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COPYRIGHT ACT 1968 - SECT 248A

Interpretation

             (1)  In this Part:

20-year protection period of a performance means the period:

                     (a)  beginning on the day when the performance was given; and

                     (b)  ending at the end of 20 calendar years after the calendar year in which the performance was given.

50-year protection period of a performance means the period:

                     (a)  beginning on the day when the performance was given; and

                     (b)  ending at the end of 50 calendar years after the calendar year in which the performance was given.

"action " means a proceeding of a civil nature between parties and includes a counterclaim.

"authorised " , in relation to a recording of a performance, means made with the authority of the performer.

"cinematograph film " includes an article in which visual images are embodied and which is capable of being used to show those images as a moving picture, and a sound-track associated with those images.

"direct " , in relation to a sound recording or cinematograph film of a performance, means made directly from the live performance.

"exempt recording " means:

                     (a)  an indirect cinematograph film of a performance, being a film made solely for the purpose of the private and domestic use of the person who made it; or

                  (aaa)  an indirect cinematograph film or sound recording of a performance, being a film or recording that:

                              (i)  is made from a communication that is a broadcast of the performance; and

                             (ii)  is made in domestic premises; and

                            (iii)  is made solely for private and domestic use by watching or listening to the performance at a time more convenient than the time when the broadcast is made; or

                    (aa)  an indirect sound recording of a performance, being a recording that is a fair dealing with the performance for the purpose of research or study; or

                     (b)  an indirect cinematograph film of a performance, being a film made solely for the purpose of use in scientific research; or

                     (c)  an indirect cinematograph film of a performance, being a film made by, or on behalf of, the body administering an educational institution solely for the educational purposes of that institution or of another educational institution; or

                     (d)  an indirect cinematograph film of a performance, being a film made by, or on behalf of, the body administering an institution assisting persons with a print disability solely for the purpose of the provision, whether by the institution or otherwise, of assistance to persons with a print disability; or

                     (e)  an indirect cinematograph film of a performance, being a film made by, or on behalf of, the body administering an institution assisting persons with an intellectual disability solely for the purpose of the provision, whether by the institution or otherwise, of assistance to persons with an intellectual disability; or

                      (f)  a direct or indirect cinematograph film of a performance made:

                              (i)  for the purpose of, or associated with, the reporting of news or current affairs; or

                             (ii)  for the purpose of criticism or review; or

                    (fa)  a direct or indirect sound recording of a performance, being a recording that is a fair dealing with the performance:

                              (i)  for the purpose of criticism or review, whether of that performance or another performance; or

                             (ii)  for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical; or

                            (iii)  for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film; or

                     (g)  a direct or indirect sound recording or cinematograph film of a performance made solely for the purpose of a judicial proceeding or the giving of professional advice by a legal practitioner; or

                     (h)  a direct sound recording or cinematograph film of a performance made by a broadcaster who has the authority of the performer to broadcast the performance, being a recording or film made solely for the purpose of making that broadcast; or

                      (j)  a direct or indirect sound recording or cinematograph film of a performance made by a person who reasonably believes, due to a fraudulent or innocent misrepresentation made to the person, that the performer has authorised the making of the recording or film by the person; or

                    (ja)  a copy of a sound recording referred to in paragraph (aa), (fa) or (g), being a copy made solely for a purpose referred to in any of those paragraphs; or

                     (k)  a copy of a cinematograph film referred to in paragraph (a), (b), (c), (d), (e), (f) or (g), being a copy made solely for a purpose referred to in any of those paragraphs; or

                    (m)  a copy of a sound recording or cinematograph film referred to in paragraph (h), being a copy made solely for the purpose referred to in that paragraph; or

                     (n)  a copy of a sound recording or cinematograph film referred to in paragraph (j), being a copy made:

                              (i)  by a person who believes, due to a fraudulent or innocent representation made to the person, that the performer has authorised the making of the copy; or

                            (ia)  if the copy is of a sound recording--solely for a purpose referred to in paragraph (aa), (fa) or (g); or

                             (ii)  if the copy is of a cinematograph film--solely for a purpose referred to in paragraph (a), (b), (c), (d), (e), (f) or (g); or

                     (p)  a copy of an authorised recording of a performance, other than a copy of an authorised sound recording where the copy was made for use in a sound-track but the making of the sound recording was not authorised for the purpose of use in a sound-track.

"indirect " , in relation to a sound recording or cinematograph film of a performance, means made from a communication of the performance.

"performance " means:

                     (a)  a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

                     (b)  a performance (including an improvisation) of a musical work or part of such a work; or

                     (c)  the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

                     (d)  a performance of a dance; or

                     (e)  a performance of a circus act or a variety act or any similar presentation or show; or

                      (f)  a performance of an expression of folklore;

being a live performance:

                     (g)  that is given in Australia, whether in the presence of an audience or otherwise; or

                     (h)  that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise.

"performer " , in relation to a performance that is given outside Australia, does not include a person who is not a qualified person at the time of the performance.

"protection period " , in relation to a performance, has the meaning given by section 248CA.

"qualified person " means an Australian citizen or a person resident in Australia.

"recording " means a sound recording or cinematograph film, other than an exempt recording.

"sound recording " includes an article in which sounds are embodied.

"unauthorised " , in relation to a recording of a performance, means made without the authority of the performer.

"unauthorised use " has the meaning given by section 248G.

          (1A)  For the purposes of paragraph (aa) of the definition of exempt recording , in determining whether a recording is a fair dealing with a performance for the purpose of research or study, regard must be had to the following matters:

                     (a)  the purpose and character of the recording;

                     (b)  the nature of the performance;

                     (c)  the possibility of obtaining an authorised recording of the performance within a reasonable time at an ordinary commercial price;

                     (d)  the effect of the recording upon the potential market for, or the value of, authorised recordings of the performance;

                     (e)  if only part of the performance is recorded--the amount and substantiality of the part recorded when compared to the whole performance.

             (2)  The following shall be taken not to be performances for the purposes of this Part:

                     (a)  a performance referred to in subsection 28(1);

                     (b)  a reading, recital or delivery of any item of news and information;

                     (c)  a performance of a sporting activity; or

                     (d)  a participation in a performance as a member of an audience.

             (3)  In this Part:

                     (a)  a reference to the doing of an act in relation to a performance includes a reference to the doing of that act in relation to a substantial part of the performance;

                     (b)  a reference to the doing of an act in relation to a performance, or a recording of a performance, with the authority of the performer is, in the case of 2 or more performers, a reference to the doing of the act where each of the performers has authorised the doing of the act;

                     (c)  a reference to the doing of an act in relation to a performance, or a recording of a performance, without the authority of the performer is, in the case of 2 or more performers, a reference to the doing of the act where at least one of the performers has not authorised the doing of the act; and

                     (d)  a reference to a sound-track is a reference to a sound-track associated with visual images forming part of a cinematograph film.



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