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COPYRIGHT AMENDMENT (PARALLEL IMPORTATION) ACT 2003 NO. 34, 2003 - SCHEDULE 4

- Enforcement

Copyright Act 1968

1 After subparagraph 115(4)(b)(i)

Insert:

(ia) the need to deter similar infringements of copyright; and
(ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and
2 After section 126

Insert:

126A Evidence in relation to subsistence of copyright

(1) This section applies to an action under this Part in which the defendant puts in issue the question whether copyright subsists in the work or other subject matter to which the action relates.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

(3) If a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then the certificate or other document is admissible as prima facie evidence of the facts so stated.
(4) For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (3) is, unless the contrary intention is established, taken to be such a certificate or document.

126B Evidence in relation to ownership of copyright

(1) This section applies to an action under this Part in which the defendant puts in issue the question of the plaintiff's ownership of copyright in the work or other subject matter to which the action relates.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

(3) If a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the certificate or other document is admissible as prima facie evidence of the facts so stated.
(4) For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (3) is, unless the contrary intention is established, taken to be such a certificate or document.

Chains of ownership

(5) If:

(a)
subsection (2) or (3) applies; and

(b)
the plaintiff produces a document stating the following:

(i) each subsequent owner of the copyright the subject of the action (including the plaintiff's ownership);
(ii) the date each subsequent owner became the owner of that copyright;
(iii) a description of the transaction resulting in each subsequent owner becoming the owner of that copyright;

then the document is admissible as prima facie evidence of the facts so stated.

(6) If:

(a)
neither subsection (2) nor (3) applies; and

(b)
the plaintiff produces a document stating the following:

(i) the original owner of the copyright the subject of the action;
(ii) each subsequent owner of that copyright (including the plaintiff's ownership);
(iii) the date each owner became the owner of that copyright;
(iv) a description of the transaction resulting in each owner becoming the owner of that copyright;

then the document is admissible as prima facie evidence of the facts so stated.

Offence

(7) A person is guilty of an offence if:

(a)
the person produces a document under subsection (5) or (6); and

(b)
the person is reckless as to whether the document is false or misleading.

Penalty: 30 penalty units.

(8) Strict liability applies to the element of the offence against subsection (7) that the document is produced under subsection (5) or (6).

Note: For strict liability , see section 6.1 of the Criminal Code .

3 Section 130

Omit "first so".

4 Section 130

Omit "that label or mark is sufficient evidence of the facts so stated except in so far as the contrary is established", substitute "then the label or mark is admissible as prima facie evidence of the facts so stated".

5 At the end of section 130

Add:

(2) In an action brought by virtue of this Part in relation to copyright in a sound recording, if:

(a)
records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

(b)
at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark consisting of the letter "P" in a circle accompanied by a specified year and the name of a person;

then the label or mark is admissible as prima facie evidence that the recording was first published in that specified year and that the named person was the owner of copyright in the recording in the place and at the time at which the label or mark was affixed to the records or their containers.

6 At the end of Division 4A of Part V

Add:

131D Jurisdiction of Federal Magistrates Court

Jurisdiction is conferred on the Federal Magistrates Court with respect to civil actions under this Part.
7 Subsection 132(6AB)

Repeal the subsection, substitute:

(6AB) If:

(a)
either:

(i) a person contravenes subsection (1) because of the doing of an act referred to in paragraph (1)(a), (b) or (c); or
(ii) a person contravenes subsection (2) or (2A); and

(b)
subsection (6AA) does not apply;

the person is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

(6AC) If:

(a)
a person contravenes subsection (1) because of the doing of an act referred to in paragraph (1)(d); and

(b)
subsection (6AA) does not apply;

the person is guilty of an offence punishable on summary conviction by a fine of not more than 650 penalty units and/or imprisonment for not more than 5 years.

8 After section 132

Insert:

132A Presumptions in relation to subsistence and ownership of copyright
(1) This section applies to a prosecution for an offence against section 132 in relation to a work or other subject matter.

Labels or marks

(2) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then the label or mark is admissible as prima facie evidence of the facts so stated.
(3) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the label or mark is admissible as prima facie evidence of the facts so stated.

Foreign certificates

(4) If a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then the certificate or other document is admissible as prima facie evidence of the facts so stated.
(5) If a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the certificate or other document is admissible as prima facie evidence of the facts so stated.
(6) For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (4) or (5) is, unless the contrary intention is established, taken to be such a certificate or document.

132B Evidence in relation to sound recordings

(1) In a prosecution for an offence against section 132 in relation to a sound recording, if:

(a)
records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

(b)
at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark containing a statement:

(i) that a person specified on the label or mark was the maker of the recording; or
(ii) that the recording was first published in a year specified on the label or mark; or
(iii) that the recording was first published in a country specified on the label or mark;

then the label or mark is admissible as prima facie evidence of the facts so stated.

(2) In a prosecution for an offence against section 132 in relation to a sound recording, if:

(a)
records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public; and

(b)
at the time when records embodying the recording or part of the recording were supplied, the records or their containers bore a label or other mark consisting of the letter "P" in a circle accompanied by a specified year and the name of a person;

then the label or mark is admissible as prima facie evidence that the recording was first published in that specified year and that the named person was the owner of copyright in the recording in the place and at the time at which the label or mark was affixed to the records or their containers.

9 Paragraph 133A(1)(a)

Omit "computer program", substitute "work or other subject matter".

Note: The heading to section 133A is altered by omitting " computer programs " and substituting " works or other subject matter ".

10 Subsection 133A(2)

Repeal the subsection, substitute:

(2) For the purposes of this section, a communication of a work or other subject matter that, when received and recorded, will result in the creation of a copy of the work or other subject matter is taken to constitute the supply of a copy of the work or other subject matter at the place where the copy will be created.
11 At the end of Division 3 of Part VAA

Add:

135ARA Jurisdiction of Federal Magistrates Court

Jurisdiction is conferred on the Federal Magistrates Court with respect to civil actions under this Part.
12 At the end of section 195AZC

Add:

(5) The Federal Magistrates Court has jurisdiction with respect to matters arising under this Part.
13 After section 248M

Insert:

248MA Jurisdiction of Federal Magistrates Court

Jurisdiction is conferred on the Federal Magistrates Court with respect to actions under section 248J.
14 Application

(1) The amendments made by items 1, 2, 3, 4 and 5 apply to actions brought after the commencement of those items.
(2) The amendments made by items 6, 11, 12 and 13 apply in relation to matters or actions instituted after the commencement of those items.
(3) The amendment made by item 7 applies to acts and omissions that take place after the commencement of that item.
(4) The amendment made by item 8 applies to prosecutions brought after the commencement of that item.
(5) The amendments made by items 9 and 10 apply in relation to publications after the commencement of those items.

15 Review of operation of this Schedule

(1) The Minister must cause a review of the operation of the amendments made by this Schedule to be carried out as soon as practicable after the fourth anniversary of the commencement of this Schedule.
(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.



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