Act No. 28 of 1989 as amended
This compilation was prepared on 1 July 2007 taking into account amendments up to Act No. 21 of 2007
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra
Part 1—Preliminary
1 | Short title [see Note 1].......................................................................1 |
2 | Commencement [see Note 1].............................................................1 |
3 | Extension to external Territories .......................................................1 |
4 | Act binds the Crown..........................................................................1 |
5 | Interpretation .....................................................................................1 |
6 | Residence not affected by temporary absence ...................................3 |
7 | Application to circuit layouts made before commencement..............3 |
8 | Commercial exploitation ...................................................................4 |
9 | Exclusive right...................................................................................4 |
10 | Making an eligible layout..................................................................4 |
11 | Originality .........................................................................................4 |
12 | Licence of owner of EL rights ...........................................................5 |
13 | Substantial part of eligible layout ......................................................5 |
14 | References to all joint makers............................................................5 |
15 | References to any one or more joint makers......................................5 |
Part II—EL rights in eligible layouts 6
Division 1—Ownership and nature of EL rights 6 16 Ownership of EL rights.....................................................................6 17 Nature of EL rights............................................................................6 18 EL rights to subsist without regard to makers who are not
eligible persons..................................................................................7
Division 2—Infringement of EL rights 8 19 Infringement......................................................................................8
Division 3—Acts that are not infringements of EL rights 9 20 Innocent commercial exploitation .....................................................9 21 Copying for private use.....................................................................9 22 Copying for research or teaching purposes......................................10 23 Evaluation or analysis......................................................................10 24 Commercial exploitation of eligible layouts previously exploited under licence....................................................................10
25 Use for purposes of defence or security...........................................11
Part III—Remedies for infringements of El rights 13
Division 1—Preliminary 13 26 Application of Part to counterclaims...............................................13
Division 2—Actions by owner of EL rights 14 27 Actions for infringement .................................................................14 28 Limitation of actions........................................................................14
licence 15 29 Application......................................................................................15 30 Rights of exclusive licensee ............................................................15 31 Joinder of owner or exclusive licensee as a party............................15 32 Defences available against exclusive licensee.................................16 33 Assessment of damages where exclusive licence granted ...............16 34 Apportionment of profits between owner and exclusive
licensee............................................................................................16
35 Separate actions in relation to the same infringement .....................16
36 Liability for costs.............................................................................17
Division 4—Proof of facts in actions 18 37 Presumptions as to subsistence and ownership of EL rights............18 38 Affidavit evidence...........................................................................18 39 Evidentiary labels............................................................................18
Division 5—Jurisdiction and appeals 20 40 Exercise of jurisdiction....................................................................20 41 Appeals............................................................................................20
Part IV—Miscellaneous 21 42 Eligible foreign countries ................................................................21 43 Limitation on power of courts to grant relief in proceedings
under this Act..................................................................................21 44 Prospective ownership of EL rights.................................................21 45 Assignments and licences of EL rights............................................22 46 Groundless threats of legal proceedings..........................................22 47 Jurisdiction of Federal Court of Australia .......................................23 48 Regulations......................................................................................23 49 Consequential amendments of other Acts........................................23
Schedule—Consequential amendments 24
Notes 25
An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes
1 Short title [see Note 1] This Act may be cited as the Circuit Layouts Act 1989.
2 Commencement [see Note 1]
3 Extension to external Territories
This Act extends to every external Territory.
4 Act binds the Crown
Subject to section 25, this Act binds the Crown.
5 Interpretation
In this Act:
action means a proceeding of a civil nature between parties, and includes a counterclaim.
circuit layout means a 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:
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.
protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:
6 Residence not affected by temporary absence
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.
7 Application to circuit layouts made before commencement
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.
8 Commercial exploitation
9 Exclusive right
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.
10 Making an eligible layout
For the purposes of this Act:
11 Originality
Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:
12 Licence of owner of EL rights
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.
13 Substantial part of eligible layout
In this Act:
14 References to all joint makers
Subject to this Part, 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.
15 References to any one or more joint makers
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.
Section 16
16 Ownership of EL rights
17 Nature of EL rights
The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:
Section 18
18 EL rights to subsist without regard to makers who are not eligible persons
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.
Section 19
19 Infringement
Section 20
20 Innocent commercial exploitation
unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.
21 Copying for private use
(1) The EL rights in an eligible layout are not infringed by making:
copy of the layout; for the private use of the person who does the making.
(2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is
Section 22
commercially exploited or 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.
22 Copying for research or teaching purposes
The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.
23 Evaluation or analysis
24 Commercial exploitation of eligible layouts previously exploited under licence
(1) Where:
Section 25
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.
25 Use for purposes of defence or security
Section 25
the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.
Section 26
26 Application of Part to counterclaims
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.
Section 27
27 Actions for infringement
(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.
28 Limitation of actions
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.
Section 29
29 Application
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.
30 Rights of exclusive licensee
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:
31 Joinder of owner or exclusive licensee as a party
(1) Where:
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.
Section 32
32 Defences available against exclusive licensee
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.
33 Assessment of damages where exclusive licence granted
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:
34 Apportionment of profits between owner and exclusive licensee
Where:
35 Separate actions in relation to the same infringement
In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:
Section 36
36 Liability for costs
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.
Section 37
37 Presumptions as to subsistence and ownership of EL rights
In an action under section 27:
38 Affidavit evidence
39 Evidentiary labels
(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
Section 39
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.
(iii) specifying the maker of the layout.
Section 40
40 Exercise of jurisdiction
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.
41 Appeals
42 Eligible foreign countries
A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:
43 Limitation on power of courts to grant relief in proceedings under this Act
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.
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
Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.
48 Regulations
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.
49 Consequential amendments of other Acts
The Acts specified in the Schedule are amended as set out in the Schedule.
Schedule Consequential amendments
Section 49
The amendments made by this Schedule are incorporated in the compilations on ComLaw.
Copyright Act 1968
Designs Act 1906
[repealed by Act No. 147, 2003, section 150]
For access to the wording of the amendments made by this Schedule, see Act No. 28, 1989.
Table of Acts
The Circuit Layouts Act 1989 as shown in this compilation comprises Act No. 28, 1989 amended as indicated in the Tables below.
Act | Number and year | Date of Assent | Date of commencement | Application, saving or |
transitional | ||||
provisions | ||||
Circuit Layouts Act 1989 | 28, 1989 | 22 May 1989 | Ss. 1 and 2: Royal Assent | |
Remainder: 1 Oct | ||||
1990 (see Gazette 1990, S261) | ||||
Law and Justice Legislation Amendment Act 1990 | 115, 1990 | 21 Dec 1990 | Part 3 (ss. 40–48): Royal Assent (a) | — |
Australian Citizenship (Transitionals and Consequentials) Act 2007 | 21, 2007 | 15 Mar 2007 | Schedules 1–3: 1 July 2007 (see s. 2(1) and F2007L01653) Remainder: Royal Assent | — |
(a) The Circuit Layouts Act 1989 was amended by Part 3 (sections 40–48) only of the Law and Justice Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected
S. 5............................................ am. No. 115, 1990; No. 21, 2007
S. 14.......................................... am. No. 115, 1990 Ss. 20–23 .................................. am. No. 115, 1990
S. 25.......................................... am. No. 115, 1990
S. 42.......................................... am. No. 115, 1990