Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Copyright
Amendment (Digital Agenda) Bill 1999
No.
,
1999
(Attorney-General)
A
Bill for an Act to amend the Copyright Act 1968, and for related
purposes
ISBN: 0642
408149
Contents
A Bill for an Act to amend the Copyright Act 1968,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Copyright Amendment (Digital Agenda) Act
1999.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation.
(2) If this Act does not commence under subsection (1) within the period
of 6 months beginning on the day on which this Act receives the Royal Assent, it
commences on the first day after the end of that period.
The object of this Act is to amend the Copyright Act 1968 so as
to:
(a) ensure the efficient operation of relevant industries in the online
environment by:
(i) promoting the creation of copyright material and the exploitation of
new online technologies by allowing financial rewards for creators and
investors; and
(ii) providing a practical enforcement regime for copyright owners;
and
(iii) promoting access to copyright material online; and
(b) promote certainty for communication and information technology
industries that are investing in and providing online access to copyright
material; and
(c) provide reasonable access and certainty for end users of copyright
material online; and
(d) ensure that cultural and educational institutions can access, and
promote access to, copyright material in the online environment on reasonable
terms, including having regard to the benefits of public access to the material
and the provision of adequate remuneration to creators and investors;
and
(e) ensure that the relevant global technical standards which form the
basis of new communication and information technologies, such as the Internet,
are not jeopardised.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 10(1)
(definition of
broadcast)
Repeal the definition, substitute:
broadcast means a communication to the public delivered by a
broadcasting service within the meaning of the Broadcasting Services Act
1992.
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.
Insert:
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
Insert:
carrier has the same meaning as in the Telecommunications
Act 1997.
Insert:
circumvention device means a device (including a computer
program) having only a limited commercially significant purpose or use, or no
such purpose or use, other than the circumvention, or facilitating the
circumvention, of an effective technological protection measure.
Insert:
circumvention service means a service, the performance of
which has only a limited commercially significant purpose, or no such purpose or
use, other than the circumvention, or facilitating the circumvention, of an
effective technological protection measure.
Insert:
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.
7 Subsection 10(1)
(definition of computer
program)
Repeal the definition, substitute:
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.
Insert:
effective technological protection measure means a device or
product, or a component incorporated into a process, that is designed to prevent
or inhibit the infringement of copyright subsisting in a work or other
subject-matter if, in the ordinary course of its operation, access to the work
or other subject-matter protected by the measure is available solely by use of
an access code or process (including decryption, unscrambling or other
transformation of the work or other subject-matter) with the authority of the
owner or licensee of the copyright in a work or other subject-matter.
Insert:
electronic rights management information means:
(a) information attached to, or embodied in, a copy of a work or other
subject-matter that:
(i) identifies the work or subject-matter, and its author or copyright
owner; and
(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; or
(b) any numbers or codes that represent such information in electronic
form.
10 Subsection 10(1)
(paragraph (e) of the definition of
infringing
copy)
Omit “reproduction”, substitute “facsimile
copy”.
Insert:
library includes a library owned by an educational
institution, being an institution that is conducted for profit, but does not
include a library owned by any other person or body carrying on business for
profit if the person maintains the library mainly or solely for the purposes of
that business.
12 Subsection 10(1)
(paragraph (a) of the definition of
literary work)
Omit “(whether or not in a visible form)”.
13 Subsection 10(1) (definition of
manuscript)
Repeal the definition, substitute:
manuscript, in relation to a literary, dramatic or musical
work, means the document embodying the work as initially prepared by the author,
whether the document is in hardcopy form, electronic form or any other
form.
Insert:
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 made available online or electronically
transmitted.
Insert:
retransmission, in relation to a broadcast, means a
retransmission of the broadcast, where:
(a) the content of the broadcast is unaltered (even if the technique used
to achieve retransmission is different to the technique used to achieve the
original transmission); and
(b) either:
(i) in any case—the retransmission is simultaneous with the original
transmission; or
(ii) if the retransmission is in an area that has, wholly or partly,
different local time to the area of the original transmission—the
retransmission is delayed until no later than the equivalent local
time.
Insert:
to the public means to the public within or outside
Australia.
17 Subsection 10(1)
(definition of wireless
telegraphy)
Repeal the definition.
18 Subsection 10(1)
(definition of wireless telegraphy
apparatus)
Repeal the definition.
After “musical work”, insert “(other than a computer
program)”.
Insert:
(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.
21 At the end of
subsection 10(4)
Add:
Example: Museums and galleries are examples of bodies that
could have collections covered by paragraph (b) of the definition of
archives.
Repeal the section.
Insert:
(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.
Repeal the subsection, substitute:
(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.
Add:
(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 a process of compilation; or
(b) a source code version of the program is derived from the program in
object code by a process of 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 heading to section 21 is replaced by the heading
“Reproduction and copying of works and other
subject-matter”.
Repeal the subsections, substitute:
(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.
Omit “simultaneously making a further transmission”, substitute
“making a retransmission”.
Repeal the subsection.
29 Section 26
Repeal the section.
Omit “operation of wireless telegraphy apparatus”, substitute
“use of reception equipment”.
Repeal the subsection, substitute:
(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.
Omit “receiving apparatus” (wherever occurring), substitute
“reception equipment”.
Omit “conveyed by the transmission of electromagnetic signals
(whether over paths provided by a material substance or not), the operation of
any apparatus by which the signals are transmitted”, substitute
“communicated, the operation of any equipment by which the images or
sounds are communicated”.
Omit “apparatus” (wherever occurring), substitute
“equipment”.
35 Subparagraphs
31(1)(a)(iv) and (v)
Repeal the subparagraphs, substitute:
(iv) to communicate the work to the public;
Omit “(v)”, substitute “(iv)”.
37 Subparagraphs
31(1)(b)(iii) and (iv)
Repeal the subparagraphs, substitute:
(iii) to communicate the work to the public; and
Omit “literary,”, insert “literary work (other than a
computer program) or a”.
Insert:
(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.
Omit “the last preceding subsection”, substitute “this
section”.
Omit “for the making, by reprographic reproduction of copies of
documents”, substitute “(including a computer)”.
Insert:
A carrier or carriage service provider is not taken to have authorised
any infringement of copyright in a work merely because the carrier or carriage
service provider provides facilities used by a person to do something the right
to do which is included in the copyright.
43 Paragraph
42(1)(b) and subsection 42(2)
Omit “broadcasting”, substitute “a
communication”.
Repeal the subsection.
Insert:
(1) The copyright in a work, or an adaptation of a work, is not infringed
by making a temporary reproduction of the work or adaptation as part of the
technical process of making or receiving a communication.
(2) Subsection (1) does not apply in relation to the making of a temporary
reproduction of a work, or an adaptation of a work, as part of the technical
process of making a communication if the making of the communication is an
infringement of copyright.
Omit “wireless telegraphy apparatus”, substitute “any
equipment by which images or sounds are communicated”.
Add:
(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).
Omit “copy” (wherever occurring), substitute
“reproduction”.
Note: The heading to section 49 is altered by omitting
“Copying” and substituting “Reproducing and
communicating works”.
Omit “publication; and”, substitute “publication, being a
periodical publication or a published work held in the collection of a library
or archives; and”.
Omit “copy” (wherever occurring), substitute
“reproduction”.
51 Paragraph 49(2A)(a)
Repeal the paragraph, substitute:
(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
52 Paragraph 49(2A)(b)
Omit “copy” (wherever occurring), substitute
“reproduction”.
53 Subsections 49(2C), (3), (4) and
(5)
Omit “copy” (wherever occurring), substitute
“reproduction”.
Insert:
(5A) If an article contained in a periodical publication, or a published
work (other than an article contained in a periodical publication) is acquired,
in electronic form, as part of a library or archives collection, the officer in
charge of the library or archives may make it available online within the
premises of the library or archives in such a manner that users cannot, by using
any equipment supplied by the library or archives:
(a) make an electronic reproduction of the article or work; or
(b) communicate the article or work.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Insert:
(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 is 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).
Repeal the subsection, substitute:
(9) In this section:
supply includes supply by way of a communication.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Note: The heading to section 50 is altered by omitting
“Copying” and substituting “Reproducing and
communicating works”.
Omit “publication:”, substitute “publication, being a
periodical publication or a published work held in the collection of the other
library:”.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Omit “a copy of the whole or a part of a work”, substitute
“a reproduction of the whole or part of a work (including an article
contained in a periodical publication)”.
62 Paragraphs
50(3)(a) and (b)
Omit “copy” (wherever occurring), substitute
“reproduction”.
63 Subsections
50(4), (6) and (7)
Omit “copy” (wherever occurring), substitute
“reproduction”.
Repeal the subsection, substitute:
(7A) If:
(a) a reproduction is made of the whole of a work (other than an article
contained in a periodical publication) or of a part of such a work, being a part
that contains more than a reasonable portion of the work; and
(b) the work from which the reproduction is made is in hardcopy form;
and
(c) the reproduction is supplied under subsection (2) to the officer in
charge of a library;
subsection (4) does not apply in relation to the reproduction
unless:
(d) in a case where the principal purpose of the library is to provide
library services for members of a Parliament—the reproduction is so
supplied for the purpose of assisting a person who is a member of that
Parliament in the performance of the person’s duties as such a member;
or
(e) as soon as practicable after the request under subsection (1) relating
to the reproduction is made, an authorized officer of the library makes a
declaration:
(i) setting out particulars of the request (including the purpose for
which the reproduction was requested); and
(ii) stating that, after reasonable investigation, the authorized officer
is satisfied that a copy (not being a second-hand copy) of the work cannot be
obtained within a reasonable time at an ordinary commercial price.
(7B) If:
(a) a reproduction is made of the whole of a work (including an article
contained in a periodical publication) or of a part of such a work, whether or
not the part contains more than a reasonable portion of the work; and
(b) the work from which the reproduction is made is in electronic form;
and
(c) the reproduction is supplied under subsection (2) to the officer in
charge of a library;
subsection (4) does not apply in relation to the reproduction
unless:
(d) in a case where the principal purpose of the library is to provide
library services for members of a Parliament—the reproduction is so
supplied for the purpose of assisting a person who is a member of that
Parliament in the performance of the person’s duties as such a member;
or
(e) as soon as practicable after the request under subsection (1) relating
to the reproduction is made, an authorized officer of the library makes a
declaration:
(i) setting out particulars of the request (including the purpose for
which the reproduction was requested); and
(ii) stating that, after reasonable investigation, the authorized officer
is satisfied that the work cannot be obtained in electronic form within a
reasonable time at an ordinary commercial price.
Omit “copy”, substitute “reproduction”.
Repeal the subsection, substitute:
(9) In this section:
library includes archives.
supply includes supply by way of a communication.
Omit “and more than 75 years after the time at which, or the
expiration of the period during which, the work was made,”.
Omit “copy”, substitute “reproduction”.
69 Paragraphs
51(1)(c) and (d)
Repeal the paragraphs, substitute:
(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.
Note: The heading to section 51 is altered by omitting
“Copying of” and substituting “Reproducing and
communicating”.
Repeal the subsection, substitute:
(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.
After “the making”, insert “or
communication”.
Note: The heading to section 51AA is altered by omitting
“Copying of” and substituting “Reproducing and
communicating”.
72 Subsection
51AA(2) (definitions of reference
copy, replacement copy and working copy)
Omit “a copy”, substitute “a
reproduction”.
After “the making”, insert “or
communicating”.
Note: The heading to section 51A is altered by omitting
“Copying of” and substituting “Reproducing and
communicating”.
Omit “copy (including a microform copy)”, substitute
“reproduction”.
Repeal the subsections, substitute:
(2) The copyright in a work that is held in the collection of a library or
archives is not infringed by the making, by or on behalf of the officer in
charge of the library or archives, of a reproduction of the work for
administrative purposes.
(3) The copyright in a work that is held in the collection of a library or
archives is not infringed by the communication, by or on behalf of the officer
in charge of the library or archives, of a reproduction of the work made under
subsection (2) to officers of the library or archives by making it available
online to be accessed through the use of a computer terminal installed within
the premises of the library or archives with the approval of the body
administering the library or archives.
(3A) The copyright in an original artistic work that is held in the
collection of a library or archives is not infringed by the communication, by or
on behalf of the officer in charge of the library or archives, of a preservation
reproduction of the work by making it available online to be accessed through
the use of a computer terminal:
(a) that is installed within the premises of the library or archives;
and
(b) that cannot be used by a person accessing the work to make an
electronic copy or a hardcopy of the reproduction, or to communicate the
reproduction.
Omit “copy (including a microform copy)”, substitute
“reproduction”.
Omit “of the copy”, substitute “or communication of the
reproduction”.
Add:
(6) In this section:
preservation reproduction, in relation to an artistic work,
means a reproduction of the work made under subsection (1) for the purpose of
preserving the work against loss or deterioration.
Omit “causes to be transmitted to subscribers to a diffusion
service,”.
Repeal the section.
Repeal the paragraph, substitute:
(c) to communicate the recording to the public;
Repeal the paragraphs, substitute:
(c) to communicate the film to the public.
83 At the end of
paragraph 87(c)
Add “or communicate it to the public otherwise than by broadcasting
it”.
Omit “, by a means that includes a photographic process, a
reproduction”, substitute “a facsimile copy”.
Repeal the sections, substitute:
Subject to this Act, copyright subsists in a television broadcast or
sound broadcast made from a place in Australia:
(a) under the authority of a licence or a class licence under the
Broadcasting Services Act 1992; or
(b) by the Australian Broadcasting Corporation or the Special Broadcasting
Service Corporation.
Repeal the section, substitute:
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.
Insert:
(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.
Omit “broadcasting”, substitute “a
communication”.
Repeal the subsection.
Insert:
If:
(a) a person makes an infringing copy of, or of part of, an audio-visual
item or a published edition of a work on a machine (including a computer), being
a machine installed by or with the approval of the body administering a library
or archives on the premises of the library or archives, or outside those
premises for the convenience of persons using the library or archives;
and
(b) there is affixed to, or in close proximity to, the machine, in a place
readily visible to persons using the machine, a notice of the prescribed
dimensions and in accordance with the prescribed form;
neither the body administering the library or archives, nor the officer in
charge of the library or archives, is taken to have authorised the making of the
infringing copy merely because the copy was made on that machine.
Repeal the paragraphs, substitute:
(c) by the making of a copy or the communication of the sound recording or
cinematograph film by a person for the purpose of research or study or with a
view to publication; or
(d) by the making of a copy or the communication of the sound recording or
cinematograph film by, or on behalf of, the officer in charge of the library or
archives if the copy is supplied or communicated to a person who satisfies the
officer that he or she requires the copy for the purpose of research or study,
or with a view to publication and that he or she will not use it for any other
purpose.
Note: The heading to section 110A is altered by omitting
“Copying of” and substituting “Copying and
communicating”.
Insert:
(2A) The copyright in a sound recording or cinematograph film that forms,
or formed, part of the collection of a library or archives, or in any work or
other subject-matter included in such a sound recording or film, is not
infringed by the communication, by or on behalf of the officer in charge of the
library or archives, of a copy of the sound recording or film made under
subsection (1) or (2) to officers of the library or archives by making it
available online to be accessed through the use of a computer terminal installed
within the premises of the library or archives with the approval of the body
administering the library or archives.
(2B) If:
(a) a copy of a sound recording or a cinematograph film is made by or on
behalf of the officer in charge of a library or archives under this section;
and
(b) the copy is made for the purpose of research that is being, or is to
be, carried out at another library or archives;
the copyright in the sound recording or film, or in any work or other
subject-matter included in it, is not infringed by the communication, by or on
behalf of the officer in charge, of the copy to the other library or archives by
making it available online to be accessed through the use of a computer terminal
installed within the premises of the other library or archives with the approval
of the body administering the other library or archives.
Note: The heading to section 110B is altered by omitting
“Copying of” and substituting “Copying and
communicating”.
Omit “of the copy”, substitute “or communication of the
copy”.
Insert:
(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.
Insert:
A carrier or a carriage service provider is not taken to have authorised
any infringement of copyright in an audio-visual item merely because the carrier
or carriage service provider provides facilities used by a person to do
something the right to do which is included in the copyright.
Repeal the heading, substitute:
After “device”, insert “(including a circumvention
device)”.
Insert:
(1) Subject to subsections (2), (3) and (4), this section applies
if:
(a) a work or other subject-matter is protected by an effective
technological protection measure; and
(b) a person does any of the following acts without the permission of the
owner or licensee of the copyright in the work or other
subject-matter:
(i) makes a circumvention device capable of circumventing, or facilitating
the circumvention of, the effective technological protection measure;
(ii) sells, lets for hire, or by way of trade offers or exposes for sale
or hire, such a circumvention device;
(iii) distributes such a circumvention device for the purpose of trade, or
for any other purpose that will affect prejudicially the owner of the
copyright;
(iv) exhibits such a circumvention device in public by way of
trade;
(v) imports such a circumvention device into Australia for the purpose
of:
(A) selling, letting for hire, or by way of trade offering or exposing for
sale or hire, the device; or
(B) distributing the device for the purpose of trade, or for any other
purpose that will affect prejudicially the owner of the copyright; or
(C) exhibiting the device in public by way of trade;
(vi) makes such a circumvention device available online to an extent that
will affect prejudicially the owner of the copyright;
(vii) provides a circumvention service capable of circumventing, or
facilitating the circumvention of, the effective technological protection
measure; and
(c) the person knew, or ought reasonably to have known, that the device or
service would be used to circumvent, or facilitate the circumvention of, the
effective technological protection measure.
(2) This section 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.
(3) This section does not apply in relation to the supply of a
circumvention device or a circumvention service to a person if the person gives
the supplier before, or at the time of, the supply a declaration signed by the
person:
(a) stating that the device or service is to be used only for a permitted
purpose; and
(b) identifying the purpose.
(4) This section does not apply in relation to the making or importing of
a circumvention device:
(a) for use only for a permitted purpose: or
(b) for the purpose of enabling a person to supply the device, or to
supply a circumvention service, for use only for a permitted purpose.
(5) If this section applies, the owner or licensee of the copyright may
bring an action against the person.
(6) In an action under subsection (5), it must be presumed that the
defendant knew, or ought reasonably to have known, that the circumvention device
or service to which the action relates would be used for a purpose referred to
in paragraph (1)(c) unless the defendant proves otherwise.
(7) For the purposes of this section, a circumvention device or a
circumvention service is taken to be used for a permitted purpose only
if:
(a) the device or service is used for the purpose of doing an act
comprised in the copyright in a work or other subject-matter; and
(b) the doing of the act is not an infringement of the copyright in the
work or other subject-matter under section 47D, 47E, 47F, 49, 50, 183 or Part
VB.
(8) In this section:
supply means:
(a) in relation to a circumvention device—sell the device, let it
for hire, distribute it or make it available online; and
(b) in relation to a circumvention service—provide the
service.
(1) This section applies if:
(a) a person removes or alters any electronic rights management
information attached to a copy of a work or other subject-matter in which
copyright subsists; and
(b) the person does so without the permission of the owner or licensee of
the copyright; and
(c) the person knew, or ought reasonably to have known, that the removal
or alteration would induce, enable, facilitate or conceal an infringement of the
copyright in the work or other subject-matter.
(2) If this section applies, the owner or 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.
(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:
(i) distributes for the purpose of trade a copy of the work or other
subject-matter;
(ii) imports into Australia a copy of the work or other subject-matter for
the purpose of trade;
(iii) communicates a copy of the work or other subject-matter to the
public; and
(b) any electronic rights management information attached to the copy has
been removed or 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 licensee of
the copyright; and
(d) the person knew, or ought reasonably to have known, that the removal
or alteration would induce, enable, facilitate or conceal an infringement of the
copyright in the work or other subject-matter.
(2) If this section applies, the owner or 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 removal or
alteration to which the action relates would have the effect referred to in
paragraph (1)(d);
unless the defendant proves otherwise.
(1) The relief that a court may grant in an action under section 116A,
116B or 116C 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 section 116A, 116B or 116C, the court is
satisfied that it is proper to do so, having regard to:
(a) the flagrancy of the defendant’s actions that are the subject of
the action; and
(b) any benefit shown to have accrued to the defendant as a result of
those acts; and
(c) any other relevant matters;
the court may, in assessing damages, award such additional damages as it
considers appropriate in the circumstances.
Omit “computer program” (wherever occurring), substitute
“work or other subject-matter”.
Insert:
(5B) A person must not provide a circumvention service if the person
knows, or is reckless as to whether, the service will be used to circumvent, or
facilitate the circumvention of, an effective technological protection
measure.
(5C) A person must not:
(a) make a circumvention device; or
(b) sell, let for hire, or by way of trade offer or expose for sale or
hire, a circumvention device; or
(c) distribute a circumvention device with the intention of trading, or
engaging in any other activity that will affect prejudicially an owner of
copyright; or
(d) by way of trade exhibit a circumvention device in public; or
(e) import a circumvention device into Australia with the intention
of:
(i) selling, letting for hire, or by way of trade offering or exposing for
sale or hire, the device; or
(ii) distributing the device for trading, or for engaging in any other
activity that will affect prejudicially an owner of copyright; or
(iii) exhibiting the device in public by way of trade; or
(f) make a circumvention device available online to an extent that will
affect prejudicially an owner of copyright;
if the person knows, or is reckless as to whether, the device will be used
to circumvent, or facilitate the circumvention of, an effective technological
protection measure.
(5D) A person must not remove or alter any electronic rights management
information attached to a copy of a work or other subject-matter in which
copyright subsists, except with the permission of the owner or licensee of the
copyright, if the person knows, or is reckless as to whether, the removal or
alteration will induce, enable, facilitate or conceal an infringement of the
copyright in the work or other subject-matter.
(5E) A person must not:
(a) distribute a copy of a work or other subject-matter in which copyright
subsists with the intention of trading; or
(b) import into Australia a copy of such a work or other subject-matter
with the intention mentioned in paragraph (a); or
(c) communicate to the public a copy of such a work or other
subject-matter;
if any electronic rights management information attached to the copy has
been removed or altered and the person:
(d) knows that the electronic rights management information has been so
removed or altered without the permission of the owner or licensee of the
copyright; and
(e) knows, or is reckless as to whether, the removal or alteration will
induce, enable, facilitate or conceal an infringement of the copyright in the
work or other subject-matter.
(5F) Subsections (5B) and (5C) 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.
(5G) Subsections (5B) and (5C) do not apply in relation to the supply of a
circumvention device or a circumvention service to a person if the person gives
the supplier before, or at the time of, the supply a declaration signed by the
person:
(a) stating that the device or service is to be used only for a permitted
purpose; and
(b) identifying the purpose.
(5H) Subsection (5C) does not apply in relation to the making or importing
of a circumvention device:
(a) for use only for a permitted purpose: or
(b) to enable a person to supply the device, or to supply a circumvention
service, for use only for a permitted purpose.
(5J) For the purposes of this section, a circumvention device or a
circumvention service is taken to be used for a permitted purpose only
if:
(a) the device or service is used to do an act comprised in the copyright
in a work or other subject-matter; and
(b) the act is done with the licence of the owner or licensee of the
copyright, or is not an infringement of the copyright in the work or other
subject-matter under section 47D, 47E, 47F, 49, 50, 183 or Part VB.
(5K) The only burden of proof that the defendant bears in respect of
subsection (5F), (5G) or (5H) is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the act or matter in question was
done or existed.
(5L) In this section:
supply means:
(a) in relation to a circumvention device—sell the device, let it
for hire, distribute it or make it available online; and
(b) in relation to a circumvention service—provide the
service.
Insert:
(6B) A person who contravenes subsection (5B), (5C), (5D) or (5E) is
guilty of an indictable offence punishable on conviction by a fine not exceeding
550 penalty units or imprisonment for not longer than 5 years, or
both.
(6C) An indictable offence against this section may, with the consent of
the prosecutor and the defendant, be heard and determined summarily and, if such
an offence is so dealt with, the penalty that the court may impose is a fine not
exceeding 250 penalty units or imprisonment for not longer than 12 months, or
both.
After “appears to the court”, insert “to be a
circumvention device used or intended to be used in contravention of that
section, or”.
Add:
(2) An action may not be brought under section 116A, 116B or 116C in
respect of an act done by a person if more than 6 years have elapsed from the
time when the act was done.
Insert:
In this Part:
action means a proceeding of a civil nature between parties,
and includes a counterclaim.
broadcast decoding device means a device (including a
computer program) that is designed or adapted to enable a person to gain access
to an encoded broadcast without the authorisation of the subscription
broadcaster by circumventing, or facilitating the circumvention of, the
technical means or arrangements that protect access in an intelligible form to
the broadcast.
encoded broadcast means a broadcast:
(a) delivered by a broadcasting service that is made available only to
persons who have the prior authorisation of the subscription broadcaster and
only on payment by such persons of subscription fees (whether periodically or
otherwise); and
(b) access to which in an intelligible form is protected by a technical
measure or arrangement (including a computer program).
subscription broadcaster means a person who makes an encoded
broadcast.
In the application of this Part in relation to a counterclaim, references
to the defendant are to be read as references to the plaintiff.
(1) Subject to subsection (2), this section applies if:
(a) a subscription broadcaster makes an encoded broadcast; and
(b) a person does any of the following acts without the permission of the
subscription broadcaster:
(i) makes a broadcast decoding device;
(ii) sells, lets for hire, or by way of trade offers or exposes for sale
or hire, a broadcast decoding device;
(iii) distributes a broadcast decoding device for the purpose of trade, or
for any other purpose that will affect prejudicially the subscription
broadcaster;
(iv) exhibits a broadcast decoding device in public by way of
trade;
(v) imports a broadcast decoding device into Australia for the purpose
of:
(A) selling, letting for hire, or by way of trade offering or exposing for
sale or hire, the device; or
(B) distributing the device for the purpose of trade, or for any other
purpose that will affect prejudicially the subscription broadcaster;
or
(C) exhibiting the device in public by way of trade;
(vi) makes a broadcast decoding device available online to an extent that
will affect prejudicially the subscription broadcaster; and
(c) the person knew, or ought reasonably to have known, that the device
would be used to enable a person to gain access to an encoded broadcast without
the authorisation of the subscription broadcaster.
(2) This section 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.
(3) Subject to subsection (8), if this section applies, the subscription
broadcaster may bring an action against the person.
(4) The relief that a court may grant in an action under this section
includes an injunction (subject to such terms, if any, as the court thinks fit)
and either damages or an account of profits.
(5) If, in an action under this section, the court is satisfied that it is
proper to do so, having regard to:
(a) the flagrancy with which the defendant did any of the acts described
in paragraph (1)(b); and
(b) any benefit shown to have accrued to the defendant as a result of
making or dealing with the relevant broadcast decoding device; and
(c) all other relevant matters;
the court may, in assessing damages, award such additional damages as it
considers appropriate in the circumstances.
(6) If, in an action under this section, the court is satisfied that it is
proper to do so, having regard to all relevant matters, the court may, by order,
direct that the relevant broadcast decoding device be destroyed or otherwise
dealt with as specified in the order.
(7) In an action under this section it must be presumed that the defendant
knew, or ought reasonably to have known, that the broadcast decoding device
would be used for the purpose referred to in paragraph (1)(c) unless the
defendant proves otherwise.
(8) An action cannot be brought against a person under this section in
respect of any act described in paragraph (1)(b) after the expiration of 6 years
from the time when the person did the act.
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.
(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.
Jurisdiction is conferred on the Federal Court of Australia with respect
to actions under this Part.
(1) A person must not:
(a) make a broadcast decoding device; or
(b) sell, let for hire, or by way of trade offer or expose for sale or
hire, a broadcast decoding device; or
(c) distribute a broadcast decoding device with the intention of trading,
or engaging in any other activity that will affect prejudicially a subscription
broadcaster; or
(d) exhibit a broadcast decoding device in public by way of trade;
or
(e) import a broadcast decoding device into Australia with the intention
of:
(i) selling, letting for hire, or by way of trade, offering or exposing
for sale or hire, the device; or
(ii) distributing the device for trading, or for engaging in any other
activity that will affect prejudicially a subscription broadcaster; or
(iii) exhibiting the device in public by way of trade; or
(f) make a broadcast decoding device available on-line to an extent that
will affect prejudicially a subscription broadcaster;
if the person knows, or is reckless as to whether, the device will be used
to enable a person to gain access to an encoded broadcast without the
authorisation of the subscription broadcaster.
(2) Subsection (1) 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.
(3) The only burden of proof that a defendant bears in respect of
subsection (2) is the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter in question existed.
(4) A person who contravenes subsection (1) is guilty of an indictable
offence punishable on conviction by a fine of not more that 550 penalty units or
imprisonment for not longer than 5 years, or both.
(5) An offence against this section may, with the consent of the
prosecutor and the defendant, be heard and determined summarily and, if the
offence is so dealt with, the penalty that the court may impose is a fine not
exceeding 250 penalty units or imprisonment for not longer than 12 months, or
both.
(1) Prosecutions for offences against section 135AS may be brought in the
Federal Court of Australia or in any other court of competent
jurisdiction.
(2) Jurisdiction is conferred on the Federal Court of Australia to hear
and determine prosecutions for offences against section 135AS.
The court before which a person is charged with an offence against
section 135AS 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 broadcast decoding device be destroyed or otherwise dealt with in such manner
as the court thinks fit.
105 Part VA (heading)
Repeal the heading, substitute:
106 Section 135A (definition of preview
copy)
Omit “transmission”, substitute
“broadcast”.
107 Section 135A (definition of
transmission)
Repeal the definition.
108 Section 135B
Omit “transmission” (wherever occurring), substitute
“broadcast”.
Note: The heading to section 135B is replaced by the heading
“Copies of broadcasts”.
109 Subsections 135E(1) and
(2)
Omit “transmission” (wherever occurring), substitute
“broadcast”.
Note: The heading to section 135E is replaced by the heading
“Copying of broadcasts by educational institutions
etc.”.
110 Subsections 135F(1) and
(2)
Omit “transmission” (wherever occurring), substitute
“broadcast”.
111 Subsection 135G(1)
Omit “transmissions”, substitute
“broadcasts”.
112 Subsection 135H(1)
Omit “transmission”, substitute
“broadcast”.
113 Paragraph 135H(2)(a)
Omit “transmissions”, substitute
“broadcasts”.
114 Subsections 135J(1), (1A), (2) and
(3)
Omit “transmissions”, substitute
“broadcasts”.
115 Subsection 135J(5)
Omit “transmission”, substitute
“broadcast”.
116 Subsections 135K(1), (2) and
(3)
Omit “transmission” (wherever occurring), substitute
“broadcast”.
117 Paragraphs 135L(1)(a) and
(b)
Omit “transmissions”, substitute
“broadcasts”.
118 Subsection 135N(1)
Omit “transmissions”, substitute
“broadcasts”.
119 Subsections 135U(1) and
(2)
Omit “transmission”, substitute
“broadcast”.
120 Section 135V
Omit “transmissions”, substitute
“broadcasts”.
121 Subsection 135W(1)
Omit “transmissions”, substitute
“broadcasts”.
Repeal the section, substitute:
Nothing in this Part affects the right of the owner of the copyright in a
broadcast, or in a work, sound recording or cinematograph film included in a
broadcast, to grant a licence authorising an administering body to make, or
cause to be made, a copy of the broadcast, sound recording or film, or a
reproduction of the work, without infringing that copyright.
123 Section 135ZA
Omit “transmission”, substitute
“broadcast”.
124 Part VB (heading)
Repeal the heading, substitute:
Insert:
electronic use notice means a remuneration notice specifying
that the amount of remuneration payable in respect of licensed copies in
electronic form, or licensed communications, made by, or on behalf of, the
administering body giving the notice is to be assessed on the basis of an
electronic use system.
126 Section 135ZB
(paragraph (a) of the definition of
licensed copy)
Repeal the paragraph, substitute:
(a) a reproduction of the whole or a part of the work, being a
reproduction that is made by, or on behalf of, a body administering an
educational institution in reliance on section 135ZJ, 135ZK, 135ZL, 135ZMC or
135ZMD;
127 Section 135ZB
(paragraph (b) of the definition of
licensed copy)
Omit “or a photographic version”, substitute “, a
photographic version or an electronic version”.
Insert:
licensed communication means a communication made by, or on
behalf of, a body administering an institution in reliance on section 135ZMC,
135ZMD, 135ZP or 135ZS.
129 Section 135ZB
(definition of records
notice)
Omit “to the collecting society by”, substitute “in
respect of licensed copies made in hardcopy form or analog form by, or on behalf
of,”.
130 Section 135ZB(
definition of sampling
notice)
Omit “to the collecting society by”, substitute “in
respect of licensed copies made in hardcopy form or analog form by, or on behalf
of,”.
131 At the end of
Division 1 of Part VB
Add:
For the purposes of this Part, a reference to a licensed communication of
a work, or part of a work, or other subject-matter includes a reference to a
licensed communication of a licensed copy of the work or other
subject-matter.
132 Division 2 of
Part VB (heading)
Repeal the heading, substitute:
Insert:
(1) This Division applies in relation to the reproduction of a work
(including an article contained in a periodical publication), or part of a work,
and to the copying of a published edition of a work, or part of such an edition,
only if the reproduction or copy is made from a document that is in hardcopy
form.
(2) For the purposes of this Division:
(a) a reference to a reproduction of a work (including an article
contained in a periodical publication), or a part of a work, is to be read as a
reference to a reproduction of that work or part made from a document that is in
hardcopy form; and
(b) a reference to a facsimile copy of a printed published edition of a
work, or part of such an edition, is to be read as a reference to a facsimile
copy of that edition or part made from a document that is in hardcopy
form.
Omit “copies of a page or pages of the work in an edition of the work
if the copying”, substitute “reproductions of a page or pages of the
work in an edition of the work if the reproduction”.
Note: The heading to section 135ZG is replaced by the
heading “Multiple reproduction of insubstantial parts of works that are
in hardcopy form”.
Omit “copy”, substitute “reproduction”.
Omit “copy”, substitute “reproduction”.
Omit “copied”, substitute “reproduced”.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Repeal the section, substitute:
The copyright in a printed published edition of a work (being a work in
which copyright does not subsist) is not infringed by the making of one or more
facsimile copies of the whole or a part of the edition, if the copy, or each of
the copies, is made in the course of the making of a reproduction of the whole
or a part of the work by, or on behalf of, a body administering an educational
institution for the educational purposes of that institution or of another
educational institution.
Omit “periodical publication is not infringed by the making of one or
more copies”, substitute “printed periodical publication is not
infringed by the making of one or more reproductions”.
Note: The heading to section 135ZJ is replaced by the
heading “Multiple reproduction of printed periodical articles by
educational institutions”.
Omit “copy is made”, substitute “reproduction is carried
out”.
Repeal the paragraph, substitute:
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each reproduction.
Omit “copies”, substitute
“reproductions”.
Repeal the section, substitute:
The copyright in a literary or dramatic work, being a work contained in a
printed published anthology of works and comprising not more than 15 pages in
that anthology, is not infringed by the making of one or more reproductions of
the whole or part of the work by, or on behalf of, a body administering an
educational institution if:
(a) a remuneration notice given by, or on behalf of, the body to the
relevant collecting society is in force; and
(b) the reproduction is carried out solely for the educational purposes of
the institution or of another educational institution; and
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each reproduction.
Omit “copies”, substitute
“reproductions”.
Note: The heading to section 135ZL is replaced by the
heading “Multiple reproduction of works that are in hardcopy form by
educational institutions”.
Omit “copy is made”, substitute “reproduction is carried
out”.
Repeal the paragraph, substitute:
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each reproduction.
Omit “copies” (wherever occurring), substitute
“reproductions”.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Note: The heading to section 135ZM is replaced by the
heading “Application of Division to certain illustrations that are in
hardcopy form”.
Omit “copy” (wherever occurring), substitute
“reproduction”.
151 After Division 2
of Part VB
Insert:
(1) This Division applies in relation to the reproduction of a work
(including articles contained in periodical publications) or part of a work,
only if the reproduction is made from an electronic form of the work.
(2) For the purposes of this Division, a reference to a reproduction of a
work (including an article contained in a periodical publication), or a part of
a work, is to be read as a reference to a reproduction made from an electronic
form of the work or part.
(1) Subject to this section, copyright in a published literary or dramatic
work is not infringed by:
(a) the making of one or more reproductions of a part of the work;
or
(b) communicating a part of the work;
if the reproduction or communication is carried out on the premises of an
educational institution for the purposes of a course of study provided by
it.
(2) Subsection (1) does not apply to the reproduction or communication of
more than 1% of the total number of words in the work.
(3) If:
(a) a person makes, or causes to be made, a reproduction of a part of a
work or communicates a part of a work; and
(b) subsection (1) applies to the making of the reproduction or to the
communication;
that subsection does not apply to the making by, or on behalf of, that
person of a reproduction or to the communication by that person, of any other
part of that work within 14 days after the day on which the previous
reproduction or communication was made.
(4) If:
(a) a person communicates a part of a work by making the part available
online; and
(b) subsection (1) applies to the communication;
that subsection does not apply to the making available online by that
person of any other part of that work while the part previously made available
online continues to be so available.
(1) Subject to this section, the copyright in an article contained in a
periodical publication is not infringed by:
(a) the making of one or more reproductions of the whole or a part of the
article; or
(b) the communication of the whole or a part of the article;
by, or on behalf of, a body administering an educational institution
if:
(c) a remuneration notice given by, or on behalf of, the body to the
relevant collecting society is in force; and
(d) the reproduction or communication is carried out solely for the
educational purposes of the institution or of another educational institution;
and
(e) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each reproduction or
communication.
(2) This section does not apply in relation to the reproduction or
communication of, or of parts of, 2 or more articles contained in the same
periodical publication unless the articles relate to the same
subject-matter.
(1) Subject to this section, the copyright in a literary, dramatic,
musical or artistic work (other than an article contained in a periodical
publication) is not infringed by:
(a) the making of one or more reproductions of the whole or a part of the
work; or
(b) the communication of the whole or a part of the work;
by, or on behalf of, a body administering an educational institution
if:
(c) a remuneration notice given by, or on behalf of, the body to the
relevant collecting society is in force; and
(d) the reproduction or communication is carried out solely for the
educational purposes of the institution or of another educational institution;
and
(e) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each reproduction or
communication.
(2) This section does not apply in relation to the reproduction or
communication of:
(a) the whole, or of more than a reasonable portion of, a literary or
dramatic work; or
(b) the whole, or of more than 10% of, a musical work;
that has been separately published unless the person who makes the
reproduction or communication, or causes it to be made, for, or on behalf of,
the body is satisfied, after reasonable investigation, that the work is not
available in electronic form within a reasonable time at an ordinary commercial
price.
(3) If:
(a) a person communicates a part of a work by or on behalf of a body
administering an educational institution, by making the part available online;
and
(b) subsection (1) applies to the communication;
that subsection does not apply to the making available online by, or on
behalf of, that body of any other part of that work while the part previously
made available online continues to be so available.
(1) If an article or other literary, dramatic or musical work that is in
electronic form is accompanied by an artistic work or artistic works in
electronic form provided for the purpose of explaining or illustrating the
article or other work, the preceding sections of this Division apply as
if:
(a) where any of those sections provides that the copyright in the article
or other work is not infringed—the reference to that copyright included a
reference to any copyright in the artistic work or artistic works; and
(b) a reference to a reproduction or communication of an article or other
work included a reference to a reproduction or communication of the article or
other work together with a reproduction or communication of the artistic work or
artistic works; and
(c) a reference to a reproduction or communication of a part of an article
or other work included a reference to a reproduction or communication of that
part of the article or other work together with a reproduction or communication
of the artistic work or artistic works provided for the purpose of explaining or
illustrating that part.
(2) If:
(a) remuneration is paid under this Part in respect of:
(i) the reproduction or communication of the whole or part of an article
(other than a part that is an artistic work) contained in a periodical
publication; or
(ii) the reproduction or communication of the whole or part of a literary,
dramatic or musical work, other than an article contained in a periodical
publication; and
(b) the reproduction or communication is not an infringement of the
copyright in the article or work because of section 135ZMC or 135ZMD;
and
(c) the reproduction that is made or communicated includes an artistic
work or artistic works provided for the purpose of explaining or illustrating
the article or work;
the amount of the remuneration must be divided among the owner or owners of
the copyright in the artistic work or artistic works and the owner or owners of
the copyright in the article or other literary, dramatic or musical work or
works.
(3) The division of an amount of remuneration under subsection (2) is to
be carried out as agreed between the relevant copyright owners or, failing such
agreement, as determined by the Copyright Tribunal on application made by any of
them.
152 Division 3 of
Part VB (heading)
Repeal the heading, substitute:
Repeal the section, substitute:
The copyright in a published edition of a work (being a work in which
copyright does not subsist) is not infringed by the making of one or more
facsimile copies of the whole or a part of the edition if the copy, or each of
the copies, is made in the course of the making of a reproduction of the whole
or a part of the work by, or on behalf of, a body administering an institution
assisting persons with a print disability for use in the provision, whether by
institution or otherwise, or assistance to such persons.
After “making”, insert “or
communication”.
Note: The heading to section 135ZP is altered by omitting
“copying” and substituting “reproduction and
communication”.
After “is made”, insert “, or each communication is
carried out”.
Repeal the paragraph, substitute:
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each copy or communication.
Repeal the subsection, substitute:
(2) The copyright in a published literary or dramatic work is not
infringed by the making or communication by, or on behalf of, a body
administering an institution assisting persons with a print disability, of one
or more Braille versions, large-print versions, photographic versions or
electronic versions of the work or of a part of the work if:
(a) a remuneration notice given by, or on behalf of, the body to the
relevant collecting society is in force; and
(b) each version is made, or each communication is carried out, solely for
the purpose of the provision, whether by the institution or otherwise of
assistance to persons with a print disability; and
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to each version or communication.
Insert:
(6A) Subsection (2) does not apply to the making or communication of an
electronic version of the work, or of a part of the work, unless the person who
makes or communicates the version, or causes the version to be made, or
communicated, for, or on behalf of, a body administering an institution
assisting persons with a print disability is satisfied, after reasonable
investigation, that an electronic version of the work, being a version that has
been separately published, is not available within a reasonable time at an
ordinary commercial price.
159 Subsections
135ZQ(1) and (2)
Repeal the subsections, substitute:
(1) Subject to this section, the copyright in a published literary or
dramatic work is not infringed by the making by, or on behalf of, a body
administering an institution assisting persons with a print disability, of a
relevant reproduction or a relevant communication of the work, or of a part of
the work, if the reproduction or communication is made solely for use in the
making by, or on behalf of that body, of a reproduction or communication of the
work, or of a part of the work, under section 135ZP for a person with a print
disability.
(2) If:
(a) a relevant reproduction or a relevant communication of a work, or of a
part of a work, is made by, or on behalf of, a body administering an institution
assisting persons with a print disability; and
(b) the reproduction or communication is used otherwise than for use in
the making by, or on behalf of that body, of a reproduction or communication of
the work, or a part of the work, under section 135ZP for a person with a print
disability;
subsection (1) does not apply, and is taken to never have applied, to the
making of the relevant reproduction or relevant communication.
Note: The heading to section 135ZQ is altered by inserting
“and relevant communications” after “relevant
reproductions”.
After “embodying a sound recording”, insert “in analog
form”.
After “a relevant reproduction”, insert “in hardcopy
form”.
After “relevant reproduction” (wherever occurring), insert
“or relevant communication”.
After “reproduced”, insert “or
communicated”.
After “reproduction”, insert “or
communication”.
Repeal the subsection, substitute:
(5) In this section:
relevant communication, in relation to a work or part of a
work, means:
(a) the communication of a sound recording of the work, or part of the
work; or
(b) the communication of an electronic version of the work.
relevant reproduction, in relation to a work or part of a
work, means:
(a) a reproduction of the work, or part of the work; or
(b) a record embodying a sound recording of the work, or part of the work;
or
(c) a Braille version, a large-print version, a photographic version or an
electronic version of the work, or part of the work.
166 Division 4 of
Part VB (heading)
Repeal the heading, substitute:
Repeal the section, substitute:
The copyright in a published edition of a work (being a work in which
copyright does not subsist) is not infringed by the making of one or more
facsimile copies of the whole or a part of the edition in the course of making
one or more reproductions of the whole or a part of the work by, or on behalf
of, a body administering an institution assisting persons with an intellectual
disability for use in the provision, whether by the institution or otherwise, of
assistance to such persons.
After “the making”, insert “or
communication”.
Note: The heading to section 135ZS is altered by inserting
“and communication” after
“Copying”.
169 At the end of
paragraph 135ZS(1)(a)
Add “and”.
170 Paragraphs
135ZS(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) the copying or communication is carried out solely for the purpose of
use in the provision, whether by the institution or otherwise, of assistance to
persons with an intellectual disability; and
(c) the body complies with subsection 135ZX(1) or (3) or section 135ZXA,
as the case requires, in relation to the copy or communication.
After “the making”, insert “or
communication”.
Omit “makes the copy, or causes the copy to be made”,
substitute “makes the copy or communication, or causes the copy or
communication to be made”.
173 Paragraphs
135ZS(2)(c) and (d)
After “obtained”, insert “or is available
electronically”.
After “copy” (wherever occurring), insert “or
communication”.
Note: The heading to section 135ZT is replaced by the
heading “Making of copies etc. for use in making copies or
communications for a person with an intellectual
disability”.
After “copy” (wherever occurring), insert “or
communication”.
After “embodying a sound recording”, insert “in analog
form”.
After “a copy”, insert “, in hardcopy form or analog
form,”.
After “licensed copies”, insert “and licensed
communications”.
After “being copies”, insert “and
communications”.
Omit “or a sampling system”, substitute “, a sampling
system or an electronic use system”.
Insert:
(2A) An administering body may give either a records notice or a sampling
notice in respect of licensed copies made in hardcopy form or analog form, but
may only give an electronic use notice in respect of licensed copies made in
electronic form, or in respect of licensed communications.
Omit “A”, substitute “Subject to subsection (4),
a”.
183 At the end of
section 135ZU
Add:
(4) An electronic use notice remains in force, unless it is sooner
revoked, until the expiration of 12 months from the day on which it comes into
force.
Omit all the words after “sections”, substitute “135ZJ,
135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and 135ZS do not apply to any reproduction
or copy of a work or other subject-matter made during that period by, or on
behalf of, the administering body, being a reproduction or copy to which the
sampling notice applies”.
Insert:
(1) If an electronic use notice is given by, or on behalf of, an
administering body, the amount of equitable remuneration payable to the relevant
collecting society by the administering body for licensed copies and licensed
communications made by it, or on its behalf, while the notice is in force is an
amount (whether an amount per year or otherwise) determined by agreement between
the administering body and the collecting society or, failing such agreement, by
the Copyright Tribunal on application made by either of them.
(2) The matters and processes constituting an electronic use system, and
any matters that are necessary or convenient to be assessed or taken into
account for the purposes of the system, must be determined by agreement between
the administering body and the relevant collecting society or, failing such
agreement, by the Copyright Tribunal on application made by either of
them.
(3) If:
(a) an electronic use notice is given by, or on behalf of, an
administering body to a collecting society; and
(b) during any period the administering body does not comply with one or
more of the requirements of the electronic use system determined under this
section in relation to the notice;
sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and 135ZS do not apply
to any reproduction, copy or communication of a work or other subject-matter
made during that period, or on behalf of, the administering body, being a
reproduction, copy or communication to which the electronic use notice
applies.
After “to a collecting society”, insert “in respect of
licensed copies made in hardcopy form or analog form”.
Note: The heading to section 135ZX is replaced by the
heading “Records notices and sampling notices: marking and
record-keeping requirements”.
187 Paragraphs
135ZX(1)(a) and (b)
After “each”, insert “such”.
Repeal the subsection, substitute:
(3) If a sampling notice is given by, or on behalf of, an administering
body to a collecting society in respect of licensed copies made in hardcopy form
or analog form, the administering body must mark, or cause to be marked, in
accordance with the regulations, each such licensed copy made by it, or on its
behalf, while the notice is in force, or any container in which such a copy is
kept.
Insert:
If an electronic use notice is given by, or on behalf of, an
administering body to a collecting society, in respect of licensed copies made
in electronic form or licensed communications, the administering body
must:
(a) give a notice, in accordance with the regulations, in relation to each
such copy or communication made by it, or on its behalf, while the electronic
use notice is in force, containing:
(i) statements to the effect that the copy or communication has been made
under this Part and that any work or other subject-matter contained in the copy
or communication is subject to copyright protection under this Act;
and
(ii) such other information or particulars (if any) as are prescribed;
and
(b) in the case of each such communication made by it, or on its behalf,
while the electronic use notice is in force—take all reasonable steps to
ensure that the communication can only be received or accessed by persons
entitled to receive or access it (for example, teachers or persons receiving
educational instruction or other assistance provided by the relevant
institution); and
(c) comply with such other requirements (if any) as are prescribed in
relation to each such copy or communication made by it, or on its behalf, while
the electronic use notice is in force.
After “licensed copying”, insert “or licensed
communication”.
After “licensed copies”, insert “or licensed
communications”.
Omit “or 135ZW, as the case may be, for licensed copies”,
substitute “, 135ZW or 135ZWA, as the case may be, for licensed copies or
licensed communications”.
193 Subparagraph
135ZZB(3)(d)(i)
Omit “135ZW”, substitute “, 135ZW or
135ZWA”.
Omit “copies”, substitute “a copy or
communication”.
Repeal the subsection, substitute:
(2) Nothing in this Part affects the right of the owner of the copyright
in a work to grant a licence authorising the body administering an institution
assisting persons with a print disability to do any of the following without
infringement of that copyright:
(a) make, or cause to be made, a sound recording of, or a Braille,
large-print, photographic or electronic version of, the whole or a part of the
work;
(b) communicate, or cause to be communicated, the whole or a part of the
work.
After “copy”, insert “or communication”.
After “copy” (wherever occurring), insert “or
communication”.
198 Subsection 135ZZH(1)
Omit all the words after “made”, substitute “or
communicated, the prescribed provision does not apply, and is taken never to
have applied, to the making or communication of the copy, record or
version”.
After “135ZL(1),”, insert “135ZMB(1), 135ZMC(1),
135ZMD(1),”.
Insert:
In this Part:
collecting society means a body that is, for the time being,
declared to be a collecting society under section 135ZZS.
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.
free-to-air broadcast means a broadcast delivered by a
national broadcasting service, commercial broadcasting service or community
broadcasting service within the meaning of the Broadcasting Services Act
1992.
notice holder means the person who is, for the time being,
appointed to be the notice holder under section 135ZZW.
relevant collecting society, in relation to a remuneration
notice, means a collecting society for owners of copyright of 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.
remuneration notice means a notice referred to in section
135ZZL.
retransmitter means a person who makes a retransmission of a
free-to-air broadcast.
rules, in relation to a collecting society, means the
provisions of the memorandum and articles of association of the
society.
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.
(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.
(1) A retransmitter may, by notice in writing given to the relevant
collecting society by, or on behalf of, the retransmitter, undertake to pay
equitable remuneration to the society for retransmissions of free-to-air
broadcasts by specified broadcasters, being retransmissions made by, or on
behalf of, the retransmitter while the notice is in force.
(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.
(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.
(1) If a remuneration notice is given to a collecting society by, or on
behalf of, a retransmitter, the retransmitter must establish and maintain a
record system.
(2) The record system must provide for a record to be kept of 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.
(1) If a remuneration notice is or has been in force, the collecting
society to which it was given may, in writing, notify the relevant retransmitter
that the society wishes, on a day specified in the notice, being an ordinary
working day of the retransmitter specified in the notice, not earlier than 7
days after the day on which the notice is given, to do such of the following
things as are specified in the notice:
(a) assess the number of retransmissions carried out at the premises of
the retransmitter;
(b) inspect all the relevant records held at those premises that relate to
the making of retransmissions in reliance on section 135ZZK;
(c) inspect such other records held at those premises as are relevant to
the assessment of the amount of equitable remuneration payable by the
retransmitter to the society.
(2) Subject to section 135ZZQ, if a collecting society gives a notice, a
person authorised in writing by the society may, during the ordinary working
hours of the retransmitter on the day specified in the notice (but not before 10
am or after 3 pm), carry out the assessment, or inspect the records, to which
the notice relates and, for that purpose, may enter the premises of the
retransmitter.
(3) A retransmitter must take all reasonable precautions, and exercise
reasonable diligence, to ensure that a person referred to in subsection (2) who
attends the premises of the retransmitter for the purpose of exercising the
powers conferred by that subsection is provided with all reasonable and
necessary facilities and assistance for the effective exercise of those
powers.
(4) A retransmitter who contravenes subsection (3) is guilty of an offence
punishable, on conviction, by a fine not exceeding 10 penalty units.
Note: A corporation may be fined up to 5 times the amount of
the maximum fine. See subsection 4B(3) of the Crimes Act
1914.
(1) The chief executive officer (however described) of a collecting
society must issue an identity card in the prescribed form to each person
authorised by the society for the purposes of subsection 135ZZP(2). The identity
card must contain a recent photograph of the authorised person.
(2) If an authorised person who attends or enters premises for the purpose
of exercising powers conferred by subsection 135ZZP(2) fails to produce his or
her identity card when asked to do so by a person apparently in charge of the
premises, the authorised person must not enter or remain on the premises or
exercise any other powers under subsection 135ZZP(2) at the premises.
(3) A person is guilty of an offence punishable on conviction by a fine
not exceeding 1 penalty unit if:
(a) the person has been issued with an identity card; and
(b) the person stops being an authorised person; and
(c) the person does not, immediately after he or she stops being an
authorised person, return the identity card to the relevant collecting
society.
(4) An authorised person must carry his or her identity card at all times
when exercising powers under subsection 135ZZP(2).
A remuneration notice may be revoked at any time by the relevant
retransmitter by notice in writing given to the collecting society to which the
remuneration notice was given, and the revocation takes effect at the end of 3
months after the date of the notice, or on such later day as is specified in
it.
(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.
(1) Subject to this section, the Attorney-General may, by notice in the
Gazette, declare the body named in the notice to be the collecting
society for all relevant copyright owners, or for such classes of relevant
copyright owners as are specified in the notice.
(2) Where the Attorney-General declares a body to be the collecting
society for a specified class of copyright owners and subsequently declares
another body to be the collecting society for that class of copyright
owners:
(a) the first-mentioned collecting society ceases to be the collecting
society for that class of copyright owners on the day on which the subsequent
declaration is made; and
(b) any remuneration notice given to that collecting society ceases to be
in force to the extent to which it relates to relevant copyright owners included
in that class of copyright owners.
(3) The Attorney-General 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 Attorney-General has declared a body to be the collecting
society for a specified class of copyright owners, the Attorney-General may
refuse to declare another body to be the collecting society for that class of
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.
The Attorney-General may, by notice in the Gazette, revoke the
declaration of a body as a collecting society if satisfied that the
body:
(a) is not functioning adequately as a collecting society; 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.
(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 Attorney-General.
(2) The Attorney-General must cause a copy of the report sent to the
Attorney-General under subsection (1) to be laid before each House of the
Parliament within 15 sitting days of that House after the receipt of the report
by the Attorney-General.
(3) A collecting society 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 Attorney-General 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.
A collecting society must, within 21 days after it alters its rules, send
a copy of the rules as so altered to the Attorney-General, together with a
statement setting out the effect of the alteration and the reasons why it was
made.
The Attorney-General may, by notice in the Gazette, appoint a
person to be the notice holder for the purposes of this Division.
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.
(1) A retransmitter may at any time before the declaration of the first
collecting society, by notice in writing given to the notice holder by, or on
behalf of, the retransmitter, undertake to pay equitable remuneration to a
collecting society, when it is declared, for retransmissions made by, or on
behalf of, the retransmitter while the notice is in force.
(2) A notice must specify that the amount of equitable remuneration is to
be assessed on the basis of the records to be kept by the retransmitter under
section 135ZZN.
(3) A notice comes into force on the day on which it is given to the
notice holder, or on such later day as is specified in the notice, and remains
in force until it is revoked.
(4) A notice may be revoked at any time by the retransmitter by notice in
writing given to the notice holder, and the revocation takes effect on the date
of the notice of revocation or on such later date as is specified in
it.
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.
(1) If:
(a) as a result of the declaration of one or more collecting societies,
there is a society for all relevant copyright owners; and
(b) a notice under section 135ZZZ was in force immediately before the day
on which the declaration came into force;
then, on and after that day, the notice ceases to have effect as such a
notice, but is taken, for the purposes of this Part, to be a remuneration notice
that:
(c) was given by the relevant retransmitter to the collecting society, or
to each of the collecting societies, as the case may be; and
(d) came into force on the same day as the notice came into
force.
(2) If:
(a) one or more collecting societies are declared for one or more, but not
for all, classes of relevant copyright owners; and
(b) a notice was in force immediately before the day on which the
declaration came into force;
then, on and after that day:
(c) the notice ceases to have effect as such a notice in relation to the
relevant copyright owners in the class or classes of copyright owners for whom a
collecting society is declared, but is taken, for the purposes of this Part, to
be a remuneration notice that:
(i) was given by the relevant retransmitter to the collecting society or
to each of the collecting societies, as the case may be; and
(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.
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.
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.
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.
201 Subsection
136(1) (paragraphs (a) and (b) of the definition of
licence)
Repeal the paragraphs, substitute:
(a) in the case of a literary, dramatic or musical work—a licence to
perform the work or an adaptation of the work in public, to broadcast the work
or an adaptation of the work or to make a sound recording or cinematograph film
of the work or an adaptation of the work for the purposes of broadcasting the
work or adaptation; or
(b) in the case of a sound recording—a licence to cause the
recording to be heard in public, to make a copy of the sound recording for the
purposes of broadcasting the recording, or to broadcast the recording in a
broadcast transmitted for a fee payable to the person who made the
broadcast.
202 Subsection
152(1) (paragraph (c) of the definition of
broadcaster)
Omit “1992; or”, substitute
“1992.”.
203 Subsection
152(1) (paragraph (d) of the definition of
broadcaster)
Repeal the paragraph.
204 After section 153B
Insert:
(1) The parties to an application to the Tribunal under subsection
135ZME(3) for the determination of the division of an amount of remuneration are
the relevant copyright owners.
(2) If an application is made to the Tribunal for a determination under
subsection 135ZME(3), the Tribunal must consider the application and, after
giving the parties to the application an opportunity to present their cases,
must make an order determining the division of the amount to which the
application relates between the parties in such manner as it thinks
equitable.
(3) In making an order, the Tribunal may has regard to such matters (if
any) as are prescribed.
After “135ZW(1)”, insert “or 135ZWA(1)”.
Note: The heading to section 153C is replaced by the heading
“Applications to the Tribunal under section 135ZZV or subsection
135ZW(1) or 135ZWA(1)”.
After “copies”, insert “or licensed
communications”.
After “135ZW(1)”, insert “or 135ZWA(1)”.
208 At the end of
subsection 153C(2)
Add “or licensed communication”.
Repeal the subsection, substitute:
(5) In this section:
administering body, collecting society,
institution, licensed communication and
licensed copy have the same meanings as in Part VB.
Insert:
(1) The parties to an application to the Tribunal under subsection
135ZWA(2) for the determination of an electronic use system to be used in
relation to licensed copies or licensed communications made by, or on behalf of,
an administering body, or any other relevant matters, are the relevant
collecting society and the body.
(2) If an application is made to the Tribunal for a determination under
subsection 135ZWA(2), the Tribunal must consider the application and, after
giving the parties to the application an opportunity to present their cases,
must make an order determining the matter that is the subject of the
application.
(3) In making an order, the Tribunal may have regard to such matters (if
any) as are prescribed.
(4) In this section:
administering body, collecting society,
institution, licensed communication and
licensed copy have the same meanings as in Part VB.
Insert:
(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, free-to-air
broadcast and retransmitter have the same meanings as in
Part VC.
(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.
(3) In this section, collecting society and
retransmitter have the same meanings as in Part VC.
Omit “copying”, substitute “reproduction, copying or
communication”.
Omit “, by a person authorised to make the broadcasts by a class
licence determined by that Authority under that Act or by a person prescribed
for the purposes of subparagraph 91(a)(iii) or 91(c)(iii)”, substitute
“or by a person authorised to make the broadcast by a class licence
determined by that Authority under that Act”.
Repeal the subsection.
Omit “either of the last two preceding subsections, the person
causing the cinematograph film to be seen or heard, or the work, adaptation or
cinematograph film to be transmitted, as the case may be, infringed the
copyright concerned”, substitute “subsection (3), the person causing
the cinematograph film to be seen or heard infringed the copyright in the
film”.
Repeal the subsection, substitute:
(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.
Repeal the subsection, substitute:
(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 Broadcasting 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.
Omit “copy” (wherever occurring), substitute
“reproduction”.
Omit “copy”, substitute “reproduction”.
Repeal the subsection, substitute:
(5) For the purposes of subsections (1) and (2):
(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) those subsections apply 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:
(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) those subsections apply 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.
221 Subsections
203H(6) and (7)
Omit “copy” (wherever occurring), substitute
“reproduction”.
Repeal the subsection, substitute:
(10) In this section:
reproduction, in relation to a work, or part of a work,
includes a microform copy, a Braille version, a large print version, or a
photographic version of the work, or of the part of the work.
223 Paragraphs
246(3)(b) and (c)
Repeal the paragraphs, substitute:
(b) the exclusive right to communicate the work or an adaptation of the
work to the public.
224 Subsection 248A(1) (definition of
indirect)
Omit all the words after “the performance”.
225 Section 248E
Repeal the section.
226 Paragraphs 248G(1)(a), (b) and
(c)
Repeal the paragraphs, substitute:
(a) makes a direct or indirect recording of the performance; or
(b) broadcasts or re-broadcasts the performance, either directly from the
live performance or from an unauthorised recording of it.
227 Subsection 248G(3)
Omit “, or causes an authorised recording of a performance to be
transmitted to subscribers to a diffusion service,”.
228 Subsection 248P(4)
Repeal the subsection.
229 Subsection 248P(7A)
Omit “(4),”.
230 Subsection 248P(8)
Repeal the subsection, substitute:
(8) A person who broadcasts or re-broadcasts an authorised recording of a
performance without the authority of the performer does not, by doing so,
contravene subsection (3).
1 Definitions
In this Schedule:
broadcasting right, in relation to a work or other
subject-matter, means the exclusive right under the Copyright Act to broadcast
the work or other subject-matter.
cable transmission right, in relation to a work or other
subject-matter, means the exclusive right under the Copyright Act to cause the
work or other subject-matter, or a television program that includes it, to be
transmitted to subscribers to a diffusion service.
commencing day means the day on which this Act
commences.
Copyright Act means the Copyright Act 1968, as in
force immediately before the commencing day.
2 Application of communication
right
Subject to this Schedule, on and after the commencing day:
(a) the exclusive right to communicate a work or other subject-matter to
the public under the Copyright Act as amended by this Act applies in relation to
all works and other subject-matter (other than published editions of works) in
which copyright subsisted immediately before the commencing day; and
(b) the Copyright Act as so amended applies to all such works and other
subject-matter in the same way as it applies in relation to an original work or
other subject-matter made on or after that day.
3 Assignments and licences
(1) A licence, contract or arrangement (other than an assignment of
copyright) that was in force immediately before the commencing day continues to
have effect on and after that day in so far as it relates to the broadcasting
right or cable transmission right in a work or other subject-matter, but subject
to any contrary intention appearing in it, as if the Copyright Act had not been
amended by this Act, and the Copyright Act applies in relation to the licence,
contract or arrangement accordingly.
(2) Item 2 of this Schedule does not apply in relation to a broadcasting
right or cable transmission right in a work or other subject-matter that was
assigned before the commencing day.