persons are the owners in

respect of its application to:

(a) the doing of different acts or classes of acts; or

(b) the doing of one or more acts or classes of acts in different

countries or at different times;

the owner of the copyright, for any purpose of this Act, shall be

deemed to be the person who is the owner of the copyright in

respect of its application to the doing of the particular act or class

of acts, or to the doing of the particular act or class of acts in the

particular country or at the particular time, as the case may be, that

is relevant to that purpose, and a reference in this Act to the

prospective owner of a future copyright of which different persons

are the prospective owners has a corresponding meaning.

30A Commercial rental arrangement

(1) In this Act, the expression commercial rental arrangement, in

relation to a work reproduced in a sound recording, signifies an

arrangement that has the following features:

(a) however the arrangement is expressed, it is in substance an

arrangement under which a copy of the sound recording is

made available by a person on terms that it will or may be

returned to the person;

(b) the arrangement is made in the course of the conduct of a

business;

(c) the arrangement provides for the copy to be made available:

(i) for payment in money or money’s worth; or

(ii) as part of the provision of a service for which payment

in money or money’s worth is to be made.

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(2) In this Act, the expression commercial rental arrangement, in

relation to a sound recording or a computer program, signifies an

arrangement that has the following features:

(a) however the arrangement is expressed, it is in substance an

arrangement under which a copy of the sound recording or

computer program is made available by a person on terms

that it will or may be returned to the person;

(b) the arrangement is made in the course of the conduct of a

business;

(c) the arrangement provides for the copy to be made available:

(i) for payment in money or money’s worth; or

(ii) as part of the provision of a service for which payment

in money or money’s worth is to be made.

(3) It is not the intention of the Parliament that a lending arrangement

should be regarded as a commercial rental arrangement for the

purposes of subsection (1) or (2).

(4) An arrangement is to be regarded as a lending arrangement if,

regardless of the way in which the arrangement is expressed, the

true nature of the arrangement is that it is an arrangement for the

lending of a copy of a sound recording or computer program under

which no amount, other than a deposit to secure the return of the

copy, is payable.

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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.

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(2) The generality of subparagraph (1)(a)(i) is not affected by

subparagraph (1)(a)(vi).

(3) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement in respect of a machine or device in which a computer

program is embodied if the program is not able to be copied in the

course of the ordinary use of the machine or device.

(4) The reference in subsection (3) to a device does not include a

device of a kind ordinarily used to store computer programs (for

example, a floppy disc, a device of the kind commonly known as a

CD ROM, or an integrated circuit).

(5) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement if the computer program is not the essential object of

the rental.

(6) Paragraph (1)(c) does not extend to entry into a commercial rental

arrangement if:

(a) the copy of the sound recording concerned was purchased by

a person (the record owner) before the commencement of

Part 2 of the Copyright (World Trade Organization

Amendments) Act 1994; and

(b) the commercial rental arrangement is entered into in the

ordinary course of a business conducted by the record owner;

and

(c) the record owner was conducting the same business, or

another business that consisted of, or included, the making of

commercial rental arrangements of the same kind, when the

copy was purchased.

(7) Paragraph (1)(d) does not extend to entry into a commercial rental

arrangement in respect of a computer program if:

(a) the copy of the computer program was purchased by a person

(the program owner) before the commencement of Part 2 of

the Copyright (World Trade Organization Amendments) Act

1994; and

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(b) the commercial rental arrangement is entered into in the

ordinary course of a business conducted by the program

owner; and

(c) the program owner was conducting the same business, or

another business that consisted of, or included, the making of

commercial rental arrangements in respect of computer

programs, when the copy was purchased.

32 Original works in which copyright subsists

(1) Subject to this Act, copyright subsists in an original literary,

dramatic, musical or artistic work that is unpublished and of which

the author:

(a) was a qualified person at the time when the work was made;

or

(b) if the making of the work extended over a period—was a

qualified person for a substantial part of that period.

(2) Subject to this Act, where an original literary, dramatic, musical or

artistic work has been published:

(a) copyright subsists in the work; or

(b) if copyright in the work subsisted immediately before its first

publication—copyright continues to subsist in the work;

if, but only if:

(c) the first publication of the work took place in Australia;

(d) the author of the work was a qualified person at the time

when the work was first published; or

(e) the author died before that time but was a qualified person

immediately before his or her death.

(3) Notwithstanding the last preceding subsection but subject to the

remaining provisions of this Act, copyright subsists in:

(a) an original artistic work that is a building situated in

Australia; or

(b) an original artistic work that is attached to, or forms part of,

such a building.

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(4) In this section, qualified person means an Australian citizen or a

person resident in Australia.

33 Duration of copyright in original works

(1) This section has effect subject to subsection 32(2) and to

section 34.

(2) Subject to this section, copyright that subsists in a literary,

dramatic, musical or artistic work by virtue of this Part continues to

subsist until the end of 70 years after the end of the calendar year

in which the author of the work died.

(3) If, before the death of the author of a literary work (other than a

computer program) or a dramatic or musical work:

(a) the work had not been published;

(b) the work had not been performed in public;

(c) the work had not been broadcast; and

(d) records of the work had not been offered or exposed for sale

to the public;

the copyright in the work continues to subsist until the end of 70

years after the end of the calendar year in which the work is first

published, performed in public, or broadcast, or records of the

work are first offered or exposed for sale to the public, whichever

is the earliest of those events to happen.

(4) A reference in the last preceding subsection to the doing of an act

in relation to a work shall be read as including a reference to the

doing of that act in relation to an adaptation of the work.

(5) If, before the death of the author of an engraving, the engraving

had not been published, the copyright in the engraving continues to

subsist until the end of 70 years after the end of the calendar year

in which the engraving is first published.

34 Duration of copyright in anonymous and pseudonymous works

(1) Subject to subsection (2), if the first publication of a literary,

dramatic, musical or artistic work is anonymous or pseudonymous,

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any copyright subsisting in the work by virtue of this Part

continues to subsist until the end of the period of 70 years after the

end of the calendar year in which the work was first published.

(2) Subsection (1) does not apply in relation to a work if, at any time

before the end of the period referred to in that subsection, the

identity of the author of the work is generally known or can be

ascertained by reasonable inquiry.

35 Ownership of copyright in original works

(1) This section has effect subject to Parts VII and X.

(2) Subject to this section, the author of a literary, dramatic, musical or

artistic work is the owner of any copyright subsisting in the work

by virtue of this Part.

(3) The operation of any of the next three succeeding subsections in

relation to copyright in a particular work may be excluded or

modified by agreement.

(4) If a literary, dramatic or artistic work:

(a) is made by the author under the terms of his or her

employment by the proprietor of a newspaper, magazine or

similar periodical under a contract of service or

apprenticeship; and

(b) is so made for the purpose of inclusion in a newspaper,

magazine or similar periodical;

the following paragraphs apply:

(c) the author is the owner of the copyright only in so far as the

copyright relates to:

(i) reproduction of the work for the purpose of inclusion in

a book; or

(ii) reproduction of the work in the form of a hard copy

facsimile (other than a hard copy facsimile made as part

of a process of transmission) made from a paper edition

of, or from another hard copy facsimile made from a

paper edition of, an issue of the newspaper, magazine or

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similar periodical, but not including reproduction by the

proprietor for a purpose connected with the publication

of the newspaper, magazine or similar periodical;

(d) except as provided by paragraph (c), the proprietor is the

owner of the copyright.

(5) Subject to the last preceding subsection, where:

(a) a person makes, for valuable consideration, an agreement

with another person for the taking of a photograph for a

private or domestic purpose, the painting or drawing of a

portrait or the making of an engraving by the other person;

and

(b) the work is made in pursuance of the agreement;

the first-mentioned person is the owner of any copyright subsisting

in the work by virtue of this Part, but, if at the time the agreement

was made that person made known, expressly or by implication, to

the author of the work the purpose for which the work was

required, the author is entitled to restrain the doing, otherwise than

for that purpose, of any act comprised in the copyright in the work.

(6) Where a literary, dramatic or artistic work to which neither of the

last two preceding subsections applies, or a musical work, is made

by the author in pursuance of the terms of his or her employment

by another person under a contract of service or apprenticeship,

that other person is the owner of any copyright subsisting in the

work by virtue of this Part.

(7) In this section:

hard copy facsimile, in relation to a literary, dramatic or artistic

work, means a facsimile which is in a material form and from

which the work is visible to a human being without the use of any

device.

private or domestic purpose includes a portrait of family members,

a wedding party or children.

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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

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(ii) for any other purpose to an extent that will affect

prejudicially the owner of the copyright; or

(c) by way of trade exhibiting the article in public;

if the importer knew, or ought reasonably to have known, that the

making of the article would, if the article had been made in

Australia by the importer, have constituted an infringement of the

copyright.

(2) In relation to an accessory to an article that is or includes a copy of

a work, being a copy that was made without the licence of the

owner of the copyright in the work in the country in which the

copy was made, subsection (1) has effect as if the words “the

importer knew, or ought reasonably to have known, that” were

omitted.

38 Infringement by sale and other dealings

(1) Subject to Division 3, the copyright in a literary, dramatic, musical

or artistic work is infringed by a person who, in Australia, and

without the licence of the owner of the copyright:

(a) sells, lets for hire, or by way of trade offers or exposes for

sale or hire, an article; or

(b) by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the

making of the article constituted an infringement of the copyright

or, in the case of an imported article, would, if the article had been

made in Australia by the importer, have constituted such an

infringement.

(2) For the purposes of the last preceding subsection, the distribution

of any articles:

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially

the owner of the copyright concerned;

shall be taken to be the sale of those articles.

(3) In this section:

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article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

39 Infringement by permitting place of public entertainment to be

used for performance of work

(1) The copyright in a literary, dramatic or musical work is infringed

by a person who permits a place of public entertainment to be used

for the performance in public of the work, where the performance

constitutes an infringement of the copyright in the work.

(2) This section does not apply where the person permitting the place

to be so used establishes:

(a) that he or she was not aware, and had no reasonable grounds

for suspecting, that the performance would be an

infringement of the copyright; or

(b) that he or she gave the permission gratuitously, or for a

consideration that was only nominal or, if more than

nominal, did not exceed a reasonable estimate of the

expenses to be incurred by him or her by reason of the use of

the place for the performance.

(3) In this section, place of public entertainment includes any

premises that are occupied principally for purposes other than

public entertainment but are from time to time made available for

hire for purposes of public entertainment.

39A Infringing copies made on machines installed in libraries and

archives

Where:

(a) a person makes an infringing copy of, or of part of, a work on

a machine (including a computer), being a machine installed

by or with the approval of the body administering a library or

archives on the premises of the library or archives, or outside

those premises for the convenience of persons using the

library or archives; and

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(b) there is affixed to, or in close proximity to, the machine, in a

place readily visible to persons using the machine, a notice of

the prescribed dimensions and in accordance with the

prescribed form;

neither the body administering the library or archives nor the

officer in charge of the library or archives shall be taken to have

authorized the making of the infringing copy by reason only that

the copy was made on that machine.

39B Communication by use of certain facilities

A person (including a carrier or carriage service provider) who

provides facilities for making, or facilitating the making of, a

communication is not taken to have authorised any infringement of

copyright in a work merely because another person uses the

facilities so provided to do something the right to do which is

included in the copyright.

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Division 3—Acts not constituting infringements of

copyright in works

40 Fair dealing for purpose of research or study

(1) A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, for the

purpose of research or study does not constitute an infringement of

the copyright in the work.

(1A) A fair dealing with a literary work (other than lecture notes) does

not constitute an infringement of the copyright in the work if it is

for the purpose of, or associated with, an approved course of study

or research by an enrolled external student of an educational

institution.

(1B) In subsection (1A) the expression lecture notes means any literary

work produced for the purpose of the course of study or research

by a person lecturing or teaching in or in connection with the

course of study or research.

(2) For the purposes of this Act, the matters to which regard shall be

had, in determining whether a dealing with a literary, dramatic,

musical or artistic work or with an adaptation of a literary,

dramatic or musical work, being a dealing by way of reproducing

the whole or a part of the work or adaptation, constitutes a fair

dealing with the work or adaptation for the purpose of research or

study include:

(a) the purpose and character of the dealing;

(b) the nature of the work or adaptation;

(c) the possibility of obtaining the work or adaptation within a

reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or

value of, the work or adaptation; and

(e) in a case where part only of the work or adaptation is

reproduced—the amount and substantiality of the part copied

taken in relation to the whole work or adaptation.

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(3) Despite subsection (2), a reproduction, for the purpose of research

or study, of all or part of a literary, dramatic or musical work, or of

an adaptation of such a work, contained in an article in a periodical

publication is taken to be a fair dealing with the work or adaptation

for the purpose of research or study.

(4) Subsection (3) does not apply if another article in the publication is

also reproduced for the purpose of different research or a different

course of study.

(5) Despite subsection (2), a reproduction, for the purpose of research

or study, of not more than a reasonable portion of a work or

adaptation that is described in an item of the table and is not

contained in an article in a periodical publication is taken to be a

fair dealing with the work or adaptation for the purpose of research

or study. For this purpose, reasonable portion means the amount

described in the item.

Works, adaptations and reasonable portions

Item Work or adaptation Amount that is reasonable portion

1 A literary, dramatic or musical work

(except a computer program), or an

(a) 10% of the number of pages in

the edition; or

adaptation of such a work, that is

contained in a published edition of at

least 10 pages

(b) if the work or adaptation is

divided into chapters—a single

chapter

2 A published literary work in

electronic form (except a computer

(a) 10% of the number of words in

the work or adaptation; or

program or an electronic compilation,

such as a database), a published

dramatic work in electronic form or

(b) if the work or adaptation is

divided into chapters—a single

chapter

an adaptation published in electronic

form of such a literary or dramatic

work

(6) Subsection (5) applies to a reproduction of a work or adaptation

described in both items of the table in that subsection even if the

amount of the work or adaptation reproduced is not more than a

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reasonable portion (as defined in that subsection) on the basis of

only one of those items.

(7) If:

(a) a person makes a reproduction of a part of a published

literary or dramatic work or published adaptation of a literary

or dramatic work; and

(b) the reproduction is of not more than a reasonable portion (as

defined in subsection (5)) of the work or adaptation;

subsection (5) does not apply in relation to any subsequent

reproduction made by the person of any other part of the same

work or adaptation.

(8) Subsections 10(2), (2A), (2B) and (2C) do not affect

subsection (5), (6) or (7) of this section.

41 Fair dealing for purpose of criticism or review

A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if it is for

the purpose of criticism or review, whether of that work or of

another work, and a sufficient acknowledgement of the work is

made.

41A Fair dealing for purpose of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if it is for

the purpose of parody or satire.

42 Fair dealing for purpose of reporting news

(1) A fair dealing with a literary, dramatic, musical or artistic work, or

with an adaptation of a literary, dramatic or musical work, does not

constitute an infringement of the copyright in the work if:

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(a) it is for the purpose of, or is associated with, the reporting of

news in a newspaper, magazine or similar periodical and a

sufficient acknowledgement of the work is made; or

(b) it is for the purpose of, or is associated with, the reporting of

news by means of a communication or in a cinematograph

film.

(2) The playing of a musical work in the course of reporting news by

means of a communication or in a cinematograph film is not a fair

dealing with the work for the purposes of this section if the playing

of the work does not form part of the news being reported.

43 Reproduction for purpose of judicial proceedings or professional

advice

(1) The copyright in a literary, dramatic, musical or artistic work is not

infringed by anything done for the purposes of a judicial

proceeding or of a report of a judicial proceeding.

(2) A fair dealing with a literary, dramatic, musical or artistic work

does not constitute an infringement of the copyright in the work if

it is for the purpose of the giving of professional advice by:

(a) a legal practitioner; or

(b) a person registered as a patent attorney under the Patents Act

1990; or

(c) a person registered as a trade marks attorney under the Trade

Marks Act 1995.

43A Temporary reproductions made in the course of

communication

(1) The copyright in a work, or an adaptation of a work, is not

infringed by making a temporary reproduction of the work or

adaptation as part of the technical process of making or receiving a

communication.

(2) Subsection (1) does not apply in relation to the making of a

temporary reproduction of a work, or an adaptation of a work, as

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part of the technical process of making a communication if the

making of the communication is an infringement of copyright.

43B Temporary reproductions of works as part of a technical

process of use

(1) Subject to subsection (2), the copyright in a work is not infringed

by the making of a temporary reproduction of the work if the

reproduction is incidentally made as a necessary part of a technical

process of using a copy of the work.

(2) Subsection (1) does not apply to:

(a) the making of a temporary reproduction of a work if the

reproduction is made from:

(i) an infringing copy of the work; or

(ii) a copy of the work where the copy is made in another

country and would be an infringing copy of the work if

the person who made the copy had done so in Australia;

or

(b) the making of a temporary reproduction of a work as a

necessary part of a technical process of using a copy of the

work if that use constitutes an infringement of the copyright

in the work.

(3) Subsection (1) does not apply to any subsequent use of a temporary

reproduction of a work other than as a part of the technical process

in which the temporary reproduction was made.

43C Reproducing works in books, newspapers and periodical

publications in different form for private use

(1) This section applies if:

(a) the owner of a book, newspaper or periodical publication

makes from it a reproduction (the main copy) of a work

contained in the book, newspaper or periodical publication;

and

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(b) the main copy is made for his or her private and domestic use

instead of the work as contained in the book, newspaper or

periodical publication; and

(c) the main copy embodies the work in a form different from

the form in which the work is embodied in the book,

newspaper or periodical publication; and

(d) the book, newspaper or periodical publication itself is not an

infringing copy of either the work or a published edition of

the work; and

(e) at the time the owner makes the main copy, he or she has not

made, and is not making, another copy that embodies the

work in a form substantially identical to the form of the main

copy.

For this purpose, disregard a temporary reproduction of the work

incidentally made as a necessary part of the technical process of

making the main copy.

(2) The making of the main copy is not an infringement of copyright in

the work or a published edition of the work.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then

copyright may be infringed not only by the making of the main copy

but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

main copy by the lender to a member of the lender’s family or

household for the member’s private and domestic use.

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Reproducing work from main copy may infringe copyright

(5) Subsection (2) does not prevent the main copy from being an

infringing copy for the purpose of working out whether this section

applies again in relation to the making of another reproduction of

the work from the main copy.

Disposal of book etc. may make the main copy an infringing copy

(6) Subsection (2) is taken never to have applied if the owner of the

book, newspaper or periodical publication disposes of it (in the

form from which the main copy was made) to another person.

Status of temporary reproduction

(7) If subsection (2) applies to the making of the main copy only as a

result of disregarding the incidental making of a temporary

reproduction of the work as a necessary part of the technical

process of making the main copy, then:

(a) if the temporary reproduction is destroyed at the first

practicable time during or after the making of the main

copy—the making of the temporary reproduction does not

infringe copyright in the work or a published edition of the

work; or

(b) if the temporary reproduction is not destroyed at that time—

the making of the temporary reproduction is taken always to

have infringed copyright (if any) subsisting in the work and

the published edition of the work from which the main copy

was made.

44 Inclusion of works in collections for use by places of education

(1) The copyright in a published literary, dramatic, musical or artistic

work is not infringed by the inclusion of a short extract from the

work, or, in the case of a published literary, dramatic or musical

work, from an adaptation of the work, in a collection of literary,

dramatic, musical or artistic works contained in a book, sound

recording or cinematograph film and intended for use by places of

education if:

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(a) the collection is described in an appropriate place in the

book, on the label of each record embodying the recording or

of its container, or in the film, as being intended for use by

places of education;

(b) the work or adaptation was not published for the purpose of

being used by places of education;

(c) the collection consists principally of matter in which

copyright does not subsist; and

(d) a sufficient acknowledgement of the work or adaptation is

made.

(2) The last preceding subsection does not apply in relation to the

copyright in a work if, in addition to the extract concerned, 2 or

more other extracts from, or from adaptations of, works (being

works in which copyright subsists at the time when the collection

is published) by the author of the first-mentioned work are

contained in that collection, or are contained in that collection

taken together with every similar collection, if any, of works

intended for use by places of education and published by the same

publisher within the period of 5 years immediately preceding the

publication of the first-mentioned collection.

44A Importation etc. of books

(1) The copyright in an overseas work first published on or after the

commencing day is not infringed by a person who, without the

licence of the owner of the copyright, imports a non-infringing

book into Australia for a purpose mentioned in paragraph 37(1)(a),

(b) or (c).

(2) Subject to this section, the copyright in:

(a) an overseas work first published before the commencing day;

or

(b) a work first published in Australia, whether before, on or

after the commencing day;

is not infringed by a person who, without the licence of the owner

of the copyright, imports a copy (in this subsection called the

imported copy) of a hardback or paperback version of a

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non-infringing book into Australia for a purpose mentioned in

paragraph 37(1)(a), (b) or (c) if:

(c) the person had ordered in writing from the copyright owner,

or the owner’s licensee or agent, one or more copies of that

version of the book (not being second-hand copies or more

copies than were needed to satisfy the person’s reasonable

requirements); and

(d) when the person ordered the imported copy, the original

order mentioned in paragraph (c) had not been withdrawn or

cancelled by, or with the consent of, the person and:

(i) at least 7 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not notified the person in writing that the

original order would be filled within 90 days after it was

placed; or

(ii) at least 90 days had elapsed since the person placed the

original order and the copyright owner, licensee or

agent had not filled the order.

(3) The copyright in a published work (whether first published before,

on or after the commencing day) is not infringed by a person who,

without the licence of the owner of the copyright, imports a single

copy of a non-infringing book into Australia if the importation is

for the purpose of filling a written order, or a verifiable telephone

order, by a customer of the person and:

(a) in the case of a written order, the order contains a statement,

signed by the customer; or

(b) in the case of a telephone order, the customer makes a

verifiable statement;

to the effect that the customer does not intend to use the book for a

purpose mentioned in paragraph 37(1)(a), (b) or (c).

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(4) The copyright in a published work (whether first published before,

on or after the commencing day) is not infringed by a person who,

without the licence of the owner of the copyright, imports 2 or

more copies of a non-infringing book into Australia if:

(a) the importation is for the purpose of filling a written order, or

a verifiable telephone order, placed with the person by or on

behalf of a library, other than a library conducted for the

profit (direct or indirect) of a person or organisation; and

(b) in the case of a written order—the order contains a statement,

signed by the person placing the order, to the effect that the

library does not intend to use any of the books for a purpose

mentioned in paragraph 37(1)(a), (b) or (c); and

(c) in the case of a telephone order—the person placing the order

makes a verifiable statement to the effect referred to in

paragraph (b); and

(d) the number of copies so imported is not more than the

number of copies so ordered.

(5) Without limiting the ways in which a telephone order under

subsection (3) or (4), or a statement under paragraph (3)(b) or

(4)(c) relating to such an order, may be verified, such an order or

statement is, for the purposes of this section, taken to be verifiable

if the person who takes the order, or to whom the statement is

made, makes a written note of the details of the order or statement

when, or immediately after, the order is placed, or the statement is

made, as the case may be.

(6) Where:

(a) a book is imported into Australia for a purpose mentioned in

paragraph 37(1)(a), (b) or (c); and

(b) the importation does not, under this section, constitute an

infringement of copyright in a published work;

the use of the book for any such purpose does not constitute an

infringement of the copyright in the work and subsection 38(1)

does not apply to the book.

(7) Subsection (2) does not apply to the importation of a copy of a

hardback version of a non-infringing book into Australia if the

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copyright owner, or his or her licensee or agent, is able to supply in

Australia enough copies of a paperback version of the book to fill

any reasonable order.

(8) For the purposes of paragraph (2)(d), a copyright owner, licensee

or agent is not taken to have filled an order by a person for one or

more copies of a version of a book unless and until the copyright

owner, licensee or agent sends the copy, or all of the copies, as the

case requires, to the person.

(9) In this section:

book does not include:

(a) a book whose main content is one or more musical works,

with or without any related literary, dramatic or artistic work;

or

(b) a manual sold with computer software for use in connection

with that software; or

(c) a periodical publication.

commencing day means the day on which the Copyright

Amendment Act 1991 commences.

overseas work means a work:

(a) that was first published in a country other than Australia; and

(b) that was not published in Australia within 30 days after its

first publication in that other country.

Note: A work may, for the purposes of this Act, be first published in

Australia if it is published in Australia within 30 days of an earlier

publication elsewhere. For the meaning of first publication, see

section 29 and, in particular, subsection 29(5).

44B Reproduction of writing on approved label for containers for

chemical product

The reproduction on a label on a container for a chemical product

of any writing appearing on an approved label is not an

infringement of any copyright subsisting under this Part in relation

to that writing.

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44BA Acts done in relation to certain medicine

(1) The following acts are not an infringement of any copyright

subsisting under this Part in a work that is product information

approved under section 25AA of the Therapeutic Goods Act 1989

in relation to medicine:

(a) an act that is done under that Act and that is in respect of

product information in relation to:

(i) restricted medicine; or

(ii) medicine in respect of which the applicant for the

registration of that medicine under that Act has been

given a notice of the kind referred to in

subparagraph 25(1)(da)(ii) of that Act; or

(iii) medicine in respect of which subsection 25AA(2) or (3)

of that Act applies;

(b) an act that is ancillary or incidental to an act referred to in

paragraph (a).

(2) The following acts are not an infringement of any copyright

subsisting under this Part in a work that is product information

approved under section 25AA of the Therapeutic Goods Act 1989

in relation to medicine:

(a) supplying, in Australia, some or all of any product

information that is approved under that section in relation to

medicine;

(b) reproducing, in Australia, some or all of the information

referred to in paragraph (a);

(c) publishing, in Australia, some or all of the information

referred to in paragraph (a);

(d) communicating, in Australia, some or all of the information

referred to in paragraph (a);

(e) adapting, in Australia, some or all of the information referred

to in paragraph (a);

to the extent that the supply, reproduction, publication,

communication or adaptation is for a purpose related to the safe

and effective use of the medicine referred to in paragraph (a).

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(3) An act done in Australia that is ancillary or incidental to a supply,

reproduction, publication, communication or adaptation referred to

in subsection (2) is not an infringement of any copyright subsisting

under this Part in the work referred to in subsection (2).

(4) For the purposes of this section, medicine, product information

and restricted medicine have the same meanings as in the

Therapeutic Goods Act 1989.

44BB Copyright subsisting in works shared for healthcare or related

purposes

(1) The copyright in a work is not infringed by an act comprised in the

copyright in the work if:

(a) the act is done, or authorised to be done:

(i) for a purpose for which the collection, use or disclosure

of health information is required or authorised under the

My Health Records Act 2012; or

(ii) in circumstances in which a permitted general situation

exists under item 1 of the table in subsection 16A(1) of

the Privacy Act 1988 (serious threat to life, health or

safety), or would exist if the act were done, or

authorised to be done, by an entity that is an APP entity

for the purposes of that Act; or

(iii) in circumstances in which a permitted health situation

exists under section 16B of the Privacy Act 1988, or

would exist if the act were done, or authorised to be

done, by an entity that is an organisation for the

purposes of that Act; or

(iv) for any other purpose relating to healthcare, or the

communication or management of health information,

prescribed by the regulations; and

(b) either:

(i) the work is substantially comprised of health

information; or

(ii) the work allows for the storage, retrieval or use of

health information and it is reasonably necessary to do

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the act, or authorise it to be done, in circumstances that

would otherwise infringe copyright in the work.

(2) In this section:

healthcare has the same meaning as in the My Health Records Act

2012.

health information has the same meaning as in the My Health

Records Act 2012.

44C Copyright subsisting in accessories etc. to imported articles

(1) The copyright in a work a copy of which is, or is on, or embodied

in, a non-infringing accessory to an article is not infringed by

importing the accessory with the article.

Note: See the definition of accessory in subsection 10(1) and see also

section 10AD for an expanded meaning of accessory in relation to

certain imported articles.

(2) Section 38 does not apply to a copy of a work, being a copy that is,

or is on, or embodied in, a non-infringing accessory to an article, if

the importation of the accessory is not an infringement of copyright

in the work.

44D Import of non-infringing copy of sound recording does not

infringe copyright in works recorded

(1) The copyright in a literary, dramatic or musical work is not

infringed by a person who:

(a) imports into Australia a non-infringing copy of a sound

recording of the work; or

(b) does an act described in section 38 involving an article that is

a non-infringing copy of a sound recording of the work and

has been imported into Australia by anyone.

Note: In a civil action for infringement of copyright, a copy of a sound

recording is presumed not to be a non-infringing copy of the sound

recording unless the defendant proves it is. See section 130A.

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(2) This section applies to a copy of a sound recording only if, when

the copy is imported into Australia, the sound recording has been

published:

(a) in Australia; or

(b) in another country (the publication country) by or with the

consent of:

(i) the owner of the copyright or related right in the sound

recording in the publication country; or

(ii) the owner of the copyright or related right in the sound

recording in the country (the original recording

country) in which the sound recording was made, if the

law of the publication country did not provide for

copyright or a related right in sound recordings when

publication occurred; or

(iii) the maker of the sound recording, if neither the law of

the publication country nor the law of the original

recording country (whether those countries are different

or not) provided for copyright or a related right in sound

recordings when publication occurred.

Note: Subsection 29(6) deals with unauthorised publication.

(3) In subsection (2):

owner of the copyright or related right in the sound recording

means the owner at the time publication of the sound recording

occurred.

(4) The definition of article in section 38 does not affect this section.

44E Importation and sale etc. of copies of computer programs

(1) The copyright in a literary work:

(a) that is a computer program; and

(b) that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c) imports into Australia an article that has embodied in it a

non-infringing copy of the program; or

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Section 44F

(d) does an act mentioned in section 38 involving an article that

has embodied in it a non-infringing copy of the program and

that has been imported into Australia by anyone.

Note: Section 130B deals with the burden of proof a defendant bears in a

civil action for infringement of copyright.

(2) The definition of article in section 38 does not affect this section.

44F Importation and sale etc. of copies of electronic literary or

music items

(1) The copyright in a work:

(a) that is, or is part of, an electronic literary or music item; and

(b) that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c) imports into Australia an article that has embodied in it a

non-infringing copy of the electronic literary or music item;

or

(d) does an act mentioned in section 38 involving an article that

has embodied in it a non-infringing copy of the electronic

literary or music item and that has been imported into

Australia by anyone.

Note: Section 130C deals with the burden of proof a defendant bears in a

civil action for infringement of copyright.

(2) The definition of article in section 38 does not affect this section.

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Division 4

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.

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musical works

Section 47

(2) The last preceding subsection does not apply in relation to a

recording or film if a record embodying the recording or a copy of

the film is used for a purpose other than:

(a) the broadcasting of the work or adaptation in circumstances

that do not (whether by reason of an assignment or licence or

of the operation of a provision of this Act) constitute an

infringement of the copyright in the work; or

(b) the making of further records embodying the recording or

further copies of the film for the purpose of the broadcasting

of the work or adaptation in such circumstances.

(3) Subsection (1) does not apply in relation to a recording or film

where a record embodying the recording or a copy of the film is

used for the purpose of the broadcasting of the work or adaptation

by a person who is not the maker of the recording or film unless

the maker has paid to the owner of the copyright in the work such

amount as they agree or, in default of agreement, has given an

undertaking in writing to the owner to pay to the owner such

amount as is determined by the Copyright Tribunal, on the

application of either of them, to be equitable remuneration to the

owner for the making of the recording or film.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the work and the owner

may recover that amount in a court of competent jurisdiction from

the person as a debt due to the owner.

(5) Subsection (1) of this section does not apply in relation to a

recording or film unless, before the expiration of the period of 12

months commencing on the day on which any of the records

embodying the recording or any of the copies of the film is first

used for broadcasting the work or adaptation in accordance with

that subsection, or before the expiration of such further period, if

any, as is agreed between the maker of the recording or film and

the owner of the copyright in the work, all the records embodying

the recording or all the copies of the film are destroyed or are

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Section 47AA

transferred, with the consent of the Director-General of the

National Archives of Australia, to the care (within the meaning of

the Archives Act 1983) of the National Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a record embodying

a recording or of a copy of a film unless he or she has certified that

the recording or film is of an exceptional documentary character.

(7) In this section:

broadcasting does not include simulcasting.

47AA Reproduction for the purpose of simulcasting

(1) If the broadcasting of a literary, dramatic or musical work, or of an

adaptation of such a work, would not for any reason constitute an

infringement of the copyright in the work, but the making of a

sound recording or a cinematograph film of the work or adaptation

would, apart from this subsection, constitute such an infringement,

the copyright in the work is not infringed by the making of such a

recording or film solely for the purpose of simulcasting the work or

adaptation in digital form.

(2) Subsection (1) does not apply in relation to a recording or film if a

record embodying the recording or a copy of the film is used for a

purpose other than:

(a) the simulcasting of the work or adaptation in circumstances

that do not for any reason constitute an infringement of the

copyright in the work; or

(b) the making of further records embodying the recording or

further copies of the film for the purpose of simulcasting the

work or adaptation in such circumstances.

(3) Subsection (1) does not apply in relation to a recording or film

unless all records embodying the recording, or all copies of the

film, made under that subsection are destroyed on or before the

relevant date specified in the regulations.

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musical works

Section 47AA

(4) For the purposes of subsection (3), the regulations may specify

different dates in relation to different classes of sound recordings

or cinematograph films.

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Acts not constituting infringements of copyright in computer programs Division 4A

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

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Section 47C

original copy, or the other reproduction, is lost,

destroyed or rendered unusable.

(2) Subject to subsection (4), the copyright in a literary work that is a

computer program, and in any work or other subject-matter held

together with the program on the same computer system, is not

infringed by the making of a reproduction of the program, or of

such a work or other subject-matter if:

(a) the reproduction is made by, or on behalf of, the owner or

licensee of the copy (the original copy) from which the

reproduction is made; and

(b) the making of the reproduction is part of the normal back-up

copying of data for security purposes.

(3) Subsection (1) applies in relation to a reproduction of a work made

for a purpose referred to in subparagraph (1)(c)(iii) whether or not

other reproductions of the work have previously been made for the

same purpose from the same copy.

(4) Subsections (1) and (2) do not apply to the making of a

reproduction of a computer program:

(a) from an infringing copy of the computer program; or

(b) if the owner of the copyright in the computer program has so

designed the program that copies of it cannot be made

without modifying the program; or

(c) if a licence to use the original copy, given by, or on behalf of,

the owner of the copyright in the computer program to the

owner of the original copy when the owner of that copy

acquired it, has expired or been terminated.

(5) For the purposes of this section, a reference to a copy of a

computer program is a reference to any article in which the

computer program is reproduced in a material form.

(6) In this section:

reproduction, in relation to a computer program, does not include a

version of the program of the kind referred to in

paragraph 21(5)(b).

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Section 47D

47D Reproducing computer programs to make interoperable

products

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

or adaptation of the work if:

(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original program) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of

obtaining information necessary to enable the owner or

licensee, or a person acting on behalf of the owner or

licensee, to make independently another program (the new

program), or an article, to connect to and be used together

with, or otherwise to interoperate with, the original program

or any other program; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to obtain the information referred to in

paragraph (b); and

(d) to the extent that the new program reproduces or adapts the

original program, it does so only to the extent necessary to

enable the new program to connect to and be used together

with, or otherwise to interoperate with, the original program

or the other program; and

(e) the information referred to in paragraph (b) is not readily

available to the owner or licensee from another source when

the reproduction or adaptation is made.

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47E Reproducing computer programs to correct errors

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making, on or after

23 February 1999, of a reproduction or adaptation of the work if:

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Section 47F

(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original copy) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of

correcting an error in the original copy that prevents it from

operating (including in conjunction with other programs or

with hardware):

(i) as intended by its author; or

(ii) in accordance with any specifications or other

documentation supplied with the original copy; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to correct the error referred to in

paragraph (b); and

(d) when the reproduction or adaptation is made, another copy of

the program that does operate as mentioned in paragraph (b)

is not available to the owner or licensee within a reasonable

time at an ordinary commercial price.

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47F Reproducing computer programs for security testing

(1) Subject to this Division, the copyright in a literary work that is a

computer program is not infringed by the making of a reproduction

or adaptation of the work if:

(a) the reproduction or adaptation is made by, or on behalf of,

the owner or licensee of the copy of the program (the

original copy) used for making the reproduction or

adaptation; and

(b) the reproduction or adaptation is made for the purpose of:

(i) testing in good faith the security of the original copy, or

of a computer system or network of which the original

copy is a part; or

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Section 47G

(ii) investigating, or correcting, in good faith a security flaw

in, or the vulnerability to unauthorised access of, the

original copy, or of a computer system or network of

which the original copy is a part; and

(c) the reproduction or adaptation is made only to the extent

reasonably necessary to achieve a purpose referred to in

paragraph (b); and

(d) the information resulting from the making of the

reproduction or adaptation is not readily available to the

owner or licensee from another source when the reproduction

or adaptation is made.

(2) Subsection (1) does not apply to the making of a reproduction or

adaptation of a computer program from an infringing copy of the

computer program.

47G Unauthorised use of copies or information

(1) If:

(a) a reproduction or adaptation of a literary work that is a

computer program is made under a prescribed provision; and

(b) the reproduction or adaptation, or any information derived

from it, is, without the consent of the owner of the copyright

in the computer program, used, or sold or otherwise supplied

to a person, for a purpose other than a purpose specified in

the prescribed provision;

the prescribed provision does not apply, and is taken never to have

applied, to the making of the reproduction or adaptation.

(2) For the purposes of this section, sections 47B, 47C, 47D, 47E and

47F are prescribed provisions.

47H Agreements excluding operation of certain provisions

An agreement, or a provision of an agreement, that excludes or

limits, or has the effect of excluding or limiting, the operation of

subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.

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Section 47J

Division 4B—Acts not constituting infringements of

copyright in artistic works

47J Reproducing photograph in different format for private use

(1) This section applies if:

(a) the owner of a photograph (the original photograph) makes

a reproduction (the main copy) of it for his or her private and

domestic use instead of the original photograph; and

(b) the original photograph itself is not an infringing copy of a

work or published edition of a work; and

(c) either:

(i) the original photograph is in hardcopy form and the

main copy is in electronic form; or

(ii) the original photograph is in electronic form and the

main copy is in hardcopy form; and

(d) at the time the owner makes the main copy, he or she has not

made, and is not making, another reproduction of the original

photograph that embodies the original photograph in a form

substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the original

photograph incidentally made as a necessary part of the technical

process of making the main copy.

(2) The making of the main copy is not an infringement of copyright:

(a) in the original photograph; or

(b) in a work, or published edition of a work, included in the

original photograph.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

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Section 47J

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then

copyright may be infringed not only by the making of the main copy

but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

main copy by the lender to a member of the lender’s family or

household for the member’s private and domestic use.

Reproducing main copy may infringe copyright

(5) Subsection (2) does not prevent the main copy from being an

infringing copy for the purpose of working out whether this section

applies again in relation to the making of a reproduction of the

main copy.

Disposal of original may make the main copy an infringing copy

(6) Subsection (2) is taken never to have applied if the owner of the

original photograph disposes of it to another person.

Status of temporary reproduction

(7) If subsection (2) applies to the making of the main copy only as a

result of disregarding the incidental making of a temporary

reproduction of the original photograph as a necessary part of the

technical process of making the main copy, then:

(a) if the temporary reproduction is destroyed at the first

practicable time during or after the making of the main

copy—the making of the temporary reproduction does not

infringe copyright in the original photograph or a work, or

published edition of a work, included in the original

photograph; or

(b) if the temporary reproduction is not destroyed at that time—

the making of the temporary reproduction is taken always to

have infringed copyright (if any) subsisting in the original

photograph or a work, or published edition of a work,

included in the original photograph.

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Copying of works in libraries or archives Division 5

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 113H(1) (Preservation).

(2A) A person may make to an authorized officer of a library or

archives:

(a) a request to be supplied with a reproduction of an article, or

part of an article, contained in a periodical publication, or of

the whole or a part of a published work other than an article

contained in a periodical publication, being a periodical

publication or a published work held in the collection of a

library or archives; and

(b) a declaration to the effect that:

(i) the person requires the reproduction for the purpose of

research or study and will not use it for any other

purpose;

(ii) the person has not previously been supplied with a

reproduction of the same article or other work, or the

same part of the article or other work, as the case may

be, by an authorized officer of the library or archives;

and

(iii) by reason of the remoteness of the person’s location, the

person cannot conveniently furnish to the officer in

charge of the library or archives a request and

declaration referred to in subsection (1) in relation to the

reproduction soon enough to enable the reproduction to

be supplied to the person before the time by which the

person requires it.

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(2B) A request or declaration referred to in subsection (2A) is not

required to be made in writing.

(2C) Subject to this section, where:

(a) a request and declaration referred to in subsection (2A) are

made by a person to an authorized officer of a library or

archives; and

(b) the authorized officer makes a declaration setting out

particulars of the request and declaration made by the person

and stating that:

(i) the declaration made by the person, so far as it relates to

the matters specified in subparagraphs (2A)(b)(i) and

(ii), does not contain a statement that, to the knowledge

of the authorized officer, is untrue in a material

particular; and

(ii) the authorized officer is satisfied that the declaration

made by the person is true so far as it relates to the

matter specified in subparagraph (2A)(b)(iii);

an authorized officer of the library or archives may make, or cause

to be made, the reproduction to which the request relates and

supply the reproduction to the person.

Note: The reproduction could be made from another reproduction of the

article or published work in the collection of the library or archives

that was made without infringing copyright because of

subsection 113H(1) (Preservation).

(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

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contained in a periodical publication), or to a reproduction of a part

of such a work that contains more than a reasonable portion of the

work unless:

(a) the work forms part of the library or archives collection; and

(b) before the reproduction is made, an authorized officer has,

after reasonable investigation, made a declaration stating that

he or she is satisfied that a reproduction (not being a

second-hand reproduction) of the work cannot be obtained

within a reasonable time at an ordinary commercial price.

(5AA) For the purposes of subsection (5), if the characteristics of the work

are such that subsection 10(2) or (2A) is relevant to the question

whether the reproduction contains only a reasonable portion of the

work, then that question is to be determined solely by reference to

subsection 10(2) or (2A) and not by reference to the ordinary

meaning of reasonable portion.

(5AB) For the purposes of paragraph (5)(b), in determining whether a

reproduction (not being a second-hand reproduction) of the work

cannot be obtained within a reasonable time at an ordinary

commercial price, the authorized officer must take into account:

(a) the time by which the person requesting the reproduction

requires it; and

(b) the time within which a reproduction (not being a

second-hand reproduction) of the work at an ordinary

commercial price could be delivered to the person; and

(c) whether an electronic reproduction of the work can be

obtained within a reasonable time at an ordinary commercial

price.

(5A) If an article contained in a periodical publication, or a published

work (other than an article contained in a periodical publication) is

acquired, in electronic form, as part of a library or archives

collection, the officer in charge of the library or archives may make

it available online within the premises of the library or archives in

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

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(b) communicate the article or work.

(6) The copyright in an article contained in a periodical publication is

not infringed by the making, in relation to a request under

subsection (1) or (2A), of a reproduction of the article, or of a part

of the article, in accordance with subsection (2) or (2C), as the case

may be, unless the reproduction is supplied to a person other than

the person who made the request.

(7) The copyright in a published work other than an article contained

in a periodical publication is not infringed by the making, in

relation to a request under subsection (1) or (2A), of a reproduction

of the work, or of a part of the work, in accordance with

subsection (2) or (2C), as the case may be, unless the reproduction

is supplied to a person other than the person who made the request.

(7A) Subsections (6) and (7) do not apply to the making under

subsection (2) or (2C) of an electronic reproduction of:

(a) an article, or a part of an article, contained in a periodical

publication; or

(b) the whole or part of a published work, other than such an

article;

in relation to a request under this section for communication to the

person who made the request unless:

(c) before or when the reproduction is communicated to the

person, the person is notified in accordance with the

regulations:

(i) that the reproduction has been made under this section

and that the article or work might be subject to

copyright protection under this Act; and

(ii) about such other matters (if any) as are prescribed; and

(d) as soon as practicable after the reproduction is communicated

to the person, the reproduction made under subsection (2) or

(2C) and held by the library or archives is destroyed.

(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).

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(8) The regulations may exclude the application of subsection (6) or

(7) in such cases as are specified in the regulations.

(9) In this section:

archives means an archives all or part of whose collection is

accessible to members of the public.

library means a library all or part of whose collection is accessible

to members of the public directly or through interlibrary loans.

supply includes supply by way of a communication.

Note: Under section 203F, it is an offence to make a false or misleading

declaration for the purposes of this section. Sections 203A 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.

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(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 113H(1)

(Preservation).

(3) Where, under subsection (2), an authorized officer of a library

makes, or causes to be made, a reproduction of the whole or part of

a work (including an article contained in a periodical publication)

and supplies it to the officer in charge of another library in

accordance with a request made under subsection (1):

(a) the reproduction shall, for all purposes of this Act, be deemed

to have been made on behalf of an authorized officer of the

other library for the purpose for which the reproduction was

requested; and

(b) an action shall not be brought against the body administering

that first-mentioned library, or against any officer or

employee of that library, for infringement of copyright by

reason of the making or supplying of that reproduction.

(4) Subject to this section, if a reproduction of the whole or a part of

an article contained in a periodical publication, or of any other

published work, is, by virtue of subsection (3), taken to have been

made on behalf of an authorised officer of a library, the copyright

in the article or other work is not infringed:

(a) by the making of the reproduction; or

(b) if the work is supplied under subsection (2) by way of a

communication—by the making of the communication.

(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

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not apply in relation to the request if the amount of the charge

exceeds the cost of making and supplying the reproduction.

(7) Where:

(a) a reproduction (in this subsection referred to as the relevant

reproduction) of, or of a part of, an article, or of the whole or

a part of another work, is supplied under subsection (2) to the

officer in charge of a library; and

(b) a reproduction of the same article or other work, or of the

same part of the article or other work, as the case may be, has

previously been supplied under subsection (2) for the purpose

of inclusion in the collection of the library;

subsection (4) does not apply to or in relation to the relevant

reproduction unless, as soon as practicable after the request under

subsection (1) relating to the relevant reproduction is made, an

authorized officer of the library makes a declaration:

(c) setting out particulars of the request (including the purpose

for which the relevant reproduction was requested); and

(d) stating that the reproduction referred to in paragraph (b) has

been lost, destroyed or damaged, as the case requires.

(7A) If:

(a) a reproduction is made of the whole of a work (other than an

article contained in a periodical publication) or of a part of

such a work, being a part that contains more than a

reasonable portion of the work; and

(b) the work from which the reproduction is made is in hardcopy

form; and

(c) the reproduction is supplied under subsection (2) to the

officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

(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

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(e) as soon as practicable after the request under subsection (1)

relating to the reproduction is made, an authorized officer of

the library makes a declaration:

(i) setting out particulars of the request (including the

purpose for which the reproduction was requested); and

(ii) stating that, after reasonable investigation, the

authorized officer is satisfied that a copy (not being a

second-hand copy) of the work cannot be obtained

within a reasonable time at an ordinary commercial

price.

(7B) If:

(a) a reproduction is made of the whole of a work (including an

article contained in a periodical publication) or of a part of

such a work, whether or not the part contains more than a

reasonable portion of the work; and

(b) the work from which the reproduction is made is in electronic

form; and

(c) the reproduction is supplied under subsection (2) to the

officer in charge of a library;

subsection (4) does not apply in relation to the reproduction unless:

(d) in a case where the principal purpose of the library is to

provide library services for members of a Parliament—the

reproduction is so supplied for the purpose of assisting a

person who is a member of that Parliament in the

performance of the person’s duties as such a member; or

(e) as soon as practicable after the request under subsection (1)

relating to the reproduction is made, an authorized officer of

the library makes a declaration:

(i) setting out particulars of the request (including the

purpose for which the reproduction was requested); and

(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

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(iii) if the reproduction is of a reasonable portion, or less

than a reasonable portion, of a work other than an

article—stating that, after reasonable investigation, the

authorised officer is satisfied that the portion cannot be

obtained in electronic form, either separately or together

with a reasonable amount of other material, within a

reasonable time at an ordinary commercial price; and

(iv) if the reproduction is of the whole or of a part of an

article—stating that, after reasonable investigation, the

authorised officer is satisfied that the article cannot be

obtained on its own in electronic form within a

reasonable time at an ordinary commercial price.

(7BA) For the purposes of subsections (7A) and (7B), if the

characteristics of the work are such that subsection 10(2) or (2A) is

relevant to the question whether the reproduction contains only a

reasonable portion of the work, then that question is to be

determined solely by reference to subsection 10(2) or (2A) and not

by reference to the ordinary meaning of reasonable portion.

(7BB) For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii)

and (iv), in determining whether a copy of the work, the work, the

portion of the work or the article (as appropriate) cannot be

obtained within a reasonable time at an ordinary commercial price,

the authorized officer must take into account:

(a) the time by which the person requesting the reproduction

under section 49 requires the reproduction; and

(b) the time within which a reproduction (not being a

second-hand reproduction) of the work at an ordinary

commercial price could be delivered to the person; and

(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

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(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

(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 and 203G

create offences relating to the keeping of declarations made for the

purposes of this section.

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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

archives that he or she requires the reproduction for the purposes of

research or study.

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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.

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

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(c) immediately before that subsequent publication, the identity

of the owner of the copyright in the old work was not known

to the publisher of that subsequent publication.

(3) If a work, or part of a work, has been published and, because of

this section, the publication is taken not to be an infringement of

the copyright in the work, the copyright in the work is not

infringed by a person who, after the publication took place:

(a) broadcasts the work, or that part of the work; or

(b) electronically transmits the work, or that part of the work

(other than in a broadcast) for a fee payable to the person

who made the transmission; or

(c) performs the work, or that part of the work, in public; or

(d) makes a record of the work, or that part of the work.

53 Application of Division to illustrations accompanying articles and

other works

Where an article, thesis or literary, dramatic or musical work is

accompanied by artistic works provided for the purpose of

explaining or illustrating the article, thesis or other work (in this

section referred to as the illustrations), the preceding sections of

this Division apply as if:

(a) where any of those sections provides that the copyright in the

article, thesis or work is not infringed—the reference to that

copyright included a reference to any copyright in the

illustrations; and

(b) a reference in section 49, section 50 or section 51 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; and

(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

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(d) a reference in section 52 to the doing of any act in relation to

the work included a reference to the doing of that act in

relation to the work together with the illustrations.

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Division 6—Recording of musical works

54 Interpretation

(1A) In this Division:

record means a disc, tape, paper or other device in which sounds

are embodied.

(1) For the purposes of this Division:

(a) a reference to a musical work shall be read as a reference to

the work in its original form or to an adaptation of the work;

(b) a reference to the owner of the copyright in a literary,

dramatic or musical work shall, unless the contrary intention

appears, be read as a reference to the person who is entitled

to authorize the making in, and the importation into,

Australia of records of the work; and

(c) a reference to sale of a record by retail or to retail sale of a

record shall be read as not including a reference to:

(i) sale for a consideration not consisting wholly of money;

or

(ii) sale by a person not ordinarily carrying on the business

of making or selling records.

(2) For the purposes of this Division, where a musical work is

comprised partly in one record and partly in another record or other

records, all the records shall be treated as if they constituted a

single record.

(3) A reference in this Division to a record of a musical work does not

include a reference to a sound-track associated with visual images

forming part of a cinematograph film.

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

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

(5) Section 55:

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

previous record referred to in paragraph 55(1)(a) was a

record of the whole work; and

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

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

Original form

(6) The definition of original form in subsection 10(1) does not apply

in this Division.

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

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the previous making, was specified in the regulations to

be a country in relation to which this Division applies,

and was so made by, or with the licence of, the person

who was, under the law of that country, the owner of the

copyright in the 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

(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.

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(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.

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

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(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;

(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

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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

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,

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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

(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;

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(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;

be taken to have been previously made in, or imported into,

Australia with the licence of the owner of that copyright for the

purpose of retail sale or for use in making other records for the

purpose of retail sale, as the case may be.

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64 Sections 55 and 59 to be disregarded in determining whether an

infringement has been committed by the importation of

records

For the purpose of any provision of this Act relating to imported

articles, in determining whether the making of a record made

outside Australia would have constituted an infringement of

copyright if the record had been made in Australia by the importer,

sections 55 and 59 shall be disregarded.

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Division 7 Acts not constituting infringements of copyright in artistic works

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

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of that painting, drawing, engraving, photograph or film did not

constitute an infringement of the copyright.

70 Reproduction for purpose of including work in television

broadcast

(1) Where the inclusion of an artistic work in a television broadcast

made by a person would not (whether by reason of an assignment

or licence or of the operation of a provision of this Act) constitute

an infringement of copyright in the work but the making by the

person of a cinematograph film of the work would, apart from this

subsection, constitute such an infringement, the copyright in the

work is not infringed by the making by the person of such a film

solely for the purpose of the inclusion of the work in a television

broadcast.

(2) The last preceding subsection does not apply in relation to a film if

a copy of the film is used for a purpose other than:

(a) the inclusion of the work in a television broadcast in

circumstances that do not (whether by reason of an

assignment or licence or of the operation of a provision of

this Act) constitute an infringement of the copyright in the

work; or

(b) the making of further copies of the film for the purpose of the

inclusion of the work in such a broadcast.

(3) Subsection (1) does not apply in relation to a film where a copy of

the film is used for the purpose of the inclusion of the work in a

television broadcast made by a person who is not the maker of the

film unless the maker has paid to the owner of the copyright in the

work such amount as they agree or, in default of agreement, has

given an undertaking in writing to the owner to pay to the owner

such amount as is determined by the Copyright Tribunal, on the

application of either of them, to be equitable remuneration to the

owner for the making of the film.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

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amount to the owner of the copyright in the work and the owner

may recover that amount in a court of competent jurisdiction from

the person as a debt due to the owner.

(5) Subsection (1) does not apply in relation to a film unless, before

the expiration of the period of 12 months commencing on the day

on which any of the copies of the film is first used for including the

work in a television broadcast in accordance with that subsection,

or before the expiration of such further period, if any, as is agreed

between the maker of the film and the owner of the copyright in

the work, all the copies of the film are destroyed or are transferred,

with the consent of the Director-General of the National Archives

of Australia, to the care (within the meaning of the Archives Act

1983) of the National Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a copy of a film

unless he or she has certified that the film is of an exceptional

documentary character.

72 Reproduction of part of work in later work

(1) The copyright in an artistic work is not infringed by the making of

a later artistic work by the same author if, in making the later work,

the author does not repeat or imitate the main design of the earlier

work.

(2) The last preceding subsection has effect notwithstanding that part

of the earlier work is reproduced in the later work and that, in

reproducing the later work, the author used a mould, cast, sketch,

plan, model or study made for the purposes of the earlier work.

73 Reconstruction of buildings

(1) Where copyright subsists in a building, the copyright is not

infringed by a reconstruction of that building.

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(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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Division 8 Designs

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

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(c) the exclusive right in the design had not expired by effluxion

of time before the copyright proceedings began; and

(d) it is established in the copyright proceedings that:

(i) none of the persons who are registered owners of the

registered design are entitled persons in relation to the

design; and

(ii) none of those persons were registered with the

knowledge of the owner of the copyright in the artistic

work.

(2) Subject to subsection (3), for the purposes of the copyright

proceedings:

(a) the design is taken never to have been registered under the

Designs Act 2003; and

(b) section 75 does not apply in relation to anything done in

respect of the design; and

(c) nothing in the Designs Act 2003 constitutes a defence.

(3) Ignore subsection (2) if it is established in the copyright

proceedings that the act to which the proceedings relate was done:

(a) by an assignee of, or under a licence granted by, the

registered owner of the registered design; and

(b) in good faith relying on the registration and without notice of

any proceedings (whether or not before a court) to revoke the

registration or to rectify the entry in the Register of Designs

in relation to the design.

77 Application of artistic works as industrial designs without

registration of the designs

(1) This section applies where:

(a) copyright subsists in an artistic work (other than a building or

a model of a building, or a work of artistic craftsmanship)

whether made before the commencement of this section or

otherwise;

(b) a corresponding design is or has been applied industrially,

whether in Australia or elsewhere, and whether before or

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after the commencement of this section, by or with the

licence of the owner of the copyright in the place of

industrial application; and

(c) at any time on or after the commencement of this section,

products to which the corresponding design has been so

applied (the products made to the corresponding design) are

sold, let for hire or offered or exposed for sale or hire,

whether in Australia or elsewhere; and

(d) at that time, the corresponding design is not registrable under

the Designs Act 2003 or has not been registered under that

Act or under the Designs Act 1906.

(1A) This section also applies if:

(a) a complete specification that discloses a product made to the

corresponding design; or

(b) a representation of a product made to the corresponding

design and included in a design application;

is published in Australia, whether or not paragraphs (1)(b) and (c)

are satisfied in relation to the corresponding design.

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

reproduce the work, on or after the day on which:

(a) products made to the corresponding design are first sold, let

for hire or offered or exposed for sale or hire; or

(b) a complete specification that discloses a product made to the

corresponding design is first published in Australia; or

(c) a representation of a product made to the corresponding

design and included in a design application is first published

in Australia;

by embodying that, or any other, corresponding design in a

product.

(3) This section does not apply in relation to any articles or products in

respect of which, at the time when they were sold, let for hire or

offered or exposed for sale or hire, the corresponding design

concerned was excluded from registration by regulations made

under the Designs Act 1906 or the Designs Act 2003, and, for the

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purposes of any proceedings under this Act, a design shall be

conclusively presumed to have been so excluded if:

(a) before the commencement of the proceedings, an application

for the registration of the design under the Designs Act 1906

in respect of those articles, or under the Designs Act 2003 in

respect of those products, had been refused;

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

that the design was excluded from registration under that Act

by regulations made under that Act; and

(c) when the proceedings were commenced, no appeal against

the refusal had been allowed or was pending.

(4) The regulations may specify the circumstances in which a design

is, for the purposes of this section, to be taken to be applied

industrially.

(5) In this section:

building or model of a building does not include a portable

building such as a shed, a pre-constructed swimming pool, a

demountable building or similar portable building.

complete specification has the same meaning as in the Patents Act

1990.

design application has the same meaning as in the Designs Act

2003.

representation, in relation to a design, has the same meaning as

in the Designs Act 2003.

77A Certain reproductions of an artistic work do not infringe

copyright

(1) It is not an infringement of copyright in an artistic work to

reproduce the artistic work, or communicate that reproduction, if:

(a) the reproduction is derived from a three-dimensional product

that embodies a corresponding design in relation to the

artistic work; and

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(b) the reproduction is in the course of, or incidental to:

(i) making a product (the non-infringing product), if the

making of the product did not, or would not, infringe the

copyright in the artistic work because of the operation

of this Division; or

(ii) selling or letting for hire the non-infringing product, or

offering or exposing the non-infringing product for sale

or hire.

(2) It is not an infringement of copyright in an artistic work to make a

cast or mould embodying a corresponding design in relation to the

artistic work, if:

(a) the cast or mould is for the purpose of making products; and

(b) the making of the products would not infringe copyright

because of the operation of this Division.

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Works of joint authorship Division 9

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

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identity of 2 or more of the authors was disclosed, as references to

whichever of those authors died last.

(4) For the purposes of this section, the identity of an author shall be

deemed to have been disclosed if:

(a) one of the names under which the work was published was

the name of that author; or

(b) the identity of that author is generally known or can be

ascertained by reasonable inquiry.

82 Copyright to subsist in joint works without regard to any author

who is an unqualified person

(1) Subsection 35(2) has effect, in relation to a work of joint

authorship of which one of the authors is an unqualified person, or

2 or more (but not all) of the authors are unqualified persons, as if

the author or authors, other than unqualified persons, had alone

been the author or authors, as the case may be, of the work.

(2) For the purposes of the last preceding subsection, a person is an

unqualified person in relation to a work where, if he or she had

alone been the author of the work, copyright would not have

subsisted in the work by virtue of this Part.

83 Inclusion of joint works in collections for use in places of

education

The reference in subsection 44(2) to other extracts from, or from

adaptations of, works by the author of the extract concerned:

(a) shall be read as including a reference to extracts from, or

from adaptations of, works by the author of the extract

concerned in collaboration with any other person; or

(b) if the extract concerned is from, or from an adaptation of, a

work of joint authorship shall be read as including a

reference to extracts from, or from adaptations of, works by

any one or more of the authors of the extract concerned, or by

any one or more of those authors in collaboration with any

other person.

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Preliminary Division 1

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

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Division 1 Preliminary

Section 84

(b) a body corporate incorporated under a law of the

Commonwealth or of a State.

sound recording of a live performance means a sound recording,

made at the time of the live performance, consisting of, or

including, the sounds of the performance.

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

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;

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Section 87

(b) to cause the film, in so far as it consists of visual images, to

be seen in public, or, in so far as it consists of sounds, to be

heard in public;

(c) to communicate the film to the public.

87 Nature of copyright in television broadcasts and sound

broadcasts

For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a television broadcast or sound broadcast,

is the exclusive right:

(a) in the case of a television broadcast in so far as it consists of

visual images—to make a cinematograph film of the

broadcast, or a copy of such a film;

(b) in the case of a sound broadcast, or of a television broadcast

in so far as it consists of sounds—to make a sound recording

of the broadcast, or a copy of such a sound recording; and

(c) in the case of a television broadcast or of a sound

broadcast—to re-broadcast it or communicate it to the public

otherwise than by broadcasting it.

88 Nature of copyright in published editions of works

For the purposes of this Act, unless the contrary intention appears,

copyright, in relation to a published edition of a literary, dramatic,

musical or artistic work or of two or more literary, dramatic,

musical or artistic works, is the exclusive right to make a facsimile

copy of the edition.

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Subject-matter, other than works, in which copyright subsists Division 3

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

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Section 92

(b) by the Australian Broadcasting Corporation or the Special

Broadcasting Service Corporation.

92 Published editions of works in which copyright subsists

(1) Subject to this Act, copyright subsists in a published edition of a

literary, dramatic, musical or artistic work, or of 2 or more literary,

dramatic, musical or artistic works, where:

(a) the first publication of the edition took place in Australia; or

(b) the publisher of the edition was a qualified person at the date

of the first publication of the edition.

(2) The last preceding subsection does not apply to an edition that

reproduces a previous edition of the same work or works.

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

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

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Section 96

broadcast was made—any copyright subsisting in it expires

at the expiration of that period; and

(b) if it is made after the expiration of that period—copyright

does not subsist in it by virtue of this Part.

96 Duration of copyright in published editions of works

Copyright subsisting in a published edition of a work or works

by virtue of this Part continues to subsist until the expiration of 25

years after the expiration of the calendar year in which the edition

was first published.

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Ownership of copyright in subject-matter other than works Division 5

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:

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Section 99

(a) a person makes, for valuable consideration, an agreement

with another person for the making of a cinematograph film

by the other person; and

(b) the film is made in pursuance of the agreement;

the first-mentioned person is, in the absence of any agreement to

the contrary, the owner of any copyright subsisting in the film by

virtue of this Part.

(4) If the film is not a commissioned film, then the reference in

subsection (2) to the maker of the film includes a reference to each

director of the film.

(5) If a director directed the film under the terms of his or her

employment under a contract of service or apprenticeship with

another person (the employer), then, in the absence of any

agreement to the contrary, the employer is to be substituted for the

director for the purposes of subsection (4).

(6) If a person becomes an owner of the copyright:

(a) because of the operation of subsection (4); or

(b) because of the operation of subsections (4) and (5);

then the person becomes the owner of the copyright only so far as

the copyright consists of the right to include the film in a

retransmission of a free-to-air broadcast.

(7) In this section:

commissioned film means a film made as mentioned in

paragraphs (3)(a) and (b).

director has the same meaning as in Part IX.

retransmission means a retransmission (as defined in section 10)

to which Part VC applies.

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Section 99

99 Ownership of copyright in television broadcasts and sound

broadcasts

Subject to Parts VII and X, the maker of a television broadcast or

sound broadcast is the owner of any copyright subsisting in the

broadcast.

100 Ownership of copyright in published editions of works

Subject to Parts VII and X, the publisher of an edition of a work or

works is the owner of any copyright subsisting in the edition by

virtue of this Part.

Subdivision B—Specific provisions relating to the ownership of

copyright in pre-commencement sound recordings of

live performances

100AA Application

This Subdivision applies to a sound recording of a live

performance if:

(a) copyright subsists in the recording on the day on which this

section commences; and

(b) at least one person would become a maker of the recording

under paragraph 100AD(1)(b) or subsection 100AD(2).

100AB Definitions

In this Subdivision:

former owner of the copyright in a sound recording of a live

performance means a person mentioned in paragraph 100AD(1)(a).

new owner of the copyright in a sound recording of a live

performance means the following people:

(a) a person who becomes a maker of a sound recording under

paragraph 100AD(1)(b);

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Section 100AC

(b) if subsection 100AD(2) applies—an employer who becomes

a maker of a sound recording under that subsection.

Note: Other expressions used in this Subdivision are defined in section 84.

100AC Application of sections 100AD and 100AE

Sections 100AD and 100AE have effect subject to Parts VII and X.

100AD Makers of pre-commencement sound recordings of live

performances

(1) For the purpose of section 100AE, the makers of a sound recording

of a live performance are:

(a) the person or persons who, immediately before the

commencement of this section, owned the copyright

subsisting in the recording; and

(b) the performer or performers who performed in the

performance (other than a performer who is already covered

by paragraph (a)).

Employer may be a maker of the sound recording

(2) If:

(a) a sound recording of a live performance was made; and

(b) a performer performed in that performance under the terms of

his or her employment by another person (the employer)

under a contract of service or apprenticeship;

then, for the purposes of paragraph (1)(b), the employer is taken to

be a maker instead of that performer.

(3) Subsection (2) may be excluded or modified by an agreement

(whether made before or after the live performance) between the

performer and the employer.

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Section 100AE

100AE Ownership of pre-commencement copyright in sound

recordings of live performances

Ownership of the copyright

(1) On and after the day on which this section commences, all makers

of a sound recording of a live performance are owners of any

copyright subsisting in the recording by virtue of this Part.

Division of the ownership of the copyright

(2) The former owners of the copyright and the new owners of the

copyright each own half of the copyright as tenants in common in 2

equal shares.

(3) The former owners own their half of the copyright in the same

proportions as the whole copyright was owned by them

immediately before the commencement of this section.

(4) The new owners own their half of the copyright as tenants in

common in equal shares.

(5) Subsections (3) and (4) do not limit section 196.

(6) Subsection (3) does not otherwise affect the terms on which the

former owners own their half of the copyright.

Copyright to devolve if a new owner is not alive

(7) If a new owner is not alive on the day on which this section

commences, then, for the purposes of subsections (2) and (4), that

owner is replaced by the person to whom the copyright would have

devolved if the new owner had owned the copyright immediately

before his or her death. If the copyright would have devolved to

more than one person, those persons are to be treated as a single

new owner for the purposes of subsections (2) and (4).

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Division 5 Ownership of copyright in subject-matter other than works

Section 100AF

100AF Former owners may continue to do any act in relation to the

copyright

(1) On and after the day on which this section commences, a former

owner of the copyright in a sound recording of a live performance

may:

(a) do an act comprised in the copyright; or

(b) do any other act in relation to the copyright;

as if each new owner of the copyright had granted a licence or

permission (however described) to the former owner to do the act.

Note: However, the former owner may still need to obtain the consent of

other former owners of the copyright before doing the act.

(2) Subsection (1) applies to:

(a) the former owner’s licensees and successors in title; and

(b) any persons who are authorised by the former owner; and

(c) any persons who are authorised by the former owner’s

licensees or successors in title;

in the same way as it applies to the former owner.

(3) Subsections (1) and (2) may be excluded or modified by an

agreement (whether made before or after this section commences)

between the former owner and a new owner.

100AG Actions by new owners of copyright

If a new owner of the copyright in a sound recording of a live

performance brings an action under this Act in respect of the

copyright, the new owner is not entitled to the remedies listed in

the table.

Actions under this Act

Item In this case... the new owner is not entitled to:

1 the action is for an infringement of (a) damages (other than additional

the copyright under section 115 damages); or

(b) an account of profits

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Section 100AH

Actions under this Act

Item In this case... the new owner is not entitled to:

2 the action is for conversion or (a) damages (other than additional

detention under section 116 damages); or

(b) an account of profits; or

(c) any other pecuniary remedy

(other than costs); or

(d) delivery up of an infringing copy

2A the action is brought under

section 116AN, 116AO or 116AP

(a) damages (other than additional

damages); or

(b) an account of profits; or

(c) destruction or delivery up of a

circumvention device

3 the action is brought under

section 116B or 116C

(a) damages (other than additional

damages); or

(b) an account of profits

100AH References to the owner of the copyright in a sound

recording

A new owner of the copyright in a sound recording of a live

performance is taken not to be the owner of the copyright for the

purposes of the following provisions:

(a) sections 107, 108 and 109 (in Part IV);

(b) sections 119 and 133 (in Part V);

(c) the definitions of licence and licensor in subsection 136(1),

and sections 150, 151, 152, 153E, 153F, 153G, 159 and 163A

(in Part VI);

(d) section 183 (in Part VII).

Note: A new owner of the copyright in a sound recording of a live

performance is not an eligible rights holder under

subsection 113V(9), nor a relevant copyright owner under

section 135ZZI or 135ZZZF.

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Division 6 Infringement of copyright in subject-matter other than works

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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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:

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Section 103A

(a) sells, lets for hire, or by way of trade offers or exposes for

sale or hire, an article; or

(b) by way of trade exhibits an article in public;

if the person knew, or ought reasonably to have known, that the

making of the article constituted an infringement of the copyright

or, in the case of an imported article, would, if the article had been

made in Australia by the importer, have constituted an

infringement of the copyright.

(2) For the purposes of the last preceding subsection, the distribution

of any articles:

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially

the owner of the copyright concerned;

shall be taken to be the sale of those articles.

(3) In this section:

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

103A Fair dealing for purpose of criticism or review

A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

criticism or review, whether of the first-mentioned audio-visual

item, another audio-visual item or a work, and a sufficient

acknowledgement of the first-mentioned audio-visual item is made.

103AA Fair dealing for purpose of parody or satire

A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

parody or satire.

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Section 103B

103B Fair dealing for purpose of reporting news

(1) A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if:

(a) it is for the purpose of, or is associated with, the reporting of

news in a newspaper, magazine or similar periodical and a

sufficient acknowledgement of the first-mentioned

audio-visual item is made; or

(b) it is for the purpose of, or is associated with, the reporting of

news by means of a communication or in a cinematograph

film.

103C Fair dealing for purpose of research or study

(1) A fair dealing with an audio-visual item does not constitute an

infringement of the copyright in the item or in any work or other

audio-visual item included in the item if it is for the purpose of

research or study.

(2) For the purposes of this Act, the matters to which regard shall be

had in determining whether a dealing with an audio-visual item

constitutes a fair dealing for the purpose of research or study

include:

(a) the purpose and character of the dealing;

(b) the nature of the audio-visual item;

(c) the possibility of obtaining the audio-visual item within a

reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or

value of, the audio-visual item; and

(e) in a case where part only of the audio-visual item is

copied—the amount and substantiality of the part copied

taken in relation to the whole item.

104 Acts done for purposes of judicial proceeding

A copyright subsisting by virtue of this Part is not infringed by

anything done:

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Section 104A

(a) for the purpose of a judicial proceeding or a report of a

judicial proceeding; or

(b) for the purpose of seeking professional advice from:

(i) a legal practitioner; or

(ii) a person registered as a patent attorney under the

Patents Act 1990; or

(iii) a person registered as a trade marks attorney under the

Trade Marks Act 1995; or

(c) for the purpose of, or in the course of, the giving of

professional advice by:

(i) a legal practitioner; or

(ii) a person registered as a patent attorney under the

Patents Act 1990; or

(iii) a person registered as a trade marks attorney under the

Trade Marks Act 1995.

104A Acts done by Parliamentary libraries for members of

Parliament

A copyright subsisting by virtue of this Part is not infringed by

anything done, for the sole purpose of assisting a person who is a

member of a Parliament in the performance of the person’s duties

as such a member, by an authorized officer of a library, being a

library the principal purpose of which is to provide library services

for members of that Parliament.

104B Infringing copies made on machines installed in libraries and

archives

If:

(a) a person makes an infringing copy of, or of part of, an

audio-visual item or a published edition of a work on a

machine (including a computer), being a machine installed

by or with the approval of the body administering a library or

archives on the premises of the library or archives, or outside

those premises for the convenience of persons using the

library or archives; and

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Section 104C

(b) there is affixed to, or in close proximity to, the machine, in a

place readily visible to persons using the machine, a notice of

the prescribed dimensions and in accordance with the

prescribed form;

neither the body administering the library or archives, nor the

officer in charge of the library or archives, is taken to have

authorised the making of the infringing copy merely because the

copy was made on that machine.

104C Copyright subsisting in sound recordings and cinematograph

films shared for healthcare or related purposes

(1) The copyright in a cinematograph film or a sound recording is not

infringed by an act comprised in the copyright in the film or

recording if:

(a) the act is done, or authorised to be done:

(i) for a purpose for which the collection, use or disclosure

of health information is required or authorised under the

My Health Records Act 2012; or

(ii) in circumstances in which a permitted general situation

exists under item 1 of the table in subsection 16A(1) of

the Privacy Act 1988 (serious threat to life, health or

safety), or would exist if the entity doing the thing were

an APP entity for the purposes of that Act; or

(iii) in circumstances in which a permitted health situation

exists under section 16B of the Privacy Act 1988, or

would exist if the entity doing the thing were an

organisation for the purposes of that Act; or

(iv) for any other purpose relating to healthcare, or the

communication or management of health information,

prescribed by the regulations; and

(b) either:

(i) the film or recording is substantially comprised of

health information; or

(ii) the film or recording allows for the storage, retrieval or

use of health information and it is reasonably necessary

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to do the act, or authorise it to be done, in circumstances

that would otherwise infringe copyright in the work.

(2) In this section:

healthcare has the same meaning as in the My Health Records Act

2012.

health information has the same meaning as in the My Health

Records Act 2012.

105 Copyright in certain recordings not infringed by causing

recordings to be heard in public or broadcast

Copyright subsisting in a sound recording by virtue only of

subsection 89(3) is not infringed by the causing of the recording to

be heard in public or by the broadcasting of the recording.

106 Causing sound recording to be heard at guest house or club

(1) Where a sound recording is caused to be heard in public:

(a) at premises where persons reside or sleep, as part of the

amenities provided exclusively for residents or inmates of the

premises or for those residents or inmates and their guests; or

(b) as part of the activities of, or for the benefit of, a registered

charity;

the act of causing the recording to be so heard does not constitute

an infringement of the copyright in the recording.

(2) The last preceding subsection does not apply:

(a) in relation to premises of a kind referred to in paragraph (a)

of that subsection, if a specific charge is made for admission

to the part of the premises where the recording is to be heard;

or

(b) in relation to a registered charity of a kind referred to in

paragraph (b) of that subsection, if a charge is made for

admission to the place where the recording is to be heard and

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any of the proceeds of the charge are applied otherwise than

for the purposes of the registered charity.

(3) A reference in the last preceding subsection to a specific charge, or

a charge, made for admission includes a reference to a specific

charge, or a charge, made partly for admission and partly for other

purposes.

107 Making of a copy of the sound recording for purpose of

broadcasting

(1) Where the broadcasting by a person of a sound recording would

not (whether by reason of an assignment or licence or of the

operation of a provision of this Act) constitute an infringement of

the copyright in the recording but the making by the person of a

copy of the sound recording would, apart from this subsection,

constitute such an infringement, the copyright in the recording is

not infringed by the making by the person of a copy of the sound

recording in association with other matter solely for the purpose of

the broadcasting of the recording in association with the other

matter.

(2) The last preceding subsection does not apply in relation to a copy

of a sound recording if the copy is used for a purpose other than:

(a) the broadcasting of the recording in circumstances that do not

(whether by reason of an assignment or licence or of the

operation of a provision of this Act) constitute an

infringement of the copyright in the recording; or

(b) the making of further copies of the sound recording for the

purpose of the broadcasting of the recording in such

circumstances.

(3) Subsection (1) does not apply in relation to a copy of a sound

recording where the copy is used for the purpose of the

broadcasting of the recording by a person who is not the maker of

the copy unless the maker has paid to the owner of the copyright in

the recording such amount as they agree or, in default of

agreement, has given an undertaking in writing to the owner to pay

to the owner such amount as is determined by the Copyright

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Tribunal, on the application of either of them, to be equitable

remuneration to the owner for the making of the copy.

(4) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the recording and the

owner may recover that amount in a court of competent jurisdiction

from the person as a debt due to the owner.

(5) Subsection (1) does not apply in relation to a copy of a sound

recording unless, before the expiration of the period of 12 months

commencing on the day on which any of the copies made in

accordance with that subsection is first used for broadcasting the

recording in accordance with that subsection, or before the

expiration of such further period, if any, as is agreed between the

maker of the copy and the owner of the copyright in the recording,

all the copies made in accordance with that subsection are

destroyed or are transferred, with the consent of the

Director-General of the National Archives of Australia, to the care

(within the meaning of the Archives Act 1983) of the National

Archives of Australia.

(6) The Director-General of the National Archives of Australia must

not consent to the transfer to the care of the National Archives of

Australia in accordance with subsection (5) of a copy of a sound

recording unless he or she has certified that the recording is of an

exceptional documentary character.

(7) In this section:

broadcasting does not include simulcasting.

108 Copyright in published recording not infringed by public

performance if equitable remuneration paid

(1) The copyright in a sound recording that has been published is not

infringed by a person who causes the recording to be heard in

public if:

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(a) the person has paid to the owner of the copyright in the

recording such amount as they agree or, in default of

agreement, has given an undertaking in writing to the owner

to pay to the owner such amount as is determined by the

Copyright Tribunal, on the application of either of them, to

be equitable remuneration to the owner for the causing of the

recording to be heard in public; and

(b) in the case of a recording that was first published outside

Australia—the recording has been published in Australia or

the prescribed period after the date of the first publication of

the recording has expired.

(2) A person who has given an undertaking referred to in the last

preceding subsection is liable, when the Copyright Tribunal has

determined the amount to which the undertaking relates, to pay that

amount to the owner of the copyright in the recording and the

owner may recover that amount in a court of competent jurisdiction

from the person as a debt due to the owner.

(3) Regulations prescribing a period for the purposes of

paragraph (1)(b) may prescribe different periods in relation to

different classes of sound recordings.

109 Copyright in published sound recording not infringed by

broadcast in certain circumstances

(1) Subject to this section, the copyright in a published sound

recording is not infringed by the making of a broadcast (other than

a broadcast transmitted for a fee payable to the person who made

the broadcast) of that recording if:

(a) where there is no order of the Tribunal in force under

section 152 applying to the maker of that broadcast in

relation to the time when that broadcast was made—the

maker of that broadcast has given an undertaking in writing

to the person who is the owner of the copyright in that

recording to pay to the owner such amounts (if any) as may

be specified in, or determined in accordance with, an order of

the Tribunal made under that section in respect of the

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broadcasting by the maker, during a period within which that

broadcast was made, of published sound recordings in which

the copyrights are owned by that person and which include

that recording; or

(b) where there is an order of the Tribunal in force under that

section applying to the maker of that broadcast in relation to

the time when that broadcast was made:

(i) the copyright in that recording is owned by a person

who is specified in the order as one of the persons

among whom the amount specified in, or determined in

accordance with, the order is to be divided and the

maker of the broadcast makes payments to the person in

accordance with the order; or

(ii) the copyright in that recording is owned by a person

who is not so specified in the order.

(2) The last preceding subsection does not apply in relation to a

broadcast of a sound recording if the broadcast was made in

accordance with an agreement between the maker of the broadcast

and the owner of the copyright in the recording.

(3) Subsection (1) does not apply in relation to a broadcast of a sound

recording that has not been published in Australia if the broadcast

was made before the expiration of the prescribed period after the

date of the first publication of the recording.

(4) Regulations prescribing a period for the purposes of the last

preceding subsection may prescribe different periods in relation to

different classes of sound recordings.

(5) Subsection (1) does not apply in relation to a broadcast of a sound

recording that has not been published in Australia if:

(a) the recording consists of, or includes, a musical work in

which copyright subsists;

(b) the musical work was made for the purpose of being

performed, or has been performed, in association with a

dramatic work or has been included in a cinematograph film;

and

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(c) records of the musical work have not been supplied (whether

by sale or otherwise) to the public in Australia.

(6) For the purposes of paragraph (5)(c), a supplying of records of a

musical work shall be disregarded if the supplying was done

otherwise than by, or with the licence of, the owner of the

copyright in the work.

109A Copying sound recordings for private and domestic use

(1) This section applies if:

(a) the owner of a copy (the earlier copy) of a sound recording

makes another copy (the later copy) of the sound recording

using the earlier copy; and

(b) the sole purpose of making the later copy is the owner’s

private and domestic use of the later copy with a device that:

(i) is a device that can be used to cause sound recordings to

be heard; and

(ii) he or she owns; and

(c) the earlier copy was not made by downloading over the

internet a digital recording of a radio broadcast or similar

program; and

(d) the earlier copy is not an infringing copy of the sound

recording, a broadcast or a literary, dramatic or musical work

included in the sound recording.

(2) The making of the later copy does not infringe copyright in the

sound recording, or in a literary, dramatic or musical work or other

subject-matter included in the sound recording.

(3) Subsection (2) is taken never to have applied if the earlier copy or

the later copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise; or

(e) used for causing the sound recording to be heard in public; or

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(f) used for broadcasting the sound recording.

Note: If the earlier or later copy is dealt with as described in subsection (3),

then copyright may be infringed not only by the making of the later

copy but also by a dealing with the later copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

earlier copy or the later copy by the lender to a member of the

lender’s family or household for the member’s private and

domestic use.

110 Provisions relating to cinematograph films

(1) Where the visual images forming part of a cinematograph film

consist wholly or principally of images that, at the time when they

were first embodied in an article or thing, were means of

communicating news, the copyright in the film is not infringed by

the causing of the film to be seen or heard, or to be both seen and

heard, in public after the expiration of 50 years after the expiration

of the calendar year in which the principal events depicted in the

film occurred.

(2) Where, by virtue of this Part, copyright has subsisted in a

cinematograph film, a person who, after that copyright has expired,

causes the film to be seen or heard, or to be seen and heard, in

public does not, by so doing, infringe any copyright subsisting by

virtue of Part III in a literary, dramatic, musical or artistic work.

(3) Where the sounds that are embodied in a sound-track associated

with the visual images forming part of a cinematograph film are

also embodied in a record, other than such a sound-track or a

record derived directly or indirectly from such a sound-track, the

copyright in the cinematograph film is not infringed by any use

made of that record.

110AA Copying cinematograph film in different format for private

use

(1) This section applies if:

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(a) the owner of videotape embodying a cinematograph film in

analog form makes a copy (the main copy) of the film in

electronic form for his or her private and domestic use

instead of the videotape; and

(b) the videotape itself is not an infringing copy of the film or of

a broadcast, sound recording, work or published edition of a

work; and

(c) at the time the owner makes the main copy, he or she has not

made, and is not making, another copy that embodies the film

in an electronic form substantially identical to the electronic

form in which the film is embodied in the main copy.

For this purpose, disregard a temporary copy of the film

incidentally made as a necessary part of the technical process of

making the main copy.

(2) The making of the main copy is not an infringement of copyright in

the cinematograph film or in a work or other subject-matter

included in the film.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then

copyright may be infringed not only by the making of the main copy

but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the

main copy by the lender to a member of the lender’s family or

household for the member’s private and domestic use.

Disposal of videotape may make the main copy an infringing copy

(5) Subsection (2) is taken never to have applied if the owner of the

videotape disposes of it to another person.

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Status of temporary copy

(6) If subsection (2) applies to the making of the main copy only as a

result of disregarding the incidental making of a temporary copy of

the film as a necessary part of the technical process of making the

main copy, then:

(a) if the temporary copy is destroyed at the first practicable time

during or after the making of the main copy—the making of

the temporary copy does not infringe copyright in the film or

in any work or other subject-matter included in the film; or

(b) if the temporary copy is not destroyed at that time—the

making of the temporary copy is taken always to have

infringed copyright (if any) subsisting in the film and in any

work or other subject-matter included in the film.

110A Copying and communicating unpublished sound recordings

and cinematograph films in libraries or archives

Where, at a time more than 50 years after the time at which, or the

expiration of the period during which, a sound recording or

cinematograph film was made, copyright subsists in the sound

recording or cinematograph film but:

(a) the sound recording or cinematograph film has not been

published; and

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

cinematograph film, is kept in the collection of a library or

archives where it is, subject to any regulations governing that

collection, accessible to the public;

the copyright in the sound recording or cinematograph film and in

any work or other subject-matter included in the sound recording

or cinematograph film is not infringed:

(c) by the making of a copy or the communication of the sound

recording or cinematograph film by a person for the purpose

of research or study or with a view to publication; or

(d) by the making of a copy or the communication of the sound

recording or cinematograph film by, or on behalf of, the

officer in charge of the library or archives if the copy is

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supplied or communicated to a person who satisfies the

officer that he or she requires the copy for the purpose of

research or study, or with a view to publication and that he or

she will not use it for any other purpose.

110C Making of a copy of a sound recording or cinematograph film

for the purpose of simulcasting

(1) If the broadcasting of a sound recording or a cinematograph film

would not for any reason constitute an infringement of the

copyright in the recording or film, but the making of a copy of the

recording or film would, apart from this section, constitute an

infringement of the copyright, the copyright is not infringed by the

making of a copy of the recording or film if:

(a) the recording or film from which the copy is made is in

analog form; and

(b) the copy is made solely for the purpose of simulcasting the

recording or film in digital form.

(2) Subsection (1) does not apply in relation to a copy of a recording

or film if the copy is used for a purpose other than:

(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.

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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:

(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.

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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

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.

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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, 44 or 113E, infringe

copyright in that work; or

(ii) a use of the whole or a part of that work, being a use

that, because of section 49, 50, 113F, 113H, 113J,

113K, 113M, 113P or 182A, does not 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,

44 or 113E, infringe copyright in that work or those

works; or

(ii) a use of a whole or a part of one of those works, or a use

of the whole or parts of some or all of those works,

being a use that, because of section 49, 50, 113F, 113H,

113J, 113K, 113M, 113P or 182A, does not infringe

copyright in that work or 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

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(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.

(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).

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(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.

(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.

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Section 112B

(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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Division 6 Infringement of copyright in subject-matter other than works

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.

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Section 112D

112D Import of non-infringing copy of a sound recording does not

infringe copyright in the sound recording

(1) The copyright in a sound recording is not infringed by a person

who:

(a) imports into Australia a non-infringing copy of the sound

recording; or

(b) does an act described in section 103 involving an article that

is a non-infringing copy of the sound recording and has been

imported into Australia by anyone.

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):

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Section 112DA

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:

(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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Copyright in subject-matter other than works Part IV

Miscellaneous Division 7

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:

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Division 7 Miscellaneous

Section 113C

(a) the performer has given his or her consent to recording the

performance for a particular purpose; and

(b) the recording is used for that purpose in accordance with the

terms of the consent.

Note: The person may still need to obtain the consent of the other owners of

the copyright in the sound recording of the live performance before

using the sound recording.

113C Use of published sound recordings when owners cannot be

found etc.

(1) An owner (the first owner) of the copyright in a sound recording of

a live performance that is a published sound recording is taken to

have been granted a licence or permission (however described) by

another owner of the copyright to do an act comprised in the

copyright, or to do any other act in relation to the copyright, if:

(a) the first owner has entered into an agreement with another

person to do the act; and

(b) the first owner, after making reasonable inquiries, cannot

discover the identity or location of the other owner or a

person representing the other owner.

Note: The first owner may still need to obtain a licence or permission from

any other owners of the copyright in the sound recording of the live

performance.

(2) If the first owner does the act, then the first owner must hold the

other owner’s share of any amount received in respect of it on trust

for 4 years after the day on which the agreement is entered into

(unless the amount is distributed to, or on behalf of, the other

owner before then).

(3) If during the 4 year period, the other owner is identified and

located, the first owner must distribute the amount held on trust to,

or on behalf of, the other owner. If at the end of the 4 year period,

the other owner remains unidentified or is not located, the first

owner may retain the amount.

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Miscellaneous Division 7

Section 113C

(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 IVA Uses that do not infringe copyright

Division 1 Simplified outline of this Part

Section 113D

Part IVA—Uses that do not infringe copyright

Division 1—Simplified outline of this Part

113D Simplified outline of this Part

The following do not infringe copyright in any copyright material:

(a) certain use by or for persons with a disability;

(b) certain use for the purposes of libraries, archives and

key cultural institutions;

(c) certain use by educational institutions.

Note 1: Other provisions of this Act, including Parts III, IV, VC, VII and X, provide that certain other use of copyright material does not infringe copyright.

Note 2: A person may circumvent an access control technological protection measure to enable the person to do an act that, under this Part, does not infringe copyright (if the act is prescribed by regulations made for the purposes of paragraph 116AN(9)(c)).

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Access by or for persons with a disability Division 2

Section 113E

Division 2—Access by or for persons with a disability

113E Fair dealing for purpose of access by persons with a disability

(1) A fair dealing with copyright material does not infringe copyright

in the material if the dealing is for the purpose of one or more

persons with a disability having access to copyright material

(whether the dealing is by any of those persons or by another

person).

(2) The matters to which regard must be had, in determining whether

the dealing is a fair dealing for the purposes of this section, include

the following matters:

(a) the purpose and character of the dealing;

(b) the nature of the copyright material;

(c) the effect of the dealing upon the potential market for, or

value of, the material;

(d) if only part of the material is dealt with—the amount and

substantiality of the part dealt with, taken in relation to the

whole material.

113F Use of copyright material by organisations assisting persons

with a disability

An organisation assisting persons with a disability, or a person

acting on behalf of such an organisation, does not infringe

copyright in copyright material by using the material if:

(a) the use is for the sole purpose of assisting one or more

persons with a disability to access the material in a format

that the person or persons require because of the disability

(whether the access is provided by or on behalf of the

organisation or by another body or person); and

(b) the organisation, or the person acting on behalf of the

organisation, is satisfied that the material (or a relevant part

of the material) cannot be obtained in that format within a

reasonable time at an ordinary commercial price.

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Part IVA Uses that do not infringe copyright

Division 3 Libraries and archives

Section 113G

Division 3—Libraries and archives

Subdivision A—Public libraries, parliamentary libraries and

archives

113G Libraries

This Subdivision applies to a library if:

(a) all or part of the collection comprising the library is

accessible to members of the public directly or through

interlibrary loans; or

(b) the principal purpose of the library is to provide library

services for members of a Parliament.

Note 1: For references to a Parliament, see section 12.

Note 2: This Subdivision also applies to archives (within the meaning of

section 10).

113H Preservation

(1) An authorized officer of a library or archives does not infringe

copyright in copyright material by using the material if:

(a) the use is for the purpose of preserving the collection

comprising that or another library or archives; and

(b) either or both of the following subparagraphs apply:

(i) the authorized officer’s library or archives holds the

material in original form;

(ii) the authorized officer is satisfied that a copy of the

material cannot be obtained in a version or format that is

required for that purpose, consistent with best practice

for preserving such collections.

(2) An authorized officer of a library or archives does not infringe

copyright in copyright material (the preservation copy) by making

the preservation copy available to be accessed at the library or

archives if:

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Section 113J

(a) subsection (1) applied to the making of the preservation copy

because it was done for the purpose of preserving the

collection comprising the library or archives; and

(b) the preservation copy is in electronic form; and

(c) the body administering the library or archives takes

reasonable steps to ensure that a person who accesses the

preservation copy at the library or archives does not infringe

copyright in the preservation copy.

Note: Other uses of the preservation copy might not infringe copyright

because of other provisions of this Act, such as section 49

(Reproducing and communicating works by libraries and archives for

users).

113J Research

(1) An authorized officer of a library or archives does not infringe

copyright in copyright material by using the material if:

(a) the material forms part of the collection comprising the

library or archives; and

(b) the library or archives holds the material in original form;

and

(c) the use is for the purpose of research carried out at that or

another library or archives.

(2) An authorized officer of a library or archives does not infringe

copyright in copyright material (the research copy) by making the

research copy available to be accessed at the library or archives if:

(a) subsection (1) applied to the making of the research copy

because it was done for the purpose of research carried out at

the library or archives; and

(b) the research copy is in electronic form; and

(c) the body administering the library or archives takes

reasonable steps to ensure that a person who accesses the

research copy at the library or archives does not infringe

copyright in the research copy.

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Division 3 Libraries and archives

Section 113K

Note: Other uses of the research copy might not infringe copyright because

of other provisions of this Act, such as section 49 (Reproducing and

communicating works by libraries and archives for users).

113K Administration of the collection

An authorized officer of a library or archives does not infringe

copyright in copyright material by using the material if the use is

for purposes directly related to the care or control of the collection

comprising the library or archives.

Subdivision B—Key cultural institutions

113L Meaning of key cultural institution

A library or archives is a key cultural institution if the body

administering it:

(a) has, under a law of the Commonwealth or a State or

Territory, the function of developing and maintaining the

collection comprising the library or archives; or

(b) is prescribed by the regulations for the purposes of this

paragraph.

113M Preservation

(1) An authorized officer of a key cultural institution does not infringe

copyright in copyright material by using the material if:

(a) the material forms part of the collection comprising the key

cultural institution; and

(b) the authorized officer is satisfied that the material is of

historical or cultural significance to Australia; and

(c) the use is for the purpose of preserving the material; and

(d) either or both of the following subparagraphs apply:

(i) the key cultural institution holds the material in original

form;

(ii) the authorized officer is satisfied that a copy of the

material cannot be obtained in a version or format that is

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Libraries and archives Division 3

Section 113M

required for that purpose, consistent with best practice

for preserving such copyright material.

Note: If the use of the copyright material does not meet the requirements of

this subsection, the authorized officer might be able to rely on

subsection 113H(1) instead.

(2) An authorized officer of a key cultural institution does not infringe

copyright in copyright material (the preservation copy) by making

the preservation copy available to be accessed at the key cultural

institution if:

(a) subsection (1) applied to the making of the preservation copy

because it was done for the purpose of preserving copyright

material that formed part of the collection comprising the key

cultural institution; and

(b) the preservation copy is in electronic form; and

(c) the body administering the key cultural institution takes

reasonable steps to ensure that a person who accesses the

preservation copy at the key cultural institution does not

infringe copyright in the preservation copy.

Note: Other uses of the preservation copy might not infringe copyright

because of other provisions of this Act, such as section 49

(Reproducing and communicating works by libraries and archives for

users).

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Division 4 Educational institutions—statutory licence

Section 113N

Division 4—Educational institutions—statutory licence

113N Simplified outline of this Division

An educational institution may copy or communicate certain

copyright material for educational purposes if the body

administering the educational institution agrees to pay equitable

remuneration to a collecting society.

113P Copying and communicating works and broadcasts

Works

(1) The body administering an educational institution does not infringe

copyright in a work by copying or communicating the whole or a

part of the work if:

(a) a remuneration notice that applies to the educational

institution and the work is in force under section 113Q; and

(b) the work is not:

(i) a computer program; or

(ii) a compilation of computer programs; or

(iii) a work included in a broadcast; and

(c) the copying or communicating occurs solely for the

educational purposes of:

(i) the educational institution; or

(ii) another educational institution, if a remuneration notice

that applies to the other educational institution and the

work is in force under section 113Q; and

(d) the amount of the work copied or communicated does not

unreasonably prejudice the legitimate interests of the owner

of the copyright; and

(e) the copying or communicating complies with:

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Section 113P

(i) any relevant agreement between the relevant works

collecting society and the body administering the

educational institution; and

(ii) any relevant determination made by the Copyright

Tribunal under subsection (4) of this section.

Broadcasts

(2) The body administering an educational institution does not infringe

copyright in copyright material by copying, or communicating a

copy of, the whole or a part of a broadcast if:

(a) a remuneration notice that applies to the educational

institution and the material is in force under section 113Q;

and

(b) the material is:

(i) the broadcast; or

(ii) a work, sound recording or cinematograph film included

in the broadcast; and

(c) the copying or communicating occurs solely for the

educational purposes of:

(i) the educational institution; or

(ii) another educational institution, if a remuneration notice

that applies to the other educational institution and the

material is in force under section 113Q; and

(d) the copying or communicating complies with:

(i) any relevant agreement between the broadcasts

collecting society and the body administering the

educational institution; and

(ii) any relevant determination made by the Copyright

Tribunal under subsection (4) of this section.

(3) For the purposes of Part XIA, each performer in a performance is

taken to have authorised the copying, or the communicating a

copy, of the whole or a part of:

(a) a broadcast of the performance; or

(b) the content of a broadcast of the performance;

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Section 113P

if subsection (2) applies to the copying or communicating.

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).

Questions determined by Copyright Tribunal

(4) The Copyright Tribunal may determine a question relating to

copying or communicating mentioned in subsection (1) or (2) if:

(a) the relevant collecting society and the body administering the

relevant educational institution fail to determine the question

by agreement under subparagraph (1)(e)(i) or (2)(d)(i); and

(b) the society or the body applies to the Tribunal to have the

Tribunal determine the question.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the application.

Copies and communications subsequently used for other purposes

(5) Subsections (1), (2) and (3) do not apply, and are taken never to

have applied, to copying, or communicating a copy, by a body

administering an educational institution if the copy is, with the

consent of the body:

(a) used for a purpose other than the educational purposes of an

educational institution; or

(b) given to the body administering another educational

institution, if no remuneration notice that applies to the other

educational institution and the relevant copyright material is

in force under section 113Q; or

(c) sold or otherwise supplied for a financial profit.

Content of certain broadcasts

(6) This section applies to the content of a broadcast in the same way

as this section applies to a broadcast if the content of the broadcast

was:

(a) electronically transmitted using the internet at the same time,

or at substantially the same time, as the broadcast; or

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Section 113Q

(b) if the broadcast is a free-to-air broadcast—made available

online by the broadcaster of the broadcast at the same time

as, or after, the broadcast.

113Q Remuneration notices

(1) A remuneration notice is a written notice:

(a) that the body administering an educational institution gives to

a collecting society; and

(b) by which the body undertakes:

(i) to pay to the society equitable remuneration for licensed

copying or communicating; and

(ii) to give to the society reasonable assistance to enable the

society to collect and distribute that equitable

remuneration.

Note: For equitable remuneration, see section 113R.

(2) Copying or communicating mentioned in subsection 113P(1) or (2)

is licensed copying or communicating if the copying or

communicating does not infringe copyright only because of

section 113P.

(3) A remuneration notice that a body gives to a collecting society

under this section applies to:

(a) an educational institution that the body administers; and

(b) copyright material for which the society is the collecting

society.

Note: See paragraph 113V(4)(a).

(4) However, the notice does not apply to a work to which

paragraph 113P(1)(b) applies if the society is not the works

collecting society for the eligible rights holder who owns the

copyright in the work.

Note: See paragraph 113V(4)(b).

When remuneration notice is in force

(5) A remuneration notice given under this section:

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Section 113R

(a) comes into force on:

(i) the day on which the notice is given to the relevant

collecting society; or

(ii) a later day specified in the notice; and

(b) remains in force until it is revoked.

(6) The body administering an educational institution may, at any

time, revoke a remuneration notice the body gave to a collecting

society under this section. The body revokes the remuneration

notice by giving notice in writing to the society. The revocation

takes effect:

(a) at the end of the period of 3 months starting on the day the

notice of revocation is given to the society; or

(b) on a later day specified in the notice of revocation.

113R Equitable remuneration

(1) The amount of the equitable remuneration that, by a remuneration

notice given to a collecting society under section 113Q, the body

administering an educational institution undertakes to pay for

licensed copying or communicating is the amount:

(a) agreed between the society and the body; or

(b) determined by the Copyright Tribunal under subsection (2).

(2) The Copyright Tribunal may determine the amount of the equitable

remuneration if:

(a) the society and the body fail to determine the amount by

agreement under paragraph (1)(a); and

(b) the society or the body apply to the Tribunal to have the

Tribunal determine the amount.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the application.

(3) A determination of the Tribunal under subsection (2) may be

expressed to have effect in relation to copying or communicating

done before the day on which the determination is made.

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Section 113S

113S Educational institutions must assist collecting society

(1) If a remuneration notice that applies to an educational institution is

in force under section 113Q, the relevant collecting society may, in

writing (the entry notice), notify the body administering the

educational institution that the society wishes, on a day specified in

the notice, to enter the premises of the educational institution for

the purpose of reviewing the body’s compliance with:

(a) the remuneration notice; and

(b) any relevant agreements and determinations mentioned in

paragraph 113P(1)(e) or (2)(d).

(2) A person authorised in writing by the collecting society may enter

the premises of the educational institution for the purpose

mentioned in subsection (1) after the collecting society gives the

entry notice to the body.

(3) Entry onto premises under subsection (2) may only occur:

(a) during ordinary working hours of the educational institution;

and

(b) on the day specified in the entry notice, which must not be

earlier than 7 days after the day on which the entry notice is

given.

(4) The Copyright Tribunal may determine a question relating to entry

onto premises of an educational institution under this section if:

(a) the relevant collecting society and the body administering the

educational institution fail to determine the question by

agreement; and

(b) the society or the body applies to the Tribunal to have the

Tribunal determine the question.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the application.

(5) The body administering an educational institution must:

(a) ensure that a person who enters the premises of the

educational institution under subsection (2) is provided with

all reasonable and necessary facilities and assistance for the

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Division 4 Educational institutions—statutory licence

Section 113T

effective review of the body’s compliance with the

remuneration notice, agreements and determinations

mentioned in paragraphs (1)(a) and (b); and

(b) comply with any determinations of the Copyright Tribunal

made under subsection (4).

(6) A body administering an educational institution commits an

offence if the body contravenes subsection (5).

Penalty: 5 penalty units.

113T Voluntary licences

(1) Nothing in this Division affects the right of the owner of the

copyright in copyright material to grant a licence authorising any

use of that material by the body administering an educational

institution.

(2) Nothing in this Division affects the right of a performer in a

performance (within the meaning of Part XIA) to authorise the

body administering an educational institution:

(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.

113U Persons acting on behalf of bodies administering educational

institutions

A reference in this Division (other than the first reference in

subsection 113S(6)) to the body administering an educational

institution includes a reference to a person acting on behalf of the

body.

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Collecting societies Division 5

Section 113V

Division 5—Collecting societies

Subdivision A—Declaration of collecting society

113V Declaration of collecting society

Applications

(1) A body may apply, in writing, to the Minister to be declared to be:

(a) the works collecting society for:

(i) all eligible rights holders; or

(ii) specified classes of eligible rights holders; or

(b) the broadcasts collecting society.

Declarations

(2) After receiving the application, the Minister must do one of the

following:

(a) 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) The Copyright Tribunal may declare the body to be a collecting

society if the Minister refers the application to the Tribunal under

paragraph (2)(c). The Registrar must notify the Minister of the

declaration.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the referral.

(4) A declaration of the body to be a collecting society under this

section must declare the body to be a collecting society:

(a) for either:

(i) works to which paragraph 113P(1)(b) applies; or

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(ii) copyright material to which paragraph 113P(2)(b)

applies; and

(b) for:

(i) if subparagraph (a)(i) of this subsection applies—

specified classes of eligible rights holders; or

(ii) in either case—all eligible rights holders.

(5) The Minister must, by notifiable instrument, give notice of a

declaration made under this section.

Existing collecting societies

(6) If:

(a) a body is declared to be the works collecting society for an

eligible rights holder; and

(b) another body is later declared to be the works collecting

society for the eligible rights holder;

the first declaration ceases to be in effect on the day (the cessation

day) before the second declaration commences, to the extent the

first declaration relates to the eligible rights holder.

(7) If:

(a) a remuneration notice given to the first body under

section 113Q:

(i) is in force on the cessation day; and

(ii) applies to a work; and

(b) the eligible rights holder owns the copyright in the work;

the notice ceases to be in force on the cessation day, to the extent

the notice applies to the work.

(8) A body cannot be declared to be the broadcasts collecting society

while another body is declared to be the broadcasts collecting

society.

Eligible rights holders

(9) In this Act:

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eligible rights holder means:

(a) for a works collecting society—the owner of the copyright in

a work; or

(b) for the broadcasts collecting society—any of the following:

(i) 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

within the meaning of section 100AB);

(ii) a performer in a performance (within the meaning of

Part XIA).

113W Requirements for declaration of collecting society

The Minister and the Copyright Tribunal must not declare a body

to be a collecting society for eligible rights holders under

section 113V unless:

(a) the body is a company limited by guarantee and incorporated

under a law of the Commonwealth, a State or a Territory

relating to companies; and

(b) all of those eligible rights 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 by

the regulations, being provisions necessary to ensure that the

interests of the collecting society’s members who are eligible

rights holders or their agents are protected adequately,

including provisions about:

(i) the collection of amounts of equitable remuneration

payable under remuneration notices given to the society

under section 113Q; 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

eligible rights holders who are not its members; and

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Section 113X

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

113X Revocation of declaration

(1) Subsection (2) applies if the Minister is satisfied that a body

declared to be a collecting society under section 113V:

(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 eligible rights

holders or their agents; or

(c) has altered its rules so that they no longer comply with

paragraphs 113W(c) and (d); or

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

with section 113Z or 113ZA.

(2) The Minister may:

(a) revoke the declaration; or

(b) refer to the Copyright Tribunal, in the way prescribed by the

regulations, the question whether the declaration should be

revoked.

(3) The Tribunal may revoke the declaration if:

(a) the Minister refers the question to the Copyright Tribunal

under paragraph (2)(b); and

(b) the Tribunal is satisfied that paragraph (1)(a), (b), (c) or (d)

applies to the body.

The Registrar must notify the Minister of the revocation.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the referral.

(4) A revocation under this section must specify the day on which it

takes effect.

(5) The Minister must, by notifiable instrument, give notice of a

revocation under this section.

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Section 113Y

(6) Subsection 33(3) of the Acts Interpretation Act 1901 does not

apply in relation to a power under section 113V of this Act to make

a declaration.

Subdivision B—Operation of collecting society

113Y Scope of this Subdivision

This Subdivision applies to:

(a) a works collecting society; or

(b) the broadcasts collecting society.

113Z Annual report and accounts

(1) The collecting society must, as soon as practicable after the end of

each financial year:

(a) prepare a report of its operations during that financial year;

and

(b) send a copy of the report to the Minister, for presentation to

the Parliament.

(2) The collecting society must keep accounting records correctly

recording and explaining the transactions of the society (including

any transactions as trustee) and the financial position of the

society.

(3) 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.

(4) The collecting society must:

(a) 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

(b) must send to the Minister a copy of its accounts as so

audited.

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Section 113ZA

(5) The collecting society must give its members reasonable access to

copies of all reports and audited accounts prepared under this

section.

(6) 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.

113ZA Amendment of rules

The 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.

113ZB Review of distribution arrangement by Copyright Tribunal

(1) The collecting society or a member of the society may apply to the

Copyright Tribunal for review of the arrangement adopted, or

proposed to be adopted, by the society for distributing amounts it

collects in a period.

Note: Section 153A sets out the procedure of the Copyright Tribunal in

dealing with the application.

(2) After an application is made under subsection (1), the Tribunal

must make an order:

(a) confirming the arrangement; or

(b) varying the arrangement; or

(c) substituting for the arrangement another arrangement for

distributing amounts the collecting society collects in the

period.

(3) If the Tribunal makes an order varying the arrangement or

substituting for it another arrangement, the arrangement reflecting

the Tribunal’s order:

(a) has effect as if it had been adopted in accordance with the

society’s rules; and

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Section 113ZC

(b) does not affect a distribution started before the order was

made.

113ZC Operation of collecting society rules

Division 4 and this Division apply to the collecting society despite

anything in the rules of the society, but nothing in those Divisions

affects the rules so far as they can operate together with those

Divisions.

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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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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

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(iii) any benefit shown to have accrued to the defendant by

reason of the infringement; and

(iv) all other relevant matters;

the court may, in assessing damages for the infringement, award

such additional damages as it considers appropriate in the

circumstances.

Consideration for relief for electronic commercial infringement

(5) Subsection (6) applies to a court hearing an action for infringement

of copyright if the court is satisfied that:

(a) the infringement (the proved infringement) occurred

(whether as a result of the doing of an act comprised in the

copyright, the authorising of the doing of such an act or the

doing of another act); and

(b) the proved infringement involved a communication of a work

or other subject-matter to the public; and

(c) because the work or other subject-matter was communicated

to the public, it is likely that there were other infringements

(the likely infringements) of the copyright by the defendant

that the plaintiff did not prove in the action; and

(d) taken together, the proved infringement and likely

infringements were on a commercial scale.

(6) The court may have regard to the likelihood of the likely

infringements (as well as the proved infringement) in deciding

what relief to grant in the action.

(7) In determining for the purposes of paragraph (5)(d) whether, taken

together, the proved infringement and the likely infringements

were on a commercial scale, the following matters are to be taken

into account:

(a) the volume and value of any articles that:

(i) are infringing copies that constitute the proved

infringement; or

(ii) assuming the likely infringements actually occurred,

would be infringing copies constituting those

infringements;

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(b) any other relevant matter.

(8) In subsection (7):

article includes a reproduction or copy of a work or other

subject-matter, being a reproduction or copy in electronic form.

115A Injunctions against carriage service providers providing

access to online locations outside Australia

(1) The Federal Court of Australia may, on application by the owner of

a copyright, grant an injunction referred to in subsection (2) if the

Court is satisfied that:

(a) a carriage service provider provides access to an online

location outside Australia; and

(b) the online location infringes, or facilitates an infringement of,

the copyright; and

(c) the primary purpose of the online location is to infringe, or to

facilitate the infringement of, copyright (whether or not in

Australia).

(2) The injunction is to require the carriage service provider to take

reasonable steps to disable access to the online location.

Parties

(3) The parties to an action under subsection (1) are:

(a) the owner of the copyright; and

(b) the carriage service provider; and

(c) the person who operates the online location if, but only if,

that person makes an application to be joined as a party to the

proceedings.

Service

(4) The owner of the copyright must notify:

(a) the carriage service provider; and

(b) the person who operates the online location;

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of the making of an application under subsection (1), but the Court

may dispense, on such terms as it sees fit, with the notice required

to be sent under paragraph (b) if the Court is satisfied that the

owner of the copyright is unable, despite reasonable efforts, to

determine the identity or address of the person who operates the

online location, or to send notices to that person.

Matters to be taken into account

(5) In determining whether to grant the injunction, the Court may take

the following matters into account:

(a) the flagrancy of the infringement, or the flagrancy of the

facilitation of the infringement, as referred to in

paragraph (1)(c);

(b) whether the online location makes available or contains

directories, indexes or categories of the means to infringe, or

facilitate an infringement of, copyright;

(c) whether the owner or operator of the online location

demonstrates a disregard for copyright generally;

(d) whether access to the online location has been disabled by

orders from any court of another country or territory on the

ground of or related to copyright infringement;

(e) whether disabling access to the online location is a

proportionate response in the circumstances;

(f) the impact on any person, or class of persons, likely to be

affected by the grant of the injunction;

(g) whether it is in the public interest to disable access to the

online location;

(h) whether the owner of the copyright complied with

subsection (4);

(i) any other remedies available under this Act;

(j) any other matter prescribed by the regulations;

(k) any other relevant matter.

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Affidavit evidence

(6) For the purposes of the proceedings, section 134A (affidavit

evidence) applies as if the reference in paragraph 134A(f) to a

particular act included a reference to a class of acts.

Rescinding and varying injunctions

(7) The Court may:

(a) limit the duration of; or

(b) upon application, rescind or vary;

an injunction granted under this section.

(8) An application under subsection (7) may be made by:

(a) any of the persons referred to in subsection (3); or

(b) any other person prescribed by the regulations.

Costs

(9) The carriage service provider is not liable for any costs in relation

to the proceedings unless the provider enters an appearance and

takes part in the proceedings.

116 Rights of owner of copyright in respect of infringing copies

(1) The owner of the copyright in a work or other subject-matter may

bring an action for conversion or detention in relation to:

(a) an infringing copy; or

(b) a device (including a circumvention device) used or intended

to be used for making infringing copies.

(1A) In an action for conversion or detention, a court may grant to the

owner of the copyright all or any of the remedies that are available

in such an action as if:

(a) the owner of the copyright had been the owner of the

infringing copy since the time the copy was made; or

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(b) the owner of the copyright had been the owner of the device

since the time when it was used or intended to be used for

making infringing copies.

(1B) Any relief granted by a court in an action for conversion or

detention is in addition to any relief that the court may grant under

section 115.

(1C) A court is not to grant any relief to the owner of the copyright in an

action for conversion or detention if the relief that the court has

granted or proposes to grant under section 115 is, in the opinion of

the court, a sufficient remedy.

(1D) In deciding whether to grant relief in an action for conversion or

detention and in assessing the amount of damages payable, the

court may have regard to the following:

(a) the expenses incurred by the defendant, being a person who

marketed or otherwise dealt with the infringing copy, in

manufacturing or acquiring the infringing copy;

(b) whether the expenses were incurred before or after the

infringing copy was sold or otherwise disposed of by the

defendant;

(c) any other matter that the court considers relevant.

(1E) If the infringing copy is an article of which only part consists of

material that infringes copyright, the court, in deciding whether to

grant relief and in assessing the amount of damages payable, may

also have regard to the following:

(a) the importance to the market value of the article of the

material that infringes the copyright;

(b) the proportion the material that infringes copyright bears to

the article;

(c) the extent to which the material that infringes copyright may

be separated from the article.

(2) A plaintiff is not entitled by virtue of this section to any damages

or to any other pecuniary remedy, other than costs, if it is

established that, at the time of the conversion or detention:

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(a) the defendant was not aware, and had no reasonable grounds

for suspecting, that copyright subsisted in the work or other

subject-matter to which the action relates;

(b) where the articles converted or detained were infringing

copies—the defendant believed, and had reasonable grounds

for believing, that they were not infringing copies; or

(c) where an article converted or detained was a device used or

intended to be used for making articles—the defendant

believed, and had reasonable grounds for believing, that the

articles so made or intended to be made were not or would

not be, as the case may be, infringing copies.

116AAA Compensation for acquisition of property

(1) This section applies if, apart from this section, subsections 22(3A)

and 97(2) and (2A) would result in the acquisition of property from

a maker of a sound recording of a live performance by a performer

in the performance otherwise than on just terms.

(2) There is payable to the maker by the performer such amount of

compensation as is agreed on between those persons, or, failing

agreement, as is determined by a court of competent jurisdiction.

(3) Any damages or compensation recovered or other remedy given in

a proceeding that is commenced otherwise than under this section

is to be taken into account in assessing compensation payable in a

proceeding that is commenced under this section and that arises out

of the same event or transaction.

(4) Any compensation payable in a proceeding that is commenced

under this section is to be taken into account in assessing any

damages or compensation or other remedy to be awarded in a

proceeding that is commenced otherwise than under this section

and that arises out of the same event or transaction.

(5) In this section:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

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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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Limitation on remedies available against carriage service providers Division 2AA

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.

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

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Section 116AC

(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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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;

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(b) an order requiring the carriage service provider to terminate a

specified account;

(c) some other less burdensome but comparably effective

non-monetary order if necessary.

Relevant matters

(5) In deciding whether to make an order of a kind referred to in

subsection (3) or (4), a court must have regard to:

(a) the harm that has been caused to the owner or exclusive

licensee of the copyright; and

(b) the burden that the making of the order will place on the

carriage service provider; and

(c) the technical feasibility of complying with the order; and

(d) the effectiveness of the order; and

(e) whether some other comparably effective order would be less

burdensome.

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

Subdivision D—Conditions

116AH Conditions

(1) This table sets out the conditions for each of the categories of

activities.

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.

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Conditions

Item Activity Conditions

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.

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:

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(a) industry practice in relation to the charging of services by

carriage service providers, including charging based on level

of activity; and

(b) whether the financial benefit was greater than the benefit that

would usually result from charging in accordance with

accepted industry practice.

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

(4) An act done by a carriage service provider in complying with the

prescribed procedure referred to in condition 3 in table item 4 in

the table in subsection (1) does not constitute a failure to satisfy

condition 2A in that item.

116AI Evidence of compliance with conditions

If a carriage service provider, in an action relating to this Division,

points to evidence, as prescribed, that suggests that the carriage

service provider has complied with a condition, the court must

presume, in the absence of evidence to the contrary, that the

carriage service provider has complied with the condition.

Subdivision E—Regulations

116AJ Regulations

(1) The regulations may provide that a carriage service provider is not

liable for damages or any other civil remedy as a result of action

taken in good faith to comply with a condition.

(2) The regulations may provide civil remedies for conduct by relevant

parties in relation to conditions.

(3) The regulations may prescribe offences for conduct by persons

issuing notices under the regulations, and prescribe penalties for

offences against those regulations. The penalties must not exceed

50 penalty units.

Note: If a body corporate is convicted of an offence against regulations

made under this section, subsection 4B(3) of the Crimes Act 1914

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allows a court to impose fines of up to 5 times the penalty stated

above.

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Division 2A Actions in relation to technological protection measures and electronic

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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.

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Exception—permission

(2) Subsection (1) does not apply to the person if the person has the

permission of the copyright owner or exclusive licensee to

circumvent the access control technological protection measure.

Exception—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable:

(i) the person; or

(ii) if the person is a body corporate—an employee of the

person;

to do an act; and

(b) the act:

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(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(c) the person or employee is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(d) the person or employee:

(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Exception—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

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(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Exception—online privacy

(6) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy; and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

disabling an undisclosed capability to collect or

disseminate personally identifying information about

the online activities of a natural person; and

(iv) will not affect the ability of the person or any other

person to gain access to the work or other subject-matter

or any other work or subject-matter.

Exception—law enforcement and national security

(7) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

Exception—libraries etc.

(8) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the person is:

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(i) a library (other than a library that is conducted for the

profit, direct or indirect, of an individual or individuals);

or

(ii) a body mentioned in paragraph (a) of the definition of

archives in subsection 10(1), or in subsection 10(4); or

(iii) an educational institution; and

(c) the act will be done for the sole purpose of making an

acquisition decision in relation to the work or other

subject-matter; and

(d) the work or other subject-matter will not be otherwise

available to the person when the act is done.

Note: A library that is owned by a person conducting a business for profit

might not itself be conducted for profit (see section 18).

Exception—prescribed acts

(9) Subsection (1) does not apply to the person if:

(a) the person circumvents the access control technological

protection measure to enable the person to do an act; and

(b) the act will not infringe the copyright in a work or other

subject-matter; and

(c) the doing of the act by the person is prescribed by the

regulations.

Note: For the making of regulations prescribing the doing of an act by a

person, see section 249.

Burden of proof

(10) The defendant bears the burden of establishing the matters referred

to in subsections (2) to (9).

116AO Manufacturing etc. a circumvention device for a

technological protection measure

(1) An owner or exclusive licensee of the copyright in a work or other

subject-matter may bring an action against a person if:

(a) the person does any of the following acts with a device:

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(i) manufactures it with the intention of providing it to

another person;

(ii) imports it into Australia with the intention of providing

it to another person;

(iii) distributes it to another person;

(iv) offers it to the public;

(v) provides it to another person;

(vi) communicates it to another person; and

(b) the person knows, or ought reasonably to know, that the

device is a circumvention device for a technological

protection measure; and

(c) the work or other subject-matter is protected by the

technological protection measure.

Exception - no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the device is a circumvention device for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Exception—interoperability

(3) Subsection (1) does not apply to the person if:

(a) the circumvention device will be used to circumvent the

technological protection measure to enable the doing of an

act; and

(b) the act:

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(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(i) engaged in a course of study at an educational

institution in the field of encryption technology; or

(ii) employed, trained or experienced in the field of

encryption technology; and

(e) the researcher:

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(i) has obtained permission from the owner or exclusive

licensee of the copyright to do the act; or

(ii) has made, or will make, a good faith effort to obtain

such permission.

In this subsection, encryption technology means the scrambling

and descrambling of information using mathematical formulas or

algorithms.

Exception—computer security testing

(5) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Exception—law enforcement and national security

(6) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

(a) law enforcement; or

(b) national security; or

(c) performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an

authority of one of those bodies.

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Section 116AP

Burden of proof

(7) The defendant bears the burden of establishing the matters referred

to in subsections (2) to (6).

116AP Providing etc. a circumvention service for a technological

protection measure

(1) An owner or exclusive licensee of the copyright in a work or other

subject-matter may bring an action against a person if:

(a) the person:

(i) provides a service to another person; or

(ii) offers a service to the public; and

(b) the person knows, or ought reasonably to know, that the

service is a circumvention service for a technological

protection measure; and

(c) the work or other subject-matter is protected by the

technological protection measure.

Exception - no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the service is a circumvention service for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Exception—interoperability

(3) Subsection (1) does not apply to the person if:

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(a) the circumvention service will be used to circumvent a

technological protection measure to enable the doing of an

act; and

(b) the act:

(i) relates to a copy of a computer program (the original

program) that is not an infringing copy and that was

lawfully obtained; and

(ii) will not infringe the copyright in the original program;

and

(iia) relates to elements of the original program that will not

be readily available to the person doing the act when the

circumvention occurs; and

(iii) will be done for the sole purpose of achieving

interoperability of an independently created computer

program with the original program or any other

program.

Exception—encryption research

(4) Subsection (1) does not apply to the person if:

(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention service will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

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(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

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Section 116B

(d) any benefit shown to have accrued to the defendant as a

result of those acts; and

(e) any other relevant matters.

(3) If:

(a) an action has been commenced against a person under this

Subdivision; and

(b) the doing of an act by the person, which is the subject of the

action, involved a device; and

(c) the device appears to the court to be a circumvention device;

the court may order that the device be delivered up to the court

upon such conditions as the court considers appropriate.

(4) This section does not, by implication, affect the interpretation of

any other provision of this Act.

Subdivision B—Electronic rights management information

116B Removal or alteration of electronic rights management

information

(1) This section applies if:

(a) either:

(i) a person removes, from a copy of a work or other

subject-matter in which copyright subsists, any

electronic rights management information that relates to

the work or other subject-matter; or

(ii) a person alters any electronic rights management

information that relates to a work or other

subject-matter in which copyright subsists; and

(b) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(c) the person knew, or ought reasonably to have known, that the

removal or alteration would induce, enable, facilitate or

conceal an infringement of the copyright in the work or other

subject-matter.

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(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant knew, or ought reasonably to have known, that the

removal or alteration to which the action relates would have the

effect referred to in paragraph (1)(c) unless the defendant proves

otherwise.

116C Distribution to the public etc. of works whose electronic rights

management information has been removed or altered

(1) This section applies if:

(a) a person does any of the following acts in relation to a work

or other subject-matter in which copyright subsists without

the permission of the owner or exclusive licensee of the

copyright:

(i) distributes a copy of the work or other subject-matter to

the public;

(ii) imports into Australia a copy of the work or other

subject-matter for distribution to the public;

(iii) communicates a copy of the work or other

subject-matter to the public; and

(b) either:

(i) any electronic rights management information that

relates to the work or other subject-matter has been

removed from the copy of the work or subject-matter; or

(ii) any electronic rights management information that

relates to the work or other subject-matter has been

altered; and

(c) the person knew that the electronic rights management

information had been so removed or altered without the

permission of the owner or exclusive licensee of the

copyright; and

(d) the person knew, or ought reasonably to have known, that the

act referred to in paragraph (a) that was done by the person

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would induce, enable, facilitate or conceal an infringement of

the copyright in the work or other subject-matter.

(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant:

(a) had the knowledge referred to in paragraph (1)(c); and

(b) knew, or ought reasonably to have known, that the doing of

the act to which the action relates would have the effect

referred to in paragraph (1)(d);

unless the defendant proves otherwise.

116CA Distribution and importation of electronic rights

management information that has been removed or

altered

(1) This section applies if:

(a) a person does either of the following acts in relation to

electronic rights management information that relates to a

work or other subject-matter in which copyright subsists:

(i) distributes the electronic rights management

information;

(ii) imports into Australia the electronic rights management

information for distribution; and

(b) the person does so without the permission of the owner or

exclusive licensee of the copyright; and

(c) either:

(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

or exclusive licensee of the copyright but the

information has been altered without that permission;

and

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(d) the person knew that the information had been removed or

altered without that permission; and

(e) the person knew, or ought reasonably to have known, that the

act referred to in paragraph (a) that was done by the person

would induce, enable, facilitate or conceal an infringement of

the copyright.

(2) If this section applies, the owner or exclusive licensee of the

copyright may bring an action against the person.

(3) In an action under subsection (2), it must be presumed that the

defendant:

(a) had the knowledge referred to in paragraph (1)(d); and

(b) knew, or ought reasonably to have known, that the doing of

the act to which the action relates would have the effect

referred to in paragraph (1)(e);

unless the defendant proves otherwise.

116CB Exception relating to national security and law enforcement

Sections 116B to 116CA do not apply in respect of anything

lawfully done for the purposes of law enforcement or national

security by or on behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

116D Remedies in actions under this Subdivision

(1) The relief that a court may grant in an action under this

Subdivision includes an injunction (subject to such terms, if any, as

the court thinks fit) and either damages or an account of profits.

(2) If, in an action under this Subdivision, the court is satisfied that it

is proper to do so, having regard to:

(a) the flagrancy of the defendant’s actions that are the subject of

the action; and

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(b) any benefit shown to have accrued to the defendant as a

result of those acts; and

(c) any other relevant matters;

the court may, in assessing damages, award such additional

damages as it considers appropriate in the circumstances.

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Section 117

Division 3—Proceedings where copyright is subject to

exclusive licence

117 Interpretation

In this Division:

if the licence had been an assignment means if, instead of the

licence, there had been granted (subject to conditions

corresponding as nearly as practicable with those subject to which

the licence was granted) an assignment of the copyright in respect

of its application to the doing, at the places and times authorized by

the licence, of the acts so authorized.

the other party means:

(a) in relation to the owner of the copyright—the exclusive

licensee; and

(b) in relation to the exclusive licensee—the owner of the

copyright.

118 Application

This Division applies to proceedings in relation to a copyright in

respect of which an exclusive licence has been granted and is in

force at the time of the events to which the proceedings relate.

119 Rights of exclusive licensee

Subject to the succeeding sections of this Division:

(a) except against the owner of the copyright, the exclusive

licensee has the same rights of action as he or she would

have, and is entitled to the same remedies as he or she would

be entitled to, by virtue of section 115 or 115A if the licence

had been an assignment, and those rights and remedies are

concurrent with the rights and remedies of the owner of the

copyright under that section;

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(b) except against the owner of the copyright, the exclusive

licensee has the same rights of action as he or she would

have, and is entitled to the same remedies as he or she would

be entitled to, by virtue of section 116 if the licence had been

an assignment; and

(c) the owner of the copyright does not have any rights of action

that he or she would not have, and is not entitled to any

remedies that he or she would not be entitled to, by virtue of

section 116 if the licence had been an assignment.

120 Joinder of owner or exclusive licensee as a party

(1) Where:

(a) an action is brought by the owner of the copyright or by the

exclusive licensee; and

(b) the action, in so far as it is brought under section 115 or

115A, relates, in whole or in part, to an infringement in

respect of which the owner and the licensee have concurrent

rights of action under that section;

the owner or licensee, as the case may be, is not entitled, except

with the leave of the court, to proceed with the action, in so far as it

is brought under that section and relates to that infringement,

unless the other party is joined as a plaintiff in the action or added

as a defendant.

(2) This section does not affect the granting of an interlocutory

injunction on the application of the owner of the copyright or of the

exclusive licensee.

121 Defences available against exclusive licensee

In an action brought by the exclusive licensee by virtue of this

Division, a defence under this Act that would have been available

to a defendant in the action if the action had been brought by the

owner of the copyright is available to that defendant as against the

exclusive licensee.

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122 Assessment of damages where exclusive licence granted

Where an action to which section 120 applies is brought and the

owner of the copyright and the exclusive licensee are not both

plaintiffs in the action, the court, in assessing damages in respect of

an infringement of a kind referred to in that section, shall:

(a) if the plaintiff is the exclusive licensee—take into account

any liabilities, in respect of royalties or otherwise, to which

the licence is subject; and

(b) whether the plaintiff is the owner of the copyright or the

exclusive licensee—take into account any pecuniary remedy

already awarded to the other party under section 115 in

respect of that infringement, or any right of action

exercisable by the other party under that section in respect of

that infringement, as the case requires.

123 Apportionment of profits between owner and exclusive licensee

Where:

(a) an action, in so far as it is brought under section 115, relates,

in whole or in part, to an infringement in respect of which the

owner of the copyright and the exclusive licensee have

concurrent rights of action under that section; and

(b) in that action, whether the owner of the copyright and the

exclusive licensee are both parties or not, an account of

profits is directed to be taken in respect of that infringement;

then, subject to any agreement of which the court is aware by

which the application of those profits is determined as between the

owner of the copyright and the exclusive licensee, the court shall

apportion the profits between them in such a manner as the court

considers just and shall give such directions as the court considers

appropriate for giving effect to that apportionment.

Note: However, not all owners of the copyright are entitled to an account of

profits: see section 100AG.

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124 Separate actions in relation to the same infringement

In an action brought by the owner of the copyright or by the

exclusive licensee:

(a) a judgment or order for the payment of damages in respect of

an infringement of copyright shall not be given or made

under section 115 if a final judgment or order has been given

or made in favour of the other party directing an account of

profits under that section in respect of the same infringement;

and

(b) a judgment or order for an account of profits in respect of an

infringement of copyright shall not be given or made under

that section if a final judgment or order has been given or

made in favour of the other party awarding damages or

directing an account of profits under that section in respect of

the same infringement.

Note: However, not all owners of the copyright are entitled to damages

(other than additional damages) or an account of profits: see

section 100AG.

125 Liability for costs

Where, in an action to which section 120 applies, whether brought

by the owner of the copyright or by the exclusive licensee, the

other party is not joined as a plaintiff (either at the commencement

of the action or at a later time), but is added as a defendant, the

other party is not liable for any costs in the action unless he or she

enters an appearance and takes part in the proceedings.

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Section 126

Division 4—Proof of facts in civil actions

126 Presumptions as to subsistence and ownership of copyright

In an action brought by virtue of this Part:

(a) copyright shall be presumed to subsist in the work or other

subject-matter to which the action relates if the defendant

does not put in issue the question whether copyright subsists

in the work or other subject-matter; and

(b) where the subsistence of the copyright is established—the

plaintiff shall be presumed to be the owner of the copyright if

he or she claims to be the owner of the copyright and the

defendant does not put in issue the question of his or her

ownership.

126A Presumptions relating to subsistence of copyright

(1) This section applies to an action under this Part in which the

defendant puts in issue the question whether copyright subsists in

the work or other subject matter to which the action relates.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating the year and place of the first publication, or of the

making, of the work or other subject matter, then that year and

place are presumed to be as stated on the label or mark, unless the

contrary is established.

Foreign certificates

(3) If a certificate or other document issued in a qualifying country in

accordance with a law of that country states the year and place of

the first publication, or of the making, of the work or other subject

matter, then that year and place are presumed to be as stated in the

certificate or document, unless the contrary is established.

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(4) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (3) is, unless the

contrary intention is established, taken to be such a certificate or

document.

126B Presumptions relating to ownership of copyright

(1) This section applies to an action under this Part in which the

defendant puts in issue the question of the plaintiff’s ownership of

copyright in the work or other subject matter to which the action

relates.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating that a person was the owner of copyright in the

work or other subject matter at a particular time, then the person is

presumed to have been the owner of the copyright at the time,

unless the contrary is established.

Foreign certificates

(3) If a certificate or other document issued in a qualifying country in

accordance with a law of that country states that a person was the

owner of copyright in the work or other subject matter at a

particular time, then the person is presumed to have been the owner

of the copyright at the time, unless the contrary is established.

(4) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (3) is, unless the

contrary intention is established, taken to be such a certificate or

document.

Chains of ownership

(5) If:

(a) subsection (2) or (3) applies; and

(b) the plaintiff produces a document stating the following:

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(i) each subsequent owner of the copyright the subject of

the action (including the plaintiff’s ownership);

(ii) the date each subsequent owner became the owner of

that copyright;

(iii) a description of the transaction resulting in each

subsequent owner becoming the owner of that

copyright;

then the matters described in subparagraphs (b)(i), (ii) and (iii) are

presumed to be as stated in the document, unless the contrary is

established.

(6) If:

(a) neither subsection (2) nor (3) applies; and

(b) the plaintiff produces a document stating the following:

(i) the original owner of the copyright the subject of the

action;

(ii) each subsequent owner of that copyright (including the

plaintiff’s ownership);

(iii) the date each owner became the owner of that

copyright;

(iv) a description of the transaction resulting in each owner

becoming the owner of that copyright;

then the matters described in subparagraphs (b)(i), (ii), (iii) and (iv)

are presumed to be as stated in the document, unless the contrary is

established.

Offence

(7) A person commits an offence if:

(a) the person produces a document under subsection (5) or (6);

and

(b) the person is reckless as to whether the document is false or

misleading.

Penalty: 30 penalty units.

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127 Presumptions in relation to authorship of work

(1) Where a name purporting to be that of the author of a literary,

dramatic, musical or artistic work appeared on copies of the work

as published or a name purporting to be that of the author of an

artistic work appeared on the work when it was made, the person

whose name so appeared, if it was his or her true name or a name

by which he or she was commonly known, shall, in an action

brought by virtue of this Part, be presumed, unless the contrary is

established, to be the author of the work and to have made the

work in circumstances to which subsections 35(4), (5) and (6) do

not apply.

(2) Where a work is alleged to be a work of joint authorship, the last

preceding subsection applies in relation to each person alleged to

be one of the authors of the work as if references in that subsection

to the author were references to one of the authors.

(3) Where, in an action brought by virtue of this Part in relation to a

photograph:

(a) it is established that, at the time when the photograph was

taken, a person was the owner of the material on which the

photograph was taken or, if the ownership of that material as

at that time is not established, that a person was the owner of

the apparatus by which the photograph was taken; or

(b) neither the ownership as at the time when the photograph was

taken of the material on which it was taken nor the ownership

as at that time of the apparatus by which it was taken is

established but it is established that, at the time of the death

of a person, the photograph was owned by the person or, if

the ownership of the photograph as at that time is not

established, was in the possession or custody of the person;

the person shall be presumed, unless the contrary is established, to

have been the person who took the photograph.

(4) However, if the owner of the material or apparatus was a body

corporate, then paragraph (3)(a) only applies if the presumption is

required to determine the ownership of the copyright in the

photograph.

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Note: For example, the presumption does not apply if it is required to

determine the duration of the copyright in the photograph.

128 Presumptions in relation to publisher of work

Where, in an action brought by virtue of this Part in relation to a

literary, dramatic, musical or artistic work, the last preceding

section does not apply, but it is established:

(a) that the work was first published in Australia and was so

published during the period of 70 years that ended

immediately before the commencement of the calendar year

in which the action was brought; and

(b) that a name purporting to be that of the publisher appeared on

copies of the work as first published;

then, unless the contrary is established, copyright shall be

presumed to subsist in the work and the person whose name so

appeared shall be presumed to have been the owner of that

copyright at the time of the publication.

129 Presumptions where author has died

(1) Where, in an action brought by virtue of this Part in relation to a

literary, dramatic, musical or artistic work, it is established that the

author is dead:

(a) the work shall be presumed to be an original work unless the

contrary is established; and

(b) if it is alleged by the plaintiff that a publication specified in

the allegation was the first publication of the work, and that it

took place in a country and on a date so specified—that

publication shall be presumed, unless the contrary is

established, to have been the first publication of the work,

and to have taken place in that country and on that date.

(2) Where:

(a) a literary, dramatic, musical or artistic work has been

published;

(b) the publication was anonymous or is alleged by the plaintiff

to have been pseudonymous; and

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(c) it is not established that the work has ever been published

under the true name of the author, or under a name by which

he or she was commonly known, or that the identity of the

author is generally known or can be ascertained by

reasonable inquiry;

paragraphs (1)(a) and (b) apply, in an action brought by virtue of

this Part in relation to the work, in like manner as those paragraphs

apply where it is established that the author is dead.

129A Presumptions relating to computer programs

(1) This section applies to an action under this Part relating to

copyright in a literary work that is a computer program if:

(a) articles or things embodying all or part of the program have

been supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

“C” in a circle accompanied by a specified year and the name

of a person.

(2) It is presumed that:

(a) the computer program is an original literary work; and

(b) the computer program was first published in the year; and

(c) the person was the owner of copyright in the program when

and where the articles, things or containers were labelled or

marked;

unless the contrary is established.

(3) A presumption about a person under subsection (2) does not imply

that the person was the only owner of copyright in the program

when and where the articles, things or containers were labelled or

marked.

130 Presumptions relating to sound recordings

(1) This section applies to an action under this Part relating to

copyright in a sound recording if:

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(a) records embodying all or part of the recording have been

supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the records or their containers bore

a label or other mark.

(2) If the label or mark contained a statement described in an item of

the table, the matter described in the item is presumed, unless the

contrary is established.

Statements and matters presumed unless the contrary is established

Item Statement Matter presumed

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

(3) If the label or mark consisted of the letter “P” in a circle

accompanied by a specified year and the name of a person, it is

presumed that:

(a) the recording was first published in the year; and

(b) the person was the owner of copyright in the recording when

and where the records or containers were labelled or marked;

unless the contrary is established.

(4) A presumption about a person under this section does not imply

that the person was:

(a) the only maker of the recording; or

(b) the only owner of copyright in the recording when and where

the records or containers were labelled or marked.

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130A Acts relating to imported copies of sound recordings

(1) In an action for infringement of copyright described in section 37,

38, 102 or 103 by an act involving an article that is a copy of a

sound recording, it must be presumed that the copy is not a

non-infringing copy unless the defendant proves that the copy is a

non-infringing copy.

Note 1: Sections 37 and 38 deal with infringement of copyright in literary,

dramatic and musical works (among other things) by commercial

importation and dealings involving articles.

Note 2: Sections 102 and 103 deal with infringement of copyright in sound

recordings (among other things) by commercial importation and

dealings involving articles.

(2) The definition of article in sections 38 and 103 does not affect this

section.

130B Acts relating to imported copies of computer programs

(1) In an action by a plaintiff for infringement of copyright described

in section 37 or 38:

(a) relating to the plaintiff’s copyright in a literary work that is a

computer program; and

(b) involving an article that has embodied in it a copy of the

program;

it must be presumed, unless the defendant proves otherwise, that

the copy is not a non-infringing copy so far as it relates to the

plaintiff’s copyright.

Note: Sections 37 and 38 deal with infringement of copyright in literary

works (among other things) by commercial importation and dealings

involving articles.

(2) The definition of article in section 38 does not affect this section.

130C Acts relating to imported copies of electronic literary or music

items

(1) In an action by a plaintiff for infringement of copyright described

in section 37, 38, 102 or 103:

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(a) relating to the plaintiff’s copyright in a work, or in a

published edition of a work, that is, or is part of, an electronic

literary or music item; and

(b) involving an article that has embodied in it a copy of the

electronic literary or music item;

it must be presumed, unless the defendant proves otherwise, that

the copy is not a non-infringing copy so far as it relates to the

plaintiff’s copyright.

Note 1: Sections 37 and 38 deal with infringement of copyright in a work by

commercial importation and dealings involving articles.

Note 2: Sections 102 and 103 deal with infringement of copyright in a

published edition of a work (among other things) by commercial

importation and dealings involving articles.

(2) The definition of article in sections 38 and 103 does not affect this

section.

131 Presumptions relating to films

(1) Where the name of a person appeared on copies of a

cinematograph film as made available to the public in such a way

as to imply that the person was the maker of the film and, in the

case of a person other than a body corporate, that name was his or

her true name or a name by which he or she was commonly known,

that person shall, in an action brought by virtue of this Part, be

presumed, unless the contrary is established, to be the maker of the

film and to have made the film in circumstances to which

subsection 98(3) does not apply.

(2) Subsection (3) applies to an action under this Part relating to

copyright in a cinematograph film, if:

(a) articles or things embodying the film have been supplied

commercially; and

(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

“C” in a circle accompanied by a specified year and the name

of a person.

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(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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Jurisdiction and appeals Division 4A

Section 131A

Division 4A—Jurisdiction and appeals

131A Exercise of jurisdiction

(1) The jurisdiction of the Supreme Court of a State or Territory in an

action under this Part shall be exercised by a single Judge of the

Court.

(2) Despite subsection 39(2) of the Judiciary Act 1903, the Supreme

Court of a State or Territory does not have jurisdiction in relation

to applications under section 115A of this Act (injunctions against

carriage service providers providing access to online locations

outside Australia).

131B Appeals

(1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) under this Part is final and

conclusive.

(2) An appeal lies from a decision of a court of a State or Territory

under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

131C Jurisdiction of Federal Court of Australia

Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under this Part.

131D Jurisdiction of Federal Circuit Court of Australia

Jurisdiction is conferred on the Federal Circuit Court of Australia

with respect to civil actions under this Part (other than

section 115A).

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Section 132AA

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.

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.

Subdivision B—Substantial infringement on a commercial scale

132AC Commercial-scale infringement prejudicing copyright owner

Indictable offence

(1) A person commits an offence if:

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(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.

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;

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(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).

(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

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(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (7), it would be lawful for the National

Archives of Australia to do that thing.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (8) (see subsection 13.3(3) of the Criminal Code).

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:

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(a) the person makes an article, with the intention of:

(i) selling it; or

(ii) letting it for hire; or

(iii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter when

the article is made and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes an article in preparation for, or in the

course of:

(i) selling it; or

(ii) letting it for hire; or

(iii) obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter when

the article is made.

Penalty: 60 penalty units.

(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:

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(a) the person sells an article or lets an article for hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other

subject-matter from a hard copy or analog form into a digital or other

electronic machine-readable form, there is an aggravated offence with

a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person sells an article or lets an article for hire; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

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

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(c) copyright subsists in the work or other subject-matter at the

time of the sale or letting.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AF Offering infringing copy for sale or hire

Indictable offences

(1) A person commits an offence if:

(a) the person by way of trade offers or exposes an article for

sale or hire; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

(2) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, with

the intention of obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

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.

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Summary offences

(4) A person commits an offence if:

(a) the person by way of trade offers or exposes an article for

sale or hire; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, with

the intention of obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offences

(7) A person commits an offence if:

(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.

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(8) A person commits an offence if:

(a) the person offers or exposes an article for sale or hire, in

preparation for, or in the course of, obtaining a commercial

advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the offer or exposure.

Penalty: 60 penalty units.

(9) Subsections (7) and (8) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AG Exhibiting infringing copy in public commercially

Indictable offences

(1) A person commits an offence if:

(a) the person by way of trade exhibits an article in public; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

(2) A person commits an offence if:

(a) the person exhibits an article in public, with the intention of

obtaining a commercial advantage or profit; and

(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.

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Note 1: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other

subject-matter from a hard copy or analog form into a digital or other

electronic machine-readable form, there is an aggravated offence with

a higher maximum penalty under section 132AK.

Summary offences

(4) A person commits an offence if:

(a) the person by way of trade exhibits an article in public; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person exhibits an article in public, with the intention of

obtaining a commercial advantage or profit; and

(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(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

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(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

Penalty: 60 penalty units.

(8) A person commits an offence if:

(a) the person exhibits an article in public in preparation for, or

in the course of, obtaining a commercial advantage or profit;

and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the exhibition.

Penalty: 60 penalty units.

(9) Subsections (7) and (8) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AH Importing infringing copy commercially

Indictable offence

(1) A person commits an offence if:

(a) the person imports an article into Australia, with the intention

of doing any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(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;

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(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the import.

(2) An offence against this section is punishable on conviction by a

fine of not more than 650 penalty units or imprisonment for not

more than 5 years, or both.

Note 1: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other

subject-matter from a hard copy or analog form into a digital or other

electronic machine-readable form, there is an aggravated offence with

a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person imports an article into Australia, with the intention

of doing any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

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(b) the article is an infringing copy of a work or other

subject-matter and the person is negligent as to that fact; and

(c) copyright subsists in the work or other subject-matter at the

time of the import and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person imports an article into Australia in preparation for,

or in the course of, doing any of the following with the

article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(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.

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(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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.

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.

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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

(b) the article is an infringing copy of a work or other

subject-matter; and

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(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.

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Note 1: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Note 2: If the infringing copy was made by converting the work or other

subject-matter from a hard copy or analog form into a digital or other

electronic machine-readable form, there is an aggravated offence with

a higher maximum penalty under section 132AK.

Summary offence

(3) A person commits an offence if:

(a) the person 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.

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Strict liability offence

(5) A person commits an offence if:

(a) the person possesses an article in preparation for, or in the

course of, doing any of the following with the article:

(i) selling it;

(ii) letting it for hire;

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

(iv) offering or exposing it for sale or hire to obtain a

commercial advantage or profit;

(v) distributing it for trade;

(vi) distributing it to obtain a commercial advantage or

profit;

(vii) distributing it to an extent that will affect prejudicially

the owner of the copyright in the work or other

subject-matter of which the article is an infringing copy;

(viii) by way of trade exhibiting it in public;

(ix) exhibiting it in public to obtain a commercial advantage

or profit; and

(b) the article is an infringing copy of a work or other

subject-matter; and

(c) copyright subsists in the work or other subject-matter at the

time of the possession.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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.

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(2) An aggravated offence is punishable on conviction by a fine of not

more than 850 penalty units or imprisonment for not more than 5

years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

(3) To prove an aggravated offence, the prosecution must prove that

the defendant was reckless with respect to the circumstance that the

infringing copy was made by converting a work or other

subject-matter from a hard copy or analog form into a digital or

other electronic machine-readable form.

Note: The prosecution must also prove all the physical and fault elements of

the offence against the basic offence provision.

(4) If the prosecution intends to prove an aggravated offence, the

charge must allege that the infringing copy was made by

converting a work or other subject-matter from a hard copy or

analog form into a digital or other electronic machine-readable

form.

132AL Making or possessing device for making infringing copy

Indictable offences

(1) A person commits an offence if:

(a) the person makes a device, intending it to be used for making

an infringing copy of a work or other subject-matter; and

(b) copyright subsists in the work or other subject-matter at the

time of the making of the device.

(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.

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(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offences

(4) A person commits an offence if:

(a) the person makes a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy and the person is

negligent as to that fact; and

(d) copyright subsists in the work or other subject-matter at the

time of the making of the device and the person is negligent

as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person possesses a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy and the person is

negligent as to that fact; and

(d) copyright subsists in the work or other subject-matter at the

time of the possession and the person is negligent as to that

fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(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.

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Strict liability offence

(8) A person commits an offence if:

(a) the person makes a device; and

(b) the device is to be used for copying a work or other

subject-matter; and

(c) the copy will be an infringing copy; and

(d) copyright subsists in the work or other subject-matter at the

time of the making of the device.

Penalty: 60 penalty units.

(10) Subsection (8) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

No need to prove which work etc. is to be copied

(11) In a prosecution for an offence against this section, it is not

necessary to prove which particular work or other subject-matter is

intended to be, or will be, copied using the device.

132AM Advertising supply of infringing copy

Summary offence

(1) A person commits an offence if:

(a) the person, by any means, publishes, or causes to be

published, an advertisement for the supply in Australia of a

copy (whether from within or outside Australia) of a work or

other subject-matter; and

(b) the copy is, or will be, an infringing copy.

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

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in the creation of a copy of the work or other subject-matter is

taken to constitute the supply of a copy of the work or other

subject-matter at the place where the copy will be created.

Subdivision D—Airing of works, sound recordings and films

132AN Causing work to be performed publicly

Indictable offence

(1) A person commits an offence if:

(a) the person causes a literary, dramatic or musical work to be

performed; and

(b) the performance is in public at a place of public

entertainment; and

(c) the performance infringes copyright in the work.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person causes a literary, dramatic or musical work to be

performed; and

(b) the performance is in public at a place of public

entertainment; and

(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.

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

Indictable offence

(1) A person commits an offence if:

(a) the person causes:

(i) a sound recording to be heard; or

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(c) causing the hearing or seeing infringes copyright in the

recording or film.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person causes:

(i) a sound recording to be heard; or

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(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.

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Strict liability offence

(5) A person commits an offence if:

(a) the person causes:

(ii) images from a cinematograph film to be seen; or

(iii) sound from a cinematograph film to be heard; and

(b) the hearing or seeing occurs in public at a place of public

entertainment; and

(c) causing the hearing or seeing infringes copyright in the

recording or film.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision E—Technological protection measures

132APA Definitions

In this Subdivision, computer program has the same meaning as in

section 47AB.

132APB Interaction of this Subdivision with Part VAA

This Subdivision does not apply to encoded broadcasts (within the

meaning of Part VAA).

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

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(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

(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:

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(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).

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

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(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).

Defence—law enforcement and national security

(7) Subsection (1) does not apply in relation to anything lawfully done

for the purposes of:

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(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:

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(a) the technological protection measure is an access control

technological protection measure; and

(b) the circumvention device will be used to circumvent the

access control technological protection measure to enable the

doing of an act; and

(c) the act:

(i) relates to a copy of a computer program that is not an

infringing copy; and

(ii) will not infringe the copyright in the computer program;

and

(iii) will be done for the sole purpose of testing,

investigating or correcting the security of a computer,

computer system or computer network; and

(iv) will be done with the permission of the owner of the

computer, computer system or computer network.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

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:

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(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster (including a body that

provides a national broadcasting service, within the meaning

of the Broadcasting Services Act 1992, and a body that holds

a community broadcasting licence within the meaning of that

Act).

Note 1: A library that is owned by a person conducting a business for profit

might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(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.

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Defence—no promotion, advertising etc.

(2) Subsection (1) does not apply to the person if:

(a) the service is a circumvention service for the technological

protection measure only because it was promoted, advertised

or marketed as having the purpose of circumventing the

technological protection measure; and

(b) both of the following apply:

(i) the person did not do such promoting, advertising or

marketing;

(ii) the person did not direct or request (expressly or

impliedly) another person to do such promoting,

advertising or marketing.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

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).

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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 service will be used to circumvent the

access control technological protection measure to enable a

person (the researcher) to do an act; and

(c) the act:

(i) relates to a copy of a work or other subject-matter that is

not an infringing copy and that was lawfully obtained;

and

(ii) will not infringe the copyright in the work or other

subject-matter; and

(iii) will be done for the sole purpose of identifying and

analysing flaws and vulnerabilities of encryption

technology; and

(d) the researcher is:

(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:

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(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.

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:

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(i) paragraph (a) of the definition of archives in

subsection 10(1); or

(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster (including a body that

provides a national broadcasting service, within the meaning

of the Broadcasting Services Act 1992, and a body that holds

a community broadcasting licence within the meaning of that

Act).

Note 1: A library that is owned by a person conducting a business for profit

might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

(8) This section does not apply in respect of anything lawfully done by

a person in connection with a work or other subject-matter if:

(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

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(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

(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.

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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.

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;

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(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).

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

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(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:

(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

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(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;

(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:

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(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:

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(i) the information has been removed from a copy of the

work or subject-matter without the permission of the

owner or exclusive licensee of the copyright; or

(ii) the information has been removed from a copy of the

work or subject-matter with the permission of the owner

or exclusive licensee of the copyright but the

information has been altered without that permission;

and

(e) the act referred to in paragraph (b) will induce, enable,

facilitate or conceal an infringement of the copyright.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

132AT Defences

Law enforcement and national security

(1) This Subdivision does not apply in respect of anything lawfully

done for the purposes of law enforcement or national security by or

on behalf of:

(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

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(ii) subsection 10(4);

(c) an educational institution;

(d) a public non-commercial broadcaster, including:

(i) a body that provides a national broadcasting service

within the meaning of the Broadcasting Services Act

1992; and

(ii) a body that holds a community broadcasting licence

within the meaning of that Act.

Note 1: A library that is owned by a person conducting a business for profit

might not itself be conducted for profit (see section 18).

Note 2: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) This Subdivision does not apply in respect of anything lawfully

done by a person in connection with a work or other subject-matter

if:

(a) the person has custody of the work or other subject-matter

under an arrangement referred to in section 64 of the

Archives Act 1983; and

(b) under subsection (2), it would be lawful for the National

Archives of Australia to do that thing.

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.

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Note: For the purposes of this Division, section 132AA defines profit as not

including any advantage, benefit, or gain, that:

(a) is received by a person; and

(b) results from, or is associated with, the person’s private or domestic use of any copyright material.

132A Presumptions in relation to subsistence and ownership of

copyright

(1) This section applies to a prosecution for an offence against this

Division, except section 132AM, in relation to a work or other

subject matter.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or

container in which the copy is packaged or contained, bears a label

or mark stating the year and place of the first publication, or of the

making, of the work or other subject matter, then that year and

place are presumed to be as stated on the label or mark, unless the

contrary is established.

(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

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particular time, then the person is presumed to have been the owner

of the copyright at the time, unless the contrary is established.

(6) For the purposes of this section, a document purporting to be a

certificate or document referred to in subsection (4) or (5) is, unless

the contrary intention is established, taken to be such a certificate

or document.

132AAA Presumptions relating to computer programs

(1) This section applies to a prosecution for an offence against this

Division, except section 132AM, relating to copyright in a literary

work that is a computer program if:

(a) articles or things embodying all or part of the program have

been supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the articles or things, or their

containers, bore a label or other mark consisting of the letter

“C” in a circle accompanied by a specified year and the name

of a person.

(2) It is presumed that:

(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:

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(a) records embodying all or part of the recording have been

supplied (by sale or otherwise) to the public; and

(b) at the time of the supply, the records or their containers bore

a label or other mark.

(2) If the label or 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

(3) If the label or mark consisted of the letter “P” in a circle

accompanied by a specified year and the name of a person, it is

presumed that:

(a) the recording was first published in the year; and

(b) the person was the owner of copyright in the recording when

and where the records or containers were labelled or marked;

unless the contrary is established.

(4) A presumption about a person under this section does not imply

that the person was:

(a) the only maker of the recording; or

(b) the only owner of copyright in the recording when and where

the records or containers were labelled or marked.

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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

(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.

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(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.

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.

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(3) The Federal Court of Australia has jurisdiction to hear and

determine prosecutions of the following offences against this

Division:

(a) summary offences;

(b) offences of strict liability.

133B Infringement notices

(1) The regulations may make provision enabling a person who is

alleged to have committed an offence of strict liability against this

Division to do both of the following as an alternative to

prosecution:

(a) pay a penalty to the Commonwealth;

(b) forfeit to the Commonwealth:

(i) each article (if any) that is alleged to be an infringing

copy of a work or other subject-matter and that is

alleged to have been involved in the commission of the

offence; and

(ii) each device (if any) that is alleged to have been made to

be used for making an infringing copy of a work or

other subject-matter and that is alleged to have been

involved in the commission of the offence.

Note: Regulations made for this purpose will make provision to the effect

that a prosecution of an alleged offender will be avoided if the alleged

offender both pays a penalty to the Commonwealth and forfeits to the

Commonwealth all relevant articles and devices (if any).

(2) The penalty must equal one-fifth of the maximum fine that a court

could impose on the person as a penalty for that offence.

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Division 6—Miscellaneous

134 Limitation of actions in respect of infringement of copyright

(1) An action shall not be brought for an infringement of copyright or

in respect of the conversion or detention of an infringing copy, or

of a device (including a circumvention device) used or intended to

be used for making infringing copies, after the expiration of six

years from the time when the infringement took place or the

infringing copy or device was made, as the case may be.

(2) An action may not be brought under section 116AN, 116AO,

116AP, 116B, 116C or 116CA in respect of an act done by a

person if more than 6 years have elapsed from the time when the

act was done.

134A Affidavit evidence

(1) Subject to subsection (2), at the trial of a proceeding, being:

(a) an action brought by virtue of this Part; or

(b) a prosecution for an offence against this Act;

evidence that:

(c) at a particular time, copyright subsisted in the work or other

subject-matter to which the proceeding relates; or

(d) at a particular time, copyright in that work or subject-matter

was owned by, or exclusively licensed to, a particular person;

or

(e) at a particular time, copyright in that work or subject-matter

was not owned by, or exclusively licensed to, a particular

person; or

(f) a particular act was done without the licence of the owner of

the copyright, or of the exclusive licensee of the copyright, in

that work or subject-matter;

may be given by affidavit.

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(2) If a party to a proceeding referred to in subsection (1) desires in

good faith that the person who made an affidavit referred to in that

subsection that is proposed to be used in the proceeding be

cross-examined with respect to the matters in the affidavit, the

affidavit may not be used in the proceeding unless the person

appears as a witness for such cross-examination or the court in

which the proceeding is being tried, in its discretion, permits the

affidavit to be used without the person so appearing.

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Section 134B

Division 7—Seizure of imported copies of copyright

material

134B Interpretation

In this Division:

action period, in relation to particular seized copies, means the

period prescribed by the regulations after notice of a claim for

release of the copies is given to the objector under

section 135AED.

claim period, in relation to particular seized copies, means the

period prescribed by the regulations after notice of seizure of the

copies is given to the importer under section 135AC.

Comptroller-General of Customs means the person who is the

Comptroller-General of Customs in accordance with

subsection 11(3) or 14(2) of the Australian Border Force Act 2015.

copy, in relation to copyright material, means:

(a) if the copyright material is a work—an article in which the

work is embodied; or

(b) if the copyright material is a sound recording, or a sound

broadcast as recorded in a sound recording—a record

embodying the sound recording; or

(c) if the copyright material is a cinematograph film or a

television broadcast as recorded in a cinematograph film—an

article in which the visual images or sounds comprising the

film are embodied; or

(d) if the copyright material is a published edition of a work—an

article in which the edition is embodied.

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.

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objector, in relation to particular seized copies, means the person

who gave the notice under subsection 135(2) as a result of the

giving of which the copies were seized.

owner, in relation to the copyright in copyright material, includes

an exclusive licensee of the copyright in the material.

personal information has the same meaning as in the Privacy Act

1988.

seized copies means copies seized under subsection 135(7).

working day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(c) a public holiday in the Australian Capital Territory.

135 Restriction of importation of copies of works etc.

(1) In this section:

(a) a reference to Australia does not include a reference to the

external Territories; and

(b) a reference to importation into Australia does not include a

reference to importation from such a Territory.

(2) A person may give the Comptroller-General of Customs a written

notice stating:

(a) that the person is the owner of the copyright in copyright

material; and

(b) that the person objects to the importation into Australia of

copies of the copyright material to which this section applies.

(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

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person importing the copy, have constituted an infringement of the

copyright in the copyright material.

(5) Unless it is revoked under subsection (6) or declared to be

ineffective under subsection (6A), a notice under subsection (2)

remains in force until:

(a) the end of the period of 4 years commencing on the day on

which the notice was given; or

(b) the end of the period for which the copyright in the copyright

material to which the notice relates is to subsist;

whichever is the earlier.

(6) A notice under subsection (2) may be revoked by written notice

given to the Comptroller-General of Customs by the person who

gave the first-mentioned notice or by a subsequent owner of the

copyright in the copyright material to which the notice relates.

(6A) If the Comptroller-General of Customs believes, on reasonable

grounds, that it is no longer appropriate to give effect to a notice

given under subsection (2), the Comptroller-General of Customs

may, by writing, declare the notice to be ineffective.

Note: Subsection 195B(3) requires the Comptroller-General of Customs to

notify the person who gave the notice of the decision declaring the

notice to be ineffective.

(7) If:

(a) a notice has been given under subsection (2) in respect of

copyright material; and

(b) the notice has not been declared to be ineffective or revoked;

and

(c) a person imports copies of the copyright material to which

this section applies into Australia for the purpose of:

(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

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(iv) by way of trade exhibiting the copies in public; and

(d) the copies are subject to customs control under the Customs

Act 1901;

the Comptroller-General of Customs may seize the copies.

(8) The regulations may make provision for or in relation to:

(a) the forms of notices under this section; and

(b) the times at which, and the manner in which, notices are to be

given; and

(c) the giving of information and evidence to the

Comptroller-General of Customs.

(9) The regulations may contain provisions similar to the provisions of

this Division in relation to the importation into external Territories

(other than importation from Australia or from another such

Territory) of copies of copyright material.

(10) This Division does not apply to the importation into Australia of

copies of copyright material whose importation does not constitute

an infringement of copyright because of section 44A, 44D, 44E,

44F, 112A, 112D or 112DA.

(10A) This Division does not apply to the importation into Australia of

copies of copyright material whose importation does not constitute

an infringement of copyright because of section 44C or 112C.

135AA Decision not to seize unless expenses are covered

(1) Subject to subsection (2), the Comptroller-General of Customs

may decide not to seize the copies under subsection 135(7) unless

he or she has been given by the objector (or by one or more of the

objectors) a written undertaking acceptable to the

Comptroller-General of Customs to repay to the Commonwealth

the expenses of seizing the copies.

(2) The Comptroller-General of Customs may decide not to seize the

copies under subsection 135(7) unless he or she has been given by

the objector (or one or more of the objectors), instead of an

undertaking, security in an amount that the Comptroller-General of

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Customs considers sufficient to repay to the Commonwealth the

expenses of seizing the copies if:

(a) an amount payable under an undertaking given by the

objector (or one or more of the objectors) in relation to other

copies has not been paid in accordance with the undertaking;

and

(b) the Comptroller-General of Customs considers it reasonable

in all the circumstances to require the security.

(3) An undertaking may be withdrawn or varied if the

Comptroller-General of Customs consents in writing to a written

request from the objector or objectors to do so.

(4) In this section:

expenses of seizing the copies means the expenses that may be

incurred by the Commonwealth if the copies were seized.

135AB Secure storage of seized copies

Seized copies must be taken to such secure place as the

Comptroller-General of Customs directs.

135AC Notice of seizure

(1) As soon as is practicable after copies are seized under

subsection 135(7), the Comptroller-General of Customs must give

to the importer and the objector, either personally or by post, a

written notice (the seizure notice) identifying the copies and

stating that the identified copies have been seized.

(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

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(ii) given the Comptroller-General of Customs written

notice of that action.

(3) The seizure notice must also:

(a) set out the claim period for the copies; and

(b) set out the action period for the copies and state that the

action period will begin only if the importer makes a claim

for the release of the copies; and

(c) if the notice is given to the objector—state the name and the

address of the place of business or residence of the importer

(if known); and

(d) if the notice is given to the importer—state the name and the

address of the place of business or residence of:

(i) the objector; or

(ii) if the objector has nominated a person to be the

objector’s agent or representative for the purposes of

this Division—that person.

(8) The Comptroller-General of Customs may, at any time after the

copies are seized, give to the objector:

(a) the name, and the address of the place of business or

residence, of any person or body (whether in or outside

Australia) that made arrangements, on behalf of the importer,

for the copies to be brought to Australia or any information

that the Comptroller-General of Customs has, and believes

on reasonable grounds may help in identifying and locating

such a person or body; and

(b) any information (including personal information) that the

Comptroller-General of Customs has, and believes on

reasonable grounds may be relevant for the purpose of

identifying and locating the importer.

135AD Inspection, release etc. of seized copies

(1) The Comptroller-General of Customs may permit the objector or

the importer to inspect the seized copies.

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(2) If the objector gives the Comptroller-General of Customs the

requisite undertakings, the Comptroller-General of Customs may

permit the objector to remove one or more samples of the seized

copies from the custody of the Comptroller-General of Customs for

inspection by the objector.

(3) If the importer gives the Comptroller-General of Customs the

requisite undertakings, the Comptroller-General of Customs may

permit the importer to remove one or more samples of the seized

copies from the custody of the Comptroller-General of Customs for

inspection by the importer.

(4) The requisite undertakings are undertakings in writing that the

person giving the undertaking will:

(a) return the sample copies to the Comptroller-General of

Customs at a specified time that is satisfactory to the

Comptroller-General of Customs; and

(b) take reasonable care to prevent damage to the sample copies.

(5) If the Comptroller-General of Customs permits inspection of the

seized copies, or the removal of sample copies, by the objector in

accordance with this section, the Commonwealth is not liable to

the importer for any loss or damage suffered by the importer

arising out of:

(a) damage to any of the seized copies incurred during that

inspection; or

(b) anything done by the objector or any other person to, or in

relation to, sample copies removed from the custody of the

Comptroller-General of Customs or any use made by the

objector of such sample copies.

135AE Forfeiture of seized copies by consent

(1) Subject to subsection (2), the importer may, by written notice to

the Comptroller-General of Customs, consent to the seized copies

being forfeited to the Commonwealth.

(2) The notice must be given before any action for infringement of

copyright in relation to the copies is instituted.

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(3) If the importer gives such a notice, the copies are forfeited to the

Commonwealth.

135AEA Claim for release of seized copies

(1) The importer may make a claim to the Comptroller-General of

Customs for the release of seized copies.

(2) The claim must be made before the end of the claim period for the

copies.

(3) The claim must:

(a) be in the form (if any) prescribed by the regulations; and

(b) include the information prescribed by the regulations.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

135AEB Seized copies not claimed are forfeited

(1) Seized copies are forfeited to the Commonwealth if a claim for the

release of the goods is not made within the claim period for the

copies.

(2) However, if the Comptroller-General of Customs allows a late

claim for the copies (see section 135AEC), the copies are taken not

to have been forfeited.

135AEC Late claim for release of seized copies

(1) The Comptroller-General of Customs may allow the importer to

make a claim (the late claim) to the Comptroller-General of

Customs for the release of seized copies after the end of the claim

period for the copies.

(2) The Comptroller-General of Customs may allow the late claim

only if:

(a) an action for infringement of copyright in relation to the

copies has not been instituted; and

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(b) the Comptroller-General of Customs considers it reasonable

in the circumstances; and

(c) the copies have not been disposed of under section 135AI.

135AED Objector to be notified of claim

(1) If the importer makes a claim for the release of seized copies, the

Comptroller-General of Customs must, as soon as practicable, give

notice of the claim to the objector.

(2) The notice:

(a) must be in writing; and

(b) may include any information that the Comptroller-General of

Customs has, and believes on reasonable grounds may be

relevant, for the purpose of identifying and locating either or

both of the following:

(i) the importer of the copies;

(ii) any other person or body (whether in or outside

Australia) that made arrangements for the copies to be

brought to Australia.

135AF Release of seized copies to importer

(1) The Comptroller-General of Customs must release seized copies to

the importer if:

(a) the objector gives written notice to the Comptroller-General

of Customs stating that the objector consents to the release of

the seized copies; and

(b) the copies have not been disposed of under section 135AI.

(2) The Comptroller-General of Customs may release seized copies to

the importer at any time if:

(a) the Comptroller-General of Customs, having regard to

information that has come to his or her knowledge after the

copies were seized, is satisfied that there are no reasonable

grounds for believing that copyright has been infringed by

the importation of the copies; and

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(b) the objector has not brought an action for infringement of

copyright in relation to the copies.

(3) The Comptroller-General of Customs must release seized copies to

the importer if:

(a) the importer has made a claim for the release of the copies;

and

(b) the objector has not, by the end of the action period:

(i) instituted an action for infringement of copyright in

relation to the copies; and

(ii) given the Comptroller-General of Customs written

notice of that action.

(4) The Comptroller-General of Customs must release seized copies to

the importer if:

(a) the importer has made a claim for the release of the copies;

and

(b) an action for infringement of copyright has been instituted in

relation to the copies; and

(c) at the end of a period of 20 working days commencing on the

day on which the action was instituted, there is not in force

an order of the court in which the action was instituted

preventing the release of the copies.

(5) This section has effect subject to section 135AH.

135AFA Copies released but not collected are forfeited

Seized copies are forfeited to the Commonwealth if:

(a) the copies are released by the Comptroller-General of

Customs to the importer; and

(b) the importer does not take possession of the copies within 90

days of the release.

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Division 7 Seizure of imported copies of copyright material

Section 135AG

135AG Provision relating to actions for infringement of copyright

(1) In this section, infringement action means an action for an

infringement of copyright constituted by the importation of seized

copies.

(2) The court in which an infringement action is pending may, on the

application of a person having a sufficient interest in the

subject-matter of the action, allow the person to be joined as a

defendant to the action.

(3) The Comptroller-General of Customs is entitled to be heard on the

hearing of an infringement action.

(4) In addition to any relief that may be granted apart from this

section, the court may:

(a) at any time, order that the seized copies be released to the

importer subject to such conditions (if any) as the court

thinks fit; or

(b) order that the seized copies not be released to the importer

before the end of a specified period; or

(c) order that the goods be forfeited to the Commonwealth.

(5) A court may not make an order under paragraph (4)(a) if it is

satisfied that the Comptroller-General of Customs is required or

permitted, under any other law of the Commonwealth, to retain

control of the seized copies.

(6) The Comptroller-General of Customs must comply with an order

made under subsection (4).

(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

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that loss or damage that is attributable to a period beginning on or

after the day on which the action was commenced.

135AH Retention of control of seized copies

In spite of section 135AF, in a case in which no order has been

made under subsection 135AG(4) in relation to seized copies, the

Comptroller-General of Customs is not obliged to release or

dispose of the copies if the Comptroller-General of Customs is

required or permitted, under any other law of the Commonwealth,

to retain control of the copies.

135AI Disposal of seized copies forfeited to the Commonwealth

(1) Seized copies forfeited to the Commonwealth must be disposed of:

(a) in the manner prescribed by the regulations; or

(b) if no manner of disposal is so prescribed—as the

Comptroller-General of Customs directs.

(2) However, copies forfeited under section 135AEB must not be

disposed of until 30 days after their forfeiture.

(3) Subsection (1) does not require the disposal of copies that are

required in relation to an action for infringement of copyright.

Right of compensation in certain circumstances

(4) Despite the forfeiture of seized copies to the Commonwealth, a

person may apply to a court of competent jurisdiction under this

section for compensation for the disposal of the copies.

(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

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(ii) that there were circumstances providing a reasonable

excuse for the failure to make a claim for the release of

the copies.

(6) If a right to compensation exists under subsection (4), the court

must order the payment by the Commonwealth to the person of an

amount equal to the market value of the copies at the time of their

disposal.

135AJ Failure to meet Commonwealth’s expenses of seizure

(1) If an amount payable under an undertaking in relation to copies

covered by a notice given under section 135 is not paid in

accordance with the undertaking, the Comptroller-General of

Customs may decide not to seize copies covered by the notice until

the amount owing is paid.

(2) An amount not paid under an undertaking:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

(3) If the amount paid under an undertaking in relation to copies

covered by a notice given under section 135 is in accordance with

the undertaking but is not sufficient to meet the expenses incurred

by the Commonwealth as a result of the action taken by the

Comptroller-General of Customs under this Division because of

the notice, the amount of the difference between those expenses

and the amount paid:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

(4) If security given under subsection 135AA(2) by the objector or

objectors who gave notice under section 135 is not sufficient to

meet the expenses incurred by the Commonwealth as a result of the

action taken by the Comptroller-General of Customs under this

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Division because of the notice, the amount of the difference

between those expenses and the amount of security:

(a) is a debt due by the objector, or by the objectors jointly or

each of them separately, to the Commonwealth; and

(b) may be recovered by an action taken in a court of competent

jurisdiction.

135AK Immunity of the Commonwealth

The Commonwealth is not liable for any loss or damage suffered

by a person:

(a) because of the seizure of copies, or the failure of the

Comptroller-General of Customs to seize copies, under this

Division; or

(b) because of the release of any seized copies.

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Part VAA Unauthorised access to encoded broadcasts

Division 1 Preliminary

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.

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Section 135AM

subscription broadcast means a broadcast that is encrypted and is

made available by the broadcaster only to persons authorised by

the broadcaster to access the broadcast in intelligible form.

unauthorised decoder means a device (including a computer

program) designed or adapted to decrypt, or facilitate the

decryption of, an encoded broadcast without the authorisation of

the broadcaster.

135AM Counterclaim

In the application of this Part in relation to a counterclaim,

references to the defendant are to be read as references to the

plaintiff.

135AN This Part does not apply to law enforcement activity etc.

This Part does not apply in relation to anything lawfully done for

the purposes of law enforcement or national security by or on

behalf of:

(a) the Commonwealth or a State or Territory; or

(b) an authority of the Commonwealth or of a State or Territory.

Note: A defendant in proceedings for an offence against this Part bears an

evidential burden in relation to the matter in this section (see

subsection 13.3(3) of the Criminal Code).

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Part VAA Unauthorised access to encoded broadcasts

Division 2 Actions

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

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(iii) exhibiting the unauthorised decoder in public by way of

trade or with the intention of obtaining a commercial

advantage or profit; or

(iv) distributing the unauthorised decoder for the purpose of

trade, or for a purpose that will prejudicially affect a

channel provider or anyone with an interest in the

copyright in either an encoded broadcast or the content

of an encoded broadcast;

(g) making the unauthorised decoder available online to an

extent that will prejudicially affect a channel provider or

anyone with an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast.

(3) The action may be brought only within 6 years of the act.

(4) In an action under this section it must be presumed that the

defendant knew, or ought reasonably to have known, that the

unauthorised decoder would be used as described in

paragraph (1)(b), unless the defendant proves otherwise.

Subdivision B—Actions relating to decoders for subscription

broadcasts

135AOB Making decoder available online

(1) This section permits an action to be brought against a person if:

(a) a decoder was supplied (to the person or someone else) by, or

with the authorisation of, the broadcaster (the supplying

broadcaster) of a subscription broadcast; and

(b) the person makes the decoder available online to an extent

that will prejudicially affect any of the following persons (the

affected parties):

(i) anyone with an interest in the copyright in a

subscription broadcast by the supplying broadcaster;

(ii) anyone with an interest in the copyright in the content of

a subscription broadcast by the supplying broadcaster;

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(iii) a channel provider who supplies the supplying

broadcaster with a channel for a subscription broadcast;

and

(c) the person knows, or ought reasonably to know, that the

decoder will be used to enable someone to gain access to a

subscription broadcast without the authorisation of the

broadcaster.

(2) The action may be brought by any of the affected parties but only

within 6 years of the person first making the decoder available

online as described in paragraph (1)(b).

(3) In an action under this section it must be presumed that the

defendant knew, or ought reasonably to have known, that the

decoder would be used as described in paragraph (1)(c), unless the

defendant proves otherwise.

Subdivision C—Actions for unauthorised access to encoded

broadcasts

135AOC Causing unauthorised access

(1) This section permits an action to be brought against a person if:

(a) without the authorisation of the broadcaster of an encoded

broadcast, the person does an act causing the person or

anyone else to gain access in intelligible form to the

broadcast or sounds or images from the broadcast; and

(b) the access will prejudicially affect any of the following

persons (the affected parties):

(i) anyone with an interest in the copyright in an encoded

broadcast by the broadcaster;

(ii) anyone with an interest in the copyright in the content of

an encoded broadcast by the broadcaster;

(iii) a channel provider who supplies the broadcaster with a

channel for an encoded broadcast; and

(c) the person knows, or ought reasonably to know, that the

access is not authorised by the broadcaster.

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Note: Paragraph (a)—examples of causing a person to gain access to the

broadcast or sounds or images from the broadcast include:

(a) using, or authorising the use of, a decoder so the person gains access to the broadcast, sounds or images; and

(b) distributing, or authorising the distribution of, the sounds or images to the person after they are obtained from the broadcast using a decoder.

(2) The action may be brought by any of the affected parties but only

within 6 years of the act.

(3) Subsection (1) does not apply to:

(a) an act consisting merely of one or more of the following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) listening to sounds in or from the broadcast and/or

seeing images in or from the broadcast;

(iii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

the household and the broadcaster about authorisation of

private access to the broadcast; or

(b) access to the sounds or images gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (b)—the making of such a film, recording or copy may be

an infringement of copyright: see paragraphs 87(a) and (b) and

section 101.

135AOD Unauthorised commercial use of subscription broadcast

(1) This section permits an action to be brought against a person if:

(a) without the authorisation of the broadcaster of a subscription

broadcast, the person uses the broadcast, or sounds or images

from the broadcast, by way of trade or with the intention of

obtaining a commercial advantage or profit; and

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(b) the use prejudicially affects any of the following persons (the

affected parties):

(i) anyone with an interest in the copyright in the

broadcast;

(ii) anyone with an interest in the copyright in any content

of the broadcast;

(iii) the channel provider who supplied the broadcaster with

the channel for the broadcast; and

(c) the person knows, or ought reasonably to know, that the use

is not authorised by the broadcaster.

(2) The action may be brought by any of the affected parties but only

within 6 years of the use.

Subdivision D—Court orders

135AOE Relief

(1) The relief that a court may grant in an action under this Division

includes an injunction (subject to the terms, if any, the court thinks

fit) and either damages or an account of profits.

(2) In assessing damages, the court may award such additional

damages as it considers appropriate, having regard to:

(a) the flagrancy with which the defendant did any of the

relevant acts; and

(b) the need to deter acts similar to the relevant acts; and

(c) any benefit shown in an action under Subdivision A or B to

have accrued to the defendant as a result of making or

dealing with the decoder; and

(d) any benefit shown in an action under Subdivision C to have

accrued to the defendant or any trade or business carried on

by, or in association with, the defendant; and

(e) all other relevant matters.

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Section 135AOF

135AOF Destruction of decoder

In an action under this Division, the court may order that the

relevant decoder (if any) be destroyed or dealt with as specified in

the order.

Subdivision E—Jurisdiction and appeals

135AP Exercise of jurisdiction

The jurisdiction of the Supreme Court of a State or Territory in an

action under the Part is to be exercised by a single Judge of the

Court.

135AQ Appeals

(1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) under this Part is final and

conclusive.

(2) An appeal lies from a decision of a court of a State or Territory

under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

135AR Jurisdiction of Federal Court of Australia

Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under this Part.

135AS Jurisdiction of Federal Circuit Court of Australia

Jurisdiction is conferred on the Federal Circuit Court of Australia

with respect to actions under this Part.

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Section 135ASA

Division 3—Offences

Subdivision A—Offences

135ASA Making unauthorised decoder

(1) A person commits an offence if:

(a) the person makes an unauthorised decoder; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASB Selling or hiring unauthorised decoder

(1) A person commits an offence if:

(a) the person sells or lets for hire an unauthorised decoder; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASC Offering unauthorised decoder for sale or hire

(1) A person commits an offence if:

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(a) with the intention of obtaining a commercial advantage or

profit, the person offers or exposes an unauthorised decoder

for sale or hire; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) A person commits an offence if:

(a) the person offers or exposes an unauthorised decoder for sale

or hire; and

(b) the offer or exposure is by way of trade; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASD Commercially exhibiting unauthorised decoder in public

(1) A person commits an offence if:

(a) the person exhibits an unauthorised decoder in public with

the intention of obtaining a commercial advantage or profit;

and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) A person commits an offence if:

(a) the person exhibits an unauthorised decoder in public; and

(b) the exhibition is by way of trade; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

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(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASE Importing unauthorised decoder commercially

(1) A person commits an offence if:

(a) the person imports an unauthorised decoder into Australia

with the intention of doing any of the following with the

unauthorised decoder:

(i) selling the unauthorised decoder;

(ii) letting the unauthorised decoder for hire;

(iii) offering or exposing the unauthorised decoder for sale

or hire, by way of trade or to obtain a commercial

advantage or profit;

(iv) exhibiting the unauthorised decoder in public by way of

trade or to obtain a commercial advantage or profit;

(v) distributing the unauthorised decoder for trade;

(vi) distributing the unauthorised decoder to obtain a

commercial advantage or profit;

(vii) distributing the unauthorised decoder in preparation for,

or in the course of, engaging in an activity that will

prejudicially affect a channel provider or anyone with

an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

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Section 135ASF

135ASF Distributing unauthorised decoder

(1) A person commits an offence if:

(a) the person distributes (including by exporting from Australia)

an unauthorised decoder with the intention of:

(i) trading; or

(ii) obtaining a commercial advantage or profit; or

(iii) engaging in any other activity that will prejudicially

affect a channel provider or anyone with an interest in

the copyright in either an encoded broadcast or the

content of an encoded broadcast; and

(b) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASG Making unauthorised decoder available online

(1) A person commits an offence if:

(a) the person makes an unauthorised decoder available online;

and

(b) the unauthorised decoder is made available online to an

extent that will prejudicially affect a channel provider or

anyone with an interest in the copyright in either an encoded

broadcast or the content of an encoded broadcast; and

(c) the unauthorised decoder will be used to enable a person to

gain access to an encoded broadcast without the authorisation

of the broadcaster.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

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Section 135ASH

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASH Making decoder available online for subscription broadcast

(1) A person commits an offence if:

(a) a decoder was supplied (to the person or anyone else) by, or

with the authorisation of, the broadcaster of a subscription

broadcast; and

(b) the person makes the decoder available online; and

(c) the decoder is made available online without the

authorisation of the broadcaster; and

(d) the decoder will be used to enable a person to gain access to a

subscription broadcast without the authorisation of the

broadcaster; and

(e) the decoder is made available online to an extent that will

prejudicially affect any of the following:

(i) anyone with an interest in the copyright in a

subscription broadcast by the broadcaster;

(ii) anyone with an interest in the copyright in the content of

a subscription broadcast by the broadcaster;

(iii) a channel provider who supplies the broadcaster with a

channel for a subscription broadcast.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

135ASI Unauthorised access to subscription broadcast etc.

A person commits an offence if:

(a) the person does an act; and

(b) the act (either alone or in conjunction with other acts) results

in the person gaining access in intelligible form to a

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subscription broadcast or sounds or images from a

subscription broadcast; and

(c) the access is not authorised by the broadcaster and the person

knows that; and

(d) the act does not consist merely of one or more of the

following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) listening to sounds in or from the broadcast and/or

seeing images in or from the broadcast;

(iii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

the household and the broadcaster about authorisation of

private access to the broadcast; and

(e) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: The making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.

Penalty: 60 penalty units.

135ASJ Causing unauthorised access to encoded broadcast etc.

(1) A person commits an offence if:

(a) the person does an act; and

(b) the act is done by way of trade; and

(c) the act results in the person or anyone else gaining access in

intelligible form to an encoded broadcast or sounds or images

from an encoded broadcast; and

(d) the access is not authorised by the broadcaster; and

(e) the access to the sounds or images is not gained from:

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(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be

an infringement of copyright: see paragraphs 87(a) and (b) and

section 101.

(2) A person commits an offence if:

(a) the person does an act with the intention of obtaining a

commercial advantage or profit; and

(b) the act results in the person or anyone else gaining access in

intelligible form to an encoded broadcast or sounds or images

from an encoded broadcast; and

(c) the access is not authorised by the broadcaster; and

(d) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be

an infringement of copyright: see paragraphs 87(a) and (b) and

section 101.

(3) A person commits an offence if:

(a) the person does an act; and

(b) the act results in anyone else gaining access in intelligible

form to an encoded broadcast or sounds or images from an

encoded broadcast; and

(c) the access is not authorised by the broadcaster and the person

knows that; and

(d) the act does not consist merely of one or more of the

following:

(i) starting the playing of sounds or images in or from the

broadcast on a device (for example by switching the

device on);

(ii) distributing the sounds or images within a single

dwelling that is occupied by a single household and is

the subject of an arrangement involving a member of

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Section 135ATA

the household and the broadcaster about authorisation of

private access to the broadcast; and

(e) the access to the sounds or images is not gained from:

(i) a cinematograph film, or sound recording, made of the

encoded broadcast; or

(ii) a copy of such a film or recording.

Note: Paragraph (e)—the making of such a film, recording or copy may be

an infringement of copyright: see paragraphs 87(a) and (b) and

section 101.

(4) An offence against subsection (1), (2) or (3) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Subdivision B—Prosecutions

135ATA Courts in which offences may be prosecuted

(1) Prosecutions for offences against this Division may be brought in

the Federal Court of Australia or in any other court of competent

jurisdiction.

(2) However, the Federal Court of Australia does not have jurisdiction

to hear or determine prosecutions for indictable offences, despite

section 15C of the Acts Interpretation Act 1901.

(3) The Federal Court of Australia has jurisdiction to hear and

determine prosecutions of summary offences against this Division.

(4) Also, section 4J (except subsection 4J(2)) of the Crimes Act 1914

applies in relation to the Federal Court of Australia and an

indictable offence against this Division in the way in which that

section would apply if that court were a court of summary

jurisdiction.

Note: Section 4J of the Crimes Act 1914 lets a court of summary jurisdiction

try indictable offences in certain circumstances and subject to limits

on the penalties the court can impose.

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Division 3 Offences

Section 135AU

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 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.

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Division 1 Preliminary

Section 135ZZJ

135ZZJ Operation of collecting society rules

This Part applies to a collecting society despite anything in the

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

far as they can operate together with this Part.

135ZZJA Application of Part

(1) This Part does not apply in relation to a retransmission of a

free-to-air broadcast if the retransmission takes place over the

internet.

(2) This Part does not apply in relation to a retransmission if:

(a) the retransmission is a re-broadcast by a satellite BSA

licensee; and

(b) subsection 135ZZZI(1) or (2) applies to the re-broadcast.

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Retransmission of free-to-air broadcasts Division 2

Section 135ZZK

Division 2—Retransmission of free-to-air broadcasts

135ZZK Retransmission of free-to-air broadcasts

(1) The copyright in a work, sound recording or cinematograph film

included in a free-to-air broadcast is not infringed by the

retransmission of the broadcast if:

(a) a remuneration notice given by, or on behalf of, the

retransmitter to the relevant collecting society is in force; and

(b) the free-to-air broadcast was made by a broadcaster specified

in the remuneration notice; and

(c) the retransmitter complies with section 135ZZN.

(2) The copyright in a work, sound recording or cinematograph film

included in a free-to-air broadcast is not infringed by the making of

a copy of the broadcast for the sole purpose of enabling a delayed

retransmission of the broadcast to be made.

(3) Subsection (2) does not apply if the retransmission of the broadcast

would infringe the copyright in the broadcast.

(4) If a copy of a broadcast made for the purpose referred to in

subsection (2) is not destroyed within 7 days after it is made,

subsection (2) does not apply, and is taken never to have applied,

in relation to the making of the copy.

(5) In this section, a reference to the making of a copy of a free-to-air

broadcast is a reference to making a cinematograph film or sound

recording of the broadcast, or a copy of such a film or sound

recording.

135ZZL Remuneration notices

(1) A retransmitter may, by notice in writing given to the relevant

collecting society by, or on behalf of, the retransmitter, undertake

to pay equitable remuneration to the society for retransmissions of

free-to-air broadcasts by specified broadcasters, being

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Division 2 Retransmission of free-to-air broadcasts

Section 135ZZM

retransmissions made by, or on behalf of, the retransmitter while

the notice is in force.

(2) A remuneration notice must specify that the amount of equitable

remuneration is to be assessed on the basis of the records to be kept

by the retransmitter under section 135ZZN.

(3) A remuneration notice comes into force on the day on which it is

given to the collecting society, or on such earlier day as is specified

in the notice, and remains in force until it is revoked.

135ZZM Amount of equitable remuneration

(1) If a retransmitter gives a remuneration notice to a collecting

society, the amount of equitable remuneration payable to the

collecting society for each retransmission made by, or on behalf of,

the retransmitter while the notice is in force is the amount

determined by agreement between the retransmitter and the

collecting society or, failing such agreement, by the Copyright

Tribunal on application made by either of them.

(2) If a determination has been made by the Copyright Tribunal under

subsection (1), either the retransmitter or the collecting society

may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination payable to the collecting

society by the retransmitter for retransmissions made by, or on

behalf of, the retransmitter.

(3) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different classes of works, sound recordings or

cinematograph films included in retransmissions.

135ZZN Record system

(1) If a remuneration notice is given to a collecting society by, or on

behalf of, a retransmitter, the retransmitter must establish and

maintain a record system.

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(2) The record system must provide for a record to be kept of the title

of each program included in each retransmission made by, or on

behalf of, the retransmitter of each broadcast made by each

broadcaster specified in the remuneration notice.

(3) Subject to subsection (2), the record system must be determined by

agreement between the retransmitter and the collecting society or,

failing such agreement, by the Copyright Tribunal on application

made by either of them.

135ZZP Inspection of records etc.

(1) If a remuneration notice is or has been in force, the collecting

society to which it was given may, in writing, notify the relevant

retransmitter that the society wishes, on a day specified in the

notice, being an ordinary working day of the retransmitter specified

in the notice, not earlier than 7 days after the day on which the

notice is given, to do such of the following things as are specified

in the notice:

(a) assess the number of retransmissions carried out at the

premises of the retransmitter;

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

relate to the making of retransmissions in reliance on

section 135ZZK;

(c) inspect such other records held at those premises as are

relevant to the assessment of the amount of equitable

remuneration payable by the retransmitter to the society.

(2) Subject to section 135ZZQ, if a collecting society gives a notice, a

person authorised in writing by the society may, during the

ordinary working hours of the retransmitter on the day specified in

the notice (but not before 10 am or after 3 pm), carry out the

assessment, or inspect the records, to which the notice relates and,

for that purpose, may enter the premises of the retransmitter.

(3) A retransmitter must take all reasonable precautions, and exercise

reasonable diligence, to ensure that a person referred to in

subsection (2) who attends the premises of the retransmitter for the

purpose of exercising the powers conferred by that subsection is

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provided with all reasonable and necessary facilities and assistance

for the effective exercise of those powers.

(4) A retransmitter who contravenes subsection (3) commits an

offence punishable, on conviction, by a fine not exceeding 10

penalty units.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine. See subsection 4B(3) of the Crimes Act 1914.

135ZZQ Identity cards

(1) The chief executive officer (however described) of a collecting

society must issue an identity card in the prescribed form to each

person authorised by the society for the purposes of

subsection 135ZZP(2). The identity card must contain a recent

photograph of the authorised person.

(2) If an authorised person who attends or enters premises for the

purpose of exercising powers conferred by subsection 135ZZP(2)

fails to produce his or her identity card when asked to do so by a

person apparently in charge of the premises, the authorised person

must not enter or remain on the premises or exercise any other

powers under subsection 135ZZP(2) at the premises.

(3) A person commits an offence punishable on conviction by a fine

not exceeding 1 penalty unit if:

(a) the person has been issued with an identity card; and

(b) the person stops being an authorised person; and

(c) the person does not, immediately after he or she stops being

an authorised person, return the identity card to the relevant

collecting society.

(4) An authorised person must carry his or her identity card at all times

when exercising powers under subsection 135ZZP(2).

135ZZR Revocation of remuneration notice

A remuneration notice may be revoked at any time by the relevant

retransmitter by notice in writing given to the collecting society to

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which the remuneration notice was given, and the revocation takes

effect at the end of 3 months after the date of the notice, or on such

later day as is specified in it.

135ZZS Request for payment of equitable remuneration

(1) Subject to this section, where a remuneration notice is or has been

in force, the collecting society to which the notice was given may,

by notice in writing given to the relevant retransmitter, request the

retransmitter to pay to the society, within a reasonable time after

the date of the notice, the amount of equitable remuneration

specified in the notice, being an amount payable under

section 135ZZM for retransmissions made by, or on behalf of, the

retransmitter while the remuneration notice is or was in force.

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

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

retransmitter by the collecting society in the Federal Court of

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

to the society.

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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:

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

collecting society for that class of copyright owners on the

day on which the subsequent declaration is made; and

(b) any remuneration notice given to that collecting society

ceases to be in force to the extent to which it relates to

relevant copyright owners included in that class of copyright

owners.

(3) The Minister and the Copyright Tribunal must not declare a body

to be a collecting society unless:

(a) it is a company limited by guarantee and incorporated under

a law in force in a State or Territory relating to companies;

and

(b) all persons who are included in a class of relevant copyright

owners to be specified in the declaration, or their agents, are

entitled to become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

being provisions necessary to ensure that the interests of

members of the collecting society who are relevant copyright

owners, or their agents, are protected adequately, including,

in particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable under section 135ZZM; and

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

society out of amounts collected by it; and

(iii) the distribution of amounts collected by the collecting

society; and

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

for relevant copyright owners who are not its members;

and

(v) access to records of the collecting society by its

members.

(4) If the Minister or the Copyright Tribunal has declared a body to be

the collecting society for a specified class of copyright owners, the

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Minister and the Copyright Tribunal may refuse to declare another

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

unless satisfied that to do so would be in the interests of those

copyright owners, having regard to the number of members of the

first-mentioned society, the scope of its activities and such other

considerations as are relevant.

135ZZU Revocation of declaration

(1) This section applies if the Minister is satisfied that a body declared

as a collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant copyright

owners, or their agents; or

(c) has altered its rules so that they no longer comply with

paragraphs 135ZZT(3)(c) and (d); or

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

with section 135ZZV or 135ZZW.

(2) The Minister may:

(a) by notice in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153Q sets out the procedure of the Copyright Tribunal in

dealing with the reference.

135ZZV Annual report and accounts

(1) A collecting society must, as soon as practicable after the end of

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

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(2) The Minister must cause a copy of the report sent to the Minister

under subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

(3) A collecting society must keep accounting records correctly

recording and explaining the transactions of the society (including

any transactions as trustee) and the financial position of the

society.

(4) The accounting records must be kept in such a manner as will

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

time to time and those accounts to be conveniently and properly

audited.

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

each financial year, cause its accounts to be audited by an auditor

who is not a member of the society, and must send to the Minister

a copy of its accounts as so audited.

(6) A collecting society must give its members reasonable access to

copies of all reports and audited accounts prepared by it under this

section.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the law under which it is incorporated.

135ZZW Amendment of rules

A collecting society must, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out the effect of the alteration and the reasons

why it was made.

135ZZWA Applying to Tribunal for review of distribution

arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

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Section 135ZZWA

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153R varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal’s order has effect as if it had

been adopted in accordance with the collecting society’s rules, but

does not affect a distribution started before the order was made.

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Interim retransmissions Division 4

Section 135ZZX

Division 4—Interim retransmissions

135ZZX Appointment of notice holder

The Minister may, by notice in the Gazette, appoint a person to be

the notice holder for the purposes of this Division.

135ZZY Retransmitting before declaration of collecting society

The copyright in any work, sound recording or cinematograph film

included in a retransmission of a free-to-air broadcast is not

infringed by the making of the retransmission if:

(a) at the time the retransmission is made, a collecting society

has not been declared; and

(b) a notice given by the retransmitter by whom, or on whose

behalf, the retransmission was made to the notice holder

under subsection 135ZZZ(1) is in force; and

(c) the retransmitter complies with section 135ZZN.

135ZZZ Notices by retransmitters

(1) A retransmitter may at any time before the declaration of the first

collecting society, by notice in writing given to the notice holder

by, or on behalf of, the retransmitter, undertake to pay equitable

remuneration to a collecting society, when it is declared, for

retransmissions made by, or on behalf of, the retransmitter while

the notice is in force.

(2) A notice must specify that the amount of equitable remuneration is

to be assessed on the basis of the records to be kept by the

retransmitter under section 135ZZN.

(3) A notice comes into force on the day on which it is given to the

notice holder, or on such later day as is specified in the notice, and

remains in force until it is revoked.

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Section 135ZZZA

(4) A notice may be revoked at any time by the retransmitter by notice

in writing given to the notice holder, and the revocation takes

effect on the date of the notice of revocation or on such later date

as is specified in it.

135ZZZA Record keeping requirements

If a retransmitter gives a notice to the notice holder under

section 135ZZZ, sections 135ZZM and 135ZZN apply as if:

(a) references to a collecting society were references to the

notice holder; and

(b) references to a remuneration notice were references to a

notice under section 135ZZZ.

135ZZZB Effect of declaration of collecting society

(1) If:

(a) as a result of the declaration of one or more collecting

societies, there is a society for all relevant copyright owners;

and

(b) a notice under section 135ZZZ was in force immediately

before the day on which the declaration came into force;

then, on and after that day, the notice ceases to have effect as such

a notice, but is taken, for the purposes of this Part, to be a

remuneration notice that:

(c) was given by the relevant retransmitter to the collecting

society, or to each of the collecting societies, as the case may

be; and

(d) came into force on the same day as the notice came into

force.

(2) If:

(a) one or more collecting societies are declared for one or more,

but not for all, classes of relevant copyright owners; and

(b) a notice was in force immediately before the day on which

the declaration came into force;

then, on and after that day:

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(c) the notice ceases to have effect as such a notice in relation to

the relevant copyright owners in the class or classes of

copyright owners for whom a collecting society is declared,

but is taken, for the purposes of this Part, to be a

remuneration notice that:

(i) was given by the relevant retransmitter to the collecting

society or to each of the collecting societies, as the case

may be; and

(ii) came into force on the same day as the notice came into

force; and

(d) the notice continues to have effect as such a notice in relation

to all other relevant copyright owners.

(3) When a notice is, under this section, taken to be a remuneration

notice, the relevant retransmitter must cause copies of all records

made under section 135ZZN on or after the day on which the

notice is taken to have come into force to be sent to the relevant

collecting society within 21 days after the declaration of the

collecting society.

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Division 5 Miscellaneous

Section 135ZZZC

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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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.

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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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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

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Section 135ZZZI

(d) any of the following conditions is satisfied:

(i) there is an agreement in force between the satellite BSA

licensee and the owner of the copyright in the broadcast

of the eligible program as to the amount payable by the

satellite BSA licensee to the owner of the copyright for

the re-broadcast of eligible programs during a particular

period;

(ii) if there is no agreement—there is in force a

determination of the Copyright Tribunal under

section 153RA of the amount payable by the satellite

BSA licensee to the owner of the copyright in the

broadcast of the eligible program for the re-broadcast of

eligible programs during a particular period;

(iii) if there is no agreement or determination—the satellite

BSA licensee has given the owner of the copyright in

the broadcast of the eligible program a written

undertaking to pay to the owner of the copyright such

amount as is determined by the Copyright Tribunal

under section 153RA for the re-broadcast of eligible

programs during a particular period; and

(e) the eligible program is re-broadcast by the satellite BSA

licensee during the period mentioned in whichever of

subparagraphs (d)(i), (ii) or (iii) applies.

Making a copy for the purpose of a re-broadcast

(3) The copyright in a work, sound recording or cinematograph film

included in a broadcast of an eligible program is not infringed by

the making of a copy of the eligible program if:

(a) the sole purpose of making the copy is to enable a

re-broadcast of the eligible program at a later time; and

(b) subsection (1) would apply to the re-broadcast of the eligible

program at the later time.

(4) The copyright in a broadcast of an eligible program is not infringed

by the making of a copy of the eligible program if:

(a) the sole purpose of making the copy is to enable a

re-broadcast of the eligible program at a later time; and

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Section 135ZZZJ

(b) subsection (2) would apply to the re-broadcast of the eligible

program at the later time.

(5) If:

(a) a copy of an eligible program is made for a purpose referred

to in subsection (3) or (4); and

(b) under a law of the Commonwealth, the satellite BSA licensee

is required to retain the copy for a period longer than 7 days

after the copy is made; and

(c) the copy is not destroyed as soon as practicable after the end

of that period;

subsection (3) or (4), as the case requires, does not apply, and is

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

(5A) If:

(a) a copy of an eligible program is made for a purpose referred

to in subsection (3) or (4); and

(b) subsection (5) does not apply; and

(c) the copy is not destroyed within 7 days after it is made;

subsection (3) or (4), as the case requires, does not apply, and is

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

(6) In this section, a reference to the making of a copy of an eligible

program is a reference to making a cinematograph film or sound

recording of the broadcast of the eligible program, or a copy of

such a film or sound recording.

135ZZZJ Remuneration notices

(1) A satellite BSA licensee may, by written notice given to the

relevant collecting society, undertake to pay equitable

remuneration to the society for re-broadcasts of eligible programs

broadcast by specified original broadcasters, where the eligible

programs are re-broadcast by the satellite BSA licensee while the

notice is in force.

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Section 135ZZZK

(2) A remuneration notice must specify that the amount of equitable

remuneration is to be assessed on the basis of the records to be kept

by the satellite BSA licensee under section 135ZZZL.

(3) A remuneration notice comes into force on:

(a) the day on which it is given to the collecting society; or

(b) such earlier day as is specified in the notice;

and remains in force until it is revoked.

135ZZZK Amount of equitable remuneration

(1) If a satellite BSA licensee gives a remuneration notice to a

collecting society, the amount of equitable remuneration payable to

the collecting society for re-broadcasts of eligible programs by the

satellite BSA licensee while the notice is in force is the amount:

(a) determined by agreement between the satellite BSA licensee

and the collecting society; or

(b) failing such agreement—determined by the Copyright

Tribunal on application made by either of them.

(2) If a determination has been made by the Copyright Tribunal under

subsection (1), either:

(a) the satellite BSA licensee; or

(b) the collecting society;

may, at any time after 12 months from the day on which the

determination was made, apply to the Tribunal under that

subsection for a new determination of amounts payable to the

collecting society by the satellite BSA licensee for re-broadcasts of

eligible programs by the satellite BSA licensee.

(3) For the purposes of subsection (1), different amounts may be

determined (whether by agreement or by the Copyright Tribunal)

in relation to different classes of:

(a) works; or

(b) sound recordings; or

(c) cinematograph films;

included in re-broadcasts.

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Re-broadcasts by satellite BSA licensees Division 2

Section 135ZZZL

135ZZZL Record system

(1) If a remuneration notice is given to a collecting society by a

satellite BSA licensee, the satellite BSA licensee must establish

and maintain a record system.

(2) The record system must provide:

(a) for a record to be kept of the title of each eligible program

that is:

(i) broadcast by an original broadcaster specified in the

remuneration notice; and

(ii) re-broadcast by the satellite BSA licensee; and

(b) for the collecting society to have access to such a record.

(3) The record system must be:

(a) determined by agreement between the satellite BSA licensee

and the collecting society; or

(b) failing such agreement—determined by the Copyright

Tribunal on application made by either of them.

(4) Subsection (3) has effect subject to subsection (2).

135ZZZM Revocation of remuneration notice

(1) A remuneration notice may be revoked at any time by the relevant

satellite BSA licensee by written notice given to the collecting

society to which the remuneration notice was given.

(2) The revocation takes effect:

(a) at the end of 3 months after the date of the notice; or

(b) on such later day as is specified in the notice.

135ZZZN Request for payment of equitable remuneration

(1) If a remuneration notice is or has been in force, the collecting

society to which the notice was given may, by written notice given

to the relevant satellite BSA licensee, request the satellite BSA

licensee to pay to the society, within a reasonable time after the

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Section 135ZZZN

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

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(b) another body is subsequently declared to be the collecting

society for that class of copyright owners:

then:

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

collecting society for that class of copyright owners on the

day on which the subsequent declaration is made; and

(d) any remuneration notice given to that collecting society

ceases to be in force to the extent to which it relates to

relevant copyright owners included in that class of copyright

owners.

(7) The Minister and the Copyright Tribunal must not declare a body

to be a collecting society unless:

(a) it is:

(i) registered as a company under Part 2A.2 of the

Corporations Act 2001; and

(ii) a company limited by guarantee; and

(b) all persons who are included in a class of relevant copyright

owners to be specified in the declaration, or their agents, are

entitled to become its members; and

(c) its rules prohibit the payment of dividends to its members;

and

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

where the provisions are necessary to ensure that the interests

of members of the collecting society who are relevant

copyright owners, or their agents, are protected adequately,

including, in particular, provisions about:

(i) the collection of amounts of equitable remuneration

payable under section 135ZZZK; and

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

society out of amounts collected by it; and

(iii) the distribution of amounts collected by the collecting

society; and

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

for relevant copyright owners who are not its members;

and

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(v) access to records of the collecting society by its

members.

(8) If the Minister or the Copyright Tribunal has declared a body to be

the collecting society for a specified class of copyright owners, the

Minister and the Copyright Tribunal may refuse to declare another

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

unless satisfied that to do so would be in the interests of those

copyright owners, having regard to:

(a) the number of members of the first-mentioned society; and

(b) the scope of its activities; and

(c) such other considerations as are relevant.

135ZZZP Revocation of declaration

(1) This section applies if the Minister is satisfied that a body declared

as a collecting society:

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

(b) is not acting in accordance with its rules or in the best

interests of those of its members who are relevant copyright

owners, or their agents; or

(c) has altered its rules so that they no longer comply with

paragraphs 135ZZZO(7)(c) and (d); or

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

with section 135ZZZQ or 135ZZZR.

(2) The Minister may:

(a) by notice published in the Gazette, revoke the declaration; or

(b) refer the question whether the declaration should be revoked

to the Copyright Tribunal in the way prescribed by the

regulations.

(3) If the Minister refers the question to the Copyright Tribunal, the

Tribunal may revoke the declaration if it is satisfied that any of

paragraphs (1)(a), (b), (c) and (d) applies to the body.

Note: Section 153V sets out the procedure of the Copyright Tribunal in

dealing with the reference.

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Division 3 Collecting societies

Section 135ZZZQ

135ZZZQ Annual report and accounts

(1) A collecting society must, as soon as practicable after the end of

each financial year, prepare a report of its operations during that

financial year and send a copy of the report to the Minister.

(2) The Minister must cause a copy of the report sent to the Minister

under subsection (1) to be tabled in each House of the Parliament

within 15 sitting days of that House after the receipt of the report

by the Minister.

(3) A collecting society must keep accounting records correctly

recording and explaining:

(a) the transactions of the society (including any transactions as

trustee); and

(b) the financial position of the society.

(4) The accounting records must be kept in such a manner as will

enable:

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

to time; and

(b) those accounts to be conveniently and properly audited.

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

each financial year:

(a) cause its accounts to be audited by an auditor who is not a

member of the society; and

(b) send to the Minister a copy of its accounts as so audited.

(6) A collecting society must give its members reasonable access to

copies of all reports and audited accounts prepared by it under this

section.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the Corporations Act 2001.

(8) For the purposes of this section, the period:

(a) beginning at the commencement of this section; and

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(b) ending at the end of 30 June 2010;

is taken to be a financial year.

135ZZZR Amendment of rules

A collecting society must, within 21 days after it alters its rules,

send a copy of the rules as so altered to the Minister, together with

a statement setting out:

(a) the effect of the alteration; and

(b) the reasons why it was made.

135ZZZS Applying to Tribunal for review of distribution

arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153W varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal’s order has effect as if it had

been adopted in accordance with the collecting society’s rules, but

does not affect a distribution started before the order was made.

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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.

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(2) A notice must specify that the amount of equitable remuneration is

to be assessed on the basis of the records to be kept by the satellite

BSA licensee under section 135ZZZL.

(3) A notice comes into force on:

(a) the day on which it is given to the notice holder; or

(b) such later day as is specified in the notice;

and remains in force until it is revoked.

(4) A notice may be revoked at any time by the satellite BSA licensee

by written notice given to the notice holder.

(5) The revocation takes effect:

(a) on the date of the notice of revocation; or

(b) on such later date as is specified in the notice of revocation.

135ZZZW Record keeping requirements

If a satellite BSA licensee gives a notice to the notice holder under

section 135ZZZV, sections 135ZZZK and 135ZZZL apply as if:

(a) references to a collecting society were references to the

notice holder; and

(b) references to a remuneration notice were references to a

notice under section 135ZZZV.

135ZZZX Effect of declaration of collecting society

(1) If:

(a) as a result of the declaration of one or more collecting

societies, there is a society for all relevant copyright owners;

and

(b) a notice under section 135ZZZV was in force immediately

before the day on which the declaration came into force;

then, on and after that day, the notice ceases to have effect as such

a notice, but is taken, for the purposes of this Part, to be a

remuneration notice that:

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(c) was given by the relevant satellite BSA licensee to the

collecting society, or to each of the collecting societies, as the

case may be; and

(d) came into force on the same day as the notice came into

force.

(2) If:

(a) one or more collecting societies are declared for one or more,

but not for all, classes of relevant copyright owners; and

(b) a notice was in force immediately before the day on which

the declaration came into force;

then, on and after that day:

(c) the notice ceases to have effect as such a notice in relation to

the relevant copyright owners in the class or classes of

copyright owners for whom a collecting society is declared,

but is taken, for the purposes of this Part, to be a

remuneration notice that:

(i) was given by the relevant satellite BSA licensee to the

collecting society or to each of the collecting societies,

as the case may be; and

(ii) came into force on the same day as the notice came into

force; and

(d) the notice continues to have effect as such a notice in relation

to all other relevant copyright owners.

(3) When a notice is, under this section, taken to be a remuneration

notice, the relevant satellite BSA licensee must cause copies of all

records made under section 135ZZZL on or after the day on which

the notice is taken to have come into force to be sent to the relevant

collecting society within 21 days after the declaration of the

collecting society.

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Miscellaneous Division 5

Section 135ZZZY

Division 5—Miscellaneous

135ZZZY Relevant copyright owner may authorise re-broadcast

(1) Nothing in this Part affects the right of the owner of the copyright

in a broadcast of an eligible program to grant a licence authorising

a satellite BSA licensee to re-broadcast the eligible program

without infringing that copyright.

(2) Nothing in this Part affects the right of the owner of the copyright

in a work, sound recording or cinematograph film included in a

broadcast of an eligible program to grant a licence authorising a

satellite BSA licensee to re-broadcast the eligible program without

infringing that copyright.

135ZZZZ Copyright not to vest under this Part

Despite any other provision of this Act, the re-broadcast of an

eligible program that is not an infringement of copyright under this

Part does not vest copyright in any work or other subject-matter in

any person.

135ZZZZA Licence to re-broadcast does not authorise copyright

infringements

The owner of the copyright in a broadcast of an eligible program is

not taken, for the purposes of this Act, to have authorised the

infringement of copyright in any work, sound recording or

cinematograph film included in the broadcast of the eligible

program merely because the owner licenses the re-broadcast of the

eligible program.

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Division 1 Preliminary

Section 136

Part VI—Copyright Tribunal of Australia

Division 1—Preliminary

136 Interpretation

(1) In this Part, unless the contrary intention appears:

Deputy President means a Deputy President of the Tribunal.

Judge means:

(a) a Judge of a federal court or of the Supreme Court of a State

or Territory; or

(b) a person who has the same designation and status as a Judge

of a federal court.

licence means a licence granted by or on behalf of the owner or

prospective owner of the copyright in a work or other

subject-matter to do an act comprised in the copyright.

licence scheme means a scheme (including anything in the nature

of a scheme, whether called a scheme or tariff or called by any

other name) formulated by a licensor or licensors and setting out

the classes of cases in which the licensor or each of the licensors is

willing, or the persons on whose behalf the licensor or each of the

licensors acts are willing, to grant licences and the charges (if any)

subject to payment of which, and the conditions subject to which,

licences would be granted in those classes of cases.

licensor means a body corporate for which both the following

conditions are met:

(a) the body is incorporated under a law in force in a State or

Territory relating to companies;

(b) the body’s constitution:

(i) entitles any owner of copyright, or any owner of

copyright of a specified kind, to become a member of

the body; and

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(ii) requires the body to protect the interests of its members

connected with copyright; and

(iii) provides that the main business of the body is granting

licences; and

(iv) requires the body to distribute to its members the

proceeds (after deduction of the body’s administrative

expenses) from payments to the body for licences; and

(v) prevents the body from paying dividends.

member means a member of the Tribunal, and includes the

President and a Deputy President.

order includes an interim order.

organization means an organization or association of persons

whether corporate or unincorporate.

the President means the President of the Tribunal.

(2) In this Part:

(a) a reference to conditions is a reference to any conditions

other than conditions relating to the payment of a charge;

(b) a reference to giving an opportunity to a person or

organization of presenting a case is a reference to giving the

person or organization an opportunity, at the option of the

person or organization, of submitting representations in

writing, or of being heard, or of submitting representations in

writing and being heard;

(c) a reference to a person who requires a licence of a particular

kind includes a reference to a person who holds a licence of

that kind if the person will, at the expiration of the period for

which the licence was granted, require a renewal of that

licence or a grant of a further licence of the same kind; and

(d) a reference to proceedings for infringement of copyright

includes a reference to a prosecution of an offence against

Subdivision D of Division 5 of Part V.

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(3) For the purposes of this Part, a person shall not be taken not to

require a licence to cause a sound recording to be heard in public

by reason only of the operation of section 108.

137 Cases to which licence schemes apply

(1) For the purposes of this Part, a case shall, subject to the next

succeeding subsection, be deemed to be a case to which a licence

scheme applies if, in accordance with a licence scheme for the time

being in operation, a licence would be granted in that case.

(2) For the purposes of this Part, where, in accordance with a licence

scheme:

(a) the licences that would be granted would be subject to

conditions by virtue of which particular matters would be

excepted from the licences; and

(b) a case relates to one or more matters falling within such an

exception;

that case shall be deemed not to be a case to which the scheme

applies.

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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

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(e) he or she has, in the opinion of the Governor-General, special

knowledge or skill relevant to the duties of a member.

141 Tenure of office

(1) Subject to this section, a member holds office for such period, not

exceeding 7 years, as is specified in the instrument of his or her

appointment, but is eligible for re-appointment.

(2) Where a member who is a Judge ceases to be a Judge, he or she

ceases to hold office as a member, but he or she is eligible for

appointment as a member (other than the President).

(3) The Governor-General may terminate the appointment of a

member (other than a member who is a Judge) for physical or

mental incapacity.

(4) The Governor-General shall terminate the appointment of a

member (other than a member who is a Judge) if:

(a) the member is guilty of misbehaviour; or

(b) the member becomes bankrupt, applies to take the benefit of

any law for the relief of bankrupt or insolvent debtors,

compounds with his or her creditors or makes an assignment

of his or her remuneration for their benefit.

141A Seniority of Deputy Presidents

(1) The Deputy Presidents have seniority as Deputy Presidents

according to the dates of their first appointment to the Tribunal, or,

if 2 or more Deputy Presidents were appointed on the same day,

according to the precedence assigned to them in their instruments

of appointment.

(2) At any time when only one person is holding office as a Deputy

President, any reference in this Part to ‘the senior Deputy

President’ is to be taken to be a reference to the Deputy President.

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142 Acting President

The Governor-General may appoint the senior Deputy President

available to act in the office of President:

(a) during a vacancy in that office; or

(b) during any period when the person holding that office is

absent from duty or from Australia or is, for any other

reason, unable to perform the functions of that office.

143 Remuneration and allowances

(1) Subject to this section, a member shall be paid such remuneration

as is determined by the Remuneration Tribunal but, if no

determination of that remuneration by the Tribunal is in operation,

the member shall be paid such remuneration as is prescribed.

(2) A member shall be paid such allowances as are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973.

(4) A member who is a Judge is not, while he or she receives salary or

annual allowance as a Judge, entitled to remuneration under this

Act.

144 Oath or affirmation of office

(1) A member shall, before proceeding to discharge the duties of his or

her office, take an oath or make an affirmation in accordance with

the form of oath or affirmation in the Schedule to this Act.

(2) An oath or affirmation shall be taken or made before a justice or

judge of a federal court or of the Supreme Court of a State.

144A Disclosure of interests by members

(1) Where a member is, or is to be, the Tribunal, or a member of the

Tribunal, as constituted for the purposes of a proceeding and the

member has or acquires any interest, pecuniary or otherwise, that

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could conflict with the proper performance of his or her functions

in relation to that proceeding:

(a) he or she shall disclose the interest to the parties to the

proceeding; and

(b) except with the consent of all the parties to the proceeding,

he or she shall not take part in the proceeding.

(2) Where the President becomes aware that a member is, or is to be,

the Tribunal, or a member of the Tribunal, as constituted for the

purposes of a proceeding and that the member has, in relation to

that proceeding, such an interest as is mentioned under

subsection (1):

(a) if the President considers that the member should not take

part, or should not continue to take part, in the

proceeding—he or she shall give a direction to the member

accordingly; or

(b) in any other case—he or she shall cause the interest of the

member to be disclosed to the parties to the proceeding.

(3) In this section, a reference to a proceeding includes a reference to a

proceeding by way of an application or reference to the Tribunal

under this Act.

144B Removal from office for failure to disclose interest

Where the Governor-General is satisfied that a member (other than

a member who is a Judge) has failed, without reasonable excuse, to

make a disclosure that he or she is, under subsection 144A(1),

required to make, the Governor-General shall remove that member

from office.

145 Resignation

A member may resign the office of member by giving a signed

notice of resignation to the Governor-General.

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146 Sittings of the Tribunal

(1) Sittings of the Tribunal shall be held at such places and times as

the President determines.

(2) Subject to the next succeeding subsection, the Tribunal shall be

constituted by a single member.

(3) If a party to an application or reference requests that the Tribunal

be constituted by more than one member for the purposes of the

application or reference, the Tribunal must, for the purposes of the

application or reference, be constituted by not less than 2 members

of whom one must be the President or a Deputy President.

(3A) Nothing in subsection (3) prevents a single member from

exercising the powers of the Tribunal in relation to matters of

procedure.

(4) At a proceeding before the Tribunal constituted by more than one

member:

(a) if the President is one of the members constituting the

Tribunal—he or she shall preside; and

(b) in any other case—the senior Deputy President who is

present is to preside.

(5) Where the Tribunal constituted by more than one member is

divided in opinion on a question, the question shall be decided

according to the decision of the majority, if there is a majority, but

if the Tribunal as so constituted is equally divided in opinion, the

question shall be decided according to the opinion of the President

or, if he or she is not one of the members constituting the Tribunal,

according to the opinion of the senior Deputy President who is

present.

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Section 147

(6) The Tribunal constituted by a member or members may sit and

exercise the powers of the Tribunal notwithstanding that the

Tribunal constituted by another member or other members is at the

same time sitting and exercising those powers.

(7) The exercise of the powers of the Tribunal is not affected by a

vacancy or vacancies in the membership of the Tribunal.

(8) Where the hearing of any proceeding has been commenced before

the Tribunal constituted by 2 or more members and one or more of

those members has ceased to be a member or has ceased to be

available for the purposes of the proceeding, the remaining

member or members may continue the hearing of the proceeding if

the remaining member, or one of the remaining members, is the

President or a Deputy President.

147 President to arrange business of Tribunal

The President may give directions as to the arrangement of the

business of the Tribunal and, subject to subsection 146(2) or (3), as

to the constitution of the Tribunal for the purposes of particular

proceedings.

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Division 3—Applications and references to the Tribunal

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.

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

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(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.

(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 other than

Norfolk Island.

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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

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.

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(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;

(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,

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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

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

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(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.

(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;

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(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

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(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;

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.

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(6) Where an organisation (whether claiming to represent

manufacturers or the owners of copyrights in musical works or not)

or a person (whether a manufacturer or the owner of the copyright

in a musical work or not) applies to the Tribunal to be made a party

to an application under this section, the Tribunal may, if it thinks

fit, make that organisation or person a party to the application if the

Tribunal is satisfied that the organisation or person has a

substantial interest in the application.

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

in relation to a manufacturer may be a period beginning before the

date of making of the order or before the date of making of the

application but shall not be a period beginning before:

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

any) made under that subsection in relation to that

manufacturer; or

(b) the commencement of this section.

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

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

specified in the order the amount of royalty so specified at the

times so specified and that person may recover the amount, if it is

not paid in accordance with the order, in a court of competent

jurisdiction from the manufacturer as a debt due to the person.

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.

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(4) The parties to an application are:

(a) the manufacturer and the owner of the copyright in the

musical work; and

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

application.

(5) Where an organisation (whether claiming to represent

manufacturers or the owners of copyrights in musical works or not)

or a person (whether a manufacturer or the owner of the copyright

in a musical work or not) applies to the Tribunal to be made a party

to an application under this section, the Tribunal may, if it thinks

fit, make that organisation or person a party to the application if the

Tribunal is satisfied that the organisation or person has a

substantial interest in the application.

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

shall consider the application and, after giving the parties an

opportunity of presenting their cases, make an order determining

the manner in which amounts of royalty payable by the

manufacturer of the record of the musical work to the owner of the

copyright in the work are to be paid.

153 Applications to Tribunal for apportionment of royalty in respect

of a record

(1) This section applies where an application is made to the Tribunal

in pursuance of paragraph 59(3)(b) for an apportionment of an

amount payable in respect of a record between the owner of the

copyright in a musical work and the owner of the copyright in a

literary or dramatic work.

(2) The parties to an application in relation to which this section

applies are:

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

(b) the owner of the copyright in the literary or dramatic work.

(3) Where an application in relation to which this section applies is

made to the Tribunal, the Tribunal shall consider the application

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

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presenting their cases, shall make an order apportioning the amount

to which the application relates between the parties in such manner

as it thinks equitable.

Subdivision C—Applications and referrals relating to Part IVA

153A Applications and referrals relating to Division 4 of Part IVA

(1) This section applies to an application or referral to the Tribunal

mentioned in column 1 of an item of the table in subsection (4).

(2) The parties to the application or referral are the parties mentioned

in column 2 of the item.

(3) The Tribunal must:

(a) consider the application or referral; and

(b) give the parties the opportunity to present their cases; and

(c) comply with column 3 of the item.

(4) This is the table:

Applications and referrals relating to licensed copying and communicating

Item Column 1 Column 2 Column 3

Application or Parties The Tribunal must …

referral

1 an application made

under

paragraph 113P(4)(b)

(a) the relevant

collecting society;

and

having regard to any

matters prescribed by the

regulations, determine

or 113S(4)(b) to

determine a question (b) the body

administering the

relevant

educational

the relevant question

under subsection 113P(4)

or 113S(4).

institution

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Applications and referrals relating to licensed copying and communicating

Item

2

3

Column 1

Application or

referral

an application made

under

paragraph 113R(2)(b)

to determine an amount

of equitable

remuneration

a referral under

paragraph 113V(2)(c)

of an application by a

body (the applicant) to

be declared to be a

collecting society

Column 2

Parties

(a) the relevant

collecting society;

and

(b) the body

administering the

relevant

educational

institution

(a) the applicant; and

(b) any person made

a party under

subsection (5) of

this section

Column 3

The Tribunal must …

having regard to any

matters prescribed by the

regulations, determine

the amount of equitable

remuneration under

subsection 113R(2).

(a) declare the applicant

to be a collecting

society under

subsection 113V(3);

or

(b) refuse to declare the

applicant to be a

collecting society.

4

5

a referral under

paragraph 113X(2)(b)

of the question whether

a declaration of a body

to be a collecting

society should be

revoked

an application under

subsection 113ZB(1)

for review of the

arrangement adopted,

or proposed to be

adopted, by a

collecting society for

distributing amounts it

collects in a period

(a) the Minister; and

(b) the body; and

(c) any person made a

party under

subsection (5) of

this section

(a) the applicant for

the review; and

(b) the collecting

society (if it is not

the applicant);

and

(c) any member or

organization made

a party under

subsection (5) of

this section

(a) revoke the declaration

under

subsection 113X(3);

or

(b) refuse to revoke the

declaration.

make an order under

subsection 113ZB(2).

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(5) For the purposes of column 2 of item 3, 4 or 5 of the table, the

Tribunal may make the following person or organization a party to

the referral or application if the person or organization asks to be

made a party:

(a) in the case of item 3 or 4—a person the Tribunal thinks has a

sufficient interest in the matter;

(b) in the case of item 5—a person or organization that:

(i) the Tribunal thinks has a substantial interest in the

arrangement; and

(ii) is a member of the collecting society, or is an

organization that claims to be representative of

members of the collecting society.

Subdivision E—Applications relating to Part VII

153DF Meaning of copyright material

In this Subdivision:

copyright material has the same meaning as in Division 2 of

Part VII.

153E Applications to Tribunal under subsection 183(5)

(1) The parties to an application to the Tribunal under

subsection 183(5) for the fixing of the terms for the doing of an act

comprised in a copyright where the act is done for the services of

the Commonwealth or a State are:

(a) the Commonwealth or the State, as the case may be; and

(b) the owner of the copyright.

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(2) If an application is made to the Tribunal under subsection 183(5),

the Tribunal is to consider the application and, after giving the

parties to the application an opportunity of presenting their cases,

is to make an order fixing the terms for the doing of the act.

153F Applications to Tribunal to declare collecting society for

government copies

(1) A company limited by guarantee may apply to the Tribunal for a

declaration that the company be a collecting society for the

purposes of Division 2 of Part VII.

(2) The parties to the application are the applicant and any person

made a party by the Tribunal.

(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

(b) the Tribunal thinks that the person has a sufficient interest in

either or both of the following questions:

(i) whether the applicant should be declared to be a

collecting society;

(ii) whether any current declaration of a company as a

collecting society should be revoked.

(4) After giving each party an opportunity of presenting its case, the

Tribunal must:

(a) declare the applicant to be a collecting society for the

purposes of Division 2 of Part VII; or

(b) reject the application.

(5) A declaration of a company as a collecting society for the purposes

of Division 2 of Part VII may be a declaration in relation to:

(a) all government copies; or

(b) a specified class of government copies.

(6) The Tribunal may only declare the applicant to be a collecting

society if the Tribunal is satisfied:

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(a) that the applicant is a company limited by guarantee

incorporated under a law in force in a State or Territory

relating to companies; and

(b) in the case of an application for a declaration in relation to all

government copies, that the applicant’s rules permit the

owner, or the agent of the owner, of the copyright in any

copyright material to become a member; and

(c) in the case of an application for a declaration in relation to a

class of government copies, that the applicant’s rules permit

the owner, or the agent of the owner, of the copyright in any

copyright material a reproduction of which in accordance

with section 183 would be within that class to become a

member; and

(d) that the applicant’s rules prohibit the payment of dividends to

its members; and

(e) that the applicant’s rules contain such provisions about all of

the following matters as are adequate for the protection of its

members:

(i) the collection of remuneration payable under

section 183A;

(ii) the payment of administrative costs of the collecting

society out of remuneration it collects;

(iii) the distribution of remuneration the collecting society

collects;

(iv) the collecting society holding on trust remuneration for

owners of copyright in copyright material who are not

members of the society;

(v) access to the collecting society’s records by its

members; and

(f) that the applicant’s rules contain such other provisions as are

required by the regulations to be included for the protection

of members of the society.

(7) A declaration must specify the day on which it takes effect.

(8) If the Tribunal makes a declaration under this section, the Registrar

must publish the declaration in the Gazette.

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153G Applications to Tribunal to revoke a declaration of a collecting

society

(1) Any of the following persons may apply to the Tribunal for the

revocation of a declaration under section 153F:

(a) the collecting society;

(b) a member of the collecting society;

(c) a government.

(2) The parties to an application are:

(a) the applicant for revocation of the declaration; and

(b) if the collecting society is not the applicant for revocation of

the declaration—the collecting society; and

(c) any person made a party by the Tribunal.

(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

(b) the Tribunal thinks that the person has a sufficient interest in

the question whether the declaration of the collecting society

should be revoked.

(4) After giving each party an opportunity of presenting its case, the

Tribunal must:

(a) revoke the declaration of the collecting society; or

(b) reject the application.

(5) The Tribunal may only revoke the declaration of a company as the

collecting society if the Tribunal is satisfied that the company:

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

(b) is not acting in accordance with its rules or in the best

interests of its members who own copyright in copyright

material or who are agents of copyright owners; or

(c) has altered its rules so that they no longer comply with any

one or more of paragraphs 153F(6)(b) to (f); or

(d) has contravened section 183D or 183E (dealing with

reporting and accounting, and alteration of rules).

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(6) A revocation must specify the day on which it takes effect.

(7) If the Tribunal revokes the declaration of the collecting society, the

Registrar must publish notice of the revocation in the Gazette.

153H Time limit for deciding applications under section 153F or

153G

(1) The Tribunal must make its decision on an application under

section 153F or 153G within 6 months after the conclusion of the

hearing of the application.

(2) The 6 months time limit in subsection (1) does not apply if the

Tribunal thinks that the matter cannot be dealt with properly within

that period of 6 months, whether because of its complexity or

because of other special circumstances.

(3) If subsection (2) applies, the Tribunal must tell the applicant before

the end of the 6 months period that the matter cannot be dealt with

properly within that period.

153J Amendment and revocation of a declaration on the declaration

of another collecting society

(1) If:

(a) a declaration (the previous declaration) is in force under

section 153F; and

(b) the Tribunal, under that section, declares another company to

be the collecting society for the purposes of Division 2 of

Part VII in relation to a class of government copies that

includes some of the government copies to which the

previous declaration relates;

the Tribunal must amend the previous declaration so as to exclude

from the government copies to which it relates all government

copies to which the declaration of the company referred to in

paragraph (b) relates.

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(2) An amendment of a declaration under subsection (1) takes effect

when the declaration of the company referred to in

paragraph (1)(b) takes effect.

(3) If:

(a) a declaration (the previous declaration) is in force under

section 153F; and

(b) the Tribunal makes another declaration under that section in

relation to:

(i) all government copies; or

(ii) a class of government copies that includes all

government copies to which the previous declaration

relates;

the Tribunal must revoke the previous declaration.

(4) The revocation of a declaration under subsection (3) takes effect

when the declaration referred to in paragraph (3)(b) takes effect.

(5) The Registrar must publish in the Gazette notice of an amendment

or revocation made under this section.

153K Applications to Tribunal for method of working out payment

for government copies

(1) A collecting society or a government may apply to the Tribunal for

an order determining the method for working out remuneration

payable under subsection 183A(2) for government copies made for

the services of the government in a particular period.

(2) The parties to an application are the collecting society and the

government.

(3) After giving each party an opportunity of presenting its case, the

Tribunal must make an order determining the method.

Note: Subsection 183A(3) sets out matters that the method must provide for.

Subsection 183A(4) sets out matters that the method may provide for.

(4) An order may also specify how and when payments of the amount

worked out using the method determined are to be made.

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153KA Review of collecting society’s distribution arrangement

(1) This section has effect if an application is made to the Tribunal

under section 183F for review of an arrangement adopted, or

proposed to be adopted, by a collecting society for distributing

amounts it collects in a period.

(2) The parties to the application are:

(a) the applicant; and

(b) the collecting society (if it is not the applicant); and

(c) a member of the collecting society, or an organization

claiming to be representative of members of the collecting

society, that the Tribunal makes a party to the application.

(3) The Tribunal may make a member of the collecting society, or an

organization claiming to be representative of members of the

collecting society, a party to the application if:

(a) the member or organization asks to be made a party; and

(b) the Tribunal is satisfied that the member or organization has

a substantial interest in the arrangement.

(4) The Tribunal must consider the application, give the parties an

opportunity of presenting their cases then make an order:

(a) confirming the arrangement; or

(b) varying the arrangement; or

(c) substituting for the arrangement another arrangement for

distributing amounts the collecting society collects in the

period.

(5) In this section:

collecting society has the same meaning as in Division 2 of

Part VII.

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Subdivision G—Applications and references relating to

Part VC

153M Applications to the Tribunal under subsection 135ZZM(1)

(1) The parties to an application to the Tribunal under

subsection 135ZZM(1) for the determination of the amount of

equitable remuneration payable to a collecting society by a

retransmitter for the making, by or on behalf of the retransmitter,

of a retransmission of a free-to-air broadcast are the society and the

retransmitter.

(2) On an application to the Tribunal under subsection 135ZZM(1), the

Tribunal must consider the application and, after giving the parties

an opportunity to present their cases, make an order determining

the amount that it considers to be equitable remuneration for the

making of retransmissions of free-to-air broadcasts.

(3) In making an order, the Tribunal may have regard to such matters

(if any) as are prescribed.

(4) An order may be expressed to have effect in relation to

retransmissions of free-to-air broadcasts made in reliance on

section 135ZZK before the day on which the order is made.

(5) In this section, collecting society and retransmitter have the same

meanings as in Part VC.

153N Applications to Tribunal under subsection 135ZZN(3)

(1) The parties to an application to the Tribunal under

subsection 135ZZN(3) for the determination of a record system are

the collecting society and the retransmitter concerned.

(2) On an application to the Tribunal under subsection 135ZZN(3), the

Tribunal must consider the application and, after giving the parties

an opportunity to present their cases, make an order determining

the record system.

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(3) In this section, collecting society and retransmitter have the same

meanings as in Part VC.

153P References relating to declaration of collecting society

(1) This section has effect if the Minister refers to the Copyright

Tribunal under section 135ZZT an application of a body to be

declared a collecting society.

(2) The parties to the reference are the applicant and any person made

a party by the Tribunal.

(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

(b) the Tribunal thinks that the person has a sufficient interest in

either or both of the following questions:

(i) whether the applicant should be declared to be a

collecting society for all relevant copyright owners (as

defined in Part VC) or a particular class of relevant

copyright owners;

(ii) whether another body should cease to be the collecting

society for any of the relevant copyright owners (as

defined in Part VC) if the applicant is declared to be a

collecting society.

(4) After giving each party an opportunity of presenting its case, the

Tribunal must:

(a) declare the applicant to be a collecting society under

section 135ZZT; or

(b) reject the application.

(5) If the Tribunal declares the applicant to be the collecting society

under section 135ZZT, the Registrar must publish notice of the

declaration in the Gazette.

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153Q References relating to revocation of declaration of collecting

society

(1) This section has effect if the Minister refers to the Copyright

Tribunal under section 135ZZU the question whether the

declaration of a body as a collecting society should be revoked.

(2) The parties to the reference are:

(a) the Minister; and

(b) the collecting society; and

(c) any person made a party by the Tribunal.

(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

(b) the Tribunal thinks that the person has a sufficient interest in

the question whether the declaration of the collecting society

should be revoked.

(4) After giving each party an opportunity of presenting its case, the

Tribunal must:

(a) revoke the declaration of the collecting society under

section 135ZZU; or

(b) refuse to revoke the declaration.

(5) If the Tribunal revokes the declaration of the collecting society:

(a) the revocation must specify the day on which it takes effect;

and

(b) the Registrar must publish notice of the revocation in the

Gazette.

153R Review of collecting society’s distribution arrangement

(1) This section has effect if an application is made to the Tribunal

under section 135ZZWA for review of an arrangement adopted, or

proposed to be adopted, by a collecting society for distributing

amounts it collects in a period.

(2) The parties to the application are:

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(a) the applicant; and

(b) the collecting society (if it is not the applicant); and

(c) a member of the collecting society, or an organization

claiming to be representative of members of the collecting

society, that the Tribunal makes a party to the application.

(3) The Tribunal may make a member of the collecting society, or an

organization claiming to be representative of members of the

collecting society, a party to the application if:

(a) the member or organization asks to be made a party; and

(b) the Tribunal is satisfied that the member or organization has

a substantial interest in the arrangement.

(4) The Tribunal must consider the application, give the parties an

opportunity of presenting their cases then make an order:

(a) confirming the arrangement; or

(b) varying the arrangement; or

(c) substituting for the arrangement another arrangement for

distributing amounts the collecting society collects in the

period.

(5) In this section:

collecting society has the same meaning as in Part VC.

Subdivision GA—Applications and references relating to

Part VD

153RA Application to the Tribunal to determine amount payable to

owner of copyright in a broadcast

(1) Either:

(a) a satellite BSA licensee; or

(b) a person (the copyright owner) who is, or will be, the owner

of the copyright in the broadcast of an eligible program;

may apply to the Tribunal for an order determining the amount

payable by the satellite BSA licensee to the copyright owner for

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the re-broadcast by the satellite BSA licensee, during the period

specified in the application, of eligible programs, where the

copyright owner owns the copyright in the broadcast of the eligible

programs.

(2) The parties to an application under subsection (1) are:

(a) the satellite BSA licensee; and

(b) the copyright owner.

(3) On an application to the Tribunal under subsection (1), the

Tribunal must consider the application and, after giving the parties

an opportunity to present their cases, make an order determining

the amount that it considers to be equitable remuneration for

re-broadcasts of eligible programs during the period specified in

the order, where the copyright owner owns the copyright in the

broadcast of the eligible programs.

(4) In this section:

eligible program has the same meaning as in Part VD.

153S Applications to the Tribunal under

paragraph 135ZZZK(1)(b)—equitable remuneration

(1) The parties to an application to the Tribunal under

paragraph 135ZZZK(1)(b) for the determination of the amount of

equitable remuneration payable to a collecting society by a satellite

BSA licensee for re-broadcasts by the satellite BSA licensee of

eligible programs are:

(a) the society; and

(b) the satellite BSA licensee.

(2) On an application to the Tribunal under paragraph 135ZZZK(1)(b),

the Tribunal must consider the application and, after giving the

parties an opportunity to present their cases, make an order

determining the amount that it considers to be equitable

remuneration for the re-broadcast of eligible programs.

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(3) In making an order, the Tribunal may have regard to such matters

(if any) as are prescribed.

(4) An order may be expressed to have effect in relation to

re-broadcasts of eligible programs in reliance on section 135ZZZI

before the day on which the order is made.

(5) In this section:

collecting society has the same meaning as in Part VD.

eligible program has the same meaning as in Part VD.

153T Applications to Tribunal under paragraph 135ZZZL(3)(b)—

record system

(1) The parties to an application to the Tribunal under

paragraph 135ZZZL(3)(b) for the determination of a record system

are:

(a) the collecting society concerned; and

(b) the satellite BSA licensee concerned.

(2) On an application to the Tribunal under paragraph 135ZZZL(3)(b),

the Tribunal must consider the application and, after giving the

parties an opportunity to present their cases, make an order

determining the record system.

(3) In this section:

collecting society has the same meaning as in Part VD.

153U References relating to declaration of collecting society

(1) This section has effect if the Minister refers to the Copyright

Tribunal under section 135ZZZO an application of a body to be

declared a collecting society.

(2) The parties to the reference are the applicant and any person made

a party by the Tribunal.

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(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

(b) the Tribunal thinks that the person has a sufficient interest in

either or both of the following questions:

(i) whether the applicant should be declared to be a

collecting society for all relevant copyright owners (as

defined in Part VD) or a particular class of relevant

copyright owners;

(ii) whether another body should cease to be the collecting

society for any of the relevant copyright owners (as

defined in Part VD) if the applicant is declared to be a

collecting society.

(4) After giving each party an opportunity to present its case, the

Tribunal must:

(a) declare the applicant to be a collecting society under

section 135ZZZO; or

(b) reject the application.

(5) If the Tribunal declares the applicant to be the collecting society

under section 135ZZZO, the Registrar must publish notice of the

declaration in the Gazette.

153V References relating to revocation of declaration of collecting

society

(1) This section has effect if the Minister refers to the Copyright

Tribunal under paragraph 135ZZZP(2)(b) the question whether the

declaration of a body as a collecting society should be revoked.

(2) The parties to the reference are:

(a) the Minister; and

(b) the collecting society; and

(c) any person made a party by the Tribunal.

(3) The Tribunal may make a person a party if:

(a) the person asks to be made a party; and

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(b) the Tribunal thinks that the person has a sufficient interest in

the question whether the declaration of the collecting society

should be revoked.

(4) After giving each party an opportunity to present its case, the

Tribunal must:

(a) revoke the declaration of the collecting society under

subsection 135ZZZP(3); or

(b) refuse to revoke the declaration.

(5) If the Tribunal revokes the declaration of the collecting society:

(a) the revocation must specify the day on which it takes effect;

and

(b) the Registrar must publish notice of the revocation in the

Gazette.

153W Review of collecting society’s distribution arrangement

(1) This section has effect if an application is made to the Tribunal

under section 135ZZZS for review of an arrangement adopted, or

proposed to be adopted, by a collecting society for distributing

amounts it collects in a period.

(2) The parties to the application are:

(a) the applicant; and

(b) the collecting society (if it is not the applicant); and

(c) a member of the collecting society, or an organisation

claiming to be representative of members of the collecting

society, that the Tribunal makes a party to the application.

(3) The Tribunal may make a member of the collecting society, or an

organisation claiming to be representative of members of the

collecting society, a party to the application if:

(a) the member or organisation asks to be made a party; and

(b) the Tribunal is satisfied that the member or organisation has a

substantial interest in the arrangement.

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(4) The Tribunal must consider the application, give the parties an

opportunity to present their cases then make an order:

(a) confirming the arrangement; or

(b) varying the arrangement; or

(c) substituting for the arrangement another arrangement for

distributing amounts the collecting society collects in the

period.

(5) In this section:

collecting society has the same meaning as in Part VD.

Subdivision H—References and applications relating to licences

and licence schemes

154 Reference of proposed licence schemes to Tribunal

(1) Where a licensor proposes to bring a licence scheme into

operation, he or she may refer the scheme to the Tribunal.

(2) The parties to a reference under this section are:

(a) the licensor referring the scheme; and

(b) such organizations or persons (if any) as apply to the

Tribunal to be made parties to the reference and, in

accordance with the next succeeding subsection, are made

parties to the reference; and

(c) the Australian Competition and Consumer Commission, if

the Tribunal makes the Commission a party to the reference

under section 157B.

(3) Where an organization (whether claiming to be representative of

persons requiring licences or not) or a person (whether requiring a

licence or not) applies to the Tribunal to be made a party to a

reference, and the Tribunal is satisfied that the organization or

person has a substantial interest in the operation of the scheme to

which the reference relates, the Tribunal may, if it thinks fit, make

that organization or person a party to the reference.

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(4) The Tribunal shall consider a scheme referred under this section

and, after giving to the parties to the reference an opportunity of

presenting their cases, shall make such order, confirming or

varying the scheme or substituting for the scheme another scheme

proposed by one of the parties, as the Tribunal considers

reasonable in the circumstances.

(5) An order (other than an interim order) of the Tribunal under this

section may, notwithstanding anything contained in the licence

scheme to which it relates, be made so as to be in force either

indefinitely or for such period as the Tribunal thinks fit.

(6) Where a licence scheme has been referred to the Tribunal under

this section, the licensor may do either or both of the following

things:

(a) bring the scheme into operation before the Tribunal makes an

order in pursuance of the reference;

(b) withdraw the reference at any time before the Tribunal makes

an order in pursuance of the reference, whether the scheme

has been brought into operation or not.

(7) The scheme reflecting the Tribunal’s order:

(a) comes into operation when the order is made, if the scheme

referred to the Tribunal had not already come into operation;

and

(b) operates as long as the order remains in force.

This subsection has effect despite anything in the scheme referred

to the Tribunal.

Note: Depending on the Tribunal’s order, the scheme reflecting the order

will be the scheme confirmed by the order, the scheme as varied by

the order or the scheme substituted by the order for the scheme

referred to the Tribunal.

155 Reference of existing licence schemes to Tribunal

(1) Where, at any time while a licence scheme is in operation, a

dispute arises with respect to the terms of the scheme between the

licensor operating the scheme and:

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(a) an organization claiming to be representative of persons

requiring licences in cases included in a class of cases to

which the scheme applies; or

(b) any person claiming that he or she requires a licence in a case

included in a class of cases to which the scheme applies;

the licensor, organization or person concerned may refer the

scheme to the Tribunal in so far as the scheme relates to cases

included in that class.

(2) The parties to a reference under this section are:

(a) the licensor, organization or person referring the scheme; and

(b) if the reference is not made by the licensor operating the

scheme—that licensor; and

(c) such other organizations or persons (if any) as apply to the

Tribunal to be made parties to the reference and, in

accordance with the next succeeding subsection, are made

parties to the reference; and

(d) the Australian Competition and Consumer Commission, if

the Tribunal makes the Commission a party to the reference

under section 157B.

(3) Where an organization (whether claiming to be representative of

persons requiring licences or not) or a person (whether requiring a

licence or not) applies to the Tribunal to be made a party to a

reference, and the Tribunal is satisfied that the organization or

person has a substantial interest in the matter in dispute, the

Tribunal may, if it thinks fit, make that organization or person a

party to the reference.

(4) The Tribunal shall not begin to consider a reference under this

section by an organization unless the Tribunal is satisfied that the

organization is reasonably representative of the class of persons

that it claims to represent.

(5) The Tribunal must consider the matter in dispute, give the parties

an opportunity of presenting their cases then make an order that the

Tribunal considers reasonable in the circumstances doing one of

the following to the scheme so far as it relates to the relevant class:

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(a) confirming it;

(b) varying it;

(c) substituting for it another scheme proposed by one of the

parties.

This subsection has effect to subsection (4).

(6) An order (other than an interim order) of the Tribunal under this

section may, notwithstanding anything contained in the licence

scheme to which it relates, be made so as to be in force either

indefinitely or for such period as the Tribunal thinks fit.

(7) A reference of a licence scheme to the Tribunal under this section

may be withdrawn at any time before an order is made in

pursuance of the reference.

(8) Where a licence scheme has been referred to the Tribunal under

this section, the scheme remains in operation, notwithstanding

anything contained in the scheme, until the Tribunal makes an

order in pursuance of the reference.

(9) The last preceding subsection does not apply in relation to a

reference with respect to any period after the reference has been

withdrawn or after the Tribunal has refused to begin to consider the

reference in pursuance of subsection (4).

(10) The scheme reflecting the Tribunal’s order operates as long as the

order remains in force, despite anything in the scheme referred to

the Tribunal.

Note: Depending on the Tribunal’s order, the scheme reflecting the order

will be the scheme confirmed by the order, the scheme as varied by

the order or the scheme substituted by the order for the scheme

referred to the Tribunal.

156 Further reference of licence schemes to Tribunal

(1) Where the Tribunal has made an order (other than an interim order)

under either of the last two preceding sections with respect to a

licence scheme, then, subject to the next succeeding subsection, at

any time while the order remains in force:

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(a) the licensor operating the scheme;

(b) any organization claiming to be representative of persons

requiring licences in cases included in the class of cases to

which the order applies; or

(c) any person claiming that he or she requires a licence in a case

included in that class;

may refer the scheme reflecting the order to the Tribunal in so far

as it relates to cases included in that class.

(2) A scheme shall not, except with the leave of the Tribunal, be

referred to the Tribunal under the last preceding subsection at a

time earlier than:

(a) where the order concerned was made so as to be in force

indefinitely or for a period exceeding 15 months—the

expiration of the period of 12 months commencing on the

date on which the order was made; or

(b) where the order concerned was made so as to be in force for a

period not exceeding 15 months—the commencement of the

period of 3 months ending on the date of expiration of the

order.

(3) The parties to a reference under this section are:

(a) the licensor, organization or person referring the scheme; and

(b) if the reference is not made by the licensor operating the

scheme—that licensor; and

(c) such other organizations or persons (if any) as apply to the

Tribunal to be made parties to the reference and, in

accordance with the provisions applicable in that behalf by

virtue of subsection (5), are made parties to the reference;

and

(d) the Australian Competition and Consumer Commission, if

the Tribunal makes the Commission a party to the reference

under section 157B.

(4) The Tribunal must consider the matter in dispute, give the parties

an opportunity of presenting their cases then make an order that the

Tribunal considers reasonable in the circumstances doing one of

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the following to the scheme so far as it is referred to the Tribunal

under subsection (1):

(a) confirming it;

(b) varying it;

(c) substituting for it another scheme proposed by one of the

parties.

This subsection has effect to subsection (5).

(5) Subsections 155(3), (4), and (6) to (10) inclusive apply for the

purposes of this section.

(6) The preceding subsections of this section have effect in relation to

orders made under this section in like manner as they have effect in

relation to orders made under either of the last two preceding

sections.

(7) Nothing in this section prevents a licence scheme in respect of

which an order has been made under either of the last two

preceding sections from being again referred to the Tribunal under

that section:

(a) in so far as the scheme relates to cases included in a class of

cases to which the order does not apply—at any time; and

(b) in so far as the scheme relates to cases included in the class

of cases to which the order applied while it was in

force—after the expiration of the order.

157 Application to Tribunal in relation to licences

Refusal or failure to grant licence under licence scheme

(1) A person who claims, in a case to which a licence scheme applies,

that the licensor operating the scheme has refused or failed to grant

him or her a licence in accordance with the scheme, or to procure

the grant to him or her of such a licence, may apply to the Tribunal

under this section.

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Licence scheme sets unreasonable charges or conditions for case

(2) A person who claims, in a case to which a licence scheme applies,

that he or she requires a licence but that the grant of a licence in

accordance with the scheme would, in that case, be subject to the

payment of charges, or to conditions, that are not reasonable in the

circumstances of the case may apply to the Tribunal under this

section.

No licence scheme and licensor refuses or fails to grant reasonable

licence

(3) A person who claims that he or she requires a licence in a case to

which a licence scheme does not apply (including a case where a

licence scheme has not been formulated or is not in operation) and:

(a) that a licensor has refused or failed to grant the licence, or to

procure the grant of the licence, and that in the circumstances

it is unreasonable that the licence should not be granted; or

(b) that a licensor proposes that the licence should be granted

subject to the payment of charges, or to conditions, that are

unreasonable;

may apply to the Tribunal under this section.

(4) An organization that claims that it is representative of persons

requiring licences in cases to which a licence scheme does not

apply (including cases where a licence scheme has not been

formulated or is not in operation) and:

(a) that a licensor has refused or failed to grant the licences, or to

procure the grant of the licences, and that in the

circumstances it is unreasonable that the licences should not

be granted; or

(b) that a licensor proposes that the licences should be granted

subject to the payment of charges, or to conditions, that are

unreasonable;

may apply to the Tribunal under this section.

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Other parties to application

(5) Where an organization (whether claiming to be representative of

persons requiring licences or not) or a person (whether requiring a

licence or not) applies to the Tribunal to be made a party to an

application under any of the preceding subsections of this section,

and the Tribunal is satisfied that the organization or person has a

substantial interest in the matter in dispute, the Tribunal may, if it

thinks fit, make that organization or person a party to the

application.

Note: Under section 157B, the Tribunal may also make the Australian

Competition and Consumer Commission a party to the application.

Letting parties present their cases

(6) The Tribunal must give the applicant, the licensor concerned and

each other party (if any) to the application an opportunity of

presenting their cases.

Order dealing with application under subsection (1)

(6A) If the Tribunal is satisfied that the claim of an applicant under

subsection (1) is well-founded, the Tribunal must either:

(a) make an order specifying, in respect of the matters specified

in the order, the charges, if any, and the conditions, that the

Tribunal considers to be applicable in accordance with the

licence scheme in relation to the applicant; or

(b) order that the applicant be granted a licence in the terms

proposed by the applicant, the licensor concerned or another

party to the application.

Order dealing with application under subsection (2) or (3)

(6B) If the Tribunal is satisfied that the claim of an applicant under

subsection (2) or (3) is well-founded, the Tribunal must either:

(a) make an order specifying, in respect of the matters specified

in the order, the charges, if any, and the conditions, that the

Tribunal considers reasonable in the circumstances in

relation to the applicant; or

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(b) order that the applicant be granted a licence in the terms

proposed by the applicant, the licensor concerned or another

party to the application.

Order dealing with application under subsection (4)

(6C) If the Tribunal is satisfied that the claim of an applicant under

subsection (4) is well-founded, the Tribunal must either:

(a) make an order specifying, in respect of the matters specified

in the order, the charges, if any, and the conditions, that the

Tribunal considers reasonable in the circumstances in

relation to persons who:

(i) are specified in the order (whether by reference to a

class or otherwise); and

(ii) were represented by the applicant or were parties to the

application; or

(b) order that a licence be granted, in the terms proposed by the

applicant, the licensor concerned or another party to the

application, to each person who:

(i) is specified in the order (whether by reference to a class

or otherwise); and

(ii) was represented by the applicant or was a party to the

application.

Definition of refusal or failure to grant a licence

(7) A reference in this section to a failure to grant a licence, or to

procure the grant of a licence, shall be read as a reference to a

failure to grant the licence, or to procure the grant of the licence, as

the case may be, within a reasonable time after a request to do so.

157A Tribunal must have regard to ACCC guidelines on request

(1) In making a decision on a reference or application under this

Subdivision, the Tribunal must, if requested by a party to the

reference or application, have regard to relevant guidelines (if any)

made by the Australian Competition and Consumer Commission.

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(2) To avoid doubt, subsection (1) does not prevent the Tribunal from

having regard to other relevant matters in making a decision on a

reference or application under this Subdivision.

157B Tribunal may make ACCC party to reference or application

The Tribunal may make the Australian Competition and Consumer

Commission a party to a reference or application made under this

Subdivision if:

(a) the Commission asks to be made a party to the reference or

application; and

(b) the Tribunal is satisfied that it is appropriate that the

Commission be a party to the reference or application.

158 Effect of licence scheme being continued in operation pending

order of the Tribunal

(1) Where a licence scheme is in operation by virtue of this Part

pending the making of an order on a reference under this Part and a

person, in a case to which the scheme applies, does anything that,

apart from this subsection, would be an infringement of a copyright

but would not be such an infringement if the person were the

holder of a licence granted in accordance with the scheme in so far

as the scheme relates to cases to which the reference relates, that

person shall, if he or she has complied with the relevant

requirements, be in the like position, in any proceedings for

infringement of that copyright, as if he or she had at the material

time been the holder of such a licence.

(2) For the purposes of the last preceding subsection, the relevant

requirements are:

(a) that, at all material times, the person concerned has complied

with the conditions that, in accordance with the licence

scheme, would be applicable to a licence in respect of the

case concerned; and

(b) where, in accordance with the scheme, any charges are

payable in respect of such a licence—that, at the material

time, the person concerned had paid those charges to the

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licensor operating the scheme, or, if at that time the amount

payable could not be ascertained, he or she had given an

undertaking in writing to the licensor to pay the charges

when ascertained.

(3) A person who does anything in relation to which subsection (1)

applies is liable to pay to the licensor operating the licence scheme

concerned the amount of any charges that would be payable if he

or she were the holder of a licence granted in accordance with the

scheme in so far as the scheme relates to the doing of that thing and

the licensor may recover that amount in a court of competent

jurisdiction from the person as a debt due to the licensor.

159 Effect of order of Tribunal in relation to licences

Order under section 154. 155 or 156

(1) Where an order made on a reference under this Part with respect to

a licence scheme is for the time being in force and a person, in a

case to which the scheme reflecting the order applies, does

anything that, apart from this subsection, would be an infringement

of copyright but would not be such an infringement if he or she

were the holder of a licence granted in accordance with that

scheme, in so far as the scheme relates to cases to which the order

applies, that person shall, if he or she has complied with the

relevant requirements, be in the like position, in any proceedings

for infringement of that copyright, as if he or she had at the

material time been the holder of such a licence.

(2) For the purposes of the last preceding subsection, the relevant

requirements are:

(a) that, at all material times, the person concerned has complied

with the conditions that, in accordance with the scheme

reflecting the order, would be applicable to a licence in

respect of the case concerned; and

(b) where, in accordance with the scheme, any charges are

payable in respect of such a licence—that, at the material

time, the person concerned had paid those charges to the

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licensor operating the scheme, or, if at that time the amount

payable could not be ascertained, he or she had given an

undertaking in writing to the licensor to pay the charges

when ascertained.

(3) A person who does anything in relation to which subsection (1)

applies is liable to pay to the licensor operating the scheme

concerned the amount of any charges that would be payable if he

or she were the holder of a licence granted in accordance with the

scheme reflecting the order, in so far as the scheme relates to the

doing of that thing, and the licensor may recover that amount in a

court of competent jurisdiction from the person as a debt due to the

licensor.

Order under section 157 specifying conditions and charges

(4) Where the Tribunal has made an order on an application under

subsection 157(1), (2) or (3) specifying charges, if any, and

conditions, in relation to the applicant, in respect of the matters

specified in the order, then if:

(a) the applicant has complied with the conditions specified in

the order; and

(b) in a case where the order specifies any charges—he or she

has paid those charges to the licensor or, if the amount

payable could not be ascertained, has given to the licensor an

undertaking in writing to pay the charges when ascertained;

the applicant shall be in the like position, in any proceedings for

infringement of copyright relating to any of those matters, as if he

or she had at all material times been the holder of a licence granted

by the owner of the copyright concerned on the conditions, and

subject to payment of the charges (if any), specified in the order.

(5) Where the Tribunal has made an order on an application under

subsection 157(4) specifying charges (if any) and conditions, in

relation to the persons, or to persons included in the classes of

persons, specified in the order, in respect of matters specified in the

order, then, if:

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(a) any such person has complied with the conditions specified

in the order; and

(b) in the case where the order specifies any charges—the person

has paid those charges to the licensor or, if the amount

payable could not be ascertained, has given to the licensor an

undertaking in writing to pay the charges when ascertained;

that person shall be in the like position, in any proceedings for

infringement of copyright relating to any of those matters, as if he

or she had at all material times been the holder of a licence granted

by the owner of the copyright concerned on the conditions, and

subject to payment of the charges (if any), specified in the order.

(6) Where a person in relation to whom an order referred to in

subsection (4) or subsection (5) applies does, in relation to any of

the matters specified in that order, anything that, apart from that

subsection, would be an infringement of copyright but would not

be such an infringement if he or she were the holder of a licence in

respect of the doing of that thing granted by the owner of the

copyright concerned on the conditions and subject to payment of

the charges (if any) specified in the order, that person is liable to

pay to the owner of the copyright the amount of any charges that

would be payable if he or she were the holder of such a licence and

the owner of the copyright may recover that amount in a court of

competent jurisdiction from the person as a debt due to the owner

of the copyright.

(7) To avoid doubt, subsections (4) and (5) do not apply to an order

that a person be granted a licence.

Order under section 157 that person be granted licence

(8) A person whom the Tribunal has ordered under section 157 be

granted a licence in the terms proposed by the applicant, the

licensor concerned or another party to the application under that

section:

(a) is taken, for the purpose of proceedings for infringement of

copyright, to have been granted the licence in those terms;

and

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(b) is liable to pay the owner of the copyright concerned the

amount of any charges that would be payable if the person

had been granted the licence in those terms.

Note: Paragraph (a)—if those terms made the licence subject to conditions

and the person did not comply with the conditions, the licence will not

give the person a defence in the proceedings.

(9) The owner of the copyright may recover the amount described in

paragraph (8)(b) from the person in a court of competent

jurisdiction as a debt due to the owner.

Subdivision I—General provisions

160 Interim orders

Where an application or reference is made to the Tribunal under

this Act, the Tribunal may make an interim order having effect

until the final decision of the Tribunal on the application or

reference.

161 Reference of questions of law to Federal Court of Australia

(1) The Tribunal may, of its own motion or at the request of a party,

refer a question of law arising in proceedings before it for

determination by the Federal Court of Australia.

(2) A question shall not be referred to the Federal Court of Australia

by virtue of the last preceding subsection in pursuance of a request

made after the date on which the Tribunal gave its decision in the

proceedings unless the request is made before the expiration of

such period as is prescribed.

(3) If the Tribunal, after giving its decision in any proceedings, refuses

a request to refer a question to the Federal Court of Australia, the

party by whom the request was made may, within such period as is

prescribed, apply to the Federal Court of Australia for an order

directing the Tribunal to refer the question to the Federal Court of

Australia.

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(4) Where a reference is made to the Federal Court of Australia under

this section with respect to any proceedings before the Tribunal,

and where an application is made under the last preceding

subsection with respect to any such proceedings, every party to the

proceedings before the Tribunal is entitled to appear and to be

heard.

(5) Where, after the Tribunal has given its decision in any proceedings,

the Tribunal refers to the Federal Court of Australia under this

section a question of law that arose in the course of the

proceedings, and the Federal Court of Australia decides that the

question was erroneously determined by the Tribunal:

(a) the Tribunal shall reconsider the matter in dispute and, if it

considers it necessary to do so for the purpose of giving

effect to the decision of the Federal Court of Australia, shall

give to the parties to the proceedings a further opportunity of

presenting their cases; and

(b) if it appears to the Tribunal to be appropriate, and in

conformity with the decision of the Federal Court of

Australia, to do so, the Tribunal shall make such order

revoking or modifying any order previously made by it in the

proceedings, or, in the case of proceedings under section 157

where the Tribunal refused to make an order, shall make such

order under that section, as the Tribunal considers to be

appropriate.

(6) A reference of a question by the Tribunal to the Federal Court of

Australia under this section shall be by way of stating a case for the

opinion of the Federal Court of Australia.

(7) Jurisdiction is conferred on the Federal Court of Australia to hear

and determine a question of law referred to it under this section.

(8) For the purposes of this section, a question of law does not include

a question whether there is sufficient evidence to justify a finding

of fact by the Tribunal.

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162 Agreements or awards not affected

Nothing in this Part affects the operation of any agreement or of

any award made by an arbitrator, whether the agreement or award

was made before, or is made after, the commencement of this Act.

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Procedure and evidence Division 4

Section 163

Division 4—Procedure and evidence

163 Proceedings to be in public except in special circumstances

(1) Subject to this section, the hearing of proceedings before the

Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so by

reason of the confidential nature of any evidence or matter or for

any other reason, the Tribunal may:

(a) direct that a hearing or part of a hearing shall take place in

private and give directions as to the persons who may be

present; or

(b) give directions prohibiting or restricting the publication of

evidence given before the Tribunal (whether in public or in

private) or of matters contained in documents produced to the

Tribunal.

163A Application may be made to Tribunal by the agent of the

copyright owner

(1) An owner of copyright may make an application to the Tribunal

under this Act by his or her agent.

(2) Two or more owners of copyright may jointly make a single

application to the Tribunal by the same agent against the same

person or body.

164 Procedure

In proceedings before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the

regulations, within the discretion of the Tribunal;

(b) the Tribunal is not bound by the rules of evidence; and

(c) the proceedings shall be conducted with as little formality,

and with as much expedition, as the requirements of this Act

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and a proper consideration of the matters before the Tribunal

permit.

165 Mistakes or errors in orders of the Tribunal

The Tribunal may correct, in any order of the Tribunal, a clerical

mistake or an error arising from an accidental slip or omission.

166 Regulations as to procedure

(1) The regulations may make provision for or in relation to the

procedure in connexion with the making of references and

applications to the Tribunal and the regulation of proceedings

before the Tribunal and may prescribe the fees payable in respect

of those references and applications and the fees and expenses of

witnesses in those proceedings.

(2) The regulations may include provision:

(a) for requiring notice of an intended reference to the Tribunal

under section 154, section 155 or section 156 to be advertised

in accordance with the regulations;

(b) for requiring notice of an intended application to the Federal

Court of Australia under subsection 161(3) to be given to the

Tribunal and to the other parties to the proceedings, and for

limiting the time within which any such notice is to be given;

(c) for suspending, or authorizing or requiring the Tribunal to

suspend, the operation of orders of the Tribunal in cases

where, after giving its decision, the Tribunal refers a question

of law to the Federal Court of Australia;

(d) for modifying, in relation to orders of the Tribunal the

operation of which is suspended, the operation of any

provisions of this Part as to the effect of orders made under

this Part;

(e) for the publication of notices, or the doing of any other

things, to ensure that persons affected by the suspension of

an order of the Tribunal will be informed of its suspension;

and

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(f) for regulating or prescribing any other matters incidental to

or consequential upon any request, application, order or

decision under section 161.

167 Power to take evidence on oath

(1) The Tribunal may take evidence on oath or affirmation, and for

that purpose a member may administer an oath or affirmation.

(2) A member or the Registrar may summon a person to appear before

the Tribunal to give evidence.

(3) A member or the Registrar may summon a person to produce

specified documents or articles to the Tribunal by producing the

documents or articles to a specified person at a specified time at a

specified place.

168 Evidence in form of written statement

The Tribunal may, if it thinks fit, permit a person appearing as a

witness before the Tribunal to give evidence by tendering, and

verifying by oath or affirmation, a written statement, which shall

be filed with the Registrar.

169 Representation

In proceedings before the Tribunal:

(a) a party other than a body corporate or an unincorporated

body of persons may appear in person or be represented by

an employee of the party approved by the Tribunal;

(b) a party being a body corporate may be represented by a

director or other officer, or by an employee, of the party

approved by the Tribunal;

(c) a party being an unincorporated body of persons or a member

of such a body may be represented by a member, or by an

officer or employee, of the body approved by the Tribunal;

and

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(d) any party may be represented by a barrister or solicitor of the

High Court or of the Supreme Court of a State or of a

Territory.

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Section 169A

Division 4A—Alternative dispute resolution processes

169A Referral of proceeding for alternative dispute resolution

process

(1) If an application or reference is made to the Tribunal, the President

or a Deputy President may:

(a) direct the holding of a conference of the parties or their

representatives in relation to the proceeding, or any part of

the proceeding or any matter arising out of the proceeding; or

(b) direct that the proceeding, or any part of the proceeding or

any matter arising out of the proceeding, be referred for a

particular alternative dispute resolution process (other than

conferencing).

(2) The President may also direct the holding of conferences of the

parties or their representatives in the case of applications or

references made to the Tribunal that are of a kind specified in the

direction.

(3) The President may also direct that proceedings be referred for a

particular alternative dispute resolution process (other than

conferencing) in the case of applications or references made to the

Tribunal that are of a kind specified in the direction.

(4) A direction may be given under a particular paragraph of

subsection (1):

(a) whether or not a direction has previously been given under

the same or the other paragraph of that subsection in relation

to the proceeding; and

(b) whether or not a direction under subsection (2) or (3) has

applied.

(5) If a direction under this section is applicable to:

(a) a proceeding; or

(b) a part of a proceeding; or

(c) a matter arising out of a proceeding;

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each party must act in good faith in relation to the conduct of the

alternative dispute resolution process concerned.

169B Directions by President or Deputy President

(1) The President or a Deputy President may give directions about

alternative dispute resolution processes.

(2) Directions under subsection (1) may relate to:

(a) the procedure to be followed in the conduct of an alternative

dispute resolution process; and

(b) the person who is to conduct an alternative dispute resolution

process; and

(c) the procedure to be followed when an alternative dispute

resolution process ends.

(3) Subsection (2) does not limit subsection (1).

(4) The President or a Deputy President may at any time vary or

revoke a direction under subsection (1).

(5) A person is not entitled to conduct an alternative dispute resolution

process unless the person is:

(a) a member; or

(b) the Registrar; or

(c) a person whose services are made available, under an

arrangement made by the Registrar and the Chief Executive

Officer and Principal Registrar of the Federal Court of

Australia, to conduct the process; or

(d) a person engaged under section 169G.

169C Agreement about the terms of a decision etc.

(1) If:

(a) in the course of an alternative dispute resolution process

under this Division, agreement is reached between the parties

or their representatives as to the terms of a decision of the

Tribunal:

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(i) in the proceeding; or

(ii) in relation to the part of the proceeding; or

(iii) in relation to the matter arising out of the proceeding;

that would be acceptable to the parties; and

(b) the terms of the agreement are reduced to writing, signed by

or on behalf of the parties and lodged with the Tribunal; and

(c) 7 days pass after lodgment, and none of the parties has

notified the Tribunal in writing that he or she wishes to

withdraw from the agreement; and

(d) the Tribunal is satisfied that a decision in the terms of the

agreement or consistent with those terms would be within the

powers of the Tribunal;

the Tribunal may, if it appears to it to be appropriate to do so, act

in accordance with whichever of subsection (2) or (3) is relevant in

the particular case.

(2) If the agreement reached is an agreement as to the terms of a

decision of the Tribunal in the proceeding, the Tribunal may,

without giving the parties an opportunity of presenting their cases,

make a decision in accordance with those terms.

(3) If the agreement relates to:

(a) a part of the proceeding; or

(b) a matter arising out of the proceeding;

the Tribunal may, in its decision in the proceeding, give effect to

the terms of the agreement without giving the parties an

opportunity of presenting their cases so far as they relate only to

the part or matter to which the agreement relates.

169D Evidence not admissible

(1) Evidence of anything said, or any act done, at an alternative

dispute resolution process under this Division is not admissible:

(a) in any court; or

(b) in any proceedings before a person authorised by a law of the

Commonwealth or of a State or Territory to hear evidence; or

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(c) in any proceedings before a person authorised by the consent

of the parties to hear evidence.

Exceptions

(2) Subsection (1) does not apply so as to prevent the admission, at the

hearing of a proceeding before the Tribunal, of particular evidence

if the parties agree to the evidence being admissible at the hearing.

(3) Subsection (1) does not apply so as to prevent the admission, at the

hearing of a proceeding before the Tribunal, of:

(a) a case appraisal report prepared by a person conducting an

alternative dispute resolution process under this Division; or

(b) a neutral evaluation report prepared by a person conducting

an alternative dispute resolution process under this Division;

unless a party to the proceeding notifies the Tribunal before the

hearing that he or she objects to the report being admissible at the

hearing.

169E Eligibility of person conducting alternative dispute resolution

process to sit as a member of the Tribunal

If:

(a) an alternative dispute resolution process under this Division

in relation to a proceeding is conducted by a member of the

Tribunal; and

(b) a party (the objector) to the proceeding notifies the Tribunal,

before any party to the proceeding is given an opportunity of

presenting its case, that the objector objects to that member

participating in the proceeding;

that member is not entitled to be a member of the Tribunal as

constituted for the purposes of the proceeding.

169F Participation by telephone etc.

The person conducting an alternative dispute resolution process

under this Division may allow a person to participate by:

(a) telephone; or

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(b) closed-circuit television; or

(c) any other means of communication.

169G Engagement of persons to conduct alternative dispute

resolution processes

(1) The Registrar may, on behalf of the Commonwealth, engage

persons as consultants to conduct one or more kinds of alternative

dispute resolution processes under this Division.

(2) The Registrar must not engage a person under subsection (1) unless

the Registrar is satisfied, having regard to the person’s

qualifications and experience, that the person is a suitable person to

conduct the relevant kind or kinds of alternative dispute resolution

processes under this Division.

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Section 170

Division 5—Miscellaneous

170 Registrar

(1) There is to be a Registrar of the Tribunal.

(2) The Registrar is to be a person engaged under the Public Service

Act 1999, or a person whose services are made available under an

arrangement made under that Act, who is appointed as the

Registrar by the Minister by written instrument.

Remuneration as public servant

(3) The office of Registrar is not a public office for the purposes of the

Remuneration Tribunal Act 1973.

Resignation

(4) The Registrar may resign his or her appointment by giving the

Minister a written resignation.

Termination of appointment

(5) The Minister may terminate, by writing signed by him or her, the

appointment of the Registrar.

(6) The appointment of the Registrar is terminated if the Registrar

ceases to be engaged under the Public Service Act 1999 or to be a

person whose services are made available under an arrangement

made under that Act.

Acting appointment

(7) The President may appoint a person engaged under the Public

Service Act 1999, or a person whose services are made available

under an arrangement made under that Act, to act as the Registrar:

(a) during a vacancy in the office of Registrar (whether or not an

appointment has previously been made to the office); or

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(b) during any period, or during all periods, when the Registrar is

absent from duty or from Australia or is, for any reason,

unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

170A Other staff of the Tribunal

Any staff needed to assist the Tribunal must be persons engaged

under the Public Service Act 1999 or persons whose services are

made available under arrangements made under that Act.

171 Protecting persons connected with Tribunal proceedings

(1) A member has, in the performance of his or her duty as a member,

the same protection and immunity as a Justice of the High Court.

(1A) An alternative dispute resolution practitioner has, in the

performance of his or her duties as an alternative dispute resolution

practitioner under this Act, the same protection and immunity as a

Justice of the High Court.

(1B) The Registrar has in the performance of his or her duty as Registrar

under section 167, 174 or 175, the same protection and immunity

as a Justice of the High Court.

(2) A barrister, solicitor or other person appearing before the Tribunal

on behalf of a party has the same protection and immunity as a

barrister has in appearing for a party in proceedings in the High

Court.

(3) A person summoned to appear before the Tribunal as a witness has

the same protection, and is, in addition to the penalties provided by

this Act, subject to the same liabilities, in any civil or criminal

proceedings as a witness in proceedings in the High Court.

(4) In this section:

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alternative dispute resolution practitioner means a person who

conducts an alternative dispute resolution process under

Division 4A.

172 Offences by witnesses

Failing to appear

(1) A person commits an offence if:

(a) the person has been summoned to appear as a witness before

the Tribunal; and

(b) there has been tendered to the person an amount of money at

least equal to the expenses the person could reasonably be

expected to incur in connection with appearing as a witness;

and

(c) the person fails to appear in obedience to the summons.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Failing to produce document or article summoned

(2) A person commits an offence if:

(a) the person has been summoned to produce a document or

article to the Tribunal; and

(b) there has been tendered to the person an amount of money at

least equal to the expenses the person could reasonably be

expected to incur in connection with producing the document

or article; and

(c) the person fails to produce the document or article.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Refusal to swear or affirm

(3) A person commits an offence if:

(a) the person appears before the Tribunal; and

(b) the person refuses to be sworn or to make an affirmation.

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Penalty: 30 penalty units or imprisonment for 6 months, or both.

Refusal to answer questions or produce documents as required

(4) A person commits an offence if:

(a) the person appears before the Tribunal; and

(b) the Tribunal requires the person to answer a question or

produce a document or article; and

(c) the person refuses to answer the question or produce the

document or article.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

General defence of reasonable excuse

(5) Subsection (1), (2), (3) or (4) does not apply if the person has a

reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

173 Offences relating to the Tribunal

Insulting a member

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults or disturbs a member in the

exercise of his or her powers or functions as a member.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Interrupting proceedings of the Tribunal

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct interrupts the proceedings of the

Tribunal.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

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Using insulting language

(3) A person commits an offence if:

(a) the person uses insulting language towards another person;

and

(b) the other person is a member.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Creating a disturbance

(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct creates a disturbance in or near a place

where the Tribunal is sitting.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Taking part in creating or continuing a disturbance

(5) A person commits an offence if:

(a) the person takes part in creating or continuing a disturbance;

and

(b) the disturbance is in or near a place where the Tribunal is

sitting.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Contravention of direction limiting publication of evidence

(6) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes a direction of the Tribunal under

paragraph 163(2)(b).

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Contempt of Tribunal

(7) A person commits an offence if:

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(a) the person engages in conduct; and

(b) the person’s conduct would, if the Tribunal were a court of

record, constitute a contempt of that court.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

Definition of engage in conduct

(8) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

174 Costs of proceedings

(1) The Tribunal may order that the costs of any proceedings before it

incurred by any party, or a part of those costs, shall be paid by any

other party and may tax or settle the amount of the costs to be so

paid, or specify the manner in which they are to be taxed.

(1A) In taxing or settling under subsection (1) the amount of the costs,

or of a part of the costs, of any proceedings before the Tribunal

incurred by a party, the Tribunal or the person or persons taxing or

settling those costs, as the case may be, shall allow so much only

of the amount as in the opinion of the Tribunal or the person or

persons, as the case may be, would be allowed if the proceedings

were proceedings before the Federal Court of Australia and the

costs were taxed under the Federal Court Rules.

(2) Costs directed by the Tribunal to be paid to a party may be

recovered by that party in any court of competent jurisdiction.

(2A) In any proceedings before a court under subsection (2) for the

recovery of costs directed by the Tribunal to be paid to a party, a

certificate signed by the Registrar that states that the costs have

been taxed or the amount of the costs has been settled and sets out

the amount of the costs as so taxed or settled is prima facie

evidence of the matters stated in the certificate.

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175 Proof of orders of Tribunal

Without prejudice to any other method available by law for the

proof of orders of the Tribunal, a document purporting to be a copy

of such an order, and to be certified by the Registrar to be a true

copy of the order, is, in any proceeding, evidence of the order.

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Part VII—The Crown

Division 1—Crown copyright

176 Crown copyright in original works made under direction of

Crown

(1) Where, apart from this section, copyright would not subsist in an

original literary, dramatic, musical or artistic work made by, or

under the direction or control of, the Commonwealth or a State,

copyright subsists in the work by virtue of this subsection.

(2) The Commonwealth or a State is, subject to this Part and to Part X,

the owner of the copyright in an original literary, dramatic, musical

or artistic work made by, or under the direction or control of, the

Commonwealth or the State, as the case may be.

177 Crown copyright in original works first published in Australia

under direction of Crown

Subject to this Part and to Part X, the Commonwealth or a State is

the owner of the copyright in an original literary, dramatic, musical

or artistic work first published in Australia if first published by, or

under the direction or control of, the Commonwealth or the State,

as the case may be.

178 Crown copyright in recordings and films made under direction

of Crown

(1) Where, apart from this section, copyright would not subsist in a

sound recording or cinematograph film made by, or under the

direction or control of, the Commonwealth or a State, copyright

subsists in the recording or film by virtue of this subsection.

(2) The Commonwealth or a State is, subject to this Part and to Part X,

the owner of the copyright in a sound recording or cinematograph

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film made by, or under the direction or control of, the

Commonwealth or the State, as the case may be.

179 Provisions relating to ownership of copyright may be modified

by agreement

The last three preceding sections have effect subject to any

agreement made by, or on behalf of, the Commonwealth or a State

with the author of the work or with the maker of the sound

recording or cinematograph film, as the case may be, by which it is

agreed that the copyright in the work, recording or film is to vest in

the author or maker, or in another person specified in the

agreement.

180 Duration of Crown copyright in original works

(1) Copyright in a literary, dramatic or musical work of which the

Commonwealth or a State is the owner, or would, but for an

agreement to which the last preceding section applies, be the

owner:

(a) where the work is unpublished—continues to subsist so long

as the work remains unpublished; and

(b) where the work is published—subsists, or, if copyright in the

work subsisted immediately before its first publication,

continues to subsist, until the expiration of 50 years after the

expiration of the calendar year in which the work was first

published.

(2) Subject to the next succeeding subsection, copyright in an artistic

work of which the Commonwealth or a State is the owner, or

would, but for an agreement to which the last preceding section

applies, be the owner, continues to subsist until the expiration of 50

years after the expiration of the calendar year in which the work

was made.

(3) Copyright in an engraving or photograph of which the

Commonwealth or a State is the owner, or would, but for an

agreement to which the last preceding section applies, be the

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owner, continues to subsist until the expiration of 50 years after the

expiration of the calendar year in which the engraving or

photograph is first published.

181 Duration of Crown copyright in recordings and films

Copyright in a sound recording or cinematograph film of which the

Commonwealth or a State is the owner, or would, but for the

operation of an agreement to which section 179 applies, be the

owner, subsists until the expiration of 50 years after the expiration

of the calendar year in which the recording or film is first

published.

182 Application of Parts III and IV to copyright subsisting by virtue

of this Part

(1) Part III (other than the provisions of that Part relating to the

subsistence, duration or ownership of copyright) applies in relation

to copyright subsisting by virtue of this Part in a literary, dramatic,

musical or artistic work in like manner as it applies in relation to

copyright subsisting in such a work by virtue of that Part.

(2) Part IV (other than the provisions of that Part relating to the

subsistence, duration or ownership of copyright) applies in relation

to copyright subsisting by virtue of this Part in a sound recording

or cinematograph film in like manner as it applies in relation to

copyright subsisting in such a recording or film by virtue of that

Part.

182A Copyright in statutory instruments and judgments etc.

(1) The copyright, including any prerogative right or privilege of the

Crown in the nature of copyright, in a prescribed work is not

infringed by the making, by reprographic reproduction, of one

copy of the whole or of a part of that work by or on behalf of a

person and for a particular purpose.

(2) Subsection (1) does not apply to the making, by reprographic

reproduction, of a copy of the whole or a part of the work, where a

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charge is made for making and supplying that copy, unless the

amount of the charge does not exceed the cost of making and

supplying that copy.

(3) In subsection (1), a prescribed work means:

(a) an Act or State Act, an enactment of the legislature of a

Territory or an instrument (including an Ordinance or a rule,

regulation or by-law) made under an Act, a State Act or such

an enactment;

(b) a judgment, order or award of a Federal court or of a court of

a State or Territory;

(c) a judgment, order or award of a Tribunal (not being a court)

established by or under an Act or other enactment of the

Commonwealth, a State or a Territory;

(d) reasons for a decision of a court referred to in paragraph (b),

or of a Tribunal referred to in paragraph (c), given by the

court or by the Tribunal; or

(e) reasons given by a Justice, Judge or other member of a court

referred to in paragraph (b), or of a member of a Tribunal

referred to in paragraph (c), for a decision given by him or

her either as the sole member, or as one of the members, of

the court or Tribunal.

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Division 2—Use of copyright material for the Crown

182B Definitions

(1) Subject to subsection (2), in this Division:

collecting society means a company in respect of which a

declaration is in force under section 153F.

copyright material means:

(a) a work; or

(b) a published edition of a work; or

(c) a sound recording; or

(d) a cinematograph film; or

(e) a television or sound broadcast; or

(f) a work that is included in a sound recording, a cinematograph

film or a television or sound broadcast.

government means the Commonwealth or a State.

Note: State includes the Australian Capital Territory, the Northern Territory

and Norfolk Island: see paragraph 10(3)(n).

government copy means a reproduction in a material form of

copyright material made under subsection 183(1).

(2) A reference in subsection (1) to a work does not include a

reference to a literary work that consists of a computer program or

a compilation of computer programs.

182C Relevant collecting society

A company is the relevant collecting society in relation to a

government copy if there is in force, under Division 3 of Part VI, a

declaration of the company as the collecting society for the

purposes of this Division in relation to:

(a) all government copies; or

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(b) a class of government copies that includes the

first-mentioned government copy.

183 Use of copyright material for the services of the Crown

(1) The copyright in a literary, dramatic, musical or artistic work or a

published edition of such a work, or in a sound recording,

cinematograph film, television broadcast or sound broadcast, is not

infringed by the Commonwealth or a State, or by a person

authorized in writing by the Commonwealth or a State, doing any

acts comprised in the copyright if the acts are done for the services

of the Commonwealth or State.

(2) Where the Government of the Commonwealth has made an

agreement or arrangement with the Government of some other

country for the supply to that country of goods required for the

defence of that country:

(a) the doing of any act in connexion with the supply of those

goods in pursuance of the agreement or arrangement; and

(b) the sale to any person of such of those goods as are not

required for the purposes of the agreement or arrangement;

shall, for the purposes of the last preceding subsection, be each

deemed to be for the services of the Commonwealth.

(3) Authority may be given under subsection (1) before or after the

acts in respect of which the authority is given have been done, and

may be given to a person notwithstanding that he or she has a

licence granted by, or binding on, the owner of the copyright to do

the acts.

(4) Where an act comprised in a copyright has been done under

subsection (1), the Commonwealth or State shall, as soon as

possible, unless it appears to the Commonwealth or State that it

would be contrary to the public interest to do so, inform the owner

of the copyright, as prescribed, of the doing of the act and shall

furnish him or her with such information as to the doing of the act

as he or she from time to time reasonably requires.

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(5) Where an act comprised in a copyright has been done under

subsection (1), the terms for the doing of the act are such terms as

are, whether before or after the act is done, agreed between the

Commonwealth or the State and the owner of the copyright or, in

default of agreement, as are fixed by the Copyright Tribunal.

(6) An agreement or licence (whether made or granted before or after

the commencement of this Act) fixing the terms upon which a

person other than the Commonwealth or a State may do acts

comprised in a copyright is inoperative with respect to the doing of

those acts, after the commencement of this Act, under

subsection (1), unless the agreement or licence has been approved

by:

(a) in the case of the Commonwealth—the Minister; or

(b) in the case of a State—the Minister of the State with

responsibility for copyright.

(7) Where an article is sold and the sale is not, by virtue of

subsection (1), an infringement of a copyright, the purchaser of the

article, and a person claiming through him or her, is entitled to deal

with the article as if the Commonwealth or State were the owner of

that copyright.

(8) An act done under subsection (1) does not constitute publication of

a work or other subject-matter and shall not be taken into account

in the application of any provision of this Act relating to the

duration of any copyright.

(9) Where an exclusive licence is in force in relation to any copyright,

the preceding subsections of this section have effect as if any

reference in those subsections to the owner of the copyright were a

reference to the exclusive licensee.

(11) The reproduction, copying or communication of the whole or a part

of a work or other subject-matter for the educational purposes of an

educational institution of, or under the control of, the

Commonwealth, a State, the Australian Capital Territory or the

Northern Territory shall, for the purposes of this section, be

deemed not to be an act done for the services of the

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Commonwealth, that State, the Australian Capital Territory or the

Northern Territory.

183A Special arrangements for copying for services of government

(1) Subsections 183(4) and (5) do not apply in relation to a

government copy (whenever it was made) if a company is the

relevant collecting society for the purposes of this Division in

relation to the copy and the company has not ceased operating as

that collecting society.

(2) If subsection 183(5) does not apply to government copies made in

a particular period for the services of a government, the

government must pay the relevant collecting society in relation to

those copies (other than excluded copies) equitable remuneration

worked out for that period using a method:

(a) agreed on by the collecting society and the government; or

(b) if there is no agreement—determined by the Tribunal under

section 153K.

(3) The method of working out equitable remuneration payable to a

collecting society in respect of government copies (other than

excluded copies) for a period must:

(a) take into account the estimated number of those copies made

for the services of the government during the period, being

copies in relation to which the society is the relevant

collecting society; and

(b) specify the sampling system to be used for estimating the

number of copies for the purposes of paragraph (a).

(4) The method of working out the equitable remuneration payable

may provide for different treatment of different kinds or classes of

government copies.

(5) Subsections (3) and (4) apply whether the method is agreed on by

the collecting society and the government or is determined by the

Tribunal.

(6) In this section:

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excluded copies means government copies in respect of which it

appears to the government concerned that it would be contrary to

the public interest to disclose information about the making of the

copies.

183B Payment and recovery of equitable remuneration payable for

government copies

(1) Equitable remuneration payable to a collecting society under

subsection 183A(2) must be paid:

(a) in the manner, and at the times, agreed on by the collecting

society and the government; or

(b) if the Tribunal has made an order under subsection 153K(3)

specifying how and when payments are to be made—in the

manner, and at the times, specified in the order.

(2) If equitable remuneration is not paid in accordance with the

agreement or the Tribunal’s order, the collecting society may

recover the remuneration as a debt due to the society in a court of

competent jurisdiction.

183C Powers of collecting society to carry out sampling

(1) This section applies if the method of working out equitable

remuneration payable under subsection 183A(2) for government

copies made for the services of a government has been agreed on

by the government and the relevant collecting society or has been

determined by the Tribunal.

(2) The collecting society may give written notice to the government

that the society wishes to carry out sampling in accordance with

the method during a specified period at specified premises

occupied by the government. The period specified must not start

earlier than 7 days after the day on which the notice is given.

(3) The government may give the collecting society a written

objection, based on reasonable grounds, to the proposal to carry out

sampling during the period, or at the premises, specified in the

notice. However, if it does so, the notice of objection must propose

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an alternative period during which, or alternative premises at

which, as the case may be, sampling may be carried out.

(4) If the government gives the collecting society an objection,

sampling may not be carried out during the period, or at the

premises, to which the objection relates unless the objection is

withdrawn.

(5) If the government has not objected, or has withdrawn any objection

it made, before or during the specified period, a person authorised

in writing by the society may, during that period, enter the

premises specified in the notice and carry out sampling in

accordance with the method on any ordinary working day for

government staff who work in the premises.

(6) The government must take reasonable steps to ensure that the

person who attends at the premises is given all reasonable and

necessary facilities and assistance for carrying out the sampling.

183D Annual report and accounts of collecting society

(1) As soon as practicable after the end of each financial year, a

company that was a collecting society during any part of the year

must prepare a report of its operations as a collecting society

during the year and send a copy of the report to the Minister.

(2) A collecting society must keep accounting records correctly

recording and explaining the transactions of the society (including

any transactions as trustee) and the financial position of the

society.

(3) Accounting records must be kept in a manner that will enable true

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

and to be conveniently and properly audited.

(4) As soon as practicable after the end of each financial year, a

company that was a collecting society during any part of the year

must:

(a) have its accounts audited by an auditor who is not a member

of the society; and

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(b) give a copy of the audited accounts and the auditor’s report

on the audit to the Minister.

(5) The Minister must cause a copy of a document given to the

Minister under subsection (1) or paragraph (4)(b) to be laid before

each House of the Parliament within 15 sitting days of that House

after the Minister received the document.

(6) A collecting society must give its members reasonable access to

copies of:

(a) all reports and audited accounts prepared by it under this

section; and

(b) all auditors’ reports on the audit of the accounts.

(7) This section does not affect any obligations of a collecting society

relating to the preparation and lodging of annual returns or

accounts under the law under which it is incorporated.

183E Alteration of rules of collecting society

If a collecting society alters its rules, it must give a copy of the

altered rules, together with a statement of the effects of, and

reasons for, the alteration, to the Minister and the Tribunal within

21 days after the day on which the alteration was made.

183F Applying to Tribunal for review of distribution arrangement

(1) A collecting society or a member of a collecting society may apply

to the Copyright Tribunal for review of the arrangement adopted,

or proposed to be adopted, by the collecting society for distributing

amounts it collects in a period.

(2) If the Tribunal makes an order under section 153KA varying the

arrangement or substituting for it another arrangement, the

arrangement reflecting the Tribunal’s order has effect as if it had

been adopted in accordance with the collecting society’s rules, but

does not affect a distribution started before the order was made.

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Part VIII—Extension or restriction of operation of

Act

184 Application of Act to countries other than Australia

(1) Subject to this section, the regulations may make provision

applying any of the provisions of this Act (other than those of

Part XIA) specified in the regulations, in relation to a country

(other than Australia) so specified, in any one or more of the

following ways:

(a) so that the provisions apply in relation to literary, dramatic,

musical or artistic works or editions first published, or sound

recordings or cinematograph films made or first published, in

that country in like manner as those provisions apply in

relation to literary, dramatic, musical or artistic works or

editions first published, or sound recordings or

cinematograph films made or first published, in Australia;

(b) so that the provisions apply in relation to artistic works that

are buildings situated in that country or are attached to, or

form part of, buildings situated in that country in like manner

as those provisions apply in relation to artistic works that are

buildings situated in Australia or are attached to, or form part

of, buildings situated in Australia;

(c) so that the provisions apply in relation to persons who, at a

material time, are citizens or nationals of that country in like

manner as those provisions apply in relation to persons who,

at such a time, are Australian citizens;

(d) so that the provisions apply in relation to persons who, at a

material time, are resident in that country in like manner as

those provisions apply in relation to persons who, at such a

time, are resident in Australia;

(e) so that the provisions apply in relation to bodies incorporated

under the law of that country in like manner as those

provisions apply in relation to bodies incorporated under a

law of the Commonwealth or of a State;

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(f) so that the provisions apply in relation to television

broadcasts and sound broadcasts made from places in that

country by persons entitled under the law of that country to

make such broadcasts in like manner as those provisions

apply in relation to television broadcasts and sound

broadcasts made from places in Australia by the Australian

Broadcasting Corporation, by the Special Broadcasting

Service Corporation, by a holder of a licence allocated by the

Australian Communications and Media Authority under the

Broadcasting Services Act 1992 or by a person authorised to

make the broadcast by a class licence determined by that

Authority under that Act.

(2) Regulations applying a provision of this Act in relation to a

country other than Australia in accordance with the last preceding

subsection:

(a) may apply the provision without exception or modification or

subject to such exceptions or modifications as are specified

in the regulations; and

(b) may apply the provision either generally or in relation to such

classes of works or other subject-matter, or other classes of

cases, as are specified in the regulations.

(3) Before the Governor-General makes a regulation for the purposes

of subsection (1) applying a provision of this Act in relation to a

country other than Australia:

(a) the country must be a party to an international agreement

specified, in relation to the provision of this Act, by the

regulations for the purposes of this paragraph; or

(b) the Minister must be satisfied that adequate protection is or

will be given under the law of the country to owners of

copyright under this Act in the class of works or other

subject-matter to which the provision of this Act relates.

(4) Where:

(a) the identity of the author of an unpublished work is unknown

but there are reasonable grounds for believing that the author

of the work was, at the time when, or for a substantial part of

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the period during which, the work was made, a citizen or

national of a country other than Australia;

(b) under the law of that country, a person is authorized to

represent the author, or to protect and enforce the rights of

the author, in relation to that work; and

(c) provision is made by the regulations applying any of the

provisions of this Act in relation to works made by citizens

or nationals of that country;

that person shall, for the purposes of those provisions as so

applying, be treated as if he or she were the author of the work.

185 Denial of copyright to citizens of countries not giving adequate

protection to Australian works

(2) The regulations may, subject to subsection (3), provide, either

generally or in such classes of cases as are specified in the

regulations, that copyright under this Act does not subsist in works

first published after a date specified in the regulations (which may

be a date before the commencement of the regulations or before the

commencement of this Act) if, at the time of the first publication of

those works, the authors of the works were or are:

(a) citizens or nationals of a country specified in the regulations,

not being at that time persons resident in Australia; or

(b) in the case of works being sound recordings or

cinematograph films—bodies incorporated under the law of a

country specified in the regulations.

(3) Before the Governor-General makes a regulation for the purposes

of subsection (2) in relation to a country:

(a) the Minister must be satisfied that that the law of the country:

(i) does not give adequate protection to Australian works;

or

(ii) does not give adequate protection in relation to a class

or classes of such works;

(whether the lack of protection relates to the nature of the

work or the nationality, citizenship or country of residence of

its author, or all of those matters); and

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(b) the Minister must have regard to the nature and extent of that

lack of protection.

(4) In this section:

Australian work means a work the author of which was, at the

time when the work was made, a qualified person for the purposes

of the relevant provision of this Act.

author, in relation to a sound recording or a cinematograph film,

means the maker of the recording or film.

the relevant provision of this Act means:

(a) in relation to a literary, dramatic, musical or artistic

work—section 32; and

(b) in relation to a sound recording or a cinematograph

film—Part IV.

work means a literary, dramatic, musical or artistic work, a sound

recording or a cinematograph film.

186 Application of Act to international organizations

(1) The regulations may, subject to subsection (1A), declare an

organization:

(a) of which 2 or more countries, or the Governments of 2 or

more countries, are members; or

(b) that is constituted by persons representing 2 or more

countries, or representing the Governments of 2 or more

countries;

to be an international organization to which this Act applies.

(1A) Before the Governor-General makes a regulation for the purposes

of subsection (1) in relation to an organization, the Minister must

be satisfied that it is desirable that this Act should apply in relation

to the organization.

(2) An international organization to which this Act applies that

otherwise does not have, or at some material time otherwise did not

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have, the legal capacities of a body corporate has, and shall be

deemed at all material times to have had, the legal capacities of a

body corporate for the purpose of holding, dealing with and

enforcing copyright and for the purposes of all legal proceedings

relating to copyright.

187 Original works made or first published by international

organizations

(1) Where an original literary, dramatic, musical or artistic work is

made by, or under the direction or control of, an international

organization to which this Act applies in such circumstances that

copyright would not, apart from this subsection, subsist in the

work:

(a) copyright subsists in the work;

(b) that copyright subsists so long as the work remains

unpublished; and

(c) the organization is, subject to Part X, the owner of that

copyright.

(2) Where an original literary, dramatic, musical or artistic work is

first published by, or under the direction or control of, an

international organization to which this Act applies in such

circumstances that copyright would not, apart from this subsection,

subsist in the work immediately after the first publication of the

work:

(a) copyright subsists in the work, or, if copyright in the work

subsisted immediately before its first publication, continues

to subsist in the work;

(b) that copyright subsists until the end of 70 years after the end

of the calendar year in which the work was first published;

and

(c) the organization is, subject to Part X, the owner of that

copyright.

(3) Part III, other than the provisions of that Part relating to the

subsistence, duration or ownership of copyright, applies in relation

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to copyright subsisting by virtue of this section in like manner as it

applies in relation to copyright subsisting by virtue of that Part.

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

published by international organizations

(1) Where a sound recording or a cinematograph film is made by, or

under the direction or control of, an international organization to

which this Act applies in such circumstances that copyright would

not, apart from this subsection, subsist in the recording or film:

(a) copyright subsists in the recording or film;

(b) that copyright subsists so long as the recording or film

remains unpublished; and

(c) the organization is, subject to Part X, the owner of that

copyright.

(2) Where a sound recording or a cinematograph film is first published

by, or under the direction or control of, an international

organization to which this Act applies in such circumstances that

copyright would not, apart from this subsection, subsist in the

recording or film immediately after the first publication of the

recording or film:

(a) copyright subsists in the recording or film, or, if copyright in

the recording or film subsisted immediately before its first

publication, continues to subsist in the recording or film;

(b) that copyright subsists until the end of 70 years after the end

of the calendar year in which the recording or film was first

published; and

(c) the organization is, subject to Part X, the owner of that

copyright.

(3) Where an edition of a literary, dramatic, musical or artistic work or

of 2 or more literary, dramatic, musical or artistic works, other than

an edition that reproduces a previous edition of the same work or

works, is published by, or under the direction or control of, an

international organization to which this Act applies in such

circumstances that copyright would not, apart from this subsection,

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subsist in the edition immediately after the first publication of the

edition:

(a) copyright subsists in the edition;

(b) that copyright subsists until the end of 25 years after the end

of the calendar year in which the edition was first published;

and

(c) the organization is, subject to Part X, the owner of that

copyright.

(4) Part IV, other than the provisions of that Part relating to the

subsistence, duration or ownership of copyright, applies in relation

to copyright subsisting by virtue of this section in like manner as it

applies in relation to copyright subsisting by virtue of that Part.

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Moral rights of performers and of authors of literary, dramatic, musical or artistic works

and cinematograph films Part IX

Preliminary Division 1

Section 189

Part IX—Moral rights of performers and of

authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 1—Preliminary

189 Definitions

In this Part, unless the contrary intention appears:

act of false attribution:

(a) in relation to an author’s moral rights—has the meaning

given by subsection 195AC(2); and

(b) in relation to a performer’s moral rights—has the meaning

given by subsection 195AHA(2).

artistic work means an artistic work in which copyright subsists.

attributable act:

(a) in relation to an author’s moral rights—has the meaning

given by subsection 193(2); and

(b) in relation to a performer’s moral rights—has the meaning

given by subsection 195ABA(2).

attributor:

(a) in relation to an author’s moral rights—has the meaning

given by subsection 195AC(2); and

(b) in relation to a performer’s moral rights—has the meaning

given by subsection 195AHA(2).

author, in relation to a cinematograph film, means the maker of the

film.

cinematograph film means the complete and final version of a

cinematograph film in which copyright subsists.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 1 Preliminary

Section 189

copy record means a record so far as it embodies:

(a) a recorded performance; or

(b) a substantial part of a recorded performance;

being a record derived directly or indirectly from an original record

of the performance.

deal means sell, let for hire, by way of trade offer or expose for

sale or hire, exhibit in public, or distribute and, in Divisions 3 and

3A, includes publish.

derogatory treatment:

(a) in relation to an author’s moral rights—has the relevant

meaning given by Division 4; and

(b) in relation to a performer’s moral rights—has the meaning

given by section 195ALB.

director, in relation to a cinematograph film, has a meaning

affected by section 191.

dramatic work means a dramatic work in which copyright subsists.

infringing article means:

(a) in relation to an author’s moral rights:

(i) an article that embodies a literary, dramatic, musical or

artistic work, or a cinematograph film, whether or not

the article bears or contains other material; or

(ii) a reproduction of, or of an adaptation of, a literary,

dramatic or musical work; or

(iii) a reproduction of an artistic work; or

(iv) a copy of a cinematograph film;

being a work or film in respect of which a moral right of the

author has been infringed, other than by derogatory treatment

not involving the material distortion or alteration of, or the

mutilation of, the work or film; and

(b) in relation to the moral rights of a performer in a live

performance:

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Preliminary Division 1

Section 189

(i) a copy record of the live performance, where the

making of the copy record has infringed the performer’s

right of attribution of performership; or

(ii) a record embodying the live performance, where a

person’s name is inserted or affixed on the record and

the inserting or affixing has infringed the performer’s

right not to have performership falsely attributed; or

(iii) a record embodying the live performance, where the

record also embodies sounds the making of which have

infringed the performer’s right not to have

performership falsely attributed; or

(iv) a record embodying the live performance, being the live

performance as affected by derogatory treatment that

has infringed the performer’s right of integrity of

performership; and

(c) in relation to the moral rights of a performer in a recorded

performance:

(i) a copy record of the recorded performance, where the

making of the copy record has infringed the performer’s

right of attribution of performership; or

(ii) a record embodying the recorded performance, where a

person’s name is inserted or affixed on the record and

the inserting or affixing has infringed the performer’s

right not to have performership falsely attributed; or

(iii) a copy record of the recorded performance, where

dealings with the copy as a copy of an unaltered

recorded performance have infringed the performer’s

right not to have performership falsely attributed; or

(iv) a record embodying the recorded performance, being a

record that incorporates derogatory treatment that has

infringed the performer’s right of integrity of

performership.

literary work means a literary work in which copyright subsists.

maker, in relation to a cinematograph film, means the director of

the film, the producer of the film and the screenwriter of the film.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 1 Preliminary

Section 189

moral right means:

(a) in relation to an author:

(i) a right of attribution of authorship; or

(ii) a right not to have authorship falsely attributed; or

(iii) a right of integrity of authorship; and

(b) in relation to a performer:

(i) a right of attribution of performership; or

(ii) a right not to have performership falsely attributed; or

(iii) a right of integrity of performership.

musical work means a musical work in which copyright subsists.

name, in Divisions 3 and 3A, includes a pseudonym, initials or a

monogram.

original record means a record produced upon the making of a

sound recording of a live performance.

Note: The sound track of a cinematograph film is treated as not being a

sound recording: see section 23.

performance means a performance within the meaning of

Part XIA, so far as the performance consists of sounds.

performer in a performance:

(a) means each person who contributed to the sounds of the

performance; and

(b) in relation to a performance that occurs outside Australia,

does not include a person who is not a qualified person at the

time of the performance.

Note: See also section 191B, which deals with the conductor of a musical

performance.

performership means participation in a performance, as the

performer or one of the performers.

person representing the author, in relation to a possible

infringement of any of an author’s moral rights in respect of a

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Preliminary Division 1

Section 189

work, means a person who, under subsection 195AN(1) or (2), is

entitled to exercise and enforce the moral right concerned.

person representing the performer means a person who, under

subsection 195ANB(1) or (2), is entitled to exercise and enforce a

performer’s moral right.

producer, in relation to a cinematograph film, has the meaning

given by section 191.

qualified person has the same meaning as in Part XIA.

recorded performance means a performance embodied in a record

so as to constitute a sound recording.

record embodying a performance means:

(a) an original record of a performance; or

(b) a copy record of a performance.

right not to have performership falsely attributed has the meaning

given by Division 3A.

right of attribution of authorship has the meaning given by

Division 2.

right of attribution of performership has the meaning given by

Division 2A.

right of integrity of authorship has the meaning given by

Division 4.

right of integrity of performership has the meaning given by

Division 4A.

right not to have authorship falsely attributed has the meaning

given by Division 3.

screenwriter, in relation to a cinematograph film, means the person

who wrote the script or screenplay of the film, as that meaning is

affected by section 191.

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artistic works and cinematograph films

Division 1 Preliminary

Section 190

sound recording means a sound recording in which copyright

subsists.

staged, in relation to a live performance, has the meaning given by

section 191A.

work means a literary work, a dramatic work, a musical work, an

artistic work or a cinematograph film.

190 Moral rights conferred on individuals

Only individuals have moral rights.

191 Director, producer and screenwriter of cinematograph film

(1) A reference in this Part to the director of a cinematograph film in

the direction of which 2 or more individuals were involved is a

reference to the principal director of the film and does not include a

reference to any subsidiary director, whether described as an

associate director, line director, assistant director or in any other

way.

(2) A reference in this Part to the producer of a cinematograph film is

a reference to:

(a) the individual who was the producer of the film; or

(b) if there were 2 or more individuals involved in the production

of the film—the individual who was the principal producer of

the film;

and does not include a reference to any subsidiary producer,

whether described as an executive producer, associate producer,

line producer, assistant producer or in any other way.

(3) As only individuals have moral rights (see section 190), if the

producer of a cinematograph film was a body corporate, the only

moral rights in respect of the film are those of the director and

screenwriter.

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Preliminary Division 1

Section 191A

(4) A reference in this Part to the screenwriter of a cinematograph film

for which 2 or more individuals were involved in the writing of the

script or screenplay is a reference to the principal screenwriter.

Note: If there were 2 or more principal directors, 2 or more individuals who

were the principal producers, or 2 or more principal screenwriters, of a

cinematograph film, section 195AZJ, 195AZK or 195AZL applies.

191A Staging a performance

For the purposes of this Part, a live performance is staged by the

person who makes the arrangements necessary for the performance

(including elements of the performance not consisting of sounds)

to take place.

191B Conductor to be treated as a performer

If a performance of a musical work is conducted by a conductor,

then the sounds of the performance are to be treated as having been

made by the conductor (as well as by the persons who actually

made those sounds).

Note: As a consequence, the conductor will be able to be treated as being

one of the performers. Note, however, the qualified person

requirement in the definition of performer in section 189.

192 Rights to be additional to other rights

(1) The moral rights of the author of a work are in addition to any

other rights in relation to the work that the author or anyone else

has under this Act.

(2) The moral rights of a performer in a live performance or recorded

performance are in addition to any other rights in relation to the

performance that the performer or anyone else has under this Act.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 2 Right of attribution of authorship

Section 193

Division 2—Right of attribution of authorship

193 Author’s right of attribution of authorship

(1) The author of a work has a right of attribution of authorship in

respect of the work.

(2) The author’s right is the right to be identified in accordance with

this Division as the author of the work if any of the acts (the

attributable acts) mentioned in section 194 are done in respect of

the work.

194 Acts giving rise to right of attribution of authorship

(1) If the work is a literary, dramatic or musical work, the attributable

acts are the following:

(a) to reproduce the work in a material form;

(b) to publish the work;

(c) to perform the work in public;

(d) to communicate the work to the public;

(e) to make an adaptation of the work.

(2) If the work is an artistic work, the attributable acts are the

following:

(a) to reproduce the work in a material form;

(b) to publish the work;

(c) to exhibit the work to the public;

(d) to communicate the work to the public.

(3) If the work is a cinematograph film, the attributable acts are the

following:

(a) to make a copy of the film;

(b) to exhibit the film in public;

(c) to communicate the film to the public.

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Right of attribution of authorship Division 2

Section 195

195 Nature of the identification of author

(1) Subject to subsection (2), the author of a work may be identified by

any reasonable form of identification.

(2) If:

(a) the author of a work has made known, either generally or to a

person who is required under this Part to identify the author,

that the author wishes to be identified in a particular way;

and

(b) the identification of the author in that way is reasonable in

the circumstances;

the identification is to be made in that way.

195AA Identification of author to be clear and reasonably

prominent

An identification of the author of a work must be clear and

reasonably prominent.

195AB What is a reasonably prominent identification

When a literary, dramatic, musical or artistic work is reproduced in

a material form, an adaptation is made of a literary, dramatic or

musical work, or a copy of a cinematograph film is made, an

identification of the author is taken to be reasonably prominent if it

is included on each reproduction of the work or of the adaptation or

on each copy of the film, as the case may be, in such a way that a

person acquiring the reproduction or copy will have notice of the

author’s identity.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 2A Right of attribution of performership

Section 195ABA

Division 2A—Right of attribution of performership

195ABA Performer’s right of attribution of performership

(1) A performer in a live performance or recorded performance has a

right of attribution of performership in respect of the performance.

(2) The performer’s right is the right to be identified in accordance

with this Division as a performer in the performance if any of the

acts (the attributable acts) mentioned in section 195ABB are done

in respect of the performance.

Note: If there is more than one performer in a performance, then each

performer has a right of attribution of performership: see

subsection 195AZQ(2).

195ABB Acts giving rise to right of attribution of performership

(1) The attributable acts for a live performance are the following:

(a) communicating the live performance to the public;

(b) staging the live performance in public.

Note: For the definition of staged, see section 191A.

(2) The attributable acts for a recorded performance are the following:

(a) making a copy record of the recorded performance;

(b) communicating the recorded performance to the public.

195ABC Nature of the identification of performer

(1) Subject to this section, a performer may be identified by any

reasonable form of identification.

(2) If:

(a) a performer has made known, either generally or to a person

who is required under this Part to identify the performer, that

the performer wishes to be identified in a particular way; and

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Right of attribution of performership Division 2A

Section 195ABD

(b) the identification of the performer in that way is reasonable

in the circumstances;

the identification is to be made in that way.

(3) If a performance is presented by performers who use a group name,

then identification by using the group name is sufficient

identification of the performers in the group.

195ABD Identification of performer to be clear and reasonably

prominent or audible

An identification of a performer must be clear and reasonably

prominent or reasonably audible.

195ABE What is a reasonably prominent identification

When a copy record is made of a recorded performance, an

identification of a performer or group of performers is taken to be

reasonably prominent if it is included on each copy record of the

recorded performance in such a way that a person acquiring the

copy record will have notice of the identity of the performer or

group.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

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

Section 195AC

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

attributed

195AC Author’s right not to have authorship falsely attributed

(1) The author of a work has a right not to have authorship of the work

falsely attributed.

(2) The author’s right is the right not to have a person (the attributor)

do, in respect of the work, any of the acts (the acts of false

attribution) mentioned in the following provisions of this Division.

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

or musical work

If the work is a literary, dramatic or musical work, it is an act of

false attribution in relation to the author of the work:

(a) to insert or affix, or to authorise the inserting or affixing of, a

person’s name in or on the work, or in or on a reproduction

of the work, in such a way as:

(i) to imply falsely that the person is the author or an

author of the work; or

(ii) to imply falsely that the work is an adaptation of a work

of the person; or

(b) to deal with the work with a person’s name so inserted or

affixed, if the attributor knows that the person is not an

author of the work or that the work is not an adaptation of a

work of the person, as the case may be; or

(c) to deal with a reproduction of the work, being a reproduction

in or on which a person’s name has been so inserted or

affixed, if the attributor knows that the person is not an

author of the work or that the work is not an adaptation of a

work of the person, as the case may be; or

(d) to perform the work in public, or communicate it to the

public, as being a work of which a person is the author or as

being an adaptation of a work of a person, if the attributor

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Section 195AE

knows that the person is not an author of the work or that the

work is not an adaptation of the work of the person, as the

case may be.

195AE Acts of false attribution of authorship of artistic work

(1) This section applies if the work is an artistic work.

(2) It is an act of false attribution in relation to the author of the work:

(a) to insert or affix, or to authorise the inserting or affixing of, a

person’s name in or on the work, or in or on a reproduction

of the work, or to use, or to authorise the use of, a person’s

name in connection with the work, or in connection with a

reproduction of the work, in such a way as to imply falsely

that the person is an author of the work; or

(b) to deal with the work with a person’s name so inserted or

affixed, if the attributor knows that the person is not an

author of the work; or

(c) to deal with a reproduction of the work, being a reproduction

in or on which a person’s name has been so inserted or

affixed, if the attributor knows that the person is not an

author of the work; or

(d) to communicate the work to the public as being a work of

which a person is the author, if the attributor knows that the

person is not an author of the work.

195AF Acts of false attribution of authorship of cinematograph film

(1) This section applies if the work is a cinematograph film.

(2) It is an act of false attribution in relation to the director, producer

or screenwriter of the film:

(a) to insert or affix, or to authorise the inserting or affixing of, a

person’s name on the film or on a copy of the film in such a

way as to imply falsely that the person is the director,

producer or screenwriter, as the case may be, of the film; or

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Section 195AG

(b) to deal with the film or a copy of the film if a person’s name

has been so inserted or affixed on the film or a copy, as the

case may be, and the attributor knows that the person is not

the director, producer or screenwriter, as the case may be, of

the film; or

(c) to communicate the film to the public as being a film of

which a person is the director, producer or screenwriter, as

the case may be, if the attributor knows that the person is not

the director, producer or screenwriter of the film.

195AG Acts of false attribution of authorship of altered literary,

dramatic, musical or artistic work

(1) If the work is a literary, dramatic, musical or artistic work that has

been altered by a person other than the author of the work, it is an

act of false attribution in relation to the author of the work:

(a) to deal with the work as so altered, as being the unaltered

work of the author; or

(b) to deal with a reproduction of the work as so altered, as being

a reproduction of the unaltered work of the author;

if, to the knowledge of the attributor, it is not the unaltered work or

a reproduction of the unaltered work, as the case may be, of the

author.

(2) Subsection (1) does not apply if:

(a) the effect of the alteration is insubstantial; or

(b) the alteration was required by law to be made, or was

otherwise necessary to avoid a breach of any law.

195AH Act of false attribution of authorship of altered

cinematograph film

(1) If the work is a cinematograph film that has been altered by a

person other than the maker of the film, it is an act of false

attribution in relation to the director, the producer and the

screenwriter of the film to deal with a copy of the film as so

altered, as being a copy of the unaltered film, if, to the knowledge

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of the attributor, the copy of the film is not a copy of the unaltered

film.

(2) Subsection (1) does not apply if:

(a) the effect of the alteration is insubstantial; or

(b) the alteration was required by law to be made, or was

otherwise necessary to avoid a breach of any law.

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artistic works and cinematograph films

Division 3A Right not to have performership falsely attributed

Section 195AHA

Division 3A—Right not to have performership falsely

attributed

195AHA Performer’s right not to have performership falsely

attributed

(1) A performer in a live performance or recorded performance has a

right not to have performership falsely attributed.

(2) A performer’s right is the right not to have a person (the attributor)

do, in respect of the live performance or recorded performance (as

the case may be), any of the acts (the acts of false attribution)

mentioned in sections 195AHB and 195AHC.

Note: If there is more than one performer in a performance, then each

performer has a right not to have performership falsely attributed: see

subsection 195AZQ(3).

195AHB Acts of false attribution of performership

Acts of false attribution for live performances

(1) For a live performance, it is an act of false attribution for the stager

of the performance, or a person authorised by the stager, to state

falsely, or imply falsely, to the audience or intended audience

immediately before the performance that:

(a) a person is, or will be, a performer in the performance; or

(b) the performance is being, or will be, presented by a particular

group of performers.

Note: For the definition of staged, see section 191A.

Example 1: The stager of a live performance given by X and Y attributes the

performance to A and B. This is an act of false attribution in

relation to both X and Y.

Example 2: The stager of a live performance given by X and Y attributes the

performance to X and A. This is an act of false attribution in

relation to both X and Y (even though X is mentioned in the

attribution).

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(2) For a live performance, it is an act of false attribution for the stager

of the performance, or a person authorised by the stager, to state

falsely, or imply falsely, to the audience during the performance

that:

(a) a person is, was, or will be a performer in the performance;

or

(b) the performance is being, was, or will be, presented by a

particular group of performers.

(3) For a live performance, it is an act of false attribution for the stager

of the performance, or a person authorised by the stager, to state

falsely, or imply falsely, to the audience immediately after the

performance that:

(a) a person was a performer in the performance; or

(b) a particular group of performers presented the performance.

(4) However, doing an act mentioned in subsection (1), (2) or (3) is

only an act of false attribution if the performance is in public or is

communicated to the public. For this purpose, any unauthorised

communication to the public is to be disregarded.

Acts of false attribution for recorded performances—individual

performers

(5) For a recorded performance, each of the following acts is an act of

false attribution:

(a) to insert or affix, or authorise the inserting or affixing of, a

person’s name in or on a record embodying the performance

in such a way as to imply falsely that the person is a

performer in the performance;

(b) to deal with a record embodying the performance if:

(i) a person’s name has been inserted or affixed in or on the

record as mentioned in paragraph (a); and

(ii) the attributor knows that the person is not a performer in

the performance;

(c) to communicate the recorded performance to the public as

being a performance in which a person is a performer, if the

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Division 3A Right not to have performership falsely attributed

Section 195AHC

attributor knows that the person is not a performer in the

performance.

Acts of false attribution for recorded performances—groups of

performers

(6) For a recorded performance, each of the following acts is an act of

false attribution:

(a) to insert or affix, or authorise the inserting or affixing of, a

group name in or on a record embodying the performance in

such a way as to imply falsely that the group are performers

in the performance;

(b) to deal with a record embodying the performance if:

(i) a group name has been inserted or affixed in or on the

record as mentioned in paragraph (a); and

(ii) the attributor knows that the group are not performers in

the performance;

(c) to communicate the recorded performance to the public as

being a performance in which a group are performers, if the

attributor knows that the group are not performers in the

performance.

Silent performers

(7) It is not an act of false attribution of performership to state that a

performer who participated silently in a performance performed in

the performance.

Example: X and Y together present a cabaret act in which X sings and Y dances

silently. The “performance” for the purposes of this Part consists only

of the sounds made by X. It is not an act of false attribution in respect

of the performance to state or imply that Y was also a performer.

195AHC Act of false attribution of performership of altered

recorded performance

(1) If the work is a recorded performance that has been altered by a

person other than a performer in the performance, it is an act of

false attribution of performership in relation to the performer to

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deal with a copy of the recorded performance as so altered, as

being a copy of the unaltered recorded performance, if, to the

knowledge of the attributor, the copy of the recorded performance

is not a copy of the unaltered recorded performance.

(2) Subsection (1) does not apply if:

(a) the effect of the alteration is insubstantial; or

(b) the alteration was required by law to be made, or was

otherwise necessary to avoid a breach of any law.

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Part IX Moral rights of performers and of authors of literary, dramatic, musical or

artistic works and cinematograph films

Division 4 Right of integrity of authorship of a work

Section 195AI

Division 4—Right of integrity of authorship of a work

195AI Author’s right of integrity of authorship

(1) The author of a work has a right of integrity of authorship in

respect of the work.

(2) The author’s right is the right not to have the work subjected to

derogatory treatment.

195AJ Derogatory treatment of literary, dramatic or musical work

In this Part:

derogatory treatment, in relation to a literary, dramatic or musical

work, means:

(a) the doing, in relation to the work, of anything that results in a

material distortion of, the mutilation of, or a material

alteration to, the work that is prejudicial to the author’s

honour or reputation; or

(b) the doing of anything else in relation to the work that is

prejudicial to the author’s honour or reputation.

195AK Derogatory treatment of artistic work

In this Part:

derogatory treatment, in relation to an artistic work, means:

(a) the doing, in relation to the work, of anything that results in a

material distortion of, the destruction or mutilation of, or a

material alteration to, the work that is prejudicial to the

author’s honour or reputation; or

(b) an exhibition in public of the work that is prejudicial to the

author’s honour or reputation because of the manner or place

in which the exhibition occurs; or

(c) the doing of anything else in relation to the work that is

prejudicial to the author’s honour or reputation.

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Section 195AL

195AL Derogatory treatment of cinematograph film

In this Part:

derogatory treatment, in relation to a cinematograph film, means:

(a) the doing, in relation to the film, of anything that results in a

material distortion of, the mutilation of, or a material

alteration to, the film that is prejudicial to the maker’s honour

or reputation; or

(b) the doing of anything else in relation to the film that is

prejudicial to the honour or reputation of the maker of the

film.

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Division 4A Right of integrity of performership

Section 195ALA

Division 4A—Right of integrity of performership

195ALA Performer’s right of integrity of performership

(1) A performer in a live performance or recorded performance has a

right of integrity of performership in respect of the performance.

(2) The performer’s right is the right not to have the performance

subjected to derogatory treatment.

Note: If there is more than one performer in a performance, then each

performer has a right of integrity of performership: see

subsection 195AZQ(4).

195ALB Derogatory treatment of performance

In this Part:

derogatory treatment, in relation to a performer in a live

performance or recorded performance, means the doing, in relation

to the performance, of anything that results in a material distortion

of, the mutilation of, or a material alteration to, the performance

that is prejudicial to the performer’s reputation.

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Section 195AM

Division 5—Duration and exercise of moral rights

Subdivision A—Duration and exercise of moral rights of

authors

195AM Duration of author’s moral rights

(1) An author’s right of integrity of authorship in respect of a

cinematograph film continues in force until the author dies.

(2) An author’s right of integrity of authorship in respect of a work

other than a cinematograph film continues in force until copyright

ceases to subsist in the work.

(3) An author’s moral rights (other than the right of integrity of

authorship) in respect of a work continue in force until copyright

ceases to subsist in the work.

195AN Exercise of author’s moral rights

(1) If the author of a work dies, the author’s moral rights (other than

the right of integrity of authorship in respect of a cinematograph

film) in respect of the work may be exercised and enforced by his

or her legal personal representative.

(2) If the affairs of the author of a work are lawfully administered by

another person (except under a law for the relief of bankrupt or

insolvent debtors), the author’s moral rights may be exercised and

enforced by the person administering his or her affairs.

(3) Subject to this section, a moral right in respect of a work is not

transmissible by assignment, by will, or by devolution by operation

of law.

(4) If:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a

cinematograph film;

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Division 5 Duration and exercise of moral rights

Section 195ANA

has 2 or more authors, the authors may enter into a written

co-authorship agreement by which each of them agrees not to

exercise his or her right of integrity of authorship in respect of the

film or work, as the case may be, except jointly with the other

author or authors.

(5) A co-authorship agreement has effect according to its terms.

Subdivision B—Duration and exercise of moral rights of

performers

195ANA Duration of performer’s moral rights for recorded

performances

(1) A performer’s right of attribution of performership in respect of a

recorded performance continues in force until copyright ceases to

subsist in the recorded performance.

(2) A performer’s right not to have performership falsely attributed in

respect of a recorded performance continues in force until

copyright ceases to subsist in the recorded performance.

(3) A performer’s right of integrity of performership in respect of a

recorded performance continues in force until the performer dies.

195ANB Exercise of performer’s moral rights

(1) If a performer in a live performance or recorded performance dies,

the performer’s moral rights in respect of the performance may be

exercised and enforced by his or her legal personal representative.

(2) If the affairs of a performer in a live performance or recorded

performance are lawfully administered by another person (except

under a law for the relief of bankrupt or insolvent debtors), the

performer’s moral rights may be exercised and enforced by the

person administering his or her affairs.

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Section 195ANB

(3) Subject to this section, a moral right in respect of a live

performance or recorded performance is not transmissible by

assignment, by will, or by devolution by operation of law.

(4) If there are 2 or more performers in a live performance or recorded

performance, then the performers may enter into a written

co-performership agreement by which each of them agrees not to

exercise his or her right of integrity of performership in respect of

the live performance or recorded performance, as the case may be,

except jointly with the other performer or performers.

(5) A co-performership agreement has effect according to its terms.

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Division 6 Infringement of moral rights

Section 195AO

Division 6—Infringement of moral rights

Subdivision A—Infringement of moral rights of authors

195AO Infringement of right of attribution of authorship

Subject to this Subdivision, a person infringes an author’s right of

attribution of authorship in respect of a work if the person does, or

authorises the doing of, an attributable act in respect of the work

without the identification of the author in accordance with

Division 2 as the author of the work.

195AP Infringement of right not to have authorship falsely

attributed

Subject to this Subdivision, a person infringes an author’s right not

to have authorship of a work falsely attributed if the person does an

act of false attribution in respect of the work.

195AQ Infringement of right of integrity of authorship

(1) This section has effect subject to this Subdivision.

(2) A person infringes an author’s right of integrity of authorship in

respect of a work if the person subjects the work, or authorises the

work to be subjected, to derogatory treatment.

(3) If a literary, dramatic or musical work has been subjected to

derogatory treatment of a kind mentioned in paragraph (a) of the

definition of derogatory treatment in section 195AJ that infringes

the author’s right of integrity of authorship in respect of the work,

a person infringes the author’s right of integrity of authorship in

respect of the work if the person does any of the following in

respect of the work as so derogatorily treated:

(a) reproduces it in a material form;

(b) publishes it;

(c) performs it in public;

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Section 195AR

(d) communicates it to the public;

(e) makes an adaptation of it.

(4) If an artistic work has been subjected to derogatory treatment of a

kind mentioned in paragraph (a) of the definition of derogatory

treatment in section 195AK that infringes the author’s right of

integrity of authorship in respect of the work, a person infringes the

author’s right of integrity of authorship in respect of the work if the

person does any of the following in respect of the work as so

derogatorily treated:

(a) reproduces it in a material form;

(b) publishes it;

(c) communicates it to the public.

(5) If a cinematograph film has been subjected to derogatory treatment

of a kind mentioned in paragraph (a) of the definition of

derogatory treatment in section 195AL that infringes the author’s

right of integrity of authorship in respect of the film, a person

infringes the author’s right of integrity of authorship in respect of

the film if the person does any of the following in respect of the

film as so derogatorily treated:

(a) makes a copy of it;

(b) exhibits it;

(c) communicates it to the public.

195AR No infringement of right of attribution of authorship if it was

reasonable not to identify the author

(1) A person who does, or authorises the doing of, an attributable act

in respect of a work does not, because the author of the work is not

identified, infringe the author’s right of attribution of authorship in

respect of the work if the person establishes that it was reasonable

in all the circumstances not to identify the author.

(2) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

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Division 6 Infringement of moral rights

Section 195AR

circumstances not to identify the author of a literary, dramatic,

musical or artistic work include the following:

(a) the nature of the work;

(b) the purpose for which the work is used;

(c) the manner in which the work is used;

(d) the context in which the work is used;

(e) any practice, in the industry in which the work is used, that is

relevant to the work or the use of the work;

(f) any practice contained in a voluntary code of practice, in the

industry in which the work is used, that is relevant to the

work or the use of the work;

(g) any difficulty or expense that would have been incurred as a

result of identifying the author;

(h) whether the work was made:

(i) in the course of the author’s employment; or

(ii) under a contract for the performance by the author of

services for another person;

(i) if the work has 2 or more authors—their views about the

failure to identify them.

(3) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

circumstances not to identify the maker of a cinematograph film

include the following:

(a) the nature of the film;

(b) whether the primary purpose for which the film was made

was for exhibition at cinemas, for broadcasting by television

or for some other purpose;

(c) the purpose for which the film is used;

(d) the manner in which the film is used;

(e) the context in which the film is used;

(f) any practice, in the industry in which the film is used, that is

relevant to the film or the use of the film;

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Section 195AS

(g) any practice contained in a voluntary code of practice, in the

industry in which the film is used, that is relevant to the film

or the use of the film;

(h) any difficulty or expense that would have been incurred as a

result of identifying the maker;

(i) whether the film was made in the course of the employment

of the director, producer or screenwriter.

195AS No infringement of right of integrity of authorship if

derogatory treatment or other action was reasonable

(1) A person does not, by subjecting a work, or authorising a work to

be subjected, to derogatory treatment, infringe the author’s right of

integrity of authorship in respect of the work if the person

establishes that it was reasonable in all the circumstances to subject

the work to the treatment.

(2) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

circumstances to subject a literary, dramatic, musical or artistic

work to derogatory treatment include the following:

(a) the nature of the work;

(b) the purpose for which the work is used;

(c) the manner in which the work is used;

(d) the context in which the work is used;

(e) any practice, in the industry in which the work is used, that is

relevant to the work or the use of the work;

(f) any practice contained in a voluntary code of practice, in the

industry in which the work is used, that is relevant to the

work or the use of the work;

(g) whether the work was made:

(i) in the course of the author’s employment; or

(ii) under a contract for the performance by the author of

services for another person;

(h) whether the treatment was required by law or was otherwise

necessary to avoid a breach of any law;

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Division 6 Infringement of moral rights

Section 195AT

(i) if the work has 2 or more authors—their views about the

treatment.

(3) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

circumstances to subject a cinematograph film to derogatory

treatment include the following:

(a) the nature of the film;

(b) whether the primary purpose for which the film was made

was for exhibition at cinemas, for broadcasting by television

or for some other use;

(c) the purpose for which the film is used;

(d) the manner in which the film is used;

(e) the context in which the film is used;

(f) any practice, in the industry in which the film is used, that is

relevant to the film or the use of the film;

(g) any practice contained in a voluntary code of practice, in the

industry in which the film is used, that is relevant to the film

or the use of the film;

(h) whether the film was made in the course of the employment

of the director, producer or screenwriter who alleges that the

treatment was derogatory;

(i) whether the treatment was required by law or was otherwise

necessary to avoid a breach of any law.

(4) A person who does any act referred to in subsection 195AQ(3), (4)

or (5) in respect of a work that has been subjected to derogatory

treatment of a kind mentioned in that subsection does not, by doing

that act, infringe the author’s right of integrity of authorship in

respect of the work if the person establishes that it was reasonable

in all the circumstances to do that act.

195AT Certain treatment of works not to constitute an infringement

of the author’s right of integrity of authorship

(1) The destruction of a moveable artistic work is not an infringement

of the author’s right of integrity of authorship in respect of the

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work if the person who destroyed the work gave the author, or a

person representing the author, a reasonable opportunity to remove

the work from the place where it was situated.

(2) A change in, or the relocation, demolition or destruction of, a

building is not an infringement of the author’s right of integrity of

authorship in respect of an artistic work that is affixed to or forms

part of the building if:

(a) the owner of the building, after making reasonable inquiries,

cannot discover the identity and location of the author or a

person representing the author; or

(b) if paragraph (a) does not apply—the owner complies with

subsection (2A) in relation to the change, relocation,

demolition or destruction.

(2A) This subsection is complied with by the owner of a building in

relation to a change in, or the relocation, demolition or destruction

of, the building if:

(a) the owner has, in accordance with the regulations and before

the change, relocation, demolition or destruction is carried

out, given the author or a person representing the author a

written notice stating the owner’s intention to carry out the

change, relocation, demolition or destruction; and

(b) the notice stated that the person to whom the notice was

given may, within 3 weeks from the date of the notice, seek

to have access to the work for either or both of the following

purposes:

(i) making a record of the work;

(ii) consulting in good faith with the owner about the

change, relocation, demolition or destruction; and

(c) the notice contained such other information and particulars as

are prescribed; and

(d) where the person to whom the notice was given notifies the

owner within the period of 3 weeks referred to in

paragraph (b) that the person wishes to have access to the

work for either or both of the purposes mentioned in that

paragraph—the owner has given the person a reasonable

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opportunity within a further period of 3 weeks to have such

access; and

(e) where, in the case of a change or relocation, the person to

whom the notice was given notifies the owner that the person

requires the removal from the work of the author’s

identification as the author of the work—the owner has

complied with the requirement.

(3) A change in, or the relocation, demolition or destruction of, a

building is not an infringement of the author’s right of integrity of

authorship in respect of the building, or in respect of any plans or

instructions used in the construction of the building or a part of the

building if:

(a) the owner of the building, after making reasonable inquiries,

cannot discover the identity and location of the author or a

person representing the author, or of any of the authors or

persons representing the authors, as the case may be; or

(b) if paragraph (a) does not apply—the owner complies with

subsection (3A) in relation to the change, relocation,

demolition or destruction.

(3A) This subsection is complied with by the owner of a building in

relation to a change in, or the relocation, demolition or destruction

of, the building if:

(a) the owner has, in accordance with the regulations and before

the change, relocation, demolition or destruction is carried

out, given the author or a person representing the author, or

the authors or the persons representing the authors, whose

identity and location the owner knows, a written notice

stating the owner’s intention to carry out the change,

relocation, demolition or destruction; and

(b) the notice stated that the person to whom the notice was

given may, within 3 weeks from the date of the notice, seek

to have access to the building for either or both of the

following purposes:

(i) making a record of the artistic work;

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(ii) consulting in good faith with the owner about the

change, relocation, demolition or destruction; and

(c) the notice contained such other information and particulars as

are prescribed; and

(d) where the person to whom the notice was given notifies the

owner within the period of 3 weeks referred to in

paragraph (b) that the person wishes to have access to the

building for either or both of the purposes mentioned in that

paragraph—the owner has given the person a reasonable

opportunity within a further period of 3 weeks to have such

access; and

(e) where, in the case of a change or relocation, the person to

whom the notice was given notifies the owner that the person

requires the removal from the building of the author’s

identification as the author of the artistic work—the owner

has complied with the requirement.

(4) Subsections (2), (2A), (3) and (3A) do not limit the operation of

section 195AG.

(4A) The removal or relocation by a person (the remover) of a moveable

artistic work that is situated at a place that is accessible to the

public, and was made for installation in that place, is not an

infringement of the author’s right of integrity of authorship in

respect of the work if the remover:

(a) after making reasonable inquiries, cannot discover the

identity and location of the author or a person representing

the author; or

(b) if paragraph (a) does not apply—complies with

subsection (4B) in relation to the removal or relocation.

(4B) This subsection is complied with by the remover in relation to the

removal or relocation of a moveable artistic work if:

(a) the remover has, in accordance with the regulations and

before the removal or relocation is carried out, given the

author or a person representing the author a written notice

stating the remover’s intention to carry out the removal or

relocation; and

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Division 6 Infringement of moral rights

Section 195AU

(b) the notice stated that the person to whom the notice was

given may, within 3 weeks from the date of the notice, seek

to have access to the work for either or both of the following

purposes:

(i) making a record of the work;

(ii) consulting in good faith with the remover about the

removal or relocation; and

(c) the notice contained such other information and particulars as

are prescribed; and

(d) where the person to whom the notice was given notifies the

remover within the period of 3 weeks referred to in

paragraph (b) that the person wishes to have access to the

work for either or both of the purposes mentioned in that

paragraph—the remover has given the person a reasonable

opportunity within a further period of 3 weeks to have such

access; and

(e) where the person to whom the notice was given notifies the

remover that the person requires the removal from the work

of the author’s identification as the author of the work—the

remover has complied with the requirement.

(5) Anything done in good faith to restore or preserve a work is not, by

that act alone, an infringement of the author’s right of integrity of

authorship in respect of the work.

195AU Infringement by importation for sale or other dealing

(1) An author’s moral right in respect of a work is infringed by a

person who imports an article into Australia for the purpose of

dealing with the article if the importer knew, or ought reasonably

to have known, that, if the article had been made in Australia, it

would have been an infringing article.

(2) In subsection (1):

dealing with does not include distributing except where the

proposed distribution is for the purposes of sale.

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Section 195AV

195AV Infringement by sale and other dealings

(1) An author’s moral right in respect of a work is infringed by a

person who, in Australia, deals with an article if the person knew,

or ought reasonably to have known, that the article was an

infringing article or, in respect of an imported article, would, if it

had been made in Australia, have been an infringing article.

(2) In subsection (1):

deals with does not include:

(a) distributes, except where the distribution is for the purposes

of sale; or

(b) deals with by means of a dealing covered by

paragraph 195AD(b), 195AD(c), 195AE(2)(b), 195AE(2)(c)

or 195AF (2)(b) or subsection 195AG(1) or 195AH(1); or

(c) deals with by means of an exhibition that is an attributable

act to which section 195AO applies or an exhibition to which

subsection 195AQ(5) applies.

195AVA Matters to be taken into account

In determining whether a person has authorised the doing of an act

that is an infringement of moral rights in respect of a work, the

matters that must be taken into account include the following:

(a) the extent (if any) of the person’s power to prevent the doing

of the act concerned;

(b) the nature of any relationship existing between the person

and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or

avoid the doing of the act, including whether the person

complied with any relevant industry codes of practice.

195AVB Communication by use of certain facilities

A person (including a carrier or carriage service provider) who

provides facilities for making, or facilitating the making of, a

communication is not taken to have authorised the doing of an act

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Division 6 Infringement of moral rights

Section 195AW

that is an infringement of moral rights in respect of a work merely

because another person uses the facilities so provided to do such an

act.

195AW Author’s consent to act or omission—films or works in films

(1A) This section applies to a work that is:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a

cinematograph film.

(1) It is not an infringement of a moral right of an author in respect of

a work to do, or omit to do, something if the act or omission is

within the scope of a written consent given by the author or a

person representing the author.

(2) A consent may be given in relation to all or any acts or omissions

occurring before or after the consent is given.

(3) A consent may be given in relation to:

(a) a specified work or specified works existing when the

consent is given; or

(b) a work or works of a particular description:

(i) the making of which has not begun; or

(ii) that is or are in the course of being made.

(4) A consent may be given by an employee for the benefit of his or

her employer in relation to all works made or to be made by the

employee in the course of his or her employment.

(5) A consent given for the benefit of the owner or prospective owner

of copyright in the work or works to which it relates is presumed,

unless the contrary intention appears in the consent instrument, to

extend to his or her licensees and successors in title, and to any

persons who are authorised by the owner or prospective owner, or

by such a licensee or successor in title, to do acts comprised in the

copyright.

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Section 195AWA

(6) Subsections (2) to (5), inclusive, do not limit the operation of

subsection (1).

195AWA Author’s consent to act or omission—work that is not a

film or included in a film

(1) This section applies to a literary, dramatic, musical or artistic work

other than such a work as included in a cinematograph film.

(2) It is not an infringement of a moral right of an author in respect of

a work to do, or omit to do, something if the act or omission is

within the scope of a written consent genuinely given by the author

or a person representing the author.

(3) Subject to subsection (4), a consent does not have any effect unless

it is given:

(a) in relation to specified acts or omissions, or specified classes

or types of acts or omissions, whether occurring before or

after the consent is given; and

(b) in relation to either of the following:

(i) a specified work or specified works existing when the

consent is given; or

(ii) a specified work, or works of a particular description,

the making of which has not begun or that is or are in

the course of being made.

(4) A consent may be given by an employee for the benefit of his or

her employer in relation to all or any acts or omissions (whether

occurring before or after the consent is given) and in relation to all

works made or to be made by the employee in the course of his or

her employment.

(5) A consent given for the benefit of the owner or prospective owner

of copyright in the work or works to which it relates is presumed,

unless the contrary intention appears in the consent instrument, to

extend to his or her licensees and successors in title, and to any

persons who are authorised by the owner or prospective owner, or

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Section 195AWB

by such a licensee or successor in title, to do acts comprised in the

copyright.

195AWB Consent invalidated by duress or false or misleading

statements

(1) If a person applies duress to an author, or to a person representing

an author, in connection with the giving of a consent for the

purposes of section 195AW or 195AWA, the consent does not

have any effect.

(2) If:

(a) a person makes a statement to another person; and

(b) the person makes the statement knowing:

(i) that the statement is false or misleading in a material

particular; or

(ii) that a matter or thing has been omitted from the

statement without which the statement is false or

misleading in a material particular; and

(c) the person makes the statement with the intention of

persuading the other person to give, or not to give, a consent

for the purposes of section 195AW or 195AWA;

the consent does not have any effect.

195AX Acts or omissions outside Australia

It is not an infringement of an author’s moral right in respect of a

work to do, or omit to do, something outside Australia.

Subdivision B—Infringement of moral rights of performers

195AXA Infringement of right of attribution of performership

Subject to this Subdivision, a person infringes a performer’s right

of attribution of performership in respect of a live performance or

recorded performance if the person does, or authorises the doing

of, an attributable act in respect of the performance without the

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Section 195AXB

identification of the performer in accordance with Division 2A as a

performer in the performance.

195AXB Infringement of right not to have performership falsely

attributed

Subject to this Subdivision, a person infringes a performer’s right

not to have performership falsely attributed if the person does an

act of false attribution in respect of the performance.

195AXC Infringement of right of integrity of performership

(1) This section has effect subject to this Subdivision.

(2) A person infringes a performer’s right of integrity of performership

in respect of a live performance or recorded performance if the

person subjects the performance, or authorises the performance to

be subjected, to derogatory treatment.

(3) If a live performance, as affected by derogatory treatment, has

become a recorded performance, then a person infringes a

performer’s right of integrity of performership in respect of the live

performance if the person does any of the following in respect of

the recorded performance:

(a) makes a copy record of the recorded performance;

(b) communicates the recorded performance to the public;

(c) causes the recorded performance to be heard in public.

(4) If a recorded performance has been subjected to derogatory

treatment, then a person infringes a performer’s right of integrity of

performership in respect of the recorded performance if the person

does any of the following in respect of the recorded performance

(as affected by the derogatory treatment):

(a) makes a copy record of the recorded performance;

(b) communicates the recorded performance to the public;

(c) causes the recorded performance to be heard in public.

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Section 195AXD

195AXD No infringement of right of attribution of performership if

it was reasonable not to identify the performer

(1) A person who does, or authorises the doing of, an attributable act

in respect of a live performance or recorded performance does not,

because a performer in the performance is not identified, infringe

the performer’s right of attribution of performership in respect of

the performance if the person establishes that it was reasonable in

all the circumstances not to identify the performer.

(2) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

circumstances not to identify a performer in a live performance or

recorded performance include the following:

(a) the nature of the performance;

(b) the purpose for which the performance is used;

(c) the manner in which the performance is used;

(d) the context in which the performance is used;

(e) any practice, in the industry in which the performance is

used, that is relevant to the performance or to the use of the

performance;

(f) any practice contained in a voluntary code of practice, in the

industry in which the performance is used, that is relevant to

the performance or to the use of the performance;

(g) any difficulty or expense that would have been incurred as a

result of identifying the performer;

(h) whether the performer participated in the performance in the

course of the employment of the performer.

Note: For example, a performance may be used to attract custom in a hotel

or restaurant.

195AXE No infringement of right of integrity of performership if

derogatory treatment or other action was reasonable

(1) A person does not, by subjecting a live performance or recorded

performance to derogatory treatment, or by authorising a live

performance or recorded performance to be subjected to derogatory

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Section 195AXE

treatment, infringe a performer’s right of integrity of performership

in respect of the performance if the person establishes that it was

reasonable in all the circumstances to subject the performance to

the treatment.

(2) The matters to be taken into account in determining for the

purposes of subsection (1) whether it was reasonable in particular

circumstances to subject a live performance or recorded

performance to derogatory treatment include the following:

(a) the nature of the performance;

(b) the purpose for which the performance is used;

(c) the manner in which the performance is used;

(d) any practice, in the industry in which the performance is

used, that is relevant to the performance or to the use of the

performance;

(e) any practice contained in a voluntary code of practice, in the

industry in which the performance is used, that is relevant to

the performance or to the use of the performance;

(f) whether the performer who alleges that the treatment was

derogatory participated in the performance in the course of

the employment of the performer;

(g) whether the treatment was required by law or was otherwise

necessary to avoid a breach of any law.

Note: For example, a performance may be used to attract custom in a hotel

or restaurant.

(3) A person who:

(a) does an act referred to in subsection 195AXC(3) in respect of

a live performance that has been subjected to derogatory

treatment; or

(b) does an act referred to in subsection 195AXC(4) in respect of

a recorded performance that has been subjected to derogatory

treatment;

does not, by doing that act, infringe a performer’s right of integrity

of performership in respect of the performance if the person

establishes that it was reasonable in all the circumstances to do that

act.

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Division 6 Infringement of moral rights

Section 195AXF

195AXF Infringement by importation for sale or other dealing

(1) A performer’s moral right in respect of a live performance or

recorded performance is infringed by a person who imports an

article into Australia for the purpose of dealing with the article if

the importer knew, or ought reasonably to have known, that, if the

article had been made in Australia, it would have been an

infringing article.

(2) In subsection (1):

dealing with does not include distributing except where the

proposed distribution is for the purposes of sale.

195AXG Infringement by sale and other dealings

(1) A performer’s moral right in respect of a live performance or

recorded performance is infringed by a person who, in Australia,

deals with an article if the person knew, or ought reasonably to

have known, that the article was an infringing article or, in respect

of an imported article, would, if it had been made in Australia,

have been an infringing article.

(2) In subsection (1):

deals with does not include:

(a) distributes, except where the distribution is for the purposes

of sale; or

(b) deals with by means of a dealing covered by

paragraph 195AHB(5)(b) or (6)(b).

195AXH Matters to be taken into account

In determining whether a person has authorised the doing of an act

that is an infringement of moral rights in a live performance or

recorded performance, the matters that must be taken into account

include the following:

(a) the extent (if any) of the person’s power to prevent the doing

of the act concerned;

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Section 195AXI

(b) the nature of any relationship existing between the person

and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or

avoid the doing of the act, including whether the person

complied with any relevant industry codes of practice.

195AXI Communication by use of certain facilities

A person (including a carrier or carriage service provider) who

provides facilities for making, or facilitating the making of, a

communication is not taken to have authorised the doing of an act

that is an infringement of moral rights in a live performance or

recorded performance merely because another person uses the

facilities so provided to do such an act.

195AXJ Performer’s consent to act or omission

(1) It is not an infringement of a performer’s moral right in respect of a

live performance or recorded performance to do, or omit to do,

something if the act or omission is within the scope of a written

consent given by the performer or a person representing the

performer.

Note: The consent of one performer does not affect the moral rights of any

other performer: see subsection 195AZQ(5).

(2) A consent may be given in relation to all or any acts or omissions

occurring before or after the consent is given.

(3) A consent may be given in relation to:

(a) a specified performance or specified performances occurring

before the consent is given; or

(b) a performance or performances of a particular description:

(i) that have not yet occurred; or

(ii) that are in the course of occurring.

(4) A consent may be given by an employee for the benefit of his or

her employer in relation to all performances in which the employee

is to be a performer in the course of his or her employment.

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Section 195AXK

(5) A consent given for the benefit of the owner or prospective owner

of copyright in the recorded performance or recorded performances

to which the consent relates is presumed, unless the contrary

intention appears in the consent instrument, to extend to his or her

licensees and successors in title, and to any persons who are

authorised by the owner or prospective owner, or by such a

licensee or successor in title, to do acts comprised in the copyright.

(6) Subsections (2) to (5), inclusive, do not limit the operation of

subsection (1).

195AXK Consent invalidated by duress or false or misleading

statements

(1) If a person applies duress to a performer or, if a performer is

represented by a person, to the person representing the performer,

in connection with the giving of a consent for the purposes of

section 195AXJ, the consent does not have any effect.

(2) If:

(a) a person makes a statement to another person; and

(b) the person makes the statement knowing:

(i) that the statement is false or misleading in a material

particular; or

(ii) that a matter or thing has been omitted from the

statement without which the statement is false or

misleading in a material particular; and

(c) the person makes the statement with the intention of

persuading the other person to give, or not to give, a consent

for the purposes of section 195AXJ;

the consent does not have any effect.

195AXL Acts or omissions outside Australia

It is not an infringement of a performer’s moral right in respect of a

live performance or recorded performance to do, or omit to do,

something outside Australia.

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Remedies for infringements of moral rights Division 7

Section 195AY

Division 7—Remedies for infringements of moral rights

Subdivision A—Remedies for infringement of moral rights of

authors

195AY Definition etc.

(1) In this Subdivision:

action means a proceeding of a civil nature between parties, and

includes a counterclaim.

(2) In the application of this Subdivision in relation to a counterclaim,

references to the defendant are taken to be references to the

plaintiff.

195AZ Actions for infringement of author’s moral rights

If a person infringes any of the moral rights of an author in respect

of a work, the infringement is not an offence but the author or a

person representing the author may bring an action in respect of the

infringement, subject to any co-authorship agreement in force

under section 195AN to which the author is a party.

195AZA Remedies for infringements of author’s moral rights

(1) Subject to section 203, the relief that a court may grant in an action

for an infringement of any of an author’s moral rights in respect of

a work includes any one or more of the following:

(a) an injunction (subject to any terms that the court thinks fit);

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the author has been

infringed;

(d) an order that the defendant make a public apology for the

infringement;

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Division 7 Remedies for infringements of moral rights

Section 195AZA

(e) an order that any false attribution of authorship, or

derogatory treatment, of the work be removed or reversed.

(2) In exercising its discretion as to the appropriate relief to be granted,

the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to

have been aware, of the author’s moral rights;

(b) the effect on the author’s honour or reputation resulting from

any damage to the work;

(c) the number, and categories, of people who have seen or heard

the work;

(d) anything done by the defendant to mitigate the effects of the

infringement;

(e) if the moral right that was infringed was a right of attribution

of authorship—any cost or difficulty that would have been

associated with identifying the author;

(f) any cost or difficulty in removing or reversing any false

attribution of authorship, or derogatory treatment, of the

work.

(3) In deciding whether or not to grant an injunction under

subsection (1), the court must consider whether the parties have

made any attempt to negotiate a settlement of the action and

whether it should adjourn the hearing or further hearing of the

action for the purpose of giving the parties an appropriate

opportunity to negotiate a settlement, whether through a process of

mediation or otherwise.

(4) If:

(a) the work is a cinematograph film; and

(b) the action is brought by a person who is a screenwriter of the

film; and

(c) the relief granted in the action consists of or includes

damages; and

(d) the person has already been granted relief by way of damages

in an action for an infringement of his or her moral rights as

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Remedies for infringements of moral rights Division 7

Section 195AZD

an author of the dramatic work constituted by the script or

screenplay for the film;

the amount of any damages that, apart from this subsection, would

be awarded to the person in the action referred to in paragraph (b)

is to be reduced by the amount of the damages awarded to the

person in the action referred to in paragraph (d).

(5) If:

(a) the work is a dramatic work constituted by the screenplay or

script for a cinematograph film; and

(b) the action is brought by a person who is an author of the

screenplay or script; and

(c) the relief granted in the action consists of or includes

damages; and

(d) the person has already been granted relief by way of damages

in an action for an infringement of his or her moral rights as a

screenwriter of the film;

the amount of any damages that, apart from this subsection, would

be awarded to the person in the action referred to in paragraph (b)

is to be reduced by the amount of the damages awarded to the

person in the action referred to in paragraph (d).

(6) If, in respect of an act done after the death of an author of a work,

damages are recovered under this section by the legal personal

representative of the author, those damages devolve as if they

formed part of the author’s estate and as if the right of action in

respect of the doing of the act had subsisted, and had been vested

in the author, immediately before his or her death.

Note: Subsection (6) does not apply in relation to the right of integrity of

authorship in respect of a cinematograph film, which ends on the

author’s death. See subsection 195AM(1).

195AZD Presumption as to subsistence of copyright

In an action brought under this Part for an infringement of a moral

right in respect of a work, copyright is presumed to subsist in the

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Division 7 Remedies for infringements of moral rights

Section 195AZE

work if the defendant does not put in issue the question whether

copyright subsists in the work.

195AZE Presumption as to subsistence of author’s moral rights

In an action brought under this Part for an infringement of a moral

right in respect of a work, if copyright is presumed or proved to

have subsisted in the work when the infringement is alleged to

have occurred, the moral right is presumed to have subsisted in the

work at that time.

195AZF Presumptions in relation to authorship of work

(1) Section 127 applies in respect of an action brought under this Part.

(2) If a name purporting to be the name of the director, producer or

screenwriter of a cinematograph film appeared on copies of the

film that were issued when the film was made, then, in an action

brought under this Part, the person whose name so appeared is, if it

was his or her true name or a name by which he or she was

commonly known, presumed, unless the contrary is established, to

be the director, producer or screenwriter, as the case may be, of the

film.

195AZG Other presumptions in relation to literary, dramatic,

musical or artistic work

Sections 128 and 129 apply in respect of an action brought under

this Part.

Subdivision B—Remedies for infringement of moral rights of

performers

195AZGA Definition etc.

(1) In this Subdivision:

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Section 195AZGB

action means a proceeding of a civil nature between parties, and

includes a counterclaim.

(2) In the application of this Subdivision in relation to a counterclaim,

references to the defendant are taken to be references to the

plaintiff.

195AZGB Actions for infringement of performer’s moral rights

If a person infringes any of the moral rights of a performer in

respect of a live performance or recorded performance, then the

performer or a person representing the performer may bring an

action in respect of the infringement, subject to any

co-performership agreement in force under section 195ANB to

which the performer is a party.

195AZGC Remedies for infringements of performer’s moral rights

(1) Subject to section 203, the relief that a court may grant in an action

for an infringement of any of a performer’s moral rights in respect

of a live performance or recorded performance includes any one or

more of the following:

(a) an injunction (subject to any terms that the court thinks fit);

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the performer has been

infringed;

(d) an order that the defendant make a public apology for the

infringement;

(e) an order that any false attribution of performership, or

derogatory treatment, of the performance be removed or

reversed.

(2) In exercising its discretion as to the appropriate relief to be granted,

the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to

have been aware, of the performer’s moral rights;

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Division 7 Remedies for infringements of moral rights

Section 195AZGD

(b) the effect on the performer’s reputation resulting from any

damage to the performance;

(c) the number, and categories, of people who have heard the

performance;

(d) anything done by the defendant to mitigate the effects of the

infringement;

(e) if the moral right that was infringed was a right of attribution

of performership—any cost or difficulty that would have

been associated with identifying the performer;

(f) any cost or difficulty in removing or reversing any false

attribution of performership, or derogatory treatment, of the

performance.

(3) In deciding whether or not to grant an injunction under

subsection (1), the court must consider whether the parties have

made any attempt to negotiate a settlement of the action and

whether it should adjourn the hearing or further hearing of the

action for the purpose of giving the parties an appropriate

opportunity to negotiate a settlement, whether through a process of

mediation or otherwise.

(4) If, after the death of a performer, in respect of an act done in a live

performance or recorded performance, damages are recovered

under this section by the legal personal representative of the

performer, those damages devolve as if they formed part of the

performer’s estate and as if the right of action in respect of the

doing of the act had subsisted, and had been vested in the

performer, immediately before his or her death.

Note: Subsection (4) does not apply in relation to the right of integrity of

performership, which ends on the performer’s death: see

section 195ANA.

195AZGD Presumption as to subsistence of copyright

In an action brought under this Part for an infringement of a moral

right in respect of a recorded performance, copyright is presumed

to subsist in the recorded performance if the defendant does not put

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Remedies for infringements of moral rights Division 7

Section 195AZGE

in issue the question whether copyright subsists in the recorded

performance.

195AZGE Presumption as to subsistence of performer’s moral

rights

(1) In an action brought under this Part for an infringement of a moral

right in respect of a recorded performance, if copyright is

presumed or proved to have subsisted in the recorded performance

when the infringement is alleged to have occurred, then the moral

right is presumed to have subsisted in the recorded performance at

that time.

(2) This section has effect subject to subsection 195ANA(3).

195AZGF Presumptions in relation to performership

(1) If a name purporting to be the name of a performer appears on a

record embodying a performance so as to indicate that the person

was a performer in the performance, then, in an action brought

under this Part, the person whose name so appeared is, if it was his

or her true name or a name by which he or she was commonly

known, presumed, unless the contrary is established, to be a

performer in the performance.

(2) If a name purporting to be the name of a group of performers

appears on a record embodying a performance so as to indicate that

the group performed in the performance, then, in an action brought

under this Part, the group whose name so appeared is, if it was a

name by which the group was commonly known, presumed, unless

the contrary is established, to have performed in the performance.

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artistic works and cinematograph films

Division 7 Remedies for infringements of moral rights

Section 195AZGG

Subdivision C—Miscellaneous

195AZGG Saving of other rights and remedies

(1) Subject to this section, this Part does not affect any right of action

or other remedy, whether civil or criminal, in proceedings brought

otherwise than under this Part.

(2) Any damages recovered in proceedings brought under this Part are

to be taken into account in assessing damages in proceedings

brought otherwise than under this Part and arising out of the same

event or transaction.

(3) Any damages recovered in proceedings brought otherwise than

under this Part are to be taken into account in proceedings brought

under this Part and arising out of the same event or transaction.

195AZGH Jurisdiction of courts

(1) The jurisdiction of the Supreme Court of a State or Territory in a

matter arising under this Part is to be exercised by a single Judge of

the Court.

(2) Subject to subsection (3), a decision of a court of a State or

Territory (however constituted) under this Part is final.

(3) An appeal lies from a decision of a court of a State or Territory

under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

(4) The Federal Court of Australia has jurisdiction with respect to

matters arising under this Part.

(5) The Federal Circuit Court of Australia has jurisdiction with respect

to matters arising under this Part.

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Miscellaneous Division 8

Section 195AZH

Division 8—Miscellaneous

Subdivision A—Miscellaneous provisions about moral rights of

authors

195AZH Parts of works

Moral rights in respect of a work apply in relation to a whole or a

substantial part of the work.

195AZI Works of joint authorship

(1) This section applies to a literary, dramatic, musical or artistic work

that is a work of joint authorship.

(2) The right of attribution of authorship in respect of the work is a

right of each joint author to be identified as a joint author.

(3) An act of false attribution in respect of the work infringes the right

of each joint author not to have authorship of the work falsely

attributed.

(4) The right of integrity of authorship in respect of the work is a right

of each joint author.

(5) The consent of one joint author to any act or omission affecting his

or her moral rights in respect of the work does not affect the moral

rights of the other joint author or other joint authors in respect of

the work.

195AZJ Cinematograph films that have more than one principal

director

(1) This section applies to a cinematograph film that has more than

one principal director.

(2) The director’s right of attribution of authorship in respect of the

film is a right of each director to be identified as a director.

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Division 8 Miscellaneous

Section 195AZK

(3) An act of false attribution in respect of the direction of the film

infringes the right of each director not to have the direction of the

film falsely attributed.

(4) The director’s right of integrity of authorship in respect of the film

is a right of each director.

(5) The consent of one director to any act or omission affecting his or

her moral rights in respect of the film does not affect the moral

rights of the other director or other directors in respect of the film.

195AZK Cinematograph films that have more than one principal

producer

(1) This section applies to a cinematograph film of which more than

one individual is the principal producer.

(2) The producer’s right of attribution of authorship in respect of the

film is a right of each producer to be identified as a producer.

(3) An act of false attribution in respect of the production of the film

infringes the right of each producer not to have the production of

the film falsely attributed.

(4) The producer’s right of integrity of authorship in respect of the

film is a right of each producer.

(5) The consent of one producer to any act or omission affecting his or

her moral rights in respect of the film does not affect the moral

rights of the other producer or other producers in respect of the

film.

195AZL Cinematograph films that have more than one principal

screenwriter

(1) This section applies to a cinematograph film of which there is more

than one principal screenwriter.

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Miscellaneous Division 8

Section 195AZM

(2) The screenwriter’s right of attribution of authorship in respect of

the film is a right of each screenwriter to be identified as a

screenwriter.

(3) An act of false attribution of authorship in respect of the script or

screenplay of the film infringes the right of each screenwriter not

to have the authorship of the script or screenplay of the film falsely

attributed.

(4) The screenwriter’s right of integrity of authorship in respect of the

film is a right of each screenwriter.

(5) The consent of one screenwriter to any act or omission affecting

his or her moral rights in respect of the film does not affect the

moral rights of the other screenwriter or other screenwriters in

respect of the film.

195AZM Application—right of attribution of authorship

(1) The right of attribution of authorship in respect of:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a

cinematograph film;

subsists only if the cinematograph film is made after the

commencement of this Part.

(2) The right of attribution of authorship in respect of a literary,

dramatic, musical or artistic work other than such a work as

included in a cinematograph film subsists in respect of a work

made before or after the commencement of this Part but this Part

only applies in relation to attributable acts done after that

commencement.

Note: Subsection 22(1) explains when a literary, dramatic, musical or artistic

work is taken to be made and paragraph 22(4)(a) explains when a

cinematograph film is taken to be made.

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artistic works and cinematograph films

Division 8 Miscellaneous

Section 195AZN

195AZN Application—right not to have authorship falsely

attributed

(1) The right not to have authorship falsely attributed subsists in

respect of a work made before or after the commencement of this

Part but this Part only applies in relation to acts of false attribution

done after that commencement.

(2) Paragraph 195AD(b) or (c), 195AE(2)(b) or (c) or 195AF(2)(b)

applies to an act of false attribution done after the commencement

of this Part even if the name concerned was inserted or affixed

before that commencement.

Note: Subsection 22(1) explains when a literary, dramatic, musical or artistic

work is taken to be made and paragraph 22(4)(a) explains when a

cinematograph film is taken to be made.

195AZO Application—right of integrity of authorship

(1) The right of integrity of authorship in respect of:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a

cinematograph film;

subsists only if the cinematograph film is made after the

commencement of this Part.

(2) Subject to subsection (3), the right of integrity of authorship in

respect of a literary, dramatic, musical or artistic work, other than

such a work as included in a cinematograph film, subsists in

respect of a work made before or after the commencement of this

Part.

(3) This Part applies in relation to an infringement of a right of

integrity of authorship that subsists in respect of a work referred to

in subsection (2) that was made before the commencement of this

Part only if the infringement occurs after the commencement of

this Part. However, an act referred to in paragraph 195AQ(3)(a),

(b), (c), (d) or (e) or (4)(a), (b) or (c) is not an infringement if the

relevant derogatory treatment occurred before that commencement.

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Miscellaneous Division 8

Section 195AZP

Note: Subsection 22(1) explains when a literary, dramatic, musical or artistic

work is taken to be made and paragraph 22(4)(a) explains when a

cinematograph film is taken to be made.

Subdivision B—Miscellaneous provisions about moral rights of

performers

195AZP Parts of performances

Moral rights in respect of a live performance or recorded

performance apply in relation to the whole or a substantial part of

the performance.

195AZQ Performances that have more than one performer

(1) This section applies to a live performance or recorded performance

that has more than one performer.

(2) A performer’s right of attribution of performership in respect of the

performance is a right of the performer to be identified as a

performer.

Example: If X and Y are the performers in a performance, then each of them has

the right to be identified. However, there is no infringement of X’s

moral right if Y is not identified (and vice versa).

Note: See also subsection 195ABC(3), which relates to the use of group

names.

(3) An act of false attribution of performership in respect of the

performance infringes each performer’s right not to have

performership falsely attributed.

Example: X and Y are the performers in a performance that is falsely attributed

to X and Z. This false attribution infringes X’s moral right and Y’s

moral right.

(4) The right of integrity of performership in respect of the

performance is a right of each performer.

Example: X and Y are the performers in a performance. The performance is

subjected to derogatory treatment that is prejudicial to X’s reputation

but not to Y’s reputation. The result is an infringement of X’s right of

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Division 8 Miscellaneous

Section 195AZR

integrity of performership but not an infringement of Y’s right of

integrity of performership.

(5) The consent of one performer to any act or omission affecting his

or her moral rights in respect of the performance does not affect the

moral rights of any other performer in respect of the performance.

195AZR Application

(1) Moral rights in respect of a live performance only subsist in a live

performance that occurs after the commencement of this section.

(2) Moral rights in respect of a recorded performance only subsist if

the live performance concerned occurs after the commencement of

this section.

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Miscellaneous Part X

Interpretation Division 1

Section 195A

Part X—Miscellaneous

Division 1—Interpretation

195A Interpretation

(1) In this Part (other than subsection 203H(5)), officer in charge

means:

(a) in relation to archives—the person holding, or performing the

duties of, the office or position in the service of the body

administering the archives the duties of which involve that

person having direct responsibility for the maintenance of,

and the provision of services in relation to, the collection

comprising the archives;

(b) in relation to a central records authority—the person holding,

or performing the duties of, the office in the service of the

body administering the authority the duties of which involve

that person having direct responsibility for the maintenance

of, and the provision of services in relation to, the records

deposited with the authority; and

(c) in relation to a library—the officer holding, or performing the

duties of, the office or position in the service of the body

administering the library the duties of which involve that

person having direct responsibility for the maintenance of,

and the provision of services in relation to, the collection

comprising the library.

(3) A reference in this Part to an educational institution includes a

reference to an institution that has at any time been an educational

institution.

(4) A reference in this Part to an institution includes a reference to a

school of nursing, an undertaking within a hospital, a teacher

education centre and an undertaking within a body administering

an educational institution.

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Part X Miscellaneous

Division 2 Review

Section 195B

Division 2—Review

195B Review of certain decisions

(1) For the purposes of this section, the following decisions are

reviewable decisions:

(ba) a decision of the Comptroller-General of Customs under

subsection 135(6A) to declare a notice given under

subsection 135(2) to be ineffective;

(c) a decision of the Comptroller-General of Customs under

section 135AA refusing to seize copies under

subsection 135(7);

(ca) a decision of the Comptroller-General of Customs under

section 135AEC refusing to allow a late claim for the release

of seized copies;

(cb) a decision of the Comptroller-General of Customs under

section 135AJ refusing to seize copies under

subsection 135(7);

(d) a decision of the Comptroller-General of Customs not to give

permission under subsection 135AD(1);

(e) a decision of the Minister under paragraph 113V(2)(b),

135ZZT(1A)(b) or 135ZZZO(2)(b) refusing to declare a

body as a collecting society;

(f) a decision of the Minister under paragraph 113X(2)(a),

135ZZU(2)(a) or 135ZZZP(2)(a) revoking a declaration of a

body as a collecting society.

(3) If the Comptroller-General of Customs makes a reviewable

decision referred to in paragraphs (1)(ba) to (d), the

Comptroller-General of Customs must cause to be sent to the

objector or importer whose interests are affected by the decision a

notice containing:

(a) the terms of the decision; and

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Review Division 2

Section 195B

(b) except where subsection 28(4) of the Administrative Appeals

Tribunal Act 1975 applies—a statement to the effect that the

objector or importer, as the case may be, may request a

statement under section 28 of that Act.

(4) Failure to include in a notice under subsection (3) a statement of

the kind referred to in paragraph (3)(b) does not affect the validity

of the decision to which the notice relates.

(5) Application may be made to the Administrative Appeals Tribunal

for review of a reviewable decision.

(8) In this section:

decision has the same meaning as in the Administrative Appeals

Tribunal Act 1975.

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Part X Miscellaneous

Division 3 National Library of Australia

Section 195CA

Division 3—National Library of Australia

195CA Simplified outline

Persons publishing certain literary, dramatic, musical or artistic

works in Australia must deliver copies of the works to the National

Library. The National Library may also request the delivery of

works that are available online.

195CB Copy of certain material to be delivered to the Library

Material published but not available online

(1) A person commits an offence if:

(a) the person publishes National Library material in Australia

on a particular day, but not in such a way that makes the

material available online; and

(b) the person is not requested under section 195CC, during the

period of 1 month starting on that day, to cause a copy of the

material to be delivered under section 195CD; and

(c) the person contravenes section 195CD.

Penalty: 10 penalty units.

Material available online

(2) A person commits an offence if:

(a) the person publishes National Library material; and

(b) the material is available online; and

(c) the person is requested under section 195CC to cause a copy

of the material to be delivered under section 195CD; and

(d) the person contravenes section 195CD.

Penalty: 10 penalty units.

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National Library of Australia Division 3

Section 195CC

Offences of strict liability

(3) Subsections (1) and (2) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Not continuing offences

(4) Subsection 4K(2) of the Crimes Act 1914 (about continuing

offences) does not apply in relation to an offence against

subsection (1) or (2).

195CC Library may request a copy of material available online

(1) The Director-General of the National Library may request, in

writing, a person to cause a copy of National Library material to be

delivered under section 195CD if:

(a) the person publishes the material; and

(b) the material is available online; and

(c) the Director-General considers that a copy of the material

should be included in the national collection of library

material (see section 6 of the National Library Act 1960).

Note: The national collection includes a comprehensive collection of library

material relating to Australia and the Australian people.

(2) The request may be made any time after the person publishes the

material.

(3) For the purposes of paragraph 9(2)(d) of the Electronic

Transactions Act 1999, one way of consenting to a request being

made by way of electronic communication is having the ability to

automatically receive user agent requests.

Example: The Director-General could use a web harvester to make requests in

the form of user agent requests.

195CD Delivering material to the Library

(1) A person contravenes this section unless the person causes to be

delivered to the National Library, before the end of the delivery

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Division 3 National Library of Australia

Section 195CD

period for the National Library material, a copy of the material

that:

(a) is a copy of the whole of the material (including any

illustrations, drawings, engravings, photographs and

audio-visual elements); and

(b) if the copy was requested under section 195CC—is in the

electronic form in which the material was available online;

and

(c) if the copy is in an electronic form:

(i) is free from any technological protection measure; and

(ii) is accompanied by any software or additional

information necessary for the National Library to access

the material from the copy; and

(d) if the copy is in hardcopy form:

(i) is finished and coloured, and bound, sewed, stitched or

otherwise fastened together, in the same manner as the

best copies of the material are supplied to the public;

and

(ii) is on the best paper on which the material is printed; and

(e) is delivered at the person’s own expense, unless the copy was

requested under section 195CC and the request stated

otherwise; and

(f) meets the requirements (if any) prescribed by the National

Library Minister for the purposes of this paragraph.

(2) The delivery period, for National Library material, starts on:

(a) for material published in a way covered by

paragraph 195CB(1)(a)—the day it was so published; or

(b) for material requested under section 195CC—the day the

request was made;

and ends 1 month later or on a later day allowed by the

Director-General of the National Library.

Note: This section could apply twice, with separate delivery periods, if

material published in Australia but not available online later became

available online and was requested under section 195CC more than 1

month after it was published.

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195CE Meaning of National Library material

A literary, dramatic, musical or artistic work, or an edition of such

a work, (whether in an electronic form or otherwise) is National

Library material if:

(a) the work or edition is:

(i) a website, web page, web file, book, periodical,

newspaper, pamphlet, sheet of music, map, plan, chart

or table; or

(ii) prescribed by the National Library Minister for the

purposes of this subparagraph; and

(b) copyright subsists in the work or edition under this Act; and

(c) the work or edition is not primarily audio-visual; and

(d) in the case of an edition:

(i) the edition contains additions or alterations in the text or

other reading matter, illustrations, drawings, engravings,

photographs or audio-visual elements; and

(ii) the content of at least one of those additions or

alterations was not contained in any earlier edition; and

(e) the work or edition is not prescribed by the National Library

Minister for the purposes of this paragraph.

Note: The same work in hardcopy form and an electronic form is the same

National Library material.

195CF Meaning of available online

National Library material is available online if it is communicated:

(a) on the internet; or

(b) in an electronic form prescribed by the National Library

Minister for the purposes of this paragraph.

195CG Infringement notices

(1) The National Library Minister may prescribe a scheme enabling a

person who is alleged to have committed an offence against

subsection 195CB(1) or (2) to pay a penalty to the Commonwealth

as an alternative to prosecution.

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(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.

195CH Relationship with State and Territory laws

This Division is not intended to exclude or limit the operation of

any law of a State or Territory (whether made before or after the

commencement of this Division) that makes provision for or in

relation to the delivery to a specified public or other library in or of

the State or Territory of copies of National Library material

published in the State or Territory.

195CI Delegation

(1) The Director-General of the National Library may, in writing,

delegate the Director-General’s powers under this Division to a

member of the staff of the National Library who is an SES

employee or acting SES employee.

Note: The relevant powers are in section 195CC (about requesting copies of

material available online), and subsection 195CD(2) (about allowing

further time for delivery).

(2) In exercising powers under a delegation, the delegate must comply

with any written directions of the Director-General.

195CJ Legislative instruments

The National Library Minister may, by legislative instrument,

prescribe matters required or permitted by this Division to be

prescribed by that Minister.

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Section 196

Division 4—Other matters

196 Assignments and licences in respect of copyright

(1) Copyright is personal property and, subject to this section, is

transmissible by assignment, by will and by devolution by

operation of law.

(2) An assignment of copyright may be limited in any way, including

any one or more of the following ways:

(a) so as to apply to one or more of the classes of acts that, by

virtue of this Act, the owner of the copyright has the

exclusive right to do (including a class of acts that is not

separately specified in this Act as being comprised in the

copyright but falls within a class of acts that is so specified);

(b) so as to apply to a place in or part of Australia;

(c) so as to apply to part of the period for which the copyright is

to subsist.

(3) An assignment of copyright (whether total or partial) does not have

effect unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted in respect of a copyright by the owner of the

copyright binds every successor in title to the interest in the

copyright of the grantor of the licence to the same extent as the

licence was binding on the grantor.

197 Prospective ownership of copyright

(1) Where, by an agreement made in relation to a future copyright and

signed by or on behalf of the person who would, apart from this

section, be the owner of the copyright on its coming into existence,

that person purports to assign the future copyright (wholly or

partially) to another person (in this subsection referred to as the

assignee), then if, on the coming into existence of the copyright,

the assignee or a person claiming under him or her would, apart

from this subsection, be entitled as against all other persons to have

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the copyright vested in him or her (wholly or partially, as the case

may be), the copyright, on its coming into existence, vests in the

assignee or his or her successor in title by force of this subsection.

(2) Where, at the time when a copyright comes into existence, the

person who, if he or she were then living, would be entitled to the

copyright is dead, the copyright devolves as if it had subsisted

immediately before his or her death and he or she had then been

the owner of the copyright.

(3) A licence granted in respect of a future copyright by the

prospective owner of the copyright binds every successor in title to

the prospective interest in the copyright of the grantor of the

licence to the same extent as the licence was binding on the

grantor.

198 Copyright to pass under will with unpublished work

Where under a bequest, whether specific or general, a person is

entitled, beneficially or otherwise, to the manuscript of a literary,

dramatic or musical work, or to an artistic work, and the work was

not published before the death of the testator, the bequest shall,

unless a contrary intention appears in the testator’s will, be read as

including the copyright in the work in so far as the testator was the

owner of the copyright immediately before his or her death.

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

of copyright material

(1) A person who uses a registered trade mark in relation to imported

goods that are similar to goods in respect of which the trade mark

is registered does not infringe the trade mark if:

(a) the importation would have constituted an infringement of

copyright except for the operation of a parallel importation

provision; and

(b) the trade mark was applied to, or in relation to, the goods

before the importation (whether the mark was applied before

or after the commencement of this section); and

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(c) the trade mark was applied by, or with the consent of:

(i) a person who, at the time the mark was applied, was the

registered owner of the mark; or

(ii) a person who, at the time the mark was applied, was the

owner of the mark in the place where the mark was

applied and who had been a registered owner of the

mark at any time before then.

(2) Unless the contrary intention appears, an expression used in this

section has the same meaning as in the Trade Marks Act 1995.

(3) In this section:

parallel importation provision means:

(a) section 44D, 44E, 44F, 112D or 112DA; or

(b) section 44C or 112C (in so far as that section applies in

relation to an accessory to an article of the kind mentioned in

subsection 10AD(1)).

199 Reception of broadcasts

(1) Where the inclusion in a television broadcast or sound broadcast of

a reading or recitation of an extract from a published literary or

dramatic work, or from an adaptation of such a work, does not

constitute an infringement of the copyright in the work, a person

who, by the reception of the broadcast, causes the work or

adaptation to be performed in public does not, by doing so, infringe

the copyright in the work.

(2) A person who, by the reception of a television broadcast or sound

broadcast, causes a sound recording to be heard in public does not,

by doing so, infringe the copyright, if any, in that recording under

Part IV.

(3) A person who, by the reception of an authorized television

broadcast, causes a cinematograph film to be seen or heard in

public shall be treated, in any proceedings for infringement of the

copyright, if any, in the film under Part IV, as if the person had

been the holder of a licence granted by the owner of that copyright

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to cause the film to be seen or heard in public by the reception of

the broadcast.

(5) If, in the circumstances mentioned in subsection (3), the person

causing the cinematograph film to be seen or heard infringed the

copyright in the film by reason that the broadcast was not an

authorized broadcast, proceedings shall not be brought against that

person under this Act in respect of his or her infringement of that

copyright but the infringement shall be taken into account in

assessing damages in any proceedings against the maker of the

broadcast in respect of that copyright, in so far as that copyright

was infringed by the making of the broadcast.

(6) For the purposes of this section, a broadcast, in relation to a

cinematograph film, is an authorised broadcast only if it is made

by, or with the licence of, the owner of the copyright in the film.

(7) A reference in this section to a broadcast must be read as a

reference to a broadcast made by the Australian Broadcasting

Corporation, by the Special Broadcasting Service Corporation, by

the holder of a licence allocated by the Australian Communications

and Media Authority under the Broadcasting Services Act 1992, or

by a person authorised to make the broadcast by a class licence

determined by that Authority under that Act.

200 Use of works and broadcasts for educational purposes

(1) A teacher or student does not infringe copyright in a work by

copying the whole or a part of the work if:

(a) the copying occurs in the course of educational instruction;

and

(b) the copying is not done using:

(i) a device adapted for the production of multiple copies;

or

(ii) a device capable of producing a copy or copies by a

process of reprographic reproduction.

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(1A) Copying or communicating the whole or a part of copyright

material does not infringe copyright in the material, if the material

is copied or communicated:

(a) as part of the questions to be answered in an examination; or

(b) in an answer to such a question.

(1B) In subsections (1) and (1A):

(a) a reference to copying a work or copyright material includes

a reference to making or copying an adaptation of the work

or material; and

(b) a reference to communicating copyright material includes a

reference to communicating an adaptation of the material.

(2) The making of a record of a sound broadcast, being a broadcast

that was intended to be used for educational purposes, does not

constitute an infringement of copyright in a work or sound

recording included in the broadcast if:

(a) the record is made by, or on behalf of, the person or authority

in charge of a place of education that is not conducted for

profit; and

(b) the record is not used except in the course of instruction at

that place.

(2A) The making of a record of a sound broadcast is not an infringement

of copyright in the broadcast if the record is made by, or on behalf

of, the body administering an educational institution and is not

used except for the educational purposes of that institution or

another educational institution.

(3) For the purposes of sections 38 and 103, in determining whether

the making of an article constituted an infringement of copyright,

subsections (1), (1A), (2) and (2A) shall be disregarded.

(4) For the purposes of any provision of this Act relating to imported

articles, in determining whether the making of an article made

outside Australia would, if the article had been made in Australia

by the importer of the article, have constituted an infringement of

copyright, subsections (1), (1A), (2) and (2A) shall be disregarded.

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200AAA Proxy web caching by educational institutions

(1) This section applies if:

(a) a computer system is operated by or on behalf of a body

administering an educational institution; and

(b) the system is operated primarily to enable staff and students

of the institution to use the system to gain online access for

educational purposes to works and other subject-matter

(whether they are made available online using the internet or

merely the system); and

(c) the system automatically makes:

(i) temporary electronic reproductions of works made

available online through the system to users of the

system in response to action by the users; and

(ii) temporary electronic copies of other subject-matter

made available online through the system to users of the

system in response to action by the users; and

(d) those reproductions and copies are made by the system

merely to facilitate efficient later access to the works and

other subject-matter by users of the system.

(2) Copyright in a work or other subject-matter reproduced or copied

by the system as described in paragraphs (1)(c) and (d) is not

infringed by:

(a) that reproduction or copying; or

(b) the later communication of the work or other subject-matter,

using that reproduction or copy, to a user of the system.

(3) This section does not limit section 28, 43A, 43B, 111A or 111B.

(4) Disregard this section in determining whether copyright in a work

or other subject-matter is infringed by an act that:

(a) involves a system like one described in subsection (1) except

that the system is not operated as described in

paragraphs (1)(a) and (b); and

(b) corresponds to an act described in paragraph (2)(a) or (b).

(5) In this section:

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system includes network.

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

(1) The copyright in a work or other subject-matter is not infringed by

a use of the work or other subject-matter if all the following

conditions exist:

(a) the circumstances of the use (including those described in

paragraphs (b), (c) and (d)) amount to a special case;

(b) the use is covered by subsection (2) or (3);

(c) the use does not conflict with a normal exploitation of the

work or other subject-matter;

(d) the use does not unreasonably prejudice the legitimate

interests of the owner of the copyright.

Use by body administering library or archives

(2) This subsection covers a use that:

(a) is made by or on behalf of the body administering a library or

archives; and

(b) is made for the purpose of maintaining or operating the

library or archives (including operating the library or

archives to provide services of a kind usually provided by a

library or archives); and

(c) is not made partly for the purpose of the body obtaining a

commercial advantage or profit.

Use by body administering educational institution

(3) This subsection covers a use that:

(a) is made by or on behalf of a body administering an

educational institution; and

(b) is made for the purpose of giving educational instruction; and

(c) is not made partly for the purpose of the body obtaining a

commercial advantage or profit.

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This section does not apply if under another provision the use does

not, or might not, infringe copyright

(6) Subsection (1) does not apply if, because of another provision of

this Act:

(a) the use is not an infringement of copyright; or

(b) the use would not be an infringement of copyright assuming

the conditions or requirements of that other provision were

met.

Example: Paragraph (a)—Without using a device adapted for producing multiple

copies or a device that can produce copies by reprographic

reproduction, a school teacher copies a literary work in the course of

educational instruction. Under subsection 200(1), the copying is not

an infringement of copyright in the work, so this section does not

apply.

(6AA) In working out, for the purposes of subsection 113Q(2) (about the

meaning of licensed copying or communication), whether copying

or communicating does not infringe copyright only because of

section 113P, disregard this section.

Cost recovery not commercial advantage or profit

(6A) The use does not fail to meet the condition in paragraph (2)(c) or

(3)(c) merely because of the charging of a fee that:

(a) is connected with the use; and

(b) does not exceed the costs of the use to the charger of the fee.

Definitions

(7) In this section:

conflict with a normal exploitation has the same meaning as in

Article 13 of the TRIPS Agreement.

special case has the same meaning as in Article 13 of the TRIPS

Agreement.

unreasonably prejudice the legitimate interests has the same

meaning as in Article 13 of the TRIPS Agreement.

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use includes any act that would infringe copyright apart from this

section.

202 Groundless threats of legal proceedings in relation to copyright

infringement

(1) Where a person, by means of circulars, advertisements or

otherwise, threatens a person with an action or proceeding in

respect of an infringement of copyright, then, whether the person

making the threats is or is not the owner of the copyright or an

exclusive licensee, a person aggrieved may bring an action against

the first-mentioned person and may obtain a declaration to the

effect that the threats are unjustifiable, and an injunction against

the continuance of the threats, and may recover such damages (if

any) as he or she has sustained, unless the first-mentioned person

satisfies the court that the acts in respect of which the action or

proceeding was threatened constituted, or, if done, would

constitute, an infringement of copyright.

(2) The mere notification of the existence of a copyright does not

constitute a threat of an action or proceeding within the meaning of

this section.

(3) Nothing in this section renders a barrister or solicitor of the High

Court, or of the Supreme Court of a State or Territory, liable to an

action under this section in respect of an act done by him or her in

his or her professional capacity on behalf of a client.

(4) The defendant in an action under this section may apply, by way of

counterclaim, for relief to which he or she would be entitled in a

separate action in respect of an infringement by the plaintiff of the

copyright to which the threats relate and, in any such case, the

provisions of this Act with respect to an action for infringement of

a copyright are, mutatis mutandis, applicable in relation to the

action.

(5) A reference in this section to an action in respect of an

infringement of copyright shall be read as including a reference to

an action in respect of the conversion or detention of an infringing

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copy or of a device used or intended to be used for making

infringing copies.

202A Groundless threats of legal proceedings in relation to

technological protection measures

(1) If a person (the first person) threatens another person with an

action under Subdivision A of Division 2A of Part V, a person

aggrieved may bring an action against the first person.

Note: Subdivision A of Division 2A of Part V establishes causes of action

that relate to circumventing an access control technological protection

measure (section 116AN), manufacturing etc. a circumvention device

for a technological protection measure (section 116AO) and providing

etc. a circumvention service for a technological protection measure

(section 116AP).

(2) An action may be brought under this section whether or not the

first person is the owner or exclusive licensee of the copyright in

the work or other subject-matter to which the threatened action

relates.

(3) The mere notification that a work or other subject-matter is

protected by a technological protection measure does not constitute

a threat of an action within the meaning of this section.

(4) In an action under this section, the orders a court may make

include the following:

(a) an order declaring that the threat is unjustifiable;

(b) an order granting an injunction restraining the first person

from continuing to make the threat;

(c) an order awarding such damages (if any) for loss that the

person aggrieved has suffered as a result of the making of the

threat.

(5) The court must not make an order under subsection (4) if the first

person satisfies the court that an action under Subdivision A of

Division 2A of Part V has reasonable prospects of success.

(6) Nothing in this section renders a barrister or solicitor of the High

Court, or of the Supreme Court of a State or Territory, liable to an

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action under this section in respect of an act done in his or her

professional capacity on behalf of a client.

(7) If an action under this section is brought:

(a) the first person may apply, by way of counterclaim, for relief

to which he or she would be entitled in an action under

Subdivision A of Division 2A of Part V; and

(b) the provisions of Part V apply as if the counterclaim were an

action brought by the first person under that Subdivision.

203 Limitation on power of courts to grant relief in proceedings

under this Act

Nothing in this Act authorizes a State court or a court of a Territory

to grant relief by way of injunction or account of profits if that

court would not, apart from this Act, have power to grant such

relief.

203A Offence—failing to keep declarations relating to copying in

library or archives

(1) A person commits an offence if:

(a) at a time, the person is:

(i) ultimately responsible for administering a library or

archives; or

(ii) the officer in charge of a library or archives; and

(b) that time is:

(i) after an authorized officer of a library or archives

reproduced or copied all or part of a work or other

subject-matter under section 49 or 50; and

(ii) after a written declaration was made for the purpose of

that section in relation to the reproduction or copying;

and

(iii) before the end of the period prescribed by the

regulations for the keeping of the declaration; and

(c) at that time, the declaration is not kept in the records of the

library or archives.

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Penalty: 5 penalty units.

(2) Subsection (1) does not apply if:

(a) the person is the officer in charge of a library or archives and

proves that:

(i) the reproduction or copying took place before the day

the person became the officer in charge; and

(ii) on that day the declaration was not in the possession of

the person administering the library or archives; or

(b) the person proves that the person took all reasonable

precautions, and exercised due diligence, to ensure the

declaration was kept in the records of the library or archives.

Note: The person bears a legal burden in relation to a matter in

subsection (2) (see section 13.4 of the Criminal Code).

(3) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) The person cannot be convicted of more than one offence under

this section in relation to the one declaration.

Note: Section 203G makes early destruction or disposal of the declaration an

offence.

203E Inspection of records and declarations retained in records of

libraries and archives

(1) The owner of the copyright in a work, sound recording or

cinematograph film, or the agent of such an owner, may notify the

officer in charge of a library or archives, in writing, that he or she

wishes to inspect, on a day specified in the notice:

(a) all the relevant declarations retained in the records of the

library or archives that relate to the making, in reliance on

section 49 or 50, of copies of works or parts of works or of

copies of other subject-matter; or

(b) such of those declarations as:

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(i) relate to the making, in reliance on section 49 or 50, of

copies of works or parts of works or of copies of other

subject-matter; and

(ii) were made during a period specified in the notice.

(2) The day specified in the notice must be an ordinary working day of

the library or archives that is at least 7 days after the notice is

given.

(4) Where a person gives notice, under subsection (1), to the officer in

charge of a library or archives that he or she wishes to inspect

certain declarations on a particular day, that person may, during the

ordinary working hours of the library or archives, on that day, but

not earlier than 10 a.m. or later than 3 p.m., inspect the declarations

to which the notice relates and, where the notice relates also to the

inspection of the collection of the library or archives, may also

during those hours on that day inspect that collection, and, for that

purpose, may enter the premises of the library or archives.

(6) A person commits an offence if:

(a) the person is:

(i) ultimately responsible for administering a library or

archives; or

(ii) the officer in charge of a library or archives; and

(b) another person (the inspector) attends at the premises of the

library or archives for the purpose of exercising his or her

powers under subsection (4); and

(c) the inspector is not provided with all reasonable facilities and

assistance for the effective exercise of those powers.

Penalty: 5 penalty units.

(6A) Subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(8) The officer in charge of a library or archives shall not be convicted

of an offence against subsection (6) if the officer adduces evidence

that he or she believed, on reasonable grounds, that the person who

attended the premises of the library or archives, as the case may be,

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as mentioned in that subsection, was provided with all reasonable

facilities and assistance for the effective exercise of the powers

conferred by subsection (4) and that evidence is not rebutted by the

prosecution.

(9) The body administering a library or archives shall not be convicted

of an offence against subsection (6) if the body adduces evidence

that it took all reasonable precautions, and exercised due diligence,

to ensure that the person who attended the premises of the library

or archives, as the case may be, as mentioned in that subsection,

was provided with all reasonable facilities and assistance for the

effective exercise of the powers conferred by subsection (4) and

that evidence is not rebutted by the prosecution.

(10) A person (the defendant) commits an offence if:

(a) the defendant makes a record of information, or divulges or

communicates information; and

(b) the information was acquired by the defendant either in the

course of an inspection the defendant made under

subsection (4) or because it was divulged or communicated

to the defendant either:

(i) by another person who acquired the information in the

course of an inspection he or she made under

subsection (4); or

(ii) in one of a series of divulgements or communications

by different persons that started with a divulgement or

communication of the information by a person who

acquired it the course of an inspection he or she made

under subsection (4).

Penalty: 5 penalty units.

(10A) Subsection (10) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(11) Subsection (10) does not apply if the defendant makes the record,

divulgement or communication with the intention of:

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Other matters Division 4

Section 203F

(a) informing the owner of the copyright in a work or other

subject-matter that a copy has been made of the work or other

subject-matter; or

(b) enforcing a right that a person has under this Act in

connection with a work or other subject-matter in which

copyright subsists; or

(c) ensuring compliance with a provision of Division 5 of

Part III or with a provision of this Part.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (11) (see subsection 13.3(3) of the Criminal Code).

203F False and misleading declarations

A person commits an offence if:

(a) the person makes a declaration for the purposes of section 49

or 50; and

(b) the declaration is false or misleading in a material particular.

Penalty: 5 penalty units.

203G Offence—disposing of or destroying certain declarations

A person commits an offence if:

(a) the person disposes of, destroys, or causes the disposal or

destruction of, a declaration made for the purposes of

section 49 or 50; and

(b) the period prescribed by the regulations for the keeping of the

declaration has not ended.

Penalty: 5 penalty units.

203H Notation of certain copies etc.

(1) In proceedings against a person or body for infringement of

copyright in a work in connection with the making, by or on behalf

of an institution, of a reproduction of the work, or of a part of the

work, the person or body is not entitled to rely on section 49 or 50

as justification for the making of the reproduction unless, at or

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Division 4 Other matters

Section 203H

about the time the reproduction was made, there was made on the

reproduction a notation stating that the reproduction was made on

behalf of that institution and specifying the date on which the

reproduction was made.

(4) A person commits an offence if:

(a) the person makes a notation described in subsection (1) on a

reproduction of a work or part of a work; and

(b) a statement in the notation is false or misleading in a material

particular.

Penalty: 5 penalty units.

(5) For the purposes of subsection (1):

(a) if a reproduction of the whole or part of a work, or a copy of

a sound recording or a cinematograph film:

(i) is made, or caused to be made, by an authorized officer

of a library; or

(ii) is made by, or on behalf of, the officer in charge of a

library;

being a library of an institution, the reproduction or copy is

taken to have been made on behalf of the institution; and

(b) if a reproduction of the whole or part of a work, or a copy of

a sound recording or a cinematograph film:

(i) is made, or caused to be made, by an authorized officer

of a library; or

(ii) is made by, or on behalf of, the officer in charge of a

library;

being a library that is not a library of an institution:

(iii) the reproduction or copy is taken to have been made on

behalf of the person or body administering the library;

and

(iv) that subsection applies as if references to an institution

were references to that person or body; and

(c) if a reproduction of the whole or part of a work, or a copy of

a sound recording or a cinematograph film:

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(i) is made, or caused to be made, by an authorized officer

of archives; or

(ii) is made by, or on behalf of, the officer in charge of

archives;

then:

(iii) the reproduction or copy is taken to have been made by

or on behalf of the person or body administering the

archives; and

(iv) that subsection applies as if references to an institution

were references to that person or body; and

(d) if a reproduction, or a record embodying a sound recording,

of the whole or part of a work is made by or on behalf of the

body administering an institution, the reproduction or record

is taken to have been made on behalf of the institution; and

(e) if a copy of a sound recording or a cinematograph film is

made by or on behalf of the body administering an

institution, the copy is taken to have been made on behalf of

the institution.

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Part XI Transitional

Division 1 Preliminary

Section 204

Part XI—Transitional

Division 1—Preliminary

204 Interpretation

(1) In this Part, the expression photograph has, in lieu of the meaning

given to that expression by section 10, the meaning given by the

next succeeding subsection.

(2) For the purposes of any provision of this Part that provides that an

expression is to have the meaning given to that expression by this

section or that refers to an expression as defined by this section:

collective work means:

(a) an encyclopaedia, dictionary, year book or similar work;

(b) a newspaper, review, magazine or similar periodical; or

(c) a work written in distinct parts by different authors, or in

which works or parts of works of different authors are

incorporated.

deliver, in relation to a lecture, includes deliver by means of a

mechanical instrument.

dramatic work includes a piece for recitation, a choreographic

work or entertainment in dumb show the scenic arrangement or

acting form of which is fixed in writing or otherwise, and a

cinematograph production where the arrangement, the acting form

or the combination of incidents represented gives the work an

original character.

lecture includes an address, speech and sermon.

literary work includes a map, chart, plan, table and compilation.

perform, in relation to a dramatic work as defined by this section

or a musical work, means make an acoustic representation of the

work or a visual representation of a dramatic action in the work,

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Section 205

and includes make such a representation by means of a mechanical

instrument.

photograph includes photo-lithograph and a work produced by a

process similar to photography.

205 References to making of works, recordings and films

For the purposes of any reference in this Part to works, sound

recordings or cinematograph films made before the

commencement of this Act, a work, sound recording or

cinematograph film the making of which extended over a period

shall be deemed not to have been made before the commencement

of this Act unless the making of it was completed before the

commencement of this Act.

206 References in other laws or instruments to copyright

(1) Without prejudice to the operation of the succeeding sections of

this Part:

(a) a reference in any other law of the Commonwealth or in any

contract, agreement or other instrument to a provision of the

Copyright Act, 1911 shall be read as a reference, or as

including a reference, to the corresponding provision of this

Act;

(b) a reference in any other law of the Commonwealth or in any

contract, agreement or other instrument to copyright or to

works in which copyright subsists shall, if apart from this Act

it would be read as a reference to copyright under the

Copyright Act, 1911 or to works in which copyright

subsisted under that Act, be read as a reference, or as

including a reference, to copyright under this Act or to works

or any other subject-matter in which copyright subsists under

this Act, as the case may be; and

(c) a reference in any other law of the Commonwealth or in any

contract, agreement or other instrument to the grant of an

interest in copyright by licence shall be read, in relation to

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Division 1 Preliminary

Section 207

copyright under this Act, as a reference to the grant of a

licence in respect of that copyright.

(2) This section has effect unless the contrary intention appears in the

other law of the Commonwealth or in the contract, agreement or

other instrument, as the case may be.

(3) In this section, law of the Commonwealth means:

(a) an Act;

(b) an instrument (including regulations or rules) having effect

by virtue of an Act;

(c) an Ordinance of a Territory and any other law in force in a

Territory;

(d) an instrument (including regulations or rules) having effect

by virtue of such an Ordinance or law; and

(e) an instrument having effect by virtue of any such regulations

or rules as are mentioned in paragraph (b) or paragraph (d).

207 Application

Except in so far as this Part otherwise expressly provides, this Act

applies in relation to things existing at the commencement of this

Act in like manner as it applies in relation to things coming into

existence after the commencement of this Act.

208 Authorship of photographs

(1) A reference in this Act to the author of a photograph shall, in

relation to a photograph taken before the commencement of this

Act, be read as a reference to the person who, at the time when the

photograph was taken, was the owner of the material on which the

photograph was taken.

(2) However, if the owner of the material on which the photograph

was taken was a body corporate, then subsection (1) only applies in

respect of references to the author of the photograph that relate to

the ownership of the copyright in the photograph.

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Section 209

Note: For example, subsection (1) does not apply in relation to references to

the author of the photograph that relate to the duration of the copyright

in the photograph.

209 Publication

(1) For the purposes of the application of subsection 29(5) in

determining whether a publication that took place before the

commencement of this Act was the first publication, the reference

in that subsection to a period of not more than 30 days shall be read

as a reference to a period of not more than 14 days.

(2) For the purposes of the application of subsection 29(7) in relation

to an act done before the commencement of this Act:

(a) a reference in that subsection to copyright includes a

reference to copyright under the Copyright Act 1905 and to

copyright under the Copyright Act, 1911; and

(b) a reference in that subsection to the licence of the owner of

copyright shall:

(i) in relation to copyright under the Copyright Act 1905

be read as a reference to the privity of the owner; and

(ii) in relation to copyright under the Copyright Act,

1911—be read as a reference to the consent or

acquiescence of the owner.

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Part XI Transitional

Division 2 Original works

Section 210

Division 2—Original works

210 Expired copyright not to revive

(1) Notwithstanding anything in Part III, copyright does not subsist by

virtue of that Part in a work first published before the

commencement of this Act unless copyright subsisted in the work

under the Copyright Act, 1911 immediately before the

commencement of this Act.

(2) The last preceding subsection does not apply in relation to a work

to which Division 5 applies.

211 Original works in which copyright subsists

(1) Subsection 32(1) applies to works made before the commencement

of this Act as if each reference in that subsection to a qualified

person included a reference to a British subject and to a person

domiciled in any part of the Queen’s dominions to which the

Copyright Act, 1911 extended.

(2) Subsection 32(2) applies to works first published before the

commencement of this Act as if paragraphs (d) and (e) of that

subsection were omitted.

(3) Subsection 32(2) applies to works that are first published after the

commencement of this Act and the author of which died before the

commencement of the Nationality and Citizenship Act 1948 as if

the reference in paragraph 32(2)(e) to a qualified person included a

reference to a person who would have been an Australian citizen if

that Act had been in force immediately before his or her death.

(4) Subsection 32(3) does not apply to or in relation to a building that

was constructed before the commencement of this Act.

(5) This section has effect subject to the last preceding section.

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Section 213

213 Ownership of copyright

(1) Subsections 35(4) and (6) do not apply in relation to works made

before the commencement of this Act.

(2) Subsection 35(5) does not apply in relation to a work that was or is

made in pursuance of an agreement made before the

commencement of this Act.

(3) Where a work is excluded from the application of subsection 35(4),

(5) or (6) by reason of either of the last two preceding subsections,

subsection 35(2) has effect in relation to the work subject to the

succeeding subsections of this section.

(4) The operation of any of the next three succeeding subsections in

relation to a particular work may be excluded or modified by

agreement.

(5) Where, in the case of a work being a photograph, portrait or

engraving:

(a) a person made, for valuable consideration, an agreement with

another person for the taking of the photograph, the painting

or drawing of the portrait or the making of the engraving by

the other person; and

(b) the work was made in pursuance of the agreement;

the first-mentioned person is the owner of any copyright subsisting

in the work by virtue of Part III.

(6) Where the work was made by the author in pursuance of the terms

of his or her employment by another person under a contract of

service or apprenticeship, that other person is the owner of any

copyright subsisting in the work by virtue of Part III.

(7) Where the work is a literary, dramatic or artistic work that was

made by the author in pursuance of the terms of his or her

employment by the proprietor of a newspaper, magazine or similar

periodical under a contract of service or apprenticeship and was so

made for the purpose of publication in a newspaper, magazine or

similar periodical, the author is entitled to restrain the publication

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Division 2 Original works

Section 214

of the work otherwise than in a newspaper, magazine or similar

periodical.

(8) In the last three preceding subsections, expressions that are defined

by section 204 have the meanings respectively given to those

expressions by that section and do not have the meanings, if any,

respectively given to those expressions by Part II.

214 Infringement by importation, sale and other dealings

For the purposes of sections 37 and 38, the fact that, to the

knowledge of a person, the making of an article constituted, or, in

the case of an imported article, would, if the article had been made

in Australia by the importer of the article, have constituted, an

infringement of copyright under the Copyright Act, 1911 has the

like effect as if, to the knowledge of that person, the making of the

article had constituted, or would, if the article had been made in

Australia by the importer, have constituted, as the case may be, an

infringement of copyright under this Act.

215 Recording of musical works

(1) Where a record of a work has, before the commencement of this

Act, been made by, or with the consent or acquiescence of, the

owner of the copyright in the work under the Copyright Act, 1911,

Division 6 of Part III has the like effect as if the record had been

made in Australia for the purpose of retail sale and had been so

made by, or with the licence of, the person who is entitled, by

virtue of this Act, to authorize the making in Australia of records

of the work.

(2) Notwithstanding subsection 5(1) of this Act, subsections 19(2) to

(7), inclusive, of the Copyright Act, 1911 as in force immediately

before the commencement of this Act continue to apply in relation

to records made before the commencement of this Act and, subject

to those subsections, any regulations made for the purposes of

those subsections and in force immediately before the

commencement of this Act continue to apply in relation to those

records.

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Original works Division 2

Section 216

216 Publication of artistic works

Section 68 does not apply in relation to a painting, drawing,

engraving, photograph or cinematograph film made before the date

of commencement of this Act, but the copyright in an artistic work

is not infringed by the publication of a painting, drawing,

engraving, photograph or cinematograph film made before that

date if, by virtue of section 65 or section 66, the making of the

painting, drawing, engraving, photograph or film would not have

constituted an infringement of the copyright under this Act if this

Act had been in operation at the time when it was made.

217 Reconstruction of buildings

The reference in subsection 73(2) to construction of a building by,

or with the licence of, the owner of the copyright in architectural

drawings or plans shall be read as including a reference to

construction by, or with the licence of, the person who, at the time

of the construction, was the owner of the copyright in the drawings

or plans under the law relating to copyright that was in force at that

time in the State or Territory in which the building was

constructed.

218 Industrial designs

(1) Division 8 of Part III does not apply to artistic works made before

the commencement of this Act.

(2) Copyright does not subsist by virtue of this Act in an artistic work

made before the commencement of this Act which, at the time

when the work was made, constituted a design capable of being

registered under the Designs Act 1906, or under that Act as

amended and in force at that time, and was used, or intended to be

used, as a model or pattern to be multiplied by an industrial

process.

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Division 2 Original works

Section 219

219 Reproduction of work upon payment of royalties

(1) The copyright in a literary, dramatic, musical or artistic work that

has been published before the commencement of this Act is not

infringed by the reproduction of the work for sale if:

(a) the reproduction takes place at a time after the expiration of

twenty-five years, or, in the case of a work in which

copyright subsisted at the commencement of the Copyright

Act, 1911, after the expiration of thirty years, after the date of

the death of the author; and

(b) the person reproducing the work establishes:

(i) that, before the commencement of this Act, he or she

gave the notice in writing of his or her intention to

reproduce the work that was prescribed for the purposes

of the proviso to section 3 of the Copyright Act, 1911;

and

(ii) that he or she has paid, in the manner that was

prescribed for the purposes of that proviso, or is

prescribed for the purposes of this section, as the case

may be, to, or for the benefit of, the owner of the

copyright royalties in respect of all copies of the work

sold by him or her calculated at the rate of ten per

centum of the price at which he or she published the

reproduction.

(2) The regulations may make provision for or in relation to the

manner in which, and the times at which, payment of royalties is to

be made for the purposes of subparagraph (ii) of paragraph (b) of

the last preceding subsection and may include provision requiring

payment in advance, or otherwise securing the payment of the

royalties.

(3) Regulations 38 to 42, inclusive, of the Copyright Regulations as in

force under the Copyright Act 1912-1966 immediately before the

commencement of this Act continue in force for the purposes of

this section as if they had been made under this Act, but may be

amended or repealed by regulations made under this Act.

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Section 219

(4) A reference in paragraph (1)(a) to a time after the expiration of a

specified number of years from the date of the death of the author

of a work shall, in the case of a work of joint authorship, be read as

a reference to a time after:

(a) the expiration of the same number of years from the date of

the death of the author who died first; or

(b) the date of the death of the author who died last;

whichever is the later.

(5) Where a literary, dramatic or musical work, or an engraving, in

which copyright subsisted at the date of the death of the author or,

in the case of a work of joint authorship, at or immediately before

the date of the death of the author who died last:

(a) had not been published;

(b) in the case of a dramatic or musical work—had not been

performed in public; and

(c) in the case of a lecture—had not been delivered in public;

before that date, subsection (1) applies as if the author had died on

the date on which:

(d) in the case of a literary work (other than a lecture) or an

engraving—the work was first published;

(e) in the case of a dramatic or musical work—the work was first

published or first performed in public, whichever first

happened; or

(f) in the case of a lecture—the lecture was first published or

first delivered in public, whichever first happened.

(6) In this section, expressions that are defined by section 204 have the

meanings respectively given to those expressions by that section

and do not have the meanings, if any, respectively given to those

expressions by Part II.

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Part XI Transitional

Division 3 Subject-matter other than works

Section 220

Division 3—Subject-matter other than works

220 Sound recordings

(1) Subsection 89(1) applies in relation to sound recordings made

before the commencement of this Act as if the reference in that

subsection to a qualified person included a reference to a British

subject and to a person domiciled in any part of the Queen’s

dominions to which the Copyright Act, 1911 extended.

(2) Subsection 89(2) does not apply in relation to a sound recording

made before the commencement of this Act.

221 Cinematograph films

Copyright does not subsist by virtue of section 90 in a

cinematograph film made before the commencement of this Act.

222 Application of Act to dramatic works and photographs

comprised in cinematograph films

(1) Where a cinematograph film made before the commencement of

this Act was an original dramatic work as defined by section 204,

this Act (other than this subsection) has effect in relation to the

film as if the film had been an original dramatic work as defined by

section 10 and the person who was the author of the work for the

purposes of the Copyright Act, 1911 shall be deemed to be the

author of the work for the purposes of this Act as having effect by

virtue of this subsection.

(2) This Act has effect in relation to photographs forming part of a

cinematograph film made before the commencement of this Act in

like manner as it has effect in relation to photographs not forming

part of a cinematograph film.

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Section 223

223 Television broadcasts and sound broadcasts

Copyright does not subsist by virtue of section 91 in:

(a) a television broadcast or a sound broadcast made before the

commencement of this Act; or

(b) a television broadcast or a sound broadcast made after the

commencement of this Act that is a repetition of a television

broadcast or a sound broadcast made before the

commencement of this Act.

224 Published editions of works

Copyright does not subsist by virtue of section 92 in a published

edition of a work or works where the first publication of the edition

took place before the commencement of this Act.

225 Infringement by importation, sale and other dealings

For the purposes of sections 102 and 103, the fact that, to the

knowledge of a person, the making of an article constituted, or, in

the case of an imported article, would, if the article had been made

in Australia by the importer of the article, have constituted, an

infringement of copyright under the Copyright Act, 1911 has the

like effect as if, to the knowledge of that person, the making of the

article had constituted, or would, if the article had been made in

Australia by the importer, have constituted, as the case may be, an

infringement of copyright under this Act.

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Part XI Transitional

Division 4 Miscellaneous

Section 226

Division 4—Miscellaneous

226 Actions for infringement

Section 115 does not apply to an infringement of copyright under

the Copyright Act, 1911 and does not affect any proceedings under

that Act, whether instituted before or after the commencement of

this Act.

227 Infringing copies

Section 116 of this Act does not apply in relation to an article

made, or imported into Australia, before the commencement of this

Act, but, notwithstanding subsection 5(1) of this Act, proceedings

may, subject to the Copyright Act, 1911, be brought or continued

by virtue of section 7 of that Act in relation to such an article and

may be so brought or continued although the proceedings relate to

the conversion or detention of the article after the commencement

of this Act.

228 Actions where copyright subject to exclusive licence

Division 3 of Part V does not apply in relation to a licence granted

before the commencement of this Act and does not affect any

proceedings under the Copyright Act, 1911, whether instituted

before or after the commencement of this Act.

229 Offences and summary proceedings

For the purposes of Division 5 of Part V, the definition of

infringing copy in section 10 applies as if any reference in that

definition to copyright included a reference to copyright under the

Copyright Act, 1911.

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Miscellaneous Division 4

Section 230

230 Limitation of actions

Section 134 of this Act does not apply in relation to an

infringement of copyright under the Copyright Act, 1911 or to an

article made, or imported into Australia, before the commencement

of this Act.

231 Restriction of importation of printed copies of works

Where:

(a) before the date of commencement of this Act, a notice had

been given in respect of a work under section 10 of the

Copyright Act 1912 or of that Act as amended; and

(b) that notice had not been withdrawn, and had not otherwise

ceased to have effect, before that date;

the notice has, during the period of six months commencing on that

date, such effect (if any) as it would have if it had been duly given

in accordance with section 135 of this Act.

232 References and applications to Tribunal in relation to licence

schemes

(1) Part VI applies in relation to licence schemes formulated before the

date of commencement of this Act in like manner as it applies in

relation to licence schemes formulated on or after that date, but, for

the purposes of the application of that Part in relation to licence

schemes formulated before that date, any reference in that Part to

copyright includes a reference to copyright under the Copyright

Act, 1911.

(2) Any reference in section 157 to a refusal or failure to grant or

procure the grant of a licence, or to a proposal that a licence should

be granted, does not include a reference to a refusal or failure that

occurred, or a proposal that was made, before the commencement

of this Act.

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Part XI Transitional

Division 4 Miscellaneous

Section 233

233 Duration of Crown copyright in photographs

Subsection 180(2) applies in relation to photographs taken before

the commencement of this Act as if subsection 180(3) were

omitted.

234 Duration of Crown copyright in recordings

Section 181 applies in relation to sound recordings made before the

commencement of this Act as if the reference in that section to the

expiration of the calendar year in which the recording is first

published were a reference to the expiration of the calendar year in

which the recording was made.

235 Crown copyright in films

(1) Sections 178 and 181 do not apply in relation to cinematograph

films made before the commencement of this Act.

(2) Where sections 178 and 181 do not apply in relation to a

cinematograph film by reason of the last preceding subsection:

(a) if the film was an original dramatic work as defined by

section 204—sections 176 and 177, and subsection 180(1),

apply in relation to that work in accordance with

subsection 222(1); and

(b) sections 176 and 177, and subsection 180(2) as modified by

section 233, apply in relation to photographs forming part of

the film in like manner as they apply in relation to

photographs not forming part of a cinematograph film.

236 Works made or published by international organizations

(1) Subsection 187(1) does not apply in relation to works made before

the commencement of this Act.

(2) Subsection 187(2) does not apply in relation to works first

published before the commencement of this Act.

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Miscellaneous Division 4

Section 237

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

by international organizations

(1) Subsection 188(1) does not apply in relation to sound recordings or

cinematograph films made before the commencement of this Act.

(2) Subsection 188(2) does not apply in relation to sound recordings or

cinematograph films first published before the commencement of

this Act.

(3) Subsection 188(3) does not apply in relation to an edition

published before the commencement of this Act.

239 Assignments and licences

(1) Subject to this section, where copyright subsists in a work by virtue

of this Act, any document that was made, or event that occurred,

before the commencement of this Act, being a document or event

that had any operation affecting the ownership of, or creating,

transferring or terminating an interest, right or licence in respect of,

copyright in the work under the Copyright Act, 1911 or would

have had such an operation if that Act had continued in force, has

the like operation in relation to the copyright in the work under this

Act.

(2) If the operation of a document to which the last preceding

subsection applies was or would have been limited to a period

specified in the document, the document does not have any

operation in relation to the copyright under this Act, except in so

far as that period extends after the commencement of this Act.

(3) For the purposes of the operation of a document in accordance with

this section:

(a) expressions used in the document have the same respective

meanings as they had immediately before the commencement

of this Act, whether or not those expressions have different

meanings for the purposes of this Act; and

(b) subsection 197(1) does not apply.

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Division 4 Miscellaneous

Section 239

(4) Without prejudice to the generality of subsection (1), where the

author of a work that was made before the commencement of this

Act was the first owner of the copyright in the work:

(a) any assignment of the copyright, or any grant of an interest in

the copyright, made by the author (otherwise than by will)

after the commencement of the Copyright Act, 1911 and

before the commencement of this Act, being an assignment

or grant that has effect in relation to copyright in the work

under this Act by virtue of subsection (1), does not operate to

vest in the assignee or grantee any rights with respect to the

copyright in the work after the expiration of 25 years after the

date of the death of the author;

(b) on the death of the author, the reversionary interest in the

copyright expectant on the termination of that period

devolves, notwithstanding any agreement to the contrary, on

his or her legal personal representative as part of his or her

estate; and

(c) any agreement entered into by the author as to the disposition

of that reversionary interest is of no force or effect;

but nothing in this subsection shall be taken to apply to the

assignment of the copyright in a collective work or a licence to

publish a work or a part of a work as part of a collective work.

(5) In the last preceding subsection, expressions that are defined by

section 204 have the meanings respectively given to those

expressions by that section and do not have the meanings, if any,

respectively given to those expressions by Part II.

(6) The preceding subsections of this section apply in relation to

copyright under this Act in a sound recording or in a

cinematograph film in like manner as they apply in relation to

copyright in a work but a reference in those subsections to the

copyright under the Copyright Act, 1911 shall:

(a) in the application of those subsections in relation to a sound

recording—be read as a reference to the copyright under that

Act in records embodying the recording; and

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Section 240

(b) in the application of those subsections in relation to a

cinematograph film—be read as a reference to any copyright

under that Act in the film (in so far as it constituted a

dramatic work for the purposes of that Act) or in photographs

forming part of the film.

240 Bequests

(1) Section 198 does not apply in relation to a bequest contained in the

will of a testator who died before the commencement of this Act.

(2) Where:

(a) an author has died before the commencement of this Act;

(b) a person has acquired, under the will of the author, the

ownership of a manuscript of a work by the author; and

(c) the work:

(i) has not been published;

(ii) in the case of a dramatic or musical work—has not been

performed in public; and

(iii) in the case of a lecture—has not been delivered in

public;

the ownership by that person of the manuscript is evidence that that

person is the owner of the copyright in the work.

(3) In the last preceding subsection, expressions that are defined by

section 204 have the meanings respectively given to those

expressions by that section and do not have the meanings, if any,

respectively given to those expressions by Part II.

242 Groundless threats of legal proceedings

Section 202 of this Act does not apply in relation to threats made

after the commencement of this Act in respect of acts that took

place before the commencement of this Act and, notwithstanding

section 6 of this Act, section 41A of the Copyright Act 1912-1966

continues to apply in relation to any such threats in like manner as

it continues to apply in relation to threats made before the

commencement of this Act.

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Part XI Transitional

Division 5 Works made before 1 July, 1912

Section 243

Division 5—Works made before 1 July, 1912

243 Interpretation

In this Division, right conferred by the Copyright Act, 1911, in

relation to a work, means a right that, by virtue of section 24 of the

Copyright Act, 1911, was conferred in place of a right that

subsisted immediately before the commencement of that Act.

244 Application

This Division applies to works made before 1 July 1912.

245 Rights conferred by Copyright Act, 1911

Notwithstanding anything in Division 2, section 32 of this Act does

not apply to a work to which this Division applies unless a right

conferred by the Copyright Act, 1911 subsisted in the work

immediately before the commencement of this Act.

246 Performing rights

(1) Where the right conferred by the Copyright Act, 1911 in relation to

a dramatic or musical work to which this Division applies did not

include the sole right to perform the work in public, then,

copyright, in so far as it subsists in the work by virtue of this Act,

does not include the performing rights in relation to the work.

(2) Where the right conferred by the Copyright Act, 1911 in relation to

a dramatic or musical work to which this Division applies

consisted only of the sole right to perform the work in public, then,

copyright, in so far as it subsists in the work by virtue of this Act,

consists only of the performing rights in relation to the work.

(3) For the purposes of this section, the performing rights, in relation

to a work, are:

(a) the exclusive right to perform the work, or an adaptation of

the work, in public;

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Works made before 1 July, 1912 Division 5

Section 247

(b) the exclusive right to communicate the work or an adaptation

of the work to the public.

247 Contributions to periodicals

Where:

(a) a work to which this Division applies (in this section referred

to as the relevant work) consists of an essay, article or item

forming part of, and first published in, a review, magazine or

other periodical or work of a like nature; and

(b) immediately before the commencement of this Act, a right of

publishing the relevant work in a separate form subsisted by

virtue of the note to the First Schedule to the Copyright Act,

1911;

copyright subsisting in the relevant work by virtue of this Act is

subject to that right of publishing the relevant work in a separate

form.

248 Assignments and licences

(1) Without prejudice to the generality of subsection 239(1) of this

Act, where:

(a) the author of a work to which this Division applies had,

before the commencement of the Copyright Act, 1911, made

an assignment or grant of a kind referred to in paragraph (a)

of the proviso to subsection 24(1) of that Act (in this section

referred to as the proviso); and

(b) copyright subsists in the work by virtue of this Act;

the succeeding subsections of this section have effect.

(2) If, before the commencement of this Act, an event occurred or a

notice was given, being an event or notice that, in accordance with

paragraph (a) of the proviso, had any operation affecting the

ownership of the right conferred by the Copyright Act, 1911 in

relation to the work or creating, transferring or terminating an

interest, right or licence in respect of that right, that event or notice

has the like operation in relation to the copyright in the work under

this Act.

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Division 5 Works made before 1 July, 1912

Section 248

(3) Any right that, at a time after the commencement of this Act,

would, by virtue of paragraph (a) of the proviso, have been

exercisable in relation to the work or in relation to the right

conferred by the Copyright Act, 1911, if this Act had not been

enacted, is exercisable in relation to the work or in relation to the

copyright subsisting in the work under this Act, as the case may be.

(4) If, in accordance with paragraph (a) of the proviso, the right

conferred by the Copyright Act, 1911 would have reverted to the

author or his or her personal representatives on the date referred to

in that paragraph, and that date occurs after the commencement of

this Act, then on that date:

(a) the copyright in the work under this Act reverts to the author

or his or her personal representatives, as the case may be; and

(b) any interest of any other person in that copyright that subsists

on that date by virtue of any document made before the

commencement of the Copyright Act, 1911 ceases.

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Performers’ protection Part XIA

Preliminary Division 1

Section 248A

Part XIA—Performers’ protection

Division 1—Preliminary

248A Interpretation

(1) In this Part:

20-year protection period of a performance means the period:

(a) beginning on the day when the performance was given; and

(b) ending at the end of 20 calendar years after the calendar year

in which the performance was given.

50-year protection period of a performance means the period:

(a) beginning on the day when the performance was given; and

(b) ending at the end of 50 calendar years after the calendar year

in which the performance was given.

action means a proceeding of a civil nature between parties and

includes a counterclaim.

authorised, in relation to a recording of a performance, means

made with the authority of the performer.

cinematograph film includes an article in which visual images are

embodied and which is capable of being used to show those images

as a moving picture, and a sound-track associated with those

images.

direct, in relation to a sound recording or cinematograph film of a

performance, means made directly from the live performance.

exempt recording means:

(a) an indirect cinematograph film of a performance, being a

film made solely for the purpose of the private and domestic

use of the person who made it; or

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

performance, being a film or recording that:

(i) is made from a communication that is a broadcast of the

performance; and

(ii) is made in domestic premises; and

(iii) is made solely for private and domestic use by watching

or listening to the performance at a time more

convenient than the time when the broadcast is made; or

(aa) an indirect sound recording of a performance, being a

recording that is a fair dealing with the performance for the

purpose of research or study; or

Note: See subsection (1A).

(b) an indirect cinematograph film of a performance, being a

film made solely for the purpose of use in scientific research;

or

(c) a direct or indirect sound recording or cinematograph film of

a performance if the recording or film is made:

(i) by, or on behalf of, the body administering an

educational institution; and

(ii) solely for the educational purposes of that or another

educational institution; or

Note: See section 248B.

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

a performance if the recording or film is a fair dealing with

the performance for the purpose of one or more persons with

a disability having access to copyright material; or

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

a performance if the recording or film is made:

(i) by, or on behalf of, an organisation assisting persons

with a disability; and

(ii) solely for the purpose of assisting one or more persons

with a disability to access copyright material in a format

that the person or persons require because of the

disability (whether the access is provided by or on

behalf of the organisation or by another body or

person); or

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Section 248A

(ea) a direct or indirect sound recording or cinematograph film of

a performance if the recording or film is made by an

authorized officer of a library or archives to which

Subdivision A of Division 3 of Part IVA applies solely for

any of the following purposes:

(i) the purpose of preserving the collection comprising that

or another library or archives to which that Subdivision

applies;

(ii) the purpose of research carried out at that or another

library or archives to which that Subdivision applies;

(iii) purposes directly related to the care of control of the

collection comprising the library or archives; or

(eb) a direct or indirect sound recording or cinematograph film of

a performance if the recording or film is made by an

authorized officer of a key cultural institution solely for the

purpose of preserving copyright material that:

(i) forms part of the collection comprising the key cultural

institution; and

(ii) the authorized officer is satisfied is of historical or

cultural significance to Australia; or

(f) a direct or indirect cinematograph film of a performance

made:

(i) for the purpose of, or associated with, the reporting of

news or current affairs; or

(ii) for the purpose of criticism or review; or

(fa) a direct or indirect sound recording of a performance, being a

recording that is a fair dealing with the performance:

(i) for the purpose of criticism or review, whether of that

performance or another performance; or

(ii) for the purpose of, or associated with, the reporting of

news in a newspaper, magazine or similar periodical; or

(iii) for the purpose of, or associated with, the reporting of

news by means of a communication or in a

cinematograph film; or

(g) a direct or indirect sound recording or cinematograph film of

a performance made solely for the purpose of a judicial

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Division 1 Preliminary

Section 248A

proceeding or the giving of professional advice by a legal

practitioner; or

(h) a direct sound recording or cinematograph film of a

performance made by a broadcaster who has the authority of

the performer to broadcast the performance, being a

recording or film made solely for the purpose of making that

broadcast; or

(j) a direct or indirect sound recording or cinematograph film of

a performance made by a person who reasonably believes,

due to a fraudulent or innocent misrepresentation made to the

person, that the performer has authorised the making of the

recording or film by the person; or

(ja) a copy of a sound recording if:

(i) paragraph (aa), (c), (d), (e), (ea), (eb), (fa), (g) or (j)

applies to the sound recording; and

(ii) the copy is made solely for a purpose mentioned in any

of those paragraphs (other than paragraph (j)); or

(k) a copy of a cinematograph film if:

(i) paragraph (a), (b), (c), (d), (e), (ea), (eb), (f), (g) or (j)

applies to the film; and

(ii) the copy is made solely for a purpose mentioned in any

of those paragraphs (other than paragraph (j)); or

(m) a copy of a sound recording or cinematograph film referred

to in paragraph (h), being a copy made solely for the purpose

referred to in that paragraph; or

(n) a copy of a sound recording or cinematograph film of a

performance if:

(i) paragraph (j) applies to the recording or film; and

(ii) the copy is made by a person who believes, due to a

fraudulent or innocent representation made to the

person, that the performer has authorised the making of

the copy; or

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

than a copy of an authorised sound recording where the copy

was made for use in a sound-track but the making of the

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Preliminary Division 1

Section 248A

sound recording was not authorised for the purpose of use in

a sound-track.

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

a performance, means made from a communication of the

performance.

performance means:

(a) a performance (including an improvisation) of a dramatic

work, or part of such a work, including such a performance

given with the use of puppets; or

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

work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part

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

literary work; or

(d) a performance of a dance; or

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

presentation or show; or

(f) a performance of an expression of folklore;

being a live performance:

(g) that is given in Australia, whether in the presence of an

audience or otherwise; or

(h) that is given by one or more qualified persons (even if it is

also given by one or more persons who are not qualified

persons), whether in the presence of an audience or

otherwise.

performer, in relation to a performance that is given outside

Australia, does not include a person who is not a qualified person

at the time of the performance.

protection period, in relation to a performance, has the meaning

given by section 248CA.

qualified person means an Australian citizen or a person resident

in Australia.

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Section 248A

recording means a sound recording or cinematograph film, other

than an exempt recording.

sound recording includes an article in which sounds are embodied.

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

made without the authority of the performer.

unauthorised use has the meaning given by section 248G.

(1A) For the purposes of paragraph (aa) of the definition of exempt

recording, in determining whether a recording is a fair dealing

with a performance for the purpose of research or study, regard

must be had to the following matters:

(a) the purpose and character of the recording;

(b) the nature of the performance;

(c) the possibility of obtaining an authorised recording of the

performance within a reasonable time at an ordinary

commercial price;

(d) the effect of the recording upon the potential market for, or

the value of, authorised recordings of the performance;

(e) if only part of the performance is recorded—the amount and

substantiality of the part recorded when compared to the

whole performance.

(2) The following shall be taken not to be performances for the

purposes of this Part:

(a) a performance referred to in subsection 28(1);

(b) a reading, recital or delivery of any item of news and

information;

(c) a performance of a sporting activity; or

(d) a participation in a performance as a member of an audience.

(3) In this Part:

(a) a reference to the doing of an act in relation to a performance

includes a reference to the doing of that act in relation to a

substantial part of the performance;

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Section 248B

(b) a reference to the doing of an act in relation to a performance,

or a recording of a performance, with the authority of the

performer is, in the case of 2 or more performers, a reference

to the doing of the act where each of the performers has

authorised the doing of the act;

(c) a reference to the doing of an act in relation to a performance,

or a recording of a performance, without the authority of the

performer is, in the case of 2 or more performers, a reference

to the doing of the act where at least one of the performers

has not authorised the doing of the act; and

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

associated with visual images forming part of a

cinematograph film.

248B Educational purposes

Without limiting the meaning of the expression educational

purposes in paragraph (c) of the definition of exempt recording in

subsection 248A(1), a cinematograph film of a performance shall

be taken to have been made for the educational purposes of an

educational institution if it is made:

(a) for use in connection with a particular course of instruction

provided by the institution; or

(b) for inclusion in the collection of a library of the institution.

248C Exempt recordings cease to be exempt recordings in certain

circumstances

(1) If any copies of a sound recording or a cinematograph film of a

performance, being a sound recording or film that is an exempt

recording under paragraph (h) of the definition of exempt

recording in subsection 248A(1), are not destroyed before the end

of the period of 12 months beginning on the day on which any of

those copies is first used for broadcasting the performance, the

sound recording or film shall, at the end of that period, cease to be

an exempt recording.

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Section 248CA

(1A) A sound recording, or a copy of a sound recording, ceases to be an

exempt recording if it:

(a) is an exempt recording because it was made for a purpose

mentioned in paragraph (aaa), (aa), (c), (d), (e), (ea), (eb) or

(fa) of the definition of exempt recording in

subsection 248A(1); and

(b) is used for a purpose not mentioned in those paragraphs

without the authority of the performer.

(2) A cinematograph film, or a copy of a cinematograph film, ceases to

be an exempt recording if it:

(a) is an exempt recording because it was made for a purpose

mentioned in paragraph (a), (aaa), (b), (c), (d), (e), (ea), (eb)

or (f) of the definition of exempt recording in

subsection 248A(1); and

(b) is used for a purpose not mentioned in those paragraphs

without the authority of the performer.

248CA Protection period

(1) Subject to subsection (3), the protection period of a performance is

the period beginning on the day when the performance was given

and ending at the end of the period of 20 calendar years after the

calendar year in which the performance was given.

(3) For the purposes of the operation, in relation to a sound recording

of a performance, of a provision of this Part listed in

subsection (4), the protection period of a performance is the period

beginning on the day when the performance was given and ending

at the end of the period of 50 calendar years after the calendar year

in which the performance was given.

(4) Subsection (3) applies to the following provisions of this Part:

(a) paragraphs 248G(1)(a), (2)(a), (2)(b) and (2)(d) to (g);

(b) section 248PA;

(c) section 248PB;

(d) section 248PE;

(e) section 248PF;

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Preliminary Division 1

Section 248D

(f) section 248PG;

(g) section 248PI;

(h) section 248PJ;

(i) section 248PK;

(j) section 248PL;

(k) section 248PM.

248D Private and domestic use

For the purposes of this Part, a cinematograph film is taken not to

have been made for the private and domestic use of the person who

made it if it is made for the purpose of:

(a) selling it, letting it for hire, or by way of trade offering or

exposing it for sale or hire; or

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

or

(c) by way of trade exhibiting it in public; or

(d) broadcasting the film; or

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

248F Application

(1) This Part, except Subdivisions A, B and C of Division 3, applies to

acts done on or after 1 October 1989 in relation to a performance

given on or after that day.

Note 1: That day was the day this Part commenced.

Note 2: Sections 248P and 248QA apply Subdivisions A and B of Division 3

to acts done at or after the time those Subdivisions commence as a

result of Part 1 of Schedule 1 to the Copyright Amendment Act 2006.

Subdivision C of that Division is merely ancillary to those

Subdivisions.

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Section 248F

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

is performed or in any sound recording, cinematograph film or

broadcast of a performance, or any other right or obligation arising

otherwise than under this Part.

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

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

plaintiff.

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Performers’ protection Part XIA

Actions by performers Division 2

Section 248G

Division 2—Actions by performers

248G What constitutes unauthorised use

(1) A person makes an unauthorised use of a performance if the

person, at any time during the protection period of the performance

and without the authority of the performer:

(a) makes a direct or indirect recording of the performance; or

(b) communicates the performance to the public, either directly

from the live performance or from an unauthorised recording

of it.

Note: An educational institution can copy and communicate a broadcast of a

performance without the authority of the performer in some

circumstances: see Division 4 of Part IVA.

(2) A person makes an unauthorised use of a performance if the

person, at any time during the protection period of the performance

and without the authority of the performer:

(a) makes a copy of a recording of the performance that the

person knows, or ought reasonably to know, is an

unauthorised recording;

(b) makes a copy of an exempt recording of the performance,

being a copy that the person knows, or ought reasonably to

know, is not itself an exempt recording;

(c) makes, for use in a sound-track, a copy of an authorised

sound recording of the performance and the person knows, or

ought reasonably to know, that the making of the sound

recording was not authorised for the purpose of use in that or

any other sound-track;

(d) has in his or her possession a recording of the performance,

for the purpose of:

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

or exposing it for sale or hire; or

(ii) distributing it for the purpose of trade, or for any other

purpose that will affect prejudicially the financial

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Section 248G

interests of the performer or performers in the

performance;

being a recording that the person knows, or ought reasonably

to know, is an unauthorised recording;

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

offers or exposes for sale or hire, a recording of the

performance that the person knows, or ought reasonably to

know, is an unauthorised recording;

(f) distributes a recording of the performance for the purpose of

trade, or for any other purpose to an extent that will affect

prejudicially the financial interests of the performer or

performers in the performance, being a recording that the

person knows, or ought reasonably to know, is an

unauthorised recording;

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

purpose of:

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

exhibiting it in public or offering or exposing it for sale

or hire; or

(ii) distributing it for the purpose of trade, or for any other

purpose to an extent that will affect prejudicially the

financial interests of the performer or performers in the

performance;

being a recording that the person knows, or ought reasonably

to know, is an unauthorised recording; or

(h) causes a recording of the performance to be heard or seen in

public, being a recording that the person knows, or ought

reasonably to know, is an unauthorised recording.

(3) A person who communicates an authorised recording of a

performance to the public without the authority of the performer

does not, by so doing, make an unauthorised use of the

performance.

(4) This section applies only to acts done in Australia.

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Section 248H

248H Copying sound recordings for broadcasting

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

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

but for this subsection, be an unauthorised use of the performance

under that paragraph, the making by a person of such a copy solely

for the purpose of use in a broadcast by that person is not an

unauthorised use of the performance.

(2) Subsection (1) does not apply to a copy if it is used for a purpose

other than:

(a) a broadcast by the person who made the copy; or

(b) the making of further copies by that person for the purpose of

broadcasting by that person.

(3) Subsection (1) does not apply to a copy unless all the copies made

in accordance with that subsection are:

(a) destroyed; or

(b) transferred, with the consent of the Director-General of the

National Archives of Australia, to the care (within the

meaning of the Archives Act 1983) of the National Archives

of Australia;

before the end of the period of 12 months beginning on the day on

which any of those copies is first used for the purpose of a

broadcast in accordance with that subsection, or before the end of

such further period (if any) as is agreed between the maker of the

copy and the performer, or all of the performers.

(4) The Director-General of the National Archives of Australia must

not consent to the transfer of the care of a copy of a sound

recording to the National Archives of Australia unless the

Director-General has certified that the sound recording is of an

exceptional documentary character.

248J Actions for unauthorised use

(1) A performer may bring an action for an unauthorised use of his or

her performance.

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Division 2 Actions by performers

Section 248J

(2) The relief that a court may grant in an action for an unauthorised

use of a performance includes an injunction (subject to such terms,

if any, as the court thinks fit) and damages.

(3) Where, in an action for an unauthorised use of a performance:

(a) the unauthorised use is established; and

(b) the court is satisfied that it is proper to do so, having regard

to:

(i) the flagrancy of the use;

(ii) any benefit shown to have accrued to the defendant by

reason of the use; and

(iii) all other relevant matters;

the court may, in assessing damages, award such additional

damages as it considers appropriate in the circumstances.

(4) If:

(a) a performer brings an action under this section that relates to

a recording of a performance; and

(b) the relief granted in the action consists of or includes

damages; and

(c) the performer has already been granted damages in an action

under another section of this Act in relation to an

infringement of his or her copyright in the recording; and

(d) the action referred to in paragraph (c) arose out of the same

event or transaction as the action referred to in paragraph (a);

the amount of any damages referred to in paragraph (b) that, apart

from this subsection, would be awarded to the performer is to be

reduced by the amount of the damages referred to in paragraph (c).

(5) If:

(a) a performer brings an action under another section of this Act

that relates to an infringement of his or her copyright in a

recording of a performance; and

(b) the relief granted in the action consists of or includes

damages; and

(c) the performer has already been granted damages in an action

under this section in relation to the performance; and

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Section 248K

(d) the action referred to in paragraph (c) arose out of the same

event or transaction as the action referred to in paragraph (a);

the amount of any damages referred to in paragraph (b) that, apart

from this subsection, would be awarded to the performer is to be

reduced by the amount of the damages referred to in paragraph (c).

248K Exercise of jurisdiction

The jurisdiction of the Supreme Court of a State or Territory in an

action under section 248J shall be exercised by a single Judge of

the Court.

248L Appeals

(1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) in an action under section 248J is

final and conclusive.

(2) An appeal lies from a decision of a court of a State or Territory in

an action under section 248J:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

248M Jurisdiction of Federal Court

Jurisdiction is conferred on the Federal Court of Australia with

respect to actions under section 248J.

248MA Jurisdiction of Federal Circuit Court

Jurisdiction is conferred on the Federal Circuit Court of Australia

with respect to actions under section 248J.

248N Right to bring an action not assignable

The right of a performer to bring an action under section 248J is

not assignable.

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Division 3 Offences

Section 248P

Division 3—Offences

Subdivision A—General offences

248P Scope of this Subdivision

(1) This Subdivision applies to acts done in Australia on or after the

commencement of this Subdivision.

Note: This Subdivision commenced when it was included in this Act by

Part 1 of Schedule 1 to the Copyright Amendment Act 2006.

(2) This section has effect despite section 14.1 (Standard geographical

jurisdiction) of the Criminal Code.

248PA Unauthorised direct recording during protection period

Indictable offence

(1) A person commits an offence if:

(a) the person makes a direct recording of a performance; and

(b) the recording is made during the protection period of the

performance; and

(c) the recording is made without the authority of the performer.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

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Section 248PB

Summary offence

(3) A person commits an offence if:

(a) the person makes a direct recording of a performance; and

(b) the recording is made during the protection period of the

performance; and

(c) the recording is made without the authority of the performer

and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

248PB Unauthorised indirect recording during protection period

Indictable offence

(1) A person commits an offence if:

(a) the person makes an indirect recording of a performance; and

(b) the recording is made during the protection period of the

performance; and

(c) the recording is made without the authority of the performer.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person makes an indirect recording of a performance; and

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Section 248PC

(b) the recording is made during the protection period of the

performance; and

(c) the recording is made without the authority of the performer

and the person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes an indirect recording of a performance; and

(b) the recording is made during the protection period of the

performance; and

(c) the recording is made without the authority of the performer.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Defence

(7) Subsection (1), (3) or (5) does not apply if the recording was made

solely for the person’s private and domestic use.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

248PC Unauthorised communication to public during 20-year

protection period

Indictable offence

(1) A person commits an offence if:

(a) the person communicates a performance to the public; and

(b) the communication is made during the 20-year protection

period of the performance; and

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(c) the communication is made without the authority of the

performer; and

(d) the communication is made either directly from the live

performance or from an unauthorised recording of the

performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person communicates a performance to the public; and

(b) the communication is made during the 20-year protection

period of the performance; and

(c) the communication is made without the authority of the

performer and the person is negligent as to that fact; and

(d) the communication is made either directly from the live

performance or from an unauthorised recording of the

performance.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Defence

(7) To avoid doubt, subsections (1) and (3) do not apply to the

communication to the public of an authorised recording of the

performance.

Note 1: A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

Note 2: An educational institution can also copy and communicate a broadcast

of a performance without contravening this section in some

circumstances (see Division 4 of Part IVA).

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Division 3 Offences

Section 248PD

248PD Playing unauthorised recording publicly during 20-year

protection period

Indictable offence

(1) A person commits an offence if:

(a) the person causes a recording of a performance to be heard or

seen in public; and

(b) the recording is heard or seen in public during the 20-year

protection period of the performance; and

(c) the recording is unauthorised.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person causes a recording of a performance to be heard or

seen in public; and

(b) the recording is heard or seen in public during the 20-year

protection period of the performance; and

(c) the recording is unauthorised and the person is negligent as to

that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

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Section 248PE

248PE Possessing equipment to make or copy unauthorised

recording

Indictable offence

(1) A person commits an offence if:

(a) the person possesses a plate or recording equipment,

intending it to be used for making:

(i) an unauthorised recording of a performance; or

(ii) a copy of an unauthorised recording of a performance;

and

(b) the possession occurs during the protection period of the

performance.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person possesses a plate or recording equipment; and

(b) the plate or equipment is to be used for making:

(i) a recording of a performance; or

(ii) a copy of an unauthorised recording of a performance;

and

(c) either:

(i) the recording to be made using the plate or equipment

will be an unauthorised recording of the performance; or

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Section 248PF

(ii) the recording to be copied using the plate or equipment

is an unauthorised recording of the performance;

and the person is negligent as to that fact; and

(d) the possession occurs during the protection period of the

performance.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) To avoid doubt, recklessness is the fault element for the

circumstance that the plate or equipment is to be used for making:

(a) a recording of a performance; or

(b) a copy of an unauthorised recording of a performance.

(5) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

No need to prove which performance or recording is to be involved

(8) In a prosecution for an offence against this section, it is not

necessary to prove:

(a) which particular performance is intended to be, or will be,

recorded using the device; or

(b) which particular recording is intended to be, or will be,

copied using the device.

248PF Copying unauthorised recording

Indictable offence

(1) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

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Section 248PG

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(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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Section 248PG

248PG Unauthorised copying of exempt recording

Indictable offence

(1) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the copy is made without the authority of the performer; and

(d) the recording is an exempt recording; and

(e) the copy is not an exempt recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the copy is made without the authority of the performer and

the person is negligent as to that fact; and

(d) the recording is an exempt recording; and

(e) the copy is not an exempt recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

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Section 248PH

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes a copy of a recording of a performance; and

(b) the copy is made during the protection period of the

performance; and

(c) the copy is made without the authority of the performer; and

(d) the recording is an exempt recording; and

(e) the copy is not an exempt recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248PH Unauthorised copying of authorised sound recording

Indictable offence

(1) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance, intending that the copy be used in a

sound-track; and

(b) the copy is made during the 20-year protection period of the

performance; and

(c) the copy is made without the authority of the performer; and

(d) the sound recording is an authorised sound recording; and

(e) the making of the sound recording was not authorised for the

purpose of use in that or any other sound-track.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

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Section 248PH

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance, intending that the copy be used in a

sound-track; and

(b) the copy is made during the 20-year protection period of the

performance; and

(c) the copy is made without the authority of the performer and

the person is negligent as to that fact; and

(d) the sound recording is an authorised sound recording; and

(e) the making of the sound recording was not authorised for the

purpose of use in that or any other sound-track and the

person is negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance in preparation for use in a sound-track; and

(b) the copy is made during the 20-year protection period of the

performance; and

(c) the copy is made without the authority of the performer; and

(d) the sound recording is an authorised sound recording; and

(e) the making of the sound recording was not authorised for the

purpose of use in that or any other sound-track.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

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Section 248PI

Note: For strict liability, see section 6.1 of the Criminal Code.

248PI Selling etc. unauthorised recording

Indictable offence

(1) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a recording of a performance;

(ii) lets for hire a recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

recording of a performance; and

(b) the act is done during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a recording of a performance;

(ii) lets for hire a recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

recording of a performance; and

(b) the act is done during the protection period of the

performance; and

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Section 248PJ

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a recording of a performance;

(ii) lets for hire a recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

recording of a performance; and

(b) the act is done during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248PJ Distributing unauthorised recording

Indictable offences

(1) A person commits an offence if:

(a) the person distributes a recording of a performance, with the

intention of trading; and

(b) the distribution occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

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Section 248PJ

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) A person commits an offence if:

(a) the person distributes a recording of a performance; and

(b) the distribution occurs during the protection period of the

performance; and

(c) the distribution will affect prejudicially the financial interests

of the performer in the performance; and

(d) the recording is an unauthorised recording.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offences

(4) A person commits an offence if:

(a) the person distributes a recording of a performance, with the

intention of trading; and

(b) the distribution occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person distributes a recording of a performance; and

(b) the distribution occurs during the protection period of the

performance; and

(c) the distribution will affect prejudicially the financial interests

of the performer in the performance; and

(d) the recording is an unauthorised recording and the person is

negligent as to that fact.

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Section 248PK

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offence

(7) A person commits an offence if:

(a) the person distributes a recording of a performance in

preparation for, or in the course of, trade; and

(b) the distribution occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(9) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248PK Commercial possession or import of unauthorised recording

Indictable offence

(1) A person commits an offence if:

(a) the person possesses, or imports into Australia, a recording of

a performance, with the intention of doing any of the

following:

(i) selling the recording;

(ii) letting the recording for hire;

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording either for the purpose of trade

or to an extent that will affect prejudicially the financial

interests of the performer in the performance; and

(b) the possession or import occurs during the protection period

of the performance; and

(c) the recording is an unauthorised recording.

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Offences Division 3

Section 248PK

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person possesses, or imports into Australia, a recording of

a performance, with the intention of doing any of the

following:

(i) selling the recording;

(ii) letting the recording for hire;

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording either for the purpose of trade

or to an extent that will affect prejudicially the financial

interests of the performer in the performance; and

(b) the possession or import occurs during the protection period

of the performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

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Section 248PL

(a) the person possesses, or imports into Australia, a recording of

a performance in preparation for, or in the course of, doing

any of the following:

(i) selling the recording;

(ii) letting the recording for hire;

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording for trade; and

(b) the possession or import occurs during the protection period

of the performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248PL Exhibiting unauthorised recording in public by way of trade

Indictable offence

(1) A person commits an offence if:

(a) the person by way of trade exhibits in public a recording of a

performance; and

(b) the exhibition occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

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Section 248PM

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person by way of trade exhibits in public a recording of a

performance; and

(b) the exhibition occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person by way of trade exhibits in public a recording of a

performance; and

(b) the exhibition occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248PM Importing unauthorised recording for exhibition by way of

trade

Indictable offence

(1) A person commits an offence if:

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(a) the person imports into Australia a recording of a

performance, with the intention of exhibiting the recording in

public by way of trade; and

(b) the import occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Note: Under section 248CA, the protection period of a performance is:

(a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and

(b) a 50-year protection period so far as this section relates to a sound recording of the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person imports into Australia a recording of a

performance, with the intention of exhibiting the recording in

public by way of trade; and

(b) the import occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

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Section 248QA

(a) the person imports into Australia a recording of a

performance, in preparation for exhibiting the recording in

public by way of trade; and

(b) the import occurs during the protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision B—Acts relating to sound recordings of

performances given before 1 July 1995

248QA Scope of this Subdivision

(1) This Subdivision applies to an act done in Australia on or after the

commencement of this Subdivision, in relation to a performance

given at any time before 1 July 1995.

Note 1: That day was the day on which Part 4 of the Copyright (World Trade

Organization Amendments) Act 1994 commenced.

Note 2: This Subdivision commenced when it was included in this Act by

Part 1 of Schedule 1 to the Copyright Amendment Act 2006.

(2) This Subdivision has effect despite section 14.1 (Standard

geographical jurisdiction) of the Criminal Code.

248QB Possessing equipment for copying unauthorised sound

recording

Indictable offence

(1) A person commits an offence if:

(a) the person possesses a plate or recording equipment,

intending it to be used for making a copy of an unauthorised

sound recording of a performance; and

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Section 248QC

(b) the possession occurs during the 50-year protection period of

the performance.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person possesses a plate or recording equipment; and

(b) the plate or recording equipment is to be used for making a

copy of a sound recording of a performance; and

(c) the recording is an unauthorised recording of the

performance and the person is negligent as to that fact; and

(d) the possession occurs during the 50-year protection period of

the performance.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) To avoid doubt, recklessness is the fault element for the

circumstance that the plate or recording equipment is to be used for

making a copy of a sound recording of a performance.

(5) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

No need to prove which recording is to be copied

(8) In a prosecution for an offence against this section, it is not

necessary to prove which particular recording is intended to be, or

will be, copied using the device.

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Section 248QC

248QC Copying unauthorised sound recording

Indictable offence

(1) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance; and

(b) the copy is made during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance; and

(b) the copy is made during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person makes a copy of a sound recording of a

performance; and

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Section 248QD

(b) the copy is made during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248QD Selling etc. unauthorised sound recording

Indictable offence

(1) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a sound recording of a performance;

(ii) lets for hire a sound recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

sound recording of a performance; and

(b) the act is done during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a sound recording of a performance;

(ii) lets for hire a sound recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

sound recording of a performance; and

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Section 248QE

(b) the act is done during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person does any of the following acts:

(i) sells a sound recording of a performance;

(ii) lets for hire a sound recording of a performance;

(iii) by way of trade offers or exposes for sale or hire a

sound recording of a performance; and

(b) the act is done during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248QE Distributing unauthorised sound recording

Indictable offences

(1) A person commits an offence if:

(a) the person distributes a sound recording of a performance,

with the intention of trade; and

(b) the distribution occurs during the 50-year protection period

of the performance; and

(c) the recording is an unauthorised recording.

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Section 248QE

(2) A person commits an offence if:

(a) the person distributes a sound recording of a performance;

and

(b) the distribution occurs during the 50-year protection period

of the performance; and

(c) the distribution will affect prejudicially the financial interests

of the performer in the performance; and

(d) the recording is an unauthorised recording.

(3) An offence against subsection (1) or (2) is punishable on

conviction by a fine of not more than 550 penalty units or

imprisonment for not more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offences

(4) A person commits an offence if:

(a) the person distributes a sound recording of a performance,

with the intention of trade; and

(b) the distribution occurs during the 50-year protection period

of the performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(5) A person commits an offence if:

(a) the person distributes a sound recording of a performance;

and

(b) the distribution occurs during the 50-year protection period

of the performance; and

(c) the distribution will affect prejudicially the financial interests

of the performer in the performance; and

(d) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

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Section 248QF

(6) An offence against subsection (4) or (5) is a summary offence,

despite section 4G of the Crimes Act 1914.

Strict liability offence

(7) A person commits an offence if:

(a) the person distributes a sound recording of a performance in

preparation for, or in the course of, trade; and

(b) the distribution occurs during the 50-year protection period

of the performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(9) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248QF Commercial possession or import of unauthorised sound

recording

Indictable offence

(1) A person commits an offence if:

(a) the person possesses, or imports into Australia, a sound

recording of a performance, with the intention of doing any

of the following:

(i) selling the recording;

(ii) letting the recording for hire;

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording either for the purpose of trade

or to an extent that will affect prejudicially the financial

interests of the performer in the performance; and

(b) the possession or import occurs during the 50-year protection

period of the performance; and

(c) the recording is an unauthorised recording.

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Section 248QF

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person possesses, or imports into Australia, a sound

recording of a performance, with the intention of doing any

of the following:

(i) selling the recording;

(ii) letting the recording for hire;

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording either for the purpose of trade

or to an extent that will affect prejudicially the financial

interests of the performer in the performance; and

(b) the possession or import occurs during the 50-year protection

period of the performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person possesses, or imports into Australia, a sound

recording of a performance in preparation for, or in the

course of, doing any of the following:

(i) selling the recording;

(ii) letting the recording for hire;

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Section 248QG

(iii) by way of trade offering or exposing the recording for

sale or hire;

(iv) distributing the recording for trade; and

(b) the possession or import occurs during the 50-year protection

period of the performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248QG Exhibiting unauthorised sound recording in public by way

of trade

Indictable offence

(1) A person commits an offence if:

(a) the person by way of trade exhibits in public a sound

recording of a performance; and

(b) the exhibition occurs during the 50-year protection period of

the performance; and

(c) the recording is an unauthorised recording.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person by way of trade exhibits in public a sound

recording of a performance; and

(b) the exhibition occurs during the 50-year protection period of

the performance; and

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Section 248QH

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person by way of trade exhibits in public a sound

recording of a performance; and

(b) the exhibition occurs during the 50-year protection period of

the performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

248QH Importing unauthorised sound recording for exhibition by

way of trade

Indictable offence

(1) A person commits an offence if:

(a) the person imports into Australia a sound recording of a

performance, with the intention of exhibiting the recording in

public by way of trade; and

(b) the import occurs during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

(2) An offence against subsection (1) is punishable on conviction by a

fine of not more than 550 penalty units or imprisonment for not

more than 5 years, or both.

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Section 248R

Note: A corporation may be fined up to 5 times the amount of the maximum

fine (see subsection 4B(3) of the Crimes Act 1914).

Summary offence

(3) A person commits an offence if:

(a) the person imports into Australia a sound recording of a

performance, with the intention of exhibiting the recording in

public by way of trade; and

(b) the import occurs during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording and the person is

negligent as to that fact.

Penalty: 120 penalty units or imprisonment for 2 years, or both.

(4) An offence against subsection (3) is a summary offence, despite

section 4G of the Crimes Act 1914.

Strict liability offence

(5) A person commits an offence if:

(a) the person imports into Australia a sound recording of a

performance in preparation for exhibiting the recording in

public by way of trade; and

(b) the import occurs during the 50-year protection period of the

performance; and

(c) the recording is an unauthorised recording.

Penalty: 60 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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Division 3 Offences

Section 248R

Subdivision C—Prosecution and infringement notices

248R Courts in which offences may be prosecuted

(1) Prosecutions for offences against Subdivision A or B may be

brought in the Federal Court of Australia or in any other court of

competent jurisdiction.

(2) However, the Federal Court of Australia does not have jurisdiction

to hear or determine prosecutions for indictable offences, despite

section 15C of the Acts Interpretation Act 1901.

(3) The Federal Court of Australia has jurisdiction to hear and

determine prosecutions of the following offences against

Subdivision A or B:

(a) summary offences;

(b) offences of strict liability.

248S Protection against multiple proceedings for same act

If a single act done in relation to a performance is an offence

against Subdivision A and an offence against Subdivision B, only

one of the offences may be prosecuted.

248SA Infringement notices

(1) The regulations may make provision enabling a person who is

alleged to have committed an offence of strict liability against

Subdivision A or B to pay a penalty to the Commonwealth as an

alternative to prosecution.

(2) The penalty must equal one-fifth of the maximum fine that a court

could impose on the person as a penalty for that offence.

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Section 248T

Subdivision D—Destruction or delivery up of unauthorised

recordings

248T Destruction or delivery up of unauthorised recordings

The court before which a person is charged with an offence against

this Part may, whether the person is convicted of the offence or

not, order that any article in the possession of the person that

appears to the court to be:

(a) an unauthorised recording of a performance, or a copy of

such a recording; or

(b) a plate or recording equipment used, or intended to be used,

for making an unauthorised recording of a performance, or

copies of such a recording;

be destroyed or delivered up to the performer or performers

concerned or otherwise dealt with in such manner as the court

thinks fit.

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Division 4 Extension of protection to foreign countries

Section 248U

Division 4—Extension of protection to foreign countries

248U Application to foreign countries

(1) Subject to this section, the regulations may apply any of the

provisions of this Part specified in the regulations, in relation to a

foreign country so specified, in any one or more of the following

ways:

(a) so that the provisions apply in relation to performances given

in that country in like manner as those provisions apply in

relation to performances given in Australia;

(aa) so that the provisions apply in relation to recordings, made in

that country, of performances in like manner as those

provisions apply in relation to recordings of performances

given in Australia;

(ab) so that the provisions apply in relation to broadcasts, made in

that country, of performances in like manner as those

provisions apply in relation to broadcasts of performances

given in Australia;

(ac) so that the provisions apply in relation to recordings, made

by persons who are citizens, nationals or residents of that

country, of performances in like manner as those provisions

apply in relation to recordings of performances given in

Australia;

(b) so that the provisions apply in relation to persons who are

citizens or nationals of that country in like manner as those

provisions apply in relation to persons who are Australian

citizens;

(c) so that the provisions apply in relation to persons who are

resident in that country in like manner as those provisions

apply in relation to persons who are resident in Australia.

(2) Regulations applying a provision of this Part in relation to a

foreign country:

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Section 248V

(a) may apply the provision without exception or modification or

subject to such exceptions or modifications as are specified

in the regulations; and

(b) may apply the provision either generally or in relation to such

classes of performances, or other classes of cases, as are

specified in the regulations.

(3) Before the Governor-General makes a regulation for the purposes

of subsection (1) applying a provision of this Part in relation to a

foreign country:

(a) the country must be a party to an international agreement

specified, in relation to the provision of this Part, by the

regulations for the purposes of this paragraph; or

(b) the Minister must be satisfied that adequate protection is or

will be given under the law of the country to performers in

performances:

(i) protected under this Act; and

(ii) to which the provision of this Part relates.

248V Denial of protection to citizens of countries not giving

adequate protection to Australian performances

(2) The regulations may, subject to subsection (3), provide, either

generally or in such cases as are specified in the regulations, that

this Part does not apply to performances given after a day specified

in the regulations (which may be a day before the commencement

of the regulations or of this Part) if, at the time the performances

were or are given, the performers were or are citizens or nationals

of a foreign country specified in the regulations, other than persons

resident in Australia.

(3) Before the Governor-General makes a regulation for the purposes

of subsection (2) in relation to a foreign country:

(a) the Minister must be satisfied that that the law of the country

does not give adequate protection to Australian performances

(whether the lack of protection relates to all or any of the

ways that the provisions may be applied by the regulations

under subsection 248U(1)); and

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Division 4 Extension of protection to foreign countries

Section 248V

(b) the Minister must have regard to the nature and extent of that

lack of protection.

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Regulations Part XII

Section 249

Part XII—Regulations

249 Regulations

General regulation-making power

(1) The Governor-General may make regulations, not inconsistent with

this Act, prescribing all matters that are required or permitted by

this Act to be prescribed or are necessary or convenient to be

prescribed for carrying out or giving effect to this Act and, in

particular, prescribing penalties not exceeding a fine of $100 for

offences against the regulations.

Regulations in relation to technological protection measures

(2) Without limiting subsection (1), the Governor-General may make

regulations prescribing the doing of an act by a person for the

purposes of subsections 116AN(9) and 132APC(9).

Note: For prescription of acts and persons by class, see subsection 13(3) of

the Legislation Act 2003.

(3) However, the Governor-General must not make a regulation

prescribing the doing of an act by a person unless the Minister

makes a recommendation to prescribe the doing of the act by the

person.

(4) The Minister may only make a recommendation to prescribe the

doing of an act by a person if:

(a) a submission has been made (whether before or after the

commencement of this section) to prescribe the doing of the

act by the person; and

(b) the doing of the act by the person will not infringe the

copyright in a work or other subject-matter; and

(c) the doing of the act by the person is in relation to a particular

class of works or other subject-matter; and

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Part XII Regulations

Section 249

(d) an actual or likely adverse impact on the doing of the act by

the person has been credibly demonstrated; and

(e) the adequacy of the protection and the effectiveness of the

remedies provided by Subdivision A of Division 2A of

Part V and Subdivision E of Division 5 of Part V would not

be impaired if the doing of the act by the person were

prescribed.

Note: For the purposes of paragraph (a), it is not necessary for the person

who made the submission to be the person in relation to whom the act

is prescribed.

(5) If a submission has been made to prescribe the doing of an act by a

person, the Minister must make a decision whether to recommend

the prescription of the doing of the act by the person as soon as

practicable after receiving the submission, but in any case, within 4

years of receiving it.

(6) The Governor-General may make regulations varying or revoking

regulations made under subsection (2).

(7) However, the Governor-General must not make a regulation

varying or revoking a regulation made under subsection (2) unless

the Minister makes a recommendation to vary or revoke the

regulation.

(8) The Minister may make a recommendation to vary or revoke a

regulation made under subsection (2) only if:

(a) a submission has been made to vary or revoke the regulation;

and

(b) an actual or likely adverse impact on the doing of the act by

the person that is the subject of the regulation can no longer

be credibly demonstrated; and

(c) the adequacy of the protection and the effectiveness of the

remedies provided by Subdivision A of Division 2A of

Part V and Subdivision E of Division 5 of Part V would be

impaired if the regulation were not varied or revoked.

(9) If a submission has been made to vary or revoke a regulation made

under subsection (2), the Minister must make a decision whether to

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Regulations Part XII

Section 249

recommend the variation or revocation of the regulation as soon as

practicable after receiving the submission, but in any case, within 4

years of receiving it.

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The Schedule

The Schedule Section 144

OATH

I, , do swear that I will be

faithful and bear true allegiance to Her Majesty Queen Elizabeth

the Second, Her Heirs and Successors according to law, that I will

well and truly serve Her in the office of

and that I will faithfully and impartially perform the duties of that

office.

SO HELP ME GOD!

AFFIRMATION

I, , do solemnly and sincerely

promise and declare that I will be faithful and bear true allegiance

to Her Majesty Queen Elizabeth the Second, Her Heirs and

Successors according to law, that I will well and truly serve Her in

the office of and that I will faithfully and

impartially perform the duties of that office.

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Endnotes

Endnote 1—About the endnotes

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that

has amended (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any application, saving

or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at

the provision (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnotes

Endnote 1—About the endnotes

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

/sub-subparagraph(s)C[x] = Compilation No. x

Ch = Chapter(s) pres = present

def = definition(s) prev = previous

Dict = Dictionary (prev…) = previously

disallowed = disallowed by Parliament Pt = Part(s)

Div = Division(s) r = regulation(s)/rule(s)

ed = editorial change reloc = relocated

exp = expires/expired or ceases/ceased to have renum = renumbered

effect rep = repealed

F = Federal Register of Legislation rs = repealed and substituted

gaz = gazette s = section(s)/subsection(s)

LA = Legislation Act 2003 Sch = Schedule(s)

LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given SLI = Select Legislative Instrument

effect SR = Statutory Rules

(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)

cannot be given effect SubPt = Subpart(s)

mod = modified/modification underlining = whole or part not

commenced or to be commencedNo. = Number(s)

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Endnotes

Endnote 3—Legislation history

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Copyright Act 1968 63, 1968 27 June 1968 1 May 1969 (see

Gazette 1969, p. 2543)

Statute Law Revision 216, 1973 19 Dec 1973 31 Dec 1973 ss. 9(1) and 10

Act 1973

Administrative Changes 91, 1976 20 Sept 1976 s. 3: (a) s. 4

(Consequential

Provisions) Act 1976

Broadcasting and 160, 1977 10 Nov 1977 1 Jan 1978 (see

Television Amendment Gazette 1977, No.

Act 1977 S259)

Jurisdiction of Courts 19, 1979 28 Mar 1979 Parts II–XVII (ss. 3– ss. 9 and 124

(Miscellaneous 123): 15 May 1979

Amendments) Act 1979 (see Gazette 1979, No.

S86)

Remainder: 19 Mar

1979

Copyright Amendment 154, 1980 19 Sept 1980 ss. 17–19: 29 Sept —

Act 1980 1980

Remainder: 1 Aug

1981 (see Gazette

1981, No. S124)

Designs Amendment Act 42, 1981 13 May 1981 ss. 1 and 2: 13 Mar s. 36

1981 1981

s. 31, Part IV (ss. 34,

35) and s. 36(2): 1 Apr

1982 (see Gazette

1982, No. G12)

Remainder: 1 Apr

1982 (see Gazette

1982, No. G12)

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Statute Law Revision 61, 1981 12 June 1981 s. 115: Royal Assent —

Act 1981 (b)

Broadcasting and 113, 1981 24 June 1981 s. 30: 10 Aug 1981 —

Television Amendment (see Gazette 1981, No.

Act 1981 S158)

Remainder: 24 June

1981

Statute Law 26, 1982 7 May 1982 Part XVIII (ss. s. 138(2)

(Miscellaneous 136–145): 4 June 1982

Amendments) Act (c)

(No. 1) 1982

Statute Law 80, 1982 22 Sept 1982 Part LXXVII (s. 280): s. 280(2) and (3)

(Miscellaneous Royal Assent (d)

Amendments) Act

(No. 2) 1982

Broadcasting and 154, 1982 31 Dec 1982 31 Dec 1982 —

Television Amendment

Act 1982

Australian Broadcasting 7, 1983 1 June 1983 ss. 1, 2, 15(1) and 24: s. 60(2)

Corporation 1 June 1983

(Transitional Provisions Remainder: 1 July

and Consequential 1983 (see s. 2(2) and

Amendments) Act 1983 Gazette 1983, No.

S124)

Copyright Amendment 80, 1983 3 Nov 1983 6 June 1984 (see

Act 1983 Gazette 1984, No.

S203)

Statute Law 91, 1983 22 Nov 1983 s. 3: 20 Dec 1983 (e) s. 6

(Miscellaneous

Provisions) Act (No. 2)

1983

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Radiocommunications 136, 1983 22 Dec 1983 27 Aug 1985 (see s. 2 —

(Transitional Provisions and Gazette 1985, No.

and Consequential S322)

Amendments) Act 1983

Copyright Amendment 43, 1984 15 June 1984 15 June 1984 s. 7

Act 1984

Statute Law 165, 1984 25 Oct 1984 s. 3: 22 Nov 1984 (f) ss. 6(1) and 7

(Miscellaneous

Provisions) Act (No. 2)

1984

Statute Law 65, 1985 5 June 1985 s. 3: 3 July 1985 (g)

(Miscellaneous

Provisions) Act (No. 1)

1985

Broadcasting and 67, 1985 5 June 1985 1 Jan 1986 s. 4

Television

(Consequential

Amendments) Act 1985

Copyright Amendment 78, 1986 24 June 1986 ss. 14–19: 22 July ss. 20(2) and

Act 1986 1986 28(2)

Remainder: 30 Apr

1987 (see Gazette

1987, No. S68)

Statute Law 168, 1986 18 Dec 1986 s. 3: (h) s. 5(1)

(Miscellaneous

Provisions) Act (No. 2)

1986

Jurisdiction of Courts 23, 1987 26 May 1987 s. 3: (i) s. 5

(Miscellaneous

Amendments) Act 1987

Broadcasting Legislation 146, 1988 26 Dec 1988 s. 49: 1 Mar 1989 (j)

Amendment Act 1988

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Circuit Layouts Act

1989

28, 1989 22 May 1989 ss. 1 and 2: Royal

Assent

Remainder: 1 Oct

1990 (see Gazette

1990, No. S261)

Copyright Amendment

Act 1989

32, 1989 24 May 1989 ss. 3, 5, 7, 12, 13, 21,

22, 28 and Schedule

(items 1, 4, 10, 12, 14,

19, 25, 26): 1 Oct

1989 (see Gazette

1989, No. S316)

ss. 4, 14, 16, 18, 20,

s. 2 (rep. by 107,

1993, s. 13)

ss. 25 and 29 (am.

by 107, 1993,

ss. 8 and 10)

23, 25, 27, 29 and

Schedule (items 48,

49, 53): 29 Jan 1990

(see Gazette 1990, No.

S15)

ss. 6, 15, 19, 24, 26(a)

and Schedule (items 2,

3, 6–9, 11, 13, 15, 18,

21–24, 27–47,

50–52): 1 July 1990

(see Gazette 1990, No.

S164)

ss. 8–11, 17 and

Schedule (items 5, 16,

17, 20): 1 Oct 1990

(see Gazette 1990, No.

S261)

s. 26(b)–(f): 2 July

1990 (see Gazette

1990, No. S164)

Remainder: Royal

Assent

as repealed by

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Copyright 107, 1993 22 Dec 1993 s. 13: Royal Assent s. 2(2)

Amendment

(Re-enactment) Act

1993

as re-enacted by

Copyright 107, 1993 22 Dec 1993 (k) ss. 8 and 10–12

Amendment

(Re-enactment) Act

1993

Copyright Amendment 174, 1991 25 Nov 1991 23 Dec 1991 —

Act 1991

Special Broadcasting 180, 1991 25 Nov 1991 s. 116: 23 Dec 1991 (l) s. 116(2)

Service Act 1991

Broadcasting Services 105, 1992 9 July 1992 5 Oct 1992 (see s. 2 s. 3

(Transitional Provisions and Gazette 1992, No.

and Consequential GN38)

Amendments) Act 1992

Radiocommunications 167, 1992 11 Dec 1992 1 July 1993 s. 14(3)

(Transitional Provisions

and Consequential

Amendments) Act 1992

Copyright Amendment 107, 1993 22 Dec 1993 22 Dec 1993 ss. 8 and 10–12

(Re-enactment) Act

1993

Agricultural and 37, 1994 15 Mar 1994 15 Mar 1995 (see s. 2) —

Veterinary Chemicals

(Consequential

Amendments) Act 1994

Law and Justice 141, 1994 28 Nov 1994 s. 4 (items 1–13, 15– s. 7

Legislation Amendment 30, 32–112): Royal

Act (No. 2) 1994 Assent (m)

s. 4 (items 14, 31): 23

Dec 1991 (m)

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Copyright (World Trade

Organization

Amendments) Act 1994

149, 1994 13 Dec 1994 ss. 1 and 2: Royal

Assent

Parts 3 and 4 (ss. 6–

17): 1 July 1995

Remainder: 1 Jan 1996

Intellectual Property

Laws Amendment Act

1998

100, 1998 27 July 1998 Schedule 2 (items 1–

3): 27 Jan 1999 (n)

Copyright Amendment 104, 1998 30 July 1998 Schedule 2 (items 6, 8, Sch. 1 (item 4),

Act (No. 1) 1998 10, 12) and Schedule 8 Sch. 3 (item 4),

(item 12): 30 Jan 2000 Sch. 4 (item 6),

Remainder: Royal Sch. 9 (item 8)

Assent and Sch. 10

(item 51)

Copyright Amendment 105, 1998 30 July 1998 (o) Sch. 1 (item 9)

Act (No. 2) 1998

Copyright Amendment

(Computer Programs)

Act 1999

105, 1999 24 Aug 1999 30 Sept 1999 (see

Gazette 1999, No.

S462)

Public Employment

(Consequential and

Transitional)

Amendment Act 1999

146, 1999 11 Nov 1999 Schedule 1 (item 338):

5 Dec 1999 (see

Gazette 1999, No.

S584) (p)

Copyright Amendment

(Digital Agenda) Act

2000

110, 2000 4 Sept 2000 4 Mar 2001 Sch. 2

as amended by

Statute Law Revision

Act 2002

63, 2002 3 July 2002 Schedule 2 (items 4,

5): (q)

Copyright Amendment 159, 2000 21 Dec 2000 Schedule 2: 4 Mar Sch. 1 (item 3)

(Moral Rights) Act 2000 2001 (see s. 2(3))

Remainder: Royal

Assent

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Law and Justice

Legislation Amendment

(Application of Criminal

Code) Act 2001

24, 2001 6 Apr 2001 s. 4(1), (2) and

Schedule 9: (r)

s. 4(1) and (2)

Copyright Amendment 34, 2003 15 Apr 2003 Schedule 3 (items 1–3, Sch. 1 (item 20),

(Parallel Importation) 5, 7): (s) Sch. 3 (item 9)

Act 2003 Schedule 3 (items 4, 6, and Sch. 4

8, 9): (s) (items 14, 15)

Schedule 4: 13 May

2003

Remainder: Royal

Assent

Designs (Consequential 148, 2003 17 Dec 2003 Schedules 1 and 2: (t) Sch. 1 (items

Amendments) Act 2003 Remainder: Royal 15–20)

Assent

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

US Free Trade

Agreement

Implementation Act

2004

as amended by

Copyright Legislation

Amendment Act 2004

120, 2004

154, 2004

16 Aug 2004

15 Dec 2004

Sch 9 (items 1–15, 59–

112, 114–119–166,

168–191): 1 Jan 2005

(s 2(1) items 9, 11, 12,

14–18, 20)

Sch 9 (items 16–58):

26 July 2007 (s 2(1)

item 10 and gaz 2007,

No GN22)

Sch 9 (items 113,

167): 16 Aug 2004

(s 2(1) items 13, 19)

Sch 1 (items 42–61): 1

Jan 2005 (s 2(1)

item 2)

Sch 9 (items 15,

84, 106, 117, 131,

145, 160, 185,

190)

Sch 9 (item 118)

(am by 154, 2004,

Sch 1 (items 42–

48))

Sch 9 (item 119)

(am by 154, 2004,

Sch 1 (items 49–

51))

Sch 9 (item 132)

(am by 154, 2004,

Sch 1 (items 52–

58))

Sch 9 (item 133)

(am by 154, 2004,

Sch 1 (items 59–

61))

Copyright Legislation

Amendment Act 2004

154, 2004 15 Dec 2004 Sch 1 (items 1–41):

1 Jan 2005 (s 2(1)

item 2)

Sch 1 (items 8, 16,

29, 31, 41)

Australian 45, 2005 1 Apr 2005 Schedule 1 (items 59– Sch 4

Communications and 62) and Schedule 4:

Media Authority 1 July 2005 (see s.

(Consequential and 2(1))

Transitional Provisions)

Act 2005

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Copyright Amendment 130, 2005 8 Nov 2005 Schedule 1: 19 Dec s 4

(Film Directors’ Rights) 2005 (see

Act 2005 F2005L04088)

Remainder: Royal

Assent

Statute Law Revision 9, 2006 23 Mar 2006 Schedule 1 (items 8, Sch. 1 (item 9)

Act 2006 9): 1 Jan 2005 (s 2(1)

item 6)

Copyright Amendment 158, 2006 11 Dec 2006 Sch 1 (items 1–33), Sch 1 (items 9, 12,

Act 2006 Sch 2–5 and Sch 12 14, 16, 18, 22, 24,

(items 1–16): 1 Jan 26), Sch 2

2007 (s 2(1) items 2, (item 15), Sch 3

4, 9) (item 20), Sch 4

Sch 1 (item 34) and (item 2), Sch 5

Sch 12 (items 17, 18): (items 2, 6), Sch 6

never commenced (s (item 9AA), Sch 9

2(1) items 3, 10) (item 2), Sch 10

Sch 9: 8 Jan 2007 (s (items 5, 20, 30,

2(1) item 6) 55, 58, 61, 63),

Remainder: 11 Dec Sch 11 (items 3,

2006 (s 2(1) items 1, 37, 40, 42, 57)

5, 7, 8) and Sch 12

(item 16)

Australian Citizenship 21, 2007 15 Mar 2007 Schedules 1–3: 1 July —

(Transitionals and 2007 (see s. 2(1) and

Consequentials) Act F2007L01653)

2007 Remainder: Royal

Assent

Broadcasting Legislation 28, 2007 15 Mar 2007 15 Mar 2007 —

Amendment Act 2007

Statute Law Revision 73, 2008 3 July 2008 Schedule 4 (item 200): —

Act 2008 4 July 2008

Archives Amendment 113, 2008 31 Oct 2008 1 Nov 2008 —

Act 2008

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Statute Law Revision

Act 2010

8, 2010 1 Mar 2010 Sch 5 (item 137(a)):

1 Mar 2010 (s 2(1)

item 38)

Broadcasting Legislation

Amendment (Digital

Television) Act 2010

94, 2010 29 June 2010 Schedule 1

(items 135–144):

30 June 2010

Broadcasting Legislation

Amendment (Digital

Dividend and Other

Measures) Act 2011

36, 2011 26 May 2011 Schedule 2 (item 61):

27 May 2011

Therapeutic Goods 39, 2011 27 May 2011 28 May 2011 Sch. 1 (items 2, 3)

Legislation Amendment

(Copyright) Act 2011

Acts Interpretation 46, 2011 27 June 2011 Schedule 2 (items 445, Sch. 3 (items 10,

Amendment Act 2011 446) and Schedule 3 11)

(items 10, 11): 27 Dec

2011

Intellectual Property 35, 2012 15 Apr 2012 Schedule 5 (items 1– —

Laws Amendment 16): 15 Apr 2013

(Raising the Bar) Act

2012

Statute Law Revision 136, 2012 22 Sept 2012 Schedule 1 (item 37): —

Act 2012 Royal Assent

Australian Charities and

Not-for-profits

Commission

(Consequential and

Transitional) Act 2012

169, 2012 3 Dec 2012 Schedule 2

(items 169–172): 3

Dec 2012 (see s. 2(1))

Federal Circuit Court of

Australia (Consequential

Amendments) Act 2013

13, 2013 14 Mar 2013 Sch 1 (items 93–95)

and Sch 2 (item 2): 12

Apr 2013 (s 2(1)

items 2, 3)

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Statute Law Revision 31, 2014 27 May 2014 Sch 1 (items 11, 12) —

Act (No 1) 2014 and Sch 8 (item 12):

24 June 2014

Customs and Other 41, 2015 20 May 2015 Sch 5 (item 27), Sch 6 Sch 6 (item 49)

Legislation Amendment (items 23–49) and Sch and Sch 9

(Australian Border 9: 1 July 2015 (s 2(1)

Force) Act 2015 items 2, 7)

as amended by

Australian Border 115, 2017 30 Oct 2017 Sch 1 (item 26): 1 July —

Force Amendment 2015 (s 2(1) item 2)

(Protected

Information) Act 2017

Norfolk Island 59, 2015 26 May 2015 Sch 2 (items 99–101): Sch 2 (items 356–

Legislation Amendment 1 July 2016 (s 2(1) 396)

Act 2015 item 5)

Sch 2 (items 356–

396): 18 June 2015 (s

2(1) item 6)

as amended by

Territories Legislation 33, 2016 23 Mar 2016 Sch 2: 24 Mar 2016 —

Amendment Act 2016 (s 2(1) item 2)

Copyright Amendment 80, 2015 26 June 2015 27 June 2015 (s 2) —

(Online Infringement)

Act 2015

Civil Law and Justice 113, 2015 17 Aug 2015 Sch 7: 17 Feb 2016 Sch 7 (item 7)

Legislation Amendment (s 2(1) item 3)

Act 2015

Acts and Instruments 126, 2015 10 Sept 2015 Sch 1 (item 149): 5 —

(Framework Reform) Mar 2016 (s 2(1)

(Consequential item 2)

Provisions) Act 2015

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Health Legislation 157, 2015 26 Nov 2015 Sch 1 (items 1, 2, 111– Sch 1 (items 111–

Amendment (eHealth) 136): 27 Nov 2015 136)

Act 2015 (s 2(1) item 2)

Statute Law Revision 4, 2016 11 Feb 2016 Sch 4 (items 1, 72): 10 —

Act (No. 1) 2016 Mar 2016 (s 2(1)

item 6)

Courts Administration 24, 2016 18 Mar 2016 Sch 5 (item 17): 1 July Sch 6

Legislation Amendment 2016 (s 2(1) item 7)

Act 2016 Sch 6: 18 Mar 2016

(s 2(1) item 9)

Territories Legislation 33, 2016 23 Mar 2016 Sch 5 (item 29): 1 July —

Amendment Act 2016 2016 (s 2(1) item 7)

Statute Update (A.C.T. 13, 2017 22 Feb 2017 Sch 1 (items 7–13): —

Self-Government 22 Mar 2017 (s 2(1)

(Consequential item 2)

Provisions) Regulations)

Act 2017

Copyright Amendment 49, 2017 22 June 2017 Sch 1 and Sch 3 Sch 1 (items 79–

(Disability Access and (items 9–19): 22 Dec 84), Sch 2

Other Measures) Act 2017 (s 2(1) items 2, (items 29–31) and

2017 5) Sch 3 (items 7, 8,

Sch 2: 1 Jan 2019 19)

(s 2(1) item 3)

Sch 3 (items 1–8):

23 June 2017 (s 2(1)

item 4)

(a) The Copyright Act 1968 was amended by section 3 only of the Administrative

Changes (Consequential Provisions) Act 1976, subsection 2(7) of which

provides as follows:

(7) The amendments of each other Act specified in the Schedule made by

this Act shall be deemed to have come into operation on 22 December

1975.

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(b) The Copyright Act 1968 was amended by section 115 only of the Statute Law

Revision Act 1981, subsection 2(1) of which provides as follows:

(1) Subject to this section, this Act shall come into operation on the day on

which it receives the Royal Assent.

(c) The Copyright Act 1968 was amended by Part XVIII (sections 136–145) only

of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982,

subsection 2(12) of which provides as follows:

(12) The remaining provisions of this Act shall come into operation on the

twenty-eighth day after the day on which this Act receives the Royal

Assent.

(d) The Copyright Act 1968 was amended by Part LXXVII (section 280) only of

the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982,

subsection 2(1) of which provides as follows:

(1) Sections 1, 2, 166 and 195 and Parts III, VI, VII, XVI, XXXVI, XLIV,

LI, LIII, LIV, LXI and LXXVII shall come into operation on the day on

which this Act receives the Royal Assent.

(e) The Copyright Act 1968 was amended by section 3 only of the Statute Law

(Miscellaneous Provisions) Act (No. 2) 1983, subsection 2(1) of which

provides as follows:

(1) Subject to this section, this Act shall come into operation on the

twenty-eighth day after the day on which it receives the Royal Assent.

(f) The Copyright Act 1968 was amended by section 3 only of the Statute Law

(Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(1) of which

provides as follows:

(1) Subject to this section, this Act shall come into operation on the

twenty-eighth day after the day on which it receives the Royal Assent.

(g) The Copyright Act 1968 was amended by section 3 only of the Statute Law

(Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which

provides as follows:

(1) Subject to this section, this Act shall come into operation on the

twenty-eighth day after the day on which it receives the Royal Assent.

(h) The Copyright Act 1968 was amended by section 3 only of the Statute Law

(Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(3) provides as

follows:

(3) The amendments of the Copyright Act 1968 made by this Act shall come

into operation immediately after the commencement of section 3 of the

Copyright Amendment Act 1986.

Section 3 commenced on 30 April 1987 (see Gazette 1987, No. S68, p. 6).

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Endnote 3—Legislation history

(i) The Copyright Act 1968 was amended by section 3 only of the Jurisdiction of

Courts (Miscellaneous Amendments) Act 1987, subsection 2(2) of which

provides as follows:

(2) The amendments made by this Act to an Act specified in the Schedule

shall come into operation on such day as is fixed by Proclamation in

relation to those amendments.

The date fixed in pursuance of subsection 2(2) was 1 September 1987 (see

Gazette 1987, No. S217).

(j) The Copyright Act 1968 was amended by section 49 only of the Broadcasting

Legislation Amendment Act 1988, subsection 2(3) of which provides as

follows:

(3) Sections 15, 16 and 36, subsection 48(2), section 49 and Schedules 2, 4

and 5 commence on 1 March 1989.

(k) Certain provisions of the Copyright Amendment Act 1989 were re-enacted by

sections 4–10 of the Copyright Amendment (Re-enactment) Act 1993.

Subsection 2(2) of the Copyright Amendment (Re-enactment) Act 1993

provides as follows:

(2) The amendments made by this Act are taken to have commenced on the

dates set out in the Schedule.

The commencement of the re-enacted provisions provide as follows:

Section 4 re-enacted sections 3, 5, 7, 12, 13, 21, 28 and the Schedule (items 1,

4, 10, 12, 14, 19, 25 and 26) which commenced on 1 October 1989.

Section 4 re-enacted sections 4, 14, 18, 23 and the Schedule (items 48, 49 and

53) which commenced on 29 January 1990.

Section 4 re-enacted sections 6, 24, 26(a) and the Schedule (items 2, 3, 6–9,

11, 13, 15, 18, 21–24, 27–47 and 50–52) which commenced on 1 July 1990.

Section 4 re-enacted sections 8–11, 17 and the Schedule (items 5, 16, 17 and

20) which commenced on 1 October 1990.

Section 4 re-enacted paragraphs 26(b)–(f) which commenced on 2 July 1990.

Section 5 re-enacted section 15 which commenced on 1 July 1990.

Section 6 re-enacted section 19 which commenced on 1 July 1990.

Section 7 re-enacted section 22 which commenced on 1 October 1989.

Section 8 re-enacted section 25 which commenced on 29 January 1990.

Section 9 re-enacted section 27 which commenced on 29 January 1990.

Section 10 re-enacted section 29 which commenced on 29 January 1990.

(l) The Copyright Act 1968 was amended by section 116 only of the Special

Broadcasting Service Act 1991, subsection 2(1) of which provides as follows:

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Endnote 3—Legislation history

(1) Subject to subsection (2), this Act commences 28 days after the day on

which it receives the Royal Assent.

(m) The Copyright Act 1968 was amended by section 4 (items 1–112) only of the

Law and Justice Legislation Amendment Act (No. 2) 1994, subsections 2(1)

and (4) of which provide as follows:

(1) Subject to this section, this Act commences on the day on which it

receives the Royal Assent.

(4) Items 14 and 31 of Schedule 2 are taken to have commenced on

23 December 1991, immediately after the commencement of the

Copyright Amendment Act 1991.

(n) The Copyright Act 1968 was amended by Schedule 2 (items 1–3) only of the

Intellectual Property Laws Amendment Act 1998, subsections 2(4) and (5) of

which provide as follows:

(4) Subject to subsection (5), Schedule 2 commences on a day to be fixed by

Proclamation.

(5) If Schedule 2 does not commence under subsection (4) within the period

of 6 months beginning on the day on which this Act receives the Royal

Assent, Schedule 2 commences on the first day after the end of that

period.

(o) The Copyright Act 1968 was amended by Schedules 1 and 2 of the Copyright

Amendment Act (No. 2) 1998, section 2 of which provides as follows:

(1) This Act commences on the day on which it receives the Royal Assent.

(2) However, this Act commences immediately after the commencement of

item 1 of Schedule 3 to the Copyright Amendment Act (No. 1) 1998 if

that Act receives the Royal Assent on a day that is the same as, or later

than, the day on which this Act receives the Royal Assent.

The Copyright Amendment Act (No. 1) 1998 received the Royal Assent on

30 July 1998.

(p) The Copyright Act 1968 was amended by Schedule 1 (item 338) only of the

Public Employment (Consequential and Transitional) Amendment Act 1999,

subsections 2(1) and (2) of which provide as follows:

(1) In this Act, commencing time means the time when the Public Service

Act 1999 commences.

(2) Subject to this section, this Act commences at the commencing time.

(q) Subsection 2(1) (items 33 and 34) of the Statute Law Revision Act 2002

provide as follows:

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Endnote 3—Legislation history

(1) Each provision of this Act specified in column 1 of the table commences,

or is taken to have commenced, on the day or at the time specified in

column 2 of the table.

Commencement information

Column 1 Column 2 Column 3

Provision (s) Commencement Date/Details

33. Schedule 2,

item 4

Immediately after the time specified in the

Copyright Amendment (Digital Agenda) Act 2000

for the commencement of item 41 of Schedule 1 to

that Act

4 March 2001

34. Schedule 2,

item 5

Immediately after the time specified in the

Copyright Amendment (Digital Agenda) Act 2000

for the commencement of item 224 of Schedule 1

to that Act

4 March 2001

(r) The Copyright Act 1968 was amended by Schedule 9 only of the Law and

Justice Legislation Amendment (Application of Criminal Code) Act 2001,

subsection 2(1)(a) of which provides as follows:

(1) Subject to this section, this Act commences at the later of the following

times:

(a) immediately after the commencement of item 15 of Schedule 1 to the

Criminal Code Amendment (Theft, Fraud, Bribery and Related

Offences) Act 2000;

Item 15 commenced on 24 May 2001.

(s) Subsection 2(1) (items 4–9) of the Copyright Amendment (Parallel

Importation) Act 2003 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences,

or is taken to have commenced, on the day or at the time specified in

column 2 of the table.

Provision (s) Commencement Date/Details

4. Schedule 3, Immediately after the commencement of the 4 March 2001

items 1 to 3 Copyright Amendment (Digital Agenda) Act 2000

5. Schedule 3, Immediately after the commencement of 15 April 2003

item 4 Schedule 1 to this Act

6. Schedule 3, Immediately after the commencement of the 4 March 2001

item 5 Copyright Amendment (Digital Agenda) Act 2000

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Endnotes

Endnote 3—Legislation history

Provision (s) Commencement Date/Details

7. Schedule 3, Immediately after the commencement of 15 April 2003

item 6 Schedule 1 to this Act

8. Schedule 3, Immediately after the commencement of the 4 March 2001

item 7 Copyright Amendment (Digital Agenda) Act 2000

9. Schedule 3, Immediately after the commencement of 15 April 2003

items 8 and 9 Schedule 1 to this Act

(t) Subsection 2(1) (item 2) of the Designs (Consequential Amendments) Act

2003 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences,

or is taken to have commenced, on the day or at the time specified in

column 2 of the table.

Provision (s) Commencement Date/Details

2. Schedules 1 and Immediately after the commencement of section 4 17 June 2004

of the Designs Act 2003.

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Endnote 4—Amendment history

Endnote 4—Amendment history

Provision affected How affected

Title ...............................................am. No. 32, 1989 (as am. by No. 107, 1993)

Part I

s. 3 .................................................rep. No. 216, 1973

s. 4 .................................................rs. No. 216, 1973

s. 8 .................................................am. No. 154, 1980; No. 42, 1981

rs. No. 165, 1984

s. 8A ..............................................ad. No. 154, 1980

am. No. 141, 1994

s. 9 .................................................am. No. 67, 1985

s. 9A ..............................................ad. No. 24, 2001

Part II

s 10 ................................................am No 216, 1973; No 160, 1977; No 154, 1980; No 113, 1981; No 154,

1982; No 7, 1983; No 136, 1983; No 43, 1984; No 165, 1984; No 67,

1985; No 78, 1986; No 168, 1986; No 146, 1988; No 28, 1989; No 32,

1989 (as am by No 107, 1993); No 174, 1991; No 180, 1991; No 105,

1992; No 37, 1994; No 141, 1994; No 104, 1998; No 105, 1998; No 110,

2000; No 34, 2003; No 148, 2003; No 120, 2004; No 158, 2006; No 21,

2007; No 28, 2007; No 113, 2008; No 94, 2010; No 169, 2012; No 31,

2014; No 59, 2015; No 113, 2015; No 13, 2017; No 49, 2017 (Sch 2

item 1)

s. 10AA .........................................ad. No. 105, 1998

ss. 10AB, 10AC.............................ad. No. 34, 2003

s. 10AD .........................................ad. No. 34, 2003

am. No. 34, 2003

s 10A .............................................ad No 165, 1984

am No 78, 1986; No 32, 1989 (as am by No 107, 1993); No 104, 1998

rep No 49, 2017

s. 11 ...............................................am. No. 141, 1994

s. 12 ...............................................am. No. 216, 1973

s 14 ................................................am No 154, 1980; No 49, 2017

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Endnote 4—Amendment history

Provision affected How affected

s. 19 ...............................................am. No. 216, 1973

Heading to s. 21.............................rs. No. 110, 2000

s. 21 ...............................................am. No. 110, 2000

Subhead. to s. 22(1) ......................ad. No. 120, 2004

Subhead. to s. 22(3) ......................ad. No. 120, 2004

Subheads. to s. 22(4), (5) ..............ad. No. 120, 2004

s. 22 ...............................................am. No. 78, 1986; No. 32, 1989 (as am. by No. 107, 1993); No. 110,

2000; No. 120, 2004; No. 158, 2006

s. 25 ...............................................am. No. 110, 2000

s. 26 ...............................................am. No. 141, 1994

rep. No. 110, 2000

s. 27 ...............................................am. No. 32, 1989 (as am. by No. 107, 1993); No. 141, 1994; No. 110,

2000

Heading to s. 28.............................am. No. 158, 2006

s. 28 ...............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006

s. 29 ...............................................am. No. 154, 1980

s 29A .............................................ad No 49, 2017

s. 30A ............................................ad. No. 149, 1994

Part III

Division 1

s. 31 ...............................................am. No. 154, 1980; No. 149, 1994; No. 110, 2000

s. 32 ...............................................am. No. 141, 1994; No. 21, 2007

s 33 ................................................am No 154, 1980; No 110, 2000; No 120, 2004

rs No 49, 2017

s 34 ................................................am No 154, 1980; No 120, 2004

rep No 49, 2017

s. 35 ...............................................am. No. 141, 1994; No. 104, 1998

Division 2

s. 36 ...............................................am. No. 110, 2000

s. 37 ...............................................am. No. 174, 1991; No. 104, 1998

s. 38 ...............................................am. No. 174, 1991; No. 141, 1994; No. 104, 1998; No. 158, 2006

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Endnote 4—Amendment history

Provision affected How affected

s. 39 ...............................................am. No. 141, 1994

s. 39A ............................................ad. No. 154, 1980

am. No. 110, 2000 (as am. by No. 63, 2002); No. 34, 2003

s. 39B ............................................ad. No. 110, 2000

Division 3

s. 40 ...............................................am. No. 154, 1980; No. 32, 1989 (as am. by No. 107, 1993); No. 110,

2000; No. 158, 2006

s. 41A ............................................ad. No. 158, 2006

s. 42 ...............................................am. No. 110, 2000

s. 43 ...............................................am. No. 154, 1980; No. 100, 1998

s. 43A ............................................ad. No. 43, 1984

rep. No. 105, 1999

ad. No. 110, 2000

Heading to s. 43B ..........................am. No. 154, 2004

s. 43B ............................................ad. No. 120, 2004

am. No. 154, 2004

s. 43C ............................................ad. No. 158, 2006

s. 44 ...............................................am. No. 154, 1980

s. 44A ............................................ad. No. 174, 1991

am. No. 104, 1998

s. 44B ............................................ad. No. 37, 1994

s. 44BA..........................................ad. No. 39, 2011

s 44BB...........................................ad No 157, 2015

s. 44C ............................................ad. No. 104, 1998

am. No. 34, 2003

Note to s. 44C(1) ..........................ad. No. 34, 2003

s. 44D ............................................ad. No. 105, 1998

am. No. 34, 2003; No. 158, 2006

ss. 44E, 44F ................................ ad. No. 34, 2003

am. No. 158, 2006

Division 4

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Endnote 4—Amendment history

Provision affected How affected

s. 46 ...............................................am. No. 110, 2000

s. 47 ...............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 110, 2000;

No. 113, 2008

s. 47AA .........................................ad. No. 110, 2000

s 47A .............................................ad No 78, 1986

am No 105, 1992; No 167, 1992; No 104, 1998; No 24, 2001; No 4, 2016

rep No 49, 2017

Division 4A

Div. 4A of Part III ........................ad. No. 105, 1999

s. 47AB..........................................ad. No. 110, 2000

ss. 47B–47D ................................ad. No. 105, 1999

am. No. 110, 2000

ss. 47E–47H ................................ad. No. 105, 1999

Division 4B

Div. 4B of Part III .........................ad. No. 158, 2006

s. 47J .............................................ad. No. 158, 2006

Division 5

Heading to Div. 5 of Part III ..........rs. No. 104, 1998

s. 48 ...............................................rs. No. 154, 1980

s. 48A ............................................ad. No. 165, 1984

s 49 ................................................rs No 154, 1980

am No 165, 1984; No 141, 1994; No 110, 2000; No 158, 2006; No 49,

2017

s 50 ................................................rs No 154, 1980

am No 165, 1984; No 110, 2000; No 158, 2006; No 49, 2017

s. 51 ...............................................am. No. 154, 1980; No. 141, 1994; No. 110, 2000; No. 120, 2004

s. 51AA .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 110, 2000; No. 113, 2008

s 51A .............................................ad No 154, 1980

am No 78, 1986; No 141, 1994; No 110, 2000; No 158, 2006

rep No 49, 2017

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Endnote 4—Amendment history

Provision affected How affected

s 51B .............................................ad No 158, 2006

rep No 49, 2017

s. 52 ...............................................am. No. 91, 1983; No. 104, 1998; No. 110, 2000

s 53 ................................................am No 154, 1980; No 34, 2003; No 49, 2017

Div. 5A of Part III ........................ad. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 53A ............................................ad. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 53B ............................................ad. No. 154, 1980

am. No. 165, 1984

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 53C ............................................ad. No. 154, 1980

am. No. 91, 1983

rep. No. 32, 1989 (as am. by No. 107, 1993)

Div. 5B of Part III .........................ad. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 53D ............................................ad. No. 154, 1980

am. No. 165, 1984

rep. No. 32, 1989 (as am. by No. 107, 1993)

Division 6

s 54 ................................................am No 32, 1989 (as am by No 107, 1993); No 158, 2006; No 49, 2017

s. 55 ...............................................am. No. 154, 1980; No. 61, 1981; No. 32, 1989 (as am. by No. 107,

1993); No. 159, 2000; No. 158, 2006

s. 56 ...............................................am. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 57 ...............................................am. No. 154, 1980

s. 58 ...............................................am. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 59 ...............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006

ss. 62, 63........................................am. No. 154, 1980

rep. No. 32, 1989 (as am. by No. 107, 1993)

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Endnote 4—Amendment history

Provision affected How affected

s. 64 ...............................................am. No. 154, 1980

Division 7

s. 65 ...............................................am. No. 154, 1980

s. 68 ...............................................am. No. 154, 1980

s. 69 ...............................................am. No. 154, 1980

rep. No. 110, 2000

s. 70 ...............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 113, 2008

s. 71 ...............................................rep. No. 32, 1989 (as am. by No. 107, 1993)

Division 8

Heading to Div. 8 of Part III ..........am. No. 42, 1981

s. 74 ...............................................am. No. 216, 1973; No. 42, 1981

rs. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 148, 2003

s. 75 ...............................................am. No. 42, 1981

rs. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 148, 2003

s. 76 ...............................................am. No. 42, 1981

rs. No. 148, 2003

s. 77 ...............................................am. No. 154, 1980; No. 42, 1981

rs. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 148, 2003

s. 77A ............................................ad. No. 148, 2003

Division 9

s 79 ................................................am No 154, 1980

rs No 49, 2017

s 79A .............................................ad No 49, 2017

s 80 ................................................am No 154, 1980

rs No 49, 2017

s 81 ................................................am No 154, 1980; No 120, 2004; No 49, 2017

s. 82 ...............................................am. No. 154, 1980; No. 141, 1994

s. 83 ...............................................am. No. 154, 1980

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Endnote 4—Amendment history

Provision affected How affected

Part IV

Division 1

s. 84 ...............................................rs. No. 120, 2004

am. No. 21, 2007

Division 2

s. 85 ...............................................am. No. 154, 1980; No. 149, 1994; No. 110, 2000

s. 86 ...............................................am. No. 110, 2000

s. 87 ...............................................am. No. 154, 1980; No. 110, 2000

s. 88 ...............................................am. No. 110, 2000

Division 3

s. 91 ...............................................am. No. 160, 1977; Nos. 7 and 136, 1983; No. 78, 1986

rs. No. 146, 1988

am. No. 180, 1991; No. 167, 1992; No. 104, 1998

rs. No. 110, 2000

s. 91A ............................................ad. No. 104, 1998

rep. No. 110, 2000

s. 92 ...............................................am. No. 154, 1980

Division 4

s 93 ................................................am No 154, 1980; No 120, 2004

rs No 49, 2017

s 94 ................................................am No 154, 1980; No 120, 2004

rep No 49, 2017

ss. 95, 96........................................am. No. 154, 1980

Division 5

Subdivision A

Heading to Subdiv. A of ................ad. No. 120, 2004

Div. 5 of Part IV

s. 97 ...............................................am. No. 120, 2004

s. 98 ...............................................am. No. 130, 2005; No. 158, 2006

s. 99 ...............................................am. No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 78, 1986; No. 146,

1988; No. 180, 1991; No. 104, 1998

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Endnote 4—Amendment history

Provision affected How affected

rs. No. 110, 2000

Subdivision B

Subdiv. B of Div. 5 of ad. No. 120, 2004

Part IV ...........................................

ss. 100AA–100AF .........................ad. No. 120, 2004

s. 100AG .......................................ad. No. 120, 2004

am. No. 158, 2006

s 100AH ........................................ad No 120, 2004

am No 94, 2010; No 49, 2017

Division 6

s. 100A ..........................................ad. No. 78, 1986

s. 101 .............................................am. No. 154, 1980; No. 110, 2000

s. 102 .............................................am. No. 174, 1991; Nos. 104 and 105, 1998; No. 34, 2003

s. 103 .............................................am. No. 174, 1991; No. 141, 1994; Nos. 104 and 105, 1998; No. 34,

2003; No. 158, 2006

s. 103A ..........................................ad. No. 78, 1986

s. 103AA .......................................ad. No. 158, 2006

s. 103B ..........................................ad. No. 78, 1986

am. No. 110, 2000

s. 103C ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

s. 104 .............................................rs. No. 154, 1980

am. No. 100, 1998

s. 104A ..........................................ad. No. 165, 1984

s. 104B ..........................................ad. No. 110, 2000

s 104C ...........................................ad No 157, 2015

s. 105 .............................................am. No. 154, 1980

s. 106 .............................................am. No. 169, 2012

s. 107 .............................................am. No. 154, 1980; No. 80, 1983; No. 141, 1994; No. 110, 2000;

No. 113, 2008

s. 108 .............................................am. No. 154, 1980; No. 141, 1994

s. 109 .............................................am. No. 154, 1980; No. 141, 1994; No. 104, 1998

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Endnote 4—Amendment history

Provision affected How affected

s. 109A ..........................................ad. No. 158, 2006

am. No. 8, 2010

s. 110 .............................................am. No. 154, 1980

s. 110AA .......................................ad. No. 158, 2006

Heading to s. 110A........................am. No. 110, 2000

s. 110A ..........................................ad. No. 78, 1986

am. No. 110, 2000

s 110B ...........................................ad No 78, 1986

am No 110, 2000; No 158, 2006

rep No 49, 2017

s 110BA.........................................ad No 158, 2006

rep No 49, 2017

s. 110C ..........................................ad. No. 110, 2000

s. 111 .............................................am. No. 154, 1980; No. 32, 1989 (as am. by No. 107, 1993)

rs. No. 158, 2006

s. 111A ..........................................ad. No. 110, 2000

s. 111B ..........................................ad. No. 120, 2004

am. No. 154, 2004

s 112 ..............................................rs No 154, 1980

am No 78, 1986; No 32, 1989 (as am by No 107, 1993); No 104, 1998;

No 158, 2006; No 49, 2017

s. 112A ..........................................ad. No. 174, 1991

am. No. 104, 1998

s 112AA ........................................ad No 158, 2006

rep No 49, 2017

s. 112B ..........................................ad. No. 37, 1994

s. 112C ..........................................ad. No. 104, 1998

am. No. 34, 2003; No. 158, 2006

s. 112D ..........................................ad. No. 105, 1998

am. No. 158, 2006

s. 112DA .......................................ad. No. 34, 2003

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Endnote 4—Amendment history

Provision affected How affected

am. No. 158, 2006

Part IVA

Subdivision A

Subdivision B

s. 112E...........................................ad. No. 110, 2000

Division 7

s. 113 .............................................am. No. 154, 1980

ss. 113A–113C ..............................ad. No. 120, 2004

Part IVA ........................................ad No 49, 2017

Division 1

s 113D ...........................................ad No 49, 2017

Division 2

s 113E............................................ad No 49, 2017

s 113F............................................ad No 49, 2017

Division 3

s 113G ...........................................ad No 49, 2017

s 113H ...........................................ad No 49, 2017

s 113J.............................................ad No 49, 2017

s 113K ...........................................ad No 49, 2017

s 113L............................................ad No 49, 2017

s 113M...........................................ad No 49, 2017

Division 4

s 113N ...........................................ad No 49, 2017

s 113P............................................ad No 49, 2017

s 113Q ...........................................ad No 49, 2017

s 113R ...........................................ad No 49, 2017

s 113S............................................ad No 49, 2017

s 113T............................................ad No 49, 2017

s 113U ...........................................ad No 49, 2017

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 5

Subdivision A

s 113V ...........................................ad No 49, 2017

s 113W ..........................................ad No 49, 2017

s 113X ...........................................ad No 49, 2017

Subdivision B

s 113Y ...........................................ad No 49, 2017

s 113Z............................................ad No 49, 2017

s 113ZA.........................................ad No 49, 2017

s 113ZB .........................................ad No 49, 2017

s 113ZC .........................................ad No 49, 2017

Part V

Heading to Part V ..........................rs. No. 110, 2000

Division 2

s. 115 .............................................am. No. 110, 2000; No. 34, 2003; No. 158, 2006

s 115A ...........................................ad No 80, 2015

s. 116 .............................................am. No. 141, 1994; No. 104, 1998; No. 110, 2000

s. 116AAA................................ ad. No. 120, 2004

Division 2AA

Div. 2AA of Part V........................ad. No. 120, 2004

Subdivision A

s. 116AA .......................................ad. No. 120, 2004

s 116AB.........................................ad No 120, 2004

am No 154, 2004; No 9, 2006; No 49, 2017

Subdivision B

ss. 116AC–116AF .........................ad. No. 120, 2004

Subdivision C

s. 116AG .......................................ad. No. 120, 2004

Subdivision D

s. 116AH .......................................ad. No. 120, 2004

am. No. 154, 2004

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s. 116AI.........................................ad. No. 120, 2004

Subdivision E

s. 116AJ.........................................ad. No. 120, 2004

Division 2A

Heading to Div. 2A of Part V ........rs. No. 158, 2006

Div. 2A of Part V ..........................ad. No. 110, 2000

s. 116A ..........................................ad. No. 110, 2000

rep. No. 158, 2006

Subdivision A

Subdiv. A of Div. 2A of ................ad. No. 158, 2006

Part V

ss. 116AK–116AQ ........................ad. No. 158, 2006

Subdivision B

Heading to Subdiv. B of ................ad. No. 158, 2006

Div. 2A of Part V

s. 116B ..........................................ad. No. 110, 2000

am. No. 120, 2004

Heading to s. 116C ........................rs. No. 120, 2004

s. 116C ..........................................ad. No. 110, 2000

am. No. 120, 2004

ss. 116CA, 116CB .........................ad. No. 120, 2004

Heading to s. 116D........................am. No. 120, 2004; No. 158, 2006

s. 116D ..........................................ad. No. 110, 2000

am. No. 120, 2004; No. 158, 2006

Division 3

s. 119 .............................................am. No. 154, 1980; No. 141, 1994; No 80, 2015

s. 120 .............................................am. No. 154, 1980; No 80, 2015

s. 122 .............................................am. No. 154, 1980

s. 123 .............................................am. No. 154, 1980

Note to s. 123 ................................ad. No. 120, 2004

s. 124 .............................................am. No. 154, 1980

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Note to s. 124 ................................ad. No. 120, 2004

s. 125 .............................................am. No. 154, 1980; No. 141, 1994

Division 4

Heading to Div. 4 of Part V...........rs. No. 78, 1986

s. 126 .............................................am. No. 141, 1994

Heading to s. 126A........................am. No. 158, 2006

s. 126A ..........................................ad. No. 34, 2003

am. No. 158, 2006

Heading to s. 126B ........................am. No. 158, 2006

s. 126B ..........................................ad. No. 34, 2003

am. No. 158, 2006; No 4, 2016

s. 127 .............................................am. No. 154, 1980; No. 141, 1994; No. 120, 2004

s. 128 .............................................am. No. 154, 1980; No. 120, 2004

s 129 ..............................................am No 154, 1980; No 141, 1994; No 49, 2017

s. 129A ..........................................ad. No. 158, 2006

s. 130 .............................................am. No. 34, 2003; No. 154, 2004

rs. No. 158, 2006

s. 130A ..........................................ad. No. 105, 1998

am. No. 158, 2006

ss. 130B, 130C ..............................ad. No. 34, 2003

am. No. 158, 2006

Heading to s. 131...........................rs. No. 158, 2006

s. 131 .............................................am. No. 154, 1980; No. 141, 1994; No. 158, 2006

Division 4A

Heading to Div. 4A of Part V ........rs. No. 23, 1987

Div. 4A of Part V .........................ad. No. 19, 1979

s. 131A ..........................................ad. No. 19, 1979

am No 80, 2015

s. 131B ..........................................ad. No. 19, 1979

am. No. 23, 1987

s. 131C ..........................................ad. No. 23, 1987

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Heading to s. 131D........................rs. No. 13, 2013

s. 131D ..........................................ad. No. 34, 2003

am. No. 13, 2013; No 80, 2015

Division 5

Subhead. to s. 132(1) ....................ad. No. 120, 2004

rep. No. 158, 2006

Subheads. to s. 132(5),...................ad. No. 120, 2004

(5AA), (5A) rep. No. 158, 2006

Subhead. to s. 132(5E) ..................ad. No. 120, 2004

rep. No. 158, 2006

Subhead. to s. 132(5F) ..................ad. No. 120, 2004

rep. No. 158, 2006

Subheads. to s. 132(6),...................ad. No. 120, 2004

(6AA) rep. No. 158, 2006

Subhead. to s. 132(7) ....................ad. No. 120, 2004

rep. No. 158, 2006

Subhead. to s. 132(9) ....................ad. No. 120, 2004

rep. No. 158, 2006

s. 132 .............................................am. No. 154, 1980; No. 43, 1984; No. 78, 1986; Nos. 104 and 105, 1998;

No. 110, 2000; No. 34, 2003; Nos. 120 and 154, 2004

rep. No. 158, 2006

Note to s. 132(1) ...........................ad. No. 120, 2004

rep. No. 158, 2006

Subdivision A

Subdiv. A of Div. 5 of Part V ........ad. No. 158, 2006

s 132AA ........................................ad No 158, 2006

am No 49, 2017

s 132AB.........................................ad No 158, 2006

Subdivision B

Subdiv. B of Div. 5 of Part V ........ad. No. 158, 2006

s. 132AC........................................ad. No. 158, 2006

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

am. No. 113, 2008

Subdivision C

Subdiv. C of Div. 5 of Part V ........ad. No. 158, 2006

ss. 132AD–132AM........................ad. No. 158, 2006

Subdivision D

Subdiv. D of Div. 5 of Part V ........ad. No. 158, 2006

ss. 132AN, 132AO ........................ad. No. 158, 2006

Subdivision E

Subdiv. E of Div. 5 of Part V.........ad. No. 158, 2006

ss. 132APA, 132APB ....................ad. No. 158, 2006

ss. 132APC–132APE.....................ad. No. 156, 2006

am. No. 113, 2008

Subdivision F

Subdiv. F of Div. 5 of Part V.........ad. No. 158, 2006

ss. 132AQ–132AS .........................ad. No. 158, 2006

s. 132AT........................................ad. No. 158, 2006

am. No. 113, 2008

Subdivision G

Subdiv. G of Div. 5 of Part V ........ad. No. 158, 2006

s. 132AU .......................................ad. No. 158, 2006

s. 132A ..........................................ad. No. 34, 2003

am. No. 158, 2006

s. 132AAA................................ ad. No. 158, 2006

s. 132B ..........................................ad. No. 34, 2003

am. No. 154, 2004

rs. No. 158, 2006

s. 132C ..........................................ad. No. 158, 2006

Subdivision H

Subdiv. H of Div. 5 of Part V ........ad. No. 158, 2006

Heading to s. 133...........................rs. No. 105, 1998; No. 158, 2006

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s. 133 .............................................am. No. 154, 1980; No. 91, 1983; No. 78, 1986; Nos. 104 and 105, 1998;

No. 110, 2000

rs. No. 158, 2006

Subdivision I

Subdiv. I of Div. 5 of Part V..........ad. No. 158, 2006

Heading to s. 133A........................am. No. 34, 2003

rs. No. 158, 2006

s. 133A ..........................................ad. No. 43, 1984

am. No. 78, 1986; No. 105, 1998; No. 34, 2003

rs. No. 158, 2006

s. 133B ..........................................ad. No. 158, 2006

Division 6

s. 134 .............................................am. No. 104, 1998; No. 110, 2000; No. 120, 2004; No. 158, 2006

s. 134A ..........................................ad. No. 78, 1986

am. No. 149, 1994

Division 7

Heading to Div. 7 of Part V...........ad. No. 149, 1994

s 134B ...........................................ad No 149, 1994

am No 104, 1998; No 35, 2012; No 41, 2015; No 49, 2017

s. 135 .............................................am. No. 216, 1973; No. 91, 1976; No. 19, 1979; No. 154, 1980; No. 80,

1982; No. 65, 1985; No. 32, 1989 (as am. by No. 107, 1993); Nos. 141

and 149, 1994; Nos. 104 and 105, 1998; No. 34, 2003; No. 158, 2006; No

41, 2015

s. 135AA .......................................ad. No. 149, 1994

am. No. 104, 1998

rs. No. 158, 2006

am No 41, 2015

s. 135AB........................................ad. No. 149, 1994

am. No. 104, 1998; No 41, 2015

s. 135AC........................................ad. No. 149, 1994

am. No. 104, 1998; No. 35, 2012; No 41, 2015

s. 135AD .......................................ad. No. 149, 1994

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

am. No. 104, 1998; No. 35, 2012; No 41, 2015

s. 135AE........................................ad. No. 149, 1994

am. No. 104, 1998; No. 35, 2012; No 41, 2015

s. 135AEA ................................ ad. No. 35, 2012

am No 41, 2015

s. 135AEB ................................ ad. No. 35, 2012

am No 41, 2015

s. 135AEC ................................ ad. No. 35, 2012

am No 31, 2014; No 41, 2015

s. 135AED ................................ ad. No. 35, 2012

am No 41, 2015

s. 135AF ........................................ad. No. 149, 1994

am. No. 104, 1998

rs. No. 35, 2012

am No 41, 2015

s. 135AFA ................................ ad. No. 35, 2012

am No 41, 2015

s. 135AG .......................................ad. No. 149, 1994

am. No. 104, 1998; No 41, 2015

s. 135AH .......................................ad. No. 149, 1994

am. No. 104, 1998; No 41, 2015

s. 135AI.........................................ad. No. 149, 1994

am. No. 104, 1998

rs. No. 35, 2012

am No 41, 2015

s. 135AJ.........................................ad. No. 149, 1994

am. No. 104, 1998

rs. No. 158, 2006

am No 41, 2015

s. 135AK .......................................ad. No. 149, 1994

am. No. 104, 1998; No 41, 2015

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Part VAA

Part VAA.......................................ad. No. 110, 2000

rs. No. 158, 2006

Division 1

s. 135AL........................................ad. No. 110, 2000

am. No. 120, 2004

rs. No. 158, 2006

s. 135AM.......................................ad. No. 110, 2000

rs. No. 158, 2006

Subheads. to s. 135AN(1), .............ad. No. 120, 2004

(2) rep. No. 158, 2006

Subhead. to s. 135AN(4) ..............ad. No. 120, 2004

rep. No. 158, 2006

Subheads. to s. 135AN(7), .............ad. No. 120, 2004

(8) rep. No. 158, 2006

s. 135AN .......................................ad. No. 110, 2000

am. No. 120, 2004

rs. No. 158, 2006

Heading to s. 135ANA ..................am. No. 120, 2004

rep. No. 158, 2006

Subheads. to s. 135ANA(1), ..........ad. No. 120, 2004

(2) rep. No. 158, 2006

Subhead. to s. 135ANA(4) ............ad. No. 120, 2004

rep. No. 158, 2006

Subhead. to s. 135ANA(7) ............ad. No. 120, 2004

rep. No. 158, 2006

s. 135ANA................................ ad. No. 110, 2000

am. No. 120, 2004

rep. No. 158, 2006

Division 2

Subdivision A

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s. 135AOA................................ ad. No. 158, 2006

Subdivision B

s. 135AOB................................ ad. No. 158, 2006

Subdivision C

ss. 135AOC, 135AOD...................ad. No. 158, 2006

Subdivision D

s. 135AOE, 135AOF .....................ad. No. 158, 2006

Subdivision E

ss. 135AP–135AR .........................ad. No. 110, 2000

rs. No. 158, 2006

s. 135ARA................................ ad. No. 34, 2003

rep. No. 158, 2006

Subhead. to s. 135AS(1) ...............ad. No. 120, 2004

rep. No. 158, 2006

Subheads. to s. 135AS(2),..............ad. No. 120, 2004

(3) rep. No. 158, 2006

Subhead. to s. 135AS(4) ...............ad. No. 120, 2004

rep. No. 158, 2006

Heading to s. 135AS......................rs. No. 13, 2013

s. 135AS ........................................ad. No. 110, 2000

am. Nos. 120 and 154, 2004

rs. No. 158, 2006

am. No. 13, 2013

Note to s. 135AS(1) ......................ad. No. 120, 2004

rep. No. 158, 2006

Division 3

Subdivision A

ss. 135ASA–35ASJ .......................ad. No. 158, 2006

Subdivision B

s. 135ATA ................................ ad. No. 158, 2006

s. 135AT........................................ad. No. 110, 2000

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep. No. 158, 2006

Subdivision C

s. 135AU .......................................ad. No. 110, 2000

rs. No. 158, 2006

Part VA heading ............................rs No 104, 1998; No 110, 2000

rep No 49, 2017

Part VA .........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135A ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004

rep No 49, 2017

s 135B ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135C ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 104, 1998

ad No 158, 2006

am No 28, 2007

rep No 49, 2017

s 135D ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

Division 2 heading.........................rs No 104, 1998; No 110, 2000

rep No 49, 2017

s 135E............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004

rep No 49, 2017

s 135F............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004

rep No 49, 2017

s 135G ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep No 49, 2017

s 135H ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004

rep No 49, 2017

s 135J.............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004; No 158, 2006

rep No 49, 2017

s 135JAA.......................................ad No 158, 2006

rep No 49, 2017

s 135JA..........................................ad No 110, 2000

am No 120, 2004

rep No 49, 2017

s 135K ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 158, 2006

rep No 49, 2017

s 135KA ........................................ad No 110, 2000

am No 120, 2004

rep No 49, 2017

s 135L............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 158, 2006; No 4, 2016

rep No 49, 2017

s 135M...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135N ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135P............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004; No 158, 2006

rep No 49, 2017

s 135Q ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 120, 2004; No 158, 2006

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep No 49, 2017

s 135R ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 158, 2006

rep No 49, 2017

s 135S............................................ad No 32, 1989 (as am by No 107, 1993)

am No 158, 2006

rep No 49, 2017

s 135SA.........................................ad No 158, 2006

rep No 49, 2017

s 135T............................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135U ...........................................ad No 32, 1989 (as am by No. 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135V ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135W ..........................................ad No 32, 1989 (as am by No 107, 1993)

ad No 104, 1998; No 110, 2000

rep No 49, 2017

s 135X ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135Y ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135Z............................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998

rs No 110, 2000

am No 120, 2004

rep No 49, 2017

s 135ZA.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep No 49, 2017

Part VB heading ............................rs No 110, 2000

rep No 49, 2017

Part VB .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rep No 49, 2017

s 135ZB .........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 120, 2004

rep No 49, 2017

s 135ZC .........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998

rep No 49, 2017

s 135ZD.........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 104, 1998

s 135ZE .........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rep No 49, 2017

s 135ZF..........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135ZFA.......................................ad No 110, 2000

rep No 49, 2017

Division 2 heading.........................rs No 110, 2000

rep No 49, 2017

s 135ZGA......................................ad No 110, 2000

rep No 49, 2017

s 135ZG.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000

rep No 49, 2017

s 135ZH.........................................ad No 32, 1989 (as am by No 107, 1993)

rs No 110, 2000

rep No 49, 2017

s 135ZJ ..........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep No 49, 2017

s 135ZK.........................................ad No 32, 1989 (as am by No 107, 1993)

rs No 110, 2000

rep No 49, 2017

s 135ZL .........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000

rep No 49, 2017

s 135ZM ........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

Division 2A ................................ ad No 110, 2000

rep No 49, 2017

s 135ZMA ................................ ad No 110, 2000

rep No 49, 2017

s 135ZMB......................................ad No 110, 2000

am No 158, 2006

rep No 49, 2017

s 135ZMC......................................ad No 110, 2000

rep No 49, 2017

s 135ZMD ................................ ad No 110, 2000

rep No 49, 2017

s 135ZMDA................................ ad No 158, 2006

rep No 49, 2017

s 135ZME......................................ad No 110, 2000

rep No 49, 2017

Division 3 heading.........................rs No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZN.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998

rs No 110, 2000

rep No 49, 2017

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s 135ZP..........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZQ.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

Division 4 heading.........................rs No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZR .........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998

rs No 110, 2000

rep No 49, 2017

s 135ZS..........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZT .........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZU.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000

rep No 49, 2017

s 135ZV.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 158, 2006

rep No 49, 2017

s 135ZW........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 158, 2006

rep No 49, 2017

s 135ZWAA ................................ad No 158, 2006

rep No 49, 2017

s 135ZWA ................................ ad No 110, 2000

rep No 49, 2017

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s 135ZX.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000; No 158, 2006

rep No 49, 2017

s 135ZXA......................................ad No 110, 2000

rep No 49, 2017

s 135ZY.........................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000; No 158, 2006; No 4, 2016

rep No 49, 2017

s 135ZZ .........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 135ZZA ......................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZZB.......................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000; No 158, 2006

rep No 49, 2017

s 135ZZC.......................................ad No 32, 1989 (as am by No 107, 1993)

am No 158, 2006

rep No 49, 2017

s 135ZZD ......................................ad No 32, 1989 (as am by No 107, 1993)

am No 158, 2006

rep No 49, 2017

s 135ZZE.......................................ad No 32, 1989 (as am by No 107, 1993)

am No 158, 2006

rep No 49, 2017

s 135ZZEA ................................ ad No 158, 2006

rep No 49, 2017

s 135ZZF .......................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZZG ......................................ad No 32, 1989 (as am by No 107, 1993)

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

am No 104, 1998; No 110, 2000

rep No 49, 2017

s 135ZZH ......................................ad No 32, 1989 (as am by No 107, 1993)

am No 110, 2000

rep No 49, 2017

Part VC

Part VC .........................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

Division 1

s 135ZZI........................................ad No 110, 2000

am No 120, 2004; No 158, 2006; No 49, 2017

s. 135ZZJ.......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

s. 135ZZJA................................ ad. No. 110, 2000

am. Nos. 8 and 94, 2010; No. 36, 2011

Division 2

ss. 135ZZK–135ZZN ....................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

s 135ZZP .......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

am No 4, 2016

s 135ZZQ ......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

am No 4, 2016

s 135ZZR.......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

s 135ZZS .......................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

Division 3

ss. 135ZZT–135ZZW ....................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

am. No. 158, 2006

s. 135ZZWA................................ad. No. 158, 2006

Division 4

s 135ZZX ......................................ad No 32, 1989 (as rep by No 107, 1993); No 110, 2000

am No 49, 2017

s 135ZZY ......................................ad No 32, 1989 (as rep by No 107, 1993); No 110, 2000

s 135ZZZ.......................................ad No 32, 1989 (as rep by No 107, 1993); No 110, 2000

ss. 135ZZZA, 135ZZZB................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 110, 2000

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Endnote 4—Amendment history

Provision affected How affected

Division 5

ss. 135ZZZC–135ZZZE ................ad. No. 110, 2000

Part VD

Part VD..........................................ad. No. 94, 2010

Division 1

s 135ZZZF................................ ad No 94, 2010

am No 49, 2017

s 135ZZZG ................................ ad No 94, 2010

s 135ZZZH ................................ ad No 94, 2010

Division 2

ss. 135ZZZI–135ZZZN .................ad. No. 94, 2010

Division 3

ss. 135ZZZO–135ZZZS ................ad. No. 94, 2010

Division 4

ss. 135ZZZT–135ZZZX ................ad. No. 94, 2010

Division 5

ss. 135ZZZY, 135ZZZZ ................ad. No. 94, 2010

s. 135ZZZZA................................ad. No. 94, 2010

Part VI

Heading to Part VI.........................rs. No. 158, 2006

Division 1

s. 136 .............................................am. No. 154, 1980; No. 26, 1982; No. 78, 1986; No. 104, 1998; No. 110,

2000; No. 158, 2006

Division 2

s. 138 .............................................am. No. 154, 1980

rs. No. 26, 1982

am. No. 104, 1998; No. 158, 2006

s. 140 .............................................am. No. 216, 1973; No. 154, 1980

rs. No. 26, 1982

am. No. 141, 1994; No. 104, 1998

s. 141 .............................................am. No. 154, 1980; No. 26, 1982; No. 141, 1994; No. 104, 1998

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Endnote 4—Amendment history

Provision affected How affected

s. 141A ..........................................ad. No. 104, 1998

s. 142 .............................................am. No. 26, 1982; No. 141, 1994

rs. No. 104, 1998

s. 143 .............................................rs. No. 26, 1982

am. No. 141, 1994

s. 144 .............................................am. No. 141, 1994

s. 144A ..........................................ad. No. 154, 1980

am. No. 141, 1994; No. 136, 2012

s. 144B ..........................................ad. No. 154, 1980

am. No. 26, 1982; No. 141, 1994

s. 145 .............................................rs. No. 141, 1994

s. 146 .............................................am. No. 154, 1980; No. 26, 1982; No. 141, 1994; No. 104, 1998

s. 147 .............................................am. No. 154, 1980; No. 26, 1982

Division 3

Division 3 heading.........................rs. No. 104, 1998

Subdivision A heading...................ad No 158, 2006

rep No 49, 2017

Subdivision A................................rep No 49, 2017

s 148 ..............................................am No 154, 1980

rep No 32, 1989 (as am by No 107, 1993)

ad No 104, 1998

rep No 49, 2017

Subdivision B

Subdivision B heading...................ad. No. 158, 2006

s. 149 .............................................am. No. 154, 1980

s 149A ...........................................ad No 154, 1980

rs No 78, 1986

am No 32, 1989 (as am by No 107, 1993); No 104, 1998

rep No 49, 2017

ss. 150, 151................................ am. No. 154, 1980

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s. 152 .............................................am. No. 216, 1973; No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 67,

1985; No. 78, 1986; No. 146, 1988; No. 180, 1991; No. 141, 1994;

No. 104, 1998; No. 110, 2000; No. 45, 2005; No 33, 2016

ss. 152A, 152B ..............................ad. No. 32, 1989 (as am. by No. 107, 1993)

s. 153 .............................................am. No. 154, 1980

Subdivision C

Subdivision C heading...................ad No 158, 2006

rs No 49, 2017

Subdivision C ................................rs No 49, 2017

s 153A ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998; No 110, 2000

rs No 49, 2017

s 153B ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 153BAAA................................ ad No 158, 2006

rep No 49, 2017

s 153BA.........................................ad No 110, 2000

rep No 49, 2017

s 153BAA......................................ad No 158, 2006

rep No 49, 2017

s 153BAB ......................................ad No 158, 2006

rep No 49, 2017

s 153BAC ......................................ad No 158, 2006

rep No 49, 2017

s 153BAD......................................ad No 158, 2006

rep No 49, 2017

Subdivision D heading...................ad No 158, 2006

rep No 49, 2017

s 153BB.........................................ad No 110, 2000

rep No 49, 2017

s 153C ...........................................ad No 32, 1989 (as am by No 107, 1993)

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Endnote 4—Amendment history

Provision affected How affected

am No 104, 1998; No 110, 2000; No 34, 2003

rep No 49, 2017

s 153D ...........................................ad No 32, 1989 (as am by No 107, 1993)

rep No 49, 2017

s 153DAA......................................ad No 158, 2006

rep No 49, 2017

s 153DA ........................................ad No 110, 2000

rep No 49, 2017

s 153DB.........................................ad No 158, 2006

rep No 49, 2017

s 153DC.........................................ad No 158, 2006

rep No 49, 2017

s 153DD ........................................ad No 158, 2006

rep No 49, 2017

s 153DE.........................................ad No 158, 2006

rep No 49, 2017

Subdivision E

Subdivision E heading...................ad. No. 158, 2006

s 153DF.........................................ad No 49, 2017

s. 153E...........................................ad. No. 32, 1989 (as rep. by No. 107, 1993); No. 104, 1998

ss. 153F, 153G...............................ad. No. 104, 1998

am. No. 158, 2006

s. 153H ..........................................ad. No. 104, 1998

s. 153J............................................ad. No. 104, 1998

am. No. 158, 2006

s. 153K ..........................................ad. No. 104, 1998

s. 153KA .......................................ad. No. 158, 2006

Subdivision F heading ...................ad No 158, 2006

rep No 49, 2017

Subdivision F................................rep No 49, 2017

s 153L............................................ad No 104, 1998

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rep No 49, 2017

Subdivision G

Subdivision G heading...................ad. No. 158, 2006

s. 153M..........................................ad. No. 110, 2000

am. No. 158, 2006

s. 153N ..........................................ad. No. 110, 2000

ss. 153P–153R...............................ad. No. 158, 2006

Subdivision GA

Subdivision GA .............................ad. No. 94, 2010

s. 153RA........................................ad. No. 94, 2010

ss. 153S–153W..............................ad. No. 94, 2010

Subdivision H

Subdivision H heading...................ad. No. 158, 2006

s. 154 .............................................am. No. 141, 1994; No. 158, 2006

ss. 155, 156................................ am. No. 141, 1994; No. 154, 1980; No. 158, 2006

s. 157 .............................................am. No. 141, 1994; No. 154, 1980; No. 158, 2006

ss. 157A, 157B ..............................ad. No. 158, 2006

s. 158 .............................................am. No. 141, 1994; No. 154, 1980

s. 159 .............................................am. No. 141, 1994; No. 154, 1980; No. 158, 2006

ss. 159A, 159B ..............................ad. No. 154, 1980

am. No. 91, 1983

rep. No. 32, 1989 (as am. by No. 107, 1993)

Subdivision I

Subdivision I heading ....................ad. No. 158, 2006

s. 161 .............................................am. No. 19, 1979; No. 154, 1980; No. 104, 1998

Division 4

s. 163A ..........................................ad. No. 154, 1980

am. No. 141, 1994

s. 166 .............................................am. No. 19, 1979; No. 154, 1980; No. 104, 1998

s. 167 .............................................am. No. 104, 1998; No. 158, 2006

s. 168 .............................................am. No. 158, 2006

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

s. 169 .............................................am. No. 216, 1973

Division 4A

Division 4A ................................ ad. No. 158, 2006

s. 169A ..........................................ad No. 158, 2006

s. 169B ..........................................ad No. 158, 2006

am No 24, 2016

s. 169C ..........................................ad. No. 158, 2006

s. 169D ..........................................ad No. 158, 2006

s. 169E...........................................ad No. 158, 2006

s. 169F...........................................ad No. 158, 2006

s. 169G ..........................................ad No. 158, 2006

Division 5

s. 170 .............................................am. No. 146, 1999

rs. No. 158, 2006

am. No. 46, 2011

s. 170A ..........................................ad. No. 158, 2006

s. 171 .............................................am. No. 141, 1994; No. 158, 2006

s. 172 .............................................am. No. 154, 1980; No. 141, 1994; No. 24, 2001

rs. No. 158, 2006

s. 173 .............................................am. No. 154, 1980; No. 141, 1994

rs. No. 158, 2006

s. 174 .............................................am. No. 154, 1980; No. 78, 1986; No. 104, 1998; No. 158, 2006

s. 175 .............................................am. No. 158, 2006

Part VII

Division 1 heading.........................ad. No. 104, 1998

Division 1

s 180 ..............................................am No 154, 1980

rs No 49, 2017

s 181 ..............................................am No 154, 1980

rep No 49, 2017

s. 182A ..........................................ad. No. 154, 1980

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

am. No. 141, 1994

Division 2

Division 2 ......................................ad. No. 104, 1998

s 182B ...........................................ad No 104, 1998

am No 13, 2017

s 182C ...........................................ad No 104, 1998

s 183 ..............................................am No 19, 1979; No 154, 1980; No 32, 1989 (as am by No 107, 1993);

No 141, 1994; No 110, 2000; No 13, 2017; No 49, 2017

s 183A ...........................................ad. No. 104, 1998

s 183B ...........................................ad No 104, 1998

s 183C ...........................................ad No 104, 1998

s 183D ...........................................ad No 104, 1998

am No 49, 2017

s 183E............................................ad No 104, 1998

am No 49, 2017

s. 183F...........................................ad. No. 158, 2006

Part VIII

Division 1

Division 1 heading.........................ad No 49, 2017

s 184 ..............................................am No 160, 1977; No 154, 1980; No 7, 1983; No 78, 1986; No 146,

1988; No 32, 1989 (as am by No 107, 1993); No 180, 1991; No 104,

1998; No 110, 2000; No 45, 2005; No 73, 2008; No 49, 2017

s 185 ..............................................am No 154, 1980; No 49, 2017

Division 2

Division 2 heading.........................ad No 49, 2017

s 186 ..............................................am No 154, 1980; No 49, 2017

s 187 ..............................................am No 154, 1980; No 120, 2004; No 49, 2017

s 188 ..............................................am No 154, 1980; No 120, 2004; No 49, 2017

s 188A ...........................................ad No 49, 2017

Part IX

Heading to Part IX ........................rs. No. 120, 2004

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Part IX ..........................................rs. No. 159, 2000

Division 1

s. 189 .............................................rs. No. 159, 2000

am. No. 159, 2000; No. 120, 2004

s. 190 .............................................rs. No. 159, 2000

s. 191 .............................................am. No. 141, 1994

rs. No. 159, 2000

ss. 191A, 191B ..............................ad. No. 120, 2004

s. 192 .............................................am. No. 141, 1994

rs. No. 159, 2000

am. No. 120, 2004

Division 2

s. 193 .............................................rs. No. 159, 2000

s. 194 .............................................am. No. 154, 1980; No. 141, 1994

rs. No. 159, 2000

am. No. 159, 2000

s. 195 .............................................rs. No. 159, 2000

s. 195AA .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rs. No. 159, 2000

s. 195AB........................................ad. No. 159, 2000

Division 2A

Div. 2A of Part IX .........................ad. No. 120, 2004

ss. 195ABA–195ABE....................ad. No. 120, 2004

Division 3

s. 195AC........................................ad. No. 159, 2000

ss. 195AD–195AF .........................ad. No. 159, 2000

am. No. 159, 2000

ss. 195AG, 195AH ........................ad. No. 159, 2000

Division 3A

Div. 3A of Part IX .........................ad. No. 120, 2004

ss. 195AHA–195AHC...................ad. No. 120, 2004

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 4

ss. 195AI–195AL ..........................ad. No. 159, 2000

Division 4A

Div. 4A of Part IX .........................ad. No. 120, 2004

ss. 195ALA, 195ALB....................ad. No. 120, 2004

Division 5

Subdivision A

Heading to Subdiv. A of ................ad. No. 120, 2004

Div. 5 of Part IX

Heading to s. 195AM ....................am. No. 120, 2004

s. 195AM.......................................ad. No. 159, 2000

Heading to s. 195AN .....................am. No. 120, 2004

s. 195AN .......................................ad. No. 159, 2000

Subdivision B

Subdiv. B of Div. 5 of ad. No. 120, 2004

Part IX ...........................................

ss. 195ANA, 195ANB...................ad. No. 120, 2004

Division 6

Subdivision A

Heading to Subdiv. A of ................ad. No. 120, 2004

Div. 6 of Part IX

ss. 195AO, 195AP .........................ad. No. 159, 2000

am. No. 120, 2004

s. 195AQ .......................................ad. No. 159, 2000

am. No. 159, 2000; No. 120, 2004

ss. 195AR–195AV.........................ad. No. 159, 2000

ss. 195AVA, 195AVB...................ad. No. 159, 2000

am. No. 120, 2004

s. 195AW.......................................ad. No. 159, 2000

ss. 195AWA, 195AWB .................ad. No. 159, 2000

s. 195AX .......................................ad. No. 159, 2000

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Subdivision B

Subdiv. B of Div. 6 of ad. No. 120, 2004

Part IX ...........................................

ss. 195AXA–195AXL ...................ad. No. 120, 2004

Division 7

Subdivision A

Heading to Subdiv. A of ................ad. No. 120, 2004

Div. 7 of Part IX

s. 195AY .......................................ad. No. 159, 2000

am. No. 120, 2004

Heading to s. 195AZ......................am. No. 120, 2004

s. 195AZ........................................ad. No. 159, 2000

Heading to s. 195AZA...................am. No. 120, 2004

s. 195AZA ................................ ad. No. 159, 2000

s. 195AZB ................................ ad. No. 159, 2000

rep. No. 120, 2004

s. 195AZC ................................ ad. No. 159, 2000

am. No. 34, 2003

rep. No. 120, 2004

s. 195AZD ................................ ad. No. 159, 2000

Heading to s. 195AZE ...................am. No. 120, 2004

ss. 195AZE–195AZG ....................ad. No. 159, 2000

Subdivision B

Subdiv. B of Div. 7 of ad. No. 120, 2004

Part IX ...........................................

ss. 195AZGA–195AZGF...............ad. No. 120, 2004

Subdivision C

Subdiv. C of Div. 7 of ad. No. 120, 2004

Part IX ...........................................

s. 195AZGG ................................ad. No. 120, 2004

s. 195AZGH ................................ad. No. 120, 2004

am. No. 13, 2013

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 8

Subdivision A

Subdivision A heading...................ad. No. 120, 2004

ss. 195AZH–195AZO....................ad. No. 159, 2000

Subdivision B

Subdivision B ................................ad. No. 120, 2004

ss. 195AZP–195AZR ....................ad. No. 120, 2004

Part X

Division 1

Division 1 heading.........................ad No 113, 2015

s 195A ...........................................ad No 154, 1980

am No 165, 1984; No 78, 1986; No 32, 1989 (as am by No 107, 1993);

No 104, 1998; No 158, 2006; No 49, 2017

Division 2

Division 2 heading.........................ad No 113, 2015

s 195B ...........................................ad No 32, 1989 (as rep by No 107, 1993); No 107, 1993

am No 149, 1994; No 104, 1998; No 158, 2006; No 94, 2010; No 35,

2012; No 41, 2015; No 49, 2017

Division 3

Division 3 ......................................ad No 113, 2015

s 195CA.........................................ad No 113, 2015

s 195CB.........................................ad No 113, 2015

s 195CC.........................................ad No 113, 2015

s 195CD.........................................ad No 113, 2015

s 195CE.........................................ad No 113, 2015

s 195CF .........................................ad No 113, 2015

s 195CG.........................................ad No 113, 2015

s 195CH.........................................ad No 113, 2015

s 195CI ..........................................ad No 113, 2015

s 195CJ..........................................ad No 113, 2015

Division 4

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 4 heading.........................ad No 113, 2015

ss. 197, 198................................ am. No. 141, 1994

s. 198A ..........................................ad. No. 34, 2003

am. No. 34, 2003

s. 199 .............................................am. No. 160, 1977; No. 154, 1980; No. 7, 1983; No. 78, 1986; No. 146,

1988; No. 180, 1991; No. 141, 1994; No. 104, 1998; No. 110, 2000;

No. 45, 2005

s 200 ..............................................am No 154, 1980; No 32, 1989 (as am by No 107, 1993); No 49, 2017

s. 200AAA................................ ad. No. 158, 2006

am. No. 8, 2010

s 200AA ........................................ad No 32, 1989 (as am by No 107, 1993)

am No 104, 1998

rep No 49, 2017

s 200AB.........................................ad No 158, 2006

am No 49, 2017

s. 200A ..........................................ad. No. 78, 1986

rep. No. 32, 1989 (as am. by No. 107, 1993)

s. 201 .............................................am. No. 216, 1973; No. 154, 1980; No. 141, 1994

rep No 113, 2015

s. 202 .............................................am. No. 216, 1973; No. 141, 1994; No. 104, 1998; No. 158, 2006

s. 202A ..........................................ad. No. 158, 2006

s 203A ...........................................ad No 154, 1980

am No 91, 1983; No 165, 1984; No 78, 1986; No 32, 1989 (as am by

No 107, 1993)

rs No 158, 2006

am No 49, 2017

ss. 203B, 203C ..............................ad. No. 154, 1980

am. No. 165, 1984; No. 78, 1986

rep. No. 32, 1989 (as am. by No. 107, 1993)

s 203D ...........................................ad No 154, 1980

am No 165, 1984; No 78, 1986; No 32, 1989 (as am by No 107, 1993)

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

rs No 158, 2006

rep No 49, 2017

s 203E............................................ad No 154, 1980

am No 165, 1984; No 78, 1986; No 32, 1989 (as am by No 107, 1993);

No 141, 1994; No 24, 2001; No 158, 2006; No 49, 2017

s 203F............................................ad No 154, 1980

am No 91, 1983; No 165, 1984; No 78, 1986; No 32, 1989 (as am by

No 107, 1993); No 24, 2001

rs No 158, 2006

am No 49, 2017

s 203G ...........................................ad No 154, 1980

am No 165, 1984; No 78, 1986

rep No 32, 1989 (as am by No 107, 1993)

ad No 110, 2000

rs No 158, 2006

am No 49, 2017

s 203H ...........................................ad No 154, 1980

am No 165, 1984; No 78, 1986; No 32, 1989 (as am by No 107, 1993);

No 110, 2000; No 158, 2006; No 49, 2017

Part XI

Division 1

s. 204 .............................................am. No. 154, 1980

s. 206 .............................................am. No. 216, 1973; No. 61, 1981

s. 208 .............................................am. No. 120, 2004

s. 209 .............................................am. No. 154, 1980

Division 2

s. 210 .............................................am. No. 154, 1980

s. 211 .............................................am. No. 154, 1980; No. 141, 1994

s. 212 .............................................am. No. 154, 1980

rep. No. 120, 2004

s. 213 .............................................am. No. 154, 1980; No. 141, 1994

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

ss. 214–216................................ am. No. 154, 1980

s. 217 .............................................am. No. 216, 1973; No. 154, 1980

s. 219 .............................................am. No. 154, 1980; No. 141, 1994

Division 3

s. 220 .............................................am. No. 154, 1980; No. 120, 2004

ss. 221–225................................ am. No. 154, 1980

Division 4

ss. 226, 227................................ am. No. 154, 1980

s. 229 .............................................am. No. 154, 1980

s 232 ..............................................am. No. 154, 1980

s 233 ..............................................am No 154, 1980

rep No 49, 2017

s 234 ..............................................am No 154, 1980

rep No 49, 2017

s 235 ..............................................am No 154, 1980

rs No 49, 2017

s 236 ..............................................am No 154, 1980

s 237 ..............................................am No 154, 1980

s. 238 .............................................am. No. 154, 1980

rep. No. 159, 2000

s. 239 .............................................am. No. 154, 1980; No. 141, 1994

s 240 ..............................................am No 154, 1980

s 241 ..............................................am No 154, 1980

rep No 113, 2015

Division 5

ss. 244, 245................................ am. No. 154, 1980

s. 246 .............................................am. No. 110, 2000

s. 248 .............................................am. No. 154, 1980; No. 141, 1994

Part XIA

Part XIA .......................................ad. No. 32, 1989 (as am. by No. 107, 1993)

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 1

s 248A ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 149, 1994; No 104, 1998; No 110, 2000 (as am by No 63, 2002);

No 120, 2004; No 158, 2006; No 21, 2007; No 49, 2017

s. 248B ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 120, 2004

s 248C ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 120, 2004; No 158, 2006

am No 49, 2017

s. 248CA........................................ad. No. 149, 1994

am. No. 158, 2006

s. 248D ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rs. No. 120, 2004

s. 248E...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rep. No. 110, 2000

s. 248F...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 149, 1994; No. 158, 2006

Division 2

s. 248G ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 149, 1994; No. 110, 2000; No. 120, 2004; No 49, 2017

s. 248H ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 113, 2008

s. 248J............................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 120, 2004

ss. 248K–248M .............................ad. No. 32, 1989 (as am. by No. 107, 1993)

Heading to s. 248MA ....................rs. No. 13, 2013

s. 248MA.......................................ad. No. 34, 2003

am. No. 13, 2013

s. 248N ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

Copyright Act 1968

Compilation No. 54 Compilation date: 22/12/17 Registered: 22/12/17

656

Authorised Version C2017C00414 registered 22/12/2017

Endnotes

Endnote 4—Amendment history

Provision affected How affected

Division 3

Subdivision A

Subdiv. A of Div. 3 of ...................ad. No. 158, 2006

Part XIA

s. 248P...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 105, 1998; No. 110, 2000; No. 120, 2004

rs. No. 158, 2006

Notes 1, 2 to s. 248P(8) ................ad. No. 120, 2004

rep. No. 158, 2006

s 248PA.........................................ad. No. 158, 2006

s 248PB .........................................ad No 158, 2006

s 248PC .........................................ad No 158, 2006

am No 49, 2017

s 248PD.........................................ad No 158, 2006

s 248PE..........................................ad No 158, 2006

s 248PF..........................................ad No 158, 2006

s 248PG.........................................ad No 158, 2006

s 248PH.........................................ad No 158, 2006

s 248PI...........................................ad No 158, 2006

s 248PJ ..........................................ad No 158, 2006

s 248PK.........................................ad No 158, 2006

s 248PL..........................................ad No 158, 2006

s 248PM ........................................ad No 158, 2006

Subdivision B

Subdiv. B of Div. 3 of ...................ad. No. 158, 2006

Part XIA

s. 248Q ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 149, 1994; No. 105, 1998

rep. No. 158, 2006

s. 248QA .......................................ad. No. 149, 1994

am. No. 105, 1998

Copyright Act 1968

Compilation No. 54 Compilation date: 22/12/17 Registered: 22/12/17

657

Authorised Version C2017C00414 registered 22/12/2017

Endnotes

Endnote 4—Amendment history

Provision affected How affected

rs. No. 158, 2006

s. 248QB........................................ad. No. 149, 1994

rs. No. 105, 1998; No. 158, 2006

ss. 248QC–248QH.........................ad. No. 158, 2006

Subdivision C

Subdiv. C of Div. 3 of ...................ad. No. 158, 2006

Part XIA

s. 248R ..........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

am. No. 149, 1994

rep. No. 105, 1998

ad. No. 158, 2006

s. 248S...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

rs. No. 158, 2006

s. 248SA ........................................ad. No. 158, 2006

Subdivision D

Heading to Subdiv. D of ................ad. No. 158, 2006

Div. 3 of Part XIA

s. 248T...........................................ad. No. 32, 1989 (as am. by No. 107, 1993)

Division 4

s 248U ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 120, 2004; No 49, 2017

s 248V ...........................................ad No 32, 1989 (as am by No 107, 1993)

am No 120, 2004; No 49, 2017

Part XII

Subhead. to s. 249(1) ....................ad. No. 158, 2006

s. 249 .............................................am. No. 154, 1980; No. 158, 2006; No 126, 2015

Copyright Act 1968

Compilation No. 54 Compilation date: 22/12/17 Registered: 22/12/17

658


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