Loi de 1989 sur circuits layouts, Australie

CIRCUIT LAYOUTS ACT 1989 No. 28, 1989

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - TABLE OF PROVISIONS

TABLE OF PROVISIONS

PART I-PRELIMINARY

Section

1. Short title

2. Commencement

3. Extension to external Territories

4. Act binds the Crown

5. Interpretation

6. Residence not affected by temporary absence

7. Application to circuit layouts made before commencement

8. Commercial exploitation

9. Exclusive right

10. Making an eligible layout

11. Originality

12. Licence of owner of EL rights

13. Substantial part of eligible layout

14. References to all joint makers

15. References to any one or more joint makers

PART II-EL RIGHTS IN ELIGIBLE LAYOUTS

Division 1-Ownership and nature of EL rights

16. Ownership of EL rights

17. Nature of EL rights

18. EL rights to subsist without regard to makers who are not eligible

persons

Division 2-Infringement of EL rights

19. Infringement

Division 3-Acts that are not infringements of EL rights

20. Innocent commercial exploitation

21. Copying for private use

22. Copying for research or teaching purposes

23. Evaluation or analysis

24. Commercial exploitation of eligible layouts previously exploited

under

licence

25. Use for purposes of defence or security

PART III-REMEDIES FOR INFRINGEMENTS OF EL RIGHTS

Division 1-Preliminary

26. Application of Part to counterclaims

Division 2-Actions by owner of EL rights

27. Actions for infringement

28. Limitation of actions

Division 3-Proceedings where EL rights subject to exclusive

licence

29. Application

30. Rights of exclusive licensee

31. Joinder of owner or exclusive licensee as a party

32. Defences available against exclusive licensee

33. Assessment of damages where exclusive licence granted

34. Apportionment of profits between owner and exclusive licensee

35. Separate actions in relation to the same infringement

36. Liability for costs

Division 4-Proof of facts in actions

37. Presumptions as to subsistence and ownership of EL rights

38. Affidavit evidence

39. Evidentiary labels

Division 5-Jurisdiction and appeals

40. Exercise of jurisdiction

41. Appeals

PART IV-MISCELLANEOUS

42. Eligible foreign countries

43. Limitation on power of courts to grant relief in proceedings under

this

Act

44. Prospective ownership of EL rights

45. Assignments and licences of EL rights

46. Groundless threats of legal proceedings

47. Jurisdiction of Federal Court of Australia

48. Regulations

49. Consequential amendments of other Acts

SCHEDULE

CONSEQUENTIAL AMENDMENTS

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - LONG TITLE

An Act to provide for the protection of certain layouts for integrated

circuits, and for related purposes

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - PART I

PART I-PRELIMINARY

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 1

Short title

(Assented to 22 May1989)

1. This Act may be cited as the Circuit Layouts Act 1989.

(Minister's second reading speech made in-

House of Representatives on 3 November 1988

Senate on 28 November 1988)

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 2

Commencement

2. (1) Sections 1 and 2 commence on the day on which this Act receives the

Royal Assent.

(2) The remaining provisions of this Act commence on a day or days to be

fixed by Proclamation.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 3

Extension to external Territories

3. This Act extends to every external Territory.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 4

Act binds the Crown

4. Subject to section 25, this Act binds the Crown.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 5

Interpretation

5. In this Act:

"action" means a proceeding of a civil nature between parties, and includes

a counterclaim;

"Australian protected person" has the same meaning as in regulation 5 of the

Australian Citizenship Regulations;

"circuit layout" means a plan comprising a two-dimensional representation,

fixed in any material form, of the three-dimensional location of the active

and passive elements and interconnections making up an integrated circuit;

"commercially exploited" has the meaning given in section 8;

"eligible foreign country" means a foreign country declared by the

regulations to be an eligible foreign country for the purposes of this Act;

"eligible layout" means an original circuit layout:

(a) the maker of which was, at the time the layout was made, an

eligible person; or

(b) that was first commercially exploited in Australia or in an

eligible foreign country;

"eligible person" means:

(a) an Australian citizen, an Australian protected person or a person

resident in Australia;

(b) a body corporate incorporated by or under a law in force in a State

or Territory;

(c) a citizen, national or resident of an eligible foreign country; or

(d) a body corporate incorporated by or under a law of an eligible

foreign country;

"EL rights" means the exclusive rights specified in section 17 in relation

to an eligible layout;

"exclusive licence" means a licence in writing, signed by or on behalf of

the owner or prospective owner of EL rights, authorising the licensee, to the

exclusion of all other persons, to do an act that, under this Act, the owner

would, but for the licence, have the exclusive right to do;

"exclusive right" has the meaning given in section 9;

"future EL rights" means EL rights that will come into existence at a future

time or on the happening of a future event;

"integrated circuit" means a circuit, whether in a final form or an

intermediate form, the purpose, or one of the purposes, of which is to perform

an electronic function, being a circuit in which the active and passive

elements, and any of the interconnections, are integrally formed in or on a

piece of material;

"material form", in relation to a circuit layout, includes any form of

storage (whether visible or not) from which the layout, or a substantial part

of it, can be reproduced;

"other party", in relation to an owner of EL rights or the exclusive

licensee of those rights, means the exclusive licensee or the owner,

respectively;

"prospective owner" means:

(a) in relation to future EL rights that are not the subject of an

agreement of the kind referred to in subsection 44 (1)-the person who will be

the owner of those rights when they come into existence; or

(b) in relation to future EL rights that are the subject of such an

agreement-the person in whom those rights will vest under that subsection when

they come into existence;

"protection period", in relation to an eligible layout, means the period

beginning on the day on which the layout was made and ending:

(a) if the layout is first commercially exploited within 10 calendar

years after the calendar year in which the layout was made-at the end of the

tenth calendar year after the calendar year in which the layout was first

commercially exploited; and

(b) in any other case-at the end of the period of 10 calendar years

after the calendar year in which the layout was made.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 6

Residence not affected by temporary absence

6. For the purposes of this Act, a person who at a material time was

ordinarily resident in Australia or a foreign country but was temporarily

absent from that country shall be treated as if he or she had been resident in

Australia or that country, as the case may be, at that time.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 7

Application to circuit layouts made before commencement

7. This Act applies in relation to a circuit layout, whether made before or

after the commencement of Part II, but an action does not lie under Part III

in respect of any act done before that commencement in relation to the layout,

a copy of the layout, or an integrated circuit made in accordance with the

layout.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 8

Commercial exploitation

8. (1) For the purposes of this Act, a circuit layout shall be taken to have

been commercially exploited if the layout, a copy of the layout, or an

integrated circuit made in accordance with the layout (whether or not the

integrated circuit is incorporated in another thing) is:

(a) sold, let for hire or otherwise distributed by way of trade;

(b) offered or exposed for sale or hire, or other distribution by way of

trade; or

(c) imported for the purpose of sale, letting for hire, or other

distribution by way of trade.

(2) For the purposes of this Act, a copy of a circuit layout or an

integrated circuit made in accordance with a circuit layout shall be taken to

have been commercially exploited if it is:

(a) sold, let for hire or otherwise distributed by way of trade;

(b) offered or exposed for sale or hire, or other distribution by way of

trade; or

(c) imported for the purpose of sale, letting for hire, or other

distribution by way of trade.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 9

Exclusive right

9. For the purposes of this Act, the exclusive right to do an act in

relation to an eligible layout, or an integrated circuit made in accordance

with an eligible layout, includes the exclusive right to authorise a person to

do that act in relation to that layout or integrated circuit.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 10

Making an eligible layout

10. For the purposes of this Act:

(a) a person who used a computer to make an eligible layout shall be taken

to have made the layout; and

(b) an eligible layout shall be taken to have been made when it was first

fixed in a material form.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 11

Originality

11. Without otherwise limiting the meaning of the word "original" in this

Act, a circuit layout shall be taken not to be original if:

(a) its making involved no creative contribution by the maker; or

(b) it was commonplace at the time it was made.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 12

Licence of owner of EL rights

12. For the purposes of this Act, an act shall be taken to have been done

with the licence of the owner of EL rights if doing that act was authorised by

a licence binding the owner.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 13

Substantial part of eligible layout

13. In this Act:

(a) a reference to doing an act (other than making) in relation to an

eligible layout includes a reference to doing that act in relation to a

substantial part of the layout;

(b) a reference to a copy of an eligible layout includes a reference to a

copy of a substantial part of the layout; and

(c) a reference to an integrated circuit made in accordance with an

eligible layout includes a reference to an integrated circuit made in

accordance with a substantial part of the layout.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 14

References to all joint makers

14. Subject to this Division, a reference in this Act to the maker of an

eligible layout is, in relation to a jointly made eligible layout, a reference

to all the makers of the layout, unless the contrary intention appears.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 15

References to any one or more joint makers

15. A reference in the definition of "eligible layout" in section 5 to the

maker of an original circuit layout is, in relation to a jointly made eligible

layout, a reference to any one or more of the makers of the layout.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - PART II

PART II-EL RIGHTS IN ELIGIBLE LAYOUTS

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 1

Division 1-Ownership and nature of EL rights

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 16

Ownership of EL rights

16. (1) Subject to this section, the person who makes an eligible layout is

the first owner of the EL rights in it.

(2) Where a layout is made by a person under the terms of his or her

employment by another person under a contract of service or apprenticeship,

that other person shall be taken to be the maker of the layout.

(3) The application of subsection (2) to the EL rights in a particular

eligible layout may be excluded or modified by agreement.

(4) Where, before the commencement of Part II, a design applicable to an

integrated circuit, or to part of an integrated circuit, or a design

applicable to a mask used to make an integrated circuit, was registered under

the Designs Act 1906, the owner (within the meaning of that Act) of the design

shall, for the purposes of this Act, be taken to be the maker of the circuit

layout for the integrated circuit, or the part of the integrated circuit, as

the case requires.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 17

Nature of EL rights

17. The owner of the EL rights in an eligible layout has, during the

protection period of the layout, the following exclusive rights:

(a) to copy the layout, directly or indirectly, in a material form;

(b) to make an integrated circuit in accordance with the layout or a copy

of the layout;

(c) to exploit the layout commercially in Australia.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 18

EL rights to subsist without regard to makers who are not eligible persons

18. Section 16 has effect, in relation to a jointly made eligible layout of

which one or more (but not all) of the makers are not eligible persons, as if

the layout had been made solely by the other maker or makers.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 2

Division 2-Infringement of EL rights

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 19

Infringement

19. (1) Subject to this Act, the EL right in an eligible layout, being the

right referred to in paragraph 17 (a), is infringed by a person who, during

the protection period of the layout and without the licence of the owner of

that right, copies, or authorises the copying, of the layout in a material

form.

(2) Subject to this Act, the EL right in an eligible layout, being the right

referred to in paragraph 17 (b), is infringed by a person who, during the

protection period of the layout and without the licence of the owner of that

right, makes, or authorises the making of, an integrated circuit made in

accordance with the layout.

(3) Subject to this Act, the EL right in an eligible layout, being the right

referred to in paragraph 17 (c), is infringed by a person who, during the

protection period of the layout, without the licence of the owner,

commercially exploits, or authorises the commercial exploitation of, the

layout in Australia if the person knows or ought reasonably to know, that he

or she is not licensed by the owner of that right to do so.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 3

Division 3-Acts that are not infringements of EL rights

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 20

Innocent commercial exploitation

20. (1) The EL rights in an eligible layout are not infringed by a person

who commercially exploits, or authorises the commercial exploitation of, the

layout in Australia if, at the time when the person acquired the layout, the

copy of the layout or the integrated circuit made in accordance with the

layout, as the case may be, the person did not know, and could not reasonably

be expected to have known, that EL rights subsisted in the layout.

(2) Where a person referred to in subsection (1) becomes aware, or could

reasonably be expected to have become aware, that EL rights subsist in the

layout, that subsection ceases to apply to any subsequent commercial

exploitation of the layout, unless the person pays to the owner or exclusive

licensee of those rights such equitable remuneration as is agreed, or as is

determined by a method agreed, between the person and the owner or exclusive

licensee or, in default of agreement, as is determined by the Federal Court of

Australia on application made by either of them.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 21

Copying for private use

21. (1) The EL rights in an eligible layout are not infringed by making a

copy or copies of the layout for the private use of the person who makes the

copy or copies.

(2) A copy of an eligible layout shall not be taken to have been made for

the private use of a person if it is commercially exploited or if it is

distributed otherwise than by way of trade to an extent that will prejudice

the interests of the owner of the EL rights in the layout.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 22

Copying for research or teaching purposes

22. The EL rights in an eligible layout are not infringed by making a copy

or copies of the layout for research or teaching purposes.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 23

Evaluation or analysis

23. The EL rights in an eligible layout are not infringed:

(a) by making a copy or copies of the layout for the purpose of evaluating

or analysing the layout;

(b) by making an original circuit layout based on an evaluation or analysis

carried out with the use of a copy or copies referred to in paragraph (a);

(c) by making an integrated circuit in accordance with an original circuit

layout referred to in paragraph (b); or

(d) by copying or commercially exploiting in Australia an original circuit

layout referred to in paragraph (b).

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 24

Commercial exploitation of eligible layouts previously exploited under

licence

24. (1) Where:

(a) an eligible layout is commercially exploited, whether in Australia or

elsewhere, by, or with the licence of, the owner of the EL rights in the

layout; and

(b) a person acquires a copy of the layout, or an integrated circuit made

in accordance with the layout, as a result of that commercial exploitation;

it is not an infringement of the EL rights in the layout if the person

commercially exploits the copy or the integrated circuit in Australia.

(2) In spite of section 37 of the Copyright Act 1968 and section 38 of that

Act to the extent that section 38 applies to imported articles, where the

commercial exploitation of an integrated circuit containing a copy or

adaptation of a work (being an integrated circuit made in accordance with an

eligible layout) is not, under this section, an infringement of the EL rights

in the layout, that commercial exploitation is not an infringement of the

copyright in that work unless the making of that copy or adaptation was an

infringement of that copyright.

(3) Expressions used in subsection (2) that are used and defined in the

Copyright Act 1968 have the same respective meanings in that subsection as

they have in that Act.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 25

Use for purposes of defence or security

25. (1) An act done by the Commonwealth, or by a person authorised in

writing by the Commonwealth, in relation to an eligible layout for the defence

or security of Australia is not an infringement of the EL rights in the

layout.

(2) An authorisation may be given before or after the acts in respect of

which it is given have been done, and may be given to a person in spite of the

fact that the person has a licence granted by, or binding on, the owner of the

EL rights to do the acts.

(3) Where an act has been done under subsection (1) in relation to an

eligible layout, the Commonwealth shall as soon as practicable inform the

owner of the EL rights in the layout that the act has been done and give the

owner such information about the doing of the act as the owner from time to

time requires, unless informing the owner or disclosing the information would,

or might reasonably be expected to, cause damage to the defence or security of

Australia.

(4) Where an act has been done under subsection (1) in relation to an

eligible layout, the terms for the doing of the act are such terms as are,

whether before or after the act is done, agreed, or determined by a method

agreed, between the Commonwealth and the owner of the EL rights or, in default

of agreement, as are determined by the Federal Court of Australia on the

application of either of them.

(5) Where an article is sold and the sale is, under subsection (1), not an

infringement of EL rights, the purchaser of the article, and a person claiming

through the purchaser, is entitled to deal with the article as if the

Commonwealth were the owner of the EL rights.

(6) An act done under subsection (1) in relation to an eligible layout shall

not be taken into account in calculating the protection period of the layout.

(7) Where an exclusive licence is in force in relation to any EL right, this

section has effect as if references to the owner of the EL right were

references to the exclusive licensee.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - PART III

PART III-REMEDIES FOR INFRINGEMENTS OF EL RIGHTS

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 1

Division 1-Preliminary

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 26

Application of Part to counterclaims

26. In the application of this Part in relation to a counterclaim,

references to the plaintiff and to the defendant shall be read as references

to the defendant and to the plaintiff, respectively.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 2

Division 2-Actions by owner of EL rights

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 27

Actions for infringement

27. (1) Subject to this Act, the owner of EL rights may bring an action for

an infringement of those rights.

(2) Subject to this Act, the relief that a court may grant in an action for

infringement of EL rights includes an injunction (subject to such terms, if

any, as the court thinks fit) and either damages or an account of profits.

(3) Where, in an action for an infringement of EL rights, it is established

that an infringement was committed but that, at the time of the infringement,

the defendant was not aware, and had no reasonable grounds for suspecting,

that the act constituting the infringement was an infringement, the plaintiff

is not entitled to any damages against the defendant in respect of the

infringement but is entitled to an account of profits in respect of the

infringement, whether any other relief is granted or not.

(4) Where, in an action for infringement of EL rights:

(a) an infringement is established; and

(b) the court is satisfied that it is proper to do so, having regard to:

(i) the flagrancy of the infringement;

(ii) any benefit shown to have accrued to the defendant because of the

infringement; and

(iii) all other relevant matters;

the court may, in assessing damages for the infringement, award such

additional damages as it considers appropriate in the circumstances.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 28

Limitation of actions

28. An action shall not be brought for an infringement of EL rights after

the end of 6 years after the day when the infringement took place.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 3

Division 3-Proceedings where EL rights subject to exclusive licence

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 29

Application

29. This Division applies to proceedings in relation to any EL right in

respect of which an exclusive licence has been granted and is in force at the

time of the events to which the proceedings relate.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 30

Rights of exclusive licensee

30. Subject to this Division, the exclusive licensee has the same rights of

action as he or she would have, and is entitled to the same remedies as he or

she would be entitled to, under section 27 if he or she were the owner of the

EL rights but:

(a) is not entitled to exercise those rights against the owner of the EL

rights; and

(b) those rights and remedies are concurrent with the rights and remedies

of the owner of the EL rights under that section.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 31

Joinder of owner or exclusive licensee as a party

31. (1) Where:

(a) an action is brought by the owner of the EL rights, or by the exclusive

licensee, under section 27; and

(b) the action relates, wholly or partly, to an infringement in respect of

which the owner and the licensee have concurrent rights of action under that

section;

the owner or licensee, as the case may be, is not entitled, except with the

leave of the court, to proceed with the action, in so far as it relates to

that infringement, unless the licensee or owner, respectively, is joined as a

plaintiff in the action or added as a defendant.

(2) This section does not affect the granting of an interlocutory injunction

on the application of the owner of the EL rights or the exclusive licensee.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 32

Defences available against exclusive licensee

32. In an action under section 27 by the exclusive licensee, a defence under

this Act that would have been available to a defendant in the action if the

action had been brought by the owner of the EL rights is available to that

defendant against the exclusive licensee.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 33

Assessment of damages where exclusive licence granted

33. Where an action to which section 31 applies is brought and the owner of

the EL rights and the exclusive licensee are not both plaintiffs in the

action, the court, in assessing damages in respect of an infringement of a

kind referred to in that section, shall:

(a) if the plaintiff is the exclusive licensee-take into account any

liabilities to which the licence is subject; and

(b) whether the plaintiff is the owner of the EL rights or the exclusive

licensee-take into account any pecuniary remedy already awarded to the other

party under section 27 in respect of that infringement, or any right of action

exercisable by the other party under that section in respect of that

infringement.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 34

Apportionment of profits between owner and exclusive licensee

34. Where:

(a) an action under section 27 relates, wholly or partly, to an

infringement in respect of which the owner of the EL rights and the exclusive

licensee have concurrent rights of action under that section (whether or not

they are both parties); and

(b) an account of profits is directed to be taken in respect of that

infringement in that action;

the court shall, subject to any agreement of which it is aware by which the

application of those profits is determined as between the owner of the EL

rights and the exclusive licensee, apportion the profits between them in such

manner as it considers just and shall give such directions as it considers

appropriate for giving effect to that apportionment.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 35

Separate actions in relation to the same infringement

35. In an action under section 27 brought by the owner of the EL rights or

by the exclusive licensee:

(a) a judgment or order for the payment of damages in respect of an

infringement of those rights shall not be given or made if a final judgment or

order has been given or made in favour of the other party directing an account

of profits under that section in respect of the same infringement; and

(b) a judgment or order for an account of profits in respect of an

infringement of those rights shall not be given or made if a final judgment or

order has been given or made in favour of the other party awarding damages or

directing an account of profits under that section in respect of the same

infringement.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 36

Liability for costs

36. Where, in an action to which section 31 applies, whether brought by the

owner of the EL rights or by the exclusive licensee, the other party is not

joined as a plaintiff (either at the commencement of the action or at a later

time), but is added as a defendant, the other party is not liable for any

costs in the action unless he or she enters an appearance and takes part in

the proceedings.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 4

Division 4-Proof of facts in actions

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 37

Presumptions as to subsistence and ownership of EL rights

37. In an action under section 27:

(a) EL rights shall be presumed to subsist in the circuit layout to which

the action relates if the defendant does not put in issue the question whether

those rights subsist in the layout; and

(b) where EL rights subsist in the layout-the plaintiff shall be presumed

to be the owner of the rights if he or she claims to be the owner of the

rights and the defendant does not put in issue the question of ownership.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 38

Affidavit evidence

38. (1) In an action under section 27, proof of either or both of the

following matters may be given by affidavit:

(a) the subsistence, at a particular time, of EL rights in the circuit

layout to which the action relates;

(b) the ownership, at a particular time, of the EL rights in that layout.

(2) If a party to an action requires in good faith that a person who made an

affidavit referred to in subsection (1) that is proposed to be used in the

action be cross-examined with respect to the matters in the affidavit, the

affidavit may not be used in the action unless the person appears as a witness

for such cross-examination or the court, in its discretion, permits the

affidavit to be used without the person's so appearing.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 39

Evidentiary labels

39. (1) If, at the time when an eligible layout, a copy of an eligible

layout, an integrated circuit made in accordance with an eligible layout or an

article in which such an integrated circuit is incorporated was first imported

or distributed by way of trade, the layout, the copy, the integrated circuit

or a package containing it, or the article bore a prescribed label or mark,

the fact that it bore the label or mark at that time is prima facie evidence,

in an action under section 27 relating to the layout, that any person dealing

at or after that time with the layout, the copy or the integrated circuit, as

the case may be, has been notified of the subsistence of EL rights in the

layout.

(2) In subsection (1):

"distributed by way of trade" includes sold, let for hire, or offered or

exposed for sale or hire or other distribution by way of trade;

"imported" means imported into Australia for the purpose of distribution by

way of trade;

"prescribed label or mark" means a label or mark:

(a) that was affixed to the eligible layout, the copy of the eligible

layout, the integrated circuit made in accordance with an eligible layout or

the package containing it, or the article in which such an integrated circuit

is incorporated so as to be reasonably apparent to a person dealing with the

layout, the copy or the integrated circuit, as the case may be; and

(b) bearing a statement:

(i) to the effect that EL rights subsist in the layout;

(ii) specifying the country and the year in which the layout was

first commercially exploited; and

(iii) specifying the maker of the layout.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - DIVISION 5

Division 5-Jurisdiction and appeals

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 40

Exercise of jurisdiction

40. The jurisdiction of the Supreme Court of a State or Territory in an

action under this Part shall be exercised by a single judge of the Court.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 41

Appeals

41. (1) Subject to subsection (2), a decision of a court of a State or

Territory (however constituted) under this Part is final and conclusive.

(2) An appeal lies from a decision of a court of a State or Territory under

this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - PART IV

PART IV-MISCELLANEOUS

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 42

Eligible foreign countries

42. A foreign country shall not be declared to be an eligible foreign

country for the purposes of this Act unless:

(a) it is a party to a convention relating to the protection of circuit

layouts to which Australia is also a party; or

(b) the Governor-General is satisfied that, although the foreign country is

not a party to such a convention, provision is or will be made under the law

of that country under which adequate protection is or will be given to circuit

layouts made by persons referred to in paragraph (a) or (b) of the definition

of "eligible person" in section 5 and to circuit layouts first commercially

exploited in Australia.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 43

Limitation on power of courts to grant relief in proceedings under this Act

43. Nothing in this Act authorises a court of a State or Territory to grant

relief by way of injunction or account of profits if that court does not,

apart from this Act, have power to grant such relief.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 44

Prospective ownership of EL rights

44. (1) Where, by an agreement made in relation to future EL rights and

signed by or on behalf of the person who would, apart from this section, be

the owner of the rights on their coming into existence, that person purports

to assign the future EL rights (wholly or partly) to another person (in this

subsection called the "assignee"), then the rights, on coming into existence,

vest in the assignee or his or her successor in title by force of this

subsection.

(2) Where, at the time when an EL right comes into existence, the person who

would be entitled to the right is dead, the right devolves as if, immediately

before the person's death, the person had been the owner of the right.

(3) A licence granted in respect of future EL rights by the prospective

owner of the rights binds each of his or her successors in title to the

prospective interest in the right to the same extent as the licence was

binding on the grantor.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 45

Assignments and licences of EL rights

45. (1) EL rights are personal property and, subject to this section, are

transmissible by assignment, by will and by devolution by operation of law.

(2) An assignment of EL rights may be limited in any way, including any one

or more of the following ways:

(a) so as to apply to one or more of the classes of acts that, by virtue of

this Act, the owner of the EL rights has the exclusive right to do (including

a class of acts that is not separately specified in this Act as being

comprised in EL rights but falls within a class of acts that is so

specified);

(b) so as to apply to a place in, or a part of, Australia;

(c) so as to apply to part of the protection period of the layout in which

the EL rights subsist.

(3) An assignment of EL rights (whether total or partial) does not have

effect unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted in respect of an EL right by the owner of the right

binds every successor in title to the interest in the right of the grantor of

the licence to the same extent as the licence was binding on the grantor.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 46

Groundless threats of legal proceedings

46. (1) Where a person, by means of circulars, advertisements or otherwise,

threatens a person with an action or proceeding in respect of an infringement

of EL rights, then, whether or not the person making the threat is the owner

of the EL rights, or an exclusive licensee, a person aggrieved may bring an

action against the first-mentioned person and may obtain a declaration to the

effect that the threat is unjustifiable, and an injunction against the

continuance of the threat, and may recover such damages (if any) as the person

aggrieved has sustained, unless the first-mentioned person satisfies the court

that the acts in respect of which the action or proceeding was threatened

constituted, or would constitute, an infringement of EL rights.

(2) The mere notification of the existence of any EL right does not

constitute a threat of an action or proceeding within the meaning of this

section.

(3) Nothing in this section renders a barrister or solicitor of the High

Court, or of the Supreme Court of a State or Territory, liable to an action

under this section in respect of an act done in his or her professional

capacity on behalf of a client.

(4) The defendant in an action under this section may apply, by way of

counterclaim, for relief to which the defendant would be entitled in a

separate action in respect of an infringement by the plaintiff of the EL

rights to which the threat relates and, in any such case, the provisions of

this Act with respect to an action for infringement of EL rights apply, with

the necessary changes made, in relation to the action.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 47

Jurisdiction of Federal Court of Australia

47. Jurisdiction is conferred on the Federal Court of Australia with respect

to actions under Part III and applications under sections 20 and 25.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 48

Regulations

48. The Governor-General may make regulations, not inconsistent with this

Act, prescribing all matters required or permitted by this Act to be

prescribed for carrying out or giving effect to this Act.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SECT 49

Consequential amendments of other Acts

49. The Acts specified in the Schedule are amended as set out in the

Schedule.

CIRCUIT LAYOUTS ACT 1989 No. 28 of 1989 - SCHEDULE

SCHEDULE

Section 49

CONSEQUENTIAL AMENDMENTS

Copyright Act 1968

Subsection 10 (1) (definition of "artistic work"):

Add at the end of the definition after paragraph (c) "but does not include

a circuit layout within the meaning of the Circuit Layouts Act 1989".

Designs Act 1906

Subsection 4 (1) (definition of "article"):

Add at the end of the definition ", but does not include an integrated

circuit, or part of an integrated circuit, within the meaning of the Circuit

Layouts Act 1989, or a mask used to make such a circuit".

After section 6:

Insert the following section in Part I:

Certain registrations not to be renewed

"7. In spite of any other provision of this Act, where before the

commencement of Part II of the Circuit Layouts Act 1989 a design applicable

to an integrated circuit, or part of an integrated circuit, within the meaning

of

that Act, or a design applicable to a mask used to make such a circuit, was

registered under this Act, that registration shall not be renewed at any time

on or after that commencement.".

Trade Practices Act 1974

Subparagraph 51 (3) (a) (i):

Omit "or of a copyright", substitute ", of a copyright or of EL rights

within the meaning of the Circuit Layouts Act 1989,".

Subparagraph 51 (3) (a) (ii):

Omit "or of a copyright", substitute ", of a copyright or of such EL

rights,".

Subparagraph 51 (3) (a) (iv):

Omit "or" (last occurring).

Paragraph 51 (3) (a):

Add at the end of the paragraph the following word and subparagraph:

"; or (vi) the eligible layout in which the EL rights subsist.".