Part 1 — Performers’ rights in sound recordings

Copyright Act 1968

1  Paragraph 22(3)(a)

After “sound recording”, insert “, other than a sound recording of a live performance,”.

Note 1:    The following heading to subsection 22(1) is inserted “ Literary, dramatic, musical or artistic works ”.

Note 2:    The following heading to subsection 22(3) is inserted “ Sound recordings ”.

2  After subsection 22(3)

Insert:

          (3A)  For the purposes of this Act, the makers of a sound recording of a live performance are:

                     (a)  the person or persons who, at the time of the recording, own the record on which the recording is made; and

                     (b)  the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Note:          A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.

          (3B)  If:

                     (a)  a sound recording of a live performance is made; and

                     (b)  a performer performs in that performance under the terms of his or her employment by another person (the employer ) under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken to be a maker instead of that performer.

          (3C)  Subsection (3B) may be excluded or modified by agreement between the performer and the employer.

Note 1:    The following heading to subsection 22(4) is inserted “ Cinematograph films ”.

Note 2:    The following heading to subsection 22(5) is inserted “ Broadcasts and other communications ”.

3  At the end of section 22

Add:

Definitions

             (7)  In this section:

live performance means:

                     (a)  a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

                     (b)  a performance (including an improvisation) of a musical work or part of such a work; or

                     (c)  the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

                     (d)  a performance of a dance; or

                     (e)  a performance of a circus act or a variety act or any similar presentation or show; or

                      (f)  a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance:

                     (a)  means each person who contributed to the sounds of the performance; and

                     (b)  if the performance includes a performance of a musical work—includes the conductor.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

4  Section 84

Repeal the section, substitute:

Part 2 — Performers’ moral rights

Copyright Act 1968

16  Part IX (heading)

Repeal the heading, substitute:

Part IX — Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films

17  Section 189 (definition of act of false attribution )

Repeal the definition, substitute:

act of false attribution :

                     (a)  in relation to an author’s moral rights—has the meaning given by subsection 195AC(2); and

                     (b)  in relation to a performer’s moral rights—has the meaning given by subsection 195AHA(2).

18  Section 189 (definition of attributable act )

Repeal the definition, substitute:

attributable act :

                     (a)  in relation to an author’s moral rights—has the meaning given by subsection 193(2); and

                     (b)  in relation to a performer’s moral rights—has the meaning given by subsection 195ABA(2).

19  Section 189 (definition of attributor )

Repeal the definition, substitute:

attributor :

                     (a)  in relation to an author’s moral rights—has the meaning given by subsection 195AC(2); and

                     (b)  in relation to a performer’s moral rights—has the meaning given by subsection 195AHA(2).

20  Section 189

Insert:

copy record means a record so far as it embodies:

                     (a)  a recorded performance; or

                     (b)  a substantial part of a recorded performance;

being a record derived directly or indirectly from an original record of the performance.

21  Section 189 (definition of deal )

Omit “Division 3”, substitute “Divisions 3 and 3A”.

22  Section 189 (definition of derogatory treatment )

Repeal the definition, substitute:

derogatory treatment :

                     (a)  in relation to an author’s moral rights—has the relevant meaning given by Division 4; and

                     (b)  in relation to a performer’s moral rights—has the meaning given by section 195ALB.

23  Section 189 (definition of infringing article )

Repeal the definition, substitute:

infringing article means:

                     (a)  in relation to an author’s moral rights:

                              (i)  an article that embodies a literary, dramatic, musical or artistic work, or a cinematograph film, whether or not the article bears or contains other material; or

                             (ii)  a reproduction of, or of an adaptation of, a literary, dramatic or musical work; or

                            (iii)  a reproduction of an artistic work; or

                            (iv)  a copy of a cinematograph film;

                            being a work or film in respect of which a moral right of the author has been infringed, other than by derogatory treatment not involving the material distortion or alteration of, or the mutilation of, the work or film; and

                     (b)  in relation to the moral rights of a performer in a live performance:

                              (i)  a copy record of the live performance, where the making of the copy record has infringed the performer’s right of attribution of performership; or

                             (ii)  a record embodying the live performance, where a person’s name is inserted or affixed on the record and the inserting or affixing has infringed the performer’s right not to have performership falsely attributed; or

                            (iii)  a record embodying the live performance, where the record also embodies sounds the making of which have infringed the performer’s right not to have performership falsely attributed; or

                            (iv)  a record embodying the live performance, being the live performance as affected by derogatory treatment that has infringed the performer’s right of integrity of performership; and

                     (c)  in relation to the moral rights of a performer in a recorded performance:

                              (i)  a copy record of the recorded performance, where the making of the copy record has infringed the performer’s right of attribution of performership; or

                             (ii)  a record embodying the recorded performance, where a person’s name is inserted or affixed on the record and the inserting or affixing has infringed the performer’s right not to have performership falsely attributed; or

                            (iii)  a copy record of the recorded performance, where dealings with the copy as a copy of an unaltered recorded performance have infringed the performer’s right not to have performership falsely attributed; or

                            (iv)  a record embodying the recorded performance, being a record that incorporates derogatory treatment that has infringed the performer’s right of integrity of performership.

24  Section 189 (definition of moral right )

Repeal the definition, substitute:

moral right means:

                     (a)  in relation to an author:

                              (i)  a right of attribution of authorship; or

                             (ii)  a right not to have authorship falsely attributed; or

                            (iii)  a right of integrity of authorship; and

                     (b)  in relation to a performer:

                              (i)  a right of attribution of performership; or

                             (ii)  a right not to have performership falsely attributed; or

                            (iii)  a right of integrity of performership.

25  Section 189 (definition of name )

Omit “Division 3”, substitute “Divisions 3 and 3A”.

26  Section 189

Insert:

original record means a record produced upon the making of a sound recording of a live performance.

Note:          The sound track of a cinematograph film is treated as not being a sound recording: see section 23.

27  Section 189

Insert:

performance means a performance within the meaning of Part XIA, so far as the performance consists of sounds.

28  Section 189

Insert:

performer in a performance:

                     (a)  means each person who contributed to the sounds of the performance; and

                     (b)  in relation to a performance that occurs outside Australia, does not include a person who is not a qualified person at the time of the performance.

Note:          See also section 191B, which deals with the conductor of a musical performance.

29  Section 189

Insert:

performership means participation in a performance, as the performer or one of the performers.

30  Section 189

Insert:

person representing the performer means a person who, under subsection 195ANB(1) or (2), is entitled to exercise and enforce a performer’s moral right.

31  Section 189

Insert:

qualified person has the same meaning as in Part XIA.

32  Section 189

Insert:

recorded performance means a performance embodied in a record so as to constitute a sound recording.

33  Section 189

Insert:

record embodying a performance means:

                     (a)  an original record of a performance; or

                     (b)  a copy record of a performance.

34  Section 189

Insert:

right not to have performership falsely attributed has the meaning given by Division 3A.

35  Section 189

Insert:

right of attribution of performership has the meaning given by Division 2A.

36  Section 189

Insert:

right of integrity of performership has the meaning given by Division 4A.

37  Section 189

Insert:

sound recording means a sound recording in which copyright subsists.

38  Section 189

Insert:

staged , in relation to a live performance, has the meaning given by section 191A.

39  After section 191

Insert:

Part 3 — Performers’ protection

Copyright Act 1968

59  Subsection 10(1) (at the end of the definition of communicate )

Add “, including a performance or live performance within the meaning of this Act”.

60  Subsection 248A(1) (paragraphs (a) and (b) of the definition of exempt recording )

Repeal the paragraphs, substitute:

                     (a)  an indirect cinematograph film of a performance, being a film made solely for the purpose of the private and domestic use of the person who made it;

                    (aa)  an indirect sound recording of a performance, being a recording that is a fair dealing with the performance for the purpose of research or study;

                     (b)  an indirect cinematograph film of a performance, being a film made solely for the purpose of use in scientific research;

61  Subsection 248A(1) (paragraphs (c), (d) and (e) of the definition of exempt recording )

Omit “an indirect sound recording or an indirect cinematograph film of a performance, being a sound recording or film”, substitute “an indirect cinematograph film of a performance, being a film”.

62  Subsection 248A(1) (paragraph (f) of the definition of exempt recording )

Omit “sound recording or”.

63  Subsection 248A(1) (after paragraph (f) of the definition of exempt recording )

Insert:

                    (fa)  a direct or indirect sound recording of a performance, being a recording that is a fair dealing with the performance:

                              (i)  for the purpose of criticism or review, whether of that performance or another performance; or

                             (ii)  for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical; or

                            (iii)  for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film;

64  Subsection 248A(1) (after paragraph (j) of the definition of exempt recording )

Insert:

                    (ja)  a copy of a sound recording referred to in paragraph (aa), (fa) or (g), being a copy made solely for a purpose referred to in any of those paragraphs;

65  Subsection 248A(1) (paragraph (k) of the definition of exempt recording )

Omit “sound recording or”.

66  Subsection 248A(1) (after subparagraph (n)(i) of the definition of exempt recording )

Insert:

                            (ia)  if the copy is of a sound recording—solely for a purpose referred to in paragraph (aa), (fa) or (g); or

67  Subsection 248A(1) (subparagraph (n)(ii) of the definition of exempt recording )

Before “solely”, insert “if the copy is of a cinematograph film—”.

68  Subsection 248A(1) (definition of indirect )

Omit “broadcast, or a re-broadcast,”, substitute “communication”.

69  Subsection 248A(1) (definition of performance )

Repeal the definition, substitute:

performance means:

                     (a)  a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

                     (b)  a performance (including an improvisation) of a musical work or part of such a work; or

                     (c)  the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

                     (d)  a performance of a dance; or

                     (e)  a performance of a circus act or a variety act or any similar presentation or show; or

                      (f)  a performance of an expression of folklore;

being a live performance:

                     (g)  that is given in Australia, whether in the presence of an audience or otherwise; or

                     (h)  that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise.

70  Subsection 248A(1)

Insert:

performer , in relation to a performance that is given outside Australia, does not include a person who is not a qualified person at the time of the performance.

71  After subsection 248A(1)

Insert:

          (1A)  For the purposes of paragraph (aa) of the definition of exempt recording , in determining whether a recording is a fair dealing with a performance for the purpose of research or study, regard must be had to the following matters:

                     (a)  the purpose and character of the recording;

                     (b)  the nature of the performance;

                     (c)  the possibility of obtaining an authorised recording of the performance within a reasonable time at an ordinary commercial price;

                     (d)  the effect of the recording upon the potential market for, or the value of, authorised recordings of the performance;

                     (e)  if only part of the performance is recorded—the amount and substantiality of the part recorded when compared to the whole performance.

72  Section 248B

Omit “sound recording or”.

73  After subsection 248C(1)

Insert:

          (1A)  A sound recording, or a copy of a sound recording, that is an exempt recording because it was made for a purpose referred to in paragraph (aa) or (fa) of the definition of exempt recording in subsection 248A(1) ceases to be an exempt recording if it is used for any other purpose without the authority of the performer.

74  Subsection 248C(2)

Omit “A sound recording or cinematograph film, or a copy of such a recording or film,”, substitute “A cinematograph film, or a copy of a cinematograph film,”.

75  Section 248D

Repeal the section, substitute:

Part 4 — Copying and communicating broadcasts of performances

Copyright Act 1968

85  Section 135A

Insert:

performance has the same meaning as in Part XIA.

86  Section 135A

Insert:

performer has the same meaning as in Part XIA.

87  Section 135A (definition of relevant copyright owner )

Repeal the definition.

88  Section 135A

Insert:

relevant right holder means:

                     (a)  the owner of the copyright in a work, a sound recording or a cinematograph film (other than a new owner of the copyright in a sound recording of a live performance as defined in section 100AB); or

                     (b)  a performer in a performance.

89  After subsection 135E(1)

Insert:

          (1A)  For the purposes of Part XIA, each performer of a performance is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the following paragraphs are satisfied:

                     (a)  a remuneration notice, given by or on behalf of the administering body to the collecting society, is in force;

                     (b)  if the copy or communication is made by, or on behalf of, a body administering an educational institution—the copy or communication is made solely for the educational purposes of the institution or of another educational institution;

                     (c)  if the copy or communication is made by, or on behalf of, a body administering an institution assisting persons with an intellectual disability—the copy or communication is made solely for the purposes of use in the provision of assistance to persons with an intellectual disability by the institution or by another similar institution;

                     (d)  the administering body complies with subsection 135K(1) or (3), or section 135KA, as the case requires, in relation to the copy or communication.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the copy or communication under Part XIA (performers’ protection).

90  Subsection 135E(2)

After “subsection (1)” (first occurring), insert “or (1A)”.

91  Paragraph 135E(2)(a)

After “paragraph (1)(b) or (c)”, insert “or (1A)(b) or (c)”.

92  Subsection 135E(2)

After “subsection (1)” (second occurring), insert “or (1A)”.

93  After subsection 135F(1)

Insert:

          (1A)  For the purposes of Part XIA, each performer of a performance is taken to have authorised the making of a preview copy of a broadcast of the performance.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the preview copy under Part XIA (performers’ protection).

94  Subsection 135F(5)

After “subsection 135E(1)”, insert “or (1A)”.

95  Subsection 135F(5)

After “paragraph 135E(1)(b) or (c)”, insert “or (1A)(b) or (c), as the case requires”.

96  Subsection 135F(6)

Omit “subsection (1) does”, insert “subsections (1) and (1A) do”.

97  At the end of section 135F

Add:

             (8)  For the purposes of Part XIA, each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of the performance if:

                     (a)  the communication is made solely to enable an administering body to decide whether or not that copy should be retained:

                              (i)  for the educational purposes of the institution administered by it; or

                             (ii)  for use in the provision of assistance to persons with an intellectual disability by the institution administered by it; and

                     (b)  the communication is made only to the extent necessary for the purpose mentioned in paragraph (a); and

                     (c)  the communication is made within the preview period.

Note:          The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA (performers’ protection).

98  Paragraph 135H(2)(a)

After “works,”, insert “performances,”.

99  Subsections 135J(5) and 135JA(7)

Omit “subsections 135E(1) and 135F(1)”, substitute “sections 135E and 135F”.

100  Subparagraph 135KA(a)(i)

After “copyright”, insert “or performers’”.

101  Subsection 135P(3)

Omit “relevant copyright owners” (wherever occurring), substitute “relevant right holders”.

102  Paragraph 135Q(b)

Omit “relevant copyright owners”, substitute “relevant right holders”.

103  At the end of section 135Z

Add:

             (2)  Nothing in this Part affects the right of a performer in a performance included in a broadcast to authorise an administering body:

                     (a)  to make, or cause to be made, a sound recording or a cinematograph film of the performance; and

                     (b)  to communicate, or cause to be communicated, that recording or film.

Note:       The heading to section 135Z is altered by omitting “ Relevant copyright owner ” and substituting “ Relevant right holder ”.

104  At the end of subsection 248G(1)

Add:

Note:          An educational or other institution can copy and communicate a broadcast of a performance without the authority of the performer in some circumstances: see sections 135E and 135F.

105  At the end of subsection 248P(8)

Add:

Note 1:       A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

Note 2:       An educational or other institution can also copy and communicate a broadcast of a performance without contravening this section in some circumstances: see sections 135E and 135F.

106  Application

The amendments made by this Part apply in respect of copies of broadcasts, or communications of broadcasts, made after the day on which this item commences (even if the performance concerned was given before that day).

Part 5 — Duration of copyright in photographs

Copyright Act 1968

107  Subsection 33(2)

Repeal the subsection, substitute:

             (2)  Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 50 years after the end of the calendar year in which the author of the work died.

108  Subsection 33(6)

Repeal the subsection.

109  Subsection 34(1)

Repeal the subsection, substitute:

             (1)  Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 50 years after the end of the calendar year in which the work was first published.

110  Subsection 34(2)

Omit “The last preceding subsection”, substitute “Subsection (1)”.

111  Subsection 34(2)

Omit “the expiration”, substitute “the end”.

112  Subsection 51(1)

Omit “the expiration of the calendar year in which the author of a literary, dramatic or musical work, or of an artistic work being a photograph or engraving,”, substitute “the end of the calendar year in which the author of a literary, dramatic, musical or artistic work”.

113  Subsection 81(3)

Omit “sections 33 and 51”, substitute “section 33”.

Note:       This item omits an incorrect reference to a section.

114  At the end of section 127

Add:

             (4)  However, if the owner of the material or apparatus was a body corporate, then paragraph (3)(a) only applies if the presumption is required to determine the ownership of the copyright in the photograph.

Note:          For example, the presumption does not apply if it is required to determine the duration of the copyright in the photograph.

115  At the end of section 208

Add:

             (2)  However, if the owner of the material on which the photograph was taken was a body corporate, then subsection (1) only applies in respect of references to the author of the photograph that relate to the ownership of the copyright in the photograph.

Note:          For example, subsection (1) does not apply in relation to references to the author of the photograph that relate to the duration of the copyright in the photograph.

116  Section 212

Repeal the section.

117  Application

The amendments made by this Part apply to copyright in photographs that subsists on or after the day on which this item commences.

118  Compensation scheme for agreements made before Royal Assent

Application of item

(1)       This item applies if:

                     (a)  the copyright in a photograph is owned by a person (the owner ); and

                     (b)  before the day on which this Act receives the Royal Assent, another person made a written and lawful agreement with a third party; and

                     (c)  the agreement was entered into for the purposes of doing an act at a particular time that would, apart from this item, infringe the copyright; and

                     (d)  the agreement was made in reliance on the copyright having ceased to subsist before that time; and

                     (e)  because of the amendments made by this Part the copyright continues to subsist past that time.

Owner may notify person that owner objects to person doing the act

(2)       Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.

Owner may provide reasonable compensation to person

(3)       If the owner does so, then the owner and the person may agree on:

                     (a)  compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

                     (b)  the day by which the owner is to provide the compensation.

(4)       If the owner and the person cannot agree, either of them may apply to the Copyright Tribunal for the Tribunal to determine:

                     (a)  compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

                     (b)  the day by which the owner is to provide the compensation.

(5)       When the Copyright Tribunal has determined an amount of reasonable compensation, the owner is liable to pay that amount to the person by the day determined by the Tribunal. The person may recover that amount in a court of competent jurisdiction from the owner as a debt due to the person.

Person may do act if not notified by owner or if not paid reasonable compensation

(6)       If the owner does not notify the person, or pay reasonable compensation to the person, in accordance with this item, then:

                     (a)  the person may do the act mentioned in paragraph (1)(c) at any time after the copyright would, apart from the amendments made by this Part, have ceased to subsist; and

                     (b)  for the purposes of the Copyright Act 1968 :

                              (i)  the owner is not entitled to bring an action under that Act against the person in respect of the act; and

                             (ii)  the person does not contravene a section of, or commit an offence under, that Act by doing the act.

(7)       To avoid doubt, subitem (6) is an exception that a defendant may rely on for the purposes of section 13.3 of the Criminal Code .

Note:       A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code ).

(8)       In this item:

owner , in relation to the copyright in a photograph at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the photograph at that time in respect of that act.

119  Applications to Copyright Tribunal for determination of reasonable compensation payable

(1)       This item applies if an application is made to the Copyright Tribunal under item 118 for the determination of reasonable compensation to be paid by the owner of the copyright in a photograph to a person mentioned in paragraph 118(1)(b).

(2)       The parties to the application are:

                     (a)  the owner of the copyright; and

                     (b)  the person mentioned in that paragraph.

(3)       The Tribunal must consider the application and, after giving to the parties an opportunity of presenting their cases, must make an order determining the amount of compensation that it considers to be reasonable in all of the circumstances.

(4)       In this item:

owner , in relation to the copyright in a photograph at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the photograph at that time in respect of that act.

Part 6 — Duration of copyright in works and other subject-matter

Copyright Act 1968

120  Subsection 33(2)

Omit “50 years”, substitute “70 years”.

121  Subsections 33(3) and (5)

Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.

122  Subsection 34(1)

Omit “50 years”, substitute “70 years”.

123  Subsection 81(2)

Omit “50 years after the expiration”, substitute “70 years after the end”.

124  Section 93

Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.

125  Section 94

Omit “the expiration of 50 years after the expiration” (wherever occurring), substitute “the end of 70 years after the end”.

126  Paragraph 128(a)

Omit “50 years”, substitute “70 years”.

127  At the end of subsection 132(1)

Add:

Note:          A person who makes an agreement before the US Free Trade Agreement Implementation Act 2004 receives the Royal Assent might not commit an offence under this section: see items 118 and 132 of Schedule 9 to that Act.

128  Paragraphs 187(2)(b) and 188(2)(b)

Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.

129  Paragraph 188(3)(b)

Omit “expiration” (wherever occurring), substitute “end”.

130  Subsection 220(3)

Repeal the subsection.

131  Application

The amendments made by this Part apply to copyright in works and other subject-matter that subsists on or after the day on which this item commences.

132  Compensation scheme for agreements made before Royal Assent

Application of item

(1)       This item applies if:

                     (a)  the copyright in a work or other subject-matter is owned by a person (the owner ); and

                     (b)  before the day on which this Act receives the Royal Assent, another person made a written and lawful agreement with a third party; and

                     (c)  the agreement was entered into for the purposes of doing an act at a particular time that would, apart from this item, infringe the copyright; and

                     (d)  the agreement was made in reliance on the copyright having ceased to subsist before that time; and

                     (e)  because of the amendments made by this Part the copyright continues to subsist past that time.

Owner may notify person that owner objects to person doing the act

(2)       Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.

Owner may provide reasonable compensation to person

(3)       If the owner does so, then the owner and the person may agree on:

                     (a)  compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

                     (b)  the day by which the owner is to provide the compensation.

(4)       If the owner and the person cannot agree, either of them may apply to the Copyright Tribunal for the Tribunal to determine:

                     (a)  compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

                     (b)  the day by which the owner is to provide the compensation.

(5)       When the Copyright Tribunal has determined an amount of reasonable compensation, the owner is liable to pay that amount to the person by the day determined by the Tribunal. The person may recover that amount in a court of competent jurisdiction from the owner as a debt due to the person.

Person may do act if not notified by owner or if not paid reasonable compensation

(6)       If the owner does not notify the person, or pay reasonable compensation to the person, in accordance with this item, then:

                     (a)  the person may do the act mentioned in paragraph (1)(c) at any time after the copyright would, apart from the amendments made by this Part, have ceased to subsist; and

                     (b)  for the purposes of the Copyright Act 1968 :

                              (i)  the owner is not entitled to bring an action under that Act against the person in respect of the act; and

                             (ii)  the person does not contravene a section of, or commit an offence under, that Act by doing the act.

(7)       To avoid doubt, subitem (6) is an exception that a defendant may rely on for the purposes of section 13.3 of the Criminal Code .

Note:       A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code ).

(8)       In this item:

owner , in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.

133  Applications to Copyright Tribunal for determination of reasonable compensation payable

(1)       This item applies if an application is made to the Copyright Tribunal under item 132 for the determination of reasonable compensation to be paid by the owner of the copyright in a work or other subject-matter to a person mentioned in paragraph 132(1)(b).

(2)       The parties to the application are:

                     (a)  the owner of the copyright; and

                     (b)  the person mentioned in that paragraph.

(3)       The Tribunal must consider the application and, after giving to the parties an opportunity of presenting their cases, must make an order determining the amount of compensation that it considers to be reasonable in all of the circumstances.

(4)       In this item:

owner , in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.

Part 7 — Electronic rights management information

Copyright Act 1968

134  Subsection 10(1) (definition of electronic rights management information )

Repeal the definition, substitute:

electronic rights management information , in relation to a work or other subject-matter, means information that:

                     (a)  is electronic; and

                     (b)  either:

                              (i)  is or was attached to, or is or was embodied in, a copy of the work or subject-matter; or

                             (ii)  appears or appeared in connection with a communication, or the making available, of the work or subject-matter; and

                     (c)  either:

                              (i)  identifies the work or subject-matter, and its author or copyright owner (including such information represented as numbers or codes); or

                             (ii)  identifies or indicates some or all of the terms and conditions on which the work or subject-matter may be used, or indicates that the use of the work or subject-matter is subject to terms or conditions (including such information represented as numbers or codes).

135  Paragraph 116B(1)(a)

Repeal the paragraph, substitute:

                     (a)  either:

                              (i)  a person removes, from a copy of a work or other subject-matter in which copyright subsists, any electronic rights management information that relates to the work or other subject-matter; or

                             (ii)  a person alters any electronic rights management information that relates to a work or other subject-matter in which copyright subsists; and

136  Subparagraph 116C(1)(a)(i)

Repeal the subparagraph, substitute:

                              (i)  distributes a copy of the work or other subject-matter to the public;

Note:       The heading to section 116C is replaced by the heading “ Distribution to the public etc. of works whose electronic rights management information has been removed or altered ”.

137  Subparagraph 116C(1)(a)(ii)

Omit “for the purpose of trade”, substitute “for distribution to the public”.

138  Paragraph 116C(1)(b)

Repeal the paragraph, substitute:

                     (b)  either:

                              (i)  any electronic rights management information that relates to the work or other subject-matter has been removed from the copy of the work or subject-matter; or

                             (ii)  any electronic rights management information that relates to the work or other subject-matter has been altered; and

139  After section 116C

Insert:

Part 8 — Criminal offences

Copyright Act 1968

146  Paragraphs 132(1)(b) and (c)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

Note:       The following heading to subsection 132(1) is inserted “ Offences relating to infringing copies ”.

147  Subparagraph 132(1)(d)(i)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

148  Subparagraph 132(1)(d)(ii)

After “for the purpose of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.

149  Subparagraph 132(1)(d)(iii)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

150  Paragraph 132(2)(a)

After “for the purpose of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.

151  Paragraph 132(2A)(a)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

152  Paragraph 132(2A)(b)

After “for the purpose of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.

153  Paragraph 132(2A)(c)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

Note 1:    The following heading to subsection 132(5) is inserted “ Offence relating to infringing public performances of literary, dramatic or musical works ”.

Note 2:    The following heading to subsection 132(5AA) is inserted “ Offences relating to sound recordings or films heard or seen in public ”.

Note 3:    The following heading to subsection 132(5A) is inserted “ Offences relating to circumvention services and devices ”.

154  Before subsection 132(5E)

Insert:

Offence relating to significant infringement of copyright

       (5DB)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct results in one or more infringements of the copyright in a work or other subject-matter; and

                     (c)  the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and

                     (d)  the infringement or infringements occur on a commercial scale.

       (5DC)  In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (5DB)(d), the following matters are to be taken into account:

                     (a)  the volume of any articles that are infringing copies that constitute the infringement or infringements;

                     (b)  the value of any articles that are infringing copies that constitute the infringement or infringements;

                     (c)  any other relevant matter.

155  Subsection 132(5E)

Omit “and (5B)”, substitute “to (5DB)”.

Note 1:    The following heading to subsection 132(5E) is inserted “ Defence relating to law enforcement and national security ”.

Note 2:    The following heading to subsection 132(5F) is inserted “ Permitted purpose exceptions ”.

Note 3:    The following heading to subsection 132(6) is inserted “ Section applies only in respect of acts done in Australia ”.

Note 4:    The following heading to subsection 132(6AA) is inserted “ Penalties ”.

156  Subsection 132(6A)

Omit “or (5D)”, substitute “, (5D), (5DA) or (5DB)”.

Note:       The following heading to subsection 132(7) is inserted “ Proceedings may be brought in Federal Court etc. ”.

157  Subsection 132(9)

Insert:

copyright material means:

                     (a)  a work; or

                     (b)  a published edition of a work; or

                     (c)  a sound recording; or

                     (d)  a cinematograph film; or

                     (e)  a television or sound broadcast; or

                      (f)  a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.

Note:       The following heading to subsection 132(9) is inserted “ Definitions ”.

158  Subsection 132(9)

Insert:

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

159  At the end of section 132

Add:

Burden of proof relating to profit

           (11)  In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.

160  Application

The amendments made by this Part apply in respect of acts done after the day on which this item commences.

Part 9 — Encoded broadcasts

Copyright Act 1968

161  Section 135AL

Insert:

channel provider means a person who:

                     (a)  packages a channel (which might include programs produced by the person); and

                     (b)  supplies a broadcaster with the channel; and

                     (c)  carries on a business that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service.

162  Section 135AL

Insert:

copyright material means:

                     (a)  a work; or

                     (b)  a published edition of a work; or

                     (c)  a sound recording; or

                     (d)  a cinematograph film; or

                     (e)  a television or sound broadcast; or

                      (f)  a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.

163  Section 135AL

Insert:

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

164  Subparagraph 135AN(1)(b)(iii)

After “distributes”, insert “(including by exporting from Australia)”.

Note 1:    The following heading to subsection 135AN(1) is inserted “ Actions in relation to the manufacture of and dealing with broadcast decoding devices ”.

Note 2:    The following heading to subsection 135AN(2) is inserted “ Exception relating to law enforcement and national security ”.

165  Subsection 135AN(3)

Repeal the subsection, substitute:

Who may bring an action

             (3)  Subject to subsection (8), if this section applies, the following persons may bring an action against the person mentioned in subsection (1):

                     (a)  any person who has an interest in the copyright in the broadcast;

                     (b)  any person who has an interest in the copyright in any content of the broadcast;

                     (c)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider .

Note 1:    The following heading to subsection 135AN(4) is inserted “ Relief etc. ”.

Note 2:    The following heading to subsection 135AN(7) is inserted “ Presumption relating to defendant’s knowledge ”.

Note 3:    The following heading to subsection 135AN(8) is inserted “ Limitation on bringing actions ”.

166  Subsection 135ANA(1)

Omit “this section”, substitute “this subsection”.

Note 1:    The heading to section 135ANA is altered by omitting “ for commercial purposes ”.

Note 2:    The following heading to subsection 135ANA(1) is inserted “ Actions in relation to the use of broadcast decoding devices ”.

167  Paragraph 135ANA(1)(b)

Omit “an encoded broadcast”, substitute “the encoded broadcast”.

168  Paragraph 135ANA(1)(c)

Repeal the paragraph.

169  After subsection 135ANA(1)

Insert:

          (1A)  Subject to subsection (2), this subsection applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast without the authorisation of the broadcaster; and

                     (c)  a person distributes (including by communicating), or authorises the distribution of, the broadcast that has been accessed by the device; and

                     (d)  the distribution affects prejudicially a person who may bring an action under subsection (3); and

                     (e)  the person knew that the broadcaster had not authorised the access to the encoded broadcast.

          (1B)  Subject to subsection (2), this subsection applies if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast without the authorisation of the broadcaster; and

                     (c)  a person receives the broadcast that has been accessed by the device; and

                     (d)  the person knew that the broadcaster had not authorised the access to the encoded broadcast.

Note:       The following heading to subsection 135ANA(2) is inserted “ Exception relating to law enforcement and national security ”.

170  Subsection 135ANA(3)

Repeal the subsection, substitute:

Who may bring an action

             (3)  Subject to subsection (7), if subsection (1), (1A) or (1B) applies, the following persons may bring an action against the person mentioned in that subsection:

                     (a)  any person who has an interest in the copyright in the broadcast;

                     (b)  any person who has an interest in the copyright in any content of the broadcast;

                     (c)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider .

Note:       The following heading to subsection 135ANA(4) is inserted “ Relief etc. ”.

171  Paragraph 135ANA(5)(a)

After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.

172  Paragraph 135ANA(5)(b)

Omit “the trade”, substitute “any trade”.

173  Subsection 135ANA(7)

After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.

Note:       The following heading to subsection 135ANA(7) is inserted “ Limitation on bringing actions ”.

174  Paragraph 135AS(1)(b)

After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.

Note:       The following heading to subsection 135AS(1) is inserted “ Offences in relation to manufacture of or dealing with broadcast decoding devices ”.

175  Paragraph 135AS(1)(c)

Repeal the paragraph, substitute:

                     (c)  distribute (including by exporting from Australia) a broadcast decoding device with the intention of trading and obtaining a commercial advantage or profit, or with the intention of engaging in any other activity that will affect prejudicially a broadcaster; or

176  Paragraph 135AS(1)(d)

After “by way of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.

177  Subparagraph 135AS(1)(e)(i)

After “by way of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.

178  Subparagraph 135AS(1)(e)(ii)

Omit “for trading,”, substitute “for trading with the intention of obtaining a commercial advantage or profit,”.

179  Subparagraph 135AS(1)(e)(iii)

After “by way of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.

180  At the end of subsection 135AS(1)

Add:

Note:          See section 135AL for the definition of profit .

181  After subsection 135AS(1)

Insert:

Offence in relation to use of broadcast decoding devices for commercial advantage etc.

          (1A)  A person commits an offence if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  the person uses, or authorises the use of, a broadcast decoding device to gain access to the encoded broadcast; and

                     (c)  the access is gained without the authorisation of the broadcaster; and

                     (d)  the person uses, or authorises the use of, the device by way of trade and with the intention of obtaining a commercial advantage or profit.

Note:          See section 135AL for the definition of profit .

Offence in relation to distribution of encoded broadcast that has been accessed without authorisation

          (1B)  A person commits an offence if:

                     (a)  a broadcaster makes an encoded broadcast; and

                     (b)  a broadcast decoding device is used to gain access to the encoded broadcast; and

                     (c)  the access is gained without the authorisation of the broadcaster; and

                     (d)  the person distributes (including by communicating), or authorises the distribution of, the broadcast that has been accessed by the device; and

                     (e)  the person knows the broadcaster had not authorised the access to the broadcast; and

                      (f)  the distribution affects prejudicially the following persons:

                              (i)  any person who has an interest in the copyright in the broadcast;

                             (ii)  any person who has an interest in the copyright in any content of the broadcast;

                            (iii)  the channel provider who supplies the broadcaster with the channel for the broadcast.

Note:          See section 135AL for the definition of channel provider .

182  Subsection 135AS(2)

Omit “Subsection (1)”, substitute “This section”.

Note:       The following heading to subsection 135AS(2) is inserted “ Defence relating to law enforcement and national security ”.

183  After subsection 135AS(3)

Insert:

          (3A)  In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.

Note:       The following heading to subsection 135AS(3) is inserted “ Burdens of proof ”.

184  Subsection 135AS(4)

After “subsection (1)”, insert “, (1A) or (1B)”.

Note:       The following heading to subsection 135AS(4) is inserted “ Penalty for contravening section ”.

185  Application

The amendments made by this Part apply in respect of encoded broadcasts made after the day on which this item commences.

Part 10 — Reproductions

Copyright Act 1968

186  Subsection 10(1) (definition of material form )

Repeal the definition, substitute:

material form , in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).

187  At the end of section 10

Add:

             (5)  For the purposes of the definition of copy in subsection (1), such a copy includes any form (whether visible or not) of storage of a cinematograph film, or a substantial part of a cinematograph film, (whether or not the copy of the film, or a substantial part of the film, can be reproduced).

             (6)  For the purposes of paragraph 10(3)(c), a reference to a copy of a sound recording includes any form (whether visible or not) of storage of the sound recording, or a substantial part of the sound recording, (whether or not the copy of the recording, or a substantial part of the recording, can be reproduced).

188  After section 43A

Insert:

Part 11 — Limitation on remedies available against carriage service providers

Copyright Act 1968

191  After Division 2 of Part V

Insert: