On 23/05/2013,
you requested for the version in force on 23/05/2013
incorporating all amendments published on or before 23/05/2013.
The closest version currently available is that of 28/03/2013.
119.
—(1) Subject to the provisions of this Act, the owner of a copyright may bring an action for an infringement of the copyright.
(2) Subject to the provisions of this Act, in an action for an infringement of copyright, the types of relief that the court may grant include the following:
(a)
an injunction (subject to such terms, if any, as the court thinks fit);
(b)
damages;
(c)
an account of profits;
(d)
where the plaintiff has elected for an award of statutory damages in lieu of damages or an account of profits, statutory damages of —
(i)
not more than $10,000 for each work or subject-matter in respect of which the copyright has been infringed; but
(ii)
not more than $200,000 in the aggregate, unless the plaintiff proves that his actual loss from such infringement exceeds $200,000.
[52/2004]
(2A) When the court awards any damages under subsection (2)(b), the court may also make an order under subsection (2)(c) for an account of any profits attributable to the infringement that have not been taken into account in computing the damages.
[52/2004]
(2B) Except as provided for in subsection (2A), the types of relief referred to in subsection (2)(b), (c) and (d) are mutually exclusive.
[52/2004]
(2C) For the purposes of subsection (2)(d), all the parts of a collective work constitute one work.
[52/2004]
(3) Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.
(4) Where, in an action under this section —
(a)
an infringement of copyright is established; and
(b)
the court is satisfied that it is proper to do so, having regard to —
(i)
the flagrancy of the infringement;
(ii)
any benefit shown to have accrued to the defendant by reason of the infringement; and
(iii)
all other relevant matters,
the court may, in assessing damages for the infringement under subsection (2)(b), award such additional damages as it considers appropriate in the circumstances.
[52/2004]
(5) In awarding statutory damages under subsection (2)(d), the court shall have regard to —
(a)
the nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise;
(b)
the flagrancy of the infringement;
(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 infringement;
(e)
any benefit shown to have accrued to the defendant by reason of the infringement;
(f)
the conduct of the parties before and during the proceedings;
(g)
the need to deter other similar infringements; and
(h)
all other relevant matters.
[52/2004]
(6) In this section —
“collective work” means a work in which relevant materials, constituting separate and independent works in themselves, are assembled into a collective whole;
“relevant material” has the same meaning as in section 7A(3).
[52/2004]
[Aust. 1968, s. 115]
120.
—(1) Subject to the provisions of this Act, the court may, in addition to any relief granted under section 119 in any action for an infringement of copyright brought under that section, order any infringing copy, or any article which has been used for making infringing copies, in the possession of the defendant or before the court to be delivered up to the plaintiff.
[6/98; 38/99; 52/2004]
(2) No order shall be made under this section unless the court also makes, or it appears to the court that there are grounds for making, an order under section 120A.
[6/98]
(3) A person to whom an infringing copy or other object is delivered up pursuant to an order made under this section shall, if an order under section 120A is not made, retain the copy or object pending the making of an order, or the decision not to make an order, under section 120A.
[6/98]
[Aust. 1968, s. 133 (4)]
120A.
—(1) An application may be made to the court for an order that an infringing copy or other object delivered up pursuant to an order made under section 120 be —
(a)
forfeited to the plaintiff; or
(b)
destroyed or otherwise dealt with as the court thinks fit.
[6/98]
(2) In considering what order, if any, should be made under this section, the court shall have regard to —
(a)
whether other remedies available in an action for infringement of copyright would be adequate to compensate the plaintiff and to protect the interests of the plaintiff; and
(b)
the need to ensure that no infringing copy is disposed of in a manner that would adversely affect the plaintiff.
[6/98]
(3) The court shall issue directions as to the service of notice on persons having an interest in the copy or other object.
[6/98]
(4) Any person having an interest in the copy or other object is entitled —
(a)
to appear in proceedings for an order under this section, whether or not that person is served with notice; and
(b)
to appeal against any order made, whether or not that person appears in the proceedings.
[6/98]
(5) An order made under this section shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
[6/98]
(6) Where there is more than one person interested in a copy or other object, the court may direct that the copy or object be sold, or otherwise dealt with, and the proceeds divided, and shall make any other order as it thinks just.
[6/98]
(7) If the court decides that no order should be made under this section, the person in whose possession the copy or other object was before being delivered up shall be entitled to its return, and the court may order the defendant to pay to the plaintiff such damages as the court thinks just and equitable.
[6/98]