Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Part VAA
Repeal the Part, substitute:
Part VAA -- Unauthorised access to encoded broadcasts
In this Part:
"action" means a proceeding of a civil nature between parties, including a counterclaim.
"broadcaster" means a person licensed under the Broadcasting Services Act 1992 to provide a broadcasting service (as defined in that Act) by which an encoded broadcast is delivered.
"channel provider" means a person who:
(a) packages a channel (which might include programs produced by the person); and
(b) supplies a broadcaster with the channel; and
(c) carries on a business that involves the supply of the channel;
where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service.
"decoder" means a device (including a computer program) designed or adapted to decrypt, or facilitate the decryption of, an encoded broadcast.
"encoded broadcast" means:
(a) a subscription broadcast; or
(b) a broadcast (except a radio broadcast or subscription broadcast) that is encrypted and is delivered by a commercial broadcasting service, or a national broadcasting service, within the meaning of the Broadcasting Services Act 1992 .
"subscription broadcast" means a broadcast that is encrypted and is made available by the broadcaster only to persons authorised by the broadcaster to access the broadcast in intelligible form.
"unauthorised decoder" means a device (including a computer program) designed or adapted to decrypt, or facilitate the decryption of, an encoded broadcast without the authorisation of the broadcaster.
In the application of this Part in relation to a counterclaim, references to the defendant are to be read as references to the plaintiff.
135AN This Part does not apply to law enforcement activity etc.
This Part does not apply in relation to 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 in proceedings for an offence against this Part bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code ).
Subdivision A -- Actions relating to unauthorised decoders
135AOA Making or dealing with unauthorised decoder
(1) A channel provider, or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast, may bring an action against a person if:
(a) the person does any of the acts described in subsection (2) with an unauthorised decoder; and
(b) the person knows, or ought reasonably to know, that the unauthorised decoder will be used to enable someone to gain access to an encoded broadcast without the authorisation of the broadcaster.
(2) The acts with the unauthorised decoder are as follows:
(a) making the unauthorised decoder;
(b) selling the unauthorised decoder or letting it for hire;
(c) by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing the unauthorised decoder for sale or hire;
(d) exhibiting the unauthorised decoder in public by way of trade or with the intention of obtaining a commercial advantage or profit;
(e) distributing the unauthorised decoder (including by exporting it from Australia) for the purpose of trade, or for a purpose that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast;
(f) importing the unauthorised decoder into Australia for the purpose of:
(i) selling the unauthorised decoder or letting it for hire; or
(ii) by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing the unauthorised decoder for sale or hire; or
(iii) exhibiting the unauthorised decoder in public by way of trade or with the intention of obtaining a commercial advantage or profit; or
(iv) distributing the unauthorised decoder for the purpose of trade, or for a purpose that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast;
(g) making the unauthorised decoder available online to an extent that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast.
(3) The action may be brought only within 6 years of the act.
(4) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the unauthorised decoder would be used as described in paragraph (1)(b), unless the defendant proves otherwise.
Subdivision B -- Actions relating to decoders for subscription broadcasts
135AOB Making decoder available online
(1) This section permits an action to be brought against a person if:
(a) a decoder was supplied (to the person or someone else) by, or with the authorisation of, the broadcaster (the supplying broadcaster ) of a subscription broadcast; and
(b) the person makes the decoder available online to an extent that will prejudicially affect any of the following persons (the affected parties ):
(i) anyone with an interest in the copyright in a subscription broadcast by the supplying broadcaster;
(ii) anyone with an interest in the copyright in the content of a subscription broadcast by the supplying broadcaster;
(iii) a channel provider who supplies the supplying broadcaster with a channel for a subscription broadcast; and
(c) the person knows, or ought reasonably to know, that the decoder will be used to enable someone to gain access to a subscription broadcast without the authorisation of the broadcaster.
(2) The action may be brought by any of the affected parties but only within 6 years of the person first making the decoder available online as described in paragraph (1)(b).
(3) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the decoder would be used as described in paragraph (1)(c), unless the defendant proves otherwise.
Subdivision C -- Actions for unauthorised access to encoded broadcasts
135AOC Causing unauthorised access
(1) This section permits an action to be brought against a person if:
(a) without the authorisation of the broadcaster of an encoded broadcast, the person does an act causing the person or anyone else to gain access in intelligible form to the broadcast or sounds or images from the broadcast; and
(b) the access will prejudicially affect any of the following persons (the affected parties ):
(i) anyone with an interest in the copyright in an encoded broadcast by the broadcaster;
(ii) anyone with an interest in the copyright in the content of an encoded broadcast by the broadcaster;
(iii) a channel provider who supplies the broadcaster with a channel for an encoded broadcast; and
(c) the person knows, or ought reasonably to know, that the access is not authorised by the broadcaster.
Note: Paragraph (a)--examples of causing a person to gain access to the broadcast or sounds or images from the broadcast include:
(a) using, or authorising the use of, a decoder so the person gains access to the broadcast, sounds or images; and
(b) distributing, or authorising the distribution of, the sounds or images to the person after they are obtained from the broadcast using a decoder.
(2) The action may be brought by any of the affected parties but only within 6 years of the act.
(3) Subsection (1) does not apply to:
(a) an act consisting merely of one or more of the following:
(i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);
(ii) listening to sounds in or from the broadcast and/or seeing images in or from the broadcast;
(iii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; or
(b) access to the sounds or images gained from:
(i) a cinematograph film, or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (b)--the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
135AOD Unauthorised commercial use of subscription broadcast
(1) This section permits an action to be brought against a person if:
(a) without the authorisation of the broadcaster of a subscription broadcast, the person uses the broadcast, or sounds or images from the broadcast, by way of trade or with the intention of obtaining a commercial advantage or profit; and
(b) the use prejudicially affects any of the following persons (the affected parties ):
(i) anyone with an interest in the copyright in the broadcast;
(ii) anyone with an interest in the copyright in any content of the broadcast;
(iii) the channel provider who supplied the broadcaster with the channel for the broadcast; and
(c) the person knows, or ought reasonably to know, that the use is not authorised by the broadcaster.
(2) The action may be brought by any of the affected parties but only within 6 years of the use.
(1) The relief that a court may grant in an action under this Division includes an injunction (subject to the terms, if any, the court thinks fit) and either damages or an account of profits.
(2) In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:
(a) the flagrancy with which the defendant did any of the relevant acts; and
(b) the need to deter acts similar to the relevant acts; and
(c) any benefit shown in an action under Subdivision A or B to have accrued to the defendant as a result of making or dealing with the decoder; and
(d) any benefit shown in an action under Subdivision C to have accrued to the defendant or any trade or business carried on by, or in association with, the defendant; and
(e) all other relevant matters.
In an action under this Division, the court may order that the relevant decoder (if any) be destroyed or dealt with as specified in the order.
Subdivision E -- Jurisdiction and appeals
135AP Exercise of jurisdiction
The jurisdiction of the Supreme Court of a State or Territory in an action under the Part is to be exercised by a single Judge of the Court.
(1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.
(2) An appeal lies from a decision of a court of a State or Territory under this Part:
(a) to the Federal Court of Australia; or
(b) by special leave of the High Court, to the High Court.
135AR Jurisdiction of Federal Court of Australia
Jurisdiction is conferred on the Federal Court of Australia with respect to actions under this Part.
135AS Jurisdiction of Federal Magistrates Court
Jurisdiction is conferred on the Federal Magistrates Court with respect to actions under this Part.
135ASA Making unauthorised decoder
(1) A person commits an offence if:
(a) the person makes an unauthorised decoder; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASB Selling or hiring unauthorised decoder
(1) A person commits an offence if:
(a) the person sells or lets for hire an unauthorised decoder; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASC Offering unauthorised decoder for sale or hire
(1) A person commits an offence if:
(a) with the intention of obtaining a commercial advantage or profit, the person offers or exposes an unauthorised decoder for sale or hire; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(2) A person commits an offence if:
(a) the person offers or exposes an unauthorised decoder for sale or hire; and
(b) the offer or exposure is by way of trade; and
(c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASD Commercially exhibiting unauthorised decoder in public
(1) A person commits an offence if:
(a) the person exhibits an unauthorised decoder in public with the intention of obtaining a commercial advantage or profit; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(2) A person commits an offence if:
(a) the person exhibits an unauthorised decoder in public; and
(b) the exhibition is by way of trade; and
(c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASE Importing unauthorised decoder commercially
(1) A person commits an offence if:
(a) the person imports an unauthorised decoder into Australia with the intention of doing any of the following with the unauthorised decoder:
(i) selling the unauthorised decoder;
(ii) letting the unauthorised decoder for hire;
(iii) offering or exposing the unauthorised decoder for sale or hire, by way of trade or to obtain a commercial advantage or profit;
(iv) exhibiting the unauthorised decoder in public by way of trade or to obtain a commercial advantage or profit;
(v) distributing the unauthorised decoder for trade;
(vi) distributing the unauthorised decoder to obtain a commercial advantage or profit;
(vii) distributing the unauthorised decoder in preparation for, or in the course of, engaging in an activity that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASF Distributing unauthorised decoder
(1) A person commits an offence if:
(a) the person distributes (including by exporting from Australia) an unauthorised decoder with the intention of:
(i) trading; or
(ii) obtaining a commercial advantage or profit; or
(iii) engaging in any other activity that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASG Making unauthorised decoder available online
(1) A person commits an offence if:
(a) the person makes an unauthorised decoder available online; and
(b) the unauthorised decoder is made available online to an extent that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and
(c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
(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 ).
135ASH Making decoder available online for subscription broadcast
(1) A person commits an offence if:
(a) a decoder was supplied (to the person or anyone else) by, or with the authorisation of, the broadcaster of a subscription broadcast; and
(b) the person makes the decoder available online; and
(c) the decoder is made available online without the authorisation of the broadcaster; and
(d) the decoder will be used to enable a person to gain access to a subscription broadcast without the authorisation of the broadcaster; and
(e) the decoder is made available online to an extent that will prejudicially affect any of the following:
(i) anyone with an interest in the copyright in a subscription broadcast by the broadcaster;
(ii) anyone with an interest in the copyright in the content of a subscription broadcast by the broadcaster;
(iii) a channel provider who supplies the broadcaster with a channel for a subscription broadcast.
(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 ).
135ASI Unauthorised access to subscription broadcast etc.
A person commits an offence if:
(a) the person does an act; and
(b) the act (either alone or in conjunction with other acts) results in the person gaining access in intelligible form to a subscription broadcast or sounds or images from a subscription broadcast; and
(c) the access is not authorised by the broadcaster and the person knows that; and
(d) the act does not consist merely of one or more of the following:
(i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);
(ii) listening to sounds in or from the broadcast and/or seeing images in or from the broadcast;
(iii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; and
(e) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film or recording.
Note: The making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
Penalty: 60 penalty units.
135ASJ Causing unauthorised access to encoded broadcast etc.
(1) A person commits an offence if:
(a) the person does an act; and
(b) the act is done by way of trade; and
(c) the act results in the person or anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and
(d) the access is not authorised by the broadcaster; and
(e) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)--the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
(2) A person commits an offence if:
(a) the person does an act with the intention of obtaining a commercial advantage or profit; and
(b) the act results in the person or anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and
(c) the access is not authorised by the broadcaster; and
(d) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)--the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
(3) A person commits an offence if:
(a) the person does an act; and
(b) the act results in anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and
(c) the access is not authorised by the broadcaster and the person knows that; and
(d) the act does not consist merely of one or more of the following:
(i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);
(ii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; and
(e) the access to the sounds or images is not gained from:
(i) a cinematograph film, or sound recording, made of the encoded broadcast; or
(ii) a copy of such a film or recording.
Note: Paragraph (e)--the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.
(4) An offence against subsection (1), (2) or (3) 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 ).
135ATA 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 summary offences against this Division.
(4) Also, section 4J (except subsection 4J(2)) of the Crimes Act 1914 applies in relation to the Federal Court of Australia and an indictable offence against this Division in the way in which that section would apply if that court were a court of summary jurisdiction.
Note: Section 4J of the Crimes Act 1914 lets a court of summary jurisdiction try indictable offences in certain circumstances and subject to limits on the penalties the court can impose.
Subdivision C -- Further orders by court
135AU Destruction etc. of unauthorised decoders
(1) The court trying a person for an offence against this Division may order that any article in the person's possession that appears to the court to be an unauthorised decoder be destroyed or otherwise dealt with as specified in the order.
(2) The court may make the order whether the person is convicted of the offence or not.
2 Application
Part VAA of the Copyright Act 1968 as amended by this Schedule applies to acts done on or after the commencement of this Schedule.