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Copyright Regulations 2017
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor-General of the
Commonwealth of Australia, acting with the advice of the Federal Executive Council,
make the following regulations.
Dated 14 December 2017
Peter Cosgrove
Governor-General
By His Excellency’s Command
Mitch Fifield
Minister for Communications
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Contents
Part 1—Preliminary 1 1 Name........................................................................................................................... 1
2 Commencement .......................................................................................................... 1
3 Authority..................................................................................................................... 1
4 Definitions .................................................................................................................. 1
Part 2—Copyright in original works 4 5 Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 39A(b) of the Act ........................................................ 4
6 Notice requirements for communication of electronic reproduction by library
or archives—subparagraph 49(7A)(c)(ii) of the Act ................................................... 4
7 Notice of intended publication of unpublished work kept in public library—
paragraphs 52(1)(b) and (2)(b) of the Act ................................................................... 4
8 Countries in relation to which Division 6 of Part III of the Act applies—
subparagraphs 55(1)(a)(iii) and (iv) and 59(1)(d)(iii) and (iv) of the Act ................... 5
9 Notice of intended making of record of musical work ................................................ 5
10 Prescribed period relating to making of records of musical works—
subsection 55(3) of the Act ......................................................................................... 6
11 Inquiries relating to previous records of musical works—section 61 of the Act......... 6
12 Circumstances in which design is taken to be applied industrially—section 77
of the Act .................................................................................................................... 8
Part 3—Copyright in subject-matter other than works 9 13 Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 104B(b) of the Act....................................................... 9
14 Prescribed period relating to public performance of recordings first published
outside Australia—paragraph 108(1)(b) of the Act..................................................... 9
15 Prescribed period relating to broadcasts of recordings not published in
Australia—subsection 109(3) of the Act..................................................................... 9
Part 4—Uses that do not infringe copyright 10 16 Bodies administering key cultural institutions—paragraph 113L(b) of the Act.........10
Part 5—Collecting societies 11 17 Rules of a collecting society—paragraphs 113W(d), 135ZZT(3)(d),
135ZZZO(7)(d) and 153F(6)(f) of the Act.................................................................11
Part 6—Limitation on remedies available against carriage service
providers 14
Division 1—Preliminary 14
18 Industry code—section 116AB of the Act .................................................................14
19 Designated representative ..........................................................................................14
20 Requirements for notifications and notices ................................................................14
Division 2—Conditions—cached copyright material 15
21 Notification relating to Category B activity ...............................................................15
Division 3—Conditions—copyright material found to be infringing by an
Australian court 16
22 Notice in relation to Category C and D activities.......................................................16
Division 4—Conditions—takedown of copyright material following notice 17
23 Application of this Division.......................................................................................17
24 Notice of claimed infringement .................................................................................17
25 Takedown procedure..................................................................................................17
26 Counter-notice ...........................................................................................................18
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27 Copy of counter-notice to be sent to copyright owner ...............................................18
28 Restoring copyright material......................................................................................18
Division 5—Conditions—procedure following takedown of copyright material
without notice from copyright owner, exclusive licensee or agent 20
29 Application of this Division.......................................................................................20
30 Notice to user .............................................................................................................20
31 Counter-notice ...........................................................................................................21
32 Restoring copyright material......................................................................................21
Division 6—Conditions—takedown of reference to copyright material
following notice from copyright owner, exclusive licensee or
agent 22
33 Application of this Division.......................................................................................22
34 Notice of claimed infringement .................................................................................22
35 Takedown procedure..................................................................................................22
Division 7—Civil remedies 23
36 Authority....................................................................................................................23
37 Action taken to comply with a condition ...................................................................23
38 Failure to restore or enable access to copyright material ...........................................23
39 Misrepresentations in notifications and notices .........................................................23
Part 7—Technological protection measures 25 40 Non-infringing acts enabled by circumvention of access control technological
protection measures that are not actionable—paragraphs 116AN(9)(c) and
132APC(9)(c) of the Act............................................................................................25
Part 8—Infringement notices and forfeiture of infringing articles and
devices 27
Division 1—Preliminary 27
41 Object of this Part ......................................................................................................27
42 Provisions subject to an infringement notice .............................................................27
Division 2—Infringement notices 29
43 When an infringement notice may be given...............................................................29
44 Matters to be included in an infringement notice .......................................................29
45 Extension of time to pay amount ...............................................................................30
46 Withdrawal of an infringement notice .......................................................................30
47 Effect of payment of amount......................................................................................31
48 Effect of this Part .......................................................................................................32
Division 3—Forfeiture of infringing articles and devices 33
49 Forfeiture of infringing articles and devices ..............................................................33
Part 9—Seizure of imported copies of copyright material 34 50 Definition of action period in section 134B of the Act ..............................................34
51 Definition of claim period in section 134B of the Act ...............................................34
52 Information to be given to Comptroller-General of Customs about objection
to importation of copies of works etc.—paragraph 135(8)(c) of the Act ...................34
53 Seizure of copies of works etc. imported into certain external Territories—
subsection 135(9) of the Act ......................................................................................34
54 Claim for release of seized copies—section 135AEA of the Act...............................35
Part 10—Retransmission of free-to-air broadcasts 37 55 Identity cards—subsection 135ZZQ(1) of the Act .....................................................37
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Part 11—Copyright Tribunal 38
Division 1—Preliminary 38
56 Authority....................................................................................................................38
57 Organizations treated like persons .............................................................................38
Division 2—General provisions 39
58 Seal of Tribunal .........................................................................................................39
59 Filing of documents ...................................................................................................39
60 Address for service ....................................................................................................39
61 Tribunal may direct alternative means of service or dispense with service................40
62 Notification of orders of Tribunal and of reasons ......................................................40
Division 3—Applications and references to the Tribunal 41
Subdivision A—General provisions about applications and references to the
Tribunal 41
63 Form, content and filing of application or reference to the Tribunal..........................41
64 Giving application or reference to other parties .........................................................41
65 Advertising of applications and references ................................................................41
66 Hearing of application or reference............................................................................42
Subdivision B—Provisions about particular kinds of applications and references
to the Tribunal 43
67 Matters to be included in application under subsection 47(3) of the Act ...................43
68 Matters to be included in application under paragraph 59(3)(b) of the Act ...............43
69 Matters to be included in application under subsection 70(3) of the Act ...................44
70 Matters to be included in application under subsection 107(3) of the Act .................44
71 Matters to be included in application under paragraph 108(1)(a) of the Act..............44
72 Matters to be included in application under paragraph 113P(4)(b) of the Act ...........45
73 Application under paragraph 113R(2)(b) of the Act ..................................................45
74 Matters to be included in application under paragraph 113S(4)(b) of the Act ...........46
75 Matters to be included in references under paragraph 113V(2)(c) of the Act ............47
76 Matters to be included in references under paragraph 113X(2)(b) of the Act ............47
77 Matters to be included in applications under subsection 113ZB(1) of the Act...........47
78 Matters to be included in application under subsection 135ZZM(1) of the Act .........48
79 Matters to be included in application under subsection 135ZZN(3) of the Act..........48
80 Matters to be included in references under paragraph 135ZZT(1A)(c) of the
Act .............................................................................................................................49
81 Matters to be included in references under paragraph 135ZZU(2)(b) of the
Act .............................................................................................................................49
82 Matters to be included in application under subsection 135ZZWA(1) of the
Act .............................................................................................................................49
83 Matters to be included in application under subsection 135ZZZS(1) of the Act........50
84 Matters to be included in application under subsection 152(2) of the Act .................50
85 Matters to be included in application under subsection 152(12) of the Act ...............51
86 Matters to be included in application under subsection 153F(1) of the Act ...............51
87 Matters to be included in application under subsection 153G(1) of the Act ..............51
88 Matters to be included in application under subsection 153K(1) of the Act ..............51
89 Matters to be included in reference under section 154 of the Act ..............................52
90 Reference of existing licence scheme under section 155 of the Act...........................52
91 Reference under section 156 of the Act .....................................................................53
92 Application for leave under subsection 156(2) of the Act to refer licence
scheme to the Tribunal...............................................................................................54
93 Application under subsection 157(1) of the Act.........................................................55
94 Application under subsection 157(2) of the Act.........................................................55
95 Application under subsection 157(3) of the Act.........................................................56
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96 Applications under subsection 157(4) of the Act .......................................................56
97 Application under subsection 183(5) of the Act.........................................................57
98 Matters to be included in applications under subsection 183F(1) of the Act .............58
Subdivision C—Applications ancillary to Tribunal proceedings 58
99 Application to be made a party to a Tribunal proceeding ..........................................58
100 Application for order about matter related to Tribunal proceeding............................59
101 Consenting to order about matter related to Tribunal proceeding ..............................59
102 When notice or copy of application under section 100 need not be given .................59
103 Dealing with application under section 100 ...............................................................60
Division 4—Ancillary matters 61
Subdivision A—General 61
104 Consolidating applications and references .................................................................61
105 Directions as to procedure..........................................................................................61
106 Request as to constitution of Tribunal........................................................................62
107 Withdrawal of application or reference......................................................................62
108 Amendment of documents .........................................................................................63
Subdivision B—References of questions of law to Federal Court of Australia 63
109 Request for reference of question of law to Federal Court of Australia .....................63
110 Fixing new date for hearing if party requests reference of question of law to
Federal Court of Australia..........................................................................................64
111 Adjournment of Tribunal proceeding pending decision of Federal Court of
Australia.....................................................................................................................64
112 Tribunal proceeding after determination of question of law by Federal Court
of Australia ................................................................................................................64
113 Prescribed period for purposes of subsection 161(2) of the Act.................................65
114 Prescribed period for purposes of subsection 161(3) of the Act.................................65
115 Suspension of orders of Tribunal pending reference of question of law to
Federal Court of Australia..........................................................................................65
116 Modified operation of Part VI of the Act in relation to suspended Tribunal
orders .........................................................................................................................65
Division 5—Miscellaneous 66
117 Parties to Tribunal proceeding are also parties to ancillary application
connected with Tribunal proceeding ..........................................................................66
118 Extension of time .......................................................................................................66
119 Fees for copies ...........................................................................................................66
120 Payment of witnesses’ fees and expenses ..................................................................66
121 Summons ...................................................................................................................67
122 Power to exempt from procedural requirements ........................................................67
123 Effect of non-compliance with this Part.....................................................................67
Part 12—The Crown 68 124 Information on use of copyright material for services of the Crown—
subsection 183(4) of the Act ......................................................................................68
Part 13—Extension or restriction on operation of Act 69 125 International organizations to which the Act applies—subsection 186(1) of
the Act........................................................................................................................69
Part 14—Moral rights 70 126 Other information and particulars for notices under section 195AT of the Act .........70
Part 15—Miscellaneous 72 127 Period for keeping declarations relating to copying in library or archives—
subparagraph 203A(1)(b)(iii) and paragraph 203G(b) of the Act ..............................72
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Part 16—Transitional matters 73 128 Directions about information relating to objection to import of copyright
material ......................................................................................................................73
129 Objection to import of copyright material into Norfolk Island ..................................73
130 Limitation on remedies available against carriage service providers .........................73
131 Things done under the Copyright Tribunal (Procedure) Regulations 1969 ...............74
Schedule 1—Form of notice near machine for copying works,
published editions or audio-visual items 75
Part 1—Text of notice near machine for copying works or published
editions 75
Part 2—Text of notice near machine for copying works, published editions
or audio-visual items 76
Part 3—Text of notice near machine for copying audio-visual items 77
Schedule 2—Forms for Part 6 78
Part 1—Form of notification relating to cached copyright material 78
Part 2—Form of notice relating to copyright material found to be
infringing by Australian court 80
Part 3—Form of notice by owner, licensee or agent of claimed infringement
by storage of copyright material 81
Part 4—Form of counter-notice in response to notice by copyright owner,
licensee or agent of claimed infringement 83
Part 5—Form of counter-notice in response to takedown of copyright
material without notice from copyright owner, licensee or agent 85
Part 6—Form of notice by owner, licensee or agent of claimed infringement
by reference to infringing copyright material 87
Schedule 3—Forms of summons 89
Part 1—Summons to witness 89
Part 2—Summons to produce documents or articles 90
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Part 1—Preliminary
1 Name
This instrument is the Copyright Regulations 2017.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table. Any
other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. Sections 1 to 3 and
anything in this
instrument not
elsewhere covered by
this table
The day after this instrument is registered. 19 December 2017
2. Section 4 At the same time as Schedule 1 to the Copyright
Amendment (Disability Access and Other Measures)
Act 2017 commences.
22 December 2017
3. Parts 2 to 6 At the same time as Schedule 1 to the Copyright
Amendment (Disability Access and Other Measures)
Act 2017 commences.
22 December 2017
4. Part 7 1 April 2018. 1 April 2018
5. Parts 8 to 16 At the same time as Schedule 1 to the Copyright
Amendment (Disability Access and Other Measures)
Act 2017 commences.
22 December 2017
6. Schedules 1 to 3 At the same time as Schedule 1 to the Copyright
Amendment (Disability Access and Other Measures)
Act 2017 commences.
22 December 2017
Note: This table relates only to the provisions of this instrument as originally made. It will
not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument.
Information may be inserted in this column, or information in it may be edited, in
any published version of this instrument.
3 Authority
This instrument is made under the Copyright Act 1968.
4 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the
following:
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(a) adaptation;
(b) artistic work;
(c) Australia;
(d) body administering;
(e) carriage service provider;
(f) cinematograph film;
(g) collecting society;
(h) copy;
(i) copyright material;
(j) device;
(k) dramatic work;
(l) educational institution;
(m) eligible rights holder;
(n) government;
(o) government copy;
(p) infringing copy;
(q) licensed copying or communicating;
(r) literary work;
(s) manuscript;
(t) record;
(u) Registrar;
(v) rules;
(w) sound broadcast;
(x) sound recording;
(y) technological protection measure;
(z) television broadcast;
(za) the Tribunal;
(zb) to the public;
(zc) work;
(zd) works collecting society.
In this instrument:
Act means the Copyright Act 1968.
address for service of a person or body means an address in Australia at which,
or an electronic address through which, documents may be served on the person
or body.
Australian-based: a person is Australian-based if the person:
(a) resides or carries on business in Australia; or
(b) if the person is a corporation—has a registered office in Australia.
caching has the same meaning as in section 116AB of the Act.
civil action means a proceeding of a civil nature between parties, including a
counterclaim.
Note: This is essentially the same as the definition of action in Part V of the Act.
designated representative of a carriage service provider means the person
designated under section 19 to receive notifications and notices under Part 6 for
the carriage service provider.
distributable amount has the meaning given by subsection 17(3).
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entitled person has the meaning given by subsection 17(3).
equitable remuneration has the meaning given by subsection 17(3).
infringement notice means an infringement notice given under section 43.
infringement officer means:
(a) a member of the Australian Federal Police (as defined in the Australian
Federal Police Act 1979); or
(b) a member of the police force (however described) of a State or Territory.
infringing article, in relation to an offence of strict liability against a provision
of Division 5 of Part V of the Act (except subsections 132AQ(5), 132AR(5) and
132AS(5)), means an article that is alleged:
(a) to be an infringing copy of a work or other subject-matter; and
(b) to have been involved in the commission of the offence.
infringing device, in relation to an offence of strict liability against a provision
of Division 5 of Part V of the Act (except subsections 132AQ(5), 132AR(5) and
132AS(5)), means a device that is alleged:
(a) to have been made to be used for making an infringing copy of a work or
other subject-matter; and
(b) to have been involved in the commission of the offence.
party has a meaning affected by section 117.
potential share has the meaning given by subsection 17(3).
President means the President of the Tribunal.
reference of a matter to the Tribunal under the Act includes referral of the matter
to the Tribunal under the Act.
relevant chief executive means the Commissioner (or head, however described)
of the Australian Federal Police or of the police force (however described) of a
State or Territory.
relevant copyright owner has the meaning given by subsection 17(3).
relevant file number, in relation to a Tribunal proceeding, means the file number
given by the Registrar to the proceeding.
sealed means sealed with the seal of the Tribunal.
subject to an infringement notice under Part 9 has the meaning given by
section 42.
system or network of a carriage service provider means a system or network
controlled or operated by or for the carriage service provider.
Tribunal proceeding means a proceeding before the Tribunal.
user, in relation to copyright material stored on a carriage service provider’s
system or network, means the person who directed the carriage service provider
to store the copyright material on its system or network.
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Part 2—Copyright in original works
5 Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 39A(b) of the Act
For the purposes of paragraph 39A(b) of the Act:
(a) the prescribed dimensions of a notice are at least 297 millimetres long and
at least 210 millimetres wide; and
(b) the prescribed form of notice is a form containing the text in Part 1 or 2 of
Schedule 1.
6 Notice requirements for communication of electronic reproduction by library
or archives—subparagraph 49(7A)(c)(ii) of the Act
For the purposes of subparagraph 49(7A)(c)(ii) of the Act, the following matters
are prescribed:
(a) that further dealings with the reproduction may infringe copyright;
(b) that Division 3 of Part III of the Act affects whether further dealings would
infringe copyright.
7 Notice of intended publication of unpublished work kept in public library—
paragraphs 52(1)(b) and (2)(b) of the Act
(1) For the purposes of paragraphs 52(1)(b) and (2)(b) of the Act, the prescribed
notice of the intended publication of the new work is a notice that:
(a) is published in accordance with subsection (2) of this section; and
(b) sets out the matters described in subsection (3) of this section.
(2) The notice is to be published in the Gazette at least 2 months before the
publication (or subsequent publication) of the new work.
(3) The notice is to set out:
(a) the name of the person (the intending publisher) intending to publish the
new work and how the intending publisher may be contacted; and
(b) the intending publisher’s intention to publish the new work; and
(c) the title (if any) of the old work and, if that title does not enable that work
to be identified, a description of that work that enables that work to be
identified; and
(d) the time, or an estimate of the time, when the old work was made or the
period, or an estimate of the period, over which the making of the old work
extended; and
(e) the name of the author of the old work, if that name is known to the
intending publisher; and
(f) the name and address of the library or other place in which a copy, or the
manuscript, of the old work is kept; and
(g) the name of the person from whom the copy or manuscript of the old work
was acquired for the purposes of that library or other place, or a statement
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of the fact that the intending publisher does not know the name of that
person; and
(h) that a person claiming to be the owner of the copyright in the old work may
give notice of his or her claim to the intending publisher.
8 Countries in relation to which Division 6 of Part III of the Act applies—
subparagraphs 55(1)(a)(iii) and (iv) and 59(1)(d)(iii) and (iv) of the
Act
For the purposes of subparagraphs 55(1)(a)(iii) and (iv) and 59(1)(d)(iii) and (iv)
of the Act, Division 6 of Part III of the Act applies to a country that:
(a) is a party to any of the following:
(i) the International Convention for the Protection of Literary and Artistic
Works done at Berne on 9 September 1886 as revised from time to
time;
(ii) the Universal Copyright Convention done at Geneva on 6 September
1952 as revised from time to time;
(iii) the WIPO Copyright Treaty done at Geneva on 20 December 1996 as
revised from time to time; or
(b) is a member of the World Trade Organization.
Note 1: Information as to which countries are parties to the International Convention for the
Protection of Literary and Artistic Works could in 2017 be viewed on the World
Intellectual Property Organization’s website (https://www.wipo.int).
Note 2: Information as to which countries are parties to the Universal Copyright Convention
could in 2017 be viewed on the United Nations Educational, Scientific and Cultural
Organization’s website (http://www.unesco.org).
Note 3: Information as to which countries are parties to the WIPO Copyright Treaty could in
2017 be viewed on the World Intellectual Property Organization’s website
(https://www.wipo.int).
Note 4: Information as to which countries are members of the World Trade Organization could
in 2017 be viewed on the World Intellectual Property Organization’s website
(https://www.wto.org).
9 Notice of intended making of record of musical work
(1) For the purposes of paragraph 55(1)(b) of the Act, the prescribed notice of the
intended making of a record of a musical work is a written notice given in
accordance with this section by the person (the intending maker) intending to
make the record.
How notice is given
(2) The notice must be given:
(a) by service of the notice on:
(i) the owner of the copyright in the work, if the owner is
Australian-based; or
(ii) an Australian-based person who has been appointed by the owner of
that copyright as the owner’s agent for the purpose of receiving
notices under section 55 of the Act; or
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(b) if the intending maker does not know the name, or an address for service,
of the owner or of an agent described in subparagraph (a)(ii)—by:
(i) publication of the notice in the Gazette; and
(ii) if the notice published does not include the information described in
subsection (4)—giving that information to the owner or such an agent
on application made by the owner or agent.
Content of notice
(3) The notice must set out:
(a) that a person specified in the notice intends to make in Australia a record of
the musical work or of part of the musical work; and
(b) how the intending maker may be contacted; and
(c) the title (if any) of the work and, if that title does not enable the work to be
identified, a description of the work that enables the work to be identified;
and
(d) a statement of the fact (if true) that the record is to comprise a performance
of the work in which words are sung, or are spoken incidentally to or in
association with the music; and
(e) the name of the author of the work, if that is known to the intending maker;
and
(f) how the information described in subsection (4) may be obtained from a
place in Australia if the notice is published as described in paragraph (2)(b)
and does not contain that information.
(4) The notice must, if given as described in paragraph (2)(a), or may, if published as
described in paragraph (2)(b), set out:
(a) any details known to the intending maker that are needed to enable the
owner of the copyright to identify a previous record of the musical work
referred to in paragraph 55(1)(a) of the Act; and
(b) whether the record that is intended to be made is to be a disc, tape, paper or
other device; and
(c) the trade description intended to be placed on the label of the record and
the proposed trade prefix and catalogue number of the record; and
(d) the date on which it is proposed to offer or expose the record for sale to the
public in Australia; and
(e) the proposed selling price to the public of the record; and
(f) the amount of the royalty that the intending maker estimates will be
payable to the owner of the copyright for the record.
10 Prescribed period relating to making of records of musical works—
subsection 55(3) of the Act
For the purpose of subsection 55(3) of the Act, one month is prescribed.
11 Inquiries relating to previous records of musical works—section 61 of the Act
(1) For the purposes of section 61 of the Act, this section prescribes:
(a) how inquiries relating to the previous making or import of a record of a
musical work are to be made; and
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(b) the period for receiving an answer to inquiries.
Who is to be asked
(2) The inquiries must be made of:
(a) the owner of the copyright in the musical work; and
(b) if words consisting or forming part of a literary or dramatic work were
sung or spoken in the musical work, the owner of the copyright in the
literary or dramatic work.
How inquiries are to be made
(3) Inquiries must be made in writing.
(4) Inquiries of an Australian-based owner of copyright must be given to the owner.
(5) However:
(a) if the owner has appointed an Australian-based person as the owner’s agent
for the purpose of answering inquiries made under section 61 of the Act,
the inquiries may be given to the agent; and
(b) if a person wishing to make inquiries of an owner does not know the name,
or an address for service, of the owner or of such an agent, the inquiries
must be published in the Gazette.
Content of inquiries
(6) The inquiries must set out:
(a) the name of the person making the inquiries and how the person may be
contacted; and
(b) the title (if any) of the musical, literary or dramatic work concerned and, if
the title does not enable the work to be identified, a description of the work
that enables the work to be identified; and
(c) the name of the author, if the person making the inquiries knows it; and
(d) if the inquiries relate to a particular record—sufficient information to
enable the record to be identified; and
(e) an inquiry whether a record of the musical work, or of the musical work in
which words consisting or forming part of the literary or dramatic work
were sung or spoken, has previously been made in, or imported into,
Australia:
(i) by, or with the licence of, the owner of the copyright in the musical
work or in the literary or dramatic work; or
(ii) for the purpose of retail sale; or
(iii) for use in making other records for the purpose of retail sale.
Period for answering inquiries
(7) The period for receiving an answer to inquiries is 10 days after:
(a) the inquiries were given (except by post) or published; or
(b) if the inquiries were given by post—the day the inquiries would be
delivered in the ordinary course of post.
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12 Circumstances in which design is taken to be applied industrially—section 77
of the Act
(1) For the purposes of section 77 of the Act, a design is taken to be applied
industrially if it is applied:
(a) to more than 50 articles; or
(b) to one or more articles (other than hand-made articles) manufactured in
lengths or pieces.
(2) For the purposes of paragraph (1)(a), any 2 or more articles are taken to
constitute a single article if:
(a) they are of the same general character; and
(b) they are intended for use together; and
(c) the same design, or substantially the same design, is applied to them.
(3) For the purposes of this section, a design is taken to be applied to an article if:
(a) the design is applied to the article by a process (whether a process of
printing or embossing or another process); or
(b) the design is reproduced on or in the article in the course of the production
of the article.
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13 Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 104B(b) of the Act
For the purposes of paragraph 104B(b) of the Act:
(a) the prescribed dimensions of a notice are at least 297 millimetres long and
at least 210 millimetres wide; and
(b) the prescribed form of notice is a form containing the text:
(i) in Part 1 or 2 of Schedule 1, if the copy is of a published edition of a
work; or
(ii) in Part 2 or 3 of Schedule 1, if the copy is of an audio-visual item.
14 Prescribed period relating to public performance of recordings first
published outside Australia—paragraph 108(1)(b) of the Act
For the purposes of paragraph 108(1)(b) of the Act, the period is 7 weeks.
15 Prescribed period relating to broadcasts of recordings not published in
Australia—subsection 109(3) of the Act
For the purposes of subsection 109(3) of the Act, the period is 7 weeks.
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16 Bodies administering key cultural institutions—paragraph 113L(b) of the Act
For the purposes of paragraph 113L(b) of the Act, the following bodies are
prescribed:
(a) the Australian Broadcasting Corporation;
(b) the Australian National University;
(c) the Special Broadcasting Service Corporation.
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Part 5—Collecting societies
17 Rules of a collecting society—paragraphs 113W(d), 135ZZT(3)(d),
135ZZZO(7)(d) and 153F(6)(f) of the Act
(1) For the purposes of paragraphs 113W(d), 135ZZT(3)(d) and 135ZZZO(7)(d) of
the Act, the following provisions of rules of a collecting society are prescribed:
(a) that accounting periods must be determined, in accordance with the rules,
by the collecting society for accounting purposes and that no accounting
period may extend beyond 30 June in any year;
(b) that a consistent practice must be followed with regard to attributing the
receipts and expenditure of the collecting society to a particular accounting
period;
(c) that the collecting society must exercise reasonable diligence in the
collection of amounts of equitable remuneration, having regard to the
expenses likely to be incurred in the collection of such amounts;
(d) that the total amount of any gifts for cultural or benevolent purposes made
by the collecting society in respect of any accounting period must not
exceed such percentage of the total amount of equitable remuneration
received by the society for that accounting period as is specified in the
rules;
(e) that the administrative costs and other outgoings of the collecting society
paid by the society out of the amounts of equitable remuneration collected
by it must be reasonable;
(f) that the distributable amount relating to each accounting period of the
collecting society must be allocated in accordance with a scheme of
allocation (the scheme) that:
(i) is determined in accordance with the rules; and
(ii) includes criteria for allocation that are specified in the rules; and
(iii) provides for the allocation of potential shares in the distributable
amount to entitled persons;
(g) that, in relation to each potential share in the distributable amount allocated
in accordance with the scheme of the collecting society to an entitled
person who is a member of the society at the time of allocation, an amount
representing the share must be paid, as soon as is reasonably possible after
the allocation, to the entitled person;
(h) that, in relation to each potential share in the distributable amount allocated
in accordance with the scheme of the collecting society to an entitled
person who is not a member of the society at the time of allocation, an
amount representing the share:
(i) must be paid, as soon as is reasonably possible after the allocation,
into a trust fund operated by the society for purposes referred to in
paragraph (i); and
(ii) subject to subparagraph (iii), must be held in that fund in accordance
with the rules of the society; and
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(iii) if the entitled person becomes a member while the amount is held in
the trust fund—must be distributed to the person as soon as is
reasonably possible after he or she becomes a member;
(i) that a trust fund must be operated by the collecting society for purposes
that include the holding on trust, for any entitled person who is not, and
whose agent is not, a member of the society, of any potential share
allocated to that person in accordance with the scheme;
(j) that any part of a distributable amount, relating to an accounting period,
that cannot for any reason be distributed must be held on trust in the trust
fund referred to in paragraph (i) until distribution becomes possible or until
the end of a specified period of not less than 4 years, whichever happens
first;
(k) that a member of the collecting society must, on request, be given
reasonable access to the records of the society, whether or not the member
is an entitled person.
(2) For the purposes of paragraph 153F(6)(f) of the Act, the rules of an applicant to
be declared a collecting society are required to include provisions with the
effects described in paragraphs (1)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k)
of this section.
(3) In this instrument:
distributable amount, in relation to an accounting period of a collecting society,
means the amount of equitable remuneration received by the society that is:
(a) attributable to that period (in accordance with the practice of the society);
or
(b) otherwise available for distribution;
after the payment or reservation, out of that amount, of:
(c) amounts attributable to that period that are paid or held, in accordance with
the rules of the society, for:
(i) gifts made by the society; and
(ii) administrative costs and other outgoings of the society; and
(d) amounts to be carried forward, in accordance with the rules of the society,
to the next accounting period.
entitled person, in relation to a collecting society declared under a section of the
Act mentioned in column 1 of an item of the following table, means:
(a) a member of the collecting society who is:
(i) a person described in column 2 of that item; or
(ii) the agent of a person described in column 2 of that item; or
(b) a person described in column 2 of that item who is not a member of the
collecting society and whose agent, if any, is not a member.
Entitled person
Column 1
Section of
the Act
Column 2
Person
1 113V Eligible rights holder
2 135ZZT Relevant copyright owner (as defined in Part VC of the Act)
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Entitled person
Column 1
Section of
the Act
Column 2
Person
3 135ZZZO Relevant copyright owner (as defined in Part VD of the Act)
4 153F Owner of copyright in copyright material as defined in Division 2 of Part VII of
the Act
equitable remuneration, in relation to a collecting society declared under a
section of the Act mentioned in column 1 of an item of the following table, has
the meaning given by column 2 of the item.
Equitable remuneration
Column 1
Section of
the Act
Column 2
Equitable remuneration
1 113V Equitable remuneration payable under remuneration notices given to the society
under section 113Q of the Act
2 135ZZT Equitable remuneration payable by retransmitters under section 135ZZM of the
Act
3 135ZZZO Equitable remuneration payable by satellite BSA licensees under
section 135ZZZK of the Act
4 153F Equitable remuneration payable by governments under section 183A of the Act
potential share means a share that is:
(a) a share in a distributable amount; and
(b) represented by an amount that will be distributed in the circumstances
referred to in paragraph (1)(g) or (h).
relevant copyright owner:
(a) in relation to a collecting society declared under section 135ZZT of the
Act—has the same meaning as in Part VC of the Act; and
(b) in relation to a collecting society declared under section 135ZZZO of the
Act—has the same meaning as in Part VD of the Act.
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Part 6—Limitation on remedies available against carriage
service providers
Division 1—Preliminary
18 Industry code—section 116AB of the Act
For the purposes of subparagraph (a)(i) of the definition of industry code in
section 116AB of the Act, the following requirements are prescribed for an
industry code that does not deal solely with caching:
(a) the industry code must be developed through an open voluntary process by
a broad consensus of:
(i) owners and exclusive licensees of copyright; and
(ii) carriage service providers;
(b) the industry code must include a provision to the effect that standard
technical measures are technical measures that:
(i) are used to protect and identify copyright material; and
(ii) are accepted under the industry code or developed in accordance with
a process set out in the industry code; and
(iii) are available on non-discriminatory terms; and
(iv) do not impose substantial costs on carriage service providers or
substantial burdens on their systems or networks.
19 Designated representative
(1) A carriage service provider must designate a person to be the representative of
the carriage service provider to receive for the carriage service provider
notifications, notices and counter-notices given for the purposes of a condition in
subsection 116AH(1) of the Act.
(2) The carriage service provider must publish a notice in a reasonably prominent
location on its website setting out the following information:
(a) the title of the position of the designated representative;
(b) sufficient information to allow a person to contact the designated
representative.
20 Requirements for notifications and notices
A notification, notice or counter-notice given for the purposes of a condition in
subsection 116AH(1) of the Act must:
(a) be in accordance with the form prescribed by this Part; and
(b) be given by post or electronic communication to the carriage service
provider’s designated representative.
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Division 2—Conditions—cached copyright material
21 Notification relating to Category B activity
For the purposes of condition 3 of item 3 of the table in subsection 116AH(1) of
the Act, the form of notification set out in Part 1 of Schedule 2 is prescribed.
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Division 3—Conditions—copyright material found to be infringing
by an Australian court
22 Notice in relation to Category C and D activities
For the purposes of condition 2 of item 4 (Category C activities), and condition 2
of item 5 (Category D activities), of the table in subsection 116AH(1) of the Act,
the form of notice set out in Part 2 of Schedule 2 is prescribed.
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Division 4—Conditions—takedown of copyright material following
notice
23 Application of this Division
For the purposes of condition 3 of item 4 (Category C activities) of the table in
subsection 116AH(1) of the Act, this Division prescribes the procedure to be
followed in relation to copyright material residing on a carriage service
provider’s system or network if:
(a) the owner or exclusive licensee of the copyright in the material, or an agent
of the owner or licensee, reasonably believes that the material is infringing;
and
(b) the owner, licensee or agent wishes the carriage service provider to remove
or disable access to the material.
24 Notice of claimed infringement
(1) The owner or exclusive licensee of the copyright in the copyright material, or an
agent of the owner or licensee, may give a notice of claimed infringement in
relation to the copyright material to the carriage service provider’s designated
representative.
(2) The notice of claimed infringement must be in accordance with the form set out
in Part 3 of Schedule 2.
25 Takedown procedure
(1) If a carriage service provider receives a notice of claimed infringement under
section 24, the carriage service provider must expeditiously remove, or disable
access to, the copyright material specified in the notice and residing on its system
or network.
(2) As soon as practicable after removing, or disabling access to, copyright material
under subsection (1), the carriage service provider must send to the user who
directed the carriage service provider to store the copyright material on its
system or network:
(a) a copy of the notice of claimed infringement; and
(b) a notice stating:
(i) that the copyright material has been removed, or access to it has been
disabled; and
(ii) that the user may, within 3 months after receiving the copy of the
notice of claimed infringement, give a counter-notice in accordance
with section 26 of the Copyright Regulations 2017 to the carriage
service provider’s designated representative disputing the claims in
the notice of claimed infringement.
Note: The carriage service provider need not take any further action in relation to the
copyright material unless the carriage service provider receives a counter-notice from
the user under section 26.
(3) A carriage service provider is taken to have complied with subsection (2) if:
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(a) the carriage service provider has taken reasonable steps to identify the user
but has been unable to do so; or
(b) the carriage service provider sends the documents to the user as required by
subsection (2) but they are not received by the user.
26 Counter-notice
(1) If a user receives a copy of a notice of claimed infringement from a carriage
service provider under section 25, the user may give a counter-notice to the
carriage service provider’s designated representative disputing the claims set out
in the notice.
Note: If the user does not give a counter-notice to the carriage service provider’s designated
representative, the carriage service provider is not required to take any further action in
relation to the notice of claimed infringement.
(2) The counter-notice must:
(a) be in accordance with the form set out in Part 4 of Schedule 2; and
(b) be given within 3 months after the user receives the copy of the notice of
claimed infringement.
27 Copy of counter-notice to be sent to copyright owner
(1) If a carriage service provider receives a counter-notice from a user under
section 26 in response to a notice of claimed infringement, the carriage service
provider must, as soon as practicable after receiving the counter-notice, send to
the copyright owner, exclusive licensee or agent who gave the notice of claimed
infringement:
(a) a copy of the counter-notice; and
(b) a notice stating that if the owner, licensee or agent does not, within 10
business days after the day the notice was sent, bring an action seeking a
court order to restrain the activity that is claimed to be infringing, the
carriage service provider will restore, or enable access to, the copyright
material on its system or network.
(2) If the counter-notice is from a user who is an individual, the copy of the
counter-notice and the notice under paragraph (1)(b) sent to the copyright owner,
licensee or agent under subsection (1) may disclose information that could
identify the user if the disclosure is consistent with the Telecommunications Act
1997 and the Privacy Act 1988.
28 Restoring copyright material
(1) A carriage service provider must comply with this section if:
(a) the carriage service provider sends a copy of a counter-notice given by a
user and a notice to the copyright owner, exclusive licensee or agent under
section 27 in relation to a notice of claimed infringement given by the
owner, licensee or agent; and
(b) either:
(i) the owner, licensee or agent does not, within 10 business days after
those documents were sent, notify the carriage service provider’s
designated representative that the owner, licensee or agent has
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brought an action seeking a court order to restrain the activity that is
claimed to be infringing; or
(ii) the carriage service provider is notified that an action for infringement
of the copyright in the copyright material has been discontinued or
was unsuccessful.
(2) The carriage service provider must restore, or enable access to, the copyright
material on its system or network:
(a) if the carriage service provider is not notified by the owner, licensee or
agent of the matter mentioned in subparagraph (1)(b)(i) within the period
mentioned in that subparagraph—as soon as practicable after the end of
that period; or
(b) if the carriage service provider is notified of the matter mentioned in
subparagraph (1)(b)(ii)—as soon as practicable after receiving the
notification.
Note: The carriage service provider is not required to have regard to a notification, from the
owner, licensee or agent, of a kind mentioned in subparagraph (1)(b)(i) if it is received
more than 10 business days after the documents were sent to the owner, licensee or
agent under section 27.
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Division 5—Conditions—procedure following takedown of copyright
material without notice from copyright owner, exclusive
licensee or agent
29 Application of this Division
(1) For the purposes of condition 3 of item 4 (Category C activities) of the table in
subsection 116AH(1) of the Act, this Division prescribes the procedure to be
followed in relation to copyright material residing on a carriage service
provider’s system or network if the carriage service provider becomes aware
(except as described in subsection (2)):
(a) that the material is infringing; or
(b) of facts or circumstances that make it apparent that the material is likely to
be infringing.
Note: The carriage service provider must act expeditiously to remove or disable access to
copyright material residing on its system or network if the carriage service provider
becomes aware of a matter mentioned in paragraph (1)(a) or (b) in relation to the
material—see condition 2A of item 4 of the table in subsection 116AH(1) of the Act.
(2) This Division does not apply if the carriage service provider becomes aware of a
matter mentioned in paragraph (1)(a) or (b) as a result of receiving a notice of
claimed infringement under Division 4, or any other notification, from the owner
or exclusive licensee of the copyright in the material or from an agent of the
owner or licensee.
Note: The procedure prescribed in Division 4 applies if the carriage service provider receives
a notice of claimed infringement in relation to the copyright material from the owner or
exclusive licensee of the copyright in the material or from an agent of the owner or
licensee.
30 Notice to user
(1) As soon as practicable after removing, or disabling access to, the copyright
material under condition 2A of item 4 of the table in subsection 116AH(1) of the
Act, the carriage service provider must send to the user who directed the carriage
service provider to store the copyright material on its system or network a notice
stating:
(a) that the copyright material has been removed, or access to it has been
disabled; and
(b) the grounds for removing, or disabling access to, the copyright material;
and
(c) that the user may, within 3 months after receiving the notice, give a
counter-notice in accordance with section 31 of the Copyright
Regulations 2017 to the carriage service provider’s designated
representative:
(i) disputing the grounds for removing, or disabling access to, the
copyright material; and
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(ii) requesting the carriage service provider to restore, or enable access to,
the copyright material on the carriage service provider’s system or
network.
(2) A carriage service provider is taken to have complied with subsection (1) if:
(a) the carriage service provider has taken reasonable steps to identify the user
but has been unable to do so; or
(b) the carriage service provider sends the notice to the user as required by
subsection (1) but it is not received by the user.
31 Counter-notice
(1) If a user receives a notice from a carriage service provider under section 30, the
user may give a counter-notice to the carriage service provider’s designated
representative:
(a) disputing the grounds for removing, or disabling access to, the copyright
material; and
(b) requesting the carriage service provider to restore, or enable access to, the
copyright material on the carriage service provider’s system or network.
Note: If the user does not give a counter-notice to the carriage service provider’s designated
representative, the carriage service provider is not required to take any further action in
relation to the copyright material.
(2) The counter-notice must:
(a) be in accordance with the form set out in Part 5 of Schedule 2; and
(b) be given within 3 months after the user receives the notice under
section 30.
32 Restoring copyright material
If:
(a) a carriage service provider receives a counter-notice in relation to
copyright material under section 31; and
(b) on the basis of the information and statements in the counter-notice, the
carriage service provider is satisfied that the copyright material is not, or is
not likely to be, infringing;
the carriage service provider must, as soon as practicable after receiving the
counter-notice, restore, or enable access to, the copyright material on its system
or network.
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Division 6—Conditions—takedown of reference to copyright material
following notice from copyright owner, exclusive licensee or
agent
33 Application of this Division
For the purposes of condition 3 of item 5 (Category D activities) of the table in
subsection 116AH(1) of the Act, this Division prescribes the procedure to be
followed in relation to a reference to copyright material that is provided by a
carriage service provider on its system or network if:
(a) the owner or exclusive licensee of the copyright in the material, or an agent
of the owner or licensee, reasonably believes that the material is infringing;
and
(b) the owner, licensee or agent wishes the carriage service provider to remove
or disable access to the reference to the material.
34 Notice of claimed infringement
(1) The owner or exclusive licensee of the copyright in the copyright material to
which the reference is provided, or an agent of the owner or licensee, may give a
notice of claimed infringement to the carriage service provider’s designated
representative.
(2) The notice of claimed infringement must be in accordance with the form set out
in Part 6 of Schedule 2.
35 Takedown procedure
If a carriage service provider receives a notice of claimed infringement under
section 34, the carriage service provider must expeditiously remove, or disable
access to, the reference to the copyright material specified in the notice and
provided by the carriage service provider on its system or network.
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Division 7—Civil remedies
36 Authority
This Division has effect for the purposes of section 116AJ of the Act.
37 Action taken to comply with a condition
A carriage service provider is not liable for damages or any other civil remedy as
a result of action taken in good faith by the carriage service provider to comply
with any of the following conditions:
(a) condition 3 of item 3 (Category B activities) of the table in
subsection 116AH(1) of the Act;
(b) condition 2, 2A or 3 of item 4 (Category C activities) of the table in
subsection 116AH(1) of the Act;
(c) condition 2, 2A or 3 of item 5 (Category D activities) of the table in
subsection 116AH(1) of the Act.
Note: See also Divisions 2, 3, 4, 5 and 6 of this Part in relation to those conditions.
38 Failure to restore or enable access to copyright material
(1) If a carriage service provider fails to restore, or enable access to, the copyright
material on its system or network as required by section 28 or 32, the carriage
service provider may be liable for damages or any other civil remedy in a civil
action taken by a user or third party affected by the failure.
(2) However, the carriage service provider is not liable for damages or any other
civil remedy in an action taken by the owner or exclusive licensee of the
copyright in the copyright material because of the carriage service provider’s
failure to restore, or enable access to, the copyright material in accordance with
section 28 or 32.
39 Misrepresentations in notifications and notices
(1) A person who gives a notification, notice or counter-notice for the purposes of a
condition in subsection 116AH(1) of the Act, must not knowingly make a
material misrepresentation in that notification, notice or counter-notice.
(2) For the purposes of subsection (1), a person knowingly makes a material
misrepresentation in a notification, notice or counter-notice if the person does not
take reasonable steps to ensure the accuracy of the information and statements
included in the notification, notice or counter-notice. This does not limit the
circumstances in which a person knowingly makes a material misrepresentation
for the purposes of that subsection.
(3) A person who suffers loss or damage because of a material misrepresentation
made knowingly in a notification, notice or counter-notice may bring an action
against the person who gave the notification, notice or counter-notice.
(4) If the court in which the action is brought is satisfied that the person bringing the
action suffered loss or damage because of the material misrepresentation, the
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court may grant the person whatever civil remedies for the loss or damage the
court thinks fit.
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Part 7—Technological protection measures
40 Non-infringing acts enabled by circumvention of access control technological
protection measures that are not actionable—paragraphs
116AN(9)(c) and 132APC(9)(c) of the Act
(1) For the purposes of paragraphs 116AN(9)(c) and 132APC(9)(c) of the Act, the
doing of an act by a person that does not infringe copyright because of any of the
following provisions of the Act is prescribed:
(a) section 47D (reproducing computer programs to make interoperable
products), so far as it relates to making an article described in
paragraph 47D(1)(b);
(b) subsection 49(6), (7) or (7B) (reproducing and communicating works by
libraries and archives for users);
(c) subsection 50(4) (reproducing and communicating works by libraries or
archives for other libraries or archives);
(d) section 107 (making of a copy of the sound recording for purpose of
broadcasting);
(e) section 110A (copying and communicating unpublished sound recordings
and cinematograph films in libraries or archives);
(f) Division 3 (libraries and archives) of Part IVA;
(g) Division 4 (educational institutions—statutory licence) of Part IVA.
(2) For the purposes of paragraphs 116AN(9)(c) and 132APC(9)(c) of the Act, the
following are also prescribed:
(a) the making by a person of a broadcast of a published sound recording that
does not infringe the copyright in the recording because of section 109 of
the Act;
(b) fair dealing with, or use of, copyright material other than a computer game
by a person that is not an infringement of copyright in the material because
of Division 2 (access by or for persons with a disability) of Part IVA of the
Act;
(c) the gaining of access by a person to copyright material to which a
technological protection measure has been applied if:
(i) the technological protection measure is not operating normally; and
(ii) a replacement technological protection measure is not reasonably
available;
(d) the gaining of access by a person to copyright material that is protected by
a technological protection measure that interferes with or damages a
product in which it is installed (the host product) or another product used
in conjunction with the host product:
(i) to prevent damage, or further damage, to the host product or another
product by the technological protection measure; or
(ii) to repair the host product or another product (if circumvention of the
technological protection measure is necessary to enable the repair to
be carried out);
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(e) use by a person of a work (other than a computer game) or other
subject-matter that is not an infringement of copyright in the work or other
subject-matter because of subsection 200AB(1) of the Act because the use
is covered by subsection 200AB(3) (use by body administering educational
institution) of the Act.
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Part 8—Infringement notices and forfeiture of infringing
articles and devices
Division 1—Preliminary
41 Object of this Part
The object of this Part is to set up a scheme (for the purposes of sections 133B
and section 248SA of the Act) to enable a person who is alleged to have
committed an offence of strict liability against Division 5 of Part V, or
Subdivision A or B of Division 3 of Part XIA, of the Act to do the following as
an alternative to being prosecuted:
(a) pay the Commonwealth an amount specified in an infringement notice for
the alleged offence;
(b) for an alleged offence against a provision of Division 5 of Part V of the Act
(except subsections 132AQ(5), 132AR(5) and 132AS(5)), agree to forfeit
to the Commonwealth:
(i) each article (if any), in the person’s possession when the person is
informed how the person may avoid prosecution for the alleged
offence, that is alleged to be an infringing copy of a work or other
subject-matter and to have been involved in the commission of the
offence; and
(ii) each device (if any), in the person’s possession when the person is
informed how the person may avoid prosecution for the alleged
offence, that is alleged to have been made to be used for making an
infringing copy of a work or other subject-matter and to have been
involved in the commission of the offence.
42 Provisions subject to an infringement notice
Each provision of the Act listed in the following table is subject to an
infringement notice under this Part:
Provisions of the Act subject to an infringement notice under this Part
Item Provision of Act Summary of strict liability offence created by provision
1 Subsection 132AD(5) Making infringing copy commercially
2 Subsection 132AE(5) Selling or hiring out infringing copy
3 Subsection 132AF(7) Offering infringing copy for sale or hire by way of trade
4 Subsection 132AF(8) Commercially offering infringing copy for sale or hire
5 Subsection 132AG(7) Exhibiting an infringing copy in public by way of trade
6 Subsection 132AG(8) Commercially exhibiting an infringing copy in public
7 Subsection 132AH(5) Importing infringing copy commercially
8 Subsection 132AI(7) Distributing infringing copy
9 Subsection 132AJ(5) Possessing infringing copy for commerce
10 Subsection 132AL(8) Making device for making infringing copy
11 Subsection 132AO(5) Causing recording or film to be heard or seen in public
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Provisions of the Act subject to an infringement notice under this Part
Item Provision of Act Summary of strict liability offence created by provision
12 Subsection 132AQ(5) Removing or altering electronic rights management information
13 Subsection 132AR(5) Distributing, importing or communicating copies after removal
or alteration of electronic rights management information
14 Subsection 132AS(5) Distributing or importing electronic rights management
information
15 Subsection 248PB(5) Unauthorised indirect recording during protection period
16 Subsection 248PF(5) Copying unauthorised recording
17 Subsection 248PG(5) Unauthorised copying of exempt recording
18 Subsection 248PH(5) Unauthorised copying of authorised sound recording
19 Subsection 248PI(5) Selling etc. unauthorised recording
20 Subsection 248PJ(7) Distributing unauthorised recording
21 Subsection 248PK(5) Commercial possession or import of unauthorised recording
22 Subsection 248PL(5) Exhibiting unauthorised recording in public by way of trade
23 Subsection 248PM(5) Importing unauthorised recording for exhibition by way of trade
24 Subsection 248QC(5) Copying unauthorised sound recording
25 Subsection 248QD(5) Selling etc. unauthorised sound recording
26 Subsection 248QE(7) Distributing unauthorised sound recording
27 Subsection 248QF(5) Commercial possession or import of unauthorised sound
recording
28 Subsection 248QG(5) Exhibiting unauthorised sound recording in public by way of
trade
29 Subsection 248QH(5) Importing unauthorised sound recording for exhibition by way of
trade
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Division 2—Infringement notices
43 When an infringement notice may be given
(1) If an infringement officer believes on reasonable grounds that a person has
committed an offence against a provision subject to an infringement notice under
this Part, the infringement officer may give to the person an infringement notice
for the alleged offence.
(2) However, the infringement officer may give to the person an infringement notice
for the alleged offence against a provision of Division 5 of Part V of the Act
(except subsections 132AQ(5), 132AR(5) and 132AS(5)) only if:
(a) an infringement officer has informed the person as described in
subsection 49(2) of this instrument; and
(b) the person has agreed to forfeit, and has forfeited, to the Commonwealth all
infringing articles and devices relating to the alleged offence in the
person’s possession at the time the person was informed.
Note 1: Subsection 49(2) is about an infringement officer informing a person about the
circumstances in which the person may avoid prosecution for an alleged offence
against that Division if an infringement notices is issued.
Note 2: Division 3 of this Part deals with forfeiture of infringing articles and devices relating to
alleged offences against provisions of Division 5 of Part V of the Act.
(3) The infringement notice must be given within 12 months after the day on which
the offence is alleged to have taken place.
(4) A single infringement notice must relate only to a single offence against a single
provision.
44 Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name and contact details of the person who gave the notice, and
that the person is an infringement officer for the purposes of issuing the
infringement notice; and
(e) give brief details of the alleged offence, including:
(i) the provision against which the offence was allegedly committed; and
(ii) the maximum penalty that a court could impose if the offence were
committed; and
(iii) the time (if known) and day of, and the place of, the alleged offence;
and
(f) state the amount that is payable under the notice, which must be:
(i) 12 penalty units where the person is an individual; or
(ii) 60 penalty units where the person is a body corporate; and
(g) give an explanation of how payment of the amount is to be made; and
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(h) state that, if the person to whom the notice is given pays the amount within
28 days after the day the notice is given, then (unless the notice is
withdrawn) the person will not be liable to be prosecuted in a court for the
alleged offence; and
(i) state that payment of the amount is not an admission of guilt or liability;
and
(j) state that the person may apply to the relevant chief executive to have the
period in which to pay the amount extended; and
(k) state that the person may choose not to pay the amount and, if the person
does so, the person may be prosecuted in a court for the alleged offence;
and
(l) set out how the notice can be withdrawn; and
(m) state that if the notice is withdrawn the person may be prosecuted in a court
for the alleged offence; and
(n) state that the person may make written representations to the relevant chief
executive seeking the withdrawal of the notice.
45 Extension of time to pay amount
(1) A person to whom an infringement notice has been given may apply to the
relevant chief executive for an extension of the period referred to in
paragraph 44(h).
(2) If the application is made before the end of that period, the relevant chief
executive may, in writing, extend that period. The relevant chief executive may
do so before or after the end of that period.
(3) If the relevant chief executive extends that period, a reference in this Part, or in a
notice or other instrument under this Part, to the period referred to in
paragraph 44(h) is taken to be a reference to that period so extended.
(4) If the relevant chief executive does not extend that period, a reference in this
Part, or in a notice or other instrument under this Part, to the period referred to in
paragraph 44(h) is taken to be a reference to the period that ends on the later of
the following days:
(a) the day that is the last day of the period referred to in paragraph 44(h);
(b) the day that is 7 days after the day the person was given notice of the
relevant chief executive’s decision not to extend.
(5) The relevant chief executive may extend the period more than once under
subsection (2).
46 Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may make written
representations to the relevant chief executive seeking the withdrawal of the
notice.
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Withdrawal of notice
(2) The relevant chief executive may withdraw an infringement notice given to a
person (whether or not the person has made written representations seeking the
withdrawal).
(3) When deciding whether or not to withdraw an infringement notice (the relevant
infringement notice), the relevant chief executive:
(a) must take into account any written representations seeking the withdrawal
that were given by the person to the relevant chief executive; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for an
offence against a provision subject to an infringement notice under
this Part;
(ii) the circumstances of the alleged offence;
(iii) whether the person has paid an amount, stated in an earlier
infringement notice, for an offence against a provision subject to an
infringement notice under this Part if the offence is constituted by
conduct that is the same, or substantially the same, as the conduct
alleged to constitute the offence in the relevant infringement notice;
(iv) any other matter the relevant chief executive considers relevant.
Notice of withdrawal
(4) Notice of the withdrawal of the infringement notice must be given to the person.
The withdrawal notice must state:
(a) the person’s name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that the person may be prosecuted in a court for the alleged offence.
Refund of amount if infringement notice withdrawn
(5) If:
(a) the relevant chief executive withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
the Commonwealth must refund to the person an amount equal to the amount
paid.
47 Effect of payment of amount
(1) If the person to whom an infringement notice for an alleged offence against a
provision is given pays the amount stated in the notice before the end of the
period referred to in paragraph 44(h):
(a) any liability of the person for the alleged offence is discharged; and
(b) the person may not be prosecuted in a court for the alleged offence; and
(c) the person is not regarded as having admitted guilt or liability for the
alleged offence; and
(d) the person is not regarded as having been convicted of the alleged offence.
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(2) Subsection (1) does not apply if the notice has been withdrawn.
48 Effect of this Part
This Part does not:
(a) require an infringement notice to be given to a person for an alleged
offence against a provision subject to an infringement notice under this
Part; or
(b) affect the liability of a person for an alleged offence against a provision
subject to an infringement notice under this Part if:
(i) the person does not comply with an infringement notice given to the
person for the offence; or
(ii) an infringement notice is not given to the person for the offence; or
(iii) an infringement notice is given to the person for the offence and is
subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an
alleged offence against a provision subject to an infringement notice under
this Part; or
(d) limit a court’s discretion to determine the amount of a penalty to be
imposed on a person who is found to have committed an offence against a
provision subject to an infringement notice under this Part.
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Division 3—Forfeiture of infringing articles and devices
49 Forfeiture of infringing articles and devices
(1) This section applies if:
(a) an infringement officer believes on reasonable grounds that a person has
committed an offence of strict liability against a provision of Division 5 of
Part V of the Act (except subsections 132AQ(5), 132AR(5) and 132AS(5));
and
(b) the person possesses an infringing article or an infringing device relating to
the alleged offence.
(2) The infringement officer may inform the person (either orally or by written
notice) that the person may avoid prosecution for the alleged offence if:
(a) the person agrees to forfeit, and does forfeit, to the Commonwealth all
infringing articles and devices that the person possesses in relation to the
alleged offence; and
(b) the person pays the amount specified in an infringement notice for the
alleged offence in accordance with Division 2; and
(c) the infringement notice for the alleged offence is not withdrawn.
(3) If the person agrees to forfeit to the Commonwealth all infringing articles and
devices that the person possesses (when informed under subsection (2)) in
relation to the alleged offence, the authorised officer:
(a) may take possession of the infringing articles and devices; and
(b) must give the person a receipt for the infringing articles and devices taken
into possession.
(4) If the person pays the amount specified in an infringement notice given to the
person under Division 2 for the alleged offence, the relevant chief executive must
cause all infringing articles and devices in relation to the alleged offence that the
person agreed to forfeit, and did forfeit, to the Commonwealth to be destroyed.
Note: An infringement notice relating to an offence against a provision of Division 5 of
Part V of the Act (except subsections 132AQ(5), 132AR(5) and 132AS(5)) may not be
given if the recipient does not agree to forfeit to the Commonwealth all infringing
articles and devices in the person’s possession at that time in relation to the alleged
offence—see subsection 43(2).
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Part 9—Seizure of imported copies of copyright material
50 Definition of action period in section 134B of the Act
For the purposes of the definition of action period in section 134B of the Act, the
period is 10 working days (as defined in that section).
51 Definition of claim period in section 134B of the Act
For the purposes of the definition of claim period in section 134B of the Act, the
period is 10 working days (as defined in that section).
52 Information to be given to Comptroller-General of Customs about objection
to importation of copies of works etc.—paragraph 135(8)(c) of the Act
(1) For the purposes of paragraph 135(8)(c) of the Act, the Comptroller-General of
Customs may direct a person who notifies the Comptroller-General under
subsection 135(2) of the Act to give the Comptroller-General information and
evidence about the following:
(a) the subsistence of copyright in the material;
(b) the ownership of the copyright;
(c) if the person who notifies the Comptroller General does so through an
agent—the agent’s authority to give the notice for the person.
(2) The person must comply with the direction.
53 Seizure of copies of works etc. imported into certain external Territories—
subsection 135(9) of the Act
Application of this section
(1) For the purposes of subsection 135(9) of the Act, this section applies in relation
to the importation into any of the following Territories, from a place other than
Australia, of copies of copyright material:
(a) Norfolk Island;
(b) the Territory of Christmas Island;
(c) the Territory of Cocos (Keeling) Islands.
Note: For this purpose, Australia includes the external Territories, as it does under section 10
of the Act.
Laws that apply in relation to importation
(2) The following provisions (the applied provisions) apply, with the modifications
described in subsection (3), in relation to the importation:
(a) Division 7 of Part V of the Act, except:
(i) the definition of Comptroller-General of Customs in section 134B;
and
(ii) subsections 135(1), (2), (3), (6), (6A), (8) and (9);
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(b) sections 50, 51 and 54 of this instrument.
Modifications of applied provisions
(3) The applied provisions apply in relation to the importation into the Territory as
if:
(a) a reference in the applied provisions to Australia were a reference to the
Territory; and
(b) a reference in the applied provisions to a notice under subsection 135(2)
(however described) or a notice given under section 135 were a reference
to a notice given under subsection 135(2) of the Act applying apart from
this section; and
(c) a reference in the applied provisions to the Comptroller-General of
Customs had the same meaning as it has in the Customs Act 1901 as it
applies in the Territory because of an Ordinance of the Territory; and
(d) a reference (however expressed) in subsection 135(5) or
paragraph 135(7)(b) of the Act to revocation or declaration of
ineffectiveness of a notice under subsection 135(2) of the Act were a
reference to such a revocation or declaration under subsection 135(6) or
(6A) of the Act applying apart from this section; and
(e) a reference in paragraph 135(7)(d) of the Act to the Customs Act 1901 were
a reference to the Customs Act 1901 as it applies in the Territory because of
an Ordinance of the Territory; and
(f) a reference in subsection 135AJ(1) or (3) to copies covered by a notice
under section 135 were a reference to copies of copyright material that
were imported into the Territory and could be or were seized on the basis
of the notice.
Note 1: These modifications mean only one notice objecting to importation need be given as a
basis for seizing copies imported into any of the Territories or any other part of
Australia. Likewise, a single revocation or declaration of ineffectiveness of the notice
stops seizure of imports of copies to which the notice related into any of the Territories
or any other part of Australia.
Note 2: The Norfolk Island Customs Ordinance 2016 applies the Customs Act 1901 in Norfolk
Island and treats a reference in that Act (as so applying) to the Comptroller-General of
Customs as having the same meaning as it has in that Act as it applies of its own force.
Note 3: The Customs Ordinance 1993 of each of the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands applies the Customs Act 1901 in the Territory and
treats a reference in that Act (as so applying) to the Comptroller-General of Customs as
a reference to the Comptroller of the Indian Ocean Territories Customs Service
appointed under that Ordinance.
54 Claim for release of seized copies—section 135AEA of the Act
For the purposes of paragraph 135AEA(3)(b) of the Act, the following
information is prescribed:
(a) the importer’s full name, home or business address and address for service;
(b) a telephone number for the importer;
(c) the grounds for seeking the release of the seized copies;
(d) if the importer’s home or business address is not in Australia:
(i) the full name and the home or business address of a person who is the
importer’s agent in Australia; and
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(ii) an address for service for the person who is the importer’s agent in
Australia; and
(iii) a telephone number for the person; and
(iv) information showing that the person agreed to be the importer’s agent;
(e) if a person or body other than the agent made arrangements on the
importer’s behalf for the seized copies to be brought to Australia:
(i) the full name, home or business address and address for service of the
person or body; and
(ii) a telephone number for the person or body.
Note: Examples of grounds for the purposes of paragraph (c) are:
(a) that the copies are not infringing copies; and
(b) that the importation of the copies did not infringe copyright.
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Part 10—Retransmission of free-to-air broadcasts
55 Identity cards—subsection 135ZZQ(1) of the Act
For the purposes of subsection 135ZZQ(1) of the Act, the prescribed form of an
identity card is a form that includes:
(a) the following information:
(i) the name of the collecting society;
(ii) the name and title of the person to whom the identity card is issued;
(iii) the name and title of the person who issued the identity card;
(iv) the date on which the identity card is issued;
(v) the date on which the identity card will expire (no later than 3 years
after the day on which the identity card is issued); and
(b) a statement that the identity card has been issued under section 135ZZQ of
the Act; and
(c) the signature of the person to whom the identity card is issued.
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Part 11—Copyright Tribunal
Division 1—Preliminary
56 Authority
This Part has effect for the purposes of section 166 of the Act, except as
indicated in this Part.
57 Organizations treated like persons
This Part, and the other provisions of this instrument so far as they relate to this
Part, apply to an organization (as defined in subsection 136(1) of the Act) in the
same way as they apply to a person.
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Division 2—General provisions
58 Seal of Tribunal
(1) The Tribunal is to have a seal.
(2) The President is to determine the design of the seal.
(3) The seal must be attached to:
(a) a document of a kind directed by the President; and
(b) any other document as ordered by the Tribunal.
Note: The President may give directions under section 147 of the Act.
(4) The seal may be attached to a document by hand, by electronic means or in any
other way.
59 Filing of documents
(1) A document is not filed until it is accepted for filing by the Registrar.
Refusing to accept document for filing
(2) The Registrar may refuse to accept a document for filing if it does not comply
with any provisions of this Part relevant to the document.
(3) The Registrar must refuse to accept a document for filing if:
(a) it is not substantially complete; or
(b) it does not substantially comply with this instrument; or
(c) it is not properly signed; or
(d) the Tribunal has directed that the document not be accepted; or
(e) the Tribunal has directed that the document not be accepted without the
leave of the Tribunal, and leave has not been obtained.
(4) If the Registrar refuses to accept a document for filing, the Registrar must give
the person who lodged or sent the document written notice of the refusal and
written reasons for the refusal.
Recording day of filing
(5) The Registrar must record the day on which a document is filed.
60 Address for service
(1) A person who files with the Registrar a document instituting, or relating to, a
Tribunal proceeding must specify in the document an address for service for the
person, unless the person has filed another document connected with the
proceeding specifying that address.
(2) The person may later file with the Registrar a written notice, relating to the
Tribunal proceeding, that:
(a) specifies a new address for service for the person; and
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(b) is signed by or on behalf of the person.
(3) The person must give every other party to the Tribunal proceeding a copy of the
notice within 7 days after filing the notice.
61 Tribunal may direct alternative means of service or dispense with service
The Tribunal may make an order relating to a document this Part requires or
permits to be served:
(a) directing that the document be served by means other than a means
permitted by Part 6 of the Acts Interpretation Act 1901 or section 9 of the
Electronic Transactions Act 1999; or
(b) dispensing with service of the document.
62 Notification of orders of Tribunal and of reasons
Written reasons for orders
(1) When making an order, the Tribunal must state in writing its reasons for making
the order.
Giving and inspection of orders
(2) The Registrar must cause a copy of the document recording the order and of the
reasons of the Tribunal:
(a) to be given to every party to the application or reference the order relates
to; and
(b) to be available at each office of the Registrar for public inspection when
that office is open for business.
Exceptions for interim and ancillary orders
(3) Subsections (1) and (2) do not apply to an order under section 61, an interim
order or an order that is made in respect of an application that is ancillary to
another Tribunal proceeding.
President may direct Registrar to publish order
(4) The President may direct the Registrar to publish on the Tribunal’s website
details of any order of the Tribunal.
Exception for suspended order
(5) Subsections (2) and (4) do not apply to an order whose operation is suspended
pending a reference of a question of law to the Federal Court of Australia.
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Division 3—Applications and references to the Tribunal
Subdivision A—General provisions about applications and references to
the Tribunal
63 Form, content and filing of application or reference to the Tribunal
(1) An application or reference to the Tribunal must:
(a) be in writing; and
(b) state the name of the person making the application or reference; and
(c) state the general nature of the application or reference and specify the
provision of the Act or of this instrument under which the application or
reference is made; and
(d) subject to subsection (2), include such other matters as are required by this
instrument to be included in an application or reference made under that
provision; and
(e) be signed by or on behalf of the person making the application or
reference; and
(f) be filed with the Registrar.
Note: Subdivision B requires particular matters to be set out in applications and references
made under particular provisions.
(2) Matters required by this instrument to be included in the application or reference
may be omitted if the President gives leave for the omission.
(3) When granting leave, the President may direct other matters to be included in the
application or reference instead of the omitted matters. Those other matters must
be included in the application or reference.
64 Giving application or reference to other parties
(1) A person making an application or reference to the Tribunal must, within 7 days
after filing the application or reference with the Registrar, give each other party
to the application or reference:
(a) a sealed copy of the application or reference; and
(b) written notice that the other party is a party to the application or reference.
(2) Subsection (1) does not apply to a party that became a party to the application or
reference after it was filed.
65 Advertising of applications and references
(1) A person making an application or reference to the Tribunal must, within 10 days
after filing it with the Registrar, advertise it in:
(a) a newspaper circulating throughout Australia; or
(b) the Gazette.
(2) The advertisement must:
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(a) specify the date on which the application or reference was made and the
relevant file number; and
(b) state the name, and the address for service, of the person; and
(c) state the general nature of the application or reference; and
(d) specify the provision of the Act or of this instrument under which the
application or reference is made.
(3) The President may direct that a particular application or reference:
(a) need not be advertised; or
(b) may be advertised in a way other than that required by subsection (1).
(4) The direction has effect despite subsection (1).
(5) Subsection (1) does not apply to an application made under a provision described
in column 1 of the following table:
Applications that need not be advertised
Column 1
Provision
Column 2
Subject of application
1 Subsection 47(3) of the Act Determining equitable remuneration
2 Paragraph 59(3)(b) of the Act Apportioning royalty
3 Subsection 70(3) of the Act Determining equitable remuneration
4 Subsection 107(3) of the Act Determining equitable remuneration
5 Paragraph 108(1)(a) of the Act Determining equitable remuneration
6 Paragraph 113P(4)(b) of the Act Determining question relating to copying or
communicating by educational institution
7 Paragraph 113R(2)(b) of the Act Determining equitable remuneration
8 Paragraph 113S(4)(b) of the Act Determining question relating to entry onto premises
of educational institution
9 Subsection 135ZZM(1) of the Act Determining equitable remuneration
10 Subsection 135ZZN(3) of the Act Determining retransmitter’s record system
11 Section 99 of this instrument Being made party to Tribunal proceeding
12 Section 100 of this instrument Order relating to Tribunal proceeding
66 Hearing of application or reference
(1) The President must fix a time and place for the hearing of an application or
reference to the Tribunal, except:
(a) an application covered by section 99; or
(b) an application or reference in respect of which the Tribunal decides not to
have a hearing.
Note: An application covered by section 99 (to be made a party to a Tribunal proceeding) is
to be dealt with at the preliminary hearing or hearing of the proceeding.
(2) The Registrar must give notice of the time and place fixed to:
(a) the parties to the application or reference; and
(b) the persons (if any) who have applied to the Tribunal to be made parties to
the application or reference and whose applications to be made parties have
not already been determined.
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Subdivision B—Provisions about particular kinds of applications and
references to the Tribunal
67 Matters to be included in application under subsection 47(3) of the Act
An application to the Tribunal under subsection 47(3) of the Act (to determine
equitable remuneration for the making of a sound recording, or cinematograph
film, used for broadcasting a literary, dramatic or musical work or an adaptation
of such a work):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the work or adaptation; and
(ii) identify the sound recording or cinematograph film; and
(iii) state whether the applicant is the owner of the copyright in the work
or the maker of the recording or film; and
(iv) if the applicant is the owner of the copyright—state the name of the
maker of the recording or film; and
(v) if the applicant is the maker of the recording or film—state the name
of the owner of the copyright; and
(b) must request the Tribunal to determine the amount that is equitable
remuneration to the owner of the copyright for the making of the recording
or film.
68 Matters to be included in application under paragraph 59(3)(b) of the Act
An application to the Tribunal under paragraph 59(3)(b) of the Act (for
apportioning the royalty for making a record comprising the performance of a
musical work involving the singing or speaking of words from a literary or
dramatic work between the owner of copyright in the musical work and the
owner of copyright in the literary or dramatic work):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the musical work and the literary or dramatic work; and
(ii) identify the record; and
(iii) state whether the applicant is the owner of the copyright in the
musical work or the owner of the copyright in the literary or dramatic
work; and
(iv) if the applicant is the owner of the copyright in the musical work—
state the name of the owner of the copyright in the literary or dramatic
work; and
(v) if the applicant is the owner of the copyright in the literary or dramatic
work—state the name of the owner of the copyright in the musical
work; and
(b) must request the Tribunal to determine the manner in which the royalty
payable by the maker of the record in respect of the musical work and the
literary or dramatic work is to be apportioned between the owners of the
copyrights in those works.
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69 Matters to be included in application under subsection 70(3) of the Act
An application to the Tribunal under subsection 70(3) of the Act (to determine
equitable remuneration for the making of a cinematograph film of an artistic
work for including the work in a television broadcast):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the artistic work; and
(ii) identify the cinematograph film; and
(iii) state whether the applicant is the owner of the copyright in the work
or the maker of the film; and
(iv) if the applicant is the owner of the copyright—state the name of the
maker of the film; and
(v) if the applicant is the maker of the film—state the name of the owner
of the copyright; and
(b) must request the Tribunal to determine the amount that is equitable
remuneration to the owner of the copyright for the making of the film.
70 Matters to be included in application under subsection 107(3) of the Act
An application to the Tribunal under subsection 107(3) of the Act (to determine
equitable remuneration for making a copy of a sound recording for
broadcasting):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the sound recording; and
(ii) identify the copy; and
(iii) state whether the applicant is the owner of the copyright in the
recording or the maker of the copy; and
(iv) if the applicant is the owner of the copyright—state the name of the
maker of the copy; and
(v) if the applicant is the maker of the copy—state the name of the owner
of the copyright; and
(b) must request the Tribunal to determine the amount that is equitable
remuneration to the owner of the copyright for the making of the copy.
71 Matters to be included in application under paragraph 108(1)(a) of the Act
An application to the Tribunal under paragraph 108(1)(a) of the Act (to
determine equitable remuneration for causing a published sound recording to be
heard in public):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the sound recording; and
(ii) state whether the applicant is the owner of the copyright in the
recording or the person causing the recording to be heard in public;
and
(iii) if the applicant is the owner of the copyright—state the name of the
person causing the recording to be heard in public; and
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(iv) if the applicant is the person causing the recording to be heard in
public—state the name of the owner of the copyright; and
(b) must request the Tribunal to determine the amount that is equitable
remuneration to the owner of the copyright for the causing of the recording
to be heard in public.
72 Matters to be included in application under paragraph 113P(4)(b) of the Act
An application to the Tribunal under paragraph 113P(4)(b) of the Act (to
determine a question relating to copying or communicating by a body
administering an educational institution) must:
(a) set out the circumstances or events giving rise to the application; and
(b) state whether the applicant is the body or a works collecting society or
broadcasts collecting society; and
(c) if the applicant is the body:
(i) identify the nature of education provided by the institution or the
nature of the material provided by the institution for the purpose of
helping other educational institutions in their teaching purposes; and
(ii) state the name of the collecting society; and
(d) if the applicant is a collecting society:
(i) give details of the notice relating to it under subsection 113V(5) of the
Act; and
(ii) state the name of the body; and
(e) state the question; and
(f) request the Tribunal to determine the question.
73 Application under paragraph 113R(2)(b) of the Act
Matters to be included in application
(1) An application under paragraph 113R(2)(b) of the Act (to determine the amount
of the equitable remuneration that the body administering an educational
institution undertakes to pay a collecting society for licensed copying or
communicating) must:
(a) set out the circumstances or events giving rise to the application; and
(b) state whether the applicant is the body administering the institution or the
collecting society; and
(c) if the applicant is the body:
(i) identify the nature of education provided by the institution or the
nature of the material provided by the institution for the purpose of
helping other educational institutions in their teaching purposes; and
(ii) state the name of the collecting society; and
(d) if the applicant is the collecting society:
(i) give details of the notice relating to it under subsection 113V(5) of the
Act; and
(ii) state the name of the body; and
(e) request the Tribunal to determine the amount.
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Matters for Tribunal to consider in determining equitable remuneration
(2) The following matters are prescribed for the purposes of column 3 of item 2 of
the table in subsection 153A(4) of the Act (as matters the Tribunal must have
regard to in determining the amount of the equitable remuneration the body
administering an educational institution undertakes to pay for licensed copying
or communicating involving the whole or part of a work or broadcast):
(a) the nature of:
(i) the work; or
(ii) any work, sound recording or cinematograph film included in the
broadcast;
(b) the nature of the institution;
(c) the need to ensure adequate incentive for the production of educational
works, educational sound recordings and educational cinematograph films
in Australia;
(d) the purpose and character of the copying or communication;
(e) the effect of the copying or communication on the market for, or value of,
the material copied or communicated;
(f) the special circumstances of persons undertaking correspondence courses
or external study courses provided by the institution, including any
difficulties faced by those persons in:
(i) engaging in a fair dealing covered by section 40 or 103C of the Act;
or
(ii) making a request and declaration to which section 49 of the Act
applies;
(g) any unremunerated contribution by the institution to the creation of the
material copied or included in the broadcast.
Note: Item 2 of the table in subsection 153A(4) of the Act is about dealing with an
application under paragraph 113R(2)(b) of the Act.
74 Matters to be included in application under paragraph 113S(4)(b) of the Act
An application under paragraph 113S(4)(b) of the Act (to determine a question
relating to entry of a person authorised by a collecting society onto premises of
an educational institution) must:
(a) set out the circumstances or events giving rise to the application; and
(b) state whether the applicant is the body administering the institution or the
collecting society; and
(c) if the applicant is the body:
(i) identify the nature of education provided by the institution or the
nature of the material provided by the institution for the purpose of
helping other educational institutions in their teaching purposes; and
(ii) state the name of the collecting society; and
(d) if the applicant is the collecting society:
(i) give details of the notice relating to it under subsection 113V(5) of the
Act; and
(ii) state the name of the body; and
(e) state the question; and
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(f) request the Tribunal to determine the question.
75 Matters to be included in references under paragraph 113V(2)(c) of the Act
A reference to the Tribunal under paragraph 113V(2)(c) of the Act (of an
application by a body to be declared as a collecting society) must:
(a) state the name of the body; and
(b) set out the circumstances or events giving rise to the reference; and
(c) state that the body has applied to be declared whichever of the following
applies:
(i) the works collecting society for all eligible rights holders;
(ii) the works collecting society for classes of eligible rights holders
specified in the application;
(iii) the broadcasts collecting society; and
(d) if there is another body at present declared to be whichever one of
subparagraphs (c)(i), (ii) and (iii) applies—state the name of the other
body; and
(e) request the Tribunal to determine the application by declaring the body to
be a collecting society under section 113V of the Act or by rejecting the
application.
76 Matters to be included in references under paragraph 113X(2)(b) of the Act
A reference to the Tribunal under paragraph 113X(2)(b) of the Act (of the
question whether the declaration of a body as a collecting society should be
revoked) must:
(a) state the name of the collecting society; and
(b) state the provision of the Act under which the declaration was made; and
(c) state the kind of copyright material and persons for which the body was
declared to be a collecting society; and
(d) give details of the notifiable instrument by which the Minister gave notice
of the declaration; and
(e) state each matter described in a paragraph of subsection 113X(1) of the Act
of which the Minister is satisfied and why; and
(f) request the Tribunal to determine the question whether the declaration of
the body as the collecting society should be revoked.
77 Matters to be included in applications under subsection 113ZB(1) of the Act
An application to the Tribunal under subsection 113ZB(1) of the Act (to review a
collecting society’s actual or proposed arrangement for distributing amounts it
collects) must:
(a) state whether the applicant is the collecting society or a member of the
collecting society; and
(b) state whether the application is for review of the arrangement adopted, or
for review of an arrangement proposed to be adopted, by the collecting
society for distributing amounts it collects in a period; and
(c) set out the circumstances or events giving rise to the application; and
(d) give details of the arrangement; and
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(e) request the Tribunal to determine the application by making an order
confirming the arrangement, varying the arrangement or substituting for
the arrangement another arrangement; and
(f) if variation of the arrangement is requested—give details of the variation;
and
(g) if substitution for the arrangement of another arrangement is sought—give
details of the other arrangement.
78 Matters to be included in application under subsection 135ZZM(1) of the Act
An application to the Tribunal under subsection 135ZZM(1) of the Act (to
determine equitable remuneration payable under a remuneration notice given to a
collecting society by or on behalf of a retransmitter for one or more
retransmissions of free-to-air broadcasts) must:
(a) set out the circumstances or events giving rise to the application; and
(b) state whether the applicant is the retransmitter or the collecting society; and
(c) if the applicant is the retransmitter—state the name of the collecting
society; and
(d) if the applicant is the collecting society:
(i) give details of the declaration of the society under section 135ZZT of
the Act; and
(ii) state the name of the retransmitter; and
(e) identify the retransmission or retransmissions; and
(f) identify the classes of works, sound recordings or cinematograph films that
are included in the retransmission or retransmissions; and
(g) request the Tribunal to determine an amount that is equitable remuneration
for the making of the retransmission or retransmissions while the
remuneration notice is in force, so far as that equitable remuneration relates
to the identified classes of works, sound recordings or cinematograph
films.
79 Matters to be included in application under subsection 135ZZN(3) of the Act
An application to the Tribunal under subsection 135ZZN(3) of the Act (for
determining a record system, to be established and maintained by a retransmitter
that gave a collecting society a remuneration notice, for records of titles of
programs included in retransmissions) must:
(a) set out the circumstances or events giving rise to the application; and
(b) state whether the applicant is the retransmitter or the collecting society; and
(c) if the applicant is the retransmitter—state the name of the collecting
society; and
(d) if the applicant is the collecting society:
(i) give details of the declaration of the society under section 135ZZT of
the Act; and
(ii) state the name of the retransmitter; and
(e) identify the retransmissions; and
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(f) request the Tribunal to determine the record system that must be
established and maintained by the retransmitter under
subsection 135ZZN(1) of the Act.
80 Matters to be included in references under paragraph 135ZZT(1A)(c) of the
Act
A reference to the Tribunal under paragraph 135ZZT(1A)(c) of the Act (of an
application by a body to be declared as a collecting society) must:
(a) state the name of the body; and
(b) set out the circumstances or events giving rise to the reference; and
(c) state that the body has applied to be declared as a collecting society under
section 135ZZT of the Act; and
(d) state whether the declaration sought is as a collecting society for all
relevant copyright owners or for classes of relevant copyright owners; and
(e) if there is another body at present declared in relation to those copyright
owners as a collecting society under section 135ZZT of the Act—state the
name of the other body; and
(f) request the Tribunal to determine the application by declaring the body to
be a collecting society under section 135ZZT of the Act or by rejecting the
application.
81 Matters to be included in references under paragraph 135ZZU(2)(b) of the
Act
A reference to the Tribunal under paragraph 135ZZU(2)(b) of the Act (of the
question whether the declaration of a body as a collecting society should be
revoked) must:
(a) state the name of the collecting society; and
(b) state the provision of the Act under which the declaration was made; and
(c) state the relevant copyright owners or the classes of relevant copyright
owners for which the collecting society is declared; and
(d) give details of the declaration of the society under section 135ZZT of the
Act; and
(e) state each matter described in a paragraph of subsection 135ZZU(1) of the
Act of which the Minister is satisfied and why; and
(f) request the Tribunal to determine the question whether the declaration of
the body as the collecting society should be revoked.
82 Matters to be included in application under subsection 135ZZWA(1) of the
Act
An application to the Tribunal under subsection 135ZZWA(1) of the Act (to
review a collecting society’s actual or proposed arrangement for distributing
amounts it collects) must:
(a) state whether the applicant is the collecting society or a member of the
collecting society; and
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(b) state whether the application is for review of the arrangement adopted, or
for review of an arrangement proposed to be adopted, by the collecting
society for distributing amounts it collects in a period; and
(c) set out the circumstances or events giving rise to the application; and
(d) give details of the arrangement; and
(e) request the Tribunal to determine the application by making an order
confirming the arrangement, varying the arrangement or substituting for
the arrangement another arrangement; and
(f) if variation of the arrangement is requested—give details of the variation;
and
(g) if substitution for the arrangement of another arrangement is sought—give
details of the other arrangement.
83 Matters to be included in application under subsection 135ZZZS(1) of the
Act
An application to the Tribunal under subsection 135ZZZS(1) of the Act (to
review a collecting society’s actual or proposed arrangement for distributing
amounts it collects) must:
(a) state whether the applicant is the collecting society or a member of the
collecting society; and
(b) state whether the application is for review of the arrangement adopted, or
for review of an arrangement proposed to be adopted, by the collecting
society for distributing amounts it collects in a period; and
(c) set out the circumstances or events giving rise to the application; and
(d) give details of the arrangement; and
(e) request the Tribunal to determine the application by making an order
confirming the arrangement, varying the arrangement or substituting for
the arrangement another arrangement; and
(f) if variation of the arrangement is requested—give details of the variation;
and
(g) if substitution for the arrangement of another arrangement is sought—give
details of the other arrangement.
84 Matters to be included in application under subsection 152(2) of the Act
An application to the Tribunal under subsection 152(2) of the Act (for an order
about determining the amount payable by a broadcaster to the owners of
copyrights in published sound recordings for broadcasting those recordings in a
period) must:
(a) state whether the applicant is the broadcaster or the owner of a copyright in
a published sound recording; and
(b) if the applicant is the owner of such a copyright—state the name of the
broadcaster; and
(c) specify the period; and
(d) request the Tribunal to make an order determining, or making provision for
determining, the amount payable by the broadcaster to the owners of
copyrights in published sound recordings in respect of the broadcasting
during that period of those recordings by that broadcaster.
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85 Matters to be included in application under subsection 152(12) of the Act
An application to the Tribunal under subsection 152(12) of the Act (for
amendment of an order under subsection 152(6) of the Act to specify the
applicant as one of the persons among whom the amount determined in
accordance with the order is to be divided) must:
(a) specify the order; and
(b) request the Tribunal to amend the order so as to specify the applicant as
one of the persons among whom the amount specified in, or determined in
accordance with, the order is to be divided.
86 Matters to be included in application under subsection 153F(1) of the Act
An application to the Tribunal under subsection 153F(1) of the Act (for a
declaration that a company be a collecting society for the purposes of Division 2
of Part VII of the Act) must:
(a) state that the criteria in subsection 153F(6) of the Act are met and detail
how they are met; and
(b) state whether the applicant seeks a declaration for all government copies or
a class of government copies; and
(c) if another company is declared as a collecting society under section 153F
of the Act for the government copies for which the applicant seeks a
declaration—state the name of that company; and
(d) request the Tribunal to determine the application by declaring the applicant
to be a collecting society for the purposes of Division 2 of Part VII of the
Act or by rejecting the application.
87 Matters to be included in application under subsection 153G(1) of the Act
An application to the Tribunal under subsection 153G(1) of the Act (for
revocation of a declaration under section 153F that a company be a collecting
society for the purposes of Division 2 of Part VII of the Act) must:
(a) if the applicant is not the collecting society—state the name of the
collecting society; and
(b) state that the company is declared to be a collecting society under
section 153F of the Act; and
(c) give details of the notice published in the Gazette about the declaration of
the collecting society; and
(d) state the grounds in subsection 153G(5) of the Act that will be relied on in
the case; and
(e) request the Tribunal to revoke the declaration of the company as a
collecting society.
88 Matters to be included in application under subsection 153K(1) of the Act
An application to the Tribunal under subsection 153K(1) of the Act (for an order
determining the method for working out remuneration payable under
subsection 183A(2) of the Act for government copies made for the services of a
government in a period):
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(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) identify the copyright material relevant to the application; and
(ii) state the period for which the order is sought; and
(iii) state whether the government copies made in the period were made by
the Commonwealth or by a State, and, if a State, name the State; and
(iv) state that subsection 183(5) of the Act does not apply to the
government copies made in the period because a company is the
relevant collecting society for the purposes of Division 2 of Part VII
of the Act for the copies, and the society has not ceased operating as
that collecting society; and
(v) if a government copy is to be omitted from the Tribunal’s order
determining the method—state the reason for the omission; and
(b) must request the Tribunal to make an order determining the method for
working out remuneration payable under subsection 183A(2) of the Act for
government copies made for the services of the government in the
particular period.
89 Matters to be included in reference under section 154 of the Act
(1) A reference of a licence scheme to the Tribunal by a licensor under section 154
of the Act must:
(a) state that the licensor proposes to bring the scheme into operation; and
(b) state whether the scheme relates to:
(i) licences in respect of literary, dramatic or musical works; or
(ii) licences in respect of sound recordings; or
(iii) licences both in respect of literary, dramatic or musical works and in
respect of sound recordings; and
(c) state whether the licensor:
(i) is the owner or prospective owner of the copyright in the works or
recordings; or
(ii) is acting as agent for the owners or prospective owners in relation to
the negotiation or granting of such licences; and
(d) request the Tribunal to make such order, confirming or varying the scheme
or substituting for the scheme another scheme proposed by one of the
parties, as the Tribunal considers reasonable in the circumstances.
(2) The reference must include a copy of the licence scheme.
90 Reference of existing licence scheme under section 155 of the Act
(1) A reference of a licence scheme to the Tribunal under section 155 of the Act
must:
(a) state whether the person referring the scheme is:
(i) the licensor operating the scheme; or
(ii) an organization claiming to be representative of persons requiring
licences in cases included in a class of cases to which the scheme
applies; or
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(iii) a person claiming that he or she requires a licence in a case included
in a class of cases to which the scheme applies; and
(b) specify the class of cases to which the reference relates; and
(c) state the name of the other party to the dispute that gave rise to the
reference; and
(d) set out details of the matter in dispute; and
(e) request the Tribunal to make such order, confirming or varying the scheme
or substituting for the scheme another scheme proposed by one of the
parties, so far as it relates to the class of cases to which the reference
relates, as the Tribunal considers reasonable in the circumstances.
(2) If the reference is made by an organization claiming to be representative of
persons requiring licences, the Tribunal must, before determining the question
whether the organization is reasonably representative of the class of persons that
it claims to represent, give each of the following an opportunity to present a case
in relation to that question:
(a) every other party to the reference;
(b) every person who has applied to be made a party to the reference and
whose application has not been determined.
91 Reference under section 156 of the Act
(1) A reference to the Tribunal under section 156 of the Act of a licence scheme
reflecting an order of the Tribunal under section 154 or 155 of the Act so far as it
relates to cases in a class must:
(a) specify:
(i) the date when the Tribunal last made an order with respect to the
scheme that applies to the class; and
(ii) the relevant file number for the Tribunal proceedings in which that
order was made; and
(b) specify the class; and
(c) state whether the person referring the scheme is:
(i) the licensor operating the scheme; or
(ii) an organization claiming to be representative of persons requiring
licences in cases included in the class; or
(iii) a person claiming that he or she requires a licence in a case included
in the class; and
(d) if the reference arises from a dispute:
(i) state the name of the other party to the dispute; and
(ii) set out details of the matter in dispute; and
(e) if leave of the Tribunal is required for the making of the reference:
(i) if that leave has already been granted—specify the date when the
Tribunal granted the leave and the relevant file number; and
(ii) in any other case—state the grounds on which leave is sought for the
making of the reference and request the Tribunal to grant leave for the
making of the reference; and
(f) request the Tribunal to make an order about the scheme as previously
confirmed, varied or substituted, by confirming or varying the scheme or
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substituting for the scheme another scheme proposed by one of the parties,
as the Tribunal considers reasonable in the circumstances.
Note: Section 92 deals with applications for leave.
(2) If the reference is made by an organization claiming to be representative of
persons requiring licences, the Tribunal must, before determining the question
whether the organization is reasonably representative of the class of persons that
it claims to represent, give each of the following an opportunity to present a case
in relation to that question:
(a) every other party to the reference;
(b) every person who has applied to be made a party to the reference and
whose application has not been determined.
92 Application for leave under subsection 156(2) of the Act to refer licence
scheme to the Tribunal
(1) This section applies if a person:
(a) wants the leave of the Tribunal under subsection 156(2) of the Act to refer
to the Tribunal under subsection 156(1) of the Act a licence scheme
reflecting an order of the Tribunal under section 154 or 155 of the Act so
far as it relates to cases in a class; and
(b) wants the leave granted before the preliminary hearing or the hearing of the
reference.
(2) The person must make an application to the Tribunal that:
(a) describes the general nature of the scheme as previously confirmed, varied
or substituted by the Tribunal; and
(b) specifies the class of cases in relation to which the applicant wishes to refer
the scheme to the Tribunal; and
(c) specifies:
(i) the date when the Tribunal last made an order with respect to the
scheme in relation to that class of cases; and
(ii) the relevant file number; and
(d) if the proposed reference arises from a dispute:
(i) states the name of the other party to the dispute; and
(ii) sets out details of the matter in dispute; and
(e) states the grounds on which leave is sought for the making of the reference;
and
(f) requests the Tribunal to grant leave to the applicant to refer the scheme to
the Tribunal in so far as it relates to that class of cases.
(3) The parties to the application are:
(a) the applicant; and
(b) if the application is not made by the licensor operating the scheme—that
licensor; and
(c) such other persons (if any) as apply to the Tribunal to be made parties to
the application and are made parties to the application under subsection (4).
(4) The Tribunal may make a person party to the application if the person:
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(a) applies to the Tribunal to be made a party to the application; and
(b) appears to the Tribunal to have a substantial interest in the operation of the
scheme so far as it relates to the class of cases specified in the application.
(5) The Tribunal must:
(a) consider the application; and
(b) give the parties to the application an opportunity to present their cases; and
(c) make such order, either granting or refusing the application, as the Tribunal
thinks fit.
93 Application under subsection 157(1) of the Act
(1) An application to the Tribunal under subsection 157(1) of the Act (relating to the
refusal or failure of a licensor operating a licence scheme to grant, or procure the
grant, to the applicant of a licence in accordance with the scheme):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) specify the case in which a licence is required by the applicant; and
(ii) specify the licence scheme; and
(iii) state the name of the licensor; and
(iv) specify the date or approximate date on which the applicant requested
the licensor to grant, or procure the grant, of a licence in accordance
with the scheme; and
(b) must request the Tribunal to make:
(i) an order stating the charges and the conditions that the Tribunal
considers apply under the scheme for the applicant; or
(ii) an order that the applicant be granted a licence in the terms proposed
by the applicant, the licensor or another party to the application.
(2) The licensor is a party to the application.
94 Application under subsection 157(2) of the Act
(1) An application to the Tribunal under subsection 157(2) of the Act (relating to a
claim that the grant of a licence in accordance with a licence scheme in a case in
which the applicant requires a licence would be subject to charges or conditions
that are not reasonable in the circumstances of the case):
(a) must set out the circumstances or events giving rise to the application and,
in particular, must:
(i) specify the case; and
(ii) specify the licence scheme; and
(iii) state the name of the licensor operating the scheme; and
(iv) specify the charges or conditions that the applicant claims are not
reasonable; and
(b) must request the Tribunal to make:
(i) an order stating the charges and the conditions that the Tribunal
considers reasonable in the circumstances for the applicant; or
(ii) an order that the applicant be granted a licence in the terms proposed
by the applicant, the licensor or another party to the application.
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(2) The licensor is a party to the application.
95 Application under subsection 157(3) of the Act
(1) This section applies to an application to the Tribunal under subsection 157(3) of
the Act relating to a claim that the applicant requires a licence in a case to which
a licensing scheme does not apply and that a licensor:
(a) has unreasonably refused or failed to grant, or procure the grant, of the
licence; or
(b) proposes that the licence should be granted subject to the payment of
charges, or to conditions, that are unreasonable.
(2) The application must set out the circumstances or events giving rise to the
application and, in particular, must:
(a) specify the case; and
(b) state the name of the licensor; and
(c) in the case of a refusal or failure to grant, or procure the grant of, the
licence—specify the date or approximate date on which the applicant
requested the licensor to grant, or procure the grant of, the licence; and
(d) in the case of a proposal of unreasonable charges or conditions—specify
those charges or conditions.
(3) The application must request the Tribunal to make:
(a) an order that the applicant be granted a licence in the terms proposed by the
applicant, the licensor or another party to the application; or
(b) an order stating the charges and the conditions that the Tribunal considers
reasonable in the circumstances for the applicant.
(4) The licensor is a party to the application.
96 Applications under subsection 157(4) of the Act
(1) This section applies to an application to the Tribunal under subsection 157(4) of
the Act by an organization that claims:
(a) that it is representative of persons requiring licences in cases to which a
licence scheme does not apply; and
(b) that a licensor:
(a) has unreasonably refused or failed to grant, or procure the grant, of
the licences; or
(b) proposes that the licences should be granted subject to the payment of
charges, or to conditions, that are unreasonable.
(2) The application must set out the circumstances or events giving rise to the
application and, in particular, must:
(a) specify the cases in which the licences are required; and
(b) state the name of the licensor; and
(c) in the case of a refusal or failure to grant, or procure the grant of, the
licences—specify the dates or approximate dates on which the licensor was
requested to grant, or procure the grant of, the licences; and
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(d) in the case of a proposal of unreasonable charges or conditions—specify
those charges or conditions.
(3) The application must request the Tribunal to make:
(a) an order that a licence be granted, in the terms proposed by the applicant,
the licensor or another party to the application, to each person who:
(i) is specified in the order (whether by reference to a class or otherwise);
and
(ii) was represented by the applicant or was a party to the application; or
(b) an order stating the charges (if any) and the conditions that the Tribunal
considers reasonable in the circumstances for the persons represented by
the applicant.
(4) The licensor is a party to the application.
97 Application under subsection 183(5) of the Act
(1) This section applies to an application to the Tribunal to fix terms under
subsection 183(5) of the Act for the doing, by the Commonwealth, a State or a
person authorised by the Commonwealth or a State, of an act that:
(a) is comprised in copyright; and
(b) does not infringe copyright because of subsection 183(1) of the Act.
(2) The application must set out the circumstances or events giving rise to the
application and, in particular, must:
(a) identify the work or other subject-matter to which the application relates;
and
(b) identify the act; and
(c) state whether the applicant is:
(i) the owner or exclusive licensee of the copyright in the work or other
subject-matter; or
(ii) the Commonwealth; or
(iii) a State; and
(d) if the applicant is the owner or exclusive licensee of the copyright:
(i) state whether the act was or is to be done by the Commonwealth, a
State or a person authorised by the Commonwealth or a State; and
(ii) if the act was or is to be done by a State or a person authorised by a
State—identify the State; and
(e) if the applicant is the Commonwealth or a State—state the name of the
owner or exclusive licensee of the copyright.
Note: Subsection 183(9) of the Act modifies subsection 183(5) of the Act to apply to the
exclusive licensee (if there is one) of the copyright instead of the owner of the
copyright.
(3) The application must request the Tribunal to fix terms as between the owner or
exclusive licensee of the copyright and the Commonwealth or the State for the
doing of any of the acts comprised in the copyright under subsection 183(1) of
the Act.
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98 Matters to be included in applications under subsection 183F(1) of the Act
An application to the Tribunal under subsection 183F(1) of the Act (to review an
actual or proposed arrangement for distributing amounts collected by a collecting
society for use of copyright material by the Crown) must:
(a) state whether the applicant is the collecting society or a member of the
collecting society; and
(b) state whether the application is for review of the arrangement adopted, or
for review of an arrangement proposed to be adopted, by the collecting
society for distributing amounts it collects in a period; and
(c) set out the circumstances or events giving rise to the application; and
(d) give details of the arrangement; and
(e) request the Tribunal to determine the application by making an order
confirming the arrangement, varying the arrangement or substituting for
the arrangement another arrangement; and
(f) if variation of the arrangement is requested—give details of the variation;
and
(g) if substitution for the arrangement of another arrangement is sought—give
details of the other arrangement.
Subdivision C—Applications ancillary to Tribunal proceedings
99 Application to be made a party to a Tribunal proceeding
(1) An application to the Tribunal by a person seeking to be made a party to a
Tribunal proceeding must:
(a) state the date when the Tribunal proceeding was started and the relevant
file number for the proceeding; and
(b) state the interest of the person:
(i) if the Tribunal proceeding is a reference under section 113V, 135ZZT
or 135ZZZO, or an application under section 153F, of the Act—in the
question whether the applicant should be declared to be a collecting
society; and
(ii) if the Tribunal proceeding is a reference under section 113X, 135ZZU
or 135ZZZP, or an application under section 153G, of the Act—in the
question whether the declaration of the collecting society should be
revoked; and
(iii) if the Tribunal proceeding is an application under section 113ZB,
135ZZWA, 135ZZZS or 183F of the Act—in the arrangement; and
(iv) if the Tribunal proceeding is an application under section 152 of the
Act—in the matter applied for; and
(v) if the Tribunal proceeding is a reference under section 154 of the
Act—in the operation of the scheme that is referred; and
(vi) if the Tribunal proceeding is a reference under section 155 or 156, or
an application under section 157, of the Act—in the matter in dispute;
and
(vii) if the Tribunal proceeding is an application for leave of the Tribunal
under subsection 156(2) of the Act to refer a licence scheme to the
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Tribunal—in the operation of the scheme so far as it relates to the
class of cases specified in the application; and
(viii) if the Tribunal proceeding is a reference or application under
Subdivision H of Division 3 of Part VI of the Act and the person is the
Australian Competition and Consumer Commission—in the matter
that is referred or applied for; and
(c) request the Tribunal to make the person a party to the Tribunal proceeding.
(2) The application must be dealt with at the preliminary hearing (if any) or the
hearing of the Tribunal proceeding.
(3) The Tribunal must give each of the following an opportunity to make a
presentation on whether the applicant should be made a party to the Tribunal
proceeding:
(a) the applicant;
(b) every party to the Tribunal proceeding;
(c) every other person who has applied to be made a party to the Tribunal
proceeding and whose application has not been determined.
100 Application for order about matter related to Tribunal proceeding
(1) A party to a Tribunal proceeding (except an application to be made a party to
another Tribunal proceeding) may apply to the Tribunal requesting the Tribunal
to make an order with respect to any matter relating to the proceeding.
(2) The application must:
(a) state the date when the Tribunal proceeding was started and the relevant
file number for the proceeding; and
(b) set out the circumstances or events giving rise to the application.
101 Consenting to order about matter related to Tribunal proceeding
(1) If an application is made under subsection 100(1) for an order with respect to any
matter relating to a Tribunal proceeding, a party to the proceeding may consent
to the making of the order.
(2) The consent may be endorsed on the application or set out in a separate
document filed with the Registrar.
(3) If the consent is set out in a separate document that is not filed with the
application, the party must give the applicant a copy of the document within 7
days after the document is filed.
102 When notice or copy of application under section 100 need not be given
(1) A party that has consented to the making of an order applied for under
section 100 need not be given:
(a) notice of the application; or
(b) a copy of the application.
(2) If the President or the Tribunal gives leave, a person who has not consented to
the making of an order applied for under section 100 need not be given:
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(a) notice of the application; or
(b) a copy of the application.
103 Dealing with application under section 100
(1) The Tribunal must consider an application made under section 100 and may
make such order in relation to the application as the Tribunal considers
reasonable in the circumstances.
(2) However, the Tribunal:
(a) must not refuse the application in whole or in part without giving the
applicant an opportunity to present a case; and
(b) must not grant the application in whole or in part without giving each party
that lodged an objection to the application an opportunity to present a case.
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Division 4—Ancillary matters
Subdivision A—General
104 Consolidating applications and references
(1) If 2 or more applications or references are pending before the Tribunal, the
Tribunal may, on its own initiative or on the application of a party to any of
them:
(a) direct that some or all of them be considered together; and
(b) give such consequential directions as the Tribunal considers necessary.
Note: This allows consideration together of 2 or more applications, 2 or more references or a
combination of one or more applications and one or more references.
Consulting parties before consolidating
(2) Before giving a direction under this section, the Tribunal must give each party to
each application or reference concerned an opportunity to present a case.
105 Directions as to procedure
Directions for Tribunal proceedings that have not started to be heard
(1) If the Tribunal has not started hearing a Tribunal proceeding, the President may:
(a) give directions; or
(b) authorise a member of the Tribunal to give directions;
as to the procedure to be followed in connection with the hearing before the
Tribunal of the proceeding.
(2) A direction or authorisation by the President under subsection (1) may:
(a) be of general application; or
(b) relate to the hearing of:
(i) one or more particular proceedings; or
(ii) proceedings included in a particular class of proceedings.
Directions for Tribunal proceedings that have started to be heard
(3) If the Tribunal has started hearing a Tribunal proceeding:
(a) the member of the Tribunal presiding; or
(b) any other member of the Tribunal authorised by the member presiding;
may give directions as to the procedure to be followed in connection with the
hearing before the Tribunal of the proceeding and of any related Tribunal
proceeding (whether or not the Tribunal has started to hear the related
proceeding).
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Variation and revocation of directions given under this section
(4) A direction or authorisation given under this section may be varied or revoked at
any time by a member of the Tribunal who may give the direction or
authorisation under this section.
106 Request as to constitution of Tribunal
(1) A request under subsection 146(3) of the Act by a party to an application or
reference that the Tribunal be constituted by more than one member for the
purposes of that application or reference must:
(a) be in writing addressed to the Registrar; and
(b) specify the day on which the application or reference was filed with the
Registrar and the relevant file number; and
(c) state the name of the party making the request; and
(d) be signed by or on behalf of that party; and
(e) be filed with the Registrar before the Tribunal begins to consider the
application or reference.
(2) The party making the request must give every other party to the application or
reference a sealed copy of the request within 7 days after filing the request.
107 Withdrawal of application or reference
Leave for withdrawal
(1) A person who has made an application or reference to the Tribunal may, with the
leave of the Tribunal, withdraw the application or reference at any time before
the Tribunal has determined it.
Note: Subsections 154(6) and 155(7) of the Act allow withdrawal of certain references
without the leave of the Tribunal.
(2) The leave of the Tribunal may be granted unconditionally or subject to such
conditions as the Tribunal thinks reasonable.
Method of withdrawal
(3) Withdrawal of an application or reference to the Tribunal must be made by:
(a) filing with the Registrar a notice in writing:
(i) addressed to the Registrar; and
(ii) specifying the day on which the application or reference was made
and the relevant file number; and
(iii) stating that the person who made the application or reference
withdraws it; and
(iv) signed by or on behalf of that person; and
(b) giving every other party to the application or reference a sealed copy of the
notice.
This applies whether the withdrawal is made with the leave of the Tribunal or
under subsection 154(6) or 155(7) of the Act (applying of its own force or
because of subsection 156(5)) of the Act.
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108 Amendment of documents
(1) The Tribunal may grant leave to a party to a Tribunal proceeding to amend a
document the party previously filed with the Registrar in connection with the
proceeding.
(2) The leave may be granted unconditionally or subject to such conditions as the
Tribunal thinks reasonable.
(3) If the leave is granted, the party must file with the Registrar a statement of the
amendments.
(4) The amendments are taken to be made when the statement is filed.
(5) The party must give every other party to the Tribunal proceeding a sealed copy
of the statement within 7 days after filing the statement.
Subdivision B—References of questions of law to Federal Court of
Australia
109 Request for reference of question of law to Federal Court of Australia
Form and content of request
(1) A request to the Tribunal for the reference of a question of law in a Tribunal
proceeding to the Federal Court of Australia under subsection 161(1) of the Act
must:
(a) be in writing addressed to the Registrar; and
(b) state the name of the party making the request; and
(c) specify the question of law; and
(d) be signed by or on behalf of the party making the request; and
(e) be filed with the Registrar.
Notice of request
(2) The party making the request must give every other party to the Tribunal
proceeding a sealed copy of the request, and a notice of the party’s right under
subsection (3):
(a) in any case—within 7 days after filing the request with the Registrar; and
(b) if the hearing of the proceeding to which the request relates has not
commenced or has been adjourned—not later than the day fixed for the
commencement of the hearing or to which the hearing has been adjourned.
Presenting case to the Tribunal relating to request
(3) A party to the proceeding may present a case in writing to the Tribunal in
relation to the request within 21 days after:
(a) if the party made the request—filing the request with the Registrar; or
(b) if the party was given a sealed copy of the request—being given that copy.
(4) The Tribunal may give to each party to the Tribunal proceeding an opportunity to
present a case orally to the Tribunal in relation to the request.
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Notice of decision on request
(5) The Registrar must give notice of the Tribunal’s decision on the request to:
(a) the party that made the request; and
(b) each other party that:
(i) presented a case to the Tribunal in relation to the request; or
(ii) notified the Tribunal that the party wished to be informed of the
decision.
110 Fixing new date for hearing if party requests reference of question of law to
Federal Court of Australia
(1) This section applies if:
(a) a party to a Tribunal proceeding requests the Tribunal to refer a question of
law to the Federal Court of Australia under subsection 161(1) of the Act;
and
(b) a day has been fixed for a hearing (whether or not a further hearing) of the
proceeding that is less than 28 days after the filing of the request.
(2) The President must fix a new day for the hearing of that Tribunal proceeding that
is more than 28 days after the filing of the request.
(3) The Registrar must give the parties to the Tribunal proceeding notice of the new
day.
111 Adjournment of Tribunal proceeding pending decision of Federal Court of
Australia
If:
(a) under subsection 161(1) of the Act the Tribunal refers a question of law
arising in a Tribunal proceeding for determination by the Federal Court of
Australia; and
(b) the Tribunal has not given its decision in the proceeding;
the Tribunal must adjourn its hearing of the proceeding until the question has
been heard and determined by the Federal Court of Australia.
112 Tribunal proceeding after determination of question of law by Federal
Court of Australia
(1) If a question of law arising in a Tribunal proceeding has been referred to the
Federal Court of Australia under section 161 of the Act, and determined by the
Court, any party to the proceeding before the Court may file with the Registrar
an office copy of the Court’s order.
(2) When the copy has been filed, the President must fix a time and place for the
resumption of the hearing of the Tribunal proceeding, unless:
(a) the question of law was referred to the Federal Court of Australia after the
Tribunal had given its decision in the Tribunal proceeding; and
(b) that decision is consistent with the determination of the Court.
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(3) The Registrar must give the parties to the Tribunal proceeding notice of the time
and place fixed.
113 Prescribed period for purposes of subsection 161(2) of the Act
For the purposes of subsection 161(2) of the Act, the prescribed period (for
requesting a reference of a question of law to the Federal Court of Australia after
the Tribunal gave its decision in a Tribunal proceeding) is 28 days from the date
on which the Tribunal gave its decision.
114 Prescribed period for purposes of subsection 161(3) of the Act
For the purposes of subsection 161(3) of the Act, the prescribed period (for
applying to the Federal Court of Australia for an order that the Tribunal refer to
the Court a question of law that the Tribunal has refused to refer after giving its
decision in a Tribunal proceeding) is 28 days from the date on which the
Tribunal refuses the request for a reference.
115 Suspension of orders of Tribunal pending reference of question of law to
Federal Court of Australia
(1) If, after the Tribunal has given its decision in a Tribunal proceeding, the Tribunal
refers to the Federal Court of Australia a question of law that arose in the
Tribunal proceeding, the Tribunal may suspend the operation of any order it
made in the Tribunal proceeding.
(2) The Registrar must:
(a) give every party to the Tribunal proceeding written notice of the
suspension; and
(b) if details of the order have been published under a direction given under
subsection 62(4)—publish details of the suspension in a manner specified
by the President.
116 Modified operation of Part VI of the Act in relation to suspended Tribunal
orders
While an order of the Tribunal is suspended:
(a) paragraph 154(6)(a), and subsections 155(8) and (10), of the Act operate as
if the order had not been made; and
(b) paragraph 154(6)(b) of the Act operates as if the order had not been
suspended; and
(c) section 159 of the Act does not operate in relation to the order.
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117 Parties to Tribunal proceeding are also parties to ancillary application
connected with Tribunal proceeding
If, under a provision of the Act or this instrument, a person is a party to a
Tribunal proceeding, the person is, for the purposes of this instrument, also a
party to any ancillary application that is made under this instrument and is
connected with the Tribunal proceeding.
118 Extension of time
(1) The Tribunal or the President may extend the time prescribed or allowed by or
under this Part for doing any act by such period or periods as the Tribunal or the
President thinks fit.
Note: Some examples of time prescribed for doing an act are time for filing a document with
the Registrar and time for giving a person a document.
(2) The extension may be subject to such conditions as the Tribunal or the President
thinks fit.
(3) The extension may be given before or after the end of the time concerned.
119 Fees for copies
(1) This section applies if, at the request of a person, the Registrar, or a member of
the staff assisting the Tribunal, makes a copy of all or part of a document that:
(a) is filed or lodged with the Tribunal in connection with an application or
reference to the Tribunal; or
(b) sets out the reasons for an order made by the Tribunal.
(2) A fee is payable by the person, consisting of:
(a) $0.80 for the first page of the document copied; and
(b) $0.20 for each extra page of the document copied.
(3) Subsection (2) does not apply if the person made the request in the performance
of his or her duties as a member of the Tribunal, the Registrar or a member of the
staff assisting the Tribunal.
120 Payment of witnesses’ fees and expenses
(1) This section applies if a person (the witness) attends, in accordance with a
summons, or at the request of a party to a Tribunal proceeding or of the Tribunal,
for either or both of the following purposes:
(a) to give evidence in a Tribunal proceeding;
(b) to produce documents or articles in a Tribunal proceeding.
(2) The person on whose behalf the witness is summoned or at whose request the
witness attends must pay the witness fees and expenses.
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(3) However, if the witness is summoned or attends at the request of the Tribunal,
the Commonwealth must pay the witness fees and expenses.
121 Summons
Form of summons to witness
(1) A summons to a witness under subsection 167(2) of the Act must be in the form
in Part 1 of Schedule 3.
Form of summons to produce documents or articles
(2) A summons to produce specified documents or articles under subsection 167(3)
of the Act must be in the form in Part 2 of Schedule 3.
Service of summons
(3) A summons under subsection 167(2) or (3) of the Act must be served on a person
by delivering a copy of the summons to the person personally.
122 Power to exempt from procedural requirements
(1) Subject to the Act, the Tribunal may, in special circumstances, exempt a person
from compliance with any procedural requirements of this Part relating to a
Tribunal proceeding.
(2) The exemption may be subject to conditions.
123 Effect of non-compliance with this Part
(1) Subject to the Act, non-compliance with this Part does not make void a Tribunal
proceeding or an order of the Tribunal.
(2) However, the Tribunal may do any of the following to the Tribunal proceeding
or order in such manner and upon such terms as the Tribunal thinks fit:
(a) set it aside wholly or in part as irregular;
(b) amend it;
(c) otherwise deal with it.
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124 Information on use of copyright material for services of the Crown—
subsection 183(4) of the Act
(1) For the purposes of subsection 183(4) of the Act, the owner of a copyright must
be informed of the doing of any act comprised in the copyright by a notice given
in accordance with this section.
Giving the notice
(2) The notice is to be given to the owner or owner’s agent.
(3) The notice is to be given in Australia if the person giving the notice knows a way
of contacting the owner or owner’s agent in Australia.
(4) However, the notice is to be given by publishing the notice in the Gazette if the
person giving the notice for the Commonwealth or the State does not know a
way of contacting either the owner or the owner’s agent.
Content of the notice
(5) The notice must:
(a) be given in the name of the Commonwealth or the State, as appropriate;
and
(b) set out:
(i) the International Standard Book Number (if any) in respect of the
work or other subject-matter concerned if that number can be
ascertained from that work or other subject-matter; and
(ii) if such a number cannot be so ascertained, or if such a number does
not enable the work or other subject-matter concerned to be
identified—the title (if any) of that work or other subject-matter and,
if that title does not enable the work or subject-matter to be identified,
a description of the work or subject-matter that enables it to be
identified; and
(c) specify the act to which the notice relates; and
(d) state whether the act has been done by the Commonwealth or the State or
by a person authorised by the Commonwealth or the State; and
(e) if the act has been done by a person authorised by the Commonwealth or
the State—state the name of that person; and
(f) state that the purpose of the notice is to inform the owner under
subsection 183(4) of the Act of the doing of the act.
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Part 13—Extension or restriction on operation of Act
125 International organizations to which the Act applies—subsection 186(1) of
the Act
For the purposes of subsection 186(1) of the Act, the organizations specified in
the following table are declared to be international organizations to which the
Act applies.
International organizations to which the Act applies
Item Organization
1 Food and Agriculture Organization of the United Nations
2 International Bank for Reconstruction and Development
3 International Centre for Settlement of Investment Disputes
4 International Civil Aviation Organization
5 International Development Association
6 International Finance Corporation
7 International Fund for Agricultural Development
8 International Labour Organization
9 International Maritime Organization
10 International Monetary Fund
11 International Telecommunication Union
12 Multilateral Investment Guarantee Agency
13 Organization of American States
14 United Nations
15 United Nations Educational, Scientific and Cultural Organization
16 United Nations Industrial Development Organization
17 Universal Postal Union
18 World Health Organization
19 World Intellectual Property Organization
20 World Meteorological Organization
21 World Tourism Organization
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Part 14—Moral rights
126 Other information and particulars for notices under section 195AT of the
Act
Notice relating to artistic work affixed to or forming part of building
(1) For the purposes of paragraph 195AT(2A)(c) of the Act, the following
information and particulars are prescribed for inclusion in a notice to an author,
or a person (the author’s representative) representing the author, relating to an
artistic work affixed to or forming part of a building:
(a) the date of the notice;
(b) the name (if any) and address of the building;
(c) a brief description of the work and its location in or on the building;
(d) the name and address of the owner of the building;
(e) the owner’s contact details during business hours, including work
telephone number and email address (if available);
(f) the name of the person who can provide the author or author’s
representative with access to the work and that person’s contact details;
(g) the business hours during which the author or author’s representative may
reasonably have access to the work;
(h) in relation to a change in the building (other than by relocation, demolition
or destruction), a brief description of the change and the extent (if any) to
which the work is likely to be affected;
(i) in relation to the relocation of the building, a brief description of the place
and form of the relocation, and the extent to which the work is likely to be
affected.
Notice relating to building or plans or instructions for construction
(2) For the purposes of paragraph 195AT(3A)(c) of the Act, the following
information and particulars are prescribed for inclusion in a notice to an author,
or a person (the author’s representative) representing the author, relating to a
building or any plans or instructions used in the construction of the building or a
part of the building:
(a) the date of the notice;
(b) the name (if any) and address of the building;
(c) the name and address of the owner of the building;
(d) the owner’s contact details during business hours, including work
telephone number and email address (if available);
(e) the name of the person who can provide the author or author’s
representative with access to the building and that person’s contact details;
(f) the business hours during which the author or author’s representative may
reasonably have access to the building;
(g) in relation to a change in the building (other than by relocation, demolition
or destruction), a brief description of the change and the extent (if any) to
which the building is likely to be affected;
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(h) in relation to the relocation of the building, a brief description of the place
and form of the relocation and the extent to which the building is likely to
be affected.
Notice relating to moveable artistic work
(3) For the purposes of paragraph 195AT(4B)(c) of the Act, the following
information and particulars are prescribed for inclusion in a notice to an author,
or a person (the author’s representative) representing the author, relating to the
removal or relocation of a moveable artistic work situated at a place that is
accessible to the public:
(a) the date of the notice;
(b) a brief description of the moveable artistic work;
(c) the address of the place, or description of the location, at which the
moveable artistic work may be accessed;
(d) the name and address of the remover of the moveable artistic work;
(e) the remover’s contact details during business hours, including work
telephone number and email address (if available);
(f) if necessary, the name of the person who can provide the author or author’s
representative with access to the moveable artistic work, and that person’s
contact details;
(g) if necessary, the business hours during which the author or author’s
representative may reasonably have access to the moveable artistic work;
(h) if the moveable artistic work is to be permanently removed or relocated,
the address or description of the new location or storage location (if not
open to the public) of the moveable artistic work;
(i) if the removal or relocation of the moveable artistic work will result in a
change of ownership in the work, the name and address of the new owner.
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Part 15—Miscellaneous
127 Period for keeping declarations relating to copying in library or archives—
subparagraph 203A(1)(b)(iii) and paragraph 203G(b) of the Act
For the purposes of subparagraph 203A(1)(b)(iii) and paragraph 203G(b) of the
Act, the period for keeping the declaration is 4 years after the making of the
reproduction to which the declaration relates.
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Part 16—Transitional matters
128 Directions about information relating to objection to import of copyright
material
A direction in force under subregulation 21(1) of the Copyright
Regulations 1969 (relating to import into Australia of copyright material)
immediately before the commencement of Part 9 of this instrument has effect on
and after that commencement as if it had been given under subsection 52(1) of
this instrument.
129 Objection to import of copyright material into Norfolk Island
A notice in force under subregulation 23(2) of the Copyright Regulations 1969
(relating to import into Norfolk Island of copyright material) immediately before
the commencement of Part 9 of this instrument has effect on and after that
commencement, for the purposes of section 53 of this instrument relating to
Norfolk Island, as if the notice:
(a) had been given under subsection 135(2) of the Act when it was given under
subregulation 23(2) of the Copyright Regulations 1969; and
(b) were subject to subsections 135(6) and (6A) of the Act (about revocation
and declaration of ineffectiveness of the notice).
Note: The notice does not have effect for the purposes of section 53 of this instrument
relating to other Territories or for the purposes of section 135 of the Act applying apart
from section 53 of this instrument to imports into parts of Australia other than the
external Territories.
130 Limitation on remedies available against carriage service providers
(1) A thing done under a provision of Part 3A (Limitation on remedies available
against carriage service providers) of the Copyright Regulations 1969 before the
commencement of Part 6 of this instrument has effect on and after that
commencement as if it had been done under the corresponding provision of
Part 6 of this instrument.
(2) To avoid doubt, subsection (1) has effect even if the thing was done using a form
prescribed in a provision of Schedule 10 to the Copyright Regulations 1969. In
that case, it has effect under subsection (1) as if it had been done using a form
prescribed in a corresponding provision of Schedule 2 to this instrument.
(3) For the purposes of this section, the following table shows which provisions of
Part 6 of, and Schedule 2 to, this instrument correspond to provisions of Part 3A
(Limitation on remedies available against carriage service providers) of, and
Schedule 10 to, the Copyright Regulations 1969.
Corresponding provisions
Provision of the Copyright Regulations 1969 Corresponding provision of the Copyright
Regulations 2017
1 Regulation 20C Section 19
2 Regulation 20E Section 21
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Corresponding provisions
Provision of the Copyright Regulations 1969 Corresponding provision of the Copyright
Regulations 2017
3 Regulation 20F Section 22
4 Regulation 20G Section 23
5 Regulation 20I Section 24
6 Regulation 20J Section 25
7 Regulation 20K Section 26
8 Regulation 20L Section 27
9 Regulation 20M Section 28
10 Regulation 20P Section 30
11 Regulation 20Q Section 31
12 Regulation 20R Section 32
13 Regulation 20T Section 34
14 Regulation 20U Section 35
15 Part 1 of Schedule 10 Part 1 of Schedule 2
16 Part 2 of Schedule 10 Part 2 of Schedule 2
17 Part 3 of Schedule 10 Part 3 of Schedule 2
18 Part 4 of Schedule 10 Part 4 of Schedule 2
19 Part 5 of Schedule 10 Part 5 of Schedule 2
20 Part 6 of Schedule 10 Part 6 of Schedule 2
131 Things done under the Copyright Tribunal (Procedure) Regulations 1969
(1) If:
(a) a thing was done for a particular purpose under the Copyright Tribunal
(Procedure) Regulations 1969 as in force immediately before those
Regulations were repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done
under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being
done includes a reference to a notice, application, reference or other instrument
being given or made.
(3) An approval of a design of a seal of the Tribunal that was in force for the
purposes of the Copyright Tribunal (Procedure) Regulations 1969 immediately
before they were repealed continues in force as if it were a determination of the
design of the seal under subsection 58(2) of this instrument.
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Schedule 1—Form of notice near machine for copying
works, published editions or audio-visual
items Note: See sections 5 and 13.
Part 1—Text of notice near machine for copying works or
published editions
Commonwealth of Australia
Copyright Act 1968
Notice about the reproduction of works and the copying of published editions
Warning
Copyright owners are entitled to take legal action against persons who infringe their
copyright. A reproduction of material that is protected by copyright may be a copyright
infringement. Certain dealings with copyright will not constitute an infringement, including:
(a) a reproduction that is a fair dealing under the Copyright Act 1968 (the Act), including
a fair dealing for the purposes of research or study; or
(b) a reproduction that is authorised by the copyright owner.
It is a fair dealing to make a reproduction for research or study, of one or more articles in a
periodical publication for the same research or same course of study or, for any other work, of
a reasonable portion of a work.
For a published work in hardcopy form that is not less than 10 pages and is not an artistic
work, 10% of the number of pages, or one chapter, is a reasonable portion.
For a published work in electronic form only, a reasonable portion is not more than, in the
aggregate, 10% of the number of words in the work.
More extensive reproduction may constitute fair dealing. To determine whether it does, it is
necessary to have regard to the criteria set out in subsection 40(2) of the Act.
A court may impose penalties and award damages in relation to offences and infringements
relating to copyright material.
Higher penalties may apply, and higher damages may be awarded, for offences and
infringements involving the conversion of material into digital or electronic form.
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Part 2 Text of notice near machine for copying works, published editions or audio-visual items
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Part 2—Text of notice near machine for copying works,
published editions or audio-visual items
Commonwealth of Australia
Copyright Act 1968
Notice about the reproduction of works and the copying of published editions and
audio-visual items
Warning
Copyright owners are entitled to take legal action against persons who infringe their
copyright. A court may impose penalties and award damages in relation to offences and
infringements relating to copyright material. Higher penalties may apply, and higher damages
may be awarded, for offences and infringements involving the conversion of material into
digital or electronic form.
Reproduction of works and copying of published editions
A reproduction of material that is protected by copyright may be a copyright infringement.
Certain dealings with copyright will not constitute an infringement, including:
(a) a reproduction that is a fair dealing under the Copyright Act 1968 (the Act), including
a fair dealing for the purposes of research or study; or
(b) a reproduction that is authorised by the copyright owner.
It is a fair dealing to make a reproduction for research or study, of one or more articles in a
periodical publication for the same research or same course of study or, for any other work, of
a reasonable portion of a work.
For a published work in hardcopy form that is not less than 10 pages and is not an artistic
work, 10% of the number of pages, or one chapter, is a reasonable portion.
For a published work in electronic form only, a reasonable portion is not more than, in the
aggregate, 10% of the number of words in the work.
More extensive reproduction may constitute fair dealing. To determine whether it does, it is
necessary to have regard to the criteria set out in subsection 40(2) of the Act.
Copying of audio-visual items
Unless otherwise permitted by the Act, unauthorised use of audio-visual items in which
copyright subsists may infringe copyright in that item.
It is not an infringement of copyright in an audio-visual item to use that item in a manner that
is a fair dealing under section 103C of the Act.
Section 103C of the Act relates to fair dealing for the purpose of research or study and sets
out the matters that must be considered in determining whether a reproduction of an
audio-visual item is a fair dealing.
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Part 3—Text of notice near machine for copying
audio-visual items
Commonwealth of Australia
Copyright Act 1968
Notice about the copying of audio-visual items
Warning
Copyright owners are entitled to take legal action against persons who infringe their
copyright. Unless otherwise permitted by the Copyright Act 1968 (the Act), unauthorised use
of audio-visual items in which copyright subsists may infringe copyright in that item.
It is not an infringement of copyright in an audio-visual item to use that item in a manner that
is a fair dealing under section 103C of the Act.
Section 103C of the Act relates to fair dealing for the purpose of research or study and sets
out the matters that must be considered in determining whether a reproduction of an
audio-visual item is a fair dealing.
A court may impose penalties and award damages in relation to offences and infringements
relating to copyright material.
Higher penalties may apply, and higher damages may be awarded, for offences and
infringements involving the conversion of material into digital or electronic form.
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Schedule 2 Forms for Part 6
Part 1 Form of notification relating to cached copyright material
78 Copyright Regulations 2017
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Schedule 2—Forms for Part 6 Note: See sections 21, 22, 24, 26, 31 and 34.
Part 1—Form of notification relating to cached copyright
material
Commonwealth of Australia
Copyright Regulations 2017
Notification that cached copyright material has been removed or access has been
disabled at the originating site
To [name of carriage service provider]
1. I give this notification for the purposes of condition 3 of item 3 of the table in
subsection 116AH(1) of the Copyright Act 1968 and section 21 of the Copyright
Regulations 2017.
2. I am the *owner/*exclusive licensee/*agent of the owner/*agent of the exclusive
licensee of the copyright in the following cached copyright material, and I believe in
good faith that it has been removed from, or access to it has been disabled at, the
originating site:
[insert sufficient information to enable the carriage service provider to identify:
(a) the cached copyright material; and
(b) the originating site from which the cached copyright material has been
removed or at which access has been disabled; and
(c) the cached copyright material on the carriage service provider’s system or
network that is to be removed, or to which access is to be disabled]
3. I have taken reasonable steps to ensure that the information and statements in this
notification are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
*Owner/*Exclusive licensee/*Agent of the owner/*Agent of the exclusive licensee
* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
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Note 2: A civil action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this notification—see section 39 of the Copyright Regulations 2017.
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Schedule 2 Forms for Part 6
Part 2 Form of notice relating to copyright material found to be infringing by Australian court
80 Copyright Regulations 2017
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Part 2—Form of notice relating to copyright material found
to be infringing by Australian court
Commonwealth of Australia
Copyright Regulations 2017
Notice relating to copyright material that has been found to be infringing by an
Australian court
To [name of carriage service provider]
1. I give this notice for the purposes of condition 2 of *item 4/*item 5 of the table in
subsection 116AH(1) of the Copyright Act 1968 and section 22 of the Copyright
Regulations 2017.
2. I am the *owner/*exclusive licensee/*agent of the owner/*agent of the exclusive
licensee of the copyright in the following copyright material *that resides on your
system or network/*to which you have provided a reference on your system or
network, and I believe, in good faith, that the copyright material has been found to be
infringing by an Australian court:
[insert sufficient information to enable the carriage service provider:
(a) to identify the copyright material that has been found to be infringing by an
Australian court; and
(b) to locate on the carriage service provider’s system or network the
copyright material or the reference provided by the carriage service
provider on its system or network to the copyright material]
3. I have taken reasonable steps to ensure that the information and statements in this
notice are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
*Owner/*Exclusive licensee/*Agent of the owner/*Agent of the exclusive licensee
* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
Note 2: A civil action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this notice—see section 39 of the Copyright Regulations 2017.
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Form of notice by owner, licensee or agent of claimed infringement by storage of copyright material
Part 3
Copyright Regulations 2017 81
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Part 3—Form of notice by owner, licensee or agent of
claimed infringement by storage of copyright
material
Commonwealth of Australia
Copyright Regulations 2017
Notice by copyright owner, licensee or agent of claimed infringement of copyright in
copyright material
To [name of carriage service provider]
1. I give this notice for the purposes of condition 3 of item 4 of the table in
subsection 116AH(1) of the Copyright Act 1968 and section 24 of the Copyright
Regulations 2017.
2. I am the *owner/*exclusive licensee/*agent of the owner/*agent of the exclusive
licensee of the copyright in the following copyright material residing on your system
or network, and I believe, in good faith, that the storage of the material on your
system or network is not authorised by the owner or any exclusive licensee of the
copyright in that material, or by the Copyright Act 1968, and is therefore an
infringement of the copyright in the material:
[insert sufficient information to enable the carriage service provider:
(a) to identify the copyright material in respect of which the infringement is
claimed; and
(b) to locate on the carriage service provider’s system or network the
copyright material]
3. I have taken reasonable steps to ensure that the information and statements in this
notice are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
*Owner/*Exclusive licensee/*Agent of the owner/*Agent of the exclusive licensee
* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
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Part 3 Form of notice by owner, licensee or agent of claimed infringement by storage of copyright
material
82 Copyright Regulations 2017
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Note 2: A civil action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this notice—see section 39 of the Copyright Regulations 2017.
Note 3: As soon as practicable after removing, or disabling access to, copyright material identified in this notice, the carriage service provider to which this notice is given must send a copy of this notice to the user who directed the carriage service provider to store the material on the carriage service provider’s system or network, along with a notice stating that the material has been removed, or access to it has been disabled, and that the user may give a counter-notice within 3 months—see section 25 of the Copyright Regulations 2017.
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Form of counter-notice in response to notice by copyright owner, licensee or agent of claimed
infringement Part 4
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Part 4—Form of counter-notice in response to notice by
copyright owner, licensee or agent of claimed
infringement
Commonwealth of Australia
Copyright Regulations 2017
Counter-notice in response to notice by copyright owner, licensee or agent of claimed
infringement of copyright
To [name of carriage service provider]
1. Having received a copy of a notice of claimed infringement from you under
section 25 of the Copyright Regulations 2017 in relation to the following copyright
material, I give this counter-notice for the purposes of condition 3 of item 4 of the
table in subsection 116AH(1) of the Copyright Act 1968 and section 26 of the
Copyright Regulations 2017:
[insert sufficient information to enable the carriage service provider to identify:
(a) the copyright material in respect of which the infringement is claimed; and
(b) where on the carriage service provider’s system or network the copyright
material was stored]
2. I am the user who directed you to store the copyright material on your system or
network.
3. I believe, in good faith on the grounds set out in paragraph 4, that the notice of
claimed infringement was given because of *a mistake as to fact or law in relation to
the copyright material/*a mistake in identifying the copyright material.
4. The grounds for my belief in the statement in paragraph 3 are as follows:
[state the grounds]
Omit the following paragraph if the user does NOT live in, or carry on a business in,
Australia.
*5. I agree to comply with the orders of a court having jurisdiction in the place in
Australia where I live or undertake my business.
Omit the following paragraph if the user lives in, or carries on a business in,
Australia.
*5. I agree to comply with the orders of a court having jurisdiction in a place in Australia
where you are located and where an action for infringement of the copyright in the
copyright material could be brought.
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6. I will accept service of process in any action for infringement of the copyright in the
copyright material.
7. I have taken reasonable steps to ensure that the information and statements in this
counter-notice are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
User
* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
Note 2: This counter-notice must be given to the carriage service provider’s designated representative within 3 months after the user receives the notice of claimed infringement to which the counter-notice relates— see section 26 of the Copyright Regulations 2017.
Note 3: A civil action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this counter-notice—see section 39 of the Copyright Regulations 2017.
Note 4: As soon as practicable after the carriage service provider receives this counter-notice, the carriage service provider must send a copy of it to the copyright owner, licensee or agent (who gave the notice of claimed infringement to which this counter-notice responds), together with a notice stating that if the owner, licensee or agent does not, within 10 business days after the date the notice was sent, bring an action seeking a court order to restrain the activity that is claimed to be infringing, the carriage service provider will restore, or enable access to, the copyright material on its system or network—see section 27 of the Copyright Regulations 2017.
Note 5: Information that could identify a user who is an individual may be disclosed by the carriage service provider in the copy of this counter-notice or the notice referred to in Note 4 sent to the copyright owner, licensee or agent if the disclosure is consistent with the Telecommunications Act 1997 and the Privacy Act 1988. If the carriage service provider is required by a court to disclose identifying information about a user who is an individual, the information must be disclosed.
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Form of counter-notice in response to takedown of copyright material without notice from copyright
owner, licensee or agent Part 5
Copyright Regulations 2017 85
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Part 5—Form of counter-notice in response to takedown of
copyright material without notice from copyright
owner, licensee or agent
Commonwealth of Australia
Copyright Regulations 2017
Counter-notice in response to takedown of copyright material without notice from
copyright owner, licensee or agent
To [name of carriage service provider]
1. Having received a notice from you under section 30 of the Copyright
Regulations 2017 in relation to the following copyright material, I give this
counter-notice for the purposes of condition 3 of item 4 of the table in
subsection 116AH(1) of the Copyright Act 1968 and section 31 of the Copyright
Regulations 2017:
[insert sufficient information to enable the carriage service provider to identify:
(a) the copyright material that has been removed, or to which access has been
disabled; and
(b) where on the carriage service provider’s system or network the copyright
material was stored]
2. I am the user who directed you to store the copyright material on your system or
network.
3. I believe, in good faith on the grounds set out in paragraph 4, that you have removed,
or disabled access to, the copyright material because of *a mistake as to fact or law in
relation to the copyright material/*a mistake in identifying the copyright material.
4. The grounds for my belief in the statement in paragraph 3 are as follows:
[state the grounds]
5. I have taken reasonable steps to ensure that the information and statements in this
counter-notice are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
User
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copyright owner, licensee or agent
86 Copyright Regulations 2017
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* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
Note 2: This counter-notice must be given to the carriage service provider’s designated representative within 3 months after the user receives the notice to which this counter-notice relates—see section 31 of the Copyright Regulations 2017.
Note 3: An action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this counter-notice—see section 39 of the Copyright Regulations 2017.
Note 4: If the carriage service provider is satisfied, on the basis of the information and statements in this counter-notice, that the copyright material is not, or is not likely to be, infringing, the carriage service provider must restore, or enable access to, the copyright material on its system or network—see section 32 of the Copyright Regulations 2017.
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copyright material Part 6
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Part 6—Form of notice by owner, licensee or agent of
claimed infringement by reference to infringing
copyright material
Commonwealth of Australia
Copyright Regulations 2017
Notice by owner, licensee or agent of claimed infringement by reference to infringing
copyright material
To [name of carriage service provider]
1. I give this notice for the purposes of condition 3 of item 5 of the table in
subsection 116AH(1) of the Copyright Act 1968 and section 34 of the Copyright
Regulations 2017.
2. I am the *owner/*exclusive licensee/*agent of the owner/*agent of the exclusive
licensee of the copyright in the following copyright material to which you have
provided a reference on your system or network:
[insert sufficient information to enable the carriage service provider:
(a) to identify the copyright material in respect of which the infringement is
claimed; and
(b) to locate on the carriage service provider’s system or network the
reference provided by the carriage service provider to the copyright
material]
3. I believe, in good faith, that the copyright material is infringing under the Copyright
Act 1968.
4. I have taken reasonable steps to ensure that the information and statements in this
notice are accurate.
Name:
Address:
Telephone number:
Email address:
[signature]
*Owner/*Exclusive licensee/*Agent of the owner/*Agent of the exclusive licensee
* Omit if inapplicable
Note 1: Strict compliance with this form is not required and substantial compliance is sufficient—see section 25C of the Acts Interpretation Act 1901.
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Part 6 Form of notice by owner, licensee or agent of claimed infringement by reference to infringing
copyright material
88 Copyright Regulations 2017
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Note 2: A civil action for a civil remedy may be brought by a person who suffers loss or damage because of a material misrepresentation made knowingly in this notice—see section 39 of the Copyright Regulations 2017.
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Summons to witness Part 1
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Schedule 3—Forms of summons Note: See section 121.
Part 1—Summons to witness
Commonwealth of Australia
Copyright Act 1968
In the Copyright Tribunal of Australia
[Title of Tribunal proceeding]
To: [name and address of witness]
1 You are summoned to attend before the Copyright Tribunal of Australia at [place] on
[day, month and year], at [time] *am/*pm and on any other days as required until the
hearing of proceedings in relation to the *application/*reference/*inquiry is completed
or you are released from further attendance.
2. You are required to attend before the Tribunal to give evidence in the proceedings.
Omit the following paragraph if the witness is not required to produce any documents
or articles. *3. You are required to bring with you and produce the following
*documents/*articles/*documents and articles: [set out the documents and articles
required]
Date:
*President/*Deputy President/*Member/*Registrar of the Copyright Tribunal of Australia
* omit, if inapplicable
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Part 2 Summons to produce documents or articles
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Part 2—Summons to produce documents or articles
Commonwealth of Australia
Copyright Act 1968
In the Copyright Tribunal of Australia
[Title of Tribunal proceeding]
To: [name and address of witness]
1. You are summoned to produce to the Copyright Tribunal of Australia the following *documents/*articles/*documents and articles: [set out the documents and articles
required]
2. You are required to produce the *documents/*articles/*documents and articles to
[specified person] at [specified time and specified place]
* omit, if inapplicable
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Explanatory Statement
Copyright Act 1968
Copyright Regulations 2017
Issued by the Authority of the Minister for Communications
Purpose
The Copyright Act 1968 (the Act) regulates and determines the scope of copyright in Australia.
Subsection 249(1) of the Act provides, in part, that the Governor-General may make
regulations, not inconsistent with the Act, prescribing all matters that are required or permitted
by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or
giving effect to the Act.
The purpose of the Copyright Regulations 2017 (2017 Regulations) is to remake the
Copyright Regulations 1969 (1969 Regulations) and the Copyright Tribunal (Procedure)
Regulations 1969 (Tribunal Regulations) in a single consolidated instrument and to modernise
and update certain provisions in the 1969 Regulations and the Tribunal Regulations.
The 1969 Regulations prescribe a range of matters that the Act requires or permits to be
prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect
to the Act. This includes provisions relating to copyright in original works and other
subject-matter, remedies for infringement of copyright, and the copying and communication of
copyright material by educational and other institutions.
Section 166 of the Act authorises the Regulations to make provision for or in relation to the
procedure in connection with the making of references and applications to the
Copyright Tribunal (the Tribunal) and the regulation of proceedings before the Tribunal. The
Tribunal is a specialist body that principally arbitrates disputes between copyright collecting
societies and their licensees.
The Tribunal Regulations include general provisions related to the operation of the Tribunal
such as the content and form of applications and references to the Tribunal, the filing with the
Tribunal of documents, the form and service of summons and the recording and notification of
Tribunal orders.
The 1969 Regulations and Tribunal Regulations are due to sunset on 1 April 2018 by operation
of Part 4 of Chapter 3 of the Legislation Act 2003. These Regulations were originally due to
sunset on 1 April 2017, but this was deferred to 1 April 2018 by the Legislation (Deferral of
Sunsetting—Copyright Instruments) Certificate 2017.
The 2017 Regulations also contain changes compared to the previous 1969 Regulations and
Tribunal Regulations reflecting amendments to the Act made by the Copyright Amendment
(Disability Access and Other Measures) Act 2017 (Disability Access Act). The majority of the
provisions of the 2017 Regulations commence at the same time as Schedule 1 to the
Disability Access Act commences.
The Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017
(TPM Regulations) are related to the 2017 Regulations. The TPM Regulations repeal Tribunal
Regulations in their entirety, and all of the provisions of the 1969 Regulations except those
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relating to technological protection measures. Those provisions relating to technological
protection measures will not be repealed prior to sunsetting on 1 April 2018 due to restrictions
on varying or revoking such regulations in section 249 of the Act. Accordingly, the provisions
in the 2017 Regulations relating to TPMs commence later on 1 April 2018. The TPM
Regulations also rename the 1969 Regulations to the Copyright (Technological Protection
Measures) Regulations 1969.
The 2017 Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
Details of the 2017 Regulations are set out at Attachment 1.
Consultation
An exposure draft of the 2017 Regulations was released for public consultation on
11 September 2017.
The following stakeholders made submissions on the exposure draft:
Australian Copyright Council
Australian Film & TV Bodies
Australian Home Entertainment Distributors Association (AHEDA)
Australian Libraries Copyright Committee (ALCC) and Australian Digital Alliance (ADA)
Joint Submission
Australasian Music Publishers Association Limited (AMPAL)
APRA AMCOS
Australian Publishers Association (various committees)
Copyright Advisory Group COAG Education Council
Copyright Agency
Communications Alliance
Commercial Radio Australia
Foxtel
Free TV
Interactive Games & Entertainment Association (IGEA)
Music Rights Australia
National Association for the Visual Arts (NAVA)
News Corp Australia
Pirate Party Australia
PPCA
Screenrights
Universities Australia
Nicolas Suzor, Associate Professor, Queensland University of Technology (QUT), Faculty of
Law
A number of stakeholders raised concerns with the operation of Part 6 of the Regulations. These
concerns went to matters of policy that are better addressed in the Government’s broader
consideration of the safe harbour scheme in the Copyright Act.
Some stakeholders raised practical concerns about changes to Copyright Tribunal procedures in
Part 11 of the 2017 Regulations. A number of amendments were made to Division 2 and 5 of
Part 11 to address those concerns.
Educational and collecting societies raised practical concerns with new requirements in Division
3 of Part 11 of the 2017 Regulations. Amendments were developed in consultation with those
stakeholders to address those concerns.
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There was significant disagreement between stakeholders as to whether new technological
protection measure exceptions in Part 7 of the Regulations met the requirements in subsection
249(4) of the Act. Some amendments were made to address creator and rights holder concerns,
particularly in relation to whether the exceptions in section ^40 met the requirements in
subsection 249(4) of the Act that the doing of the act that is the subject of the exception, be in
relation to a particular class of work or other subject matter; before the Minister can make a
recommendation to the Governor-General for additional TPM exceptions to be prescribed by
regulations.
Regulation Impact Statement
The Office of Best Practice Regulation has assessed that remaking these instruments without
substantial changes is not likely to have more than a minor and/or machinery regulatory impact
on business, community organisations and individuals. As such, a RIS is not required.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 is set out at Attachment 2.
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Attachment 1: Notes on Sections
Part 1—Preliminary
Part 1 contains general provisions relating to the commencement and operation of the 2017
Regulations.
Section ^1—Name
Section ^1 provides for the 2017 Regulations to be cited as the Copyright Regulations 2017.
Section ^2—Commencement
Section ^2 provides for the commencement of the 2017 Regulations.
Sections ^1 to ^3 of the 2017 Regulations commence on the day after they are registered.
Section ^4, Parts 2 to 6 and 8 to 16, and Schedules 1 to 3 commence at the same time as
Schedule 1 to the Disability Access Act. The majority of the provisions in the 2017 Regulations
commence at this time as they have been updated to take into account amendments to the Act
made by the Disability Access Act.
Part 7 of the 2017 Regulations commences on 1 April 2018. Part 7 commences on this date as
the provisions contained in that Part are equivalent to the provisions in Part 3B of, and
Schedule 10A to, the 1969 Regulations (which is also being renamed to the
Copyright (Technological Protection Measures) Regulations 1969), as amended by the
TPM Regulations.
Section ^3—Authority
Section ^3 provides that the 2017 Regulations are made under the authority of the Act.
Section 249 of the Act contains a general regulation making power. The particular sections, in
reliance on which each provision of the 2017 Regulations are made, vary. The source of each
power to prescribe a matter is, where relevant, identified in the note for the relevant section of
the 2017 Regulations.
Section ^4—Definitions
Section ^4 provides definitions of key expressions used in the 2017 Regulations. Additionally,
due to the operation of paragraph 13(1)(b) of the Legislation Act 2003, any expression used in
the 2017 Regulations has the same meaning as in the Act (noting, in particular, the
interpretation provisions in Part II of the Act).
The definitions, which were previously located throughout various parts of the
1969 Regulations and the Tribunal Regulations, have been consolidated into the one section of
the 2017 Regulations. The definitions remain in substantively the same form as the definitions
in the original 1969 Regulations and Tribunal Regulations.
Some of the definitions have been modernised. For example, an “address for service” specifies
an additional technological method, being an electronic address through which documents may
be served on the person or body (email), in addition to service of documents to an actual
physical address.
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The definition of “reference” has been added for clarification and for the avoidance of doubt
that this term would otherwise have a different meaning to, or be inconsistent with, the use of
the term “refer” and “referral” in the Act.
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Part 2—Copyright in original works
Part 2 is made in relation to Part III of the Act.
Part III of the Act makes provision for copyright in works, being original literary, dramatic,
musical or artistic works.
Part 2 of the 2017 Regulations replaces Part 2 of the 1969 Regulations.
Section ^5—Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 39A(b) of the Act
Section ^5 prescribes the required dimensions and form of notices under paragraph 39A(b) of
the Act, which relates to infringing copies made on machines installed in libraries and archives.
Section 39A of the Act provides that a body administering a library or archives, or the officer in
charge of the library or archive, is not taken, in certain circumstances, to have authorised the
making of an infringing copy of a work (or part thereof), merely because the copy is made using
a machine (including a computer) provided by, or with the approval of, the body for the
convenience of persons using the library or archives.
For the section to apply, paragraph 39A(b) requires a notice be affixed to, or in close proximity
to, the machine, in a place readily visible to persons using the machine. The notice must be of
prescribed dimensions and in accordance with the prescribed form.
The dimensions of the notice are prescribed by paragraph ^5(a) of the 2017 Regulations as at
least 297 millimetres (mm) long and 210 mm wide, which provides for A4 paper size as a
minimum size but allows for larger sized notices to be provided.
Paragraph ^5(b) prescribes the form of notice by reference to the text in the text in either Part 1
or Part 2 of Schedule 1 to the 2017 Regulations. The form in Schedule 1 provides alternative
text if the relevant machine could be used to make infringing copies of works or published
editions (Part 1 of Schedule 1), or infringing copies of works, published editions or audio-visual
items (Part 2 of Schedule 1).
Section ^6—Notice requirements for communication of electronic reproduction by library
or archives—subparagraph 49(7A)(c)(ii) of the Act
Section ^6 prescribes the notice requirements for the purposes of subparagraph 49(7A)(c)(ii) of
the Act.
Paragraph 49(7A)(c) relates to material provided to a person for the purposes of research or
study. It provides that in making an electronic reproduction of an article or published work
under subsections 49(2) or (2C) of the Act, before or when the reproduction is communicated to
the person, the person must be notified in accordance with the regulations that the reproduction
has been made under section 49 and that the article or work might be subject to copyright
protection under the Act (subparagraph 49(7A)(c)(i)). The person must also be notified, in
accordance with the regulations, about other such matters (if any) as are prescribed in the
regulations (subparagraph 49(7A)(c)(ii)). These notification requirements are necessary in order
for the person making the reproduction to avoid copyright infringement under subsections 49(6)
and (7) of the Act.
Section ^6 prescribes that for the purposes of subparagraph 49(7A)(c)(ii) of the Act, that the
notice also include information that further dealings with the reproduction may infringe
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copyright and that Division 3 of Part III of the Act affects whether further dealings would
infringe copyright.
Section ^6 replaces regulation 4D of the 1969 Regulations in substantively the same form.
Section ^7—Notice of intended publication of unpublished work kept in public library—
paragraphs 52(1)(b) and (2)(b) of the Act
Section ^7 prescribes the required form of notices under paragraphs 52(1)(b) and 52(2)(b) of the
Act.
Section 52 of the Act relates to the publication of unpublished works kept in libraries or
archives. Subsection 52(1) provides that first and subsequent publications of new works
incorporating the whole or a part of an old work, will not be an infringement of copyright in the
old work or an unauthorised publication of the old work where certain requirements are met.
These requirements include that before the new work is published, the prescribed notice of
intended publication of the work is given (paragraph 52(1)(b)).
Subsection ^7(3) prescribes the notice of intended publication which must be given prior to the
publication of a new work (which includes an unpublished work), which include Gazettal
requirements and other requirements such as the name of the intending publisher, the intending
publisher’s intention to publish the new work and the title and author of the old work.
Subsection 52(2) of the Act provides that subsection 52(1) 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 certain requirements, including that before subsequent
publication, the prescribed notice of the intended publication (paragraph 52(2)(b)), are met.
Subsection ^7(3) prescribes the same notice of intended publication requirements in this
situation.
Section ^7 replaces regulation 5 of the 1969 Regulations in substantively the same form,
however, it removes the three month upper limit on the publication of the prescribed notice of
intended publication of a new work incorporating an old, unpublished work, kept in a library or
archive under paragraphs 52(1)(b) and 52(2)(b) of the Act. The requirement is now that a
relevant notice be published at least two months before the publication of a new work.
Section ^8—Countries in relation to which Division 6 of Part III of the Act applies—
subparagraphs 55(1)(a)(iii) and (iv) and 59(1)(d)(iii) and (iv) of the Act
Section ^8 prescribes the countries in relation to which Division 6 of Part III of the Act applies.
Division 6 of Part III of the Act relates to the recording of musical works. Section 55 of the Act
provides for the conditions upon which a manufacturer may make records of musical work.
Section 59 of the Act provides for the conditions upon which a manufacturer may include part
of a literary or dramatic work in a record of musical work. These two paragraphs, include
provisions with references to countries. Countries, and their territories, are defined in
regulation 6, and listed in Schedule 8, to the 1969 Regulations.
Section ^8 of the 2017 Regulations uses a different mechanism to identify countries to which
Division 6 of Part III of the Act applies than the 1969 Regulations. Instead of a list of countries
that have been assessed as being parties to the relevant international conventions, or members of
the World Trade Organization (WTO), Division 6 of Part III of the Act will apply directly to a
country that is a member of the WTO, party to the Berne Convention for the Protection of
Literary and Artistic Works, party to the WIPO Copyright Treaty, or party to the
Universal Copyright Convention. Schedule 8 to the 1969 Regulations is not included as part of
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the 2017 Regulations. Notes are included at section ^8 with website addresses to find specific
information regarding the relevant lists of countries.
The intention is that the territories of a treaty party or WTO member would also be covered by
references to countries in section ^8.
This approach of specifying countries by reference to the countries being party to certain
international agreements is consistent with the approach adopted in the Copyright (International
Protection) Regulations 1969 to specifying countries. The Copyright (International Protection)
Regulations were amended in 2004 to use a similar mechanism, and since that time copyright
stakeholders have reportedly found it a simple and streamlined process for identifying the
countries to which protection under the Act extends. This mechanism is effective as the relevant
question to be answered by the 2017 Regulations is not whether a country has particular laws in
place, but rather their status as a party to a treaty. Since the amendments in 2004, the World
Intellectual Property Organization website and the WTO website have consistently provided an
up-to-date and an authoritative statement of the parties to the relevant treaties and members of
the WTO. During consultation, stakeholders did not express any concern with specifying
countries by reference.
Section ^9—Notice of intended making of record of musical work
Section ^9 prescribes the required notice for a person intending to make a record of a musical
work under paragraph 55(1)(b) of the Act.
Section 55 of the Act provides conditions upon which a manufacturer may make records of
musical work. Paragraph 55(1)(b) prescribes that the copyright in a musical work is not
infringed by a person who makes a record of the work in Australia, if, amongst other things,
before making the record, the prescribed notice of the intended making of the record was given
to the owner of the copyright.
Section ^9 prescribes the required notice is a written notice given in accordance with section ^9.
Subsection ^9(3) prescribes the content of such a written notice, and includes requirements such
as how the intending maker may be contacted (paragraph ^9(3)(b)) and the name of the author
of the work, if it is known to the intending maker (paragraph ^9(3)(c)).
Section ^9 replaces regulation 7 of the 1969 Regulations in substantively the same form.
Section ^10—Prescribed period relating to making of records of musical works—
subsection 55(3) of the Act
Section ^10 prescribes the period after the date of making records of musical works, for the
purposes of subsection 55(3) of the Act.
Section 55 of the Act provides conditions upon which manufacturer may make records of
musical work. Subsection 55(1) exempts the manufacturer from infringement when, among
other requirements, the sale or supply is made with the licence of the owner of the copyright
(subparagraph 55(1)(d)(i)). Subparagraph 55(1)(d)(i) does not apply to a record of a work where
sale or supply is made after the expiration of the prescribed period (subsection 55(3)).
The period prescribed by section ^10 is one month. This time period remains unchanged from
the 1969 Regulations. The one month period provides an exclusive opportunity to a local
manufacturer to make, market and distribute records locally.
Section ^10 replaces regulation 15 of the 1969 Regulations in substantively the same form.
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Section ^11—Inquiries relating to previous records of musical works—section 61 of the
Act
Section ^11 prescribes how inquiries relating to the previous making or import of a record of a
musical work are to be made and the period for receiving an answer to inquiries under
section 61 of the Act. Section 61 of the Act relates to the making of inquiries in relation to
previous records to enable a person to ascertain whether a manufacturer may make records of
musical works under section 55 of the Act.
Subsection ^11(2) prescribes who is to be asked, subsections ^11(3) to (5) prescribe how
inquiries are to be made, subsection ^11(6) prescribes the content of the inquiries and
subsection ^11(7) prescribes the period for answering inquiries.
Section ^11 replaces regulation 16 of the 1969 Regulations in substantively the same form.
Section ^12—Circumstances in which design is taken to be applied industrially—
section 77 of the Act
Section ^12 prescribes the circumstances in which a design is taken to be applied industrially for
the purposes of subsection 77(4) of the Act.
Section 77 of the Act relates to the application of artistic works as industrial designs without
registration of the designs.
Subsection ^12(1) prescribes that a design is taken to be applied industrially where it is applied
to more than 50 articles, or alternatively, to one or more articles (other than handmade articles)
manufactured in lengths or pieces.
Subsection ^12(2) prescribes the circumstances when any 2 or more articles are taken to
constitute a single article.
Subsection ^12(3) prescribes the circumstances when a design is taken to be applied to an
article.
Section ^12 replaces regulation 17 of the 1969 Regulations in substantively the same form.
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Part 3—Copyright in subject matter other than works
Part 3 is made in relation to Part IV of the Act. Part IV of the Act makes provision for matters
relating to copyright that subsists in subject matter other than works. This includes sound
recordings, cinematograph films, television broadcasts, sound broadcasts and published editions
of works.
Part 3 of the 2017 Regulations replaces Part 3 of the 1969 Regulations.
Section ^13—Notices to be displayed near library or archive machines used to make
infringing copies—paragraph 104B(b) of the Act
Section ^13 prescribes the required dimensions and form of notices under paragraph 104B(b) of
the Act.
Section 104B of the Act provides that a body administering a library or archive, or the officer in
charge of the library or archive, is not taken in certain circumstances to have authorised the
making of an infringing copy of published editions of a work or audio-visual items (or part
thereof), merely because the copy is made using a machine (including a computer) provided by
or with the approval of the body for the convenience of persons using the library or archive. An
audio-visual item is, as defined in section 100A of the Act, to mean a sound recording, a
cinematograph film, a sound broadcast or a television broadcast.
For the section to apply, paragraph 104B(b) requires a notice be affixed to, or in close proximity
to, the machine in a place readily visible to persons using the machine. The notice must be of
prescribed dimensions and in accordance with the prescribed form.
The dimensions of the notice are prescribed by paragraph ^13(a) of the 2017 Regulations as at
least 297 mm long and at least 210 mm wide, which provides for A4 paper size as a minimum
size but allows for larger sized notices to be provided.
The form of the notice is prescribed by paragraph ^13(b). The form in Schedule 1 provides
alternative text if the relevant machine could be used to make infringing copies of works or
published editions (Part 1 of Schedule 1), infringing copies of works, published editions or
audio-visual items (Part 2 of Schedule 1) or audio-visual items (Part 3 of Schedule 1).
Section ^14—Prescribed period relating to public performance of recordings first
published outside Australia—paragraph 108(1)(b) of the Act
Section ^14 prescribes the period after the date of first publication of a sound recording, where
that occurred outside Australia, for paragraph 108(1)(b) of the Act.
Section 108 of the Act provides that the copyright in a published sound recording is not
infringed by public performance of the recording in certain circumstances. This includes that in
the case of a recording that was first published outside Australia, either the recording must also
have been published in Australia, or the period prescribed for paragraph 108(1)(b) after the date
of the first publication of the recording has expired.
The period prescribed by section ^14 is seven weeks. This time period remains unchanged from
the 1969 Regulations. The seven week waiting period provides an exclusive opportunity to a
local manufacturer to make, market and distribute records locally.
Section ^14 replaces regulation 18 of the 1969 Regulations in substantively the same form.
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Section ^15—Prescribed period relating to broadcasts of recordings not published in
Australia—subsection 109(3) of the Act
Section ^15 prescribes the period after the date of first publication of a published sound
recording, where the recording has not been published in Australia, for subsection 109(3) of the
Act.
Section 109 of the Act provides that the copyright in a published sound recording is not
infringed by broadcast of the recording in certain circumstances by a free-to-air broadcaster.
This includes that in the case of a recording that was first published outside Australia, the
recording is not broadcast before the expiration of the period prescribed for subsection 109(3)
after the date of first publication of the recording.
The period prescribed by section ^15 is seven weeks. This time period remains unchanged from
the 1969 Regulations. The object of this seven week period is the same as that under section
^14, namely to given an exclusive opportunity to a local manufacturer to make, market and
distribute records locally.
Section ^15 replaces regulation 19 of the 1969 Regulations in substantively the same form.
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Part 4—Uses that do not infringe copyright
Part 4 is made in relation to Part IVA of the Act. Part IVA of the Act was inserted into the Act
by the Disability Access Act. As a result there was no equivalent of Part 4 in the
1969 Regulations.
Section ^16—Bodies administering key cultural institutions—paragraph 113L(b) of the
Act
Section 113L of the Act provides that a library or archive is a ‘key cultural institution’ if the
body administering it: (a) has, under a law of the Commonwealth or a state or territory, the
function of developing and maintaining the collection comprising the library or archives; or
(b) it is prescribed by the regulations for the purposes of paragraph 113L(b).
The definition of ‘key cultural institution’ is relevant to the preservation exception for key
cultural institutions in section 113M of the Act.
Section ^16 provides that the Australian Broadcasting Corporation, the Australian National
University and the Special Broadcasting Service Corporation are all prescribed as key cultural
institutions for the purposes of paragraph 113L(b) of the Act.
The Australian Broadcasting Corporation, the Special Broadcasting Service Corporation and the
Australian National University Archive Program were also prescribed for the purposes of
subparagraphs 51B(1)(a)(ii), 110BA(1)(a)(ii) and 112AA(1)(a)(ii) of the Act (which were
repealed by the Disability Access Act). The reference to the Australian National University
Archive Program has been amended in the 2017 Regulations to refer to the Australian National
University as the appropriate body administering the Archives Program. Section 113M of the
Act requires that an authorised officer of the key cultural institution be satisfied that the material
to be preserved is of historical or cultural significance to Australia.
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Part 5—Collecting societies
Section ^17—Rules of a collecting society—paragraphs 113W(d), 135ZZT(3)(d),
135ZZZO(7)(d) and 153F(6)(f) of the Act
This part is substantively similar to regulations 23J, 23JM and 23JL of the 1969 Regulations,
except that a single section now applies to paragraphs 113W(d), 135ZZZO(7)(d) and 153F(6)(f)
of the Act.
Section ^17 outlines 11 provisions that a body must include in their rules before the Minister or
the Copyright Tribunal can declare that body to be a collecting society. These rules are as
follows:
That the accounting period must be determined, in accordance with the rules, by the
collecting society for accounting purposes and that no accounting period may extend
beyond 30 June each year.
That consistent practice must be followed for attributing the recipient and expenditure
of the collecting society in each accounting period.
That the collecting society must exercise reasonable diligence in the collection of
equitable remuneration.
That the amount spent on gifts for cultural or benevolent purposes in each accounting
period must not exceed the percentage of equitable remuneration specified in the rules.
That the administrative costs and other outgoings of the collecting society paid out of
equitable remuneration is reasonable.
That the distributable amount relating to each accounting period must be allocated in
accordance with a scheme of allocation that is determined in accordance with the rules.
Includes criteria for allocation and provides for the allocation of potential shares in the
distributable amount to entitled persons.
That, in relation to each potential share in the distributable amount allocated in
accordance with the scheme, an entitled person, who is a member of the society at the
time of allocation, be paid as soon as is reasonably possible after the allocation.
That, in relation to each potential share in the distributable amount allocated in
accordance with the scheme, to an entitled person, who is not a member of the society at
the time of allocation, an amount representing the share must be paid into a trust fund
operated for the purpose outlined in paragraph ^17(1)(i) and must be held in that fund in
accordance with the rules. If the entitled person becomes a member whilst the amount is
being held on trust, the amount must be distributed to the person as soon as reasonably
possible after he or she becomes a member.
That a trust fund must be operated by the collecting society for the purposes that include
holding funds for any entitled person who is not a member of the society (or whose
agent is not a member).
That if any part of a distributable amount in relation to an accounting period cannot be
distributed it must be held on trust (in the trust referred to in paragraph ^17(1)(i) until
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distribution becomes possible or until the end of the specified period (which must not
be less than four years).
The section also details a number of key definitions relevant to the prescribed rules.
Section ^17 replaces regulation 23J, 23JM and 23L of the 1969 Regulations in substantively the
same form but also applies the same rules to a collecting society to be declared under the
Part VD statutory licence for re-broadcasts by satellite Broadcasting Services Act 1992 (BSA)
licensees.
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Part 6—Limitation on remedies available against carriage service
providers
Part 6 is made in relation to Division 2AA of Part V of the Act. Division 2AA of Part V of the
Act is a ‘safe harbour scheme’ that limits the remedies available against carriage service
providers for infringements of copyright that relate to the carrying out of certain online activities
by carriage service providers, subject to certain conditions. Carriage service providers benefit
from the resulting increased certainty in the industry about liability for copyright infringements
on their facilities or network infrastructure. The concept of a carriage service provider is defined
in section 87 of the Telecommunications Act 1997 (Tel Act).
Part 6 prescribes matters relating to industry codes, conditions of the application of the safe
harbour scheme, and civil remedies relating to actions taken in accordance with Division 2AA
of Part V of the Act. Part 6 of the 2017 Regulations replaces Part 3A of the 1969 Regulations.
Division 1—Preliminary
Division 1 makes provision in relation to the definition of “industry code” for Division 2AA of
Part V of the Act, and prescribes requirements in relation to notices and notifications given
under Part 6 of the 2017 Regulations. Division 1 replaces Division 3A.1 of Part 3A of the
1969 Regulations.
Section ^18—Industry code—section 116AB of the Act
Paragraph (a) of the definition of “industry code” in section 116AB of the Act provides that the
term means an industry code that: (i) meets any prescribed requirements; and (ii) is registered
under Part 6 of the Tel Act.
Section ^18 prescribes certain requirements for the purposes of subparagraph 116AB(a)(i) of the
Act, in relation to industry codes that do not deal solely with caching. The requirements are that
the provisions must be developed through an open voluntary process by a broad consensus of
copyright owners, exclusive licensees and carriage service providers. The section also provides
that the relevant provisions of an industry code must include a provision to the effect that
standard technical measures are technical measures that meet a number of requirements. The
technical measures must be used to protect and identify copyright material; be accepted under
the industry code or developed in accordance with a process set out in the industry code; be
available on non-discriminatory terms; and not impose substantial costs on carriage service
providers or substantial burdens on their systems or networks.
Section ^18 of the 2017 Regulations replaces regulation 20B of the 1969 Regulations in
substantively the same form, but for the avoidance of doubt, clarifies that an industry code that
deals solely with caching need not meet any prescribed requirements under subparagraph (b)(i)
of the definition of “industry code” in section 116AB of the Act.
Section ^19—Designated representative
Section ^20—Requirements for notifications and notices
As noted above, a carriage service provider must satisfy certain conditions to take advantage of
the safe harbour scheme limiting remedies available for infringements of copyright relating to
certain online activities. Section 116AH of the Act sets out such conditions for each of the
categories of relevant activities, including various conditions relating to compliance by carriage
service providers with prescribed forms and procedures (subsection 116AH(1)).
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Sections ^19 and ^20 set out general requirements that apply to notifications, notices and
counter-notices given for the purposes of a condition in subsection 116AH(1) of the Act.
Section 116AH of the Act, with the regulations made for that section (under Part 6 of the
2017 Regulations), imposes conditions on the application of the safe harbour scheme.
Section ^19 requires carriage service providers to designate a person to be the representative of
the provider to receive notifications and notices given for the purposes of a condition in
subsection 116AH(1) of the Act. The title and contact details of the designated person must be
published in a reasonably prominent location on the provider’s website. This enables persons
giving notifications etc. in accordance with this Part to comply with the requirement of
paragraph ^20(b).
Paragraph ^20(a) requires notifications, notices or counter-notices given for the purposes of a
condition in subsection 116AH(1) of the Act to be in accordance with the form prescribed by
the relevant provisions of Part 6 of the 2017 Regulations. These forms are described below at
the notes for the relevant sections. Paragraph ^20(b) requires notifications etc. to be issued to
the designated representative of the carriage service provider, either by post or electronic
communication (such as email).
Sections ^19 and ^20 replace regulations 20C and 20D of the 1969 Regulations respectively in
substantively the same form, removing prescription as to the forms of contact details required,
and relying on the Electronic Transactions Act 1999 in relation to signatures on electronic
communications.
Division 2—Conditions—cached copyright material
Section ^21—Notification relating to Category B activity
Section ^21 prescribes the form required for notices given in accordance with condition 3 of
item 3 of the table in subsection 116AH(1) of the Act.
Item 3 of the table in subsection 116AH(1) of the Act sets out conditions before the limitation
on remedies apply for category B activities. Category B activities are defined in section 116AD
of the Act as those that cache copyright material through an automatic process (not where the
carriage service provider manually selects the copyright material for caching). In particular,
condition 3 requires service providers to remove or disable access to cached copyright material
upon notification in the prescribed form, that the material has been removed, or that access to it
has been disabled at the originating site.
Section ^21 prescribes the form for the purposes of that condition, being the form in Part 1 of
Schedule 2 to the 2017 Regulations.
Section ^21 replaces regulation 20E of the 1969 Regulations, with some amendments that do
not alter the substantive elements of the prescribed form.
Division 3—Conditions—copyright material found to be infringing by an
Australian court
Section ^22—Notice in relation to Category C and D activities
Section ^22 prescribes the form required for notices given in accordance with condition 2 of
each of items 4 and 5 of the table in subsection 116AH(1) of the Act.
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Items 4 and 5 of the table in subsection 116AH(1) of the Act set out conditions that must be met
for the limitations on remedies to apply to category C and D activities respectively. Category C
activities are defined in section 116AE of the Act as those that store, at the direction of a user,
copyright material on a system or network controlled or operated by or for the carriage service
provider. Category D activities are defined in section 116AF of the Act as those that refer users
to an online location using information location tools or technology. In particular, condition 2
(in each case) requires the carriage service provider to expeditiously remove or disable access to
the copyright material, or the reference to the location of the material, residing on its system or
network upon receipt of a notice in the prescribed form that the copyright material has been
found to be infringing by a court.
Section ^22 prescribes the form for the purposes of each of those conditions, being the form in
Part 2 of Schedule 2 to the 2017 Regulations.
Section ^22 replaces regulation 20F of the 1969 Regulations, with some amendments [that do
not alter the substantive elements of the prescribed form].
Division 4—Conditions—takedown of copyright material following notice
Section ^23—Application of this Division
Section ^23 provides that Division 4 of Part 6 of the 2017 Regulations prescribes the procedure
to be followed by carriage service providers to comply with condition 3 of item 4 (Category C
activities) of the table in subsection 116AH(1) of the Act, in certain circumstances in which the
owner or exclusive licensee of the copyright (or their agent) wishes the carriage service provider
to remove or disable access to material that they reasonably believe is infringing.
In particular, condition 3 requires carriage service providers to comply with the prescribed
procedure relating to removing or disabling access to copyright material residing on its system
or network in certain circumstances.
The procedure prescribed in this Division applies in circumstances where the owner or
exclusive licensee of the copyright in the material (or an agent) reasonably believes the material
is infringing, and wishes the carriage service provider to remove or disable access to the
material. Division 5 of Part 6 of the 2017 Regulations prescribes another procedure, which
applies in different circumstances (broadly, where the carriage service provider becomes aware
that the material is, or is likely to be, infringing other than in circumstances covered by
Division 4).
At a high level, the procedure in this Division:
1. allows the owner or exclusive licensee of copyright material, or an agent of either of
these persons, to issue a notice of claimed infringement in relation to the material to the
carriage service provider (section ^24);
2. where such a notice is received, requires the carriage service provider to:
a. expeditiously remove, or disable access to, the copyright material specified in
the notice (subsection ^25(1)); and
b. send to the user that directed the provider to store the material a copy of the
notice, information about the action taken to disable or remove, and information
about the ability for the user to issue a counter-notice (subsection ^25(2)) to the
carriage service provider’s designated representative disputing the claims in the
notice of claimed infringement.
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If the carriage service provider has taken reasonable steps to identify the user
but has been unable to do so, or has sent the documents to the user but they are
not received by the user, then they will be taken to have complied with this
requirement to send these documents and information to the user
(subsection ^25(3));
3. allows the user to send a counter-notice to the carriage service provider disputing the
claims set out in the notice (section ^26);
4. where such a counter-notice is received, requires the carriage service provider to send to
the person who issued the original notice a copy of the counter-notice, and a further
notice that the copyright material will be restored to the system or network unless an
action to restrain the activity is brought against the user within ten business days
(section ^27); and
5. where the person who sent the original notice does not, in response to the further notice
at 4. above, notify the carriage service provider within ten business days that an action
has been brought against the user, or an action is brought and is unsuccessful, requires
the provider to restore, or enable access to, the copyright material on the system or
network (section ^28).
Section ^23 and Division 4 of Part 6 of the 2017 Regulations replace regulation 20G and
Division 3A.4 of Part 3A of the 1969 Regulations, with amendments that do not alter the
substantive elements of the prescribed procedure.
Section ^24—Notice of claimed infringement
Section ^24 allows the owner or exclusive licensee of copyright material, or an agent of either
of those persons, to issue a notice of claimed infringement in relation to the material to a
carriage service provider.
This is the first step in the procedure prescribed by this Division for condition 3 of item 4 of the
table in subsection 116AH(1) of the Act.
Subsection ^24(1) requires the notice to be issued to the designated representative of the
carriage service provider, which is the person designated by the service provider under
section ^19 of the 2017 Regulations with contact details to be available on the service provider’s
website.
Subsection ^24(2) requires the notice to be issued in accordance with the form set out in Part 3
of Schedule 2 to the 2017 Regulations.
Section ^24 replaces regulation 20I of the 1969 Regulations in substantively the same form.
Section ^25—Takedown procedure
Section ^25 requires a carriage service provider to take particular actions after receiving a notice
of claimed infringement issued under section ^24, in order for the service provider to be
compliant with the procedure prescribed by this Division.
This is the second step in the procedure prescribed by this Division for condition 3 of item 4 of
the table in subsection 116AH(1) of the Act.
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Subsection ^25(1) requires a carriage service provider, upon receipt of a notice under
section ^24, to expeditiously remove, or disable access to, the copyright material specified in the
notice and residing on its system or network.
Subsection ^25(2) then requires the service provider to send a copy of the section ^24 notice to
the user that directed the service provider to store the copyright material on its system or
network, as well as a notice stating certain matters. The service provider’s notice must state that
the copyright material has been removed, or access to it has been disabled. This notice must also
state that the user may give a counter-notice to the service provider in accordance with
section ^26 disputing the claims in the section ^24 notice. In complying with these requirements
(as per subsection ^25(3)) a carriage service provider will be taken to have complied with the
requirements in subsection ^25(2) if it has either sent the documents to the user, but they have
not been received by the user, or it has taken reasonable steps to identify the user, but has been
unable to do so.
The note to subsection ^25(2) explains that if the carriage service provider does not receive a
counter-notice under section ^26 (within three months) in relation to the copyright material,
then they are not required to take any further action in relation to the material under this
procedure.
Section ^25 replaces regulation 20J of the 1969 Regulations in substantively the same form.
Section ^26—Counter-notice
Section ^26 allows the user to send a counter-notice to the carriage service provider disputing
the claims set out in a section ^24 notice.
This is the third step in the procedure prescribed by this Division for condition 3 of item 4 of the
table in subsection 116AH(1) of the Act.
Subsection ^26(1) requires the counter-notice to be issued to the designated representative of the
carriage service provider, which is the person designated by the service provider under
section ^19 of the 2017 Regulations with contact details to be available on the service provider’s
website.
Subsection ^26(2) requires the notice to be issued within three months of receiving the copy of
the section ^24 notice from the carriage service provider, and to be issued in accordance with
the form set out in Part 4 of Schedule 2 to the 2017 Regulations.
Section ^26 replaces regulation 20K of the 1969 Regulations in substantively the same form.
Section ^27—Copy of counter notice to be sent to copyright owner
Section ^27 requires a carriage service provider to send a copy of a counter-notice issued under
section ^26 to the person who issued the section ^24 notice, and a further notice to that person
about the next steps in the procedure, in order for the service provider to be compliant with the
procedure prescribed by this Division.
This is the fourth step in the procedure prescribed by this Division for condition 3 of item 4 of
the table in subsection 116AH(1) of the Act.
Subsection ^27(1) requires the copy of the counter-notice to be sent to the person that issued the
section ^24 notice as soon as practicable after receiving the counter-notice. The subsection also
requires the service provider to send a notice stating that the person has ten business days to
bring an action seeking a court order to restrain the activity that is claimed to be infringing, or
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the carriage service provider will restore, or enable access to, the copyright material on its
system or network.
Subsection ^27(2) provides that information that could identify a user that is an individual may
only be disclosed if it is consistent with the Tel Act (see, in particular, Part 13 of that Act), and
the Privacy Act 1988.
Section ^28—Restoring copyright material
Section ^28 sets out the circumstances in which a carriage service provider must restore or
enable access to the copyright material that had been removed or to which access had been
disabled under section ^27.
Subsections^28(1) and ^28(2) essentially provide that if the carriage service provider sends a
copy of a counter-notice given by a user and a notice to the copyright owner, licensee or agent
under section ^27 and either the copyright owner, licensee or agent does not notify the carriage
service provider within ten working days after the documents were sent that they have brought
an action seeking a court order to restrain the activity that is claimed to be infringing; or the
carriage service provider is notified that an action for infringement of the copyright in the
copyright material has been discontinued or was unsuccessful; then the carriage service provider
must, as soon as practicable, restore or enable access to the copyright material on its system or
network.
The note to section ^28 states that the carriage service provider is not required to have regard to
a notification from the copyright owner, licensee or agent that they have brought an action
seeking a court order to restrain the activity that is claimed to be infringing if the notification is
received more than ten working days after the documents were sent to the copyright owner,
licensee or agent under section ^27.
Section ^28 replaces regulation 20M of the 1969 Regulations in substantively the same form.
Division 5—Conditions—procedure following takedown of copyright
material without notice from copyright owner, licensee or agent
Division 5 prescribes procedures that a carriage service provider must follow in relation to
condition 3 of item 4 (Category C activities) of the table in subsection 116AH(1) of the Act in
circumstances where the carriage service provider becomes aware that the material is infringing,
or of facts or circumstances that make it apparent that the material is infringing, however the
carriage service provider has not received notice from the copyright owner, exclusive licensee
or an agent of the owner of this.
Division 5 replaces Division 3A.5 of the 1969 Regulations in substantively the same form.
Section ^29—Application of this Division
Subsection ^29(1) provides that the Division prescribes the procedure to be followed after the
carriage service provider expeditiously removes or disables access to copyright material
residing on its system or network in accordance with condition 2A of item 4 of the table in
subsection 116AH(1) of the Act.
Subsection ^29(2) provides that Division 5 of the 2017 Regulations does not apply if the
carriage service provider becomes aware of a matter under paragraph ^29(1)(a) or (b) as a result
of receiving a notice of claimed infringement under Division 4.
Section ^29 replaces regulation 20N of the 1969 Regulations in substantively the same form.
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Section ^30—Notice to user
Section ^30 sets out a procedure, and requirements that must be included in a notice to users
after a carriage service provider has removed or disabled access to copyright material under
condition 2A of item 4 of the table in subsection 116AH(1) of the Act.
Subsection ^30(1) provides that as soon as practicable after removing or disabling access to the
copyright material, the carriage service provider must send to the user who directed the carriage
service provider to store the copyright material on its system or network, a notice stating certain
matters. These are that the copyright material has been removed or access to it has been
disabled; the grounds for doing so; and that the user may, within three months after receiving
the notice, issue a counter-notice in accordance with section ^31 to the carriage service
provider's designated representative disputing the grounds for removing or disabling access to
the copyright material and requesting that the carriage service provider restore or enable access
to it on the carriage service provider's system or network.
Subsection ^30(2) sets out circumstances in which a carriage service provider is taken to have
complied with subsection ^30(1). It will be sufficient for the carriage service provider to have
complied with subsection^30(1) if they have taken reasonable steps to identify the user but have
been unable to do so, or, if the carriage service provider sends the documents to the user as
required by subsection ^30(1) but it is not received by the user.
Section ^30 replaces regulation 20P of the 1969 Regulations in substantively the same form.
Section ^31—Counter notice
Section ^31 sets out a counter-notice procedure where a user receives a notice from a carriage
service provider under section ^30.
Subsection ^31(1) provides that if a user receives a notice from a carriage service provider
under section ^30, the user may give a counter-notice to the carriage service provider's
designated representative disputing the grounds for removing or disabling access to the
copyright material and requesting the carriage service provider to restore, or enable access to,
the copyright material on the carriage service provider’s system or network.
The note to subsection ^31(1) states that if the user does not issue a counter-notice to the
carriage service provider's designated representative, the carriage service provider is not
required to take any further action in relation to the copyright material.
Paragraph ^31(2)(a) provides that a counter-notice must be in accordance with the form set out
in Part 5 of Schedule 2, and paragraph ^31(2)(b) requires that the counter-notice must be issued
within three months after the user receives the notice from the carriage service provider under
section ^30. The period of three months is specified as it acknowledges that the user may need
time to seek legal advice regarding their options. A carriage service provider is under no
obligation to retain the material that has been removed if a counter-notice is not received within
three months.
Section ^31 replaces regulation 20Q of the 1969 Regulations in substantively the same form.
Section ^32—Restoring copyright material
Section ^32 provides that if the carriage service provider receives a counter-notice in relation to
copyright material under section ^31, and on the basis of the information and statements in the
counter-notice, is satisfied that the copyright material is not, or is not likely to be infringing, the
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carriage service provider must, as soon as practicable after receiving the counter-notice, restore,
or enable access to, the copyright material on its system or network.
Section ^32 replaces regulation 20R of the 1969 Regulations in substantively the same form.
Division 6—Conditions—takedown of reference to copyright material
following notice from copyright owner, licensee or agent
Division 6 sets out the procedures that copyright owners, exclusive licensees or their agents and
carriage service providers must follow in relation to condition 3 of item 5 (Category D
activities) of the table in subsection 116AH(1) in the circumstances where a copyright owner, or
agent, reasonably believes that material that a carriage service provider provides a reference to
on its system or network is infringing and wishes the carriage service provider to remove or
disable access to the reference to the material. Condition 3 of item 5 of the table in
subsection 116AH(1) requires a carriage service provider to comply with the prescribed
procedure in relation to removing or disabling a reference residing on its system or network.
Division 6 replaces Division 3A.6 of the 1969 Regulations in substantively the same form.
Section ^33—Application of this Division
Section ^33 provides that the Division prescribes the procedure to be followed in relation to a
reference to copyright material that is provided by a carriage service provider on its system if
the owner or exclusive licensee of the copyright material or their agent reasonably believes that
the material is infringing and wishes the carriage service provider to remove or disable access to
the reference to the material.
Section ^33 replaces regulation 20S of the 1969 Regulations in substantively the same form.
Section ^34—Notice of claimed infringement
Subsection ^34(1) provides that the copyright owner, exclusive licensee or their agent may give
a notice of claimed infringement to the carriage service provider's designated representative.
Subsection ^34(2) provides that the notice of claimed infringement must be in accordance with
the form set out in Part 6 of Schedule 2.
Section ^34 replaces regulation 20T of the 1969 Regulations in substantively the same form.
Section ^35—Takedown procedure
Section ^35 sets out the action required by a carriage service provider who receives a notice of
claimed infringement from a copyright owner, an exclusive licensee or their agent under
section ^34.
Section ^35 replaces regulation 20U of the 1969 Regulations in substantively the same form.
Division 7—Civil remedies
Division 7 sets out matters concerning civil remedies in relation to actions taken under the Act
and the 2017 Regulations.
Division 7 replaces Division 3A.7 of the 1969 Regulations in substantively the same form.
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Section ^36 – Authority
Section ^36 provides that this Division has effect for the purposes of section 116AJ of the Act.
That section provides that the regulations may:
provide that a carriage service provider is not liable for damages or any other civil
remedy as a result of action taken in good faith to comply with a condition
(subsection 116AJ(1));
provide civil remedies for conduct by relevant parties in relation to conditions
(subsection 116AJ(2)); and
prescribe offences for conduct by persons issuing notices under the regulations, and
prescribe penalties for offences against those regulations (with limited penalties)
(subsection 116AJ(3)).
Section ^36 is a new section that has no equivalent in the 1969 Regulations.
Section ^37—Action taken to comply with a condition
Section ^37 provides immunity to carriage service providers for damages or any other civil
remedy as a result of action taken in good faith by the carriage service provider to comply with
certain conditions in the table in subsection 116AH(1). The actions covered by this immunity
are:
removing or disabling access to cached copyright material upon notification in the
prescribed form that the material has been removed or that access to it has been disabled
at the originating site (condition 3 of item 3 of the table);
removing or disabling access to copyright material residing on its system or network
upon receipt of a notice in the prescribed form that the material has been found to be
infringing by a court (condition 2 of item 4 of the table);
removing or disabling access to copyright material residing on its system or network if
the carriage service provider becomes aware that the material is infringing or becomes
aware of facts or circumstances that make it apparent that the material is likely to be
infringing (condition 2A of item 4 of the table);
complying with the prescribed procedure in relation to removing or disabling access to
copyright material residing on its system or network as established in Division 3
(condition 3 of item 4 of the table);
removing or disabling access to a reference to copyright material that is provided by a
carriage service provider on its system or network upon receipt of a notice in the
prescribed form that the copyright material to which it refers has been found to be
infringing by a court (condition 2 of item 5 of the table);
removing or disabling access to a reference to copyright material that is provided by a
carriage service provider on its system or network if the carriage service provider
becomes aware that copyright material to which it refers is infringing or becomes aware
of facts or circumstances that make it apparent that the material to which it refers is
likely to be infringing (condition 2A of item 5 of the table); and
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complying with the prescribed procedure in relation to removing or disabling a
reference residing on a carriage service provider’s network (condition 3 of item 5 of the
table).
The note to section ^37 indicates that Divisions 2, 3, 4, and 6 of Part 6 to the 2017 Regulations
(‘Limitation on remedies available against carriage service providers') are relevant to those
conditions. Section ^37 replaces regulation 20V of the 1969 Regulations in substantively the
same form.
Section ^38—Failure to restore or enable access to copyright material
Subsection ^38(1) provides that where the carriage service provider has removed or disabled
access to copyright material but fails to comply with the requirements to restore the material in
accordance with section ^28 or ^32, the carriage service provider may be liable for damages or
any other civil remedy in an action taken by a user or third party affected by the failure to
restore the material.
Subsection ^38(2) provides that the carriage service provider is not liable for damages or any
other civil remedy in an action taken by the owner of the copyright in the copyright material
because of the carriage service provider's failure to restore, or enable access to, the relevant
copyright material in accordance with section ^28 or ^32.
The effect of section ^38 is that a carriage service provider may be liable to a user or third party
affected by the failure to restore the material, but is protected from liability to an owner or
exclusive licensee.
Section ^38 replaces regulation 20W of the 1969 Regulations with minor amendments.
Section ^39—Misrepresentations in notifications and notices
Subsection ^39(1) provides that a person who gives a notification, a notice of, or a
counter-notice for, the purpose of a condition in subsection 116AH(1) of the Act, must not
knowingly make a material misrepresentation in that notification, notice, or counter-notice.
Subsection ^39(2) provides that for subsection ^39(1), a person knowingly makes a material
misrepresentation in a notification, notice or counter-notice if the person does not take
reasonable steps to ensure the accuracy of the information included in the notification or notice.
This does not limit the circumstances in which a person knowingly makes a material
misrepresentation for the purposes of subsection ^39(1).
Subsection ^39(3) provides that a person who suffers loss or damage because of a material
misrepresentation made knowingly in a notification, notice or counter-notice may bring an
action for a civil remedy against the person who issued the notification, notice or counter-notice.
This subsection is intended to deter knowingly false allegations, or allegations that are made
without taking reasonable steps to ensure accuracy, in recognition of the detriment of such
misrepresentations to copyright owners, carriage service providers and internet users.
Subsection ^39(4) provides that if an action is brought in a court and that court is satisfied that
the person bringing the action suffered loss or damage because of the representation, the court
may grant the person whatever civil remedies for the loss or damage the court thinks fit.
Section ^39 replaces regulation 20X of the 1969 Regulations in substantively the same form
with additions to subsection ^39(2) and the inclusion of subsection ^39(4).
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Part 7—Technological protection measures
Part 7 is made in relation to Subdivision A of Division 2A and Subdivision A of Division 5, of
Part V of the Act, and related provisions. Subdivision A of Division 2A deals with actions in
relation to technical protection measures, which are technical controls that copyright owners use
to stop their material being accessed or copied, while Subdivision A of Division 5 provides
criminal offence provisions and exceptions in relation to circumventing an access control
technological protection measure. Part 7 replaces Part 3B of the 1969 Regulations.
Section ^40—Non infringing acts enabled by circumvention of access control technological
protection measures that are not actionable—paragraphs 116AN(9)(c) and 132APC(9)(c)
of the Act
Section 116AN of the Act provides for an owner or exclusive licensee of copyright in a work or
other subject matter to bring an action in certain circumstances relating to the knowing
circumvention of an access control technological protection measure. Section 132APC provides
a corresponding offence provision in relation to circumventing such a protection measure with
the intention of gaining a commercial advantage or profit. The civil and criminal remedies set
out are both subject to a series of exceptions/defences relating to: circumvention with
permission; interoperability; encryption research; computer security testing; online privacy; law
enforcement and national security; and libraries. Subsections 116AN(9) and 132APC(9) provide
for additional exceptions (to the prohibition) and defences (to the offence provision) to be
prescribed by regulations.
Section ^40 therefore lists the acts for the purposes of paragraphs 116AN(9)(c) and
132APC(9)(c) that do not infringe copyright. The purpose of this section is to stipulate that
certain prescribed acts allow for the lawful circumvention of access control TPMs. These derive
from stakeholder consultations and submissions made as part of the 2015 Review of
Technological Protection Measure exceptions made under the Copyright Act 1968 and
stakeholder submissions made in response to the release of the exposure draft of the 2017
Regulations. Some of the prescribed acts derive from changes made to the Act by the
Disability Access Act.
Section ^40 replaces Schedule 10A in the 1969 Regulations with substantive amendments.
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Part 8—Infringement notices and forfeiture of infringing articles and
devices
Part 8 is made in relation to Division 5 of Part V and Division 3 of Part XIA of the Act. It
establishes an infringement notice regime that would apply to a person who is alleged to have
committed certain offences of strict liability in those Divisions of the Act. Part 8 of this
instrument replaces Part 6A of the 1969 Regulations.
As part of the sunsetting review of the 1969 Regulations, the scheme in Part 8 of the 1969
Regulations has been standardised with the Regulatory Powers (Standard Provisions) Act 2014
(Regulatory Powers Act) to the extent possible.
While the infringement notice scheme is included in regulations, it is supported by an express
regulation-making power providing for this in sections 133B and 248SA of the Act. To better
align the scheme with the Regulatory Powers Act, consideration will be given to moving the
infringement notice scheme into the Act in future.
Part 8 of the 2017 Regulations requires that an infringement notice can only be issued if the
person has agreed to forfeit, and has forfeited, to the Commonwealth all infringing articles and
devices relating to the alleged offence in the person’s possession at the time the person was
informed. This ensures consistency with articles that can be destroyed or delivered up under
section 133 of the Act and encourages an infringement notice recipient to divest themselves of
material that they could use for further criminal activity.
Division 1—Preliminary
Division 1 deals with various preliminary matters, including the purpose of the Part and the
provisions it applies to.
Division 1 replaces Division 6A.1 of the 1969 Regulations in substantively the same form.
Section ^41—Object of this Part
Section ^41 outlines the purpose of Part 8 of the 2017 Regulations. The section explains that the
object of this Part is to set up a scheme to enable a person who is alleged to have committed an
offence of strict liability against Division 5 of Part V or Subdivision A or B of Division 3 of
Part XIA to pursue alternative options to being prosecuted.
The options include paying the Commonwealth an amount specified in an infringement notice
for the alleged offence.
For certain offences the alleged offender can forfeit to the Commonwealth each article or device
in their possession that is alleged to be an infringing copy of work or used for making an
infringing copy of a work other any other subject matter.
Section ^41 replaces regulation 23M of the 1969 Regulations in substantively the same form.
Section ^42—Provisions subject to an infringement notice
Section ^42 lists the provisions of the Act which are subject to an infringement notice under this
Part.
Section ^41 replaces regulation 23M of the 1969 Regulations in substantively the same form.
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Division 2—Infringement notices
Division 2 deals with the administrative matters relating to infringement notices.
Division 2 replaces Division 6A.3 of the 1969 Regulations in substantively the same form.
Section ^43—When an infringement notice may be given
Subsection ^43(1) provides that if an infringement officer believes, on reasonable grounds, that
a person has committed an offence against a provision subject to an infringement notice the
infringement officer may give to the person an infringement notice for the alleged offence.
Subsection ^43(2) provides that an infringement officer may only give the person an
infringement notice for the alleged offence against a provision of Division 5 of Part V of the Act
(except subsections 132AQ(5), 132AR(5) and 132AS(5) which relate to certain dealings with
electronic rights management information) if the infringement officer has informed the person
as described in subsection ^49(2) of the 2017 Regulations and the person has agreed to forfeit
and has forfeited to the Commonwealth the infringing articles and devices.
The notes to subsection ^43(2) inform the reader that: subsection ^49(2) is about an
infringement officer informing a person of the circumstances in which they may avoid
prosecution for an alleged offence against that Division if an infringement notice is issued; and
that Division 3 of Part 8 of the 2017 Regulations deals with forfeiture of infringing articles and
devices relating to alleged offences against provisions of Division 5 of Part V of the Act.
The term infringement officer is defined in section 4 to mean a member of the
Australian Federal Police; or the police force of a state or territory.
Subsection ^43(3) provides that an infringement notice must be issued within 12 months of the
alleged offence occurring.
Subsection ^43(4) provides that an infringement notice can only relate to a single offence
against a single provision.
Section ^43 replaces regulation 23P of the 1969 Regulations in substantively the same form.
Section ^44—Matters to be included in an infringement notice
Section ^44 lists the information that must be included on an infringement notice.
Section ^44 replaces regulation 23P of the 1969 Regulations and covers information previously
specified in Schedule 11C.
Section ^45—Extension of time to pay amount
Section ^45 allows a person to whom an infringement notice has been issued to apply to the
relevant chief executive, being the Commissioner of the Australian Federal Police or the police
force of a state/territory, for an extension of the period listed in the infringement notice. If the
application is made before the end of the listed period the chief executive can, in writing, extend
that period (either before or after the end of that period). The section also sets out some of the
practical matters regarding the period, to ensure that a decision to extend the period (or not) is
reflected in references to the period in notices and relevant instruments under Part 8. The
section also allows the relevant chief executive to extend the period more than once.
Section ^45 replaces regulation 23S of the 1969 Regulations in substantively the same form.
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Section ^46—Withdrawal of an infringement notice
Subsection ^46(1) provides for a person to whom an infringement notice has been given to
make written representations to the relevant chief executive seeking the withdrawal of the
notice.
Subsections ^46(2) and (3) deal with the withdrawal of notice. The relevant chief executive may
withdraw an infringement notice given to a person whether or not the person has sought the
withdrawal. When deciding whether to withdraw a notice the chief executive must take any
written representations made into account and may take into account a number of other things
including the circumstances of the alleged offence.
Subsection ^46(4) deals with the notice of withdrawal. Upon withdrawal of an infringement
notice, a notice must be given to the person detailing certain information including the person’s
name and address and that the person may be prosecuted in court for the alleged offence.
Subsection ^46(5) deals with the refund of the amount paid if an infringement notice is
withdrawn. If the person has paid the amount stated on the infringement notice and the relevant
chief executive subsequently withdraws the notice, the Commonwealth must refund the person.
Section ^46 replaces regulations 23W – 23Z of the 1969 Regulations with some amendments as
to the process.
Section ^47—Effect of payment of amount
Section ^47 provides that if a person who receives an infringement notice pays the amount
stated before the end to the period any liability of the person for the alleged offence is
discharged, the person may not be prosecuted in court for the alleged offence, the person is not
regarded to have admitted guilt of liability for the alleged offence, and the person is not
regarded as having been convicted of the alleged offence. Subsection ^47(1) does not apply if
the notice has been withdrawn.
Section ^47 replaces regulation 23V of the 1969 Regulations.
Section ^48—Effect of this Part
Section ^48 provides that this Part does not:
require an infringement notice to be given for an alleged offence against a provision
subject to an infringement notice under this Part;
affect the liability of a person for an alleged offence against a provision subject to an
infringement notice if a notice is not given, is given but later withdrawn, or if the
person does not comply with the notice;
prevent the giving of two or more infringement notices to a person for an alleged
offence; or
limit a court’s discretion to determine the penalty amount imposed on someone who is
found to have committed an offence.
Section ^48 replaces regulation 23M of the 1969 Regulations.
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Division 3—Forfeiture of infringing articles and devices
Division 3 deals with the forfeiture of infringing articles and devices.
Division 3 replaces Division 6A2 of the 1969 Regulations in substantively the same form.
Section ^49—Forfeiture of infringing articles and devices
Subsections ^49(1) and (2) provide that a person who an infringement officer believes on
reasonable grounds to have committed an offence of strict liability against Division 5 of Part V
of the Act (except for strict liability offences in relation to electronic rights management
information in subsections 132AQ(5), 132AR(5) and 132 AS(5)), and who possesses infringing
copies and/or other devices, may avoid prosecution by forfeiting those items to the
Commonwealth and paying the penalty in the infringement notice.
Subsection ^49(3) provides that if the person forfeits all the infringing articles and devices that
the person possesses, the authorised officer may take them and is required to issue a receipt for
those items.
Subsection ^49(4) provides that if the person pays the penalty in the infringement notice, the
relevant chief executive must cause all the infringing articles and devices forfeited to the
Commonwealth to be destroyed.
The section provides that articles and devices are only destroyed if the infringement notice is
paid. This is to ensure that such material will not be destroyed where there is a likelihood that
the matter will go to court and the articles and devices will be required as evidence, or in the
circumstances where a recipient seeks withdrawal of a notice and the notice is withdrawn.
Section ^49 replaces regulation 23O of the 1969 Regulations in substantively the same form.
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Part 9—Seizure of imported copies of copyright material
Part 9 is made in relation to Division 7 of Part V of the Act. It replaces Part 4 of the
1969 Regulations.
Section ^50—Definition of action period in section 134B of the Act
Section 134AB of the Act defines “action period”, in relation to particular seized copies, to
mean the period prescribed by the regulations after notice of a claim for release of the copies is
given to the objector (under section 135AED). Section ^50 prescribes a period of ten working
days.
Section ^50 replaces regulation 22 of the 1969 Regulations in substantively the same form.
Section ^51—Definition of claim period in section 134B of the Act
Section 134AB of the Act defines “claim period”, in relation to particular seized copies, to mean
the period prescribed by the regulations after notice of seizure of the copies is given to the
importer (under section 135AC). Section ^51 prescribes a period of ten working days.
Section ^51 replaces regulation 22A of the 1969 Regulations in substantively the same form.
Section ^52—Information to be given to Comptroller-General of Customs about objection
to importation of copies of works etc.—paragraph 135(8)(c) of the Act
Section 135 of the Act provides a framework for a copyright owner to give the
Comptroller-General of Customs a written notice objecting to the importation into Australia of
copies of copyright material to which the section applies. Such a notice under subsection 135(2)
must be given together with any prescribed document and be accompanied by any prescribed
fee. Subsection 135(8) provides that the regulations may make provision for or in relation to:
(a) the forms of notices under the section; (b) the times at which, and the manner in which,
notices are to be given; and (c) the giving of information and evidence to the
Comptroller‑General of Customs.
Section ^52 of the 2017 Regulations provides that for the purposes of paragraph 135(8)(c) of the
Act, the Comptroller-General of Customs may direct a person who notifies them under
subsection 135(2) of the Act to provide evidence about the subsistence of copyright in the
material, the ownership of copyright, and if an agent is used, the authority under which the
agent is acting. The person must comply with such a direction.
Section ^52 replaces regulation 21 of the 1969 Regulations in substantively the same form.
Section ^53—Seizure of copies of works etc. imported into certain external Territories—
subsection 135(9) of the Act
Subsection 135(9) of the Act further provides for the regulations to contain provisions similar to
the provisions of Division 7 of Part V of the Act, in relation to the importation into external
Territories (other than importation from Australia or from another external Territory) of copies
of copyright material. Section ^53 of the 2017 Regulations sets out certain laws which apply
(with modifications) in relation to the importation of copies of copyright material into
Norfolk Island; the Territory of Christmas Island; and the Territory of Cocos (Keeling) Islands.
Subsection ^53(1) of the 2017 Regulations provides for the application and states that this
section applies to the importation of copyrighted material from a place other than Australia to
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Norfolk Island, the Territory of Christmas Island or the Territory of the Cocos (Keeling)
Islands.
Subsection ^53(2) outlines the laws that apply in relation to such importation. This subsection
extends the application of Division 7 of Part 5 of the Act, subsections 135(1), (2), (3), (6), (6A),
(8) and (9) of the Act and sections ^50, ^51, and ^54 of the 2017 Regulations with certain minor
administrative amendments.
Subsection ^53(3) outlines the required modifications to the provisions as they apply to the
Territory. These modifications are as follows:
a reference in the applied provisions to Australia is a reference to the Territory;
a reference in the applied provisions to a notice under subsection 135(2) (however
described) or a notice given under section 135 is a reference to a notice given under
subsection 135(2) of the Act;
a reference in the applied provisions to the Comptroller-General of Customs has the
same meaning as it has in the Customs Act 1901 as it applies in the Territory because of
an Ordinance of the Territory;
a reference in subsection 135(5) or paragraph 135(7)(b) of the Act to revocation or
declaration of ineffectiveness of a notice under subsection 135(2) of the Act is a
reference to such a revocation or declaration under subsection 135(6) or (6A) of the
Act applying apart from this section;
a reference in paragraph 135(7)(d) of the Act to the Customs Act 1901 is a reference to
the Customs Act 1901 as it applies in the Territory because of an Ordinance of the
Territory; and
a reference in subsection 135AJ(1) or (3) to copies covered by a notice under
section 135 is a reference to copies of copyright material that were imported into the
Territory and could be or were seized on the basis of the notice. Even though the notice
under subsection 135(2) of the Act objects only to importation into parts of Australia
other than the Territories to which this section relates (because of subsection 135(1) of
the Act affecting paragraph 135(2)(b)), it will provide a basis for seizing copies
imported into any of those Territories (or into any other part of Australia).
The effect of these modifications is that only one notice objecting to importation need be given
as a basis for seizing copies imported into any of the Territories or any other part of Australia.
Likewise, a single revocation or declaration of ineffectiveness of the notice stops seizure of
imports of copies to which the notice related into any of the Territories or any other part of
Australia.
Section ^53 replaces regulation 23 of the 1969 Regulations.
Section ^54—Claim for release of seized copies—section 135AEA of the Act
Section ^54 provides the list of information that must be included in a claim, given by the
importer of seized copies to the Comptroller-General of Customs, for the release of seized
copies.
Section ^54 replaces regulation 22B of the 1969 Regulations in substantively the same form.
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Part 10—Retransmission of free to air broadcasts
Part 10 is made in relation to Part VC of the Act. It replaces Part 6 of the 1969 Regulations.
Part VC of the Act sets out a statutory licence for the retransmission of free-to-air broadcasts.
The Act provides that the copyright in a work, sound recording or cinematograph film included
in a free-to-air broadcast is not infringed by retransmission of the broadcast, if equitable
remuneration is paid. Retransmission of a free-to-air broadcast that takes place over the internet
is excluded from this remunerated exception (see section 135ZZJA). Essentially, the
retransmission scheme in Part VC allows the retransmission of free-to-air broadcasts, without
the permission or remuneration of the broadcaster, and for equitable remuneration to be paid to
the underlying rights holders.
Section ^55—Identity cards—subsection 135ZZQ(1) of the Act
Section 135ZZQ of the Act requires the chief executive officer of a collecting society to issue an
identity card in the prescribed form to each person authorised by the society to enter the
premises of a retransmitter to assess the retransmission or inspect records, for the purposes of
subsection 135ZZP(2). The identity card must contain a recent photograph of the authorised
person.
Section ^55 of the 2017 Regulations prescribes the form of identity card for the purposes of
subsection 135ZZQ(1) of the Act, which must include the following information to be valid:
the name of the collecting society;
the name and title of the person to whom the identity card is issued;
the name and title of the person who issued the identity card;
the date on which the identity card is issued;
the date on which the identity card will expire (no later than three years after the day on
which the identity card is issued);
a statement that the identity card has been issued under section 135ZZQ of the Act; and
the signature of the person to whom the identity card is issued.
Section ^55 replaces regulation 23K of the 1969 Regulations in substantively the same form.
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Part 11—Copyright Tribunal
Part 11 is made in relation to the Tribunal’s role in and under the Act, including Part VI of the
Act. It replaces the Tribunal Regulations.
Division 1—Preliminary
Section ^56—Authority
Section ^56 provides that Part 11 has effect for the purposes of section 166 of the Act.
Section 166 of the Act provides for regulations to be made in connexion with making references
and applications to the Tribunal, the regulation of proceedings before the Tribunal, the fees
payable in respect of those references and applications, and the fees or expenses for witnesses at
the Tribunal.
There was no equivalent of section ^56 in the Tribunal Regulations.
Section ^57—Organizations treated like persons
Section ^57 provides that Part 11, and other provisions of the 2017 Regulations so far as they
relate to the Part, apply to an organization (as defined under subsection 136(1) of the Act) in the
same way they apply to a person.
The term “organization” is defined in subsection 136(1) to mean an organization or association
of persons whether corporate or unincorporate.
Section ^57 is substantively similar to the definition of “person” in regulation 4 of the
Tribunal Regulations.
Division 2—General Provisions
Division 2 of Part 11 of the 2017 Regulations sets out general provisions for the business of the
Tribunal.
Section ^58—Seal of Tribunal
Section ^58 prescribes general provisions relating to the design of the seal and process of
affixing the seal of the Tribunal.
Section ^58 provides that:
the Tribunal is to have a seal;
the President is to determine the design of the seal;
the seal is to be attached a document of a kind directed by the President;
the seal is to be attached to any other documents as ordered by the Tribunal; and
the seal may be attached by hand, by electronic means or any other way.
Section ^58 replaces regulation 5 of the Tribunal Regulations.
Section ^59—Filing of documents
Section ^59 prescribes the process for filing documents under the Act.
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Section ^59 applies to the regulations in their entirety and prescribes when documents must not
be accepted, and when they may not be accepted.
At subsection ^59(1) it is prescribed that the Registrar must not accept a document for filing
where it is not substantially complete; does not substantially comply with this instrument; is not
properly signed; if the Tribunal has directed that the document not be accepted; or if the
Tribunal has directed that the document not be accepted without the leave of the Tribunal and
leave has not been obtained.
Section ^60—Address for service
Section 60 provides that a person who files a document with the Registrar that relates to a
Tribunal proceeding must specify an address for service and may notify the Tribunal and other
parties to a proceeding of an updated notice for service.
Section ^61—Tribunal may direct alternative means of service or dispense with service
Default rules for service of documents are set out in Part 6 of the Acts Interpretation Act 1901
or section 9 of the Electronic Transactions Act 1999. Section 61 provides that the Tribunal can
dispense with service or direct that a document be served in another way.
Section ^62—Notification of orders of Tribunal and of reasons
Section ^62 prescribes notification of orders of the Tribunal and of reasons.
Section ^62 provides that:
when making an order, the Tribunal must state in writing its reasons for making the
order (subsection ^62(1));
the Registrar must cause a copy of the document recording the order and of the reasons
of the Tribunal to be given to all parties the order relates to, as well as to make it
available at each office of the Registrar for public inspection at times the office is open
for business (subsection ^62(2));
ancillary and interim orders are excepted from subsections^62(1) -Written reasons for
orders, and ^62(2) - Giving and inspection of orders (subsection^62(3));
the President may also direct the Registrar to publish details of any order on the
Tribunal’s website (subsection^62(4)); and
subsection ^62(2) – Giving and inspection of orders and subsection^62(4) – President
may direct Registrar to publish order, do not apply to an order whose operation is
suspended pending a reference of a question of law to the Federal Court of Australia.
Section ^62 replaces regulation 15 of the Tribunal Regulations in substantively the same form,
and updates references to publication in newsprint to the Tribunal’s website.
Division 3—Applications and references to the Tribunal
Subdivision A—General provisions about applications and references to the
Tribunal
Subdivision A of Division 3 of Part 11 of the 2017 Regulations sets out general provisions for
the business of the Tribunal relating to applications and references to the Tribunal.
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Section ^63—Form, content and filing of application or reference to the Tribunal
Section ^63 prescribes general provisions for the form, content and filing of an application or
reference to the Tribunal.
Subsection ^63(1) requires an application or reference to the Tribunal to be in writing; state the
name of the person making the application or reference; state the general nature of the
application or reference as well as the specific provision of the Act or instrument under which
the application is being made; subject to subsection ^63(2) include such other matters required
by this instrument; be signed on behalf of the person making the application or reference, and be
filed with the Registrar.
Subsection ^63(2) provides that matters required by this instrument to be included in the
application or reference may be omitted if the President gives leave for the omission. Subsection
^63(3) further provides that while granting leave, the President may direct other matters to be
included in the application or reference instead of the omitted matters. Where that occurs, the
matters must be included in the application or reference.
Section ^63 replaces sub-regulations 17(1) and (2) of the Tribunal Regulations in substantively
the same form.
Section ^64—Giving application or reference to other parties
Section ^64 prescribes general provisions for giving applications or references to other parties
under section 147 of the Act.
Subsection ^64(1) requires a person making an application or reference to the Tribunal to,
within seven days after filing, give each other party to the application or reference a sealed copy
of the application or reference, and written notice that the other party is a party to the
application or reference.
Subsection ^64(2) excludes the section from applying to parties who become a party to the
application or reference after the time it is filed.
Section ^64 replaces sub-regulations 17(3) and (4) of the Tribunal Regulations in substantively
the same form.
Section ^65—Advertising of applications and references
Section ^65 prescribes general provisions for advertising of applications or references.
Subsection ^65(1) requires a person making an application or reference to the Tribunal to
advertise it in a national newspaper of Australia or the Gazette within ten days of filing the
application with the Registrar.
Subsection ^65(2) requires that the advertisement must: specify the date on which the
application or reference was made and the relevant file number; state the name and address for
service of the person; provide a statement of the general nature of the application or reference;
and specify the provision of the Act or the 2017 Regulations under which the application or
reference is made.
Subsection ^65(3) prescribes that the President may direct that a particular application or
reference need not be advertised, or be advertised in a different way to that required by
subsection ^65(1).
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A schedule of applications or references made under particular provisions of the Act and the
2017 Regulations that do not require advertising is prescribed by subsection ^65(5). The subject
of those provisions are determining equitable remuneration, apportioning royalty, determining a
question relating to copying or communicating by educational institution, determining question
relating to entry onto premises of educational institution, determining re-transmitter’s record
system, being made party to Tribunal proceeding, and an order relating to Tribunal proceeding.
These provisions relate to applications that are likely to relate to specific parties, rather than
being of application or interest to the general public.
Section ^65 replaces regulation 18 of the Tribunal Regulations in substantively the same form.
Section ^66—Hearing of application or reference
Section ^66 prescribes general provisions for the hearing of an application or reference to the
Tribunal.
Subsection ^66(1) prescribes that the President must fix a time and place for the hearing except
for an application covered by section ^99, or an application or reference where the Tribunal
decides not to have a hearing. Section ^99 relates to applications ancillary to Tribunal
proceedings where an application to be made a party to a Tribunal proceeding is made.
Subsection ^66(2) prescribes that the Registrar must give notice of the time and place fixed to
the parties to the reference or application, and persons (if any) who have applied to the Tribunal
to be made parties to the application or reference and whose applications to be made parties
have not already been determined.
Section ^66 replaces sub-regulation 17(7) of the Tribunal Regulations in substantively the same
form.
Subdivision B—Provisions about particular kinds of applications and references to
the Tribunal
Section ^67—Matters to be included in application under subsection 47(3) of the Act
Section ^67 prescribes the matters to be included in an application to the Tribunal under
subsection 47(3) of the Act to determine equitable remuneration for the making of a sound
recording, or cinematograph film, used for broadcasting a literary, dramatic or musical work or
an adaptation of such a work.
Section 47 provides a statutory licence for reproduction of literary, dramatic or musical works
for broadcasting purposes. Subsection 47(3) of the Act provides that the statutory licence will
only apply if the maker of the recording has paid the owner of the copyright equitable
remuneration as agreed between the broadcaster and copyright owner or as determined by the
Tribunal.
Section ^67 sets out the matters that are to be included in an application to the Tribunal to
determine equitable remuneration under subsection 47(3) of the Act.
Section ^67 replaces regulation 19 of the Tribunal Regulations in substantively the same form.
Section ^68—Matters to be included in application under paragraph 59(3)(b) of the Act
Section ^68 prescribes matters to be included in an application to the Tribunal under
paragraph 59(3)(b) of the Act for apportioning the royalty for making a record comprising the
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performance of a musical work involving the singing or speaking of words from a literary or
dramatic work.
Section 59 of the Act provides a statutory licence for reproduction of literary or dramatic works
in a record of a musical work. Subsection 59(3) of the Act provides that in certain
circumstances, the statutory exception will only apply if the maker of the recording has paid the
owner of the copyright in the literary or dramatic work equitable remuneration.
Subsection 59(3) of the Act provides that where copyright subsists in the musical work as well
as in the literary or dramatic work and the copyrights in those works are owned by different
people or where there is no agreement, then as determined by the Tribunal.
Section ^68 sets out the matters that are to be included in an application to the Tribunal to
apportion equitable remuneration under subsection 59(3) of the Act.
Section ^68 replaces regulation 20 of the Tribunal Regulations in substantively the same form.
Section ^69—Matters to be included in application under subsection 70(3) of the Act
Section ^69 prescribes matters to be included in an application to the Tribunal under
subsection 70(3) of the Act to determine equitable remuneration for the making of a
cinematograph film of an artistic work for including the work in a television broadcast.
Section 70 of the Act provides a statutory licence for inclusion of artistic works in films for the
purposes of television broadcast. Subsection 70(3) of the Act provides that the statutory
exception will only apply if the maker of the broadcast has paid the owner of the copyright in
the artistic work equitable remuneration as agreed between the maker of the film and copyright
owner or determined by the Tribunal.
Section ^69 sets out the matters that are to be included in an application to the Tribunal to
determine equitable remuneration under subsection 70(3) of the Act.
Section ^69 replaces regulation 21 of the Tribunal Regulations in substantively the same form.
Section ^70—Matters to be included in application under subsection 107(3) of the Act
Section ^70 prescribes matters to be included in an application to the Tribunal under
subsection 107(3) of the Act to determine equitable remuneration for making a copy of a sound
recording for broadcasting.
Section 107 of the Act provides a statutory licence for making a copy of a sound recording for
the purposes of broadcasting. Subsection 107(3) of the Act provides that the statutory licence
will only apply if the maker of the copy has paid the owner of the copyright in the sound
recording equitable remuneration as agreed between the maker of the copy and copyright owner
or as determined by the Tribunal.
Section ^70 sets out the matters that are to be included in an application to the Tribunal to
determine equitable remuneration under subsection 107(3) of the Act.
Section ^70 replaces regulation 22 of the Tribunal Regulations in substantively the same form.
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Section ^71—Matters to be included in application under paragraph 108(1)(a) of the Act
Section ^71 prescribes matters to be included in an application to the Tribunal under
paragraph 108(1)(a) of the Act to determine equitable remuneration for causing a published
sound recording to be heard in public.
Section 108 of the Act provides a statutory licence for public performance of published sound
recordings. Paragraph 108(1)(a) of the Act provides that the statutory licence will only apply if
equitable remuneration is undertaken to be paid to the owner of copyright in the sound
recording in the amount agreed between the person undertaking the public performance and the
copyright owner or determined by the Tribunal.
Section ^71 sets out the matters that are to be included in an application to the Tribunal to
determine equitable remuneration under paragraph 108(1)(a) of the Act.
Section ^71 replaces regulation 23 of the Tribunal Regulations in substantively the same form.
Section ^72—Matters to be included in application under paragraph 113P(4)(b) of the Act
Section ^72 prescribes matters to be included in an application to the Tribunal under
paragraph 113P(4)(b) of the Act to determine a question relating to copying or communicating
by a body administering an educational institution under the education statutory licence.
Division 4 of Part IVA of the Act provides a statutory licence for copying and communicating
works and broadcasts for educational institutions. Paragraph 113P(4)(b) provides the Tribunal
with the power to determine a question relating to the statutory licence, either before or after a
relevant agreement in paragraph 113P(1)(e) is reached.
In determining a question, column 3 of item 1 of the table in subsection 153A(4) of the Act
provides that the Tribunal must have regard to matters prescribed by the regulations. No matters
are currently prescribed in the 2017 Regulations. This is not intended to preclude the Tribunal
having regard to any other matter it deems relevant in determining a question.
Section ^73—Application under paragraph 113R(2)(b) of the Act
Division 4 of Part IVA of the Act provides a statutory licence for copying and communicating
works and broadcasts for educational institutions. Under subsection 113P(2) of the Act, for the
statutory licence to apply, a remuneration notice that applies to the relevant educational
institution must be in place. Section 113Q of the Act defines a remuneration notice as a written
notice that the body administering an educational institution gives to a collecting society by
which the body undertakes to pay equitable remuneration to the collecting society.
Section 113R provides that the amount of equitable remuneration under section 113Q of the Act
is the amount agreed between the body administering the educational institution and the
collecting society, or determined by the Tribunal. In determining equitable remuneration,
column 3 of item 2 of the table in subsection 153A(4) of the Act provides that the Tribunal must
have regard to matters prescribed by the regulations.
Subsection ^73(1) sets out the matters that are to be included in an application to the Tribunal to
determine equitable remuneration under paragraph 113R(2)(b) of the Act.
Subsection ^73(2) sets out the matters that the Tribunal must have regard to in determining
equitable remuneration under subsection 113R(2). This is not intended to preclude the Tribunal
having regard to any other matter it deems relevant in determining equitable remuneration.
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Section ^74—Matters to be included in application under paragraph 113S(4)(b) of the Act
Section ^74 prescribes matters to be included in an application to the Tribunal under
paragraph 113S(4)(b) of the Act to determine a question relating to entry of a person authorised
by a collecting society onto premises of an educational institution under the education statutory
licence.
Division 4 of Part IVA of the Act provides a statutory licence for copying and communicating
works and broadcasts for educational institutions. Paragraph 113S(4)(b) sets out how an
educational institution must assist a collecting society by allowing the collecting society entry
onto the premises of the educational institution to inspect records. Paragraph 113(4)(b) provides
the Tribunal with the power to determine a question relating to entry onto premises of an
educational institution.
In determining a question, column 3 of item 1 of the table in subsection 153A(4) of the Act
provides that the Tribunal must have regard to matters prescribed by the regulations. No matters
are currently prescribed in the Regulations. This is not intended to preclude the Tribunal having
regard to any other matter it deems relevant in determining a question.
Section ^75—Matters to be included in references under paragraph 113V(2)(c) of the Act
Section ^75 prescribes matters to be included in an application to the Tribunal under
paragraph 113V(2)(c) of the Act by a body to be declared as a collecting society under the
education statutory licence.
Division 5 of Part IVA of the Act provides for declaration and revocation of declarations for
collecting societies in relation to the statutory licence for copying and communicating works
and broadcasts for educational institutions in Division 4 of Part IVA of the Act.
Section 113V of the Act allows for a body to apply to the Minister to be declared to be a works
collecting society or the broadcasts collecting society. Paragraph 113V(2)(c) allows the Minister
to declare the body, refuse to declare the body or refer the application from the body to the
Tribunal.
Section ^76—Matters to be included in references under paragraph 113X(2)(b) of the Act
Section ^76 prescribes matters to be included in an application to the Tribunal under
paragraph 113X(2)(b) of the Act to determine the question whether the declaration of a body as
a collecting society should be revoked under the education statutory licence.
Subdivision A of Division 5 of Part IVA of the Act provides for declaration and revocation of
declarations for collecting societies in relation to the statutory licence for copying and
communicating works and broadcasts for educational institutions in Division 4 of Part IVA of
the Act.
Section 113X of the Act allows for the Minister to revoke a declaration to be a works collecting
society or the broadcasts collecting society in certain circumstances. Paragraph 113X(2)(b)
allows the Minister to revoke the declaration of the body, or refer the question whether the
declaration of the body should be revoked to the Tribunal.
Section ^77—Matters to be included in applications under subsection 113ZB(1) of the Act
Section ^77 prescribes matters that must be included in an application to the Tribunal under
subsection 113ZB(1) of the Act to review a collecting society’s actual or proposed arrangement
for distributing amounts it collects under the education statutory licence.
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Subdivision A of Division 5 of Part IVA of the Act sets out requirements for the operation of
collecting societies in relation to the statutory licence for copying and communicating works
and broadcasts for educational institutions in Division 4 of Part IVA of the Act.
Section 113ZB provides for Tribunal review of the distribution arrangement of a collecting
society. Subsection 113ZB(1) provides that the collecting society or a member of the society
may apply to the Tribunal for review of the arrangement adopted, or proposed to be adopted, by
the society for distributing amounts it collects in a period.
Section ^78—Matters to be included in applications under subsection 135ZZM(1) of the
Act
Section ^78 prescribes matters that must be included in an application to the Tribunal made
under subsection 135ZZM(1) of the Act to determine equitable remuneration payable for
retransmissions of free-to-air broadcasts.
Part VC of the Act provides a statutory licence for retransmission of free-to-air broadcasts.
Under subsection 135ZZK(1) of the Act, for the statutory licence to apply, a remuneration
notice must be given by a retransmitter to the relevant collecting society. Section 135ZZL of the
Act defines a remuneration notice as a written notice that a retransmitter gives to a collecting
society by which it undertakes to pay equitable remuneration to the collecting society.
Section 135ZZM provides that the amount of equitable remuneration under section 135ZZL of
the Act is the amount agreed between the retransmitter and the collecting society, or determined
by the Tribunal.
Section ^78 replaces regulation 23K of the Tribunal Regulations in substantively the same form.
Section ^79—Matters to be included in application under subsection 135ZZN(3) of the Act
Section ^79 prescribes matters that must be included in an application to the Tribunal made
under subsection 135ZZN(3) of the Act for determining a record system under the statutory
licence for retransmission of free-to-air broadcasts.
Part VC of the Act provides a statutory licence for retransmission of free-to-air broadcasts.
Under subsection 135ZZK(1) of the Act, for the statutory licence to apply, a remuneration
notice must be given by a retransmitter to the relevant collecting society. Section 135ZZN of the
Act requires that if a remuneration notice is in force, a retransmitter must establish and maintain
a records system that details the programs that are included in each retransmission made.
Subsection 135ZZN(3) provides that a record system must be determined by agreement, or
failing agreement, by the Tribunal on application by the retransmitter or collecting society.
Section ^79 replaces regulation 23L of the Tribunal Regulations in substantively the same form.
Section ^80—Matters to be included in references under paragraph 135ZZT(1A)(c) of the
Act
Section ^80 prescribes matters that must be included where references to the Tribunal are made
by the Minister under paragraph 135ZZT(1A)(c) of the Act of an application by a body to be
declared as a collecting society under the statutory licence for retransmission of free-to-air
broadcasts.
Division 3 of Part VC of the Act provides for declaration and revocation of declarations for
collecting societies in relation to the statutory licence for retransmission of free-to-air broadcasts
under Part VC of the Act. Section 135ZZT of the Act allows for a body to apply to the Minister
to be declared to be a collecting society. Subsection 135ZZT(1A) allows the Minister to declare
the body, refuse to declare the body or refer the application from the body to the Tribunal.
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Section ^80 replaces regulation 23JA of the Tribunal Regulations in substantively the same
form, but does not refer to matters to be included in references under paragraph 135ZZB(1A)(c).
Section ^81—Matters to be included in references under paragraph 135ZZU(2)(b) of the
Act
Section ^81 prescribes matters to be included in an application under paragraph 135ZZU(2)(b)
of the Act to determine the question of whether the declaration of a body as a collecting society
under the statutory licence for retransmission of free-to-air broadcasts should be revoked.
Division 3 of Part VC of the Act provides for declaration and revocation of declarations for
collecting societies in relation to the statutory licence for retransmission of free-to-air broadcasts
under Part VC of the Act.
Section 135ZZU of the Act allows for the Minister to revoke a declaration to be a works
collecting society or the broadcasts collecting society in certain circumstances.
Paragraph 135ZZU(2)(b) allows the Minister to revoke the declaration of the body, or refer the
question of whether the declaration of the body should be revoked to the Tribunal.
Section ^81 replaces regulation 23JB of the Tribunal Regulations in substantively the same
form, but does not refer to matters to be included in references under paragraph 135ZZC(2)(b).
Section ^82—Matters to be included in application under subsection 135ZZWA(1) of the
Act
Section ^82 prescribes matters to be included in an application to the Tribunal made under
subsection 135ZZWA(1) of the Act under the statutory licence for retransmission of free-to-air
broadcasts.
Division 3 of Part VC of the Act sets out requirements for the operation of collecting societies
in relation to the statutory licence for retransmission of free-to-air broadcasts under Part VC of
the Act.
Section 135ZZWA provides for Tribunal review of the distribution arrangement of a collecting
society. Subsection 135ZZWA(1) provides that the collecting society or a member of the
society may apply to the Tribunal for review of the arrangement adopted, or proposed to be
adopted, by the society for distributing amounts it collects in a period.
Section ^82 replaces regulation 23CG of the Tribunal Regulations in substantively the same
form, but does not refer to matters to be included in references under subsections 135SA(1),
135ZZEA(1) or section 183F of the Act. Section ^77 relates to matters to be included in
references under subsections 135SA(1) and 135ZZEA(1) (now section 113ZB, because of
amendments to the Act made by the DAOM Act).
Section ^83—Matters to be included in application under subsection 135ZZZS(1) of the
Act
Section ^83 prescribes matters to be included in an application to the Tribunal made under
subsection 135ZZZS(1) of the Act to review a collecting society’s actual or proposed
arrangement for distributing amounts it collects under the statutory licence for re-broadcasts by
satellite BSA licences.
Part VD provides a statutory licence for re-broadcasts by satellite BSA licences.
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Section 135ZZZS provides for Tribunal review of the distribution arrangement of a collecting
society. Subsection 135ZZZS(1) provides that the collecting society or a member of the society
may apply to the Tribunal for review of the arrangement adopted, or proposed to be adopted, by
the society for distributing amounts it collects in a period.
Section ^83 does not appear in the Tribunal Regulations in substantively the same form.
Section ^84—Matters to be included in application under subsection 152(2) of the Act
Section ^84 prescribes matters to be included in an application to the Tribunal under
subsection 152(2) of the Act for an order about determining the amount payable by a
broadcaster to the owners of copyrights in published sound recordings for broadcasting those
recordings in a period under the statutory licence for the free-to-air broadcast of published
sound recordings.
Section 152 of the Act sets out a statutory licence for the free-to-air broadcast of published
sound recordings. Subsection 152(2) provides that in relation to the statutory licence, an
application may be made to the Tribunal for an order determining, or making provision for
determining, the amount payable by a broadcaster to the owners of copyrights in published
sound recordings in respect of the broadcasting, during a specific period specified in the
application, of those recordings by that broadcaster.
Section ^84 replaces regulation 24 of the Tribunal Regulations in substantively the same form.
Section ^85—Matters to be included in application under subsection 152(12) of the Act
Section ^85 prescribes matters to be included in an application to the Tribunal under
subsection 152(12) of the Act for amendment of an order to specify the applicant as one of the
persons among whom the amount determined in accordance with the order is to be divided
under the statutory licence for the free-to-air broadcast of published sound recordings.
Section 152 of the Act sets out a statutory licence for the free-to-air broadcast of published
sound recordings. Subsection 152(12) provides that a person who is not specified in an order in
force under subsection 152(6) as one of the persons among whom the amount specified in, or
determined in accordance with, the order is to be divided may, before the expiration of the
period to which the order applies, apply to the Tribunal for an amendment of the order so as to
specify him or her as one of those persons.
Section ^85 replaces regulation 25 of the Tribunal Regulations in substantively the same form.
Section ^86—Matters to be included in application under subsection 153F(1) of the Act
Section ^86 prescribes matters to be included in an application to the Tribunal under
subsection 153F(1) of the Act for a declaration that a company be a collecting society under the
statutory licence for use of copyright material for the Crown.
Division 2 of Part VII of the Act sets out a statutory licence for use of copyright material for the
Crown. Section 153F sets out the procedure for a body to be declared as a collecting society for
the purposes of the statutory licence. Subsection 153F(1) provides that a company limited by
guarantee may apply to the Tribunal for a declaration that the company be a collecting society
for the purposes of Division 2 of Part VII.
Section ^86 replaces regulation 25C of the Tribunal Regulations in substantively the same form.
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Section ^87—Matters to be included in application under subsection 153G(1) of the Act
Section ^87 prescribes matters to be included in an application to the Tribunal made under
subsection 153G(1) of the Act for revocation of a declaration under section 153F that a
company be a collecting society under the statutory licence for use of copyright material for the
Crown.
Division 2 of Part VII of the Act sets out a statutory licence for use of copyright material for the
Crown. Section 153G sets out the procedure for a declaration as a collecting society for the
purposes of the statutory licence to be revoked. Subsection 153G(1) provides that the collecting
society, a member of the collecting society or a government may apply to the Tribunal for the
revocation of a collecting society under section 135F.
Section ^87 replaces regulation 25D of the Tribunal Regulations in substantively the same form.
Section ^88—Matters to be included in application under subsection 153K(1) of the Act
Section ^88 prescribes matters to be included in an application to the Tribunal made under
subsection 153K(1) of the Act for an order determining the method for working out
remuneration payable under the statutory licence for use of copyright material for the Crown.
Division 2 of Part VII of the Act sets out a statutory licence for use of copyright material for the
Crown. Section 153K provides for a collecting society of Government to apply to the Tribunal
for an order determining the method for working out remuneration payable under
subsection 183A(2) for government copies made for the services of government in a particular
period.
Section ^88 replaces regulation 25E of the Tribunal Regulations in substantively the same form.
Section ^89—Matters to be included in reference under section 154 of the Act
Section ^89 prescribes matters to be included in an application to the Tribunal under
subsection 154 of the Act in relation to a proposed licence scheme.
Subdivision H of Division 3 of Part VI of the Act sets out the Tribunal’s powers with respect to
licences and licence schemes. Section 154 relates to the reference of proposed licence schemes
to the Tribunal.
Subsection 154(1) provides that where a licensor proposes to bring a licence scheme into
operation, he or she may refer the scheme to the Tribunal.
Section ^89 replaces regulation 26 of the Tribunal Regulations in substantively the same form.
Section ^90—Reference of existing licence scheme under section 155 of the Act
Subsection ^90(1) prescribes matters to be included when a reference of a licence scheme to the
Tribunal is made under section 155 of the Act in relation to an existing licence scheme.
Subsection ^90(2) requires that if the reference is made by an organization claiming to be
representative of persons requiring licences, the Tribunal must, before determining the question
whether the organization is reasonably representative of the class of persons that it claims to
represent, give each of the following an opportunity to present a case in relation to that question,
every other party to the reference, every person who has applied to be made a party to the
reference and whose application has not been determined.
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Subdivision H of Division 3 of Part VI of the Act sets out the Tribunal’s powers with respect to
licences and licence schemes. Section 155 relates to the reference of existing licence schemes to
the Tribunal.
Subsection 155(1) provides that while a licence scheme is in operation and a dispute arises with
respect to the terms of the scheme, the licensor, organization claiming to be representative of
persons requiring licences or a person who claims they require a licence, may refer the scheme
to the Tribunal.
Section ^90 replaces regulation 27 of the Tribunal Regulations in substantively the same form.
Section ^91—Reference under section 156 of the Act
Section ^91 prescribes matters to be included when a reference of a licence scheme to the
Tribunal is made under section 156 of the Act.
Subdivision H of Division 3 of Part VI of the Act sets out the Tribunal’s powers with respect to
licences and licence schemes. Section 156 relates to the reference of existing licence schemes to
the Tribunal.
Subsection 156(1) provides that while the Tribunal has made a final order in relation to a licence
scheme under sections 154 or 155 and a dispute arises with respect to the terms of the scheme
while the order remains in force, the licensor, organization claiming to be representative of
persons requiring licences or a person who claims they require a licence, may refer the scheme
to the Tribunal.
Subsection ^91(2) also requires that if the reference is made by an organization claiming to be
representative of persons requiring licences, the Tribunal must, before determining the question
whether the organization is reasonably representative of the class of persons that it claims to
represent, give each of the following an opportunity to present a case in relation to that question:
every other party to the reference; and
every person who has applied to be made a party to the reference and whose application
has not been determined.
Section ^91 replaces regulation 29 of the Tribunal Regulations in substantively the same form.
Section ^92—Application for leave under subsection 156(2) of the Act to refer licence
scheme to the Tribunal
Section ^92 prescribes matters to be included when an application for leave to refer a licence
scheme to the Tribunal is made under subsection 156(2) of the Act and the Tribunal’s leave is
sought before the preliminary hearing or hearing of the reference.
Subdivision H of Division 3 of Part VI of the Act sets out the Tribunal’s powers with respect to
licences and licence schemes. Section 156 relates to the reference of existing licence schemes to
the Tribunal. Subsection 156(1) provides that while the Tribunal has made a final order in
relation to a licence scheme under sections 154 or 155 and a dispute arises with respect to the
terms of the scheme while the order remains in force, the licensor, organization claiming to be
representative of persons requiring licences or a person who claims they require a licence, may
refer the scheme to the Tribunal. Subsection 156(2) provides that a scheme can’t be referred to
the Tribunal under subsection 156(1) without the Tribunal’s leave if:
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the order was made to be in force for a period exceeding 15 months, and less than 12
months has elapsed; or
the order was made to be in force for a period not exceeding 15 months— and less than
three months ending on the date of expiration of the order.
Subsection ^92(1) applies if a person wants the leave of the Tribunal under subsection 156(2) of
the Act to refer to the Tribunal under subsection 156(1) of the Act a licence scheme reflecting
an order of the Tribunal under section 154 or 155 of the Act so far as it relates to cases in a
class, and wants the leave granted before the preliminary hearing or the hearing of the reference.
Subsection ^92(2) prescribes that the person must make an application to the Tribunal and
outlines what must be included in an application.
Subsection ^92(3) provides that the parties to the application are the applicant, and if the
application is not made by the licensor operating the scheme – that licensor, and such other
persons (if any) as apply to the Tribunal to be made parties to the application and are made
parties to the application under subsection 156(4).
Subsection ^92(4) prescribes that the Tribunal may make a person party to the application if the
person applies to the Tribunal to be made a party to the application, and appears to the Tribunal
to have a substantial interest in the operation of the scheme so far as it relates to the class of
cases specified in the application.
Subsection ^92(5) states that the Tribunal must consider the application, and give the parties to
the application an opportunity to present their cases, and make such order, either granting or
refusing the application, as the Tribunal thinks fit.
Section ^92 replaces regulation 28 of the Tribunal Regulations in substantively the same form.
Section ^93—Application under subsection 157(1) of the Act
Subsection ^93(1) prescribes matters to be included in an application to the Tribunal under
subsection 157(1) of the Act relating to the refusal or failure of a licensor operating a licence
scheme to grant, or procure the grant, to the applicant of a licence.
Subsection ^93(2) provides that the licensor is party to the application.
Subdivision H of Division 3 of Part VI of the Act sets out the Tribunal’s powers with respect to
licences and licence schemes. Section 157 refers to applications to the Tribunal in relation to
licences. Subsection 157(1) allows a person to apply to the Tribunal where there is a refusal or
failure to grant a licence under a licence scheme.
Section ^93 replaces regulation 30 of the Tribunal Regulations in substantively the same form.
Section ^94—Application under subsection 157(2) of the Act
Subsection ^94(1) prescribes matters to be included in an application to the Tribunal under
subsection 157(2) of the Act where the charges or conditions for the grant of a licence are not
reasonable in the circumstances of the case.
Subsection ^94(2) prescribes that the licensor is a party to the application.
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Section 157 of the Act refers to the application to the Tribunal in relation to licences.
Subsection 157(2) allows a person to apply to the Tribunal where they claim that a licence
scheme sets unreasonable charges or conditions.
Section ^94 replaces regulation 31 of the Tribunal Regulations in substantively the same form.
Section ^95—Application under subsection 157(3) of the Act
Section ^95 applies to applications made to the Tribunal under subsection 157(3) of the Act
where a licence scheme does not apply and a person considers that a licensor has failed or
refused to grant a reasonable licence.
Section 157 of the Act refers to the application to the Tribunal in relation to licences.
Subsection 157(3) provides that a person who claims that he or she requires a licence in a case
to which a licence scheme does not apply, including a case where a licence scheme has not been
formulated or is not in operation, and that a licensor has refused or failed to grant the licence, or
to procure the grant of the licence, and that in the circumstances it is unreasonable that the
licence should not be granted, or that a licensor proposes that the licence should be granted
subject to the payment of charges, or to conditions, that are unreasonable, may apply to the
Tribunal under this section.
Subsection ^95(1) prescribes that this section applies to an application to the Tribunal under
subsection 157(3) of the Act relating to a claim that the applicant requires a licence in a case to
which a licensing scheme does not apply and that a licensor has unreasonably refused or failed
to grant, or procure the grant, of the licence, or proposes that the licence should be granted
subject to the payment of charges, or to conditions, that are unreasonable.
Subsection ^95(2) prescribes matters to be included in an application to the Tribunal under
subsection 157(3) of the Act.
Subsection ^95(3) prescribes that the application must request the Tribunal to make an order
that the applicant be granted a licence in the terms proposed by the applicant, the licensor or
another party to the application, or an order stating the charges and the conditions that the
Tribunal considers reasonable in the circumstances for the applicant.
Subsection ^95(4) prescribes that the licensor is a party to the application.
Section ^95 replaces regulation 32 of the Tribunal Regulations in substantively the same form.
Section ^96—Applications under subsection 157(4) of the Act
Section ^96 applies to applications made to the Tribunal under subsection 157(4) of the Act
where a licence scheme does not apply and an organization that is representative of people
requiring licences considers that a licensor has failed or refused to grant a reasonable licence, or
proposes that a licence be granted subject to unfair charges or conditions.
Section 157 of the Act refers to the application to the Tribunal in relation to licences.
Subsection 157(4) provides that an organization that claims that it is representative of persons
requiring licences in cases to which a licence scheme does not apply, including cases where a
licence scheme has not been formulated or is not in operation, and that a licensor has refused or
failed to grant the licences, or to procure the grant of the licences, and that in the circumstances
it is unreasonable that the licences should not be granted, or that a licensor proposes that the
licences should be granted subject to the payment of charges, or to conditions, that are
unreasonable, may apply to the Tribunal.
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Subsection ^96(1) applies to an application to the Tribunal under subsection 157(4) of the Act
by an organization that claims that it is representative of persons requiring licences in cases to
which a licence scheme does not apply, and that a licensor has unreasonably refused or failed to
grant, or procure the grant, of the licences, or proposes that the licences should be granted
subject to the payment of charges, or to conditions, that are unreasonable.
Subsection ^96(2) prescribes matters to be included in an application to the Tribunal under
subsection 157(4) of the Act.
Subsection ^96(3) prescribes that the application must request the Tribunal to make an order
that a licence be granted, in the terms proposed by the applicant, the licensor or another party to
the application, to each person who is specified in the order, whether by reference to a class or
otherwise, and was represented by the applicant or was a party to the application; or an order
stating the charges (if any) and the conditions that the Tribunal considers reasonable in the
circumstances for the persons represented by the applicant.
Subsection ^96(4) states that the licensor is a party to the application.
Section ^96 replaces regulation 33 of the Tribunal Regulations in substantively the same form.
Section ^97—Application under subsection 183(5) of the Act
Section ^97 applies to an application to the Tribunal under subsection 183(5) of the Act to fix
terms for use of copyright material by the Crown under the statutory licence for use of copyright
material for the Crown.
Part VII of the Act sets out provisions in relation to the Crown. Division 2 of Part VII of the Act
relates to the use of copyright material for the Crown. Section 183 of the Act refers to the use of
copyright material for the services of the Crown. Subsection 183(5) provides that where an act
comprised in a copyright has been done under subsection 183(1), the terms for the doing of the
act are such terms as are, whether before or after the act is done, agreed between the
Commonwealth or the state or territory and the owner of the copyright or, in default of
agreement, as are fixed by the Tribunal.
Subsection 183(1) provides that the copyright in a literary, dramatic, musical or artistic work or
a published edition of such a work, or in a sound recording, cinematograph film, television
broadcast or sound broadcast, is not infringed by the Commonwealth or a state or territory, or
by a person authorized in writing by the Commonwealth or a state or territory, doing any acts
comprised in the copyright if the acts are done for the services of the Commonwealth or state or
territory.
Subsection ^97(1) applies to an application to the Tribunal to fix terms under subsection 183(5)
of the Act for the doing, by the Commonwealth, a state or territory or a person authorised by the
Commonwealth or a state or territory, of an act that is comprised in copyright, and does not
infringe copyright because of subsection 183(1) of the Act.
Subsection ^97(2) prescribes matters to be included in an application to the Tribunal under
subsection 183(5).
Subsection ^97(3) prescribes that the application must request the Tribunal to fix terms as
between the owner or exclusive licensee of the copyright and the Commonwealth or the state or
territory for the doing of any of the acts comprised in the copyright under subsection 183(1) of
the Act.
Section ^97 replaces regulation 33C of the Tribunal Regulations in substantively the same form.
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Section ^98—Matters to be included in applications under subsection 183F(1) of the Act
Section ^98 prescribes matters to be included in applications to the Tribunal under
subsection 183F(1) of the Act to review an actual or proposed arrangement for distributing
amounts collected by a collecting society for use of copyright material by the Crown.
Part VII of the Act sets out provisions in relation to the Crown. Division 2 relates to the use of
copyright material for the Crown. Section 183F refers to the application to the Tribunal for
review of the distribution arrangement. Subsection 183F(1) provides that a collecting society or
a member of a collecting society may apply to the Tribunal for review of the arrangement
adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects
in a period.
Section ^98 replaces regulation 23CG of the Tribunal Regulations in substantively the same
form, but does not include references to applications made under subsection 135SA(1),
subsection 135ZZEA(1) or section 135ZZWA of the Act. References to applications made
under subsection 135SA(1) and subsection 135ZZEA(1) can be found in section ^77 (these
references now refer to subsection 113ZB(1) because these earlier provisions in the Act have
been amended in the Act by the DAOM Act). References to section 135ZZWA can be found in
section ^82.
Subdivision C—Applications ancillary to Tribunal proceedings
Subdivision C of Division 3 of Part 11 of the 2017 Regulations sets out procedures for
applications to the Tribunal that are ancillary to applications set out in Subdivision B of
Division 3 of Part 11.
Section ^99—Application to be made a party to a Tribunal proceeding
Section ^99 applies to an application to the Tribunal by a person seeking to be made a party to a
Tribunal proceeding under the Act.
Subsection ^99(1) prescribes matters to be included in an application to the Tribunal by a person
seeking to be made a party.
Section ^99 replaces regulation 34 of the Tribunal Regulations in substantively the same form.
Section ^100—Application for order about matter related to Tribunal proceeding
Section ^100 applies to an application to the Tribunal to make an order about a matter related to
a Tribunal proceeding.
Subsection ^100(1) allows a party to a Tribunal proceeding, except an application to be made a
party to another Tribunal proceeding, to apply to the Tribunal requesting the Tribunal to make
an order with respect to any matter relating to the proceeding.
Subsection ^100(2) prescribes matters to be included in the application.
Under subsection 136(1) of the Act, which applies to Part VI of the Act, an “order” includes an
interim order, unless the contrary intention appears.
Section ^100 replaces subregulations 35(1) and 35(2) of the Tribunal Regulations in
substantially the same form.
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Section ^101—Consenting to order about matter related to Tribunal proceeding
Section ^101 relates to consent to an order about a matter related to a Tribunal proceeding.
Subsection ^101(1) allows that if an application is made under subsection ^100(1) for an order
with respect to any matter relating to a Tribunal proceeding, a party to the proceeding may
consent to the making of the order.
Subsection ^101(2) allows the consent to be endorsed on the application or set out in a separate
document filed with the Registrar.
Subsection ^101(3) requires that if the consent is set out in a separate document that is not filed
with the application, the party must give the applicant a copy of the document within seven days
after the document is filed.
Section 10(1) of the Act sets out that “Registrar” means the Registrar of the Tribunal provided
for by section 170.
Under subsection 136(1) of the Act, which applies to Part VI of the Act, an “order” includes an
interim order, unless the contrary intention appears.
Section ^101 replaces subregulations 35(3) and 35(4) of the Tribunal Regulations in
substantively the same form.
Section ^102—When notice or copy of application under section ^100 need not be given
Section ^102 sets out when a notice or a copy of an application to the Tribunal, under
section ^100, need not be given.
Subsection ^102(1) prescribes that a party that has consented to the making of an order applied
for under section ^100 need not be given notice of the application, or a copy of the application.
Subsection ^102(2) prescribes that if the President or the Tribunal gives leave, a person who has
not consented to the making of an order applied for under section ^100 need not be given notice
of the application, or a copy of the application.
Under subsection 136(1) of the Act, which applies to Part VI of the Act, “the President” means
the President of the Tribunal and “order” includes an interim order, unless the contrary intention
appears.
Section ^102 replaces subregulation 35(5) of the Tribunal Regulations in substantively the same
form.
Section ^103—Dealing with application under section ^100
Section ^103 sets out how to deal with applications to the Tribunal under section ^100.
Subsection ^103(1) requires that the Tribunal must consider an application made under
section ^100 and may make such order in relation to the application as the Tribunal considers
reasonable in the circumstances.
However, subsection ^103(2) requires that the Tribunal must not refuse the application in whole
or in part without giving the applicant an opportunity to present a case, and must not grant the
application in whole or in part without giving each party that lodged an objection to the
application an opportunity to present a case.
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Under subsection 136(1) of the Act, which applies to Part VI of the Act, an “order” includes an
interim order, unless the contrary intention appears.
Section ^103 replaces subregulation 35(10) of the Tribunal Regulations in substantively the
same form.
Division 4—Ancillary matters
Subdivision A—General
Section ^104—Consolidating applications and references
Section ^104 relates to consolidating applications and references to the Tribunal.
Subsection ^104(1) prescribes that if two or more applications or references are pending before
the Tribunal, the Tribunal may, on its own initiative or on the application of a party to any of
them, direct that some or all of them be considered together, and give such consequential
directions as the Tribunal considers necessary.
This allows consideration together of two or more applications, two or more references or a
combination of one or more applications and one or more references.
Subsection ^104(2) prescribes that before giving a direction under this section, the Tribunal
must give each party to each application or reference concerned an opportunity to present a
case.
A “reference” of a matter to the Tribunal, under the Act, includes “referral” of the matter to the
Tribunal under the Act.
Section ^104 replaces regulation 36 of the Tribunal Regulations in substantively the same form.
Section ^105—Directions as to procedure
Section ^105 sets out when the Tribunal can make directions as to procedure.
Section 166 of the Act provides that the regulations may make provision for or in relation to the
procedure in connexion with the making of references and applications to the Tribunal and the
regulation of proceedings before the Tribunal and may prescribe the fees payable in respect of
those references and applications and the fees and expenses of witnesses in those proceedings.
Subsection ^105(1) allows, if the Tribunal has not started hearing a Tribunal proceeding, the
President to give directions, or authorise a member of the Tribunal to give directions, as to the
procedure to be followed in connection with the hearing before the Tribunal of the proceeding.
Subsection ^105(2) allows a direction or authorisation by the President under
subsection ^105(1) to be of general application, or relate to the hearing of one or more particular
proceedings, or proceedings included in a particular class of proceedings.
Subsection ^105(3) allows, if the Tribunal has started hearing a proceeding, the member of the
Tribunal presiding, or any other member of the Tribunal authorised by the member presiding, to
give directions as to the procedure to be followed in connection with the hearing before the
Tribunal of the proceeding and of any related Tribunal proceeding, whether or not the Tribunal
has started to hear the related proceeding.
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Subsection ^105(4) allows a direction or authorisation given under this section to be varied or
revoked at any time by a member of the Tribunal who may give the direction or authorisation
under this section.
Under subsection 136(1) of the Act, which applies to Part VI, “member” means a member of
the Tribunal, and includes the President and a Deputy President, “order” includes an interim
order, and “the President” means the President of the Tribunal, unless the contrary intention
appears.
Section ^105 replaces regulation 36A of the Tribunal Regulations in substantively the same
form.
Section ^106—Request as to constitution of Tribunal
Section ^106 prescribes matters to be included in a request as to the constitution of the Tribunal.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 2 of Part VI relates to
the constitution of the Tribunal. Section 146 of the Act refers to sittings of the Tribunal.
Subsection 146(3) of the Act provides that if a party to an application or reference requests that
the Tribunal be constituted by more than one member for the purposes of the application or
reference, the Tribunal must, for the purposes of the application or reference, be constituted by
not less than two members of whom one must be the President or a Deputy President.
Subsection ^106(1) requires that a request under subsection 146(3) of the Act by a party to an
application or reference that the Tribunal be constituted by more than one member for the
purposes of that application or reference, be in writing addressed to the Registrar, and specify
the day on which the application or reference was filed with the Registrar and the relevant file
number, and state the name of the party making the request, and be signed by or on behalf of
that party, and be filed with the Registrar before the Tribunal begins to consider the application
or reference.
Subsection ^106(2) requires that the party making the request give every other party to the
application or reference a sealed copy of the request within seven days after filing the request.
The term “Registrar” is described in section 170 of the Act. Under subsection 136(1) of the Act,
which applies to Part VI, “member” means a member of the Tribunal, and includes the President
and a Deputy President and “the President” means the President of the Tribunal, unless the
contrary intention appears.
Section ^106 replaces regulation 37 of the Tribunal Regulations in substantively the same form.
Section ^107—Withdrawal of application or reference
Section ^107 prescribes the process for withdrawing an application or reference made to the
Tribunal, including leave for withdrawal and method of withdrawal.
Subsection ^107(1) allows a person who has made an application or reference to the Tribunal to,
with the leave of the Tribunal, withdraw the application or reference at any time before the
Tribunal has determined it.
Subsections 154(6) and 155(7) of the Act allow withdrawal of certain references without the
leave of the Tribunal.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision H includes provisions on references and
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applications relating to licences and licence schemes. Section 154 of the Act relates to reference
of proposed licence schemes to the Tribunal. Subsection 154(6) of the Act provides that where a
licence scheme has been referred to the Tribunal under this section, the licensor may do either
or both of the following things:
bring the scheme into operation before the Tribunal makes an order in pursuance of the
reference; or
withdraw the reference at any time before the Tribunal makes an order in pursuance of the
reference, whether the scheme has been brought into operation or not.
Section 155 of the Act relates to reference of existing licence schemes to the Tribunal.
Subsection 155(7) of the Act provides that nothing in this section prevents a licence scheme in
respect of which an order has been made, under either of the last two preceding sections, from
being again referred to the Tribunal under that section in so far as the scheme relates to cases
included in a class of cases to which the order does not apply – at any time, and in so far as the
scheme relates to cases included in the class of cases to which the order applied while it was in
force – after the expiration of the order.
Subsection ^107(2) allows the Tribunal to grant leave unconditionally or subject to such
conditions as the Tribunal thinks reasonable.
Subsection ^107(3) requires that withdrawal of an application or reference to the Tribunal be
made by filing with the Registrar a notice in writing addressed to the Registrar, and specifying
the day on which the application or reference was made and the relevant file number, and
stating that the person who made the application or reference withdraws it, and signed by or on
behalf of that person, and giving every other party to the application or reference a sealed copy
of the notice. This applies whether the withdrawal is made with the leave of the Tribunal or
under subsection 154(6) or 155(7) of the Act, applying of its own force or because of
subsection 156(5) of the Act.
Section 156 of the Act relates to further reference of licence schemes to the Tribunal.
Subsection 156(5) of the Act provides that subsections 155(3), 155(4), and 155(6) to (10) of the
Act inclusive apply for the purposes of this section.
Section ^107 replaces regulations 38 and 39 of the Tribunal Regulations in substantively the
same form.
Section ^108—Amendment of documents
Section ^108 applies to the amendment of documents previously filed with the Registrar in
connection with a proceeding in the Tribunal.
Subsection ^108(1) allows the Tribunal to grant leave to a party to a Tribunal proceeding to
amend a document the party previously filed with the Registrar in connection with the
proceeding.
Subsection ^108(2) allows the leave to be granted unconditionally or subject to such conditions
as the Tribunal thinks reasonable.
Subsection ^108(3) requires that if the leave is granted, the party must file with the Registrar a
statement of the amendments.
Subsection ^108(4) provides that the amendments are taken to be made when the statement is
filed.
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Subsection ^108(5) requires that the party must give every other party to the Tribunal
proceeding a sealed copy of the statement within seven days after filing the statement.
Section ^108 replaces regulation 43 of the Tribunal Regulations in substantively the same form.
Subdivision B—References of questions of law to Federal Court of Australia
Section ^109—Request for reference of question of law to Federal Court of Australia
Section ^109 refers to the request for reference of a question of law in a Tribunal proceeding to
the Federal Court of Australian under subsection 161(1) of the Act.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 of the Act relates to the reference of questions of law to the Federal Court of
Australia. Subsection 161(1) of the Act provides that the Tribunal may, of its own motion or at
the request of a party, refer a question of law arising in proceedings before it for determination
by the Federal Court of Australia.
Subsection ^109(1) prescribes the form and content of a request. A request to the Tribunal for
the reference of a question of law in a Tribunal proceeding to the Federal Court of Australia
under subsection 161(1) of the Act must be in writing addressed to the Registrar, and state the
name of the party making the request, and specify the question of law, and be signed by or on
behalf of the party making the request, and be filed with the Registrar.
Subsection ^109(2) prescribes the notice of request. The party making the request must give
every other party to the Tribunal proceeding a sealed copy of the request, and a notice of the
party’s right under subsection ^109(3) in any case - within seven days after filing the request
with the Registrar, and if the hearing of the proceeding to which the request relates has not
commenced or has been adjourned – not later than the day fixed for the commencement of the
hearing or to which the hearing has been adjourned.
Subsection ^109(3) allows a case to be presented in writing to the Tribunal relating to a request
within 21 days after the party made the request by – filing the request with the Registrar, or if
the party was given a sealed copy of the request – being given that copy. Subsection ^109(4)
prescribes that the Tribunal may give to each party to the Tribunal proceeding an opportunity to
present a case orally to the Tribunal in relation to the request.
Subsection ^109(5) prescribes the notice of decision on request. The Registrar must give notice
of the Tribunal’s decision on the request to the party that made the request, and each other party
that presented a case to the Tribunal in relation to the request, or notified the Tribunal that the
party wished to be informed of the decision.
Section ^109 replaces regulation 40 of the Tribunal Regulations in substantively the same form.
Section ^110—Fixing new date for hearing if party requests reference of question of law to
Federal Court of Australia
Section ^110 applies to fixing a new date for hearing if a party requests a reference of a question
of law in a Tribunal proceeding to the Federal Court of Australian under subsection 161(1) of
the Act.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 relates to the reference of questions of law to the Federal Court of Australia.
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Subsection 161(1) of the Act provides that the Tribunal may, of its own motion or at the request
of a party, refer a question of law arising in proceedings before it for determination by the
Federal Court of Australia.
Subsection ^110(1) sets out that section ^110 applies if a party to a Tribunal proceeding
requests the Tribunal to refer a question of law to the Federal Court of Australia under
subsection 161(1) of the Act, and a day has been fixed for a hearing, whether or not a further
hearing, of the proceeding that is less than 28 days after the filing of the request.
Subsection ^110(2) prescribes that the President must fix a new day for the hearing of that
Tribunal proceeding that is more than 28 days after the filing of the request.
Subsection ^110(3) prescribes that the Registrar must give the parties to the Tribunal proceeding
notice of the new day.
Section ^110 replaces regulation 40A of the Tribunal Regulations in substantively the same
form.
Section ^111—Adjournment of Tribunal proceeding pending decision of Federal Court of
Australia
Section ^111 applies to the adjournment of Tribunal proceedings pending a decision of the
Federal Court of Australia.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 relates to the reference of questions of law to the Federal Court of Australia.
Subsection 161(1) of the Act provides that the Tribunal may, of its own motion or at the request
of a party, refer a question of law arising in proceedings before it for determination by the
Federal Court of Australia.
Section ^111 prescribes that if, under subsection 161(1) of the Act the Tribunal refers a question
of law arising in a Tribunal proceeding for determination by the Federal Court of Australia, and
the Tribunal has not given its decision in the proceeding, the Tribunal must adjourn its hearing
of the proceeding until the question has been heard and determined by the Federal Court of
Australia.
Section ^111 replaces regulation 40D of the Tribunal Regulations in substantively the same
form.
Section ^112—Tribunal proceeding after determination of question of law by Federal
Court of Australia
Section ^112 applies to Tribunal proceedings after the determination of a question of law by the
Federal Court of Australia has been made.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 of the Act relates to the reference of questions of law to the Federal Court of
Australia. Subsection 161(1) of the Act provides that the Tribunal may, of its own motion or at
the request of a party, refer a question of law arising in proceedings before it for determination
by the Federal Court of Australia.
Subsection ^112(1) prescribes that if a question of law arising in a Tribunal proceeding has been
referred to the Federal Court of Australia under section 161 of the Act, and determined by the
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Court, any party to the proceeding before the Court may file with the Registrar an office copy of
the Court’s order.
Subsection ^112(2) prescribes that when the copy has been filed, the President must fix a time
and place for the resumption of the hearing of the Tribunal proceeding, unless the question of
law was referred to the Federal Court of Australia after the Tribunal had given its decision in the
Tribunal proceeding, and that decision is consistent with the determination of the Court.
Subsection ^112(3) prescribes that the Registrar must give the parties to the Tribunal proceeding
notice of the time and place fixed.
Section ^112 replaces regulation 42 of the Tribunal Regulations in substantively the same form.
Section ^113—Prescribed period for purposes of subsection 161(2) of the Act
Section ^113 prescribes the period for the purposes of subsection 161(2) of the Act.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 of the Act relates to the reference of questions of law to the Federal Court of
Australia. Subsection 161(2) of the Act provides that a question shall not be referred to the
Federal Court of Australia by virtue of the last preceding subsection in pursuance of a request
made after the date on which the Tribunal gave its decision in the proceedings unless the request
is made before the expiration of such period as is prescribed.
Section ^113 provides that for the purposes of subsection 161(2) of the Act, the prescribed
period, for requesting a reference of a question of law to the Federal Court of Australia after the
Tribunal gave its decision in a Tribunal proceeding, is 28 days from the date on which the
Tribunal gave its decision.
Section ^113 replaces regulation 40B of the Tribunal Regulations in substantively the same
form.
Section ^114—Prescribed period for purposes of subsection 161(3) of the Act
Section ^114 prescribes the period for the purposes of subsection 161(3) of the Act.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 of the Act relates to the reference of questions of law to the Federal Court of
Australia. Subsection 161(3) of the Act provides that if the Tribunal, after giving its decision in
any proceedings, refuses a request to refer a question to the Federal Court of Australia, the party
by whom the request was made may, within such period as is prescribed, apply to the
Federal Court of Australia for an order directing the Tribunal to refer the question to the
Federal Court of Australia.
Section ^114 provides that for the purposes of subsection 161(3) of the Act, the prescribed
period (for applying to the Federal Court of Australia for an order that the Tribunal refer to the
Court a question of law that the Tribunal has refused to refer after giving its decision in a
Tribunal proceeding) is 28 days from the date on which the Tribunal refuses the request for a
reference.
Section ^114 replaces regulation 40C of the Tribunal Regulations in substantively the same
form.
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Section ^115—Suspension of orders of Tribunal pending reference of question of law to
Federal Court of Australia
Section ^115 prescribes the suspension of orders of the Tribunal pending reference of a question
of law to the Federal Court of Australia.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision I includes general provisions.
Section 161 of the Act relates to the reference of questions of law to the Federal Court of
Australia. Subsection 161(1) of the Act provides that the Tribunal may, of its own motion or at
the request of a party, refer a question of law arising in proceedings before it for determination
by the Federal Court of Australia.
Subsection ^115(1) requires that if, after the Tribunal has given its decision in a Tribunal
proceeding, the Tribunal refers to the Federal Court of Australia a question of law that arose in
the Tribunal proceeding, the Tribunal may suspend the operation of any order it made in the
Tribunal proceeding.
Subsection ^115(2) requires that the Registrar must give every party to the Tribunal proceeding
written notice of the suspension, and if details of the order have been published under
subsection ^62(4) – publish details of the suspension in a manner specified by the President.
Section ^115 replaces regulation 41 of the Tribunal Regulations in substantively the same form.
Section ^116—Modified operation of Part VI of the Act in relation to suspended Tribunal
orders
Section ^116 contains details about the modified operation of Part VI of the Act in relation to
suspended Tribunal orders.
Part VI of the Act sets out provisions in relation to the Tribunal. Division 3 relates to
applications and references to the Tribunal. Subdivision H includes provisions in relation to
references and applications relating to licences and licence schemes. Section 154 of the Act
relates to the reference of proposed licence schemes to the Tribunal. Subsection 154(6) of the
Act provides that where a licence scheme has been referred to the Tribunal under this section,
the licensor may do either or both of the following things:
bring the scheme into operation before the Tribunal makes an order in pursuance of the
reference; or
withdraw the reference at any time before the Tribunal makes an order in pursuance of
the reference, whether the scheme has been brought into operation or not.
Section 155 of the Act relates to the reference of existing licence schemes to the Tribunal.
Subsection 155(8) of the Act sets out that where a licence scheme has been referred to the
Tribunal under this section, the scheme remains in operation, notwithstanding anything
contained in the scheme, until the Tribunal makes an order in pursuance of the reference.
Subsection 155(10) of the Act sets out that the scheme reflecting the Tribunal’s order operates
as long as the order remains in force, despite anything in the scheme referred to the Tribunal.
Depending on the Tribunal’s order, the scheme reflecting the order will be the scheme
confirmed by the order, the scheme as varied by the order or the scheme substituted by the order
for the scheme referred to the Tribunal. Section 159 of the Act refers to the effect of an order of
the Tribunal in relation to licences.
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Section ^116 prescribes that while an order of the Tribunal is suspended, paragraph 154(6)(a),
and subsections 155(8) and (10), of the Act operate as if the order had not been made, and
paragraph 154(6)(b) of the Act operates as if the order had not been suspended, and section 159
of the Act does not operate in relation to the order.
Section ^116 replaces regulation 24 of the 1969 Regulations in substantively the same form.
Division 5—Miscellaneous
Division ^5 contains a list of miscellaneous powers of the Tribunal relating to procedural
matters. Division ^5 replaces Part VI of the 1969 Regulations in substantively the same form.
Section ^117—Parties to Tribunal proceeding are also parties to ancillary application
connected with Tribunal proceeding
Section ^117 provides that if, under a provision of the Act or regulations, a person is a party to a
Tribunal proceeding, the person is, for the purposes of the regulations, also a party to any
ancillary application that is made under the regulations and is connected with the Tribunal
proceeding.
Section ^117 replaces subregulation 4(2) of the Tribunal Regulations in substantively the same
form.
Section ^118—Extension of time
Section ^118 refers to the extension of time to do an act in relation to the Tribunal.
Subsection ^118(1) allows the Tribunal or the President to extend the time prescribed or
allowed by or under this Part for doing any act by such period or periods as the Tribunal or the
President thinks fit. Some examples of time prescribed for doing an act are time for filing a
document with the Registrar and time for giving a person a document.
Subsection ^118(2) provides that the extension may be subject to such conditions as the
Tribunal or the President thinks fit.
Subsection ^118(3) provides that the extension may be given before or after the end of the time
concerned.
Section ^118 replaces regulation 45 of the Tribunal Regulations in substantively the same form.
Section ^119—Fees for copies
Section ^119 contains the fees for copies made of documents that are filed or lodged with the
Tribunal.
Subsection ^119(1) provides that this section applies if, at the request of a person, the Registrar,
or a member of the staff assisting the Tribunal, makes a copy of all or part of a document that is
filed or lodged with the Tribunal in connection with an application or reference to the Tribunal,
or sets out the reasons for an order made by the Tribunal.
Subsection ^119(2) prescribes that a fee is payable by the person, consisting of $0.80 for the
first page of the document copied, and $0.20 for each extra page of the document copied.
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Subsection ^119(3) prescribes that subsection ^119(2) does not apply if the person made the
request in the performance of his or her duties as a member of the Tribunal, the Registrar or a
member of the staff assisting the Tribunal.
Section ^119 replaces regulation 46 of the Tribunal Regulations in substantively the same form.
Section ^120—Payment of witnesses’ fees and expenses
Section ^120 relates to the payment of fees and expenses for a witness who attends a Tribunal
proceeding.
Subsection ^120(1) provides that this section applies if a person (the witness) attends, in
accordance with a summons, or at the request of a party to a Tribunal proceeding or of the
Tribunal, for either or both of the following purposes:
to give evidence in a Tribunal proceeding;
to produce documents or articles in a Tribunal proceeding.
Subsection ^120(2) requires that the person on whose behalf the witness is summoned or at
whose request the witness attends must pay the witness fees and expenses.
Subsection ^120(3) requires that if the witness is summoned or attends at the request of the
Tribunal, the Commonwealth must pay the witness fees and expenses.
Section ^120 replaces regulation 47 of the Tribunal Regulations in substantively the same form.
Section ^121—Summons
Section ^121 sets out rules for the form and service of summons relating to the Tribunal.
Subsection ^121(1) requires that a summons to a witness be in the form in Part 1 of Schedule 3.
Subsection ^121(2) requires that a summons to produce documents or articles under subsection
167(3) of the Act be in the form in Part 2 of Schedule 3.
Subsection ^121(3) requires that a summons under subsection 167(2) or (3) of the Act be served
in person by delivering a copy to the person personally.
Under the operation of section 25C of the Acts Interpretation Act 1901, strict compliance with
the form is not required and substantial compliance is sufficient.
Section ^121 replaces regulation 44 of the Tribunal Regulations in substantively the same form.
Section ^122—Power to exempt from procedural requirements
Section ^122 provides that the Tribunal has the power to exempt a person from procedural
requirements.
Subsection ^122(1) allows the Tribunal to, subject to the Act, and in special circumstances,
exempt a person from compliance with any procedural requirements of this Part relating to a
Tribunal proceeding.
Subsection ^122(2) prescribes that the exemption may be subject to conditions.
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Section ^122 replaces regulation 48(1) of the Tribunal Regulations in substantively the same
form.
This power provides the Tribunal flexibility in responding to non-compliance with procedural
requirements. An example of where the power might be used is where the Tribunal may excuse
a non-represented party’s failure to comply with a procedural requirement. This power
complements the requirements of paragraph 164(c) of the Act which require Tribunal
proceedings to be conducted with as little formality, and as much expedition, as the
requirements of the Act and a proper consideration of the matters before the Tribunal permit.
Section ^123—Effect of non-compliance with this Part
Section ^123 relates to the effect of non-compliance with this Part of the 2017 Regulations.
Subsection ^123(1) provides that, subject to the Act, non-compliance with this Part does not
make void a Tribunal proceeding or an order of the Tribunal.
Subsection ^123(2) prescribes that the Tribunal may do any of the following to the Tribunal
proceeding in such manner and upon such terms as the Tribunal thinks fit:
set it aside wholly or in part as irregular;
amend it;
otherwise deal with it.
Section ^123 replaces regulation 48(2) of the Tribunal Regulations in substantively the same
form.
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Part 12—The Crown
Part 12 is made in relation to Part VII of the Act, which deals with Crown copyright and the use
of copyright material for the Crown.
Section ^124—Information on use of copyright material for services of the Crown—
subsection 183(4) of the Act
Division II of Part 7 of the Act provides a statutory licence for the Commonwealth (or a state or
territory) to perform an act comprised in copyright, where the act is done for the services of the
Commonwealth or state or territory. Section 183 of the Act establishes the statutory licence, and
subsection 183(4) of the Act requires the Commonwealth or state or territory in those
circumstances, as soon as possible, unless it appears to the Commonwealth or State that it would
be contrary to the public interest to do so, to inform the owner of the copyright, as prescribed, of
the doing of the act and to provide such information as he or she reasonably requires.
Section ^124 prescribes requirements about the giving and content of the notice provided to
copyright owners under subsection 183(4) of the Act.
Subsection ^124(1) provides that, for the purposes of subsection 183(4) of the Act, the
Commonwealth must inform, by notice, the copyright owner upon the doing of any act
comprised in the copyright.
Subsections ^124(2) to (4) provide details regarding how the notice is to be given. The notice is
to be given to the copyright owner or their agent, if possible the notice is to be given in
Australia, or if the Commonwealth does not know a way of contacting the copyright owner or
their agent the notice must be published in the Gazette.
Subsection ^124(5) provides the details that must be included in the content of a notice and that
a notice must be issued in the name of the Commonwealth or State as appropriate. The details a
notice must include are:
The International Standard Book number (if any) in relation to the copyrighted work, or
if no such number exists or is not attainable, the title of the copyrighted work. If the title
does not sufficiently enable the work to be identified a description of the work must
also be provided.
The act comprised in the copyright to which the notice relates.
Whether the act was done by the Commonwealth or a State or a person authorised by
either the Commonwealth or a State.
The name of the person who did the act if that person was authorised by the
Commonwealth or State.
That the purpose of the notice is to inform the person under subsection 183(4) of the
Act of the doing of the act.
Section ^124 replaces regulation 25 of the 1969 Regulations in substantively the same form.
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Part 13—Extension or restriction on operation of Act
Part 13 is made in relation to Part VIII of the Act, which extends or restricts the operation of the
Act in certain circumstances. It replaces part of Part 7 of the 1969 Regulations.
Section ^125—International organizations to which the Act applies—subsection 186(1) of
the Act
Section ^125 sets out the international organizations that are declared to be international
organizations to which the Act applies for the purposes of subsection 186(1) of the Act. The list
reflects the approach taken in similar countries like New Zealand and the United Kingdom by
extending protection to the United Nations, the Specialised Agencies of the United Nations and
the Organization of American States.
Section ^125 replaces regulation 26 and Schedule 12 of the 1969 Regulations.
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Part 14—Moral rights
Part 14 is made in relation to Part IX of the Act.
Section ^126—Other information and particulars for notices under section 195AT of the
Act
Subsection ^126(1) provides for information and particulars to be included in notices relating to
an artistic work affixed to or forming part of a building for the purposes of
paragraph 195AT(2A)(c) of the Act. The matters prescribed by subsection^126(1) include: the
date of the notice; the name (if any) and address of the building; the description and location of
the work; the building owner's contact details; the contact details of the person who can provide
the author with access to the work; when such access may be had; and certain details of the
change or relocation.
Subsection ^126(2) prescribes information and particulars to be included in a notice relating to a building or plans, or instructions for construction for the purposes of paragraph 195AT(3A)(c)
of the Act. The matters prescribed by subsection ^126(2) include: the date of the notice; the
name (if any) and address of the building; the building owner's contact details; the contact
details of the person who can provide the author with access to the building; when such access
may be had; and certain details of the change or relocation.
Subsection ^126(3) prescribes information and particulars to be included in a notice relating to moveable artistic work for the purpose of paragraph 195AT(4B)(c) of the Act. The matters
prescribed by subsection^126(3) include: the date of the notice; a brief description of the work
and details of its location; the remover's contact details; the contact details of the person who
can provide the author with access to the work; when such access may be had; details of the new
location, if permanent, of the work; and the contact details of the new owner, if any, of the
work.
Section ^126 replaces regulation 25AA of the 1969 Regulations in substantively the same form.
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Part 15—Miscellaneous
Part 15 is made in relation to Part X of the Act.
Section ^127—Period for keeping declarations relating to copying in library or archives—
subparagraph 203A(1)(b)(iii) and paragraph 203G(b) of the Act
Section ^127 provides that for the purposes of subparagraph 203A(1)(b)(iii) and
paragraph 203G(b) of the Act, the period for keeping the declaration is four years after the
making of the reproduction to which the declaration relates.
Section 203A of the Act provides an offence for a person who is responsible for administering,
or the officer in charge of, a library or archive for failing to keep declarations relating to
copying in the library or archives under sections 49 or 50 of the Act.
Section ^127 replaces regulation 25A of the 1969 Regulations in substantively the same form.
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Part 16—Transitional matters
Part 16 makes provision for transitional matters relating to the repeal of the 1969 Regulations.
Section ^128—Directions about information relating to objection to import of copyright
material
Section ^128 provides that a direction that is in force under subregulation 21(1) of the
1969 Regulation (relating to import into Australia of copyright material) immediately before the
commencement of Part 9 of the 2017 Regulations has effect on and after that commencement as
if it had been given under subsection 52(1) of the 2017 Regulations.
The effect of this section is to require a person to provide evidence on the matters listed in
subsection 52(1) where the Comptroller-General of Customs had given a direction to provide
under subregulation 21(1) of the 1969 Regulations before the commencement of the
2017 Regulations.
Section ^129—Objection to import of copyright material into Norfolk Island
Section ^129 provides that a notice in force under subregulation 23(2) of 1969 Regulations
(relating to import into Norfolk Island of copyright material) immediately before the
commencement of Part 9 of the 2017 Regulations has effect on and after that commencement,
for the purposes of section ^53 of the 2017 Regulations, as if the notice had been given under
subsection 135(2) of the Act under subregulation 23(2) of the 1969 Regulations and were
subject to subsections 135(6) and (6A) of the Act.
Section ^130—Limitation on remedies available against carriage service providers
Section ^130 provides that a thing done under a provision of Part 3A of the 1969 Regulations
before the commencement of Part 6 of the 2017 Regulations has effect on and after that
commencement as if it has been done under the corresponding provision of Part 6 of the
2017 Regulations (subsection ^130(3) specifies what the corresponding provisions are).
The effect of this section is to ensure that a carriage service provider, who before the
commencement of the 2017 Regulations, had complied with requirements in Part 3A of the
1969 Regulations, will continue to be exempted from liability under corresponding provisions in
the 2017 Regulations.
Section ^131—Things done under the Copyright Tribunal (Procedure) Regulations 1969
Section ^131 provides that a thing done under the Tribunal Regulations as in force immediately
before the Tribunal Regulations were repealed, and that can be done for the same purpose under
the 2017 Regulations, has the effect as if it had been done under the 2017 Regulations (this
includes but is not limited to a reference to a notice, an application, reference or other
instrument being made or given).
Subsection ^131(3) provides that an approval of a design of a seal of the Tribunal that was in
force for the purposes of the Tribunal Regulations immediately before they were repealed
continues in force as if it were a determination of the design of the seal under subsection ^58(2)
of the 2017 Regulations.
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Schedule 1—Form of notice to be displayed near machine for copying
works or published editions
Schedule 1 prescribes the form required for the purposes of paragraphs ^5(b) and ^13(b) of the
2017 Regulations. Schedule 1 replaces Schedule 3 to the 1969 Regulations.
Part 1—Text of notice near machine for copying works or published editions
Part 1 prescribes the form of text to be used in a notice for the purposes of paragraph ^5(b) of
the 2017 Regulations, and subparagraph ^13(b)(i) of the 2017 Regulations (if the copy would be
of a published edition of a work).
Part 2—Text of notice near machine for copying works, published editions
or audio-visual items
Part 2 prescribes the form of text to be used in a notice for the purposes of paragraph ^5(b) of
the 2017 Regulations, and subparagraphs ^13(b)(i) and (ii) of the 2017 Regulations.
Part 3—Text of notice near machine for copying audio-visual items
Part 3 prescribes the form of text to be used in a notice for the purposes of
subparagraph ^13(b)(ii) of the 2017 Regulations (if the copy would be of an audio-visual item).
Schedule 2—Forms for Part 6
Schedule 2 prescribes the forms required for certain provisions of Part 6 of the
2017 Regulations which relates to limitation on remedies available against carriage service
providers. Schedule 2 replaces Schedule 10 to the 1969 Regulations.
Part 1—Form of notification relating to cached copyright material
Part 1 prescribes the form required for the purposes of section ^21 of the 2017 Regulations.
Part 1 of Schedule 2 replaces Part 1 of Schedule 10 to the 1969 Regulations.
Part 2—Form of notice relating to copyright material found to be infringing
by an Australian court
Part 2 prescribes the form required for the purposes of section ^22 of the 2017 Regulations.
Part 2 of Schedule 2 replaces Part 2 of Schedule 10 to the 1969 Regulations.
Part 3—Form of notice by owner, licensee or agent of claimed infringement
by storage of copyright material
Part 3 prescribes the form required for the purposes of section ^24 of the 2017 Regulations.
Part 3 of Schedule 2 replaces Part 3 of Schedule 10 to the 1969 Regulations.
Part 4—Form of counter notice in response to notice by copyright owner,
licensee or agent of claimed infringement
Part 4 prescribes the form required for the purposes of section ^26 of the 2017 Regulations.
Part 4 of Schedule 2 replaces Part 4 of Schedule 10 to the 1969 Regulations.
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Part 5—Form of counter notice in response to takedown of copyright
material without notice from copyright owner, licensee or agent
Part 5 prescribes the form required for the purposes of section ^31 of the 2017 Regulations.
Part 5 of Schedule 2 replaces Part 5 of Schedule 10 to the 1969 Regulations.
Part 6—Form of notice by owner, licensee or agent of claimed infringement
by reference to infringing copyright material
Part 6 prescribes the form required for the purposes of section ^34 of the 2017 Regulations.
Part 6 of Schedule 2 replaces Part 6 of Schedule 10 to the 1969 Regulation.
Schedule 3—Forms of summons
Schedule 3 prescribes the forms required for the purposes of section ^121 of the
2017 Regulations.
Part 1—Summons to witness
Part 1 prescribes the form to use when summonsing a witness.
Part 2—Summons to produce documents or articles
Part 2 prescribes the form to use when issuing a summons to produce certain documents in
relation to providing evidence to the Tribunal.
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Attachment 2: Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Copyright Regulations 2017
This Instrument is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Instrument
The general purpose of this Instrument is to remake the Copyright Regulations 1969
(1969 Regulations) and the Copyright Tribunal (Procedure) Regulations 1969 (Tribunal
Regulations) into a single consolidated instrument (the Copyright Regulations 2017) and to
modernise and update certain provisions.
The Instrument prescribes a range of matters that the Copyright Act 1968 (Act) requires or
permits to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or
giving effect to the Act. This includes provisions relating to copyright in original works and
other subject-matter, remedies for infringement of copyright, and the copying and
communication of copyright material by educational and other institutions.
Human rights implications
The Instrument engages the following rights:
the right to freedom of opinion and expression under Articles 19 and 20 of the
International Covenant on Civil and Political Rights (ICCPR)
the right to education under Article 13 of the ICESCR
the rights of people with a disability under the Convention on the Rights of Persons
with Disabilities (CRPD)
Right to freedom of expression
Article 19(2) of the ICCPR recognises the right to freedom of expression, which includes the
freedom to seek, receive and impart information and ideas of all kinds. This right, while not
absolute, extends to any medium, including written communications and artistic works.
The amendments made by Divisions 4 and 5 of Part 6 of the Regulations engage this right.
Sections ^25 and ^29 of the Instrument require carriage service providers to remove or disable
access to content if they receive a notice that the content infringes copyright, or if they become
aware that content is infringing (or likely to be infringing). This engages the right to freedom of
opinion and expression in the sense that a person’s content may be removed from a carriage
service provider’s system or network without their consent. Sections ^26, ^28, ^31, and ^32 of
the Instrument provide certain safeguards with respect to the takedown of copyright material,
however, which allow the user who directed the carriage service provider to store the copyright
material on its network or system to dispute the claim of infringement, and provide for the
restoration of copyright material in certain circumstances. This aims to balance the rights of the
person posting the content and the legitimate rights of the copyright owner.
Right to education
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Article 13 of ICESCR requires States parties to recognise the right of everyone to education. In
particular, Article 13(2)(c) provides that education should be made accessible to all, by every
appropriate means. Article 13(2)(d) provides that education shall be encouraged and intensified
as far as possible.
Part 7 of this Instrument promotes the right to education by inserting prescribed acts into the
Instrument, which broaden the exception under paragraph 116AN(9)(c) of the Act and the
defence under paragraph 132APC(9)(c) of the Act and provides:
that an act by an educational institution does not infringe copyright because of Division
4 of Part IVA of the Act which relates to use of copyright material by educational
institutions; and
that use of copyright material by a person as described in subsection 200AB(1) of the
Act which relates to use of copyright material by educational institutions.
The rights of persons with a disability
The CRPD requires countries to ensure and promote the full realisation of all human rights and
fundamental freedoms for all persons with disability without discrimination of any kind on the
basis of their disability. In particular, countries are required to take into account the protection
and promotion of the human rights of persons with disability in policies and programs, and
adopt all appropriate legislative, administrative and other measures for the implementation of
the rights recognised in the Convention
Part 7 of this Instrument promotes the right to education and the rights of people with disability
by inserting prescribed acts into the Instrument, which broaden the exception under
paragraph 116AN(9)(c) of the Act and the defence under paragraph 132APC(9)(c) of the Act
and provides
that an act by a person does not infringe copyright because of Division 2 of Part IVA of
the Act which relates to access by or for persons with a disability;
that an act by an educational institution does not infringe copyright because of Division
4 of Part IVA of the Act which relates to use of copyright material by educational
institutions; and
That use of copyright material by a person as described in subsection 200AB(1) of the Act which relates to use of copyright material by educational institutions.
Conclusion
This Instrument is compatible with human rights as it broadly promotes the protection of human
rights and to the extent that it limits any human rights, those impacts are reasonable, necessary
and proportionate.
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