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.
193D.
—(1) The court shall not grant any monetary relief or, except as provided for in section 193DB, make any order against a network service provider for any infringement of copyright in any material 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 copy of the material 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 copy of the material 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 the infringement of the copyright in the material that occurs in, or in the course of, making available the electronic copy of the material on the primary network, provided that the network service provider has the right and ability to control the infringing activity;
(b)
if the network service provider —
(i)
acquires actual knowledge that the copyright in the material has been infringed in, or in the course of, making available the electronic copy of the material on the primary network;
(ii)
acquires knowledge of such facts or circumstances which would lead inevitably to the conclusion that the copyright in the material has been infringed in, or in the course of, making available the electronic copy of the material 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 copy of the material on the primary network —
(A)
purportedly made by the owner of the copyright in the material or under the owner’s authority; and
(B)
stating the prescribed matters,
the network service provider expeditiously takes reasonable steps to remove or disable access to the copy of the material 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 owner of the copyright in the material or under the owner’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 the infringement of the copyright in the material that occurs in, or in the course of, making available the electronic copy of the material on the originating network, provided that the network service provider has the right and ability to control the infringing activity;
(b)
if the network service provider —
(i)
acquires actual knowledge that the copyright in the material has been infringed in, or in the course of, making available the electronic copy of the material on the originating network;
(ii)
acquires knowledge of such facts or circumstances which would lead inevitably to the conclusion that the copyright in the material has been infringed in, or in the course of, making available the electronic copy of the material 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 copy of the material on the originating network —
(A)
purportedly made by the owner of the copyright in the material or under the owner’s authority; and
(B)
stating the prescribed matters,
the network service provider expeditiously takes reasonable steps to disable access to the electronic copy of the material on the originating network, and to remove or disable access to any electronic copy of the material (being a copy made from the electronic copy of the material 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 owner of the copyright in the material or under the owner’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 infringement of copyright in the material, 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]