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Contents

Long Title

Part I PRELIMINARY

Part II INTERPRETATION

Part III COPYRIGHT IN ORIGINAL LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS

Division 1 — Nature, Duration and Ownership of Copyright in Works

Division 2 — Infringement of Copyright In Works

Division 3 — Acts not Constituting Infringements of Copyright Works

Division 4 — Acts not Constituting Infringements of Copyright in Literary, Dramatic and Musical Works

Division 5 — Copying of Works in Libraries

Division 6 — Copying of Works for Educational Purposes

Division 7 — Copying of Works in Institutions Assisting Handicapped Readers and Institutions Assisting Intellectually Handicapped Readers

Division 8 — Recording of Musical Works

Division 9 — Acts not Constituting Infringements of Copyright in Artistic Works

Division 10 — Designs

Division 11 — Works of Joint Authorship

Part IV COPYRIGHT IN SUBJECT-MATTER OTHER THAN WORKS

Division 1 — Preliminary

Division 2 — Nature of Copyright in Subject-Matter other than Works

Division 3 — Subject-Matter, other than Works, in which Copyright Subsists

Division 4 — Duration of Copyright in Subject-Matter other than Works

Division 5 — Ownership of Copyright in Subject-Matter other than Works

Division 6 — Infringement of Copyright in Subject-Matter other than Works

Division 7 — Miscellaneous

Part V REMEDIES FOR INFRINGEMENTS OF COPYRIGHT

Division 1 — Preliminary

Division 2 — Actions by Owner of Copyright

Division 3 — Proceedings where Copyright is subject to Exclusive Licence

Division 4 — Proof of Facts in Copyright Proceedings

Division 5 — Offences

Division 6 — Border Enforcement Measures

Division 7 — Powers of Search

Division 8 — Miscellaneous

Part VI COMPULSORY LICENCES FOR TRANSLATION AND REPRODUCTION OF CERTAIN WORKS

Part VII COPYRIGHT TRIBUNALS

Division 1 — Preliminary

Division 2 — Constitution of Tribunal

Division 3 — Inquiries by, and Applications and References to, Tribunal

Division 4 — Procedure and Evidence

Division 5 — Miscellaneous

Part VIII EXTENSION OR RESTRICTION OF THIS ACT

Part IX FALSE ATTRIBUTION OF AUTHORSHIP

Part IXA WORKS, OR OTHER SUBJECT-MATTER, IN ELECTRONIC FORM0

Part X MISCELLANEOUS

Part XI TRANSITIONAL

Division 1 — Preliminary

Division 2 — Original Works

Division 3 — Subject-Matter other than Works

Division 4 — Miscellaneous

Division 5 — Works made before 1st July 1912

Part XII PERFORMERS’ PROTECTION

Part XIII RIGHTS MANAGEMENT INFORMATION

Part XIIIA CIRCUMVENTION OF TECHNOLOGICAL MEASURES

Part XIV TRANSITIONAL PROVISIONS UNDER INTELLECTUAL PROPERTY (MISCELLANEOUS AMENDMENTS) ACT 2004

Part XV SAVINGS AND TRANSITIONAL PROVISIONS UNDER COPYRIGHT (AMENDMENT) ACT 2004

THE SCHEDULE False Registration of Industrial Designs

Legislative Source Key

Legislative History

Comparative Table

Comparative Table

 
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PART XIIIA
CIRCUMVENTION OF TECHNOLOGICAL MEASURES
Interpretation and effect of application of this Part
261B.
—(1)  In this Part, unless the context otherwise requires —
“circumvent” means to avoid, bypass, remove, deactivate, descramble (where the copy is scrambled), decrypt (where the copy is encrypted) or otherwise impair;
“copy”, in relation to any work or other subject-matter or any performance, means a copy of the work or subject-matter or of a recording of the performance, and includes the original version of the work or subject-matter or a recording of the performance;
“encryption technology” means technology for scrambling and descrambling information using mathematical formulae or algorithms;
“non-profit” means not operated or conducted for profit;
“performance”, “protection period”, “recording” and “unauthorised use” have the same meanings as in Part XII;
“personally identifying information” means information which can be used to identify persons using a network;
“technological access control measure” means any technology, device or component that, in the normal course of its operation, effectively controls access to a copy of —
(a)
a work or other subject-matter; or
(b)
a performance,
but excludes such technology, device or component as the Minister may prescribe;
“technological measure” means a technological access control measure or a technological protection measure;
“technological protection measure” means any technology, device or component that, in the normal course of its operation, effectively prevents or limits the doing of —
(a)
in relation to a copy of a work or other subject-matter, any act comprised in the copyright in the work or subject-matter; or
(b)
in relation to a copy of a performance, an unauthorised use of the performance,
but excludes such technology, device or component as the Minister may prescribe.
[52/2004]
(2)  Nothing in this Part shall affect any act done in relation to a work or other subject-matter in which copyright no longer subsists, or in relation to a performance the protection period of which has expired.
[52/2004]
(3)  Nothing in this Part shall affect —
(a)
any copyright subsisting in a work or other subject-matter;
(b)
any right in relation to a performance or a recording thereof;
(c)
any limitation on copyright in a work or other subject-matter, or on a right in relation to a performance or a recording thereof; or
(d)
any defence to an action for infringement of copyright, or for an unauthorised use of a performance,
under any provision of this Act.
[52/2004]
Circumvention of technological measures
261C.
—(1)  Subject to sections 261D and 261E, where a technological measure is applied to a copy of a work or other subject-matter by or with the authorisation of the owner of the copyright in the work or subject-matter in connection with the exercise of the copyright, or to a copy of a performance by or with the authorisation of the performer of the performance in connection with the exercise of any right in the performance, no person shall, without the authorisation of the owner of the copyright or the performer of the performance, as the case may be —
(a)
if the technological measure is a technological access control measure, do any act which he knows or ought reasonably to know circumvents the technological measure;
(b)
manufacture, import, distribute, offer to the public, provide or otherwise traffic in any device, product or component which —
(i)
is promoted, advertised or marketed for the purpose of circumventing the technological measure;
(ii)
has only a limited commercially significant purpose or use other than to circumvent the technological measure; or
(iii)
is designed or made primarily for the purpose of circumventing the technological measure;
(c)
offer to the public or provide any service which —
(i)
is promoted, advertised or marketed for the purpose of circumventing the technological measure;
(ii)
has only a limited commercially significant purpose or use other than to circumvent the technological measure; or
(iii)
is performed primarily for the purpose of circumventing the technological measure.
[52/2004]
(2)  An action may be brought by the owner of the copyright or the performer of the performance against a person who contravenes subsection (1).
[52/2004]
(3)  An action shall not be brought under subsection (2) in respect of any contravention of subsection (1) after the expiration of 6 years from the time when the contravention took place.
[52/2004]
(4)  Where a person contravenes subsection (1)(a) wilfully and for the purpose of obtaining a commercial advantage or private financial gain, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000.
[52/2004; 22/2005]
(5)  Where a person contravenes subsection (1)(b) or (c) wilfully and for the purpose of obtaining a commercial advantage or private financial gain, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both.
[52/2004; 22/2005]
(6)  For the purposes of subsection (5), a person shall not be treated as having contravened subsection (1)(b) wilfully unless —
(a)
in the case of a device, product or component referred to in subsection (1)(b)(i), he had himself —
(i)
promoted, advertised or marketed it; or
(ii)
authorised the promotion, advertising or marketing of it,
for the purpose of circumventing the technological measure;
(b)
in the case of a device, product or component referred to in subsection (1)(b)(ii), he knew or had reason to believe at the time of the contravention that it had only a limited commercially significant purpose or use other than to circumvent the technological measure; or
(c)
in the case of a device, product or component referred to in subsection (1)(b)(iii), he knew or had reason to believe at the time of the contravention that it was designed or made primarily for the purpose of circumventing the technological measure.
[52/2004]
(7)  For the purposes of subsection (5), a person shall not be treated as having contravened subsection (1)(c) wilfully unless —
(a)
in the case of a service referred to in subsection (1)(c)(i), he had himself —
(i)
promoted, advertised or marketed it; or
(ii)
authorised the promotion, advertising or marketing of it,
for the purpose of circumventing the technological measure;
(b)
in the case of a service referred to in subsection (1)(c)(ii), he knew or had reason to believe at the time of the contravention that it had only a limited commercially significant purpose or use other than to circumvent the technological measure; or
(c)
in the case of a service referred to in subsection (1)(c)(iii), he had himself —
(i)
performed it; or
(ii)
authorised the performance of it,
primarily for the purpose of circumventing the technological measure.
[52/2004]
(8)  For the purposes of subsections (4) and (5), a person does an act for the purpose of obtaining a commercial advantage if the act is done to obtain a direct advantage, benefit or financial gain for a business or trade carried on by him.
[52/2004]
(9)  Subsections (4) and (5) shall not apply to any act done by or on behalf of a non-profit library, any non-profit archives, an educational institution, an institution assisting handicapped readers, an institution assisting intellectually handicapped readers, or such public, non-commercial broadcasting organisation as the Minister may prescribe.
[52/2004]
(10)  This section does not affect the import or sale of a device that does not render effective a technological measure whose sole purpose is to control market segmentation for access to cinematograph films, if the import or sale of the device does not otherwise contravene any written law including this Act.
[52/2004]
[Aust. 1968, s. 132 (5A) and (5B)]
Exceptions to prohibition on circumvention
261D.
—(1)  Subject to subsection (3), section 261C(1)(a) is not contravened by the doing of an act to circumvent a technological measure if —
(a)
the act is done to enable a non-profit library, any non-profit archives, an educational institution, an institution assisting handicapped readers, or an institution assisting intellectually handicapped readers to have access to a work or other subject-matter or recording of a performance which is not otherwise available to the library, archives or institution, for the sole purpose of determining whether to acquire a copy of the work or other subject-matter or recording;
(b)
the technological measure has the capability to collect or disseminate personally identifying information to reflect the manner of use of a network by persons without providing conspicuous notice of such collection or dissemination to those persons, and the act is done for the sole purpose of identifying and disabling the technological measure, provided that the act does not affect the ability of any person to gain access to any work or other subject-matter or recording of any performance;
(c)
the act is done in relation to a work or other subject-matter or performance that is prescribed by the Minister under subsection (2) —
(i)
by a person prescribed under subsection (2A) or (if none is prescribed) by any person; and
(ii)
for a purpose prescribed under subsection (2A) or (if none is prescribed) for any purpose;
(d)
the act is done —
(i)
in good faith;
(ii)
in relation to a copy of a computer program that is not an infringing copy; and
(iii)
with respect to particular elements of the computer program that are not readily available to the person doing the act,
for the sole purpose of achieving interoperability of an independently created computer program with another computer program;
(e)
the act is done when undertaking research on any encryption technology, provided that —
(i)
the person doing the act —
(A)
is engaged in a legitimate course of study in the field of encryption technology;
(B)
is employed or appropriately trained or experienced in that field; or
(C)
is doing so on behalf of a person so engaged, employed, trained or experienced;
(ii)
the act is necessary to conduct such research;
(iii)
the act is done in good faith and in relation to a copy of the work or subject-matter that is not an infringing copy thereof or a copy of the performance that is not an unauthorised recording thereof; and
(iv)
the person doing the act has made a reasonable effort to obtain the authorisation of the owner of the copyright in the work or subject-matter or the performer of the performance to do the act;
(f)
the act consists of the inclusion of a component or part in any technology, product or device for the sole purpose of preventing access by minors to any material on the Internet, provided that the technology, product or device is not prohibited under section 261C(1)(b);
(g)
the act is done by or under the authority of the owner of a computer, computer system or computer network for the sole purpose of testing, investigating, or correcting a security flaw or vulnerability of that computer, computer system or computer network; or
(h)
the act is carried out by the Government or by any person authorised by the Government for the purpose of law enforcement, intelligence, national defence, essential security or other similar purpose.
[30/2008 wef 17/12/2008]
[52/2004]
(2)  The Minister may, by order published in the Gazette, exclude the operation of section 261C(1)(a) in relation to a specified work or other subject-matter or performance, or a specified class of works or other subject-matters or performances, if he is satisfied that any dealing with the work, subject-matter or performance or with the class of works, subject-matters or performances, being a dealing which does not amount to an infringement of copyright therein or an unauthorised use thereof (as the case may be), has been or is likely to be adversely impaired or affected as a result of the operation of this section.
[30/2008 wef 17/12/2008]
[52/2004]
(2A)  The order referred to in subsection (2) may specify —
(a)
the person or class of persons who may carry out the act of circumvention of a technological measure in relation to the work, subject-matter or performance or the class of works, subject-matters or performances; and
(b)
the purpose of carrying out the act.
(3)  Subsection (1) shall not apply if —
(a)
in the case of an act referred to in paragraph (b), (e) or (g) of that subsection, the act violates a provision of any written law other than this Act;
(b)
in the case of an act referred to in paragraph (c), (d), (e) or (g) of that subsection, the act infringes the copyright in the work or other subject-matter or amounts to an unauthorised use of the performance; or
(c)
in the case of an act referred to in paragraph (a) of that subsection, the act leads to an infringement of the copyright in the work or other subject-matter or to an unauthorised use of the performance, or otherwise violates a provision of any other written law.
[52/2004]
[Aust. 1968, s. 116C]
Exceptions to prohibition on making, etc., circumventing device and offering circumventing service
261E.
—(1)  Subject to subsections (2) and (3), section 261C(1)(b) and (c) is not contravened by the doing of any of the following:
(a)
the manufacture, importation, distribution, offering to the public or provision of a device, product or component, or the offering to the public or provision of a service, to carry out an act to circumvent a technological measure that is done —
(i)
in good faith;
(ii)
in relation to a copy of a computer program that is not an infringing copy; and
(iii)
with respect to particular elements of the computer program that are not readily available to the person doing the act,
for the sole purpose of achieving interoperability of an independently created computer program with another computer program;
(b)
the manufacture, importation, distribution, offering to the public or provision of a device, product or component, or the offering to the public or provision of a service, to carry out an act to circumvent a technological measure referred to in section 261D(1)(e);
(c)
the manufacture, importation, distribution, offering to the public or provision of a component or part referred to in section 261D(1)(f);
(d)
the manufacture, importation, distribution, offering to the public or provision of a device, product or component, or the offering to the public or provision of a service, to carry out an act to circumvent a technological measure referred to in section 261D(1)(g);
(e)
an act carried out by the Government or by any person authorised by the Government for the purpose of law enforcement, intelligence, national defence, essential security or other similar purpose.
[52/2004]
(2)  Paragraphs (b), (c) and (d) of subsection (1) apply only if the technological measure is a technological access control measure.
[52/2004]
(3)  Subsection (1) shall not apply if —
(a)
in the case of an act referred to in paragraph (a) of that subsection, the circumvention referred to in that paragraph infringes the copyright in the work or other subject-matter or amounts to an unauthorised use of the performance; or
(b)
in the case of an act referred to in paragraph (b) or (d) of that subsection, the circumvention referred to in that paragraph infringes the copyright in the work or other subject-matter or amounts to an unauthorised use of the performance, or otherwise violates a provision of any other written law.
[52/2004]
Relief which court may grant
261F.
—(1)  In an action brought under section 261C(2), the types of relief that the court may grant, if it is satisfied that the defendant has contravened section 261C(1), include —
(a)
an injunction (subject to such terms, if any, as the court thinks fit); and
(b)
either of the following:
(i)
damages;
(ii)
where the plaintiff has elected for an award of statutory damages in lieu of damages, statutory damages of not more than $20,000.
[52/2004]
(2)  In addition to the relief referred to in subsection (1), the court may order that any article —
(a)
by means of which, or in relation to which, the act giving rise to the contravention of subsection 261C(1) was or is being carried out; and
(b)
which is in the possession of the defendant or before the court,
be delivered up to the plaintiff or destroyed.
[52/2004]
(3)  For the purposes of subsection (1)(b)(i), damages include any profits that are attributable to the act giving rise to the contravention of subsection 261C(1).
[52/2004]
(4)  In awarding statutory damages under subsection (1)(b)(ii), the court shall have regard to —
(a)
the nature or purpose of the act concerned, including whether the act was of a commercial nature or otherwise;
(b)
the flagrancy of the act;
(c)
whether the defendant acted in bad faith;
(d)
any loss that the plaintiff has suffered or is likely to suffer by reason of the act;
(e)
any benefit shown to have accrued to the defendant by reason of the act;
(f)
the conduct of the parties before or during the proceedings;
(g)
the need to deter other similar acts; and
(h)
all other relevant matters.
[52/2004]
(5)  Notwithstanding subsection (1), where, in an action for a contravention of section 261C(1)(b), such contravention is established but it is also established that —
(a)
in the case of a device, product or component referred to in section 261C(1)(b)(i), the defendant did not himself promote, advertise or market it, or authorise the promotion, advertising or marketing of it, for the purpose of circumventing the technological measure;
(b)
in the case of a device, product or component referred to in section 261C(1)(b)(ii), at the time of the contravention, the defendant was not aware, and had no reasonable grounds for suspecting, that it had only a limited commercially significant purpose or use other than circumventing the technological measure; or
(c)
in the case of a device, product or component referred to in section 261C(1)(b)(iii), at the time of the contravention, the defendant was not aware, and had no reasonable grounds for suspecting, that it was designed or made primarily for the purpose of circumventing the technological measure,
the plaintiff shall not be entitled, as against the defendant, to any damages or statutory damages for the contravention.
[52/2004]
(6)  Notwithstanding subsection (1), where, in an action for a contravention of section 261C(1)(c), such contravention is established but it is also established that —
(a)
in the case of a service referred to in section 261C(1)(c)(i), the defendant did not himself promote, advertise or market it, or authorise the promotion, advertising or marketing of it, for the purpose of circumventing the technological measure;
(b)
in the case of a service referred to in section 261C(1)(c)(ii), at the time of the contravention, the defendant was not aware, and had no reasonable grounds for suspecting, that it had only a limited commercially significant purpose or use other than to circumvent the technological measure; or
(c)
in the case of a service referred to in section 261C(1)(c)(iii), the defendant did not himself perform it, or authorise the performance of it, primarily for the purpose of circumventing the technological measure,
the plaintiff shall not be entitled to any damages or statutory damages against the defendant for the contravention.
[52/2004]
[Aust. 1968, s. 116D]
Enforcement measures
261G.
—(1)  The court before which a person is charged with an offence under section 261C(4) or (5) may, whether he is convicted of the offence or not, order that any article that appears to the court to be used predominantly for circumventing a technological measure used in connection with —
(a)
the exercise of the copyright in a work or other subject-matter by the owner of the copyright; or
(b)
any right in a performance by the performer of the performance,
in the possession of the alleged offender or before the court, be destroyed or delivered up to the owner or exclusive licensee of the copyright concerned or the performer of the performance, as the case may be, or otherwise dealt with in such manner as the court thinks fit.
[52/2004]
(2)  If information is given upon oath to a court that there is reasonable cause for suspecting that there is in any premises any article or document which is evidence that an offence under section 261C(4) or (5) has been committed, the court may issue, either unconditionally or subject to such conditions as the court thinks fit, a warrant authorising a police officer to enter and search the premises for the articles and documents which are specified in the warrant, whether specifically or in any general category, and to seize any such articles and documents found at the premises.
[52/2004]
(3)  If an article was seized under subsection (2) and —
(a)
in proceedings brought under section 261C(4) or (5), no order is made as to the disposal of the article, whether under subsection (1) or otherwise; or
(b)
no such proceedings are instituted within 6 months of the seizure,
the article shall be returned to the person in whose possession it was when it was seized or, if it is not reasonably practicable to return it to that person, shall be disposed of in accordance with the law regulating the disposal of lost or unclaimed property in the hands of police authorities.
[52/2004]
(4)  If a document was seized under subsection (2) and no proceedings under section 261C(4) or (5) are instituted within 6 months of the seizure, the document and all copies of the document shall be returned to the person in whose possession the document was when it was seized or, if it is not reasonably practicable to return the document and copies to that person, shall be disposed of in accordance with the law regulating the disposal of lost or unclaimed property in the hands of police authorities.
[52/2004]
(5)  In this section —
“document” means anything in which information of any description is recorded;
“premises” includes any land, building, structure and conveyance.
[52/2004]