—(1) A performer may bring an action for an unauthorised use of his performance.
(1A) An action shall not be brought for an unauthorised use of a performance after the expiration of 6 years from the time when the unauthorised use took place.
(2) Subject to the provisions of this Act, in an action for unauthorised use of a performance, the types of relief that the court may grant include the following:
an injunction (subject to such terms, if any, as the court thinks fit);
an account of profits;
where the plaintiff has elected for an award of statutory damages in lieu of damages or an account of profits, statutory damages of —
not more than $10,000 for each performance in respect of which there has been an unauthorised use; but
not more than $200,000 in the aggregate, unless the plaintiff proves that his actual loss from such infringement exceeds $200,000.
(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 unauthorised use that have not been taken into account in computing the damages.
(2B) Except as provided for in subsection (2A), the types of relief referred to in subsection (2)(b), (c) and (d) are mutually exclusive.
(3) Where, in an action for an unauthorised use of a performance —
the unauthorised use is established; and
the court is satisfied that it is proper to do so, having regard to —
the flagrancy of the use;
any benefit shown to have accrued to the defendant by reason of the use; and
all other relevant matters,
the court may, in assessing damages under subsection (2)(b), award such additional damages as it considers appropriate in the circumstances.
(3A) In awarding statutory damages under subsection (2)(d), the court shall have regard to —
the nature and purpose of the unauthorised use, including whether the unauthorised use was of a commercial nature or otherwise;
the flagrancy of the unauthorised use;
whether the defendant acted in bad faith;
any loss that the plaintiff has suffered or is likely to suffer by reason of the unauthorised use;
any benefit shown to have accrued to the defendant by reason of the unauthorised use;
the conduct of the parties before and during the proceedings;
the need to deter other similar instances of unauthorised use; and
all other relevant matters.
(4) The court may, in addition to any relief granted under subsections (2) and (3), order any unauthorised recording of the performance, or any article which has been used for making unauthorised recordings of the performance, in the possession of the defendant or before the court to be delivered up to the performer.
[6/98; 38/99; 52/2004]
(5) No order shall be made under subsection (4) unless the court also makes, or it appears to the court that there are grounds for making, an order under section 254.
(6) A performer to whom an unauthorised recording or other object is delivered up pursuant to an order made under subsection (4) shall, if an order under section 254 is not made, retain the recording or object pending the making of an order, or the decision not to make an order, under that section.
[Aust. 1968, s. 248J]