COPYRIGHT AMENDMENT (PARALLEL IMPORTATION) ACT 2003 NO. 34, 2003 - SCHEDULE 1

Commonwealth Numbered Acts

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COPYRIGHT AMENDMENT (PARALLEL IMPORTATION) ACT 2003 NO. 34, 2003 - SCHEDULE 1

- Computer software

Copyright Act 1968

1 Subsection 10(1) (definition of accessory )

Omit the word and paragraphs after "but does not", substitute "include any label, packaging or container on which the olympic symbol (within the meaning of the Olympic Insignia Protection Act 1987 ) is reproduced.".

2 Subsection 10(1) (at the end of the definition of accessory)

Add:

: Note: See also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

3 Subsection 10(1)

Insert:

electronic literary or music item means:

(a): a book in electronic form; or
(b): a periodical publication in electronic form; or
(c): sheet music in electronic form;

regardless of whether there is a printed form.

4 Subsection 10(1) (at the end of the definition of infringing copy)

Add:

(j): a non-infringing copy of an electronic literary or music item whose importation does not infringe that copyright.

5 Subsection 10(1) (paragraph (c) of the definition of non-infringing accessory)

After "that is", insert ", or is".

6 Subsection 10(1) (definition of non-infringing copy)

Repeal the definition, substitute:

non-infringing copy :

(a): in relation to a sound recording, has the meaning given by section 10AA; and
(b): in relation to a computer program, has the meaning given by section 10AB; and
(c): in relation to an electronic literary or music item, has the meaning given by section 10AC.

7 Subsection 10(1)

Insert:

qualifying country means:

(a): a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or
(b): a country that is a member of the World Trade Organization and has a law that provides consistently with the TRIPS Agreement for:

(i) the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and
(ii) the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film.
8 After section 10AA

Insert:

10AB Non-infringing copy of a computer program

A copy of a computer program is a non-infringing copy only if:

(a): it is made in a qualifying country; and
(b): its making did not constitute an infringement of any copyright in a work under a law of that country.

10AC Non-infringing copy of an electronic literary or music item

A copy of an electronic literary or music item is a non-infringing copy only if:

(a): it is made in a qualifying country; and
(b): its making did not constitute an infringement of any copyright in a work, or in a published edition of a work, under a law of that country.

10AD Accessories to imported articles

Accessories

(1) If a person imports into Australia:

(a): an article that has embodied in it a copy of a computer program; or
(b): an article that has embodied in it a copy of an electronic literary or music item;

a copy of any work or other subject matter (other than a feature film) that is on, embodied in, or included with, the article on its importation is taken to be an accessory to the article.

: Note: See also sections 44C and 112C (about the non-infringement of copyright in works or other subject matter that are accessories to imported articles).

Definition

(2) In this section:

feature film means a cinematograph film that:

(a): is produced wholly or principally:

(i) for exhibition to the public in cinemas or by way of television broadcasting; or
(ii) for sale or rental to the public where it is reasonable to assume that the viewing of the film (without electronic interactive involvement with the film) would be the primary object of any such sale or rental; and

(b): is more than 20 minutes in duration.

Interpretation

(3) This section does not limit the meaning of accessory in subsection 10(1).
9 Subsection 44C(1)

After "which is", insert ", or is".

10 At the end of subsection 44C(1)

Add:

: Note: See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

11 Subsection 44C(2)

After "that is", insert ", or is".

12 After section 44D

Insert:

44E Importation and sale etc. of copies of computer programs

The copyright in a literary work:

(a): that is a computer program; and
(b): that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c): imports into Australia an article that has embodied in it a non-infringing copy of the program; or
(d): does an act mentioned in section 38 involving an article that has embodied in it a non-infringing copy of the program and that has been imported into Australia by anyone.

: Note: Section 130B deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

44F Importation and sale etc. of copies of electronic literary or music items
The copyright in a work:

(a): that is, or is part of, an electronic literary or music item; and
(b): that has been published in Australia or a qualifying country;

is not infringed by a person who:

(c): imports into Australia an article that has embodied in it a non-infringing copy of the electronic literary or music item; or
(d): does an act mentioned in section 38 involving an article that has embodied in it a non-infringing copy of the electronic literary or music item and that has been imported into Australia by anyone.

: Note: Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

13 Subsection 102(1)

Omit "112C and 112D", substitute "112C, 112D and 112DA".

14 Subsection 103(1)

Omit "112C and 112D", substitute "112C, 112D and 112DA".

15 At the end of subsection 112C(1)

Add:

: Note: See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

16 After section 112D

Insert:

112DA Importation and sale etc. of copies of electronic literary or music items
If, in relation to a published edition of a work:

(a): the work is, or is part of, an electronic literary or music item; and
(b): the edition has been published in Australia or a qualifying country;

then the copyright in the published edition is not infringed by a person who:

(c): imports into Australia an article that has embodied in it a non-infringing copy of the electronic literary or music item; or
(d): does an act mentioned in section 103 involving an article that has embodied in it a non-infringing copy of the electronic literary or music item and that has been imported into Australia by anyone.

: Note: Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

17 After section 130A

Insert:

130B Acts relating to imported copies of computer programs

In an action by a plaintiff for infringement of copyright described in section 37 or 38:

(a): relating to the plaintiff's copyright in a literary work that is a computer program; and
(b): involving an article that has embodied in it a copy of the program;

it must be presumed, unless the defendant proves otherwise, that the copy is not a non-infringing copy so far as it relates to the plaintiff's copyright.

: Note: Sections 37 and 38 deal with infringement of copyright in literary works (among other things) by commercial importation and dealings involving articles.

130C Acts relating to imported copies of electronic literary or music items
In an action by a plaintiff for infringement of copyright described in section 37, 38, 102 or 103:

(a): relating to the plaintiff's copyright in a work, or in a published edition of a work, that is, or is part of, an electronic literary or music item; and
(b): involving an article that has embodied in it a copy of the electronic literary or music item;

it must be presumed, unless the defendant proves otherwise, that the copy is not a non-infringing copy so far as it relates to the plaintiff's copyright.

: Note 1: Sections 37 and 38 deal with infringement of copyright in a work by commercial importation and dealings involving articles.

18 Subsection 135(10)

Omit "112A or 112D", substitute "44E, 44F, 112A, 112D or 112DA".

19 After section 198

Insert:

198A Non-infringement of trade mark in relation to the importation of copyright material
(1) A person who uses a registered trade mark in relation to imported goods that are similar to goods in respect of which the trade mark is registered does not infringe the trade mark if:

(a): the importation would have constituted an infringement of copyright except for the operation of a parallel importation provision; and
(b): the trade mark was applied to, or in relation to, the goods before the importation (whether the mark was applied before or after the commencement of this section); and
(c): the trade mark was applied by, or with the consent of:

(i) a person who, at the time the mark was applied, was the registered owner of the mark; or
(ii) a person who, at the time the mark was applied, was the owner of the mark in the place where the mark was applied and who had been a registered owner of the mark at any time before then.
(2) Unless the contrary intention appears, an expression used in this section has the same meaning as in the Trade Marks Act 1995 .
(3) In this section:

parallel importation provision means:

(a): section 44E, 44F or 112DA; or
(b): section 44C or 112C (in so far as that section applies in relation to an accessory to an article of the kind mentioned in subsection 10AD(1)).

20 Application

The amendments made by this Schedule apply in relation to the following:

(a): works, or published editions of works, published before or after the commencement of this Schedule;
(b): copies of computer programs imported into Australia after the commencement of this Schedule (regardless of whether they were made before or after the commencement of this Schedule);
(c): copies of electronic literary or music items imported into Australia after the commencement of this Schedule (regardless of whether they were made before or after the commencement of this Schedule).

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