Commonwealth Numbered Acts

COPYRIGHT (WORLD TRADE ORGANIZATION AMENDMENTS) ACT 1994 No. 149 of 1994 - SECT 9

9. After section 135 of the Principal Act the following sections are inserted
in Part V: Security for expenses of seizure

"135AA. The Comptroller-General may refuse to seize copies under subsection
135(7) unless:

   (a)  the objector has deposited with the Comptroller-General a sum of money
        that, in the opinion of the Comptroller-General, is sufficient to
        reimburse the Commonwealth for the reasonable expenses it is likely to
        incur as a result of the seizure of the copies; or

   (b)  the objector has given security, to the satisfaction of the
        Comptroller-General, for the reimbursement of the Commonwealth for
        those expenses.

Secure storage of seized copies

"135AB. Seized copies must be taken to such secure place as the
Comptroller-General directs.

Notice of seizure

"135AC. (1) As soon as is practicable after copies are seized under subsection
135(7), the Comptroller-General must give to the importer and the objector,
either personally or by post, a written notice identifying the copies and
stating that the identified copies have been seized.



"(2) A notice under subsection (1) must state that the copies will be released
to the importer unless:

   (a)  an action for infringement of copyright in respect of the copies is
        instituted by the objector within a specified period from the day
        specified in the notice; and

   (b)  the objector gives written notice to the Comptroller-General within
        that period stating that the action for infringement of copyright has
        been instituted.



"(3) The period to be specified for the purposes of paragraph (2)(a) is the
period prescribed for the purposes of that paragraph.



"(4) The day specified for the purposes of paragraph (2)(a) must not be
earlier than the day on which the notice is given.



"(5) The objector may, by written notice given to the Comptroller-General
before the end of the period specified in a notice for the purposes of
paragraph (2)(a) ('the retention period'), request that the period be
extended.



"(6) Subject to subsection (7), if:

   (a)  a request is made in accordance with subsection (5); and

   (b)  the Comptroller-General is satisfied that it is reasonable that the
        request be granted; the Comptroller-General may extend the retention
        period by such period as is prescribed.



"(7) A decision on a request made in accordance with subsection (5) must be
made within 24 hours after the request is made. However, such a decision
cannot be made after the end of the retention period to which the request
relates.

Inspection, release etc. of seized copies

"135AD. (1) The Comptroller-General may permit the objector or the importer to
inspect the seized copies.



"(2) If the objector gives the Comptroller-General the requisite undertakings,
the Comptroller-General may permit the objector to remove one sample of the
seized copies from the custody of the Comptroller-General for inspection by
the objector.



"(3) If the importer gives the Comptroller-General the requisite undertakings,
the Comptroller-General may permit the importer to remove one sample of the
seized copies from the custody of the Comptroller-General for inspection by
the importer.



"(4) The requisite undertakings are undertakings in writing that the person
giving the undertaking will:

   (a)  return the sample copy to the Comptroller-General at a specified time
        that is satisfactory to the Comptroller-General; and

   (b)  take reasonable care to prevent damage to the sample copy.



"(5) If the Comptroller-General permits inspection of the seized copies, or
the removal of a sample copy, by the objector in accordance with this section,
the Commonwealth is not liable to the importer for any loss or damage suffered
by the importer arising out of:

   (a)  damage to any of the seized copies incurred during that inspection; or

   (b)  anything done by the objector or any other person to, or in relation
        to, a sample copy removed from the custody of the Comptroller-General
        or any use made by the objector of such a sample copy.

Forfeiture of seized copies by consent

"135AE. (1) Subject to subsection (2), the importer may, by written notice to
the Comptroller-General, consent to the seized copies being forfeited to the
Commonwealth.



"(2) The notice must be given before any action for infringement of copyright
in relation to the copies is instituted.



"(3) If the importer gives such a notice, the copies are forfeited to the
Commonwealth and must be disposed of:

   (a)  in the manner prescribed by the regulations; or

   (b)  if no manner of disposal is so prescribed-as the Comptroller-General
        directs.

Compulsory release of seized copies to the importer

"135AF. (1) The Comptroller-General must release seized copies (not being
copies forfeited to the Commonwealth under section 135AE) to the importer on
the expiration of the retention period for the copies if the objector has not,
before the expiration of that period:

   (a)  instituted an action for infringement of the relevant copyright in
        respect of the copies; and

   (b)  given written notice to the Comptroller-General stating that the
        action has been instituted.



"(2) For the purpose of subsection (1), the retention period for seized copies
is:

   (a)  the period specified in a notice given under subsection 135AC(1) in
        respect of the copies; or

   (b)  if that period has been extended under subsection 135AC(6), that
        period as so extended.



"(3) If:

   (a)  an action for infringement of copyright has been instituted in respect
        of seized copies; and

   (b)  at the end of a period of 3 weeks commencing on the day on which the
        action was instituted, there is not in force an order of the court in
        which the action was instituted preventing the release of the copies;
        the Comptroller-General must release the copies to the importer.



"(4) If the objector gives written notice to the Comptroller-General stating
that he or she consents to the release of the seized copies, the
Comptroller-General must release the copies to the importer.



"(5) This section has effect subject to section 135AH.

Provision relating to actions for infringement of copyright

"135AG. (1) In this section, 'infringement action' means an action for an
infringement of copyright constituted by the importation of seized copies.



"(2) The court in which an infringement action is pending may, on the
application of a person having a sufficient interest in the subject-matter of
the action, allow the person to be joined as a defendant to the action.



"(3) The Comptroller-General is entitled to be heard on the hearing of an
infringement action.



"(4) In addition to any relief that may be granted apart from this section,
the court may:

   (a)  at any time, order that the seized copies be released to the importer
        subject to such conditions (if any) as the court thinks fit; or

   (b)  order that the seized copies not be released to the importer before
        the end of a specified period; or

   (c)  order that the goods be forfeited to the Commonwealth.



"(5) A court may not make an order under paragraph (4)(a) if it is satisfied
that the Comptroller-General is required or permitted, under any other law of
the Commonwealth, to retain control of the seized copies.



"(6) The Comptroller-General must comply with an order made under subsection
(4).



"(7) If:

   (a)  the court decides that the relevant copyright was not infringed by the
        importation of the seized copies; and

   (b)  a defendant to the infringement action satisfies the court that he or
        she has suffered loss or damage as a result of the seizure of the
        copies; the court may order the objector to pay to that defendant such
        amount as the court determines as compensation for any part of that
        loss or damage that is attributable to a period beginning on or after
        the day on which the action was commenced.

Retention of control of seized copies

"135AH. In spite of section 135AF, in a case in which no order has been made
under subsection 135AG(4) in relation to seized copies, the
Comptroller-General is not obliged to release or dispose of the copies if the
Comptroller-General is required or permitted, under any other law of the
Commonwealth, to retain control of the copies.

Disposal of seized copies ordered to be forfeited

"135AI. If a court orders that seized copies are to be forfeited to the
Commonwealth, the copies must be disposed of:

   (a)  in the manner prescribed by the regulations; or

   (b)  if no manner of disposal is so prescribed-as the Comptroller-General
        directs.

Insufficient security

"135AJ. (1) If the reasonable expenses incurred by the Commonwealth in
relation to action taken by the Comptroller-General under this Division or
taken in accordance with an order of a court under this Division exceed the
amount deposited, or the amount of the security given, under section 135AA,
the amount of the excess is a debt due to the Commonwealth.



"(2) The debt created by subsection (1) is due:

   (a)  by the objector; or

   (b)  if there are 2 or more objectors, by the objectors jointly and
        severally.

Immunity of the Commonwealth

"135AK. The Commonwealth is not liable for any loss or damage suffered by a
person:

   (a)  because of the seizure of copies, or the failure of the
        Comptroller-General to seize copies, under this Division; or

   (b)  because of the release of any seized copies.".