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COPYRIGHT AMENDMENT ACT 2006 (NO. 158, 2006) - SCHEDULE 6

Exceptions to infringement of copyright

Part 1 -- Recording broadcasts for replaying at more convenient time

Copyright Act 1968

1A  Subsection 10(1)

Insert:

"private and domestic use" means private and domestic use on or off domestic premises.

1  Section 111

Repeal the section, substitute:

111   Recording broadcasts for replaying at more convenient time

             (1)  This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

Note:          Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 .

Making the film or recording does not infringe copyright

             (2)  The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject‑matter included in the broadcast.

Note:          Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

             (3)  Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise; or

                     (e)  used for causing the film or recording to be seen or heard in public; or

                      (f)  used for broadcasting the film or recording.

Note:          If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender's family or household for the member's private and domestic use.

2  Subsection 248A(1) (after paragraph (a) of the definition of exempt recording )

Insert:

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

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

                             (ii)  is made in domestic premises; and

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

3  Subsection 248A(1) (at the end of paragraphs (aa) to (m) of the definition of exempt recording )

Add "or".

4  Subsection 248C(1A)

After "paragraph", insert "(aaa),".

5  Subsection 248C(2)

After "(a),", insert "(aaa),".


 

Part 2 -- Reproducing copyright material in different format for private use

Copyright Act 1968

6  After section 43B

Insert:

43C   Reproducing works in books, newspapers and periodical publications in different form for private use

             (1)  This section applies if:

                     (a)  the owner of a book, newspaper or periodical publication makes from it a reproduction (the main copy ) of a work contained in the book, newspaper or periodical publication; and

                     (b)  the main copy is made for his or her private and domestic use instead of the work as contained in the book, newspaper or periodical publication; and

                     (c)  the main copy embodies the work in a form different from the form in which the work is embodied in the book, newspaper or periodical publication; and

                     (d)  the book, newspaper or periodical publication itself is not an infringing copy of either the work or a published edition of the work; and

                     (e)  at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the work in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the work incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright in the work or a published edition of the work.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender's family or household for the member's private and domestic use.

Reproducing work from main copy may infringe copyright

             (5)  Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of another reproduction of the work from the main copy.

Disposal of book etc. may make the main copy an infringing copy

             (6)  Subsection (2) is taken never to have applied if the owner of the book, newspaper or periodical publication disposes of it (in the form from which the main copy was made) to another person.

Status of temporary reproduction

             (7)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the work as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy--the making of the temporary reproduction does not infringe copyright in the work or a published edition of the work; or

                     (b)  if the temporary reproduction is not destroyed at that time--the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the work and the published edition of the work from which the main copy was made.

7  After Division 4A of Part III

Insert:

Division 4B -- Acts not constituting infringements of copyright in artistic works

47J   Reproducing photograph in different format for private use

             (1)  This section applies if:

                     (a)  the owner of a photograph (the original photograph ) makes a reproduction (the main copy ) of it for his or her private and domestic use instead of the original photograph; and

                     (b)  the original photograph itself is not an infringing copy of a work or published edition of a work; and

                     (c)  either:

                              (i)  the original photograph is in hardcopy form and the main copy is in electronic form; or

                             (ii)  the original photograph is in electronic form and the main copy is in hardcopy form; and

                     (d)  at the time the owner makes the main copy, he or she has not made, and is not making, another reproduction of the original photograph that embodies the original photograph in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the original photograph incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright:

                     (a)  in the original photograph; or

                     (b)  in a work, or published edition of a work, included in the original photograph.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender's family or household for the member's private and domestic use.

Reproducing main copy may infringe copyright

             (5)  Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of a reproduction of the main copy.

Disposal of original may make the main copy an infringing copy

             (6)  Subsection (2) is taken never to have applied if the owner of the original photograph disposes of it to another person.

Status of temporary reproduction

             (7)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the original photograph as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy--the making of the temporary reproduction does not infringe copyright in the original photograph or a work, or published edition of a work, included in the original photograph; or

                     (b)  if the temporary reproduction is not destroyed at that time--the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the original photograph or a work, or published edition of a work, included in the original photograph.

8  After section 109

Insert:

109A   Copying sound recordings for private and domestic use

             (1)  This section applies if:

                     (a)  the owner of a copy (the earlier copy ) of a sound recording makes another copy (the later copy ) of the sound recording using the earlier copy; and

                     (b)  the sole purpose of making the later copy is the owner's private and domestic use of the later copy with a device that:

                              (i)  is a device that can be used to cause sound recordings to be heard; and

                             (ii)  he or she owns; and

                     (c)  the earlier copy was not made by downloading over the Internet a digital recording of a radio broadcast or similar program; and

                     (d)  the earlier copy is not an infringing copy of the sound recording, a broadcast or a literary, dramatic or musical work included in the sound recording.

             (2)  The making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject‑matter included in the sound recording.

             (3)  Subsection (2) is taken never to have applied if the earlier copy or the later copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise; or

                     (e)  used for causing the sound recording to be heard in public; or

                      (f)  used for broadcasting the sound recording.

Note:          If the earlier or later copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the later copy but also by a dealing with the later copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the earlier copy or the later copy by the lender to a member of the lender's family or household for the member's private and domestic use.

9  After section 110

Insert:

110AA   Copying cinematograph film in different format for private use

             (1)  This section applies if:

                     (a)  the owner of videotape embodying a cinematograph film in analog form makes a copy (the main copy ) of the film in electronic form for his or her private and domestic use instead of the videotape; and

                     (b)  the videotape itself is not an infringing copy of the film or of a broadcast, sound recording, work or published edition of a work; and

                     (c)  at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the film in an electronic form substantially identical to the electronic form in which the film is embodied in the main copy.

For this purpose, disregard a temporary copy of the film incidentally made as a necessary part of the technical process of making the main copy.

             (2)  The making of the main copy is not an infringement of copyright in the cinematograph film or in a work or other subject‑matter included in the film.

Dealing with main copy may make it an infringing copy

             (3)  Subsection (2) is taken never to have applied if the main copy is:

                     (a)  sold; or

                     (b)  let for hire; or

                     (c)  by way of trade offered or exposed for sale or hire; or

                     (d)  distributed for the purpose of trade or otherwise.

Note:          If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

             (4)  To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender's family or household for the member's private and domestic use.

Disposal of videotape may make the main copy an infringing copy

             (5)  Subsection (2) is taken never to have applied if the owner of the videotape disposes of it to another person.

Status of temporary copy

             (6)  If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary copy of the film as a necessary part of the technical process of making the main copy, then:

                     (a)  if the temporary copy is destroyed at the first practicable time during or after the making of the main copy--the making of the temporary copy does not infringe copyright in the film or in any work or other subject‑matter included in the film; or

                     (b)  if the temporary copy is not destroyed at that time--the making of the temporary copy is taken always to have infringed copyright (if any) subsisting in the film and in any work or other subject‑matter included in the film.

9AA  Review of new sections 47J and 110AA

(1)        The Minister must cause to be carried out by the end of 31 March 2008 a review of the operation of sections 47J and 110AA of the Copyright Act 1968 .

Note:       Those sections are inserted in that Act by this Part.

(2)        The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.


 

Part 3 -- Use of copyright material for certain purposes

Copyright Act 1968

9A  After section 41

Insert:

41A   Fair dealing for purpose of parody or satire

                   A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

9B  After section 103A

Insert:

103AA   Fair dealing for purpose of parody or satire

                   A fair dealing with an audio‑visual item does not constitute an infringement of the copyright in the item or in any work or other audio‑visual item included in the item if it is for the purpose of parody or satire.

10  After section 200AA

Insert:

200AB   Use of works and other subject‑matter for certain purposes

             (1)  The copyright in a work or other subject‑matter is not infringed by a use of the work or other subject‑matter if all the following conditions exist:

                     (a)  the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case;

                     (b)  the use is covered by subsection (2), (3) or (4);

                     (c)  the use does not conflict with a normal exploitation of the work or other subject‑matter;

                     (d)  the use does not unreasonably prejudice the legitimate interests of the owner of the copyright.

Use by body administering library or archives

             (2)  This subsection covers a use that:

                     (a)  is made by or on behalf of the body administering a library or archives; and

                     (b)  is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and

                     (c)  is not made partly for the purpose of the body obtaining a commercial advantage or profit.

Use by body administering educational institution

             (3)  This subsection covers a use that:

                     (a)  is made by or on behalf of a body administering an educational institution; and

                     (b)  is made for the purpose of giving educational instruction; and

                     (c)  is not made partly for the purpose of the body obtaining a commercial advantage or profit.

Use by or for person with a disability

             (4)  This subsection covers a use that meets all the following conditions:

                     (a)  the use is made by:

                              (i)  a person with a disability that causes difficulty in reading, viewing or hearing the work or other subject‑matter in a particular form; or

                             (ii)  someone else;

                     (b)  the use is made for the purpose of the person obtaining a reproduction or copy of the work or other subject‑matter in another form, or with a feature, that reduces the difficulty;

                     (c)  the use is not made partly for the purpose of obtaining a commercial advantage or profit.

This section does not apply if under another provision the use does not, or might not, infringe copyright

             (6)  Subsection (1) does not apply if, because of another provision of this Act:

                     (a)  the use is not an infringement of copyright; or

                     (b)  the use would not be an infringement of copyright assuming the conditions or requirements of that other provision were met.

Example 1: Paragraph (a)--Without using an appliance adapted for producing multiple copies or an appliance that can produce copies by reprographic reproduction, a school teacher reproduces a literary work in the course of educational instruction. Under subsection 200(1), the reproduction is not an infringement of copyright in the work, so this section does not apply.

Example 2: Paragraph (b)--A body administering an institution assisting persons with a print disability makes a Braille version of a published literary work. Under subsection 135ZP(2), making such a version does not infringe copyright in the work if certain conditions (relating to remuneration etc.) are met, so this section does not apply.

Cost recovery not commercial advantage or profit

          (6A)  The use does not fail to meet the condition in paragraph (2)(c), (3)(c) or (4)(c) merely because of the charging of a fee that:

                     (a)  is connected with the use; and

                     (b)  does not exceed the costs of the use to the charger of the fee.

Definitions

             (7)  In this section:

"conflict with a normal exploitation" has the same meaning as in Article 13 of the TRIPS Agreement.

"special case" has the same meaning as in Article 13 of the TRIPS Agreement.

"unreasonably prejudice the legitimate interests" has the same meaning as in Article 13 of the TRIPS Agreement.

"use" includes any act that would infringe copyright apart from this section.


 

Part 4 -- Fair dealing for research or study

Copyright Act 1968

11  Subsections 40(3) and (4)

Repeal the subsections, substitute:

             (3)  Despite subsection (2), a reproduction, for the purpose of research or study, of all or part of a literary, dramatic or musical work, or of an adaptation of such a work, contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study.

             (4)  Subsection (3) does not apply if another article in the publication is also reproduced for the purpose of different research or a different course of study.

             (5)  Despite subsection (2), a reproduction, for the purpose of research or study, of not more than a reasonable portion of a work or adaptation that is described in an item of the table and is not contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study. For this purpose, reasonable portion means the amount described in the item.

 

Works, adaptations and reasonable portions

Item

Work or adaptation

Amount that is reasonable portion

1

A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages

(a) 10% of the number of pages in the edition; or

(b) if the work or adaptation is divided into chapters--a single chapter

2

A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work

(a) 10% of the number of words in the work or adaptation; or

(b) if the work or adaptation is divided into chapters--a single chapter

             (6)  Subsection (5) applies to a reproduction of a work or adaptation described in both items of the table in that subsection even if the amount of the work or adaptation reproduced is not more than a reasonable portion (as defined in that subsection) on the basis of only one of those items.

             (7)  If:

                     (a)  a person makes a reproduction of a part of a published literary or dramatic work or published adaptation of a literary or dramatic work; and

                     (b)  the reproduction is of not more than a reasonable portion (as defined in subsection (5)) of the work or adaptation;

subsection (5) does not apply in relation to any subsequent reproduction made by the person of any other part of the same work or adaptation.

             (8)  Subsections 10(2), (2A), (2B) and (2C) do not affect subsection (5), (6) or (7) of this section.


 

Part 5 -- Official copying of library and archive material

Copyright Act 1968

12  At the end of subsections 49(2) and (2C)

Add:

Note:          The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

13  Subsection 49(4)

Omit "relate to the same subject matter", substitute "are requested for the same research or course of study".

14  After subsection 49(5)

Insert:

       (5AA)  For the purposes of subsection (5), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion .

        (5AB)  For the purposes of paragraph (5)(b), in determining whether a reproduction (not being a second‑hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

                     (a)  the time by which the person requesting the reproduction requires it; and

                     (b)  the time within which a reproduction (not being a second‑hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

                     (c)  whether an electronic reproduction of the work can be obtained within a reasonable time at an ordinary commercial price.

15  Subsection 49(9) (definition of library )

Repeal the definition, substitute:

"library" means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.

16  Subsection 49(9)

Insert:

"archives" means an archives all or part of whose collection is accessible to members of the public.

17  At the end of subsection 50(2)

Add:

Note:          The reproduction could be made from another reproduction of the article or published work in the collection of the other library that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

18  Subsection 50(6)

Omit "subsection (4)", substitute "subsection (3)".

19  After subsection 50(7B)

Insert:

        (7BA)  For the purposes of subsections (7A) and (7B), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion .

        (7BB)  For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii) and (iv), in determining whether a copy of the work, the work, the portion of the work or the article (as appropriate) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

                     (a)  the time by which the person requesting the reproduction under section 49 requires the reproduction; and

                     (b)  the time within which a reproduction (not being a second‑hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

                     (c)  whether the copy, work, portion or article can be obtained in electronic form within a reasonable time at an ordinary commercial price.

20  Subsection 50(7C)

Omit "subsection (4)", substitute "subsection (3)".

21  Subsections 50(8) and (9)

Repeal the subsections, substitute:

             (8)  Subsection (4) does not apply to a reproduction or communication of all or part of 2 or more articles that are contained in the same periodical publication and that have been requested for the same purpose unless:

                     (a)  the purpose is the one described in paragraph (1)(aa) (assisting a member of a Parliament perform his or her duties); or

                     (b)  the purpose is the one described in paragraph (1)(b) (supplying a reproduction to a person requesting it under section 49 for research or study) and the reproduction of the articles was requested under section 49 for the same research or course of study.

22  Subsection 50(10)

Insert:

"library" means:

                     (a)  a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans; or

                     (b)  a library whose principal purpose is to provide library services for members of a Parliament; or

                     (c)  an archives all or part of whose collection is accessible to members of the public.

23  Subsection 51A(4)

Repeal the subsection, substitute:

             (4)  Subsection (1) does not apply in relation to a work held in published form in the collection of a library or archives unless an authorized officer of the library or archives has, after reasonable investigation, made a declaration:

                     (a)  stating that he or she is satisfied that a copy (not being a second‑hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

                     (b)  if he or she is satisfied that a copy (not being a second‑hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price--stating why the reproduction should be made from the copy of the work held in the collection.

24  Subsection 51A(6)

Insert:

"administrative purposes" means purposes directly related to the care or control of the collection.

25  Subsection 51A(6)

Insert:

"officers of the library or archives" includes volunteers assisting with the care or control of the collection.

26  After section 51A

Insert:

51B   Making preservation copies of significant works in key cultural institutions' collections

             (1)  This section applies in relation to a work held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the work is of historical or cultural significance to Australia.

Manuscript

             (2)  If the work is held in the form of a manuscript, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the manuscript for the purpose of preserving it against loss or deterioration.

Original artistic work

             (3)  If the work is held in the form of an original artistic work, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 comprehensive photographic reproductions of the work from the original artistic work for the purpose of preserving it against loss or deterioration if the officer is satisfied that a photographic reproduction (not being a second‑hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

Published work

             (4)  If the work is held in published form, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the copy held in the collection, for the purpose of preserving the work against loss or deterioration, if the officer is satisfied that:

                     (a)  a copy (not being a second‑hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

                     (b)  if the officer is satisfied that a copy (not being a second‑hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price--it is appropriate that the reproduction should be made from the copy of the work held in the collection.

Electronic copies and commercial availability

             (5)  In determining for the purposes of subsection (3) or (4) whether a reproduction or copy (not being a second‑hand reproduction or copy) of the work, or of a particular edition of the work, cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the work or edition can be obtained within a reasonable time at an ordinary commercial price.

Relationship with the rest of this Division

             (6)  This section does not limit the rest of this Division. The rest of this Division does not limit this section.

27  After section 110B

Insert:

110BA   Making preservation copies of significant recordings and films in key cultural institutions' collections

             (1)  This section applies in relation to a sound recording or cinematograph film held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the recording or film is of historical or cultural significance to Australia.

First record, or unpublished record, embodying sound recording

             (2)  If the sound recording is held in the form of the first record, or an unpublished record, embodying the recording, copyright in the recording is not infringed by an authorized officer of the library or archives making up to 3 copies of the recording from the record for the purpose of preserving the recording against loss or deterioration.

Published sound recording

             (3)  If the sound recording is held in published form, the copyright in the recording is not infringed by an authorized officer of the library or archives making up to 3 copies of the recording from the published record for the purpose of preserving the recording against loss or deterioration if the officer is satisfied that a copy of the recording (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

First copy, or unpublished copy, of film

             (4)  If the cinematograph film is held in the form of the first copy, or an unpublished copy, of the film, copyright in the film is not infringed by an authorized officer of the library or archives making up to 3 copies of the film from the first copy or unpublished copy for the purpose of preserving the film against loss or deterioration.

Published film

             (5)  If the cinematograph film is held in a published form, copyright in the film is not infringed by an authorized officer of the library or archives making up to 3 copies of the film from the published copy held in the collection, for the purpose of preserving the film against loss or deterioration, if the officer is satisfied that a copy of the film (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

Commercial availability of copy of recording or film

             (6)  For the purposes of subsections (3) and (5), in determining whether a copy (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy can be obtained within a reasonable time at an ordinary commercial price.

Work or other subject‑matter included in recording or film

             (7)  If under this section, copyright in the sound recording or cinematograph film is not infringed by the making of a copy of the recording or film, the making of that copy does not infringe copyright in any work or other subject‑matter included in the recording or film.

Relationship with the rest of this Division

             (8)  This section does not limit any of the other provisions of this Division that provide that an act (however described) does not infringe copyright. Those other provisions do not limit this section.

28  Subparagraphs 112(a)(ii) and (b)(ii)

After "51A,", insert "51B,".

29  After section 112A

Insert:

112AA   Making preservation copies of significant published editions in key cultural institutions' collections

             (1)  This section applies in relation to a published edition of one or more works held in the collection of a library or archives if:

                     (a)  the body administering the library or archives:

                              (i)  has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                             (ii)  is prescribed by the regulations for the purposes of this subparagraph; and

                     (b)  an authorized officer of the library or archives is satisfied that the edition is of historical or cultural significance to Australia.

Published editions

             (2)  The copyright in the published edition is not infringed by an authorized officer of the library or archives making up to 3 facsimile copies of the edition from the copy held in the collection, for the purpose of preserving the edition against loss or deterioration, if the officer is satisfied that a copy or facsimile copy of the edition (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

             (3)  In determining whether a copy (not being a second‑hand copy) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the edition can be obtained within a reasonable time at an ordinary commercial price.

Works in published editions

             (4)  If, under this section, copyright in the published edition is not infringed by the making of a facsimile copy of the edition, the making of that copy does not infringe copyright in any of the works in the published edition.

Relationship with the rest of this Division

             (5)  This section does not limit any of the other provisions of this Division that provide that an act (however described) does not infringe copyright. Those other provisions do not limit this section.


 



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