On 24/05/2013,
you requested for the version in force on 24/05/2013
incorporating all amendments published on or before 24/05/2013.
The closest version currently available is that of 28/03/2013.
252C.
—(1) The court shall not grant any monetary relief or, except as provided for in section 252CB, make any order against a network service provider for any infringement of copyright in any performance, the protection period of which has not expired, that occurs by reason of —
(a)
the storage, at the direction of a user of the network service provider’s primary network, of an electronic recording of the performance on the primary network, if the network service provider satisfies the conditions referred to in subsection (2); or
(b)
the network service provider referring or linking a user of any network to an online location on a network (referred to in this section as the originating network), being a location at which an electronic recording of the performance is made available, by the use of —
(i)
an information location tool such as a hyperlink or directory; or
(ii)
an information location service such as a search engine,
if the network service provider satisfies the conditions referred to in subsection (4).
[52/2004]
(2) The conditions referred to in subsection (1)(a) are that —
(a)
the network service provider does not receive any financial benefit directly attributable to any unauthorised use of the performance that occurs in, or in the course of, making available the electronic recording of the performance on the primary network, provided that the network service provider has the right and ability to control the unauthorised use of the performance;
(b)
if the network service provider —
(i)
acquires actual knowledge that there has been an unauthorised use of the performance in, or in the course of, making available the electronic recording of the performance on the primary network;
(ii)
acquires knowledge of such facts or circumstances which would lead inevitably to the conclusion that there has been an unauthorised use of the performance in, or in the course of, making available the electronic recording of the performance on the primary network; or
(iii)
is furnished in the prescribed manner with a notice in, or substantially in accordance with, the prescribed form relating to the electronic recording of the performance on the primary network —
(A)
purportedly made by the performer of the performance or under the performer’s authority; and
(B)
stating the prescribed matters,
the network service provider expeditiously takes reasonable steps to remove or disable access to the electronic recording of the performance on the primary network; and
(c)
the network service provider has designated a representative to receive any notice referred to in paragraph (b)(iii) and published the prescribed information on the designated representative in the prescribed manner.
[52/2004; 22/2005]
(3) For the purposes of subsection (2), a notice purportedly made by the performer of the performance or under the performer’s authority which is not a notice referred to in subsection (2)(b)(iii) shall not be considered in determining whether the network service provider has acquired any knowledge referred to in subsection (2)(b)(i) or (ii).
[22/2005]
(4) The conditions referred to in subsection (1)(b) are that —
(a)
the network service provider does not receive any financial benefit directly attributable to any unauthorised use of the performance that occurs in, or in the course of, making available the electronic recording of the performance on the originating network, provided that the network service provider has the right and ability to control the unauthorised use of the performance;
(b)
if the network service provider —
(i)
acquires actual knowledge that there has been an unauthorised use of the performance in, or in the course of, making available the electronic recording of the performance on the originating network;
(ii)
acquires knowledge of such facts or circumstances which would lead inevitably to the conclusion that there has been an unauthorised use of the performance in, or in the course of, making available the electronic recording of the performance on the originating network; or
(iii)
is furnished in the prescribed manner with a notice in, or substantially in accordance with, the prescribed form relating to the electronic recording of the performance on the originating network —
(A)
purportedly made by the performer of the performance or under the performer’s authority; and
(B)
stating the prescribed matters,
the network service provider expeditiously takes reasonable steps to disable access to the electronic recording of the performance on the originating network, and to remove or disable access to any electronic recording of the performance (being a copy made from the electronic recording of the performance on the originating network and of which the network service provider has actual knowledge) on the primary network; and
(c)
the network service provider has designated a representative to receive any notice referred to in paragraph (b)(iii) and published the prescribed information on the designated representative in the prescribed manner.
[52/2004; 22/2005]
(5) For the purposes of subsection (4), a notice purportedly made by the performer of the performance or under the performer’s authority which is not a notice referred to in subsection (4)(b)(iii) shall not be considered in determining whether the network service provider has acquired any knowledge referred to in subsection (4)(b)(i) or (ii).
[22/2005]
(6) For the purposes of subsections (2)(a) and (4)(a), in determining whether a financial benefit is directly attributable to the unauthorised use of the performance, the court shall have regard to —
(a)
industry practice in relation to the charging of services by network service providers;
(b)
whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practices; and
(c)
all other matters that the court considers relevant.
[22/2005]