On 26/05/2013,
you requested for the version in force on 26/05/2013
incorporating all amendments published on or before 26/05/2013.
The closest version currently available is that of 28/03/2013.
Application to Tribunal for determination of remuneration payable for making recording or film of a work
156A.
—(1) This section shall apply where an application is made to a Tribunal under section 43(3) or 68(3) for the determination of an equitable remuneration to be paid to the owner of the copyright in a work for the making of a sound recording or cinematograph film of the work or of an adaptation of the work.
[6/98]
(2) The parties to an application in relation to which this section applies are —
(a)
the owner of the copyright in the work; and
(b)
the maker of the recording or film.
[6/98]
(3) Where an application in relation to which this section applies is made to a Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the recording or film.
[6/98]
[Aust. 1968, s. 149]
Application to Tribunal for determination of remuneration payable for making copy of sound recording
156B.
—(1) This section shall apply where an application is made to a Tribunal under section 107(3) for the determination of an equitable remuneration to be paid to the owner of the copyright in a sound recording for the making of a copy of the sound recording.
[6/98]
(2) The parties to an application in relation to which this section applies are —
(a)
the owner of the copyright in the sound recording; and
(b)
the maker of the copy of the sound recording.
[6/98]
(3) Where an application in relation to which this section applies is made to a Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the copy of the sound recording.
[6/98]
[Aust. 1968, s. 150]
Application to Tribunal for determination of remuneration payable for making available to public sound recording by means of digital audio transmission
156C.
—(1) This section shall apply where an application is made to a Tribunal under section 107D for the determination of equitable remuneration to be paid to the owner of the copyright in a sound recording for the making available to the public of the sound recording by means of or as part of a digital audio transmission that is not part of an interactive service.
[52/2004]
(2) The parties to an application in relation to which this section applies are —
(a)
the owner of the copyright in the sound recording; and
(b)
the person who makes available to the public the sound recording by means of or as part of a digital audio transmission that is not part of an interactive service.
[52/2004]
(3) Where an application in relation to which this section applies is made to a Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making available to the public of the sound recording by means of or as part of a digital audio transmission that is not part of an interactive service.
[52/2004]
(4) In this section, “interactive service” has the same meaning as in section 81(1).
[52/2004]
[Aust. 1968, s. 151]
157.
—(1) This section shall apply where the Minister charged with the responsibility for trade and industry requests a Tribunal under section 59 to hold an inquiry in relation to the royalty, or the minimum royalty, payable in respect of records generally, or in respect of records included in a particular class of records.
(2) Where such a request is made, the Tribunal shall hold the inquiry and shall give every person or organisation that the Tribunal is satisfied has a substantial interest in the matter to which the inquiry relates an opportunity of presenting a case to the Tribunal.
(3) As soon as practicable after the completion of the inquiry, the Tribunal shall make a report in writing to the Minister setting out the result of the inquiry.
[Aust. 1968-1973, s. 148]
Applications to Tribunal for determination of remuneration payable to owner of copyright for copies made under statutory licence
158.
—(1) This section shall apply where application is made to a Tribunal under section 52(11) or (11C), 54(10) or 54A(7) for the determination of an equitable remuneration to be paid to the owner of the copyright in a work for the making of copies, of a handicapped reader’s copy or of an intellectually handicapped reader’s copy, as the case requires, of the whole or of a part of that work.
[6/98; 52/2004]
(2) The parties to an application in relation to which this section applies are —
(a)
the owner of the copyright in a work; and
(b)
the body by which, or on behalf of which, the copies, the handicapped reader’s copy or the intellectually handicapped reader’s copy referred to in subsection (1) were or was made.
[6/98]
(3) Where an application in relation to which this section applies is made to a Tribunal, the Tribunal shall consider the application and, after giving the parties to the application opportunities of presenting their cases —
(a)
shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the copies or, of the handicapped reader’s copy or of the intellectually handicapped reader’s copy, as the case requires; and
(b)
may, subject to the regulations, make such order as to costs as the Tribunal thinks fit.
[6/98]
(4) Where a Tribunal makes, under subsection (3), an order that one party to an application pay an amount by way of costs to the other party to the application, the first-mentioned party shall pay that amount to the other party and, in default of payment, the first-mentioned party may recover that amount from the other party in a court of competent jurisdiction as a debt due to him.
159.
—(1) This section shall apply where an application is made to a Tribunal under section 60(3)(b) for an apportionment of an amount payable in respect of a record between the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work.
(2) The parties to an application in relation to which this section applies are —
(a)
the owner of the copyright in the musical work; and
(b)
the owner of the copyright in the literary or dramatic work.
(3) Where an application in relation to which this section applies is made to a Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order apportioning the amount to which the application relates between the parties in such manner as it thinks equitable.
[Aust. 1968, s. 153]
160.
—(1) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to a Tribunal.
(2) The parties to a reference under this section are —
(a)
the licensor referring the scheme; and
(b)
such organisations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with subsection (3), are made parties to the reference.
(3) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to a Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organisation or person has a substantial interest in the operation of the scheme to which the reference relates, the Tribunal may, if it thinks fit, make that organisation or person a party to the reference.
(4) A Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, or substituting the scheme with such other scheme, as the Tribunal considers reasonable in the circumstances.
(5) An order (other than an interim order) of a Tribunal under this section may, notwithstanding anything in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(6) Where a licence scheme has been referred to a Tribunal under this section, the licensor may do either or both of the following things:
(a)
bring the scheme into operation before the Tribunal makes an order in pursuance of the reference;
(b)
withdraw the reference at any time before the Tribunal makes an order in pursuance of the reference, whether the scheme has been brought into operation or not.
(7) If the scheme is not brought into operation before an order is made in pursuance of the reference, the scheme as confirmed, varied or substituted by the order comes into operation, notwithstanding anything in the scheme, immediately upon the making of the order.
(8) After the making of an order in pursuance of the reference, the scheme as confirmed, varied or substituted by the order shall remain in operation, notwithstanding anything in the scheme, so long as the order remains in force.
[Aust. 1968, s. 154]
161.
—(1) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the terms of the scheme between the licensor operating the scheme and —
(a)
an organisation claiming to be representative of persons requiring licences in cases included in a class of cases to which the scheme applies; or
(b)
any person claiming that he requires a licence in a case included in a class of cases to which the scheme applies,
the licensor, organisation or person concerned may refer the scheme to a Tribunal insofar as the scheme relates to cases included in that class.
(2) The parties to a reference under this section are —
(a)
the licensor, organisation or person referring the scheme;
(b)
if the reference is not made by the licensor operating the scheme — that licensor; and
(c)
such other organisations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with subsection (3), are made parties to the reference.
(3) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to a Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organisation or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organisation or person a party to the reference.
(4) A Tribunal shall not begin to consider a reference under this section by an organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons that it claims to represent.
(5) Subject to subsection (4), where a licence scheme is referred to a Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, or substituting the scheme with such other scheme, insofar as it relates to cases included in the class of cases to which the reference relates, as the Tribunal considers reasonable in the circumstances.
(6) An order (other than an interim order) of a Tribunal under this section may, notwithstanding anything in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(7) A reference of a licence scheme to a Tribunal under this section may be withdrawn at any time before an order is made in pursuance of the reference.
(8) Where a licence scheme has been referred to a Tribunal under this section, the scheme shall remain in operation, notwithstanding anything in the scheme, until the Tribunal makes an order in pursuance of the reference.
(9) Subsection (8) shall not apply in relation to a reference with respect to any period after the reference has been withdrawn or after the Tribunal has refused to begin to consider the reference in pursuance of subsection (4).
(10) After the making of an order in pursuance of the reference, the scheme as confirmed, varied or substituted by the order shall remain in operation, notwithstanding anything in the scheme, so long as the order remains in force.
[Aust. 1968, s. 155]
162.
—(1) Where a Tribunal has made an order (other than an interim order) under section 160 or 161 with respect to a licence scheme, then, subject to subsection (2), at any time while the order remains in force —
(a)
the licensor operating the scheme;
(b)
any organisation claiming to be representative of persons requiring licences in cases included in the class of cases to which the order applies; or
(c)
any person claiming that he requires a licence in a case included in that class,
may refer the scheme again to a Tribunal insofar as it relates to cases included in that class.
(2) A licence scheme shall not, except with the leave of a Tribunal, be referred again to a Tribunal under subsection (1) at a time earlier than —
(a)
where the order concerned was made so as to be in force indefinitely or for a period exceeding 15 months — the expiration of the period of 12 months commencing on the date on which the order was made; or
(b)
where the order concerned was made so as to be in force for a period not exceeding 15 months — the commencement of the period of 3 months ending on the date of expiration of the order.
(3) The parties to a reference under this section are —
(a)
the licensor, organisation or person referring the scheme;
(b)
if the reference is not made by the licensor operating the scheme — that licensor; and
(c)
such other organisations or persons (if any) as apply to a Tribunal to be made parties to the reference and, in accordance with the provisions applicable in that behalf by virtue of subsection (5), are made parties to the reference.
(4) Subject to subsection (5), where a licence scheme is referred to a Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order in relation to the scheme as previously confirmed, varied or substituted, insofar as it relates to cases included in the class of cases to which the reference relates, whether by way of confirming, varying or further varying the scheme, or substituting the scheme with such other scheme, as the Tribunal considers reasonable in the circumstances.
(6) Subsections (1) to (5) shall have effect in relation to orders made under this section in like manner as they have effect in relation to orders made under section 160 or 161.
(7) Nothing in this section shall prevent a licence scheme in respect of which an order has been made under section 160 or 161 from being again referred to a Tribunal under that section —
(a)
insofar as the scheme relates to cases included in a class of cases to which the order does not apply — at any time; and
(b)
insofar as the scheme relates to cases included in the class of cases to which the order applied while it was in force — after the expiration of the order.
[Aust. 1968, s. 156]
163.
—(1) A person who claims, in a case to which a licence scheme applies, that the licensor operating the scheme has refused or failed to grant him a licence in accordance with the scheme, or to procure the grant to him of such a licence, may apply to a Tribunal under this section.
(2) A person who claims, in a case to which a licence scheme applies, that he requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case, may apply to a Tribunal under this section.
(3) A person who claims that he requires a licence in a case to which a licence scheme does not apply (including a case where a licence scheme has not been formulated or is not in operation) and —
(a)
that a licensor has refused or failed to grant the licence, or to procure the grant of the licence, and that in the circumstances it is unreasonable that the licence should not be granted; or
(b)
that a licensor proposes that the licence should be granted subject to the payment of charges, or to conditions, that are unreasonable,
may apply to a Tribunal under this section.
(4) An organisation that claims that it is representative of persons requiring licences in cases to which a licence scheme does not apply (including cases where a licence scheme has not been formulated or is not in operation) and —
(a)
that a licensor has refused or failed to grant the licences, or to procure the grant of the licences, and that in the circumstances it is unreasonable that the licences should not be granted; or
(b)
that a licensor proposes that the licences should be granted subject to the payment of charges, or to conditions, that are unreasonable,
may apply to a Tribunal under this section.
(5) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to a Tribunal to be made a party to an application under subsection (1), (2), (3) or (4), and the Tribunal is satisfied that the organisation or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organisation or person a party to the application.
(6) Where an application is made to a Tribunal under subsection (1), (2), (3) or (4), the Tribunal shall give to the applicant, to the licensor concerned and to every other party (if any) to the application an opportunity of presenting their cases and, if the Tribunal is satisfied that the claim of the applicant is well-founded, the Tribunal shall make an order specifying, in respect of the matters specified in the order —
(a)
in the case of an application under subsection (1) — the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant;
(b)
in the case of an application under subsection (2) or (3) — the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or
(c)
in the case of an application under subsection (4) — the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to persons, or to persons included in classes of persons, specified in the order, being persons who were represented by the applicant or were parties to the application.
(7) A reference in this section to a failure to grant a licence, or to procure the grant of a licence, shall be read as a reference to a failure to grant the licence, or to procure the grant of the licence, as the case may be, within a reasonable time after a request to do so.
[Aust. 1968, s. 157]
164.
—(1) Where a licence scheme is in operation by virtue of this Part pending the making of an order on a reference under this Part and a person, in a case to which the scheme applies, does anything that, apart from this subsection, would be an infringement of a copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme insofar as the scheme relates to cases to which the reference relates, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2) For the purposes of subsection (1), the relevant requirements are —
(a)
that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme, would be applicable to a licence in respect of the case concerned; and
(b)
where, in accordance with the scheme, any charges are payable in respect of such a licence — that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
(3) A person who does anything in relation to which subsection (1) applies shall be liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme insofar as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
[Aust. 1968, s. 158]
165.
—(1) Where an order made on a reference under this Part with respect to a licence scheme is for the time being in force and a person, in a case to which the scheme as confirmed or varied by the order applies, does anything that, apart from this subsection, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, insofar as the scheme relates to cases to which the order applies, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2) For the purposes of subsection (1), the relevant requirements are —
(a)
that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme as confirmed or varied by the order, would be applicable to a licence in respect of the case concerned; and
(b)
where, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence — that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
(3) A person who does anything in relation to which subsection (1) applies shall be liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, insofar as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
(4) Where a Tribunal has made an order on an application under section 163(1), (2) or (3) specifying charges, if any, and conditions, in relation to the applicant, in respect of the matters specified in the order, then if —
(a)
the applicant has complied with the conditions specified in the order; and
(b)
in a case where the order specifies any charges — he has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
the applicant shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(5) Where a Tribunal has made an order on an application under section 163(4) specifying charges (if any) and conditions, in relation to the persons, or to persons included in the classes of persons, specified in the order, in respect of matters specified in the order, then, if —
(a)
any such person has complied with the conditions specified in the order; and
(b)
in the case where the order specifies any charges — the person has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
that person shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(6) Where a person in relation to whom an order referred to in subsection (4) or (5) applies does, in relation to any of the matters specified in that order, anything that, apart from that subsection, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence in respect of the doing of that thing granted by the owner of the copyright concerned on the conditions and subject to payment of the charges (if any) specified in the order, that person shall be liable to pay to the owner of the copyright the amount of any charges that would be payable if he were the holder of such a licence.
(7) The owner of the copyright may recover the amount referred to in subsection (6) in a court of competent jurisdiction from the person as a debt due to the owner of the copyright.
[Aust. 1968, s. 159]
166.
—(1) Subject to subsection (2), upon application made to it by the Attorney-General, a Tribunal may, in its discretion, make an order suspending the application of section 52(1) and (2) in relation to the body administering an educational institution, being a body that has been convicted of 2 or more offences against the regulations in relation to the retention of records or declarations relating to copies of the whole or parts of works made in reliance on section 52.
(2) A Tribunal shall not make an order under subsection (1) if it is satisfied that the body in relation to which the order is sought has taken all reasonable steps to ensure that no further contravention of the regulations referred to in subsection (1) will occur in relation to the retention of records or declarations relating to copies made or to be made by or on behalf of the body.
(3) For the purposes of subsection (1), a conviction of the custodian in charge of the copying records of an educational institution for a contravention of the regulations referred to in subsection (1), not being a conviction for a contravention in relation to which the body administering the educational institution has also been convicted, shall be taken to be a conviction of the body administering the educational institution.
(4) The parties to an application under subsection (1) in relation to a body administering an educational institution are —
(a)
the Attorney-General; and
(b)
that body.
167.
—(1) The body administering an educational institution may, at any time, make application to a Tribunal for the revocation of an order under section 166 suspending the application of section 52(1) in relation to it.
(2) Where a Tribunal is satisfied, upon application made under subsection (1), that the body making the application has taken all reasonable steps to ensure that no further contravention of the regulations referred to in section 166(1) will occur in relation to the retention of records or declarations relating to copies made or to be made in reliance on section 52, the Tribunal may revoke the order to which the application relates.
(3) The parties to an application under subsection (1) for the revocation of an order made in relation to the body administering an institution are —
(a)
that body; and
(b)
the Attorney-General.
168. Where an application or reference is made to a Tribunal under this Act, the Tribunal may make an interim order having effect until the final decision of the Tribunal on the application or reference is given.
[Aust. 1968, s. 160]
169.
—(1) A Tribunal may, of its own motion or at the request of a party, refer a question of law arising in proceedings before it for determination by the High Court.
(2) A question shall not be referred to the High Court by virtue of subsection (1) in pursuance of a request made after the date on which a Tribunal gave its decision in the proceedings unless the request is made before the expiration of 14 days of the Tribunal giving its decision.
(3) If a Tribunal, after giving its decision in any proceedings, refuses a request to refer a question to the High Court, the party by whom the request was made may, within 14 days of the refusal, apply to the High Court for an order directing the Tribunal to refer the question to the High Court.
(4) Where a reference is made to the High Court under this section with respect to any proceedings before a Tribunal, and where an application is made under subsection (3) with respect to any such proceedings, every party to the proceedings before the Tribunal shall be entitled to appear and to be heard.
(5) Where, after a Tribunal has given its decision in any proceedings, the Tribunal refers to the High Court under this section a question of law that arose in the course of the proceedings, and the High Court decides that the question was erroneously determined by the Tribunal —
(a)
the Tribunal shall reconsider the matter in dispute and, if it considers it necessary to do so for the purpose of giving effect to the decision of the High Court, shall give to the parties to the proceedings a further opportunity of presenting their cases; and
(b)
if it appears to the Tribunal to be appropriate, and in conformity with the decision of the High Court, to do so, the Tribunal shall make such order revoking or modifying any order previously made by it in the proceedings, or, in the case of proceedings under section 163 where the Tribunal refused to make an order, shall make such order under that section, as the Tribunal considers to be appropriate.
(6) A reference of a question by a Tribunal to the High Court under this section shall be by way of stating a case for the opinion of the High Court; and the decision of the Court on any such reference shall be final.
(7) For the purposes of this section, a question of law shall not include a question whether there is sufficient evidence to justify a finding of fact by a Tribunal.
(8) This section shall not apply in relation to an inquiry by a Tribunal under section 157.
[Aust. 1968, s. 161]