Commonwealth Numbered Acts Commonwealth Numbered Acts1 At the end of section 49
Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.
2 At the end of section 50
Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.
3 At the end of subsection 51A(4)
Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.
4 At the end of subsection 110B(3)
Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.
5 Subsection 126B(8)
Repeal the subsection.
6 Section 132
Repeal the section, substitute:
In this Division:
"article" includes a reproduction or copy of a work or other subject-matter, being a reproduction or copy in electronic form.
"copyright material" means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast; or
(f) a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.
"distribute" , except in Subdivision E, includes distribute by way of communication.
"place of public entertainment" includes premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment.
"profit" does not include any advantage, benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated with, the person's private or domestic use of any copyright material.
132AB Geographical application
(1) Subdivisions B, C, D, E and F apply only to acts done in Australia.
(2) This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code .
Subdivision B -- Substantial infringement on a commercial scale
132AC Commercial‑scale infringement prejudicing copyright owner
Indictable offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial scale.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright and the person is negligent as to that fact; and
(d) the infringement or infringements occur on a commercial scale and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Determining whether infringements occur on commercial scale
(5) In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (1)(d) or (3)(d), the following matters are to be taken into account:
(a) the volume and value of any articles that are infringing copies that constitute the infringement or infringements;
(b) any other relevant matter.
Defence relating to law enforcement and national security
(6) This section does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).
Defence for certain public institutions etc.
(7) This section does not apply in respect of anything lawfully done by the following in performing their functions:
(a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial broadcaster, including:
(i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992 ; and
(ii) a body that holds a community broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
Subdivision C -- Infringing copies
132AD Making infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person makes an article, with the intention of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter when the article is made.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person makes an article, with the intention of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter when the article is made and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes an article in preparation for, or in the course of:
(i) selling it; or
(ii) letting it for hire; or
(iii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter when the article is made.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AE Selling or hiring out infringing copy
Indictable offence
(1) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the sale or letting.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the sale or letting and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person sells an article or lets an article for hire; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the sale or letting.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AF Offering infringing copy for sale or hire
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade offers or exposes an article for sale or hire; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
(2) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade offers or exposes an article for sale or hire; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offences
(7) A person commits an offence if:
(a) the person by way of trade offers or exposes an article for sale or hire; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person offers or exposes an article for sale or hire, in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AG Exhibiting infringing copy in public commercially
Indictable offences
(1) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition.
(2) A person commits an offence if:
(a) the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offences
(7) A person commits an offence if:
(a) the person by way of trade exhibits an article in public; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(8) A person commits an offence if:
(a) the person exhibits an article in public in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(9) Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AH Importing infringing copy commercially
Indictable offence
(1) A person commits an offence if:
(a) the person imports an article into Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the import.
(2) An offence against this section is punishable on conviction by a fine of not more than 650 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person imports an article into Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the import and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person imports an article into Australia in preparation for, or in the course of, doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the import.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AI Distributing infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person distributes an article, with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the distribution.
(2) A person commits an offence if:
(a) the person distributes an article; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the distribution; and
(d) the extent of the distribution affects prejudicially the owner of the copyright.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4) A person commits an offence if:
(a) the person distributes an article, with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person distributes an article; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact; and
(d) the extent of the distribution affects prejudicially the owner of the copyright and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes an article in preparation for, or in the course of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the distribution.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AJ Possessing infringing copy for commerce
Indictable offence
(1) A person commits an offence if:
(a) the person possesses an article, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the possession.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3) A person commits an offence if:
(a) the person possesses an article, with the intention of doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c) copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses an article in preparation for, or in the course of, doing any of the following with the article:
(i) selling it;
(ii) letting it for hire;
(iii) by way of trade offering or exposing it for sale or hire;
(iv) offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v) distributing it for trade;
(vi) distributing it to obtain a commercial advantage or profit;
(vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii) by way of trade exhibiting it in public;
(ix) exhibiting it in public to obtain a commercial advantage or profit; and
(b) the article is an infringing copy of a work or other subject‑matter; and
(c) copyright subsists in the work or other subject‑matter at the time of the possession.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AK Aggravated offence--work etc. converted to digital form
(1) An indictable offence against a provision (the basic offence provision ) of this Subdivision (except sections 132AL and 132AM) relating to an infringing copy is an aggravated offence if the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.
(2) An aggravated offence is punishable on conviction by a fine of not more than 850 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
(3) To prove an aggravated offence, the prosecution must prove that the defendant was reckless with respect to the circumstance that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.
Note: The prosecution must also prove all the physical and fault elements of the offence against the basic offence provision.
(4) If the prosecution intends to prove an aggravated offence, the charge must allege that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.
132AL Making or possessing device for making infringing copy
Indictable offences
(1) A person commits an offence if:
(a) the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and
(b) copyright subsists in the work or other subject‑matter at the time of the making of the device.
(2) A person commits an offence if:
(a) the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and
(b) copyright subsists in the work or other subject‑matter at the time of the possession.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offences
(4) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for copying a work or other subject‑matter; and
(c) the copy will be an infringing copy and the person is negligent as to that fact; and
(d) copyright subsists in the work or other subject‑matter at the time of the making of the device and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person possesses a device; and
(b) the device is to be used for copying a work or other subject‑matter; and
(c) the copy will be an infringing copy and the person is negligent as to that fact; and
(d) copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) To avoid doubt, recklessness is the fault element for the circumstance in paragraphs (4)(b) and (5)(b) that the device is to be used for copying a work or other subject‑matter.
(7) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(8) A person commits an offence if:
(a) the person makes a device; and
(b) the device is to be used for copying a work or other subject‑matter; and
(c) the copy will be an infringing copy; and
(d) copyright subsists in the work or other subject‑matter at the time of the making of the device.
Penalty: 60 penalty units.
(10) Subsection (8) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
No need to prove which work etc. is to be copied
(11) In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device.
132AM Advertising supply of infringing copy
Summary offence
(1) A person commits an offence if:
(a) the person, by any means, publishes, or causes to be published, an advertisement for the supply in Australia of a copy (whether from within or outside Australia) of a work or other subject‑matter; and
(b) the copy is, or will be, an infringing copy.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Location of supply of copy by communication resulting in creation of copy
(2) For the purposes of this section, a communication of a work or other subject‑matter that, when received and recorded, will result in the creation of a copy of the work or other subject‑matter is taken to constitute the supply of a copy of the work or other subject‑matter at the place where the copy will be created.
Subdivision D -- Airing of works, sound recordings and films
132AN Causing work to be performed publicly
Indictable offence
(1) A person commits an offence if:
(a) the person causes a literary, dramatic or musical work to be performed; and
(b) the performance is in public at a place of public entertainment; and
(c) the performance infringes copyright in the work.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person causes a literary, dramatic or musical work to be performed; and
(b) the performance is in public at a place of public entertainment; and
(c) the performance infringes copyright in the work and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
132AO Causing recording or film to be heard or seen in public
Indictable offence
(1) A person commits an offence if:
(a) the person causes:
(i) a sound recording to be heard; or
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public entertainment; and
(c) causing the hearing or seeing infringes copyright in the recording or film.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person causes:
(i) a sound recording to be heard; or
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public entertainment; and
(c) causing the hearing or seeing infringes copyright in the recording or film and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person causes:
(ii) images from a cinematograph film to be seen; or
(iii) sound from a cinematograph film to be heard; and
(b) the hearing or seeing occurs in public at a place of public entertainment; and
(c) causing the hearing or seeing infringes copyright in the recording or film.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Subdivision F -- Electronic rights management information
132AQ Removing or altering electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii) the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii) the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii) the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;
(iii) communicates a copy of the work or subject‑matter to the public; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e) the person knows that the information has been removed or altered without that permission; and
(f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;
(iii) communicates a copy of the work or subject‑matter to the public; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter in preparation for, or in the course of, trading or for obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject‑matter into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;
(iii) communicates a copy of the work or subject‑matter to the public; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
132AS Distributing or importing electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e) the person knows that the information has been removed or altered without that permission; and
(f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) copyright subsists in a work or other subject‑matter; and
(b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(c) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii) the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Law enforcement and national security
(1) This Subdivision does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
(a) the Commonwealth or a State or Territory; or
(b) an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code ).
Certain public institutions etc.
(2) This Subdivision does not apply in respect of anything lawfully done by the following in performing their functions:
(a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b) a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii) subsection 10(4);
(c) an educational institution;
(d) a public non‑commercial broadcaster, including:
(i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992 ; and
(ii) a body that holds a community broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
132AU Prosecution to prove profit
(1) This section applies if, in the prosecution of an offence against this Division, either of the following questions is relevant:
(a) whether the defendant intended to obtain a profit;
(b) whether the defendant did something for, in preparation for, or in the course of, obtaining a profit.
(2) The burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.
Note: For the purposes of this Division, section 132AA defines profit as not including any advantage, benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated with, the person's private or domestic use of any copyright material.
7 Subsection 132A(1)
Omit "section 132", substitute "this Division, except section 132AM,".
8 Sections 133 and 133A
Repeal the sections, substitute:
Subdivision H -- Extra court orders
133 Destruction or delivery up of infringing copies etc.
(1) This section applies if:
(a) a person is charged before a court with an offence against this Division, except section 132AM, whether or not the person is convicted of the offence; and
(b) the person possesses an article that appears to the court to be any of the following:
(i) a circumvention device used or intended to be used in conduct constituting an offence against Subdivision E;
(ii) an infringing copy;
(iii) a device or equipment used or intended to be used for making infringing copies.
(2) The court may order that the article be destroyed, delivered up to the owner of the copyright concerned or dealt with as the court thinks fit.
Subdivision I -- Procedure and jurisdiction
133A Courts in which offences may be prosecuted
(1) Prosecutions for offences against this Division may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.
(2) However, the Federal Court of Australia does not have jurisdiction to hear or determine prosecutions for indictable offences, despite section 15C of the Acts Interpretation Act 1901 .
(3) The Federal Court of Australia has jurisdiction to hear and determine prosecutions of the following offences against this Division:
(a) summary offences;
(b) offences of strict liability.
(1) The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to do both of the following as an alternative to prosecution:
(a) pay a penalty to the Commonwealth;
(b) forfeit to the Commonwealth:
(i) each article (if any) that is alleged to be an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence; and
(ii) each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence.
Note: Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).
(2) The penalty must equal one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
9 Application of amendments of Division 5 of Part V
The amendments of Division 5 of Part V of the Copyright Act 1968 by this Part apply to things occurring after the commencement of this Part.
10 Subsections 135L(4) and 135ZY(4)
Omit "$500", substitute "5 penalty units".
11 Paragraph 136(2)(d)
Omit "proceedings brought in respect of an alleged contravention of subsection 132(5) or (5AA)", substitute "a prosecution of an offence against Subdivision D of Division 5 of Part V".
12 Saving
(1) Despite the amendment of paragraph 136(2)(d) of the Copyright Act 1968 by this Part, that paragraph, as in force before the amendment, applies after that amendment to proceedings brought in respect of an alleged contravention of subsection 132(5) or (5AA) of that Act as in force before that amendment.
(2) That paragraph applies in that way whether the proceedings were started before or after that amendment.
13 Sections 172 and 173
Repeal the sections, substitute:
Failing to appear
(1) A person commits an offence if:
(a) the person has been summoned to appear as a witness before the Tribunal; and
(b) there has been tendered to the person an amount of money at least equal to the expenses the person could reasonably be expected to incur in connection with appearing as a witness; and
(c) the person fails to appear in obedience to the summons.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Failing to produce document or article summoned
(2) A person commits an offence if:
(a) the person has been summoned to produce a document or article to the Tribunal; and
(b) there has been tendered to the person an amount of money at least equal to the expenses the person could reasonably be expected to incur in connection with producing the document or article; and
(c) the person fails to produce the document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Refusal to swear or affirm
(3) A person commits an offence if:
(a) the person appears before the Tribunal; and
(b) the person refuses to be sworn or to make an affirmation.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Refusal to answer questions or produce documents as required
(4) A person commits an offence if:
(a) the person appears before the Tribunal; and
(b) the Tribunal requires the person to answer a question or produce a document or article; and
(c) the person refuses to answer the question or produce the document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
General defence of reasonable excuse
(5) Subsection (1), (2), (3) or (4) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).
173 Offences relating to the Tribunal
Insulting a member
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct insults or disturbs a member in the exercise of his or her powers or functions as a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Interrupting proceedings of the Tribunal
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct interrupts the proceedings of the Tribunal.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Using insulting language
(3) A person commits an offence if:
(a) the person uses insulting language towards another person; and
(b) the other person is a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Creating a disturbance
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct creates a disturbance in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Taking part in creating or continuing a disturbance
(5) A person commits an offence if:
(a) the person takes part in creating or continuing a disturbance; and
(b) the disturbance is in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Contravention of direction limiting publication of evidence
(6) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a direction of the Tribunal under paragraph 163(2)(b).
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Contempt of Tribunal
(7) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Definition of engage in conduct
(8) In this section:
"engage in conduct" means:
(a) do an act; or
(b) omit to perform an act.
14 Application of new sections 172 and 173
Sections 172 and 173 of the Copyright Act 1968 , as amended by this Part, apply to acts (including refusals) occurring after the commencement of this Part and failures first occurring after the commencement of this Part.
15 Subsection 195A(2)
Repeal the subsection.
16 Transitional provision--regulations for subsection 195A(2)
(1) This item applies to a regulation that:
(a) was made for the purposes of subsection 195A(2) of the Copyright Act 1968 ; and
(b) was in force immediately before the repeal of that subsection.
(2) On and after the commencement of this Part, the regulation has effect for the purposes of subsection 203A(1) and section 203G (so far as they relate to a declaration made for the purposes of section 49, 50, 51A or 110B) of the Copyright Act 1968 , as amended by this Part, as if the period prescribed by the regulation were prescribed for those purposes.
(3) This item does not prevent the amendment or repeal of the regulation.
(4) This item has effect despite the repeal of subsection 195A(2) of the Copyright Act 1968 by this Part.
17 Sections 203A and 203D
Repeal the sections, substitute:
203A Offence--failing to keep declarations relating to copying in library or archives
(1) A person commits an offence if:
(a) at a time, the person is:
(i) ultimately responsible for administering a library or archives; or
(ii) the officer in charge of a library or archives; and
(b) that time is:
(i) after an authorized officer of a library or archives reproduced or copied all or part of a work or other subject‑matter under section 49, 50, 51A or 110B; and
(ii) after a written declaration was made for the purpose of that section in relation to the reproduction or copying; and
(iii) before the end of the period prescribed by the regulations for the keeping of the declaration; and
(c) at that time, the declaration is not kept in the records of the library or archives.
Penalty: 5 penalty units.
(2) Subsection (1) does not apply if:
(a) the person is the officer in charge of a library or archives and proves that:
(i) the reproduction or copying took place before the day the person became the officer in charge; and
(ii) on that day the declaration was not in the possession of the person administering the library or archives; or
(b) the person proves that the person took all reasonable precautions, and exercised due diligence, to ensure the declaration was kept in the records of the library or archives.
Note: The person bears a legal burden in relation to a matter in subsection (2) (see section 13.4 of the Criminal Code ).
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) The person cannot be convicted of more than one offence under this section in relation to the one declaration.
Note: Section 203G makes early destruction or disposal of the declaration an offence.
203D Offence--not arranging declarations chronologically
(1) A person commits an offence if:
(a) the person is:
(i) ultimately responsible for administering a library or archives; or
(ii) the officer in charge of a library or archives; and
(b) the person's records include 2 or more declarations made for the purposes of one or more of sections 49, 50, 51A or 110B in relation to reproduction or copying by an authorized officer of the library or archives; and
(c) the declarations are not arranged in the records in the order reflecting the dates on which the declarations were made.
Penalty: 5 penalty units.
(2) Subsection (1) does not apply if the person proves that the person took all reasonable precautions, and exercised due diligence, to ensure that the declarations were arranged in the records in the order reflecting the dates on which the declarations were made.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
18 Application of new sections 203A and 203D
Sections 203A and 203D of the Copyright Act 1968 , as amended by this Part, apply to persons who are:
(a) ultimately responsible for administering libraries or archives; or
(b) officers in charge of libraries or archives;
on or after the commencement of this Part.
19 Subsection 203E(6)
Repeal the subsection, substitute:
(6) A person commits an offence if:
(a) the person is:
(i) ultimately responsible for administering a library or archives; or
(ii) the officer in charge of a library or archives; and
(b) another person (the inspector ) attends at the premises of the library or archives for the purpose of exercising his or her powers under subsection (4); and
(c) the inspector is not provided with all reasonable facilities and assistance for the effective exercise of those powers.
Penalty: 5 penalty units.
20 Subsection 203E(10)
Repeal the subsection, substitute:
(10) A person (the defendant ) commits an offence if:
(a) the defendant makes a record of information, or divulges or communicates information; and
(b) the information was acquired by the defendant either in the course of an inspection the defendant made under subsection (4) or because it was divulged or communicated to the defendant either:
(i) by another person who acquired the information in the course of an inspection he or she made under subsection (4); or
(ii) in one of a series of divulgements or communications by different persons that started with a divulgement or communication of the information by a person who acquired it the course of an inspection he or she made under subsection (4).
Penalty: 5 penalty units.
21 Subsection 203E(11)
Repeal the subsection, substitute:
(11) Subsection (10) does not apply if the defendant makes the record, divulgement or communication with the intention of:
(a) informing the owner of the copyright in a work or other subject‑matter that a copy has been made of the work or other subject‑matter; or
(b) enforcing a right that a person has under this Act in connection with a work or other subject‑matter in which copyright subsists; or
(c) ensuring compliance with a provision of Division 5 of Part III or with a provision of this Part.
Note: The defendant bears an evidential burden in relation to the matter in subsection (11) (see subsection 13.3(3) of the Criminal Code ).
22 Application of new subsections 203E(10) and (11)
The repeal and substitution of subsections 203E(10) and (11) of the Copyright Act 1968 by this Part apply to the recording, divulgement or communication of information by the defendant after the commencement of this Part (whether the information was acquired by the defendant before, on or after the commencement of this Part).
23 Sections 203F and 203G
Repeal the sections, substitute:
203F False and misleading declarations
A person commits an offence if:
(a) the person makes a declaration for the purposes of section 49, 50, 51A or 110B; and
(b) the declaration is false or misleading in a material particular.
Penalty: 5 penalty units.
203G Offence--disposing of or destroying certain declarations
A person commits an offence if:
(a) the person disposes of, destroys, or causes the disposal or destruction of, a declaration made for the purposes of section 49, 50, 51A or 110B; and
(b) the period prescribed by the regulations for the keeping of the declaration has not ended.
Penalty: 5 penalty units.
24 Application of new sections 203F and 203G
Sections 203F and 203G of the Copyright Act 1968 , as amended by this Part, apply to acts done after the commencement of this Part.
25 Subsection 203H(4)
Repeal the subsection, substitute:
(4) A person commits an offence if:
(a) the person:
(i) makes a notation described in subsection (1) on a reproduction of a work or part of a work; or
(ii) makes a notation described in subsection (2) on a copy of a sound recording or cinematograph film; or
(iii) attaches a notation described in subsection (2) to a copy of a sound recording or cinematograph film; and
(b) a statement in the notation is false or misleading in a material particular.
Penalty: 5 penalty units.
26 Application of new subsection 203H(4)
The repeal and substitution of subsection 203H(4) of the Copyright Act 1968 by this Part apply to acts done after the commencement of this Part.
27 Subsection 248A(1)
Insert:
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.
28 Subsection 248A(1)
Insert:
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.
29 Subsection 248CA(1)
Omit "subsections (2) and", substitute "subsection".
30 Subsection 248CA(2)
Repeal the subsection.
31 Paragraphs 248CA(4)(b) to (h)
Repeal the paragraphs, substitute:
(b) section 248PA;
(c) section 248PB;
(d) section 248PE;
(e) section 248PF;
(f) section 248PG;
(g) section 248PI;
(h) section 248PJ;
(i) section 248PK;
(j) section 248PL;
(k) section 248PM.
32 Subsection 248F(1)
Repeal the subsection, substitute:
(1) This Part, except Subdivisions A, B and C of Division 3, applies to acts done on or after 1 October 1989 in relation to a performance given on or after that day.
Note 1: That day was the day this Part commenced.
Note 2: Sections 248P and 248QA apply Subdivisions A and B of Division 3 to acts done at or after the time those Subdivisions commence as a result of Part 1 of Schedule 1 to the Copyright Amendment Act 2006 . Subdivision C of that Division is merely ancillary to those Subdivisions.
33 Sections 248P, 248Q, 248QA, 248QB and 248S
Repeal the sections, substitute:
Subdivision A -- General offences
248P Scope of this Subdivision
(1) This Subdivision applies to acts done in Australia on or after the commencement of this Subdivision.
Note: This Subdivision commenced when it was included in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act 2006 .
(2) This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code .
248PA Unauthorised direct recording during protection period
Indictable offence
(1) A person commits an offence if:
(a) the person makes a direct recording of a performance; and
(b) the recording is made during the protection period of the performance; and
(c) the recording is made without the authority of the performer.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes a direct recording of a performance; and
(b) the recording is made during the protection period of the performance; and
(c) the recording is made without the authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
248PB Unauthorised indirect recording during protection period
Indictable offence
(1) A person commits an offence if:
(a) the person makes an indirect recording of a performance; and
(b) the recording is made during the protection period of the performance; and
(c) the recording is made without the authority of the performer.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes an indirect recording of a performance; and
(b) the recording is made during the protection period of the performance; and
(c) the recording is made without the authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes an indirect recording of a performance; and
(b) the recording is made during the protection period of the performance; and
(c) the recording is made without the authority of the performer.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Defence
(7) Subsection (1), (3) or (5) does not apply if the recording was made solely for the person's private and domestic use.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
248PC Unauthorised communication to public during 20‑year protection period
Indictable offence
(1) A person commits an offence if:
(a) the person communicates a performance to the public; and
(b) the communication is made during the 20‑year protection period of the performance; and
(c) the communication is made without the authority of the performer; and
(d) the communication is made either directly from the live performance or from an unauthorised recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person communicates a performance to the public; and
(b) the communication is made during the 20‑year protection period of the performance; and
(c) the communication is made without the authority of the performer and the person is negligent as to that fact; and
(d) the communication is made either directly from the live performance or from an unauthorised recording of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Defence
(7) To avoid doubt, subsections (1) and (3) do not apply to the communication to the public of an authorised recording of the performance.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
Note 2: An educational or other institution can also copy and communicate a broadcast of a performance without contravening this section in some circumstances (see sections 135E and 135F).
248PD Playing unauthorised recording publicly during 20‑year protection period
Indictable offence
(1) A person commits an offence if:
(a) the person causes a recording of a performance to be heard or seen in public; and
(b) the recording is heard or seen in public during the 20‑year protection period of the performance; and
(c) the recording is unauthorised.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person causes a recording of a performance to be heard or seen in public; and
(b) the recording is heard or seen in public during the 20‑year protection period of the performance; and
(c) the recording is unauthorised and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
248PE Possessing equipment to make or copy unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses a plate or recording equipment, intending it to be used for making:
(i) an unauthorised recording of a performance; or
(ii) a copy of an unauthorised recording of a performance; and
(b) the possession occurs during the protection period of the performance.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person possesses a plate or recording equipment; and
(b) the plate or equipment is to be used for making:
(i) a recording of a performance; or
(ii) a copy of an unauthorised recording of a performance; and
(c) either:
(i) the recording to be made using the plate or equipment will be an unauthorised recording of the performance; or
(ii) the recording to be copied using the plate or equipment is an unauthorised recording of the performance;
and the person is negligent as to that fact; and
(d) the possession occurs during the protection period of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) To avoid doubt, recklessness is the fault element for the circumstance that the plate or equipment is to be used for making:
(a) a recording of a performance; or
(b) a copy of an unauthorised recording of a performance.
(5) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
No need to prove which performance or recording is to be involved
(8) In a prosecution for an offence against this section, it is not necessary to prove:
(a) which particular performance is intended to be, or will be, recorded using the device; or
(b) which particular recording is intended to be, or will be, copied using the device.
248PF Copying unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PG Unauthorised copying of exempt recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the copy is made without the authority of the performer; and
(d) the recording is an exempt recording; and
(e) the copy is not an exempt recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the copy is made without the authority of the performer and the person is negligent as to that fact; and
(d) the recording is an exempt recording; and
(e) the copy is not an exempt recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a recording of a performance; and
(b) the copy is made during the protection period of the performance; and
(c) the copy is made without the authority of the performer; and
(d) the recording is an exempt recording; and
(e) the copy is not an exempt recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PH Unauthorised copying of authorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and
(b) the copy is made during the 20‑year protection period of the performance; and
(c) the copy is made without the authority of the performer; and
(d) the sound recording is an authorised sound recording; and
(e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and
(b) the copy is made during the 20‑year protection period of the performance; and
(c) the copy is made without the authority of the performer and the person is negligent as to that fact; and
(d) the sound recording is an authorised sound recording; and
(e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance in preparation for use in a sound‑track; and
(b) the copy is made during the 20‑year protection period of the performance; and
(c) the copy is made without the authority of the performer; and
(d) the sound recording is an authorised sound recording; and
(e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PI Selling etc. unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a recording of a performance;
(ii) lets for hire a recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a recording of a performance; and
(b) the act is done during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a recording of a performance;
(ii) lets for hire a recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a recording of a performance; and
(b) the act is done during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a recording of a performance;
(ii) lets for hire a recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a recording of a performance; and
(b) the act is done during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PJ Distributing unauthorised recording
Indictable offences
(1) A person commits an offence if:
(a) the person distributes a recording of a performance, with the intention of trading; and
(b) the distribution occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) A person commits an offence if:
(a) the person distributes a recording of a performance; and
(b) the distribution occurs during the protection period of the performance; and
(c) the distribution will affect prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised recording.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offences
(4) A person commits an offence if:
(a) the person distributes a recording of a performance, with the intention of trading; and
(b) the distribution occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person distributes a recording of a performance; and
(b) the distribution occurs during the protection period of the performance; and
(c) the distribution will affect prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes a recording of a performance in preparation for, or in the course of, trade; and
(b) the distribution occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PK Commercial possession or import of unauthorised recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses, or imports into Australia, a recording of a performance in preparation for, or in the course of, doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording for trade; and
(b) the possession or import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PL Exhibiting unauthorised recording in public by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person by way of trade exhibits in public a recording of a performance; and
(b) the exhibition occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person by way of trade exhibits in public a recording of a performance; and
(b) the exhibition occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person by way of trade exhibits in public a recording of a performance; and
(b) the exhibition occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248PM Importing unauthorised recording for exhibition by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and
(b) the import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and
(b) the import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person imports into Australia a recording of a performance, in preparation for exhibiting the recording in public by way of trade; and
(b) the import occurs during the protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Subdivision B -- Acts relating to sound recordings of performances given before 1 July 1995
248QA Scope of this Subdivision
(1) This Subdivision applies to an act done in Australia on or after the commencement of this Subdivision, in relation to a performance given at any time before 1 July 1995.
Note 1: That day was the day on which Part 4 of the Copyright (World Trade Organization Amendments) Act 1994 commenced.
Note 2: This Subdivision commenced when it was included in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act 2006 .
(2) This Subdivision has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code .
248QB Possessing equipment for copying unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses a plate or recording equipment, intending it to be used for making a copy of an unauthorised sound recording of a performance; and
(b) the possession occurs during the 50‑year protection period of the performance.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person possesses a plate or recording equipment; and
(b) the plate or recording equipment is to be used for making a copy of a sound recording of a performance; and
(c) the recording is an unauthorised recording of the performance and the person is negligent as to that fact; and
(d) the possession occurs during the 50‑year protection period of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) To avoid doubt, recklessness is the fault element for the circumstance that the plate or recording equipment is to be used for making a copy of a sound recording of a performance.
(5) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
No need to prove which recording is to be copied
(8) In a prosecution for an offence against this section, it is not necessary to prove which particular recording is intended to be, or will be, copied using the device.
248QC Copying unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance; and
(b) the copy is made during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance; and
(b) the copy is made during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person makes a copy of a sound recording of a performance; and
(b) the copy is made during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248QD Selling etc. unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a sound recording of a performance;
(ii) lets for hire a sound recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a sound recording of a performance;
(ii) lets for hire a sound recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person does any of the following acts:
(i) sells a sound recording of a performance;
(ii) lets for hire a sound recording of a performance;
(iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and
(b) the act is done during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248QE Distributing unauthorised sound recording
Indictable offences
(1) A person commits an offence if:
(a) the person distributes a sound recording of a performance, with the intention of trade; and
(b) the distribution occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) A person commits an offence if:
(a) the person distributes a sound recording of a performance; and
(b) the distribution occurs during the 50‑year protection period of the performance; and
(c) the distribution will affect prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised recording.
(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offences
(4) A person commits an offence if:
(a) the person distributes a sound recording of a performance, with the intention of trade; and
(b) the distribution occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5) A person commits an offence if:
(a) the person distributes a sound recording of a performance; and
(b) the distribution occurs during the 50‑year protection period of the performance; and
(c) the distribution will affect prejudicially the financial interests of the performer in the performance; and
(d) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(7) A person commits an offence if:
(a) the person distributes a sound recording of a performance in preparation for, or in the course of, trade; and
(b) the distribution occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(9) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248QF Commercial possession or import of unauthorised sound recording
Indictable offence
(1) A person commits an offence if:
(a) the person possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and
(b) the possession or import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person possesses, or imports into Australia, a sound recording of a performance in preparation for, or in the course of, doing any of the following:
(i) selling the recording;
(ii) letting the recording for hire;
(iii) by way of trade offering or exposing the recording for sale or hire;
(iv) distributing the recording for trade; and
(b) the possession or import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248QG Exhibiting unauthorised sound recording in public by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person by way of trade exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person by way of trade exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person by way of trade exhibits in public a sound recording of a performance; and
(b) the exhibition occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
248QH Importing unauthorised sound recording for exhibition by way of trade
Indictable offence
(1) A person commits an offence if:
(a) the person imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and
(b) the import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914 ).
Summary offence
(3) A person commits an offence if:
(a) the person imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and
(b) the import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 .
Strict liability offence
(5) A person commits an offence if:
(a) the person imports into Australia a sound recording of a performance in preparation for exhibiting the recording in public by way of trade; and
(b) the import occurs during the 50‑year protection period of the performance; and
(c) the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
Subdivision C -- Prosecution and infringement notices
248R Courts in which offences may be prosecuted
(1) Prosecutions for offences against Subdivision A or B may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.
(2) However, the Federal Court of Australia does not have jurisdiction to hear or determine prosecutions for indictable offences, despite section 15C of the Acts Interpretation Act 1901 .
(3) The Federal Court of Australia has jurisdiction to hear and determine prosecutions of the following offences against Subdivision A or B:
(a) summary offences;
(b) offences of strict liability.
248S Protection against multiple proceedings for same act
If a single act done in relation to a performance is an offence against Subdivision A and an offence against Subdivision B, only one of the offences may be prosecuted.
(1) The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against Subdivision A or B to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must equal one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Subdivision D -- Destruction or delivery up of unauthorised recordings
Part 2 -- Amendment contingent on the Archives Amendment Act 2006
34 Paragraphs 132AC(7)(b) and 132AT(2)(b)
Repeal the paragraphs, substitute:
(b) a body or person mentioned in:
(i) paragraph (a) or (aa) of the definition of archives in subsection 10(1); or
(ii) subsection 10(4);