Commonwealth: Copyright Amendment (Digital Agenda) Act 2000 (Cth)

Copyright Amendment (Digital Agenda) Act 2000 Act No. 110 of 2000 as amended This compilation was prepared on 2 August 2002 [This Act was amended by Act No. 63 of 2002] Amendments from Act No. 63 of 2002 [Schedule 2 (item 4) amended Item 41 of Schedule 1; Schedule 2 (item 5) amended Item 224 of Schedule 1 Schedule 2 (items 4 and 5) commenced on 4 March 2001] Prepared by the Office of Legislative Drafting, Attorney‑General's Department, Canberra Contents 1 Short title................................... 2 Commencement............................... 3 Object of the Act............................... 4 Schedule(s).................................. Schedule 1—Amendment of the Copyright Act 1968 Schedule 2—Transitional provisions An Act to amend the Copyright Act 1968, and for related purposes [Assented to 4 September 2000] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Copyright Amendment (Digital Agenda) Act 2000. 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. 3 Object of the Act The object of this Act is to amend the Copyright Act 1968 so as to: (a) ensure the efficient operation of relevant industries in the online environment by: (i) promoting the creation of copyright material and the exploitation of new online technologies by allowing financial rewards for creators and investors; and (ii) providing a practical enforcement regime for copyright owners; and (iii) promoting access to copyright material online; and (b) promote certainty for communication and information technology industries that are investing in and providing online access to copyright material; and (c) provide reasonable access and certainty for end users of copyright material online; and (d) ensure that cultural and educational institutions can access, and promote access to, copyright material in the online environment on reasonable terms, including having regard to the benefits of public access to the material and the provision of adequate remuneration to creators and investors; and (e) ensure that the relevant global technical standards which form the basis of new communication and information technologies, such as the Internet, are not jeopardised. 4 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Copyright Act 1968 1 Subsection 10(1) (definition of broadcast) Repeal the definition, substitute: broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992. Note: A broadcasting service does not include the following: (a) a service (including a teletext service) that provides only data or only text (with or without associated images); or (b) a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service. 2 Subsection 10(1) Insert: carriage service provider has the same meaning as in the Telecommunications Act 1997. 3 Subsection 10(1) Insert: carrier has the same meaning as in the Telecommunications Act 1997. 4 Subsection 10(1) Insert: circumvention device means a device (including a computer program) having only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure. 5 Subsection 10(1) Insert: circumvention service means a service, the performance of which has only a limited commercially significant purpose, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure. 6 Subsection 10(1) Insert: communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject‑matter. 7 Subsection 10(1) (definition of computer program) Repeal the definition, substitute: computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 9 Subsection 10(1) Insert: electronic rights management information means: (a) information attached to, or embodied in, a copy of a work or other subject‑matter that: (i) identifies the work or subject‑matter, and its author or copyright owner; or (ii) identifies or indicates some or all of the terms and conditions on which the work or subject‑matter may be used, or indicates that the use of the work or subject‑matter is subject to terms or conditions; or (b) any numbers or codes that represent such information in electronic form. 10 Subsection 10(1) (paragraph (e) of the definition of infringing copy) Omit "reproduction", substitute "facsimile copy". 12 Subsection 10(1) (paragraph (a) of the definition of literary work) Omit "(whether or not in a visible form)". 13 Subsection 10(1) (definition of manuscript) Repeal the definition, substitute: manuscript, in relation to a literary, dramatic or musical work, means the document embodying the work as initially prepared by the author, whether the document is in hardcopy form, electronic form or any other form. 14 Subsection 10(1) Insert: reception equipment means equipment whose operation, either alone or together with other equipment, enables people to hear or see a work or other subject‑matter that is communicated. 15 Subsection 10(1) Insert: retransmission, in relation to a broadcast, means a retransmission of the broadcast, where: (a) the content of the broadcast is unaltered (even if the technique used to achieve retransmission is different to the technique used to achieve the original transmission); and (b) either: (i) in any case—the retransmission is simultaneous with the original transmission; or (ii) if the retransmission is in an area that has, wholly or partly, different local time to the area of the original transmission—the retransmission is delayed until no later than the equivalent local time. 15A Subsection 10(1) Insert: simulcasting means simultaneously broadcasting a broadcasting service in both analog and digital form in accordance with the requirements of the Broadcasting Services Act 1992 or of any prescribed legislative provisions relating to digital broadcasting. 15B Subsection 10(1) Insert: technological protection measure means a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject‑matter by either or both of the following means: (a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject‑matter) with the authority of the owner or licensee of the copyright; (b) through a copy control mechanism. 16 Subsection 10(1) Insert: to the public means to the public within or outside Australia. 17 Subsection 10(1) (definition of wireless telegraphy) Repeal the definition. 18 Subsection 10(1) (definition of wireless telegraphy apparatus) Repeal the definition. 19 Subsection 10(2) After "musical work", insert "(other than a computer program)". 20 After subsection 10(2) Insert: (2A) Without limiting the meaning of the expression reasonable portion in this Act, if a person makes a reproduction of a part of: (a) a published literary work (other than a computer program or an electronic compilation, such as a database); or (b) a published dramatic work; being a work that is in electronic form, the reproduction is taken to contain only a reasonable portion of the work if: (c) the number of words copied does not exceed, in the aggregate, 10% of the number of words in the work; or (d) if the work is divided into chapters—the number of words copied exceeds, in the aggregate, 10% of the number of words in the work, but the reproduction contains only the whole or part of a single chapter of the work. (2B) If a published literary or dramatic work is contained in a published edition of the work and is separately available in electronic form, a reproduction of a part of the work is taken to contain only a reasonable portion of the work if it is taken to do so either under subsection (2) or (2A), whether or not it does so under both of them. (2C) If: (a) a person makes a reproduction of a part of a published literary or dramatic work; and (b) the reproduction is taken to contain only a reasonable portion of the work under subsection (2) or (2A); subsection (2) or (2A) does not apply in relation to any subsequent reproduction made by the person of any other part of the same work. 21 At the end of subsection 10(4) Add: Example: Museums and galleries are examples of bodies that could have collections covered by paragraph (b) of the definition of archives. 23 After subsection 21(1) Insert: (1A) For the purposes of this Act, a work is taken to have been reproduced if it is converted into or from a digital or other electronic machine‑readable form, and any article embodying the work in such a form is taken to be a reproduction of the work. Note: The reference to the conversion of a work into a digital or other electronic machine-readable form includes the first digitisation of the work. 24 Subsection 21(2) Repeal the subsection, substitute: (2) Subsections (1) and (1A) apply in relation to an adaptation of a work in the same way as they apply in relation to a work. 25 At the end of section 21 Add: (5) For the purposes of this Act, a computer program is taken to have been reproduced if: (a) an object code version of the program is derived from the program in source code by any process, including compilation; or (b) a source code version of the program is derived from the program in object code by any process, including decompilation; and any such version is taken to be a reproduction of the program. (6) For the purposes of this Act, a sound recording or cinematograph film is taken to have been copied if it is converted into or from a digital or other electronic machine‑readable form, and any article embodying the recording or film in such a form is taken to be a copy of the recording or film. Note: The reference to the conversion of a sound recording or cinematograph film into a digital or other electronic machine-readable form includes the first digitisation of the recording or film. Note: The heading to section 21 is replaced by the heading "Reproduction and copying of works and other subject‑matter". 26 Subsections 22(5) and (6) Repeal the subsections, substitute: (5) For the purposes of this Act, a broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered. (6) For the purposes of this Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication. 27 Subsection 25(3) Omit "simultaneously making a further transmission", substitute "making a retransmission". 28 Subsection 25(5) Repeal the subsection. 29 Section 26 Repeal the section. 30 Paragraph 27(1)(a) Omit "operation of wireless telegraphy apparatus", substitute "use of reception equipment". 31 Subsection 27(2) Repeal the subsection, substitute: (2) For the purposes of this Act, the communication of a work or other subject‑matter to the public does not constitute: (a) performance; or (b) causing visual images to be seen or sounds to be heard. 32 Subsection 27(3) Omit "receiving apparatus" (wherever occurring), substitute "reception equipment". 33 Subsection 27(3) Omit "conveyed by the transmission of electromagnetic signals (whether over paths provided by a material substance or not), the operation of any apparatus by which the signals are transmitted", substitute "communicated, the operation of any equipment by which the images or sounds are communicated". 34 Subsection 27(4) Omit "apparatus" (wherever occurring), substitute "equipment". 35 Subparagraphs 31(1)(a)(iv) and (v) Repeal the subparagraphs, substitute: (iv) to communicate the work to the public; 36 Subparagraph 31(1)(a)(vii) Omit "(v)", substitute "(iv)". 37 Subparagraphs 31(1)(b)(iii) and (iv) Repeal the subparagraphs, substitute: (iii) to communicate the work to the public; and 38 Subsection 33(3) Omit "literary,", insert "literary work (other than a computer program) or a". 39 After subsection 36(1) Insert: (1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following: (a) the extent (if any) of the person's power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. 40 Subsection 36(2) Omit "the last preceding subsection", substitute "this section". 41 Paragraph 39A(a) Omit "for the making, by reprographic reproduction, of copies of documents", substitute "(including a computer)". 42 After section 39A Insert: 39B Communication by use of certain facilities A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright. 42A Subsection 40(2) Omit "copying", substitute "reproducing". 42B Paragraph 40(2)(e) Omit "copied", substitute "reproduced". 42C Subsection 40(3) Omit "copying", substitute "reproducing". 42D Subsection 40(4) Repeal the subsection, substitute: (4) Subsection (3) does not apply to a dealing by way of reproducing the whole or a part of an article in a periodical publication if another article in that publication, being an article dealing with a different subject matter, is also reproduced. 43 Paragraph 42(1)(b) and subsection 42(2) Omit "broadcasting", substitute "a communication". 44 Subsection 42(3) Repeal the subsection. 45 After section 43 Insert: 43A Temporary reproductions made in the course of communication (1) The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication. (2) Subsection (1) does not apply in relation to the making of a temporary reproduction of a work, or an adaptation of a work, as part of the technical process of making a communication if the making of the communication is an infringement of copyright. 46 Section 46 Omit "wireless telegraphy apparatus", substitute "reception equipment". 46A At the end of section 47 Add: (7) In this section: broadcasting does not include simulcasting. 46B After section 47 Insert: 47AA Reproduction for the purpose of simulcasting (1) If the broadcasting of a literary, dramatic or musical work, or of an adaptation of such a work, would not for any reason constitute an infringement of the copyright in the work, but the making of a sound recording or a cinematograph film of the work or adaptation would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making of such a recording or film solely for the purpose of simulcasting the work or adaptation in digital form. (2) Subsection (1) does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than: (a) the simulcasting of the work or adaptation in circumstances that do not for any reason constitute an infringement of the copyright in the work; or (b) the making of further records embodying the recording or further copies of the film for the purpose of simulcasting the work or adaptation in such circumstances. (3) Subsection (1) does not apply in relation to a recording or film unless all records embodying the recording, or all copies of the film, made under that subsection are destroyed on or before the relevant date specified in the regulations. (4) For the purposes of subsection (3), the regulations may specify different dates in relation to different classes of sound recordings or cinematograph films. 46C Before section 47B Insert: 47AB Meaning of computer program In this Division: computer program includes any literary work that is: (a) incorporated in, or associated with, a computer program; and (b) essential to the effective operation of a function of that computer program. 46D Paragraph 47B(1)(a) Omit "made in the course", substitute "incidentally and automatically made as part of the technical process". 46E Paragraph 47B(2)(b) Repeal the paragraph, substitute: (b) contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made when the owner or licensee of that copy acquired it. 46F Paragraph 47B(3)(a) Omit "made in the course", substitute "incidentally and automatically made as part of the technical process". 46G At the end of section 47B Add: (5) In this section: reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b). 46H Subsection 47C(2) Omit "is not infringed by the making of a reproduction of the work", substitute ", and in any work or other subject-matter held together with the program on the same computer system, is not infringed by the making of a reproduction of the program, or of such a work or other subject‑matter". 46I Paragraph 47D(1)(b) After "licensee", insert ", or a person acting on behalf of the owner or licensee,". 47 At the end of section 47C Add: (6) In this section: reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b). 48 Subsection 49(1) Omit "copy" (wherever occurring), substitute "reproduction". Note: The heading to section 49 is altered by omitting "Copying" and substituting "Reproducing and communicating works". 49 Paragraph 49(1)(a) Omit "publication; and", substitute "publication, being a periodical publication or a published work held in the collection of a library or archives; and". 50 Subsection 49(2) Omit "copy" (wherever occurring), substitute "reproduction". 51 Paragraph 49(2A)(a) Repeal the paragraph, substitute: (a) a request to be supplied with a reproduction of an article, or part of an article, contained in a periodical publication, or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and 52 Paragraph 49(2A)(b) Omit "copy" (wherever occurring), substitute "reproduction". 53 Subsections 49(2C), (3), (4) and (5) Omit "copy" (wherever occurring), substitute "reproduction". 54 After subsection 49(5) Insert: (5A) If an article contained in a periodical publication, or a published work (other than an article contained in a periodical publication) is acquired, in electronic form, as part of a library or archives collection, the officer in charge of the library or archives may make it available online within the premises of the library or archives in such a manner that users cannot, by using any equipment supplied by the library or archives: (a) make an electronic reproduction of the article or work; or (b) communicate the article or work. 55 Subsections 49(6) and (7) Omit "copy" (wherever occurring), substitute "reproduction". 56 After subsection 49(7) Insert: (7A) Subsections (6) and (7) do not apply to the making under subsection (2) or (2C) of an electronic reproduction of: (a) an article, or a part of an article, contained in a periodical publication; or (b) the whole or part of a published work, other than such an article; in relation to a request under this section for communication to the person who made the request unless: (c) before or when the reproduction is communicated to the person, the person is notified in accordance with the regulations: (i) that the reproduction has been made under this section and that the article or work might be subject to copyright protection under this Act; and (ii) about such other matters (if any) as are prescribed; and (d) as soon as practicable after the reproduction is communicated to the person, the reproduction made under subsection (2) or (2C) and held by the library or archives is destroyed. (7B) It is not an infringement of copyright in an article contained in a periodical publication, or of copyright in a published work, to communicate it in accordance with subsection (2), (2C) or (5A). 57 Subsection 49(9) Repeal the subsection, substitute: (9) In this section: library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals. supply includes supply by way of a communication. 58 Subsection 50(1) Omit "copy" (wherever occurring), substitute "reproduction". Note: The heading to section 50 is altered by omitting "Copying" and substituting "Reproducing and communicating works". 59 Subsection 50(1) Omit "publication:", substitute "publication, being a periodical publication or a published work held in the collection of a library:". 60 Subsection 50(2) Omit "copy" (wherever occurring), substitute "reproduction". 61 Subsection 50(3) Omit "a copy of the whole or a part of a work", substitute "a reproduction of the whole or part of a work (including an article contained in a periodical publication)". 62 Paragraphs 50(3)(a) and (b) Omit "copy" (wherever occurring), substitute "reproduction". 63 Subsection 50(4) Repeal the subsection, substitute: (4) Subject to this section, if a reproduction of the whole or a part of an article contained in a periodical publication, or of any other published work, is, by virtue of subsection (3), taken to have been made on behalf of an authorised officer of a library, the copyright in the article or other work is not infringed: (a) by the making of the reproduction; or (b) if the work is supplied under subsection (2) by way of a communication—by the making of the communication. 63A Subsections 50(6) and (7) Omit "copy" (wherever occurring), substitute "reproduction". 64 Subsection 50(7A) Repeal the subsection, substitute: (7A) If: (a) a reproduction is made of the whole of a work (other than an article contained in a periodical publication) or of a part of such a work, being a part that contains more than a reasonable portion of the work; and (b) the work from which the reproduction is made is in hardcopy form; and (c) the reproduction is supplied under subsection (2) to the officer in charge of a library; subsection (4) does not apply in relation to the reproduction unless: (d) in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person's duties as such a member; or (e) as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration: (i) setting out particulars of the request (including the purpose for which the reproduction was requested); and (ii) stating that, after reasonable investigation, the authorized officer is satisfied that a copy (not being a second‑hand copy) of the work cannot be obtained within a reasonable time at an ordinary commercial price. (7B) If: (a) a reproduction is made of the whole of a work (including an article contained in a periodical publication) or of a part of such a work, whether or not the part contains more than a reasonable portion of the work; and (b) the work from which the reproduction is made is in electronic form; and (c) the reproduction is supplied under subsection (2) to the officer in charge of a library; subsection (4) does not apply in relation to the reproduction unless: (d) in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person's duties as such a member; or (e) as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration: (i) setting out particulars of the request (including the purpose for which the reproduction was requested); and (ii) if the reproduction is of the whole, or of more than a reasonable portion, of a work other than an article—stating that, after reasonable investigation, the authorised officer is satisfied that the work cannot be obtained in electronic form within a reasonable time at an ordinary commercial price; and (iii) if the reproduction is of a reasonable portion, or less than a reasonable portion, of a work other than an article—stating that, after reasonable investigation, the authorised officer is satisfied that the portion cannot be obtained in electronic form, either separately or together with a reasonable amount of other material, within a reasonable time at an ordinary commercial price; and (iv) if the reproduction is of the whole or of a part of an article—stating that, after reasonable investigation, the authorised officer is satisfied that the article cannot be obtained on its own in electronic form within a reasonable time at an ordinary commercial price. (7C) If: (a) a reproduction is made in electronic form by or on behalf of an authorised officer of a library of the whole of a work (including an article contained in a periodical publication) or of a part of such a work; and (b) the reproduction is supplied under subsection (2) to the officer in charge of another library; subsection (4) does not apply in relation to the reproduction unless, as soon as practicable after the reproduction is supplied to the other library the reproduction made for the purpose of the supply and held by the first-mentioned library is destroyed. 65 Subsection 50(8) Omit "copy", substitute "reproduction or communication". 66 At the end of section 50 Add: (10) In this section: supply includes supply by way of a communication. 67 Subsection 51(1) Omit "and more than 75 years after the time at which, or the expiration of the period during which, the work was made,". 68 Paragraph 51(1)(b) Omit "copy", substitute "reproduction". 69 Paragraphs 51(1)(c) and (d) Repeal the paragraphs, substitute: (c) by the making or communication of a reproduction of the work by a person for the purposes of research or study or with a view to publication; or (d) by the making or communication of a reproduction of the work by, or on behalf of, the officer in charge of the library or archives if the reproduction is supplied (whether by way of communication or otherwise) to a person who satisfies the officer in charge of the library or archives that the person requires the reproduction for the purposes of research or study, or with a view to publication, and that the person will not use it for any other purpose. Note: The heading to section 51 is altered by omitting "Copying of" and substituting "Reproducing and communicating". 70 Subsection 51(2) Repeal the subsection, substitute: (2) If the manuscript, or a reproduction, of an unpublished thesis or other similar literary work is kept in a library of a university or other similar institution, or in an archives, the copyright in the thesis or other work is not infringed by the making or communication of a reproduction of the thesis or other work by or on behalf of the officer in charge of the library or archives if the reproduction is supplied (whether by communication or otherwise) to a person who satisfies an authorized officer of the library or archives that he or she requires the reproduction for the purposes of research or study. 71 Subsection 51AA(1) After "the making", insert "or communication". Note: The heading to section 51AA is altered by omitting "Copying of" and substituting "Reproducing and communicating". 72 Subsection 51AA(2) (definitions of reference copy, replacement copy and working copy) Omit "a copy", substitute "a reproduction". 73 Subsection 51A(1) After "the making", insert "or communicating". Note: The heading to section 51A is altered by omitting "Copying of" and substituting "Reproducing and communicating". 74 Subsection 51A(1) Omit "copy (including a microform copy)", substitute "reproduction". 75 Subsections 51A(2) and (3) Repeal the subsections, substitute: (2) The copyright in a work that is held in the collection of a library or archives is not infringed by the making, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work for administrative purposes. (3) The copyright in a work that is held in the collection of a library or archives is not infringed by the communication, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work made under subsection (2) to officers of the library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the library or archives with the approval of the body administering the library or archives. (3A) The copyright in an original artistic work that is held in the collection of a library or archives is not infringed in the circumstances described in subsection (3B) by the communication, by or on behalf of the officer in charge of the library or archives, of a preservation reproduction of the work by making it available online to be accessed through the use of a computer terminal: (a) that is installed within the premises of the library or archives; and (b) that cannot be used by a person accessing the work to make an electronic copy or a hardcopy of the reproduction, or to communicate the reproduction. (3B) The circumstances in which the copyright in the original artistic work is not infringed because of subsection (3A) are that either: (a) the work has been lost, or has deteriorated, since the preservation reproduction of the work was made; or (b) the work has become so unstable that it cannot be displayed without risk of significant deterioration. 76 Subsection 51A(5) Omit "copy (including a microform copy)", substitute "reproduction". 77 Subsection 51A(5) Omit "of the copy", substitute "or communication of the reproduction". 78 At the end of section 51A Add: (6) In this section: preservation reproduction, in relation to an artistic work, means a reproduction of the work made under subsection (1) for the purpose of preserving the work against loss or deterioration. 79 Subsection 52(3) Repeal the subsection, substitute: (3) If a work, or part of a work, has been published and, because of this section, the publication is taken not to be an infringement of the copyright in the work, the copyright in the work is not infringed by a person who, after the publication took place: (a) broadcasts the work, or that part of the work; or (b) electronically transmits the work, or that part of the work (other than in a broadcast) for a fee payable to the person who made the transmission; or (c) performs the work, or that part of the work, in public; or (d) makes a record of the work, or that part of the work. 80 Section 69 Repeal the section. 81 Paragraph 85(1)(c) Repeal the paragraph, substitute: (c) to communicate the recording to the public; 82 Paragraphs 86(c) and (d) Repeal the paragraphs, substitute: (c) to communicate the film to the public. 83 At the end of paragraph 87(c) Add "or communicate it to the public otherwise than by broadcasting it". 84 Section 88 Omit ", by a means that includes a photographic process, a reproduction", substitute "a facsimile copy". 85 Sections 91 and 91A Repeal the sections, substitute: 91 Television broadcasts and sound broadcasts in which copyright subsists Subject to this Act, copyright subsists in a television broadcast or sound broadcast made from a place in Australia: (a) under the authority of a licence or a class licence under the Broadcasting Services Act 1992; or (b) by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation. 86 Section 99 Repeal the section, substitute: 99 Ownership of copyright in television broadcasts and sound broadcasts Subject to Parts VII and X, the maker of a television broadcast or sound broadcast is the owner of any copyright subsisting in the broadcast. 87 After subsection 101(1) Insert: (1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following: (a) the extent (if any) of the person's power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. 88 Paragraph 103B(1)(b) Omit "broadcasting", substitute "a communication". 89 Subsection 103B(2) Repeal the subsection. 90 After section 104A Insert: 104B Infringing copies made on machines installed in libraries and archives If: (a) a person makes an infringing copy of, or of part of, an audio‑visual item or a published edition of a work on a machine (including a computer), being a machine installed by or with the approval of the body administering a library or archives on the premises of the library or archives, or outside those premises for the convenience of persons using the library or archives; and (b) there is affixed to, or in close proximity to, the machine, in a place readily visible to persons using the machine, a notice of the prescribed dimensions and in accordance with the prescribed form; neither the body administering the library or archives, nor the officer in charge of the library or archives, is taken to have authorised the making of the infringing copy merely because the copy was made on that machine. 90A At the end of section 107 Add: (7) In this section: broadcasting does not include simulcasting. 91 Paragraphs 110A(c) and (d) Repeal the paragraphs, substitute: (c) by the making of a copy or the communication of the sound recording or cinematograph film by a person for the purpose of research or study or with a view to publication; or (d) by the making of a copy or the communication of the sound recording or cinematograph film by, or on behalf of, the officer in charge of the library or archives if the copy is supplied or communicated to a person who satisfies the officer that he or she requires the copy for the purpose of research or study, or with a view to publication and that he or she will not use it for any other purpose. Note: The heading to section 110A is altered by omitting "Copying of" and substituting "Copying and communicating". 92 After subsection 110B(2) Insert: (2A) The copyright in a sound recording or cinematograph film that forms, or formed, part of the collection of a library or archives, or in any work or other subject‑matter included in such a sound recording or film, is not infringed by the communication, by or on behalf of the officer in charge of the library or archives, of a copy of the sound recording or film made under subsection (1) or (2) to officers of the library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the library or archives with the approval of the body administering the library or archives. (2B) If: (a) a copy of a sound recording or a cinematograph film is made by or on behalf of the officer in charge of a library or archives under this section; and (b) the copy is made for the purpose of research that is being, or is to be, carried out at another library or archives; the copyright in the sound recording or film, or in any work or other subject‑matter included in it, is not infringed by the communication, by or on behalf of the officer in charge, of the copy to the other library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the other library or archives with the approval of the body administering the other library or archives. Note: The heading to section 110B is altered by omitting "Copying of" and substituting "Copying and communicating". 93 Subsection 110B(4) Omit "of the copy", substitute "or communication of the copy". 93A After section 110B Insert: 110C Making of a copy of a sound recording or cinematograph film for the purpose of simulcasting (1) If the broadcasting of a sound recording or a cinematograph film would not for any reason constitute an infringement of the copyright in the recording or film, but the making of a copy of the recording or film would, apart from this section, constitute an infringement of the copyright, the copyright is not infringed by the making of a copy of the recording or film if: (a) the recording or film from which the copy is made is in analog form; and (b) the copy is made solely for the purpose of simulcasting the recording or film in digital form. (2) Subsection (1) does not apply in relation to a copy of a recording or film if the copy is used for a purpose other than: (a) the simulcasting of the recording or film in circumstances that do not for any reason constitute an infringement of the copyright in the recording or film; or (b) the making of further copies of the recording or film for the purpose of simulcasting the recording or film in such circumstances. (3) Subsection (1) does not apply in relation to a copy of a recording or film unless all copies of the recording or film made under that subsection are destroyed on or before the relevant date specified in the regulations. (4) For the purposes of subsection (3), the regulations may specify different dates in relation to different classes of sound recordings or cinematograph films. 94 After section 111 Insert: 111A Temporary copy made in the course of communication (1) A copyright subsisting under this Part is not infringed by making a temporary copy of an audio‑visual item as part of the technical process of making or receiving a communication. (2) Subsection (1) does not apply in relation to the making of a temporary copy of an audio‑visual item as part of the technical process of making a communication if the making of the communication is an infringement of copyright. 95 After section 112D Insert: 112E Communication by use of certain facilities A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright. 96 Part V (heading) Repeal the heading, substitute: Part V—Remedies and offences 96A Paragraph 115(4)(b) Repeal the paragraph, substitute: (b) the court is satisfied that it is proper to do so, having regard to: (i) the flagrancy of the infringement; and (ii) whether the infringement involved the conversion of a work or other subject‑matter from hardcopy or analog form into a digital or other electronic machine-readable form; and (iii) any benefit shown to have accrued to the defendant by reason of the infringement; and (iv) all other relevant matters; 97 Paragraph 116(1)(b) After "device", insert "(including a circumvention device)". 98 After section 116 Insert: Division 2A—Actions in relation to circumvention devices and electronic rights management information 116A Importation, manufacture etc. of circumvention device and provision etc. of circumvention service (1) Subject to subsections (2), (3) and (4), this section applies if: (a) a work or other subject‑matter is protected by a technological protection measure; and (b) a person does any of the following acts without the permission of the owner or exclusive licensee of the copyright in the work or other subject‑matter: (i) makes a circumvention device capable of circumventing, or facilitating the circumvention of, the technological protection measure; (ii) sells, lets for hire, or by way of trade offers or exposes for sale or hire or otherwise promotes, advertises or markets, such a circumvention device; (iii) distributes such a circumvention device for the purpose of trade, or for any other purpose that will affect prejudicially the owner of the copyright; (iv) exhibits such a circumvention device in public by way of trade; (v) imports such a circumvention device into Australia for the purpose of: (A) selling, letting for hire, or by way of trade offering or exposing for sale or hire or otherwise promoting, advertising or marketing, the device; or (B) distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the owner of the copyright; or (C) exhibiting the device in public by way of trade; (vi) makes such a circumvention device available online to an extent that will affect prejudicially the owner of the copyright; (vii) provides, or by way of trade promotes, advertises or markets, a circumvention service capable of circumventing, or facilitating the circumvention of, the technological protection measure; and (c) the person knew, or ought reasonably to have known, that the device or service would be used to circumvent, or facilitate the circumvention of, the technological protection measure. (2) This section 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. (3) This section does not apply in relation to the supply of a circumvention device or a circumvention service to a person for use for a permitted purpose if: (a) the person is a qualified person; and (b) the person gives the supplier before, or at the time of, the supply a declaration signed by the person: (i) stating the name and address of the person; and (ii) stating the basis on which the person is a qualified person; and (iii) stating the name and address of the supplier of the circumvention device or circumvention service; and (iv) stating that the device or service is to be used only for a permitted purpose by a qualified person; and (v) identifying the permitted purpose by reference to one or more of sections 47D, 47E, 47F, 48A, 49, 50, 51A and 183 and Part VB; and (vi) stating that a work or other subject‑matter in relation to which the person proposes to use the device or service for a permitted purpose is not readily available to the person in a form that is not protected by a technological protection measure. (4) This section does not apply in relation to the making or importing of a circumvention device: (a) for use only for a permitted purpose relating to a work or other subject‑matter that is not readily available in a form that is not protected by a technological protection measure; or (b) for the purpose of enabling a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose. (4A) For the purposes of paragraphs (3)(b) and (4)(a), a work or other subject‑matter is taken not to be readily available if it is not available in a form that lets a person do an act relating to it that is not an infringement of copyright in it as a result of section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB. (5) If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person. (6) In an action under subsection (5), it must be presumed that the defendant knew, or ought reasonably to have known, that the circumvention device or service to which the action relates would be used for a purpose referred to in paragraph (1)(c) unless the defendant proves otherwise. (7) For the purposes of this section, a circumvention device or a circumvention service is taken to be used for a permitted purpose only if: (a) the device or service is used for the purpose of doing an act comprised in the copyright in a work or other subject‑matter; and (b) the doing of the act is not an infringement of the copyright in the work or other subject‑matter under section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB. (8) In this section: qualified person means: (a) a person referred to in paragraph 47D(1)(a), 47E(1)(a) or 47F(1)(a); or (b) a person who is an authorized officer for the purposes of section 48A, 49, 50 or 51A; or (c) a person authorised in writing by the Commonwealth or a State for the purposes of section 183; or (d) a person authorised in writing by a body administering an institution (within the meaning of Part VB) to do on behalf of the body an act that is not an infringement of copyright because of that Part. supply means: (a) in relation to a circumvention device—sell the device, let it for hire, distribute it or make it available online; and (b) in relation to a circumvention service—provide the service. (9) The defendant bears the burden of establishing the matters referred to in subsections (3), (4) and (4A). 116B Removal or alteration of electronic rights management information (1) This section applies if: (a) a person removes or alters any electronic rights management information attached to a copy of a work or other subject‑matter in which copyright subsists; and (b) the person does so without the permission of the owner or exclusive licensee of the copyright; and (c) the person knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter. (2) If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person. (3) In an action under subsection (2), it must be presumed that the defendant knew, or ought reasonably to have known, that the removal or alteration to which the action relates would have the effect referred to in paragraph (1)(c) unless the defendant proves otherwise. 116C Commercial dealings etc. with works whose electronic rights management information is removed or altered (1) This section applies if: (a) a person does any of the following acts in relation to a work or other subject‑matter in which copyright subsists without the permission of the owner or exclusive licensee of the copyright: (i) distributes for the purpose of trade a copy of the work or other subject‑matter; (ii) imports into Australia a copy of the work or other subject‑matter for the purpose of trade; (iii) communicates a copy of the work or other subject‑matter to the public; and (b) any electronic rights management information attached to the copy has been removed or altered; and (c) the person knew that the electronic rights management information had been so removed or altered without the permission of the owner or exclusive licensee of the copyright; and (d) the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter. (2) If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person. (3) In an action under subsection (2), it must be presumed that the defendant: (a) had the knowledge referred to in paragraph (1)(c); and (b) knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(d); unless the defendant proves otherwise. 116D Remedies in actions under sections 116A, 116B and 116C (1) The relief that a court may grant in an action under section 116A, 116B or 116C includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. (2) If, in an action under section 116A, 116B or 116C, the court is satisfied that it is proper to do so, having regard to: (a) the flagrancy of the defendant's actions that are the subject of the action; and (b) any benefit shown to have accrued to the defendant as a result of those acts; and (c) any other relevant matters; the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances. 100 Subsection 132(5A) Repeal the subsection, substitute: (5A) A person must not provide, or by way of trade promote, advertise or market, a circumvention service if the person knows, or is reckless as to whether, the service will be used to circumvent, or facilitate the circumvention of, a technological protection measure. (5B) A person must not: (a) make a circumvention device; or (b) sell, let for hire, or by way of trade offer or expose for sale or hire, or otherwise promote, advertise or market, a circumvention device; or (c) distribute a circumvention device with the intention of trading, or engaging in any other activity that will affect prejudicially an owner of copyright; or (d) by way of trade exhibit a circumvention device in public; or (e) import a circumvention device into Australia with the intention of: (i) selling, letting for hire, or by way of trade offering or exposing for sale or hire, or otherwise promoting, advertising or marketing, the device; or (ii) distributing the device for trading, or for engaging in any other activity that will affect prejudicially an owner of copyright; or (iii) exhibiting the device in public by way of trade; or (f) make a circumvention device available online to an extent that will affect prejudicially an owner of copyright; if the person knows, or is reckless as to whether, the device will be used to circumvent, or facilitate the circumvention of, a technological protection measure. (5C) A person must not remove or alter any electronic rights management information attached to a copy of a work or other subject‑matter in which copyright subsists, except with the permission of the owner or exclusive licensee of the copyright, if the person knows, or is reckless as to whether, the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter. (5D) A person must not: (a) distribute a copy of a work or other subject‑matter in which copyright subsists with the intention of trading; or (b) import into Australia a copy of such a work or other subject‑matter with the intention mentioned in paragraph (a); or (c) communicate to the public a copy of such a work or other subject‑matter; without the permission of the owner or exclusive licensee of the copyright if any electronic rights management information attached to the copy has been removed or altered and the person: (d) knows that the electronic rights management information has been so removed or altered without the permission of the owner or exclusive licensee of the copyright; and (e) knows, or is reckless as to whether, the doing of the act referred to in paragraph (a), (b) or (c) will induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter. (5E) Subsections (5A) and (5B) do not apply in respect of 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. (5F) Subsections (5A) and (5B) do not apply in relation to the supply of a circumvention device or a circumvention service to a person for use for a permitted purpose if: (a) the person is a qualified person; and (b) the person gives the supplier before, or at the time of, the supply a declaration signed by the person: (i) stating the name and address of the person; and (ii) stating the basis on which the person is a qualified person; and (iii) stating the name and address of the supplier of the circumvention device or circumvention service; and (iv) stating that the device or service is to be used only for a permitted purpose by a qualified person; and (v) identifying the permitted purpose by reference to one or more of sections 47D, 47E, 47F, 48A, 49, 50, 51A and 183 and Part VB; and (vi) stating that a work or other subject‑matter in relation to which the person proposes to use the device or service for a permitted purpose is not readily available to the person in a form that is not protected by a technological protection measure. (5G) Subsection (5B) does not apply in relation to the making or importing of a circumvention device: (a) for use only for a permitted purpose relating to a work or other subject‑matter that is not readily available in a form that is not protected by a technological protection measure; or (b) to enable a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose. (5GA) For the purposes of paragraphs (5F)(b) and (5G)(a), a work or other subject‑matter is taken not to be readily available if it is not available in a form that lets a person do an act relating to it that is not an infringement of copyright in it as a result of section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB. (5H) For the purposes of this section, a circumvention device or a circumvention service is taken to be used for a permitted purpose only if: (a) the device or service is used to do an act comprised in the copyright in a work or other subject‑matter; and (b) the act is done with the licence of the owner or exclusive licensee of the copyright, or is not an infringement of the copyright in the work or other subject‑matter under section 47D, 47E, 47F, 48A, 49, 50, 51A or 183 or Part VB. (5J) The only burden of proof that the defendant bears in respect of subsection (5E), (5F) or (5G) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act or matter in question was done or existed. 100A After subsection 132(6) Insert: (6AA) If: (a) a person contravenes subsection (1), (2) or (2A); and (b) the article to which the contravention relates is an infringing copy because it was made by converting a work or other subject‑matter from hardcopy or analog form into a digital or other electronic machine-readable form; the person is guilty of an offence punishable on summary conviction by a fine of not more than 850 penalty units and/or imprisonment for not more than 5 years. (6AB) If: (a) a person contravenes subsection (1), (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. 101 Subsection 132(6A) Omit "(1), (2), (2A), (3), (5) or (5AA)", substitute "(3), (5), (5AA), (5A), (5B), (5C) or (5D)". 101A Subsection 132(9) Repeal the subsection, substitute: (9) In this section: article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form. distribute includes distribute by way of communication. place of public entertainment includes any premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment. qualified person means: (a) a person referred to in paragraph 47D(1)(a), 47E(1)(a) or 47F(1)(a); or (b) a person who is an authorised officer for the purposes of section 48A, 49, 50 or 51A; or (c) a person authorised in writing by the Commonwealth or a State for the purposes of section 183; or (d) a person authorised in writing by a body administering an institution (within the meaning of Part VB) to do on behalf of the body an act that is not an infringement of copyright because of that Part. supply means: (a) in relation to a circumvention device—sell the device, let it for hire, distribute it or make it available online; and (b) in relation to a circumvention service—provide the service. (10) In the definition of infringing copy in subsection 10(1) as that definition has effect for the purposes of this section, the expression "article" has the meaning given by subsection (9) of this section. 102 Subsection 133(4) After "appears to the court", insert "to be a circumvention device used or intended to be used in contravention of that section, or". 102A Section 134 After "of a device", insert "(including a circumvention device)". 103 At the end of section 134 Add: (2) An action may not be brought under section 116A, 116B or 116C in respect of an act done by a person if more than 6 years have elapsed from the time when the act was done. 104 After Part V Insert: Part VAA—Broadcast decoding devices Division 1—Preliminary 135AL Definitions In this Part: action means a proceeding of a civil nature between parties, and includes a counterclaim. broadcast decoding device means a device (including a computer program) that is designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster by circumventing, or facilitating the circumvention of, the technical means or arrangements that protect access in an intelligible form to the broadcast. broadcaster means a person who makes an encoded broadcast. encoded broadcast means: (a) a broadcast that is made available only to persons who have the prior authorisation of the broadcaster and only on payment by such persons of subscription fees (whether periodically or otherwise); or (b) a broadcast (other than a radio broadcast or a broadcast to which paragraph (a) applies) delivered by a broadcasting service that is a commercial or national broadcasting service within the meaning of the Broadcasting Services Act 1992; being a broadcast, access to which in an intelligible form is protected by a technical measure or arrangement (including a computer program). 135AM Counterclaim In the application of this Part in relation to a counterclaim, references to the defendant are to be read as references to the plaintiff. Division 2—Action in relation to broadcast decoding devices 135AN Actions in relation to the manufacture of and dealing with broadcast decoding devices (1) Subject to subsection (2), this section applies if: (a) a broadcaster makes an encoded broadcast; and (b) a person does any of the following acts without the permission of the broadcaster: (i) makes a broadcast decoding device; (ii) sells, lets for hire, or by way of trade offers or exposes for sale or hire, a broadcast decoding device; (iii) distributes a broadcast decoding device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster; (iv) exhibits a broadcast decoding device in public by way of trade; (v) imports a broadcast decoding device into Australia for the purpose of: (A) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the device; or (B) distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster; or (C) exhibiting the device in public by way of trade; (vi) makes a broadcast decoding device available online to an extent that will affect prejudicially the broadcaster; and (c) the person knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. (2) This section 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. (3) Subject to subsection (8), if this section applies, the broadcaster may bring an action against the person. (4) The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. (5) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to: (a) the flagrancy with which the defendant did any of the acts described in paragraph (1)(b); and (b) any benefit shown to have accrued to the defendant as a result of making or dealing with the relevant broadcast decoding device; and (c) all other relevant matters; the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances. (6) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order. (7) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the broadcast decoding device would be used for the purpose referred to in paragraph (1)(c) unless the defendant proves otherwise. (8) An action cannot be brought against a person under this section in respect of any act described in paragraph (1)(b) after the expiration of 6 years from the time when the person did the act. 135ANA Actions in relation to the use of broadcast decoding devices for commercial purposes (1) Subject to subsection (2), this section applies if: (a) a broadcaster makes an encoded broadcast; and (b) a person uses, or authorises the use of, a broadcast decoding device to gain access to an encoded broadcast without the authorisation of the broadcaster; and (c) the person so uses, or authorises the use of, the device for the purposes of, or in connection with, a trade or business carried on by, or in association with, the person; and (d) the person knew, or ought reasonably to have known, that the broadcaster had not authorised the person to gain access to the broadcast by so using, or authorising the use of, the device. (2) This section 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. (3) Subject to subsection (7), if this section applies, the broadcaster may bring an action against the person. (4) The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. (5) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to: (a) the flagrancy with which the defendant did an act described in paragraph (1)(b); and (b) any benefit shown to have accrued to the defendant, or to the trade or business carried on by, or in association with,