DESIGNS (CONSEQUENTIAL AMENDMENTS) ACT 2003 NO. 148, 2003 - SCHEDULE 1 - Copyright Act 1968
DESIGNS (CONSEQUENTIAL AMENDMENTS) ACT 2003 NO. 148, 2003 - SCHEDULE 1
- Copyright Act 1968 Part 1Amendments
1 Subsection 10(1) (paragraph (c) of the definition of artistic work )
Omit "to which neither of the last two preceding paragraphs applies", substitute "whether or not mentioned in paragraph (a) or (b)".
2 Section 74 (definition of corresponding design )Omit all the words after "means", substitute "visual features of shape or configuration which, when embodied in a product, result in a reproduction of that work, whether or not the visual features constitute a design that is capable of being registered under the Designs Act 2003 ".
3 At the end of section 74Add:
- (2)
- For the purposes of subsection (1):
- "embodied in", in relation to a product, includes woven into, impressed on or
worked into the product.
Omit all the words after "under", substitute "the Designs Act 1906 or the Designs Act 2003 on or after that commencement, it is not an infringement of that copyright to reproduce the work by embodying that, or any other, corresponding design in a product".
4A Section 76Repeal the section, substitute:
76 False registration of industrial designs under the Designs Act 2003- (1)
- This section applies if:
(a) proceedings ( copyright proceedings ) are brought under this Act in
relation to an artistic work in which copyright subsists; and
(b) a corresponding design was registered under the Designs Act 2003 ; and
(c) the exclusive right in the design had not expired by effluxion of time
before the copyright proceedings began; and
(d) it is established in the copyright proceedings that:
(i) none of the persons who are registered owners of the registered design
are entitled persons in relation to the design; and
(ii) none of those persons were registered with the knowledge of the owner
of the copyright in the artistic work.
- (2)
- Subject to subsection (3), for the purposes of the copyright proceedings:
(a) the design is taken never to have been registered under the Designs Act
2003 ; and
(b) section 75 does not apply in relation to anything done in respect
of the design; and
(c) nothing in the Designs Act 2003 constitutes a defence.
- (3)
- Ignore subsection (2) if it is established in the copyright proceedings that the act to which the proceedings relate was done:
(a) by an assignee of, or under a licence granted by, the registered owner of
the registered design; and
(b) in good faith relying on the registration and without notice of any
proceedings (whether or not before a court) to revoke the registration
or to rectify the entry in the Register of Designs in relation to the
design.
Repeal the paragraphs, substitute:
(b) a corresponding design is or has been
applied industrially, whether in Australia or elsewhere, and whether before or
after the commencement of this section, by or with the licence of the owner of
the copyright in the place of industrial application; and
(c) at any time on or after the commencement of this section, products to
which the corresponding design has been so applied (the products made
to the corresponding design ) are sold, let for hire or offered or
exposed for sale or hire, whether in Australia or elsewhere; and
Omit " 1906 ", substitute " 2003 ".
7 At the end of paragraph 77(1)(d)Add "or under the Designs Act 1906 ".
8 After subsection 77(1)Insert:
- (1A)
- This section also applies if:
(a) a complete specification that discloses a product made to the
corresponding design; or
(b) a representation of a product made to the corresponding design and
included in a design application;
is published in Australia, whether or not paragraphs (1)(b) and (c) are satisfied in relation to the corresponding design.
9 Subsection 77(2)Repeal the subsection, substitute:
- (2)
- It is not an infringement of the copyright in the artistic work to reproduce the work, on or after the day on which:
(a) products made to the corresponding design are first sold, let for hire or
offered or exposed for sale or hire; or
(b) a complete specification that discloses a product made to the
corresponding design is first published in Australia; or
(c) a representation of a product made to the corresponding design and
included in a design application is first published in Australia;
by embodying that, or any other, corresponding design in a product.
10 Subsection 77(3)After "articles" (first occurring), insert "or products".
11 Subsection 77(3)After " 1906 ", insert "or the Designs Act 2003 ".
12 Paragraph 77(3)(a)Omit "under that Act in respect of those articles", substitute "under the Designs Act 1906 in respect of those articles, or under the Designs Act 2003 in respect of those products,".
13 At the end of section 77Add:
- (5)
- In this section:
- building or model of a building does not include a portable building such as a
shed, a pre-constructed swimming pool, a demountable building or similar
portable building.
"complete specification" has the same meaning as in the Patents Act 1990 .
"design application" has the same meaning as in the Designs Act 2003 .
"representation", in relation to a design, has the same meaning as in the Designs Act 2003 .
Add:
77A Certain reproductions of an artistic work do not infringe copyright- (1)
- It is not an infringement of copyright in an artistic work to reproduce the artistic work, or communicate that reproduction, if:
(a) the reproduction is derived from a three-dimensional product that embodies
a corresponding design in relation to the artistic work; and
(b) the reproduction is in the course of, or incidental to:
(i) making a product (the non-infringing product ), if the making of the
product did not, or would not, infringe the copyright in the artistic
work because of the operation of this Division; or
(ii) selling or letting for hire the non-infringing product, or offering or
exposing the non-infringing product for sale or hire.
- (2)
- It is not an infringement of copyright in an artistic work to make a cast or mould embodying a corresponding design in relation to the artistic work, if:
(a) the cast or mould is for the purpose of making products; and
(b) the making of the products would not infringe copyright because of the
operation of this Division.
Part 2Application provisions 15 Application of amendments of section 74definition of corresponding design
The amendments of section 74 of the Copyright Act 1968 made by items 2 and 3 of this Schedule apply as follows:
(a) for the purposes of
section 75 of the Copyright Act 1968 in the same circumstances as
the amendment made by item 4 of this Schedule applies;
(b) for the purposes of section 76 of the Copyright Act 1968 in
the same circumstances as the amendment made by item 4A of this
Schedule applies;
(c) for the purposes of section 77 of the Copyright Act 1968 in
the same circumstances as the amendments of section 77 made by
items 5 to 13 of this Schedule apply;
(d) for the purposes of section 77A of the Copyright Act 1968
in the same circumstances as that section applies.
The amendment made by item 4 of this Schedule applies to reproductions that are made on or after the commencing day.
17 Application of amendment of section 76(1) Section 76 of the Copyright Act 1968 as amended by item 4A of
this Schedule applies in relation to proceedings brought under that Act on or
after the commencing day, where the corresponding design has been registered
under the Designs Act 2003 .
(2) When determining whether a design has been
registered under the Designs Act 2003 for the purposes of subitem (1),
ignore section 151 of that Act.
Amendments made by item 5
(1) Paragraph 77(1)(b) of the
Copyright Act 1968 as amended by item 5 of this Schedule applies to
articles and products to which a corresponding design has been applied
industrially that are sold, let for hire or offered or exposed for sale or
hire on or after the commencing day. However, this subitem does not affect the
operation of paragraph 77(1)(b) of the Copyright Act 1968 as in force
immediately before the commencing day.
(2) Paragraph 77(1)(c) of the
Copyright Act 1968 as amended by item 5 of this Schedule applies to
products to which a corresponding design has been applied industrially that
are sold, let for hire or offered or exposed for sale or hire on or after the
commencing day.
Amendments made by items 6 to 13
(3) The amendments made by items 6 to 13 of this Schedule apply to:
(a) products to which a
corresponding design has been applied industrially that are sold, let for hire
or offered or exposed for sale or hire on or after the commencing day; and
(b) complete specifications or representations that are first published in
Australia on or after the commencing day.
Section 77A of the Copyright Act 1968 applies to reproductions that are made on or after the commencing day.
20 DefinitionIn this Part:
"commencing day" means the day on which this item commences.