قانون حق المؤلف لعام 1968 (بصيغته الموحدة في 10 نوفمبر 2008)، أستراليا

Division 1—Nature, duration and ownership of copyright in works

31 Nature of copyright in original works

(1)

For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a)

in the case of a literary, dramatic or musical work, to do all or any of the following acts:

(i)

to reproduce the work in a material form;

(ii)

to publish the work;

(iii) to perform the work in public;

(iv)

to communicate the work to the public;

(vi)

to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and

(b)

in the case of an artistic work, to do all or any of the following acts:

(i)

to reproduce the work in a material form;

(ii)

to publish the work;

(iii) to communicate the work to the public; and

(c)

in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and

(d)

in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.

(2)

The generality of subparagraph (1)(a)(i) is not affected by subparagraph (1)(a)(vi).

(3)

Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a machine or device in which a computer

Section 31

program is embodied if the program is not able to be copied in the course of the ordinary use of the machine or device.

(4)

The reference in subsection (3) to a device does not include a device of a kind ordinarily used to store computer programs (for example, a floppy disc, a device of the kind commonly known as a CD ROM, or an integrated circuit).

(5)

Paragraph (1)(d) does not extend to entry into a commercial rental arrangement if the computer program is not the essential object of the rental.

(6)

Paragraph (1)(c) does not extend to entry into a commercial rental arrangement if:

(a)

the copy of the sound recording concerned was purchased by a person (the record owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

(b)

the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and

(c)

the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements of the same kind, when the copy was purchased.

(7)

Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a computer program if:

(a)

the copy of the computer program was purchased by a person (the program owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

(b)

the commercial rental arrangement is entered into in the ordinary course of a business conducted by the program owner; and

(c)

the program owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of computer programs, when the copy was purchased.

Section 32

32 Original works in which copyright subsists

(1)

Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

(a)

was a qualified person at the time when the work was made; or

(b)

if the making of the work extended over a period—was a qualified person for a substantial part of that period.

(2)

Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

(a)

copyright subsists in the work; or

(b)

if copyright in the work subsisted immediately before its first

publication—copyright continues to subsist in the work; if, but only if:

(c)

the first publication of the work took place in Australia;

(d)

the author of the work was a qualified person at the time when the work was first published; or

(e)

the author died before that time but was a qualified person immediately before his or her death.

(3)

Notwithstanding the last preceding subsection but subject to the remaining provisions of this Act, copyright subsists in:

(a)

an original artistic work that is a building situated in Australia; or

(b)

an original artistic work that is attached to, or forms part of, such a building.

(4)

In this section, qualified person means an Australian citizen or a person resident in Australia.

33 Duration of copyright in original works

(1)

This section has effect subject to subsection 32(2) and to section 34.

(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 70 years after the end of the calendar year in which the author of the work died.

Section 34

(3) If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:

(a)

the work had not been published;

(b)

the work had not been performed in public;

(c)

the work had not been broadcast; and

(d)

records of the work had not been offered or exposed for sale

to the public; the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.

(4)

A reference in the last preceding subsection to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.

(5)

If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the end of 70 years after the end of the calendar year in which the engraving is first published.

34 Duration of copyright in anonymous and pseudonymous works

(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 70 years after the end of the calendar year in which the work was first published.

(2)

Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.

35 Ownership of copyright in original works

(1)

This section has effect subject to Parts VII and X.

(2)

Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.

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(3)

The operation of any of the next three succeeding subsections in relation to copyright in a particular work may be excluded or modified by agreement.

(4)

If a literary, dramatic or artistic work:

(a)

is made by the author under the terms of his or her employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship; and

(b)

is so made for the purpose of inclusion in a newspaper,

magazine or similar periodical; the following paragraphs apply:

(c)

the author is the owner of the copyright only in so far as the copyright relates to:

(i)

reproduction of the work for the purpose of inclusion in a book; or

(ii)

reproduction of the work in the form of a hard copy facsimile (other than a hard copy facsimile made as part of a process of transmission) made from a paper edition of, or from another hard copy facsimile made from a paper edition of, an issue of the newspaper, magazine or similar periodical, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper, magazine or similar periodical;

(d)

except as provided by paragraph (c), the proprietor is the owner of the copyright.

(5) Subject to the last preceding subsection, where:

(a)

a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

(b)

the work is made in pursuance of the agreement; the first-mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was

required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.

Section 35

(6)

Where a literary, dramatic or artistic work to which neither of the last two preceding subsections applies, or a musical work, is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.

(7)

In this section:

hard copy facsimile, in relation to a literary, dramatic or artistic work, means a facsimile which is in a material form and from which the work is visible to a human being without the use of any device.

private or domestic purpose includes a portrait of family members, a wedding party or children.

Section 36

Division 2—Infringement of copyright in works

36 Infringement by doing acts comprised in the copyright

(1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

(a)

the extent (if any) of the person’s power to prevent the doing of the act concerned;

(b)

the nature of any relationship existing between the person and the person who did the act concerned;

(c)

whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

(2) The next three succeeding sections do not affect the generality of this section.

37 Infringement by importation for sale or hire

(1) Subject to Division 3, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of:

(a)

selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

(b)

distributing the article:

(i)

for the purpose of trade; or

(ii)

for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

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(c) by way of trade exhibiting the article in public; if the importer knew, or ought reasonably to have known, that the making of the article would, if the article had been made in

Australia by the importer, have constituted an infringement of the copyright.

(2) In relation to an accessory to an article that is or includes a copy of a work, being a copy that was made without the licence of the owner of the copyright in the work in the country in which the copy was made, subsection (1) has effect as if the words “the importer knew, or ought reasonably to have known, that” were omitted.

38 Infringement by sale and other dealings

(1) Subject to Division 3, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, in Australia, and without the licence of the owner of the copyright:

(a)

sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or

(b)

by way of trade exhibits an article in public; if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been

made in Australia by the importer, have constituted such an infringement.

(2) For the purposes of the last preceding subsection, the distribution of any articles:

(a)

for the purpose of trade; or

(b)

for any other purpose to an extent that affects prejudicially

the owner of the copyright concerned; shall be taken to be the sale of those articles.

(3) In this section:

article includes a reproduction or copy of a work or other subject-matter, being a reproduction or copy in electronic form.

Section 39

39 Infringement by permitting place of public entertainment to be used for performance of work

(1)

The copyright in a literary, dramatic or musical work is infringed by a person who permits a place of public entertainment to be used for the performance in public of the work, where the performance constitutes an infringement of the copyright in the work.

(2)

This section does not apply where the person permitting the place to be so used establishes:

(a)

that he or she was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright; or

(b)

that he or she gave the permission gratuitously, or for a consideration that was only nominal or, if more than nominal, did not exceed a reasonable estimate of the expenses to be incurred by him or her by reason of the use of the place for the performance.

(3)

In this section, place of public entertainment includes any premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment.

39A Infringing copies made on machines installed in libraries and archives

Where:

(a)

a person makes an infringing copy of, or of part of, a work on a machine (including a computer), being a machine installed by or with the approval of the body administering a library or archives on the premises of the library or archives, or outside those premises for the convenience of persons using the library or archives; and

(b)

there is affixed to, or in close proximity to, the machine, in a place readily visible to persons using the machine, a notice of the prescribed dimensions and in accordance with the prescribed form;

neither the body administering the library or archives nor the officer in charge of the library or archives shall be taken to have authorized the making of the infringing copy by reason only that the copy was made on that machine.

Section 39B

39B Communication by use of certain facilities

A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

Section 40

Division 3—Acts not constituting infringements of copyright in works

40 Fair dealing for purpose of research or study

(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or study does not constitute an infringement of the copyright in the work.

(1A) A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.

(1B) In subsection (1A) the expression lecture notes means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research.

(2) For the purposes of this Act, the matters to which regard shall be had, in determining whether a dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or musical work, being a dealing by way of reproducing the whole or a part of the work or adaptation, constitutes a fair dealing with the work or adaptation for the purpose of research or study include:

(a)

the purpose and character of the dealing;

(b)

the nature of the work or adaptation;

(c)

the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;

(d)

the effect of the dealing upon the potential market for, or value of, the work or adaptation; and

(e)

in a case where part only of the work or adaptation is reproduced—the amount and substantiality of the part copied taken in relation to the whole work or adaptation.

Section 40

(3)

Despite subsection (2), a reproduction, for the purpose of research or study, of all or part of a literary, dramatic or musical work, or of an adaptation of such a work, contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study.

(4)

Subsection (3) does not apply if another article in the publication is also reproduced for the purpose of different research or a different course of study.

(5)

Despite subsection (2), a reproduction, for the purpose of research or study, of not more than a reasonable portion of a work or adaptation that is described in an item of the table and is not contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study. For this purpose, reasonable portion means the amount described in the item.

Works, adaptations and reasonable portions

A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work

(a)

10% of the number of words in the work or adaptation; or

(b)

if the work or adaptation is divided into chapters—a single chapter

(6) Subsection (5) applies to a reproduction of a work or adaptation described in both items of the table in that subsection even if the amount of the work or adaptation reproduced is not more than a reasonable portion (as defined in that subsection) on the basis of only one of those items.

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(7) If:

(a)

a person makes a reproduction of a part of a published literary or dramatic work or published adaptation of a literary or dramatic work; and

(b)

the reproduction is of not more than a reasonable portion (as

defined in subsection (5)) of the work or adaptation; subsection (5) does not apply in relation to any subsequent reproduction made by the person of any other part of the same work or adaptation.

(8) Subsections 10(2), (2A), (2B) and (2C) do not affect subsection (5), (6) or (7) of this section.

41 Fair dealing for purpose of criticism or review

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.

41A Fair dealing for purpose of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

42 Fair dealing for purpose of reporting news

(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:

(a)

it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

(b)

it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.

Section 43

(2) The playing of a musical work in the course of reporting news by means of a communication or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work does not form part of the news being reported.

43 Reproduction for purpose of judicial proceedings or professional advice

(1)

The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.

(2)

A fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by:

(a)

a legal practitioner; or

(b)

a person registered as a patent attorney under the Patents Act 1990; or

(c)

a person registered as a trade marks attorney under the Trade Marks Act 1995.

43A Temporary reproductions made in the course of communication

(1)

The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication.

(2)

Subsection (1) does not apply in relation to the making of a temporary reproduction of a work, or an adaptation of a work, as part of the technical process of making a communication if the making of the communication is an infringement of copyright.

43B Temporary reproductions of works as part of a technical process of use

(1) Subject to subsection (2), the copyright in a work is not infringed by the making of a temporary reproduction of the work if the reproduction is incidentally made as a necessary part of a technical process of using a copy of the work.

Section 43C

(2)

Subsection (1) does not apply to:

(a)

the making of a temporary reproduction of a work if the reproduction is made from:

(i)

an infringing copy of the work; or

(ii)

a copy of the work where the copy is made in another country and would be an infringing copy of the work if the person who made the copy had done so in Australia; or

(b)

the making of a temporary reproduction of a work as a necessary part of a technical process of using a copy of the work if that use constitutes an infringement of the copyright in the work.

(3)

Subsection (1) does not apply to any subsequent use of a temporary reproduction of a work other than as a part of the technical process in which the temporary reproduction was made.

43C Reproducing works in books, newspapers and periodical publications in different form for private use

(1) This section applies if:

(a)

the owner of a book, newspaper or periodical publication makes from it a reproduction (the main copy) of a work contained in the book, newspaper or periodical publication; and

(b)

the main copy is made for his or her private and domestic use instead of the work as contained in the book, newspaper or periodical publication; and

(c)

the main copy embodies the work in a form different from the form in which the work is embodied in the book, newspaper or periodical publication; and

(d)

the book, newspaper or periodical publication itself is not an infringing copy of either the work or a published edition of the work; and

(e)

at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the work in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the work incidentally made as a necessary part of the technical process of making the main copy.

Section 43C

(2) The making of the main copy is not an infringement of copyright in the work or a published edition of the work.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a)

sold; or

(b)

let for hire; or

(c)

by way of trade offered or exposed for sale or hire; or

(d)

distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

Reproducing work from main copy may infringe copyright

(5) Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of another reproduction of the work from the main copy.

Disposal of book etc. may make the main copy an infringing copy

(6) Subsection (2) is taken never to have applied if the owner of the book, newspaper or periodical publication disposes of it (in the form from which the main copy was made) to another person.

Status of temporary reproduction

(7) If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the work as a necessary part of the technical process of making the main copy, then:

(a) if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy—the making of the temporary reproduction does not infringe copyright in the work or a published edition of the work; or

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(b) if the temporary reproduction is not destroyed at that time— the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the work and the published edition of the work from which the main copy was made.

44 Inclusion of works in collections for use by places of education

(1)

The copyright in a published literary, dramatic, musical or artistic work is not infringed by the inclusion of a short extract from the work, or, in the case of a published literary, dramatic or musical work, from an adaptation of the work, in a collection of literary, dramatic, musical or artistic works contained in a book, sound recording or cinematograph film and intended for use by places of education if:

(a)

the collection is described in an appropriate place in the book, on the label of each record embodying the recording or of its container, or in the film, as being intended for use by places of education;

(b)

the work or adaptation was not published for the purpose of being used by places of education;

(c)

the collection consists principally of matter in which copyright does not subsist; and

(d)

a sufficient acknowledgement of the work or adaptation is made.

(2)

The last preceding subsection does not apply in relation to the copyright in a work if, in addition to the extract concerned, 2 or more other extracts from, or from adaptations of, works (being works in which copyright subsists at the time when the collection is published) by the author of the first-mentioned work are contained in that collection, or are contained in that collection taken together with every similar collection, if any, of works intended for use by places of education and published by the same publisher within the period of 5 years immediately preceding the publication of the first-mentioned collection.

44A Importation etc. of books

(1) The copyright in an overseas work first published on or after the commencing day is not infringed by a person who, without the licence of the owner of the copyright, imports a non-infringing

Section 44A

book into Australia for a purpose mentioned in paragraph 37(1)(a),

(b) or (c).

(2) Subject to this section, the copyright in:

(a)

an overseas work first published before the commencing day; or

(b)

a work first published in Australia, whether before, on or

after the commencing day; is not infringed by a person who, without the licence of the owner of the copyright, imports a copy (in this subsection called the imported copy) of a hardback or paperback version of a non-infringing book into Australia for a purpose mentioned in paragraph 37(1)(a), (b) or (c) if:

(c)

the person had ordered in writing from the copyright owner, or the owner’s licensee or agent, one or more copies of that version of the book (not being second-hand copies or more copies than were needed to satisfy the person’s reasonable requirements); and

(d)

when the person ordered the imported copy, the original order mentioned in paragraph (c) had not been withdrawn or cancelled by, or with the consent of, the person and:

(i)

at least 7 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not notified the person in writing that the original order would be filled within 90 days after it was placed; or

(ii)

at least 90 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not filled the order.

(3) The copyright in a published work (whether first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports a single copy of a non-infringing book into Australia if the importation is for the purpose of filling a written order, or a verifiable telephone order, by a customer of the person and:

(a) in the case of a written order, the order contains a statement, signed by the customer; or

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(b) in the case of a telephone order, the customer makes a

verifiable statement; to the effect that the customer does not intend to use the book for a purpose mentioned in paragraph 37(1)(a), (b) or (c).

(4)

The copyright in a published work (whether first published before, on or after the commencing day) is not infringed by a person who, without the licence of the owner of the copyright, imports 2 or more copies of a non-infringing book into Australia if:

(a)

the importation is for the purpose of filling a written order, or a verifiable telephone order, placed with the person by or on behalf of a library, other than a library conducted for the profit (direct or indirect) of a person or organisation; and

(b)

in the case of a written order—the order contains a statement, signed by the person placing the order, to the effect that the library does not intend to use any of the books for a purpose mentioned in paragraph 37(1)(a), (b) or (c); and

(c)

in the case of a telephone order—the person placing the order makes a verifiable statement to the effect referred to in paragraph (b); and

(d)

the number of copies so imported is not more than the number of copies so ordered.

(5)

Without limiting the ways in which a telephone order under subsection (3) or (4), or a statement under paragraph (3)(b) or (4)(c) relating to such an order, may be verified, such an order or statement is, for the purposes of this section, taken to be verifiable if the person who takes the order, or to whom the statement is made, makes a written note of the details of the order or statement when, or immediately after, the order is placed, or the statement is made, as the case may be.

(6)

Where:

(a)

a book is imported into Australia for a purpose mentioned in paragraph 37(1)(a), (b) or (c); and

(b)

the importation does not, under this section, constitute an

infringement of copyright in a published work; the use of the book for any such purpose does not constitute an infringement of the copyright in the work and subsection 38(1) does not apply to the book.

Section 44B

(7)

Subsection (2) does not apply to the importation of a copy of a hardback version of a non-infringing book into Australia if the copyright owner, or his or her licensee or agent, is able to supply in Australia enough copies of a paperback version of the book to fill any reasonable order.

(8)

For the purposes of paragraph (2)(d), a copyright owner, licensee or agent is not taken to have filled an order by a person for one or more copies of a version of a book unless and until the copyright owner, licensee or agent sends the copy, or all of the copies, as the case requires, to the person.

(9)

In this section:

book does not include:

(a)

a book whose main content is one or more musical works, with or without any related literary, dramatic or artistic work; or

(b)

a manual sold with computer software for use in connection with that software; or

(c)

a periodical publication.

commencing day means the day on which the Copyright Amendment Act 1991 commences.

overseas work means a work:

(a)

that was first published in a country other than Australia; and

(b)

that was not published in Australia within 30 days after its first publication in that other country.

Note: A work may, for the purposes of this Act, be first published in Australia if it is published in Australia within 30 days of an earlier publication elsewhere. For the meaning of first publication, see section 29 and, in particular, subsection 29(5).

44B Reproduction of writing on approved label for containers for chemical product

The reproduction on a label on a container for a chemical product of any writing appearing on an approved label is not an infringement of any copyright subsisting under this Part in relation to that writing.

Section 44C

44C Copyright subsisting in accessories etc. to imported articles

(1) The copyright in a work a copy of which is, or is on, or embodied in, a non-infringing accessory to an article is not infringed by importing the accessory with the article.

Note: See the definition of accessory in subsection 10(1) and see also section 10AD for an expanded meaning of accessory in relation to certain imported articles.

(2) Section 38 does not apply to a copy of a work, being a copy that is, or is on, or embodied in, a non-infringing accessory to an article, if the importation of the accessory is not an infringement of copyright in the work.

44D Import of non-infringing copy of sound recording does not infringe copyright in works recorded

(1) The copyright in a literary, dramatic or musical work is not infringed by a person who:

(a)

imports into Australia a non-infringing copy of a sound recording of the work; or

(b)

does an act described in section 38 involving an article that is a non-infringing copy of a sound recording of the work and has been imported into Australia by anyone.

Note: In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non-infringing copy of the sound recording unless the defendant proves it is. See section 130A.

(2) This section applies to a copy of a sound recording only if, when the copy is imported into Australia, the sound recording has been published:

(a)

in Australia; or

(b)

in another country (the publication country) by or with the consent of:

(i)

the owner of the copyright or related right in the sound recording in the publication country; or

(ii)

the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the publication country did not provide for copyright or a related right in sound recordings when publication occurred; or

Section 44E

(iii) the maker of the sound recording, if neither the law of the publication country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when publication occurred.

Note: Subsection 29(6) deals with unauthorised publication.

(3)

In subsection (2):

owner of the copyright or related right in the sound recording means the owner at the time publication of the sound recording occurred.

(4)

The definition of article in section 38 does not affect this section.

44E Importation and sale etc. of copies of computer programs

(1) The copyright in a literary work:

(a)

that is a computer program; and

(b)

that has been published in Australia or a qualifying country; is not infringed by a person who:

(c)

imports into Australia an article that has embodied in it a non-infringing copy of the program; or

(d)

does an act mentioned in section 38 involving an article that has embodied in it a non-infringing copy of the program and that has been imported into Australia by anyone.

Note: Section 130B deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

(2) The definition of article in section 38 does not affect this section.

44F Importation and sale etc. of copies of electronic literary or music items

(1) The copyright in a work:

(a)

that is, or is part of, an electronic literary or music item; and

(b)

that has been published in Australia or a qualifying country; is not infringed by a person who:

(c)

imports into Australia an article that has embodied in it a non-infringing copy of the electronic literary or music item; or

Section 44F

(d) does an act mentioned in section 38 involving an article that has embodied in it a non-infringing copy of the electronic literary or music item and that has been imported into Australia by anyone.

Note: Section 130C deals with the burden of proof a defendant bears in a civil action for infringement of copyright.

(2) The definition of article in section 38 does not affect this section.

Copyright in original literary, dramatic, musical and artistic works Part III Acts not constituting infringements of copyright in literary, dramatic and musical works

Division 4

Section 45

Division 4—Acts not constituting infringements of copyright in literary, dramatic and musical works

45 Reading or recitation in public or for a broadcast

The reading or recitation in public, or the inclusion in a sound broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work, or from an adaptation of such a work, does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made.

46 Performance at premises where persons reside or sleep

Where a literary, dramatic or musical work, or an adaptation of such a work, is performed in public, by the operation of reception equipment or by the use of a record, at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests, the performance does not constitute an infringement of the copyright in the work.

47 Reproduction for purpose of broadcasting

(1)

Where the broadcasting by a person of a literary, dramatic or musical work, or of an adaptation of such a work, would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work, but the making by the person of a sound recording or a cinematograph film of the work or adaptation would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making by the person of such a recording or film solely for the purpose of the broadcasting of the work or adaptation.

(2)

The last preceding subsection does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than:

(a) the broadcasting of the work or adaptation in circumstances that do not (whether by reason of an assignment or licence or

Section 47

of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

(b) the making of further records embodying the recording or further copies of the film for the purpose of the broadcasting of the work or adaptation in such circumstances.

(3)

Subsection (1) does not apply in relation to a recording or film where a record embodying the recording or a copy of the film is used for the purpose of the broadcasting of the work or adaptation by a person who is not the maker of the recording or film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the recording or film.

(4)

A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

(5)

Subsection (1) of this section does not apply in relation to a recording or film unless, before the expiration of the period of 12 months commencing on the day on which any of the records embodying the recording or any of the copies of the film is first used for broadcasting the work or adaptation in accordance with that subsection, or before the expiration of such further period, if any, as is agreed between the maker of the recording or film and the owner of the copyright in the work, all the records embodying the recording or all the copies of the film are destroyed or are transferred, with the consent of the Director-General of the National Archives of Australia, to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia.

(6)

The Director-General of the National Archives of Australia must not consent to the transfer to the care of the National Archives of Australia in accordance with subsection (5) of a record embodying a recording or of a copy of a film unless he or she has certified that the recording or film is of an exceptional documentary character.

Copyright in original literary, dramatic, musical and artistic works Part III Acts not constituting infringements of copyright in literary, dramatic and musical works

Division 4

Section 47AA

(7) In this section:

broadcasting does not include simulcasting.

47AA Reproduction for the purpose of simulcasting

(1)

If the broadcasting of a literary, dramatic or musical work, or of an adaptation of such a work, would not for any reason constitute an infringement of the copyright in the work, but the making of a sound recording or a cinematograph film of the work or adaptation would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making of such a recording or film solely for the purpose of simulcasting the work or adaptation in digital form.

(2)

Subsection (1) does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than:

(a)

the simulcasting of the work or adaptation in circumstances that do not for any reason constitute an infringement of the copyright in the work; or

(b)

the making of further records embodying the recording or further copies of the film for the purpose of simulcasting the work or adaptation in such circumstances.

(3)

Subsection (1) does not apply in relation to a recording or film unless all records embodying the recording, or all copies of the film, made under that subsection are destroyed on or before the relevant date specified in the regulations.

(4)

For the purposes of subsection (3), the regulations may specify different dates in relation to different classes of sound recordings or cinematograph films.

47A Sound broadcasts by holders of print disability radio licences

(1) The making of a sound broadcast of, or of an adaptation of, a published literary or dramatic work does not constitute an infringement of copyright in the work if:

(a) the broadcast is made by a person being the holder of a print disability radio licence and is made under the licence; and

Section 47A

(b) there is made by or on behalf of the person, as soon as practicable after the making of the broadcast, a record of the making of the broadcast that:

(i)

sets out the time and date of the making of the broadcast;

(ii)

identifies the work; and

(iii) contains particulars of such other matters in relation to the work or in relation to the broadcast as are prescribed.

(2)

For the purposes of paragraph (1)(b), a record of the making of a broadcast:

(a)

may be made in writing or in any other manner prescribed by the regulations; and

(b)

if it is made in writing, shall be in accordance with the form prescribed by the regulations.

(3)

Where, at any time before the expiration of the prescribed retention period after the making by a person of a sound broadcast of a literary or dramatic work in reliance on subsection (1), a record made for the purposes of paragraph (1)(b) in relation to the making of the sound broadcast is not retained by the person, the person is guilty of an offence punishable, upon conviction, by a fine not exceeding $500.

(3A) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4)

It is a defence to a prosecution of a person under subsection (3) in relation to the retention of a record if the person satisfies the court that he or she took all reasonable precautions, and exercised due diligence, to ensure the retention of the record.

(5)

A person is not liable to be convicted twice of an offence against subsection (3) in relation to the retention of the same record.

(6)

The owner of the copyright in a literary or dramatic work, or the agent of such an owner, may notify in writing a person who holds or held a print disability radio licence that the owner or agent wishes to inspect:

(a) all the records of the person made by or on behalf of the person for the purposes of paragraph (1)(b); or

Copyright in original literary, dramatic, musical and artistic works Part III Acts not constituting infringements of copyright in literary, dramatic and musical works

Division 4

Section 47A

(b) such of those records as relate to the works of a specified

author; on a day specified in the notice, being a day (other than a Saturday, Sunday or public holiday) not less than 7 days after the day on which the notice is given.

(7) Where a person who receives a notice under subsection (6) does not allow the owner or agent to inspect the records to which the notice relates during business hours on the day specified in the notice, the person is guilty of an offence punishable, upon conviction, by a fine not exceeding $500.

(7A) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(7B) Subsection (7) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

(8) Where:

(a)

a sound broadcast of, or of an adaptation of, a literary or dramatic work is made by a person (in this subsection referred to as the licence holder) being the holder of a print disability radio licence;

(b)

by virtue of subsection (1), the making of the sound broadcast does not infringe copyright in the work; and

(c)

the owner of the copyright in the work makes a request in writing at any time during the prescribed retention period after the making of the sound broadcast for payment for the making of the sound broadcast;

the licence holder shall pay to the owner of the copyright such an amount by way of equitable remuneration for the making of the sound broadcast as is agreed upon between the owner of the copyright and the licence holder or, in default of agreement, as is determined by the Copyright Tribunal on the application of either the owner of the copyright or the licence holder.

(9) Where the Copyright Tribunal has under subsection (8) determined the amount of equitable remuneration payable by a person to the owner of the copyright in a work, the owner of the copyright may

Section 47A

recover that amount from the person in a court of competent jurisdiction as a debt due to the owner of the copyright.

(10)

Nothing in this section affects the right of the owner of the copyright in a literary or dramatic work to grant a licence authorising a person being the holder of a print disability radio licence to make sound broadcasts of, or of adaptations of, the work without infringement of that copyright.

(11)

In this section:

(a)

prescribed retention period means the period prescribed by the regulations for the purposes of this paragraph; and

(b)

print disability radio licence means a licence in force under the Broadcasting Services Act 1992 or the Radiocommunications Act 1992, being a licence that was granted for the purpose of authorising the making of sound broadcasts to persons who by reason of old age, disability or literacy problems are unable to handle books or newspapers or to read or comprehend written material.

Section 47AB

Division 4A—Acts not constituting infringements of copyright in computer programs

47AB Meaning of computer program

In this Division:

computer program includes any literary work that is:

(a)

incorporated in, or associated with, a computer program; and

(b)

essential to the effective operation of a function of that computer program.

47B Reproduction for normal use or study of computer programs

(1)

Subject to subsection (2), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

(a)

the reproduction is incidentally and automatically made as part of the technical process of running a copy of the program for the purposes for which the program was designed; and

(b)

the running of the copy is done by, or on behalf of, the owner or licensee of the copy.

(2)

Subsection (1) does not apply to the making of a reproduction of a computer program:

(a)

from an infringing copy of the computer program; or

(b)

contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made when the owner or licensee of that copy acquired it.

(3)

Subject to subsection (4), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

Section 47C

(a)

the reproduction is incidentally and automatically made as part of the technical process of running a copy of the program for the purpose of studying the ideas behind the program and the way in which it functions; and

(b)

the running of the copy is done by, or on behalf of, the owner or licensee of the copy.

(4)

Subsection (3) does not apply to the making of a reproduction of a computer program from an infringing copy of the computer program.

(5)

In this section:

reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b).

47C Back-up copy of computer programs

(1) Subject to subsection (4), the copyright in a literary work that is a computer program is not infringed by the making of a reproduction of the work if:

(a)

the reproduction is made by, or on behalf of, the owner or licensee of the copy (the original copy) from which the reproduction is made; and

(b)

the reproduction is made for use only by, or on behalf of, the owner or licensee of the original copy; and

(c)

the reproduction is made for any of the following purposes:

(i)

to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy and to store the original copy;

(ii)

to enable the owner or licensee of the original copy to store the reproduction for use in lieu of the original copy if the original copy is lost, destroyed or rendered unusable;

(iii) to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy, or of another reproduction made under this subsection, if the original copy, or the other reproduction, is lost, destroyed or rendered unusable.

Section 47D

(2)

Subject to subsection (4), the copyright in a literary work that is a computer program, and in any work or other subject-matter held together with the program on the same computer system, is not infringed by the making of a reproduction of the program, or of such a work or other subject-matter if:

(a)

the reproduction is made by, or on behalf of, the owner or licensee of the copy (the original copy) from which the reproduction is made; and

(b)

the making of the reproduction is part of the normal back-up copying of data for security purposes.

(3)

Subsection (1) applies in relation to a reproduction of a work made for a purpose referred to in subparagraph (1)(c)(iii) whether or not other reproductions of the work have previously been made for the same purpose from the same copy.

(4)

Subsections (1) and (2) do not apply to the making of a reproduction of a computer program:

(a)

from an infringing copy of the computer program; or

(b)

if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

(c)

if a licence to use the original copy, given by, or on behalf of, the owner of the copyright in the computer program to the owner of the original copy when the owner of that copy acquired it, has expired or been terminated.

(5)

For the purposes of this section, a reference to a copy of a computer program is a reference to any article in which the computer program is reproduced in a material form.

(6)

In this section:

reproduction, in relation to a computer program, does not include a version of the program of the kind referred to in paragraph 21(5)(b).

47D Reproducing computer programs to make interoperable products

(1) Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if:

Section 47E

(a)

the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original program) used for making the reproduction or adaptation; and

(b)

the reproduction or adaptation is made for the purpose of obtaining information necessary to enable the owner or licensee, or a person acting on behalf of the owner or licensee, to make independently another program (the new program), or an article, to connect to and be used together with, or otherwise to interoperate with, the original program or any other program; and

(c)

the reproduction or adaptation is made only to the extent reasonably necessary to obtain the information referred to in paragraph (b); and

(d)

to the extent that the new program reproduces or adapts the original program, it does so only to the extent necessary to enable the new program to connect to and be used together with, or otherwise to interoperate with, the original program or the other program; and

(e)

the information referred to in paragraph (b) is not readily available to the owner or licensee from another source when the reproduction or adaptation is made.

(2) Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47E Reproducing computer programs to correct errors

(1) Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making, on or after 23 February 1999, of a reproduction or adaptation of the work if:

(a)

the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original copy) used for making the reproduction or adaptation; and

(b)

the reproduction or adaptation is made for the purpose of correcting an error in the original copy that prevents it from operating (including in conjunction with other programs or with hardware):

(i) as intended by its author; or

Section 47F

(ii) in accordance with any specifications or other documentation supplied with the original copy; and

(c)

the reproduction or adaptation is made only to the extent reasonably necessary to correct the error referred to in paragraph (b); and

(d)

when the reproduction or adaptation is made, another copy of the program that does operate as mentioned in paragraph (b) is not available to the owner or licensee within a reasonable time at an ordinary commercial price.

(2) Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47F Reproducing computer programs for security testing

(1) Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if:

(a)

the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original copy) used for making the reproduction or adaptation; and

(b)

the reproduction or adaptation is made for the purpose of:

(i)

testing in good faith the security of the original copy, or of a computer system or network of which the original copy is a part; or

(ii)

investigating, or correcting, in good faith a security flaw in, or the vulnerability to unauthorised access of, the original copy, or of a computer system or network of which the original copy is a part; and

(c)

the reproduction or adaptation is made only to the extent reasonably necessary to achieve a purpose referred to in paragraph (b); and

(d)

the information resulting from the making of the reproduction or adaptation is not readily available to the owner or licensee from another source when the reproduction or adaptation is made.

Section 47G

(2) Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.

47G Unauthorised use of copies or information

(1) If:

(a)

a reproduction or adaptation of a literary work that is a computer program is made under a prescribed provision; and

(b)

the reproduction or adaptation, or any information derived from it, is, without the consent of the owner of the copyright in the computer program, used, or sold or otherwise supplied to a person, for a purpose other than a purpose specified in the prescribed provision;

the prescribed provision does not apply, and is taken never to have applied, to the making of the reproduction or adaptation.

(2) For the purposes of this section, sections 47B, 47C, 47D, 47E and 47F are prescribed provisions.

47H Agreements excluding operation of certain provisions

An agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.

Section 47J

Division 4B—Acts not constituting infringements of copyright in artistic works

47J Reproducing photograph in different format for private use

(1) This section applies if:

(a)

the owner of a photograph (the original photograph) makes a reproduction (the main copy) of it for his or her private and domestic use instead of the original photograph; and

(b)

the original photograph itself is not an infringing copy of a work or published edition of a work; and

(c)

either:

(i)

the original photograph is in hardcopy form and the main copy is in electronic form; or

(ii)

the original photograph is in electronic form and the main copy is in hardcopy form; and

(d)

at the time the owner makes the main copy, he or she has not made, and is not making, another reproduction of the original photograph that embodies the original photograph in a form substantially identical to the form of the main copy.

For this purpose, disregard a temporary reproduction of the original photograph incidentally made as a necessary part of the technical process of making the main copy.

(2) The making of the main copy is not an infringement of copyright:

(a)

in the original photograph; or

(b)

in a work, or published edition of a work, included in the original photograph.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a)

sold; or

(b)

let for hire; or

(c)

by way of trade offered or exposed for sale or hire; or

(d)

distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

Section 47J

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the main copy by the lender to a member of the lender’s family or household for the member’s private and domestic use.

Reproducing main copy may infringe copyright

(5) Subsection (2) does not prevent the main copy from being an infringing copy for the purpose of working out whether this section applies again in relation to the making of a reproduction of the main copy.

Disposal of original may make the main copy an infringing copy

(6) Subsection (2) is taken never to have applied if the owner of the original photograph disposes of it to another person.

Status of temporary reproduction

(7) If subsection (2) applies to the making of the main copy only as a result of disregarding the incidental making of a temporary reproduction of the original photograph as a necessary part of the technical process of making the main copy, then:

(a)

if the temporary reproduction is destroyed at the first practicable time during or after the making of the main copy—the making of the temporary reproduction does not infringe copyright in the original photograph or a work, or published edition of a work, included in the original photograph; or

(b)

if the temporary reproduction is not destroyed at that time— the making of the temporary reproduction is taken always to have infringed copyright (if any) subsisting in the original photograph or a work, or published edition of a work, included in the original photograph.

Section 48

Division 5—Copying of works in libraries or archives

48 Interpretation

In this Division, a reference to an article contained in a periodical publication shall be read as a reference to anything (other than an artistic work) appearing in such a publication.

48A Copying by Parliamentary libraries for members of Parliament

The copyright in a work is not infringed by anything done, for the sole purpose of assisting a person who is a member of a Parliament in the performance of the person’s duties as such a member, by an authorized officer of a library, being a library the principal purpose of which is to provide library services for members of that Parliament.

49 Reproducing and communicating works by libraries and archives for users

(1) A person may furnish to the officer in charge of a library or archives:

(a)

a request in writing to be supplied with a reproduction of an article, or a part of an article, contained in a periodical publication or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and

(b)

a declaration signed by him or her stating:

(i)

that he or she requires the reproduction for the purpose of research or study and will not use it for any other purpose; and

(ii)

that he or she has not previously been supplied with a reproduction of the same article or other work, or the same part of the article or other work, as the case may be, by an authorized officer of the library or archives.

Section 49

(2) Subject to this section, where a request and declaration referred to in subsection (1) are furnished to the officer in charge of a library or archives, an authorized officer of the library or archives may, unless the declaration contains a statement that to his or her knowledge is untrue in a material particular, make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the person who made the request.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(2A) A person may make to an authorized officer of a library or archives:

(a)

a request to be supplied with a reproduction of an article, or part of an article, contained in a periodical publication, or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and

(b)

a declaration to the effect that:

(i)

the person requires the reproduction for the purpose of research or study and will not use it for any other purpose;

(ii)

the person has not previously been supplied with a reproduction of the same article or other work, or the same part of the article or other work, as the case may be, by an authorized officer of the library or archives; and

(iii) by reason of the remoteness of the person’s location, the person cannot conveniently furnish to the officer in charge of the library or archives a request and declaration referred to in subsection (1) in relation to the reproduction soon enough to enable the reproduction to be supplied to the person before the time by which the person requires it.

(2B) A request or declaration referred to in subsection (2A) is not required to be made in writing.

Section 49

(2C) Subject to this section, where:

(a)

a request and declaration referred to in subsection (2A) are made by a person to an authorized officer of a library or archives; and

(b)

the authorized officer makes a declaration setting out particulars of the request and declaration made by the person and stating that:

(i)

the declaration made by the person, so far as it relates to the matters specified in subparagraphs (2A)(b)(i) and (ii), does not contain a statement that, to the knowledge of the authorized officer, is untrue in a material particular; and

(ii)

the authorized officer is satisfied that the declaration made by the person is true so far as it relates to the matter specified in subparagraph (2A)(b)(iii);

an authorized officer of the library or archives may make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the person.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the library or archives that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(3)

Where a charge is made for making and supplying a reproduction to which a request under subsection (1) or (2A) relates, subsection (2) or (2C), as the case may be, does not apply in relation to the request if the amount of the charge exceeds the cost of making and supplying the reproduction.

(4)

Subsection (2) or (2C) does not apply in relation to a request for a reproduction of, or parts of, 2 or more articles contained in the same periodical publication unless the articles are requested for the same research or course of study.

(5)

Subsection (2) or (2C) does not apply to a request for a reproduction of the whole of a work (other than an article contained in a periodical publication), or to a reproduction of a part of such a work that contains more than a reasonable portion of the work unless:

(a) the work forms part of the library or archives collection; and

Section 49

(b) before the reproduction is made, an authorized officer has, after reasonable investigation, made a declaration stating that he or she is satisfied that a reproduction (not being a second-hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

(5AA) For the purposes of subsection (5), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion.

(5AB) For the purposes of paragraph (5)(b), in determining whether a reproduction (not being a second-hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

(a)

the time by which the person requesting the reproduction requires it; and

(b)

the time within which a reproduction (not being a second-hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

(c)

whether an electronic reproduction of the work can be obtained within a reasonable time at an ordinary commercial price.

(5A) If an article contained in a periodical publication, or a published work (other than an article contained in a periodical publication) is acquired, in electronic form, as part of a library or archives collection, the officer in charge of the library or archives may make it available online within the premises of the library or archives in such a manner that users cannot, by using any equipment supplied by the library or archives:

(a)

make an electronic reproduction of the article or work; or

(b)

communicate the article or work.

(6) The copyright in an article contained in a periodical publication is not infringed by the making, in relation to a request under subsection (1) or (2A), of a reproduction of the article, or of a part of the article, in accordance with subsection (2) or (2C), as the case may be, unless the reproduction is supplied to a person other than the person who made the request.

Section 49

(7) The copyright in a published work other than an article contained in a periodical publication is not infringed by the making, in relation to a request under subsection (1) or (2A), of a reproduction of the work, or of a part of the work, in accordance with subsection (2) or (2C), as the case may be, unless the reproduction is supplied to a person other than the person who made the request.

(7A) Subsections (6) and (7) do not apply to the making under subsection (2) or (2C) of an electronic reproduction of:

(a)

an article, or a part of an article, contained in a periodical publication; or

(b)

the whole or part of a published work, other than such an

article; in relation to a request under this section for communication to the person who made the request unless:

(c)

before or when the reproduction is communicated to the person, the person is notified in accordance with the regulations:

(i)

that the reproduction has been made under this section and that the article or work might be subject to copyright protection under this Act; and

(ii)

about such other matters (if any) as are prescribed; and

(d)

as soon as practicable after the reproduction is communicated to the person, the reproduction made under subsection (2) or (2C) and held by the library or archives is destroyed.

(7B) It is not an infringement of copyright in an article contained in a periodical publication, or of copyright in a published work, to communicate it in accordance with subsection (2), (2C) or (5A).

(8)

The regulations may exclude the application of subsection (6) or

(7) in such cases as are specified in the regulations.

(9)

In this section:

archives means an archives all or part of whose collection is

accessible to members of the public.

library means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.

supply includes supply by way of a communication.

Section 50

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

50 Reproducing and communicating works by libraries or archives for other libraries or archives

(1) The officer in charge of a library may request, or cause another person to request, the officer in charge of another library to supply the officer in charge of the first-mentioned library with a reproduction of an article, or a part of an article, contained in a periodical publication, or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library:

(a) for the purpose of including the reproduction in the collection of the first-mentioned library;

(aa) in a case where the principal purpose of the first-mentioned library is to provide library services for members of a Parliament—for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

(b) for the purpose of supplying the reproduction to a person who has made a request for the reproduction under section 49.

(2) Subject to this section, where a request is made by or on behalf of the officer in charge of a library to the officer in charge of another library under subsection (1), an authorized officer of the last-mentioned library may make, or cause to be made, the reproduction to which the request relates and supply the reproduction to the officer in charge of the first-mentioned library.

Note: The reproduction could be made from another reproduction of the article or published work in the collection of the other library that was made without infringing copyright because of subsection 51A(1), to replace the article or published work because it was damaged, had deteriorated or had been lost or stolen.

(3) Where, under subsection (2), an authorized officer of a library makes, or causes to be made, a reproduction of the whole or part of a work (including an article contained in a periodical publication) and supplies it to the officer in charge of another library in accordance with a request made under subsection (1):

Section 50

(a)

the reproduction shall, for all purposes of this Act, be deemed to have been made on behalf of an authorized officer of the other library for the purpose for which the reproduction was requested; and

(b)

an action shall not be brought against the body administering that first-mentioned library, or against any officer or employee of that library, for infringement of copyright by reason of the making or supplying of that reproduction.

(4)

Subject to this section, if a reproduction of the whole or a part of an article contained in a periodical publication, or of any other published work, is, by virtue of subsection (3), taken to have been made on behalf of an authorised officer of a library, the copyright in the article or other work is not infringed:

(a)

by the making of the reproduction; or

(b)

if the work is supplied under subsection (2) by way of a communication—by the making of the communication.

(5)

The regulations may exclude the application of subsection (4) in such cases as are specified in the regulations.

(6)

Where a charge is made for making and supplying a reproduction to which a request under subsection (1) relates, subsection (3) does not apply in relation to the request if the amount of the charge exceeds the cost of making and supplying the reproduction.

(7)

Where:

(a)

a reproduction (in this subsection referred to as the relevant reproduction) of, or of a part of, an article, or of the whole or a part of another work, is supplied under subsection (2) to the officer in charge of a library; and

(b)

a reproduction of the same article or other work, or of the same part of the article or other work, as the case may be, has previously been supplied under subsection (2) for the purpose of inclusion in the collection of the library;

subsection (4) does not apply to or in relation to the relevant reproduction unless, as soon as practicable after the request under subsection (1) relating to the relevant reproduction is made, an authorized officer of the library makes a declaration:

(c) setting out particulars of the request (including the purpose for which the relevant reproduction was requested); and

Section 50

(d) stating that the reproduction referred to in paragraph (b) has been lost, destroyed or damaged, as the case requires.

(7A) If:

(a)

a reproduction is made of the whole of a work (other than an article contained in a periodical publication) or of a part of such a work, being a part that contains more than a reasonable portion of the work; and

(b)

the work from which the reproduction is made is in hardcopy form; and

(c)

the reproduction is supplied under subsection (2) to the

officer in charge of a library; subsection (4) does not apply in relation to the reproduction unless:

(d)

in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

(e)

as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration:

(i)

setting out particulars of the request (including the purpose for which the reproduction was requested); and

(ii)

stating that, after reasonable investigation, the authorized officer is satisfied that a copy (not being a second-hand copy) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

(7B) If:

(a)

a reproduction is made of the whole of a work (including an article contained in a periodical publication) or of a part of such a work, whether or not the part contains more than a reasonable portion of the work; and

(b)

the work from which the reproduction is made is in electronic form; and

(c)

the reproduction is supplied under subsection (2) to the

officer in charge of a library; subsection (4) does not apply in relation to the reproduction unless:

Section 50

(d)

in a case where the principal purpose of the library is to provide library services for members of a Parliament—the reproduction is so supplied for the purpose of assisting a person who is a member of that Parliament in the performance of the person’s duties as such a member; or

(e)

as soon as practicable after the request under subsection (1) relating to the reproduction is made, an authorized officer of the library makes a declaration:

(i)

setting out particulars of the request (including the purpose for which the reproduction was requested); and

(ii)

if the reproduction is of the whole, or of more than a reasonable portion, of a work other than an article— stating that, after reasonable investigation, the authorised officer is satisfied that the work cannot be obtained in electronic form within a reasonable time at an ordinary commercial price; and

(iii) if the reproduction is of a reasonable portion, or less than a reasonable portion, of a work other than an article—stating that, after reasonable investigation, the authorised officer is satisfied that the portion cannot be obtained in electronic form, either separately or together with a reasonable amount of other material, within a reasonable time at an ordinary commercial price; and

(iv) if the reproduction is of the whole or of a part of an article—stating that, after reasonable investigation, the authorised officer is satisfied that the article cannot be obtained on its own in electronic form within a reasonable time at an ordinary commercial price.

(7BA) For the purposes of subsections (7A) and (7B), if the characteristics of the work are such that subsection 10(2) or (2A) is relevant to the question whether the reproduction contains only a reasonable portion of the work, then that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion.

(7BB) For the purposes of subparagraphs (7A)(e)(ii) and (7B)(e)(ii), (iii) and (iv), in determining whether a copy of the work, the work, the portion of the work or the article (as appropriate) cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account:

Section 50

(a)

the time by which the person requesting the reproduction under section 49 requires the reproduction; and

(b)

the time within which a reproduction (not being a second-hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and

(c)

whether the copy, work, portion or article can be obtained in electronic form within a reasonable time at an ordinary commercial price.

(7C) If:

(a)

a reproduction is made in electronic form by or on behalf of an authorised officer of a library of the whole of a work (including an article contained in a periodical publication) or of a part of such a work; and

(b)

the reproduction is supplied under subsection (2) to the

officer in charge of another library; subsection (3) does not apply in relation to the reproduction unless, as soon as practicable after the reproduction is supplied to the other library the reproduction made for the purpose of the supply and held by the first-mentioned library is destroyed.

(8)

Subsection (4) does not apply to a reproduction or communication of all or part of 2 or more articles that are contained in the same periodical publication and that have been requested for the same purpose unless:

(a)

the purpose is the one described in paragraph (1)(aa) (assisting a member of a Parliament perform his or her duties); or

(b)

the purpose is the one described in paragraph (1)(b) (supplying a reproduction to a person requesting it under section 49 for research or study) and the reproduction of the articles was requested under section 49 for the same research or course of study.

(10)

In this section:

library means:

(a)

a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans; or

(b)

a library whose principal purpose is to provide library services for members of a Parliament; or

Section 51

(c) an archives all or part of whose collection is accessible to members of the public.

supply includes supply by way of a communication.

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

51 Reproducing and communicating unpublished works in libraries or archives

(1) Where, at a time more than 50 years after the end of the calendar year in which the author of a literary, dramatic, musical or artistic work died, copyright subsists in the work but:

(a)

the work has not been published; and

(b)

a reproduction of the work, or, in the case of a literary, dramatic or musical work, the manuscript of the work, is kept in the collection of a library or archives where it is, subject to any regulations governing that collection, open to public inspection;

the copyright in the work is not infringed:

(c)

by the making or communication of a reproduction of the work by a person for the purposes of research or study or with a view to publication; or

(d)

by the making or communication of a reproduction of the work by, or on behalf of, the officer in charge of the library or archives if the reproduction is supplied (whether by way of communication or otherwise) to a person who satisfies the officer in charge of the library or archives that the person requires the reproduction for the purposes of research or study, or with a view to publication, and that the person will not use it for any other purpose.

(2) If the manuscript, or a reproduction, of an unpublished thesis or other similar literary work is kept in a library of a university or other similar institution, or in an archives, the copyright in the thesis or other work is not infringed by the making or communication of a reproduction of the thesis or other work by or on behalf of the officer in charge of the library or archives if the reproduction is supplied (whether by communication or otherwise) to a person who satisfies an authorized officer of the library or

Section 51AA

archives that he or she requires the reproduction for the purposes of research or study.

51AA Reproducing and communicating works in care of National Archives of Australia

(1)

The copyright in a work that is kept in the collection of an archives covered by subparagraph (a)(i) or paragraph (aa) of the definition of archives in subsection 10(1), where it is open to public inspection, is not infringed by the making or communication by, or on behalf of, the officer in charge of the archives:

(a)

of a single working copy of the work; or

(b)

of a single reference copy of the work for supply to the central office of the National Archives of Australia; or

(c)

on the written request for a reference copy of the work by an officer of the National Archives of Australia in a regional office of the Archives, where the officer in charge is satisfied that a reference copy of the work has not been previously supplied to that regional office—of a single reference copy of the work for supply to that regional office; or

(d)

where the officer in charge is satisfied that a reference copy of the work supplied to a regional office of the National Archives of Australia is lost, damaged or destroyed and an officer of the Archives in that regional office makes a written request for a replacement copy of the work—of a single replacement copy of the work for supply to that regional office; or

(e)

where the officer in charge is satisfied that a reference copy of the work supplied to the central office of the National Archives of Australia is lost, damaged or destroyed—of a single replacement copy of the work for supply to that central office.

(2)

In this section:

reference copy, in relation to a work, means a reproduction of the work made from a working copy for supply to the central office, or to a regional office, of the National Archives of Australia for use by that office in providing access to the work to members of the public.

Section 51A

replacement copy, in relation to a work, means a reproduction of the work made from a working copy for the purpose of replacing a reference copy of the work that is lost, damaged or destroyed.

working copy, in relation to a work, means a reproduction of the work made for the purpose of enabling the National Archives of Australia to retain the copy and use it for making reference copies and replacement copies of the work.

51A Reproducing and communicating works for preservation and other purposes

(1)

Subject to subsection (4), the copyright in a work that forms, or formed, part of the collection of a library or archives is not infringed by the making or communicating, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work:

(a)

if the work is held in manuscript form or is an original artistic work—for the purpose of preserving the manuscript or original artistic work, as the case may be, against loss or deterioration or for the purpose of research that is being, or is to be, carried out at the library or archives in which the work is held or at another library or other archives;

(b)

if the work is held in the collection in a published form but has been damaged or has deteriorated—for the purpose of replacing the work; or

(c)

if the work has been held in the collection in a published form but has been lost or stolen—for the purpose of replacing the work.

(2)

The copyright in a work that is held in the collection of a library or archives is not infringed by the making, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work for administrative purposes.

(3)

The copyright in a work that is held in the collection of a library or archives is not infringed by the communication, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work made under subsection (2) to officers of the library or archives by making it available online to be accessed through the use of a computer terminal installed within the premises of the

Section 51A

library or archives with the approval of the body administering the

library or archives.

(3A) The copyright in an original artistic work that is held in the collection of a library or archives is not infringed in the circumstances described in subsection (3B) by the communication, by or on behalf of the officer in charge of the library or archives, of a preservation reproduction of the work by making it available online to be accessed through the use of a computer terminal:

(a)

that is installed within the premises of the library or archives; and

(b)

that cannot be used by a person accessing the work to make an electronic copy or a hardcopy of the reproduction, or to communicate the reproduction.

(3B) The circumstances in which the copyright in the original artistic work is not infringed because of subsection (3A) are that either:

(a)

the work has been lost, or has deteriorated, since the preservation reproduction of the work was made; or

(b)

the work has become so unstable that it cannot be displayed without risk of significant deterioration.

(4) Subsection (1) does not apply in relation to a work held in published form in the collection of a library or archives unless an authorized officer of the library or archives has, after reasonable investigation, made a declaration:

(a)

stating that he or she is satisfied that a copy (not being a second-hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

(b)

if he or she is satisfied that a copy (not being a second-hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price—stating why the reproduction should be made from the copy of the work held in the collection.

Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

(5) Where a reproduction of an unpublished work is made under subsection (1) by or on behalf of the officer in charge of a library or archives for the purpose of research that is being, or is to be,

Section 51B

carried out at another library or archives, the supply or

communication of the reproduction by or on behalf of the officer to the other library or archives does not, for any purpose of this Act, constitute the publication of the work.

(6) In this section:

administrative purposes means purposes directly related to the care or control of the collection.

officers of the library or archives includes volunteers assisting with the care or control of the collection.

preservation reproduction, in relation to an artistic work, means a reproduction of the work made under subsection (1) for the purpose of preserving the work against loss or deterioration.

51B Making preservation copies of significant works in key cultural institutions’ collections

(1) This section applies in relation to a work held in the collection of a library or archives if:

(a)

the body administering the library or archives:

(i)

has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

(ii)

is prescribed by the regulations for the purposes of this subparagraph; and

(b)

an authorized officer of the library or archives is satisfied that the work is of historical or cultural significance to Australia.

Manuscript

(2) If the work is held in the form of a manuscript, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the manuscript for the purpose of preserving it against loss or deterioration.

Original artistic work

(3) If the work is held in the form of an original artistic work, the copyright in the work is not infringed by an authorized officer of

Section 52

the library or archives making up to 3 comprehensive photographic reproductions of the work from the original artistic work for the purpose of preserving it against loss or deterioration if the officer is satisfied that a photographic reproduction (not being a second-hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.

Published work

(4) If the work is held in published form, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the copy held in the collection, for the purpose of preserving the work against loss or deterioration, if the officer is satisfied that:

(a)

a copy (not being a second-hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price; and

(b)

if the officer is satisfied that a copy (not being a second-hand copy) of another edition of the work can be obtained within a reasonable time at an ordinary commercial price—it is appropriate that the reproduction should be made from the copy of the work held in the collection.

Electronic copies and commercial availability

(5) In determining for the purposes of subsection (3) or (4) whether a reproduction or copy (not being a second-hand reproduction or copy) of the work, or of a particular edition of the work, cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the work or edition can be obtained within a reasonable time at an ordinary commercial price.

Relationship with the rest of this Division

(6) This section does not limit the rest of this Division. The rest of this Division does not limit this section.

52 Publication of unpublished works kept in libraries or archives

(1) Where:

Section 52

(a)

a published literary, dramatic or musical work (in this section referred to as the new work) incorporates the whole or a part of a work (in this section referred to as the old work) to which subsection 51(1) applied immediately before the new work was published;

(b)

before the new work was published, the prescribed notice of the intended publication of the work had been given; and

(c)

immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publishers of the new work;

then, for the purposes of this Act, the first publication of the new work, and any subsequent publication of the new work whether in the same or in an altered form, shall, in so far as it constitutes a publication of the old work, be deemed not to be an infringement of the copyright in the old work or an unauthorized publication of the old work.

(2)

The last preceding subsection does not apply to a subsequent publication of the new work incorporating a part of the old work that was not included in the first publication of the new work unless:

(a)

subsection 51(1) would, but for this section, have applied to that part of the old work immediately before that subsequent publication;

(b)

before that subsequent publication, the prescribed notice of the intended publication had been given; and

(c)

immediately before that subsequent publication, the identity of the owner of the copyright in the old work was not known to the publisher of that subsequent publication.

(3)

If a work, or part of a work, has been published and, because of this section, the publication is taken not to be an infringement of the copyright in the work, the copyright in the work is not infringed by a person who, after the publication took place:

(a)

broadcasts the work, or that part of the work; or

(b)

electronically transmits the work, or that part of the work (other than in a broadcast) for a fee payable to the person who made the transmission; or

(c)

performs the work, or that part of the work, in public; or

(d)

makes a record of the work, or that part of the work.

Section 53

53 Application of Division to illustrations accompanying articles and other works

Where an article, thesis or literary, dramatic or musical work is accompanied by artistic works provided for the purpose of explaining or illustrating the article, thesis or other work (in this section referred to as the illustrations), the preceding sections of this Division apply as if:

(a)

where any of those sections provides that the copyright in the article, thesis or work is not infringed—the reference to that copyright included a reference to any copyright in the illustrations;

(b)

a reference in section 49, section 50, section 51 or 51A to a reproduction of the article, thesis or work included a reference to a reproduction of the article, thesis or work together with a reproduction of the illustrations;

(c)

a reference in section 49 or section 50 to a reproduction of a part of the article or work included a reference to a reproduction of that part of the article or work together with a reproduction of the illustrations that were provided for the purpose of explaining or illustrating that part; and

(d)

a reference in section 51A or section 52 to the doing of any act in relation to the work included a reference to the doing of that act in relation to the work together with the illustrations.

Section 54

Division 6—Recording of musical works

54 Interpretation

(1A) In this Division:

record means a disc, tape, paper or other device in which sounds are embodied.

(1)

For the purposes of this Division:

(a)

a reference to a musical work shall be read as a reference to the work in its original form or to an adaptation of the work;

(b)

a reference to the owner of the copyright in a literary, dramatic or musical work shall, unless the contrary intention appears, be read as a reference to the person who is entitled to authorize the making in, and the importation into, Australia of records of the work; and

(c)

a reference to sale of a record by retail or to retail sale of a record shall be read as not including a reference to:

(i)

sale for a consideration not consisting wholly of money; or

(ii)

sale by a person not ordinarily carrying on the business of making or selling records.

(2)

For the purposes of this Division, where a musical work is comprised partly in one record and partly in another record or other records, all the records shall be treated as if they constituted a single record.

(3)

A reference in this Division to a record of a musical work does not include a reference to a sound-track associated with visual images forming part of a cinematograph film.

(4)

Subject to subsection (5), this Division applies to a record of a part of a musical work as it applies to a record of the whole work.

(5)

Section 55:

(a) does not apply to a record of a whole work unless the previous record referred to in paragraph 55(1)(a) was a record of the whole work; and

Section 55

(b) does not apply to a record of a part of a work unless that previous record was a record of that part of the work.

55 Conditions upon which manufacturer may make records of musical work

(1) Subject to this Division, the copyright in a musical work is not infringed by a person (in this section referred to as the manufacturer) who makes, in Australia, a record of the work if:

(a)

a record of the work:

(i)

has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the work;

(ii)

has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the work;

(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work; or (iv) has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work;

(b)

before the making of the record, the prescribed notice of the intended making of the record was given to the owner of the copyright;

(c)

the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by a person other than the manufacturer, or intends to use it for making other records that are to be so sold or supplied; and

Section 55

(d) where the record is so sold or supplied by the manufacturer:

(i)

the sale or supply is made with the licence of the owner of the copyright; and

(ii)

the prescribed royalty is paid to the owner of the copyright in the manner agreed between the manufacturer and the owner of the copyright or, failing such agreement, determined by the Copyright Tribunal under section 152B.

(3)

Subparagraph (1)(d)(i) does not apply in relation to a record of a work (other than a work that was made for the purpose of being performed, or has been performed, in association with a dramatic work or has been included in a cinematograph film) if the sale or supply is made after the expiration of the prescribed period after the earliest of the following dates:

(a)

the date of the first making in, or the date of the first importation into, Australia of a previous record of the work in circumstances referred to in subparagraph (1)(a)(i) or (ii);

(b)

the date of the first supplying (whether by sale or otherwise) to the public in a country referred to in subparagraph (1)(a)(iii) or (iv) of a previous record of the work made in, or imported into, that country in circumstances referred to in that subparagraph.

(4)

Regulations prescribing a period for the purposes of the last preceding subsection may prescribe different periods in relation to different classes of records.

(5)

If, apart from this subsection, the amount of royalty payable in respect of a record under this section would be less than one cent, that amount of royalty is one cent.

(6)

In this section:

prescribed royalty, in relation to a record of a musical work, means:

(a)

such amount of royalty as is agreed between the manufacturer and the owner of the copyright in the work or, failing such agreement, as is determined by the Copyright Tribunal under section 152A; or

(b)

if no such agreement or determination is in force—an amount equal to 6.25% of the retail selling price of the record.

Section 57

57 Provisions relating to royalty where 2 or more works are on the one record

Where a record comprises 2 or more musical works, whether or not there is any other matter comprised in the record:

(a)

if the record includes a work in which copyright does not subsist or works in which copyrights do not subsist the royalty payable in respect of the record is, subject to the next succeeding paragraph, the amount that bears to the amount that, but for this section, would be the amount of the royalty the same proportion as the number of works in the record in which copyrights subsist bears to the total number of works in the record; and

(b)

if the record includes 2 or more works in which copyrights subsist:

(i)

subject to this Division, the royalty payable in respect of the record shall not be less than One cent in respect of each work in the record in which copyright subsists; and

(ii)

if the owners of the copyrights in the works in the record in which copyrights subsist are different persons there shall be paid to the owner of the copyright in each work, in respect of that work, an amount ascertained by dividing the amount of the royalty payable in respect of the record by the number of works in the record in which copyrights subsist.

59 Conditions upon which manufacturer may include part of a literary or dramatic work in a record of a musical work

(1) Where:

(a)

a person makes in Australia a record comprising the performance of a musical work in which words are sung, or are spoken incidentally to or in association with the music, whether or not there is any other matter comprised in the record;

(b)

copyright does not subsist in that work or, if copyright so subsists, the requirements specified in subsection 55(1) are complied with in relation to that copyright;

(c)

the words consist or form part of a literary or dramatic work in which copyright subsists;

Section 59

(d)

a record of the musical work in which those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music:

(i)

has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the literary or dramatic work;

(ii)

has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the literary or dramatic work;

(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; or (iv) has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; and

(e)

the like notice was given to the owner of the copyright in the literary or dramatic work as is required by paragraph 55(1)(b) to be given to the owner of the copyright (if any) in the musical work and there is paid to the owner of the copyright in the literary or dramatic work such amount (if any) as is ascertained in accordance with this section;

the making of the record does not constitute an infringement of the copyright in the literary or dramatic work.

(2) Where copyright does not subsist in the musical work, the amount to be paid in respect of the literary or dramatic work is an amount equal to the royalty that, but for this section, would have been

Section 60

payable in respect of the musical work if copyright had subsisted in the musical work.

(3)

Where copyright subsists in the musical work as well as in the literary or dramatic work:

(a)

if the copyrights in those works are owned by the same person—an amount is not payable in respect of the literary or dramatic work; or

(b)

if the copyrights in those works are owned by different persons—the royalty that, but for this section, would have been payable in respect of the musical work shall be apportioned between them in such manner as they agree, or, in default of the agreement, as is determined by the Copyright Tribunal on the application of either of them.

(4)

Where the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work do not agree on the manner in which an amount is to be apportioned between them but the person who made the record gives an undertaking in writing to each owner to pay to him or her the portion of that amount that the Tribunal determines to be payable to him or her, then:

(a)

paragraph 55(1)(d) and paragraph (1)(e) of this section have effect as if the payments referred to in those paragraphs had been made; and

(b)

the person who made the record is liable, when the amount to which an undertaking relates is determined, to pay that amount to the owner of the copyright to whom the undertaking was given and the owner may recover that amount in a court of competent jurisdiction from that person as a debt due to the owner.

60 Records made partly for retail sale and partly for gratuitous disposal

Where a person makes, in Australia, a number of records embodying the same sound recording, being a recording of a musical work or of a musical work and of words consisting or forming part of a literary or dramatic work, with the intention of:

(a) selling by retail, or supplying for sale by retail by another person, a substantial proportion of the records (in this section referred to as the records made for retail sale); and

Section 61

(b) disposing gratuitously of the remainder of the records or supplying the remainder of the records for gratuitous disposal by another person;

this Division applies in relation to the records other than the records made for retail sale as if:

(c)

those records had been made with the intention of selling them by retail or of supplying them for sale by retail by another person;

(d)

the gratuitous disposal of those records by the maker of the records, or the supplying of those records by the maker of the records for gratuitous disposal by another person, were a sale of the records by retail; and

(e)

the retail selling price of those records were the same as the retail selling price of the records made for retail sale.

61 Making inquiries in relation to previous records

Where:

(a)

a person makes inquiries, as prescribed, for the purpose of ascertaining whether a record of a musical work, or a record of a musical work in which words consisting or forming part of a literary or dramatic work were sung or spoken, has previously been made in, or imported into, Australia by, or with the licence of, the owner of the copyright in the musical work or in the literary or dramatic work, as the case may be, for the purpose of retail sale or for use in making other records for the purpose of retail sale; and

(b)

an answer to those inquiries is not received within the

prescribed period; a record of that musical work, or a record of that work in which those words were sung or spoken, as the case may be, shall, for the purposes of the application of this Division:

(c)

in relation to the person who made the inquiries; or

(d)

in relation to a person who makes records of the musical work, or records of that work in which those words or substantially the same words are sung or spoken, for the purpose of supplying those records to the person who made the inquiries in pursuance of an agreement entered into between those persons for the making of the records;

Section 64

be taken to have been previously made in, or imported into, Australia with the licence of the owner of that copyright for the purpose of retail sale or for use in making other records for the purpose of retail sale, as the case may be.

64 Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by the importation of records

For the purpose of any provision of this Act relating to imported articles, in determining whether the making of a record made outside Australia would have constituted an infringement of copyright if the record had been made in Australia by the importer, sections 55 and 59 shall be disregarded.

Section 65

Division 7—Acts not constituting infringements of copyright in artistic works

65 Sculptures and certain other works in public places

(1)

This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of artistic work in section 10.

(2)

The copyright in a work to which this section applies that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast.

66 Buildings and models of buildings

The copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.

67 Incidental filming or televising of artistic works

Without prejudice to the last two preceding sections, the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion in the film or broadcast is only incidental to the principal matters represented in the film or broadcast.

68 Publication of artistic works

The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph or cinematograph film if, by virtue of section 65, section 66 or section 67, the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.

Section 70

70 Reproduction for purpose of including work in television broadcast

(1)

Where the inclusion of an artistic work in a television broadcast made by a person would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of copyright in the work but the making by the person of a cinematograph film of the work would, apart from this subsection, constitute such an infringement, the copyright in the work is not infringed by the making by the person of such a film solely for the purpose of the inclusion of the work in a television broadcast.

(2)

The last preceding subsection does not apply in relation to a film if a copy of the film is used for a purpose other than:

(a)

the inclusion of the work in a television broadcast in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

(b)

the making of further copies of the film for the purpose of the inclusion of the work in such a broadcast.

(3)

Subsection (1) does not apply in relation to a film where a copy of the film is used for the purpose of the inclusion of the work in a television broadcast made by a person who is not the maker of the film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to the owner such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the film.

(4)

A person who has given an undertaking referred to in the last preceding subsection is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

Section 72

(5)

Subsection (1) does not apply in relation to a film unless, before the expiration of the period of 12 months commencing on the day on which any of the copies of the film is first used for including the work in a television broadcast in accordance with that subsection, or before the expiration of such further period, if any, as is agreed between the maker of the film and the owner of the copyright in the work, all the copies of the film are destroyed or are transferred, with the consent of the Director-General of the National Archives of Australia, to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia.

(6)

The Director-General of the National Archives of Australia must not consent to the transfer to the care of the National Archives of Australia in accordance with subsection (5) of a copy of a film unless he or she has certified that the film is of an exceptional documentary character.

72 Reproduction of part of work in later work

(1)

The copyright in an artistic work is not infringed by the making of a later artistic work by the same author if, in making the later work, the author does not repeat or imitate the main design of the earlier work.

(2)

The last preceding subsection has effect notwithstanding that part of the earlier work is reproduced in the later work and that, in reproducing the later work, the author used a mould, cast, sketch, plan, model or study made for the purposes of the earlier work.

73 Reconstruction of buildings

(1)

Where copyright subsists in a building, the copyright is not infringed by a reconstruction of that building.

(2)

Where a building has been constructed in accordance with architectural drawings or plans in which copyright subsists and has been so constructed by, or with the licence of, the owner of that copyright, that copyright is not infringed by a later reconstruction of the building by reference to those drawings or plans.

Section 74

Division 8—Designs

74 Corresponding design

(1)

In this Division:

corresponding design, in relation to an artistic work, means visual features of shape or configuration which, when embodied in a product, result in a reproduction of that work, whether or not the visual features constitute a design that is capable of being registered under the Designs Act 2003.

(2)

For the purposes of subsection (1):

embodied in, in relation to a product, includes woven into, impressed on or worked into the product.

75 Copyright protection where corresponding design registered

Subject to section 76, where copyright subsists in an artistic work (whether made before the commencement of this section or otherwise) and a corresponding design is or has been registered under the Designs Act 1906 or the Designs Act 2003 on or after that commencement, it is not an infringement of that copyright to reproduce the work by embodying that, or any other, corresponding design in a product.

76 False registration of industrial designs under the Designs Act 2003

(1) This section applies if:

(a)

proceedings (copyright proceedings) are brought under this Act in relation to an artistic work in which copyright subsists; and

(b)

a corresponding design was registered under the Designs Act 2003; and

(c)

the exclusive right in the design had not expired by effluxion of time before the copyright proceedings began; and

Section 77

(d) it is established in the copyright proceedings that:

(i)

none of the persons who are registered owners of the registered design are entitled persons in relation to the design; and

(ii)

none of those persons were registered with the knowledge of the owner of the copyright in the artistic work.

(2)

Subject to subsection (3), for the purposes of the copyright proceedings:

(a)

the design is taken never to have been registered under the Designs Act 2003; and

(b)

section 75 does not apply in relation to anything done in respect of the design; and

(c)

nothing in the Designs Act 2003 constitutes a defence.

(3)

Ignore subsection (2) if it is established in the copyright proceedings that the act to which the proceedings relate was done:

(a)

by an assignee of, or under a licence granted by, the registered owner of the registered design; and

(b)

in good faith relying on the registration and without notice of any proceedings (whether or not before a court) to revoke the registration or to rectify the entry in the Register of Designs in relation to the design.

77 Application of artistic works as industrial designs without registration of the designs

(1) This section applies where:

(a)

copyright subsists in an artistic work (other than a building or a model of a building, or a work of artistic craftsmanship) whether made before the commencement of this section or otherwise;

(b)

a corresponding design is or has been applied industrially, whether in Australia or elsewhere, and whether before or after the commencement of this section, by or with the licence of the owner of the copyright in the place of industrial application; and

Section 77

(c)

at any time on or after the commencement of this section, products to which the corresponding design has been so applied (the products made to the corresponding design) are sold, let for hire or offered or exposed for sale or hire, whether in Australia or elsewhere; and

(d)

at that time, the corresponding design is not registrable under the Designs Act 2003 or has not been registered under that Act or under the Designs Act 1906.

(1A) This section also applies if:

(a)

a complete specification that discloses a product made to the corresponding design; or

(b)

a representation of a product made to the corresponding

design and included in a design application; is published in Australia, whether or not paragraphs (1)(b) and (c) are satisfied in relation to the corresponding design.

(2) It is not an infringement of the copyright in the artistic work to reproduce the work, on or after the day on which:

(a)

products made to the corresponding design are first sold, let for hire or offered or exposed for sale or hire; or

(b)

a complete specification that discloses a product made to the corresponding design is first published in Australia; or

(c)

a representation of a product made to the corresponding design and included in a design application is first published in Australia;

by embodying that, or any other, corresponding design in a product.

(3) This section does not apply in relation to any articles or products in respect of which, at the time when they were sold, let for hire or offered or exposed for sale or hire, the corresponding design concerned was excluded from registration by regulations made under the Designs Act 1906 or the Designs Act 2003, and, for the purposes of any proceedings under this Act, a design shall be conclusively presumed to have been so excluded if:

(a) before the commencement of the proceedings, an application for the registration of the design under the Designs Act 1906 in respect of those articles, or under the Designs Act 2003 in respect of those products, had been refused;

Section 77A

(b)

the reason, or one of the reasons, given for the refusal was that the design was excluded from registration under that Act by regulations made under that Act; and

(c)

when the proceedings were commenced, no appeal against the refusal had been allowed or was pending.

(4)

The regulations may specify the circumstances in which a design is, for the purposes of this section, to be taken to be applied industrially.

(5)

In this section:

building or model of a building does not include a portable building such as a shed, a pre-constructed swimming pool, a demountable building or similar portable building.

complete specification has the same meaning as in the Patents Act 1990.

design application has the same meaning as in the Designs Act 2003.

representation, in relation to a design, has the same meaning as in the Designs Act 2003.

77A Certain reproductions of an artistic work do not infringe copyright

(1) It is not an infringement of copyright in an artistic work to reproduce the artistic work, or communicate that reproduction, if:

(a)

the reproduction is derived from a three-dimensional product that embodies a corresponding design in relation to the artistic work; and

(b)

the reproduction is in the course of, or incidental to:

(i)

making a product (the non-infringing product), if the making of the product did not, or would not, infringe the copyright in the artistic work because of the operation of this Division; or

(ii)

selling or letting for hire the non-infringing product, or offering or exposing the non-infringing product for sale or hire.

Section 77A

(2) It is not an infringement of copyright in an artistic work to make a cast or mould embodying a corresponding design in relation to the artistic work, if:

(a)

the cast or mould is for the purpose of making products; and

(b)

the making of the products would not infringe copyright because of the operation of this Division.

Section 78

Division 9—Works of joint authorship

78 References to all of joint authors

Subject to this Division, a reference in this Act to the author of a work shall, unless otherwise expressly provided by this Act, be read, in relation to a work of joint authorship, as a reference to all the authors of the work.

79 References to any one or more of joint authors

The references in section 32, and in subsection 34(2) to the author of a work shall, in relation to a work of joint authorship, be read as references to any one or more of the authors of the work.

80 References to whichever of joint authors died last

The references in sections 33 and 51 to the author of a work shall, in relation to a work of joint authorship other than a work to which the next succeeding section applies, be read as references to the author who died last.

81 Works of joint authorship published under pseudonyms

(1)

This section applies to a work of joint authorship that was first published under 2 or more names of which one was a pseudonym or 2 or more (but not all) were pseudonyms.

(2)

This section also applies to a work of joint authorship that was first published under 2 or more names all of which were pseudonyms if, at any time within 70 years after the end of the calendar year in which the work was first published, the identity of one or more (but not all) of the authors was generally known or could be ascertained by reasonable inquiry.

(3)

The references in section 33 to the author of a work shall, in relation to a work to which this section applies, be read as references to the author whose identity was disclosed or, if the identity of 2 or more of the authors was disclosed, as references to whichever of those authors died last.

Section 82

(4) For the purposes of this section, the identity of an author shall be deemed to have been disclosed if:

(a)

one of the names under which the work was published was the name of that author; or

(b)

the identity of that author is generally known or can be ascertained by reasonable inquiry.

82 Copyright to subsist in joint works without regard to any author who is an unqualified person

(1)

Subsection 35(2) has effect, in relation to a work of joint authorship of which one of the authors is an unqualified person, or 2 or more (but not all) of the authors are unqualified persons, as if the author or authors, other than unqualified persons, had alone been the author or authors, as the case may be, of the work.

(2)

For the purposes of the last preceding subsection, a person is an unqualified person in relation to a work where, if he or she had alone been the author of the work, copyright would not have subsisted in the work by virtue of this Part.

83 Inclusion of joint works in collections for use in places of education

The reference in subsection 44(2) to other extracts from, or from adaptations of, works by the author of the extract concerned:

(a)

shall be read as including a reference to extracts from, or from adaptations of, works by the author of the extract concerned in collaboration with any other person; or

(b)

if the extract concerned is from, or from an adaptation of, a work of joint authorship shall be read as including a reference to extracts from, or from adaptations of, works by any one or more of the authors of the extract concerned, or by any one or more of those authors in collaboration with any other person.

Section 84

Division 1—Preliminary

84 Definitions

In this Part:

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.

qualified person means:

(a)

an Australian citizen or a person (other than a body corporate) resident in Australia; or

(b)

a body corporate incorporated under a law of the Commonwealth or of a State.

Section 84

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.

Section 85

Division 2—Nature of copyright in subject-matter other than works

85 Nature of copyright in sound recordings

(1)

For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a sound recording, is the exclusive right to do all or any of the following acts:

(a)

to make a copy of the sound recording;

(b)

to cause the recording to be heard in public;

(c)

to communicate the recording to the public;

(d)

to enter into a commercial rental arrangement in respect of the recording.

(2)

Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a sound recording if:

(a)

the copy of the sound recording was purchased by a person (the record owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and

(b)

the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and

(c)

the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of copies of sound recordings, when the copy was purchased.

86 Nature of copyright in cinematograph films

For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:

(a)

to make a copy of the film;

(b)

to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;

(c)

to communicate the film to the public.

Section 87

87 Nature of copyright in television broadcasts and sound broadcasts

For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right:

(a)

in the case of a television broadcast in so far as it consists of visual images—to make a cinematograph film of the broadcast, or a copy of such a film;

(b)

in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds—to make a sound recording of the broadcast, or a copy of such a sound recording; and

(c)

in the case of a television broadcast or of a sound broadcast—to re-broadcast it or communicate it to the public otherwise than by broadcasting it.

88 Nature of copyright in published editions of works

For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a published edition of a literary, dramatic, musical or artistic work or of two or more literary, dramatic, musical or artistic works, is the exclusive right to make a facsimile copy of the edition.

Section 89

Division 3—Subject-matter, other than works, in which copyright subsists

89 Sound recordings in which copyright subsists

(1)

Subject to this Act, copyright subsists in a sound recording of which the maker was a qualified person at the time when the recording was made.

(2)

Without prejudice to the last preceding subsection, copyright subsists, subject to this Act, in a sound recording if the recording was made in Australia.

(3)

Without prejudice to the last two preceding subsections, copyright subsists, subject to this Act, in a published sound recording if the first publication of the recording took place in Australia.

90 Cinematograph films in which copyright subsists

(1)

Subject to this Act, copyright subsists in a cinematograph film of which the maker was a qualified person for the whole or a substantial part of the period during which the film was made.

(2)

Without prejudice to the last preceding subsection, copyright subsists, subject to this Act, in a cinematograph film if the film was made in Australia.

(3)

Without prejudice to the last two preceding subsections, copyright subsists, subject to this Act, in a published cinematograph film if the first publication of the film took place in Australia.

91 Television broadcasts and sound broadcasts in which copyright subsists

Subject to this Act, copyright subsists in a television broadcast or sound broadcast made from a place in Australia:

(a)

under the authority of a licence or a class licence under the Broadcasting Services Act 1992; or

(b)

by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

Section 92

92 Published editions of works in which copyright subsists

(1)

Subject to this Act, copyright subsists in a published edition of a literary, dramatic, musical or artistic work, or of 2 or more literary, dramatic, musical or artistic works, where:

(a)

the first publication of the edition took place in Australia; or

(b)

the publisher of the edition was a qualified person at the date of the first publication of the edition.

(2)

The last preceding subsection does not apply to an edition that reproduces a previous edition of the same work or works.

Section 93

Division 4—Duration of copyright in subject-matter other than works

93 Duration of copyright in sound recordings

Copyright subsisting in a sound recording by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the recording is first published.

94 Duration of copyright in cinematograph films

(1)

Copyright subsisting in a cinematograph film by virtue of subsection 90(1) or (2) continues to subsist until the film is published and, after the publication of the film, until the end of 70 years after the end of the calendar year in which the film was first published.

(2)

Copyright subsisting in a cinematograph film by virtue only of subsection 90(3) continues to subsist until the end of 70 years after the end of the calendar year in which the film was first published.

95 Duration of copyright in television broadcasts and sound broadcasts

(1)

Copyright subsisting in a television broadcast or sound broadcast by virtue of this Part continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the broadcast was made.

(2)

In so far as a television broadcast or sound broadcast is a repetition (whether the first or a subsequent repetition) of a previous television broadcast or sound broadcast to which section 91 applies, and is made by broadcasting visual images or sounds embodied in any article or thing:

(a)

if it is made before the expiration of the period of 50 years after the expiration of the calendar year in which the previous broadcast was made—any copyright subsisting in it expires at the expiration of that period; and

(b)

if it is made after the expiration of that period—copyright does not subsist in it by virtue of this Part.

Section 96

96 Duration of copyright in published editions of works

Copyright subsisting in a published edition of a work or works by virtue of this Part continues to subsist until the expiration of 25 years after the expiration of the calendar year in which the edition was first published.

Section 97

Division 5—Ownership of copyright in subject-matter other than works

Division 6—Infringement of copyright in subject-matter other than works

100A Interpretation

In this Division, audio-visual item means a sound recording, a

cinematograph film, a sound broadcast or a television broadcast.

101 Infringement by doing acts comprised in copyright

(1) Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following:

(a)

the extent (if any) of the person’s power to prevent the doing of the act concerned;

(b)

the nature of any relationship existing between the person and the person who did the act concerned;

(c)

whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

(2)

The next two succeeding sections do not affect the generality of the last preceding subsection.

(3)

Subsection (1) applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording.