Commonwealth Numbered Acts Commonwealth Numbered Acts1 Subsection 10(1)
Insert:
"access control technological protection measure" means a device, product, technology or component (including a computer program) that:
(a) is used in Australia or a qualifying country:
(i) by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and
(ii) in connection with the exercise of the copyright; and
(b) in the normal course of its operation, controls access to the work or other subject‑matter;
but does not include such a device, product, technology or component to the extent that it:
(c) if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)--controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or
(d) if the work is a computer program that is embodied in a machine or device--restricts the use of goods (other than the work) or services in relation to the machine or device.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
2 Subsection 10(1) (definition of circumvention device )
Repeal the definition, substitute:
"circumvention device" for a technological protection measure means a device, component or product (including a computer program) that:
(a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
3 Subsection 10(1) (definition of circumvention service )
Repeal the definition, substitute:
"circumvention service" for a technological protection measure means a service that:
(a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.
4 Subsection 10(1)
Insert:
"controls access" : a device, product, technology or component (including a computer program) controls access to a work or other subject-matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the copyright in the work or other subject-matter, to gain access to the work or other subject-matter.
5 Subsection 10(1) (definition of technological protection measure )
Repeal the definition, substitute:
"technological protection measure" means:
(a) an access control technological protection measure; or
(b) a device, product, technology or component (including a computer program) that:
(i) is used in Australia or a qualifying country by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and
(ii) in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the copyright;
but does not include such a device, product, technology or component to the extent that it:
(iii) if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)--controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or
(iv) if the work is a computer program that is embodied in a machine or device--restricts the use of goods (other than the work) or services in relation to the machine or device.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
6 Section 100AG (after table item 2)
Insert:
|
2A |
the action is brought under section 116AN, 116AO or 116AP |
(a) damages (other than additional damages); or (b) an account of profits; or (c) destruction or delivery up of a circumvention device |
7 Section 100AG (table item 3)
Omit "116A,".
8 Division 2A of Part V (heading)
Repeal the heading, substitute:
9 Section 116A
Repeal the section, substitute:
Subdivision A -- Technological protection measures
In this Subdivision, computer program has the same meaning as in section 47AB.
116AL Interaction of this Subdivision with Part VAA
This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA).
116AM Geographical application
(1) This Subdivision applies to acts done in Australia.
(2) This section does not, by implication, affect the interpretation of any other provision of this Act.
116AN Circumventing an access control technological protection measure
(1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:
(a) the work or other subject‑matter is protected by an access control technological protection measure; and
(b) the person does an act that results in the circumvention of the access control technological protection measure; and
(c) the person knows, or ought reasonably to know, that the act would have that result.
Exception--permission
(2) Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.
Exception--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable:
(i) the person; or
(ii) if the person is a body corporate--an employee of the person;
to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(c) the person or employee is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(d) the person or employee:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Exception--online privacy
(6) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and
(iv) will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.
Exception--law enforcement and national security
(7) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Exception--libraries etc.
(8) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the person is:
(i) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); or
(ii) a body mentioned in paragraph (a) of the definition of archives in subsection 10(1), or in subsection 10(4); or
(iii) an educational institution; and
(c) the act will be done for the sole purpose of making an acquisition decision in relation to the work or other subject‑matter; and
(d) the work or other subject‑matter will not be otherwise available to the person when the act is done.
Note: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Exception--prescribed acts
(9) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act will not infringe the copyright in a work or other subject‑matter; and
(c) the doing of the act by the person is prescribed by the regulations.
Note: For the making of regulations prescribing the doing of an act by a person, see section 249.
Burden of proof
(10) The defendant bears the burden of establishing the matters referred to in subsections (2) to (9).
116AO Manufacturing etc. a circumvention device for a technological protection measure
(1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:
(a) the person does any of the following acts with a device:
(i) manufactures it with the intention of providing it to another person;
(ii) imports it into Australia with the intention of providing it to another person;
(iii) distributes it to another person;
(iv) offers it to the public;
(v) provides it to another person;
(vi) communicates it to another person; and
(b) the person knows, or ought reasonably to know, that the device is a circumvention device for a technological protection measure; and
(c) the work or other subject‑matter is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Exception--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Exception--law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).
116AP Providing etc. a circumvention service for a technological protection measure
(1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:
(a) the person:
(i) provides a service to another person; or
(ii) offers a service to the public; and
(b) the person knows, or ought reasonably to know, that the service is a circumvention service for a technological protection measure; and
(c) the work or other subject‑matter is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Exception--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Exception--law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).
116AQ Remedies in actions under this Subdivision
(1) Without limiting the relief that a court may grant in an action under this Subdivision, the relief may include:
(a) an injunction, subject to such terms, if any, as the court thinks fit; and
(b) damages or an account of profits; and
(c) if the doing of an act, which is the subject of the action, involved a circumvention device--an order that the circumvention device be destroyed or dealt with as specified in the order.
(2) In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:
(a) the flagrancy of the defendant's acts that are the subject of the action; and
(b) the need to deter similar acts; and
(c) the conduct of the defendant after the acts or, if relevant, after the defendant was informed that the defendant had allegedly done an act that would be the subject of an action under this Subdivision; and
(d) any benefit shown to have accrued to the defendant as a result of those acts; and
(e) any other relevant matters.
(3) If:
(a) an action has been commenced against a person under this Subdivision; and
(b) the doing of an act by the person, which is the subject of the action, involved a device; and
(c) the device appears to the court to be a circumvention device;
the court may order that the device be delivered up to the court upon such conditions as the court considers appropriate.
(4) This section does not, by implication, affect the interpretation of any other provision of this Act.
Subdivision B -- Electronic rights management information
10 Subsections 116D(1) and (2)
Omit "section 116A, 116B, 116C or 116CA", substitute "this Subdivision".
Note: The heading to section 116D is altered by omitting " sections 116A, 116B, 116C and 116CA " and substituting " this Subdivision ".
11 After Subdivision D of Division 5 of Part V
Insert:
Subdivision E -- Technological protection measures
In this Subdivision, computer program has the same meaning as in section 47AB.
132APB Interaction of this Subdivision with Part VAA
This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA).
132APC Circumventing an access control technological protection measure
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the circumvention of a technological protection measure; and
(c) the technological protection measure is an access control technological protection measure; and
(d) the person engages in the conduct with the intention of obtaining a commercial advantage or profit.
Penalty: 60 penalty units.
Defence--permission
(2) Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
Defence--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).
Defence--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable:
(i) the person; or
(ii) if the person is a body corporate--an employee of the person;
to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(c) the person or employee is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(d) the person or employee:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).
Defence--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).
Defence--online privacy
(6) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and
(iv) will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.
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--law enforcement and national security
(7) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
Defence--libraries etc.
(8) Subsection (1) does not apply in respect of anything lawfully done by the following bodies 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 a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and 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 (8) (see subsection 13.3(3) of the Criminal Code ).
Defence--prescribed acts
(9) Subsection (1) does not apply to the person if:
(a) the person circumvents the access control technological protection measure to enable the person to do an act; and
(b) the act will not infringe the copyright in a work or other subject‑matter; and
(c) the doing of the act by the person is prescribed by the regulations.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ).
Note 2: For the making of regulations prescribing the doing of an act by a person, see section 249.
132APD Manufacturing etc. a circumvention device for a technological protection measure
(1) A person commits an offence if:
(a) the person does any of the following acts with a device:
(i) manufactures it with the intention of providing it to another person;
(ii) imports it into Australia with the intention of providing it to another person;
(iii) distributes it to another person;
(iv) offers it to the public;
(v) provides it to another person;
(vi) communicates it to another person; and
(b) the person does the act with the intention of obtaining a commercial advantage or profit; and
(c) the device is a circumvention device for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence--no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
Defence--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).
Defence--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).
Defence--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).
Defence--law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
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--libraries etc.
(7) Subsection (1) does not apply in respect of anything lawfully done by the following bodies 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 a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and 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 ).
132APE Providing etc. a circumvention service for a technological protection measure
(1) A person commits an offence if:
(a) the person:
(i) provides a service to another person; or
(ii) offers a service to the public; and
(b) the person does so with the intention of obtaining a commercial advantage or profit; and
(c) the service is a circumvention service for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence--no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
Defence--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).
Defence--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject‑matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).
Defence--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).
Defence--law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
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--libraries etc.
(7) Subsection (1) does not apply in respect of anything lawfully done by the following bodies 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 a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and 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 ).
12 Subsection 134(2)
Omit "116A", substitute "116AN, 116AO, 116AP".
13 After section 202
Insert:
202A Groundless threats of legal proceedings in relation to technological protection measures
(1) If a person (the first person ) threatens another person with an action under Subdivision A of Division 2A of Part V, a person aggrieved may bring an action against the first person.
Note: Subdivision A of Division 2A of Part V establishes causes of action that relate to circumventing an access control technological protection measure (section 116AN), manufacturing etc. a circumvention device for a technological protection measure (section 116AO) and providing etc. a circumvention service for a technological protection measure (section 116AP).
(2) An action may be brought under this section whether or not the first person is the owner or exclusive licensee of the copyright in the work or other subject‑matter to which the threatened action relates.
(3) The mere notification that a work or other subject‑matter is protected by a technological protection measure does not constitute a threat of an action within the meaning of this section.
(4) In an action under this section, the orders a court may make include the following:
(a) an order declaring that the threat is unjustifiable;
(b) an order granting an injunction restraining the first person from continuing to make the threat;
(c) an order awarding such damages (if any) for loss that the person aggrieved has suffered as a result of the making of the threat.
(5) The court must not make an order under subsection (4) if the first person satisfies the court that an action under Subdivision A of Division 2A of Part V has reasonable prospects of success.
(6) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.
(7) If an action under this section is brought:
(a) the first person may apply, by way of counterclaim, for relief to which he or she would be entitled in an action under Subdivision A of Division 2A of Part V; and
(b) the provisions of Part V apply as if the counterclaim were an action brought by the first person under that Subdivision.
Note: The heading to section 202 is altered by adding at the end " in relation to copyright infringement ".
14 Section 249
Before "The Governor‑General", insert "(1)".
Note: The following heading to subsection 249(1) is inserted " General regulation‑making power ".
15 At the end of section 249
Add:
Regulations in relation to technological protection measures
(2) Without limiting subsection (1), the Governor‑General may make regulations prescribing the doing of an act by a person for the purposes of subsections 116AN(9) and 132APC(9).
Note: For prescription of acts and persons by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(3) However, the Governor‑General must not make a regulation prescribing the doing of an act by a person unless the Minister makes a recommendation to prescribe the doing of the act by the person.
(4) The Minister may only make a recommendation to prescribe the doing of an act by a person if:
(a) a submission has been made (whether before or after the commencement of this section) to prescribe the doing of the act by the person; and
(b) the doing of the act by the person will not infringe the copyright in a work or other subject‑matter; and
(c) the doing of the act by the person is in relation to a particular class of works or other subject‑matter; and
(d) an actual or likely adverse impact on the doing of the act by the person has been credibly demonstrated; and
(e) the adequacy of the protection and the effectiveness of the remedies provided by Subdivision A of Division 2A of Part V and Subdivision E of Division 5 of Part V would not be impaired if the doing of the act by the person were prescribed.
Note : For the purposes of paragraph (a), it is not necessary for the person who made the submission to be the person in relation to whom the act is prescribed.
(5) If a submission has been made to prescribe the doing of an act by a person, the Minister must make a decision whether to recommend the prescription of the doing of the act by the person as soon as practicable after receiving the submission, but in any case, within 4 years of receiving it.
(6) The Governor‑General may make regulations varying or revoking regulations made under subsection (2).
(7) However, the Governor‑General must not make a regulation varying or revoking a regulation made under subsection (2) unless the Minister makes a recommendation to vary or revoke the regulation.
(8) The Minister may make a recommendation to vary or revoke a regulation made under subsection (2) only if:
(a) a submission has been made to vary or revoke the regulation; and
(b) an actual or likely adverse impact on the doing of the act by the person that is the subject of the regulation can no longer be credibly demonstrated; and
(c) the adequacy of the protection and the effectiveness of the remedies provided by Subdivision A of Division 2A of Part V and Subdivision E of Division 5 of Part V would be impaired if the regulation were not varied or revoked.
(9) If a submission has been made to vary or revoke a regulation made under subsection (2), the Minister must make a decision whether to recommend the variation or revocation of the regulation as soon as practicable after receiving the submission, but in any case, within 4 years of receiving it.
16 Application of amendments
The amendments made by this Part apply to acts done on or after the commencement of this Part.
Part 2 -- Amendments contingent on the Archives Amendment Act 2006
17 Subparagraph 116AN(8)(b)(ii)
Repeal the subparagraph, substitute:
(ii) a body or person mentioned in paragraph (a) or (aa) of the definition of archives in subsection 10(1), or in subsection 10(4);
18 Paragraphs 132APC(8)(b), 132APD(7)(b) and 132APE(7)(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);
[ Minister's second reading speech made in--
House of Representatives on 19 October 2006
Senate on 6 November 2006 ]
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