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COPYRIGHT ACT 1968 - SECT 116AO

Manufacturing etc. a circumvention device for a technological protection measure

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

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

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

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

                            (iii)  distributes it to another person;

                            (iv)  offers it to the public;

                             (v)  provides it to another person;

                            (vi)  communicates it to another person; and

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

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

Exception - no promotion, advertising etc.

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

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

                     (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).



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