On 19/05/2013,
you requested for the version in force on 19/05/2013
incorporating all amendments published on or before 19/05/2013.
The closest version currently available is that of 28/03/2013.
121. In this Division —
“if the licence had been an assignment” means if, instead of the licence, there had been granted (subject to conditions corresponding as nearly as practicable with those subject to which the licence was granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorised by the licence, of the acts so authorised;
“the other party” means —
(a)
in relation to the owner of the copyright — the exclusive licensee; and
(b)
in relation to the exclusive licensee — the owner of the copyright.
[Aust. 1968, s. 117]
122. This Division shall apply to proceedings in relation to a copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.
[Aust. 1968, s. 118]
123. Subject to this Division, the exclusive licensee shall, except against the owner of the copyright, have the same rights of action as the owner of the copyright would have, and be entitled to the same remedies as he would be entitled to, by virtue of sections 119, 120 and 120A if the licence had been an assignment, and those rights and remedies are concurrent with the rights and remedies of the owner of the copyright under those sections.
[38/99]
[Aust. 1968, s. 119]
124. Where —
(a)
an action is brought by the owner of the copyright or by the exclusive licensee; and
(b)
the action, insofar as it is brought under section 119, relates, in whole or in part, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section,
the owner or licensee, as the case may be, shall be entitled to proceed with the action without joining the other party as a plaintiff or adding the other party as a defendant in the action, unless the court orders otherwise.
[52/2004]
[Aust. 1968, s. 120 (1)]
125. In an action brought by the exclusive licensee by virtue of this Division, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the copyright shall be available to that defendant as against the exclusive licensee.
[Aust. 1968, s. 121]
126. Where an action to which section 124 applies is brought and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages or statutory damages in respect of an infringement of a kind referred to in that section, shall —
(a)
if the plaintiff is the exclusive licensee — take into account any liabilities, in respect of royalties or otherwise, to which the licence is subject; and
(b)
whether the plaintiff is the owner of the copyright or the exclusive licensee — take into account any pecuniary remedy already awarded to the other party under section 119 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement, as the case requires.
[52/2004]
[Aust. 1968, s. 122]
127. Where —
(a)
an action, insofar as it is brought under section 119, relates, in whole or in part, to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section; and
(b)
in that action, whether the owner of the copyright and the exclusive licensee are both parties or not, an account of profits is directed to be taken in respect of that infringement,
then, subject to any agreement of which the court is aware by which the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them in such a manner as the court considers just and shall give such directions as the court considers appropriate for giving effect to that apportionment.
[Aust. 1968, s. 123]
128. In an action brought by the owner of the copyright or by the exclusive licensee —
(a)
a judgment or order for the payment of damages or statutory damages in respect of an infringement of copyright shall not be given or made under section 119 if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and
(b)
a judgment or order for an account of profits in respect of an infringement of copyright shall not be given or made under that section if a final judgment or order has been given or made in favour of the other party awarding damages or statutory damages or directing an account of profits under that section in respect of the same infringement.
[52/2004]
[Aust. 1968, s. 124]
129. Where, in an action to which section 124 applies, whether brought by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he enters an appearance and takes part in the proceedings.
[Aust. 1968, s. 125]