COPYRIGHT ACT 1968 - SECT 116AO Manufacturing etc. a circumvention device for a technological protection measure

COPYRIGHT ACT 1968 - SECT 116AO

  (1)   An owner or exclusive licensee of the copyright in a work or other subject - matter may bring an action against a person if:

  (a)   the person does any of the following acts with a device:

  (i)   manufactures it with the intention of providing it to another person;

  (ii)   imports it into Australia with the intention of providing it to another person;

  (iii)   distributes it to another person;

  (iv)   offers it to the public;

  (v)   provides it to another person;

  (vi)   communicates it to another person; and

  (b)   the person knows, or ought reasonably to know, that the device is a circumvention device for a technological protection measure; and

  (c)   the work or other subject - matter is protected by the technological protection measure.

Exception - no promotion, advertising etc.

  (2)   Subsection   (1) does not apply to the person if:

  (a)   the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

  (b)   both of the following apply:

  (i)   the person did not do such promoting, advertising or marketing;

  (ii)   the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

Exception--interoperability

  (3)   Subsection   (1) does not apply to the person if:

  (a)   the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and

  (b)   the act:

  (i)   relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and

  (ii)   will not infringe the copyright in the original program; and

  (iia)   relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

  (iii)   will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

Exception--encryption research

  (4)   Subsection   (1) does not apply to the person if:

  (a)   the technological protection measure is an access control technological protection measure; and

  (b)   the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and

  (c)   the act:

  (i)   relates to a copy of a work or other subject - matter that is not an infringing copy and that was lawfully obtained; and

  (ii)   will not infringe the copyright in the work or other subject - matter; and

  (iii)   will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

  (d)   the researcher is:

  (i)   engaged in a course of study at an educational institution in the field of encryption technology; or

  (ii)   employed, trained or experienced in the field of encryption technology; and

  (e)   the researcher:

  (i)   has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

  (ii)   has made, or will make, a good faith effort to obtain such permission.

In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.

Exception--computer security testing

  (5)   Subsection   (1) does not apply to the person if:

  (a)   the technological protection measure is an access control technological protection measure; and

  (b)   the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and

  (c)   the act:

  (i)   relates to a copy of a computer program that is not an infringing copy; and

  (ii)   will not infringe the copyright in the computer program; and

  (iii)   will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

  (iv)   will be done with the permission of the owner of the computer, computer system or computer network.

Exception--law enforcement and national security

  (6)   Subsection   (1) does not apply in relation to anything lawfully done for the purposes of:

  (a)   law enforcement; or

  (b)   national security; or

  (c)   performing a statutory function, power or duty;

by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.

Burden of proof

  (7)   The defendant bears the burden of establishing the matters referred to in subsections   (2) to (6).