Short title.
Parts.
Copyright No. 63 of 1968
An Act relating to Copyright, and for other purposes.
[Assented to 27 June 1968]
BE it enacted by the Queen's Most Excellent Majesty, the Senate, andthe House of Representatives of the Commonwealth of Australia, as follows:-
PART I.-PRELIMINARY.
1. This Act may be cited as the Copyright Act 1968.
2. This Act shall come into operation on a date to be fixed by Pro- clamation.
3. This Act is divided into Parts, as follows:- Part I.-Preliminary (Sections 1-9).
Part H.-Interpretation (Sections 10-30).
Part IlL-Copyright in Original Literary, Dramatic, Musical and Artistic Works.
Division I.-Nature, Duration and Ownership of Copyright in Works (Sections 31-35).
Division 2.-lnfringement of Copyright in Works (Sections 36-39).
1968 Copyright No. 63
Division 3.-Acts not Constituting Infringements of Copyright in Works (Sections 40-44).
Division 4.-Acts not Constituting Infringements of Copyright in Literary, Dramatic and Musical Works (Sections 45-47).
Division 5.-Copying of Works in Libraries (Sections 48-53). Division 6.-Recording of Musical Works (Sections 54-64). Division 7.-Acts not Constituting Infringements of Copyright
in Artistic Works (Sections 65-73). Division 8.-Industrial Designs (Sections 74-77). Division 9.-Works of Joint Authorship (Sections 78-83).
Part IV.-Copyright in Subject-Matter other than Works. Division I.-Preliminary (Section 84). Division 2.-Nature of Copyright in Subject-Matter other than
Works (Sections 85-88). Division 3.-Subject-Matter, other than Works, in which Copy-
right Subsists (Sections 89-92). Division 4.-Duration of Copyright in Subject-Matter other
than Works (Sections 93-96). Division 5.-0wnership of Copyright in Subject-Matter other
than Works (Sections 97-100). Division 6.-Infringement of Copyright in Subject-Matter other
than Works (Sections 101-112). Division 7.-Miscellaneous (Section 113).
Part V.-Remedies for Infringements of Copyright. Division I.-Preliminary (Section 114). Division 2.-Actions by Owner of Copyright (Sections 115-116). Division 3.-Proceedings where Copyright is subject to Ex-
clusive Licence (Sections 117-125). Division 4.-Proof of Facts in Copyright Proceedings (Sections
126-131). Division 5.-0ffences and Summary Proceedings (Sections
132-133). Division 6.-Miscellaneous (Sections 134-135).
Part VI.-The Copyright TribunaL Division I.-Preliminary (Sections 136-137). Division 2.-Constitution of the Tribunal (Sections 138-147). Division 3.-Inquiries by, and Applications and References to,
the Tribunal (Sections 148-162). Division 4.-Procedure and Evidence (Sections 163-169). Division 5.-Miscellaneous (Sections 170-175).
Extension to external Territories.
Exeluslon of Imperial Copyright Act, 1911,
Repeal of Copyright Acts.
Actio bind the Crown.
Copyright DOl to subsist except by virtue ofthb Act, the DesiiDS Act or tho preroaatlvo of the Cro'ii'IL
No. 63 Copyright 1968
Part VII.-The Crown (Sections 176-183).
Part Vlli.-Extension or Restriction of Operation of Act (Sections 184-188).
Part IX.-False Attribution of Authorship (Sections 189-195).
Part X.-Miscellaneous (Sections 196-203).
Part XL-Transitional. Division I.-Preliminary (Sections 204-209). Division 2.-0riginal Works (Sections 210-219). Division 3.-Subject-Matter other than Works (Sections 220-
225). Division 4.-Miscellaneous (Sections 226-242). Division 5.-Works Made before 1 July, 1912 (Sections
243-248).
Part XII.-Regulations (Section 249).
4. This Act extends to every Territory of the Commonwealth not forming part of the Commonwealth.
5.-(1.) This Act operates to the exclusion of the Copyright Act, 1911. (2.) For the purposes of section 8 of the Acts Interpretation Act 1901-
1966, the Copyright Act, 1911 shall be deemed to be an Act passed by the Parliament of the Commonwealth and to be repealed by this Act, and the enactment of Part XI. shall not be taken to affect the operation of section 8 of the Acts Interpretation Act 1901-1966 as it operates by virtue of this sub-section in relation to matters to which that Part does not apply.
6. The following Acts are repealed:- Copyright Act 1912; Copyright Act 1933; Copyright Act 1935; Copyright Act 1963.
7. Subject to Part VII., this Act binds the Crown but nothing in this Act renders the Crown liable to be prosecuted for an offence.
8.-(1.) Subject to the next succeeding sub-section, copyright does not subsist otherwise than by virtue of this Act or of the Designs Act 1906-1968.
(2.) This Act does not affect any prerogative right or privilege of the Crown.
1968 Copyright No. 63
9.-(1.) This Act does not affect the right of, or of a person deriving title directly or indirectly from, the Commonwealth or a State to sell, use or otherwise deal with articles that have been, or are, forfeited under a Jaw of the Commonwealth or of the State.
(2.) This Act does not relieve a person from complying with the requirements of sections 120 and 121 of the Broadcasting and Television Act 1942-1967.
(3.) This Act does not affect the operation of the law relating to breaches of trust or confidence.
PART II.-INTERPRETATION.
10. In this Act, unless the contrary intention appears- " adaptation " means-
(a) in relation to a literary work in a non-dramatic form-a version of the work (whether in its original language or in a different language) in a dramatic form;
(b) in relation to a literary work in a dramatic form-a version of the work (whether in its original language or in a different language) in a non-dramatic form;
(c) in relation to a literary work (whether in a non-dramatic form or in a dramatic form)-
(i) a translation of the work; or (ii) a version of the work in which a story or action is
conveyed solely or principally by means of pictures; and
(d) in relation to a musical work-an arrangement or trans- cription of the work;
" artistic work " means- (a) a painting, sculpture, drawing, engraving or photograph,
whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building
or model is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither of the
last two preceding paragraphs applies;
" Australia " includes the Territories of the Commonwealth not forming part of the Commonwealth;
" Australian protected person " means a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948-1967, is, for the purposes of that Act, under the protection of the Australian Government;
" author ", in relation to a photograph, means the person who took the photograph;
<>Deration of other laws.
Definitions.
No. 63 Copyright 1968
"broadcast" means broadcast by wireless telegraphy, and "broad- casting " has a corresponding meaning;
" building " includes a structure of any kind;
" calendar year " means a period of twelve months commencing on the first day of January;
"cinematograph film" means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing-
(a) of being shown as a moving picture; or (b) of being embodied in another article or thing by the use
of which it can be so shown, and includes the aggregate of the sounds embodied in a sound- track associated with such visual images;
" construction " includes erection, and " reconstruction " has a corre- sponding meaning;
" copy ", in relation to a cinematograph film, means any article or thing in which the visual images or sounds comprising the film are embodied;
" dramatic work " includes- (a) a choreographic show or other dumb show if described in
writing in the form in which the show is to be presented; and
(b) a scenario or script for a cinematograph film, but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film;
" drawing " includes a diagram, map, chart or plan;
" engraving " includes an etching, lithograph, product of photogravure. woodcut, print or similar work, not being a photograph;
" exclusive licence " means a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorizing the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the copyright would, but for the licence, have the exclusive right to do, and" exclusive licensee" has a corresponding meaning;
" future copyright " means copyright to come into existence at a future time or upon the happening of a future event;
" holder of a licence for a broadcasting station " means a holder of a subsisting licence for a commercial broadcasting station under the Broadcasting and Television Act 1942-1967;
" holder of a licence for a television station , means a holder of a subsisting licence for a commercial television station under the Broadcasting and Television Act 1942-1967;
1968 Copyright No. 63
" holder of a wireless telegraphy licence " means a holder of a subsisting licence under the Wireless Telegraphy Act 1905-1967 to establish, erect, maintain or use a station or appliance for the purpose of transmitting messages by means of wireless telegraphy;
"infringing copy" means- (a) in relation to a literary, dramatic, musical or artistic work-
a reproduction of the work not being a copy of a cinemato- graph film of the work;
(b) in relation to a sound recording-a record embodying the recording not being a sound-track associated with visual images forming part of a cinematograph film;
(c) in relation to a cinematograph film-a copy of the film; (d) in relation to a television broadcast or a sound broad-
cast-a copy of a cinematograph film of the broadcast or a record embodying a sound recording of the broad- cast; and
(e) in relation to a published edition of a literary, dramatic, musical or artistic work-a reproduction of the edition,
being an article the making of which constituted an infringement of the copyright in the work, recording, film, broadcast or edition or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in Australia by the importer;
" international organization to which this Act applies " means an organization that is dedared by regulations made for the purposes of section 186 of this Act to be an international organization to which this Act applies, and includes-
(a) an organ of, or office within, an organization that is so declared; and
(b) a commission, council or other body established by such an organization or organ;
"judicial proceeding" means a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath;
"law of the Commonwealth" includes a law of a Territory of the Com- monwealth;
"literary work" includes a written table or compilation;
" manuscript ", in relation to a work, means an original document embodying the work, whether written by hand or not;
" photograph " means a product ofphotography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography, and " photographic " has a corresponding meaning;
No. 63 Copyright 1968
"plate" includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance;
" prospective owner " rneans- (a) in relation to a future copyright that is not the subject of
an agreement of a kind referred to in sub-section (1.) of section 197 of this Act-the person who will be the owner of the copyright on its corning into existence; or
(b) in relation to a future copyright that is the subject of such an agreement-the person in whom, by virtue of that sub- section, the copyright will vest on its coming into existence;
" record " means a disc, tape, paper or other device in which sounds are embodied;
" sculpture " includes a cast or model made for purposes of sculpture; " sound broadcast " means sounds broadcast otherwise than as part of
a television broadcast; " sound recording " means the aggregate of the sounds embodied in a
record; " sound-track ", in relation to visual images forming part of a cine-
matograph film, means- (a) the part of any article or thing, being an article or thing in
which those visual images are embodied, in which sounds are embodied; or
(b) a disc, tape or other device in which sounds are embodied and which is made available by the maker of the film for use in conjunction with the article or thing in which those visual images are embodied;
" sufficient acknowledgement ", in relation to a work, means an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknow- ledgement of his name is not to be made, also identifying the author;
" television broadcast " means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images;
" the Australian Broadcasting Commission " means the Australian Broadcasting Commission constituted under the Broadcasting and Television Act 1942-1967;
" the Commonwealth" includes the Administration of a Territory of the Commonwealth;
" the Copyright Act, 1911 " means the Imperial Act known as the Copyright Act, 1911;
" the Copyright Tribunal " or " the Tribunal " means the Copyright Tribunal established by Part VI., and includes a member of that Tribunal exercising powers of that Tribunal;
1968 Copyright No.63
" the Crown " includes the Crown in right of a State and also includes the Administration of a Territory of the Commonwealth;
" the minimum royalty ", in relation to a record, means the amounts applicable in respect of the record under sub-section (5.) of section 56, and sub-paragraph (i) ofparagraph (b) of section 57, of this Act or, if those provisions are affected by regulations made for the purposes of section 58 of this Act, under those provisions as so affected;
"the National Librarian" has the same meaning as in the National Library Act 1960-1967;
" the National Library "means the National Library established under the National Library Act 1960-1967;
"the royalty", in relation to a record, means the amount applicable in respect of the record under sub-section (1.) of section 56 of this Act or, if that sub-section is affected by regulations made for the purposes of section 58 of this Act, under that sub-section as so affected;
" will " includes a codicil;
" wireless telegraphy " means the emitting or rece1vmg, otherwise than over a path that is provided by a material substance, of electromagnetic energy;
"wireless telegraphy apparatus" means an appliance or apparatus for the purpose of transmitting or receiving sounds or visual images by means of wireless telegraphy;
"work" means a literary, dramatic, musical or artistic work;
" work of joint authorship " means a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors;
" writing " means a mode of representing or reproducing words, figures or symbols in a visible form, and" written" has a corresponding meaning.
11. For the purposes of this Act, a person who, at a material time, Residence in a was ordinarily resident in a country (including Australia) but was tempor- ~=g~' arily absent from that country shall be treated as if he had been resident ~~r;:~~ in that country at that time.
12. A reference in this Act to a Parliament shall be read as a reference to the Parliament of the Commonwealth or of a State or a legislature of a Territory of the Commonwealth.
13.-(1.) A reference in this Act to an act comprised in the copyright in a work or other subject-matter shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do.
References to Parliament.
Acts comprised in copyright.
Acts dono Ia relation to substantial part of work or olhu subject-matter deemed to be done in relation to the wbole.
References to acts done wilh licence of owner of copyright.
References to partial assignment of copyright.
Statutory employment.
Libraries established or conducted for profit.
References to Copyright Act, 1911.
Names under which work Ia published.
No. 63 Copyright 1968
(2.) For the purposes of this Act, the exclusive right to do an act in relation to a work, an adaptation of a work or any other subject-matter includes the exclusive right to authorize a person to do that act in relation to that work, adaptation or other subject-matter.
14.-(1.) In this Act, unless the contrary intention appears- (a) a reference to the doing of an act in relation to a work or other
subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and
(b) a reference to a reproduction, adaptation or copy of a work, or to a record embodying a sound recording, shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, or to a record embodying a substantial part of the sound recording, as the case may be.
(2.) This section does not affect the interpretation of any reference in sections 32, 177, 180, 187 and 198 of this Act to the publication, or absence of publication, of a work.
15. For the purposes of this Act, an act shall be deemed to have been done with the licence of the owner of a copyright if the doing of the act was authorized by a licence binding the owner of the copyright.
16. A reference in this Act to a partial assignment of copyright shall be read as a reference to an assignment of copyright that is limited in any way.
17. For the purposes of this Act, the employment of a person, or the employment of a person as an apprentice, under a law of the Common- wealth or of a State but otherwise than under a contract of service or contract of apprenticeship shall be treated as if that employment were employment under a contract of service or employment under a contract of apprenticeship, as the case may be.
18. For the purposes of this Act, a library shall not be taken to be established or conducted for profit by reason only that the library is owned by a person carrying on business for profit.
19. A reference in a provision of this Act to the Copyright Act, 1911, in relation to any time before the commencement of this Act, shall, for the purposes of the application of that provision in relation to a State or a Territory of the Commonwealth, be read as a reference to the Copyright Act, 1911 as it applied in that State or Territory at that time.
20.-(1.) A reference in this Act to the name or names under which a work was published shall be read as a reference to the name or names specified in the work as the name of the author or the names of the authors of the work.
(2.) For the purposes of this Act, a publication of a work under two or more names shall not be taken to be pseudonymous unless all those names are pseudonyms.
1968 Copyright No. 63
21.-(1.) For the purposes of this Act, a literary, dramatic or musical !f~r:'m.uctioa work shall be deemed to have been reproduced in a material form if a sound recording or cinematograph film is made of the work, and any record embodying such a recording and any copy of such a film shall be deemed to be a reproduction of the work.
(2.) The last preceding sub-section applies in relation to an adaptation of a work in like manner as it applies in relation to a work.
(3.) For the purposes of this Act, an artistic work shall be deemed to have been reproduced-
(a) in the case of a work in a two-dimensional form-if a version of the work is produced in a three-dimensional form; or
(b) in the case of a work in a three-dimensional form-if a version of the work is produced in a two-dimensional form,
and the version of the work so produced shall be deemed to be a repro- duction of the work.
(4.) The last preceding sub-section has effect subject to Division 7 of Part III.
.22.-(1_.) A reference ~n this Ac~ to the time when, or the period during :":~:~~ which, a literary~ dramatic or mustc~l work. was ~ade shall be read as a ~:::&.":.sor reference to the time when, or the penod dunng which, as the case may be, other subject· the work was first reduced to writing or to some other material form. matter.
(2.) For the purposes of this Act, a literary, dramatic or musical work that exists in the form of sounds embodied in an article or thing shall be deemed to have been reduced to a material form and to have been so reduced at the time when those sounds were embodied in that article or thing.
(3.) For the purposes of this Act- (a) a sound recording shall be deemed to have been made at the time
when the first record embodying the recording was produced; and (b) the maker of the sound recording is the person who owned that
record at that time.
(4.) For the purposes of this Act- (a) a reference to the making of a cinematograph film shall be read
as a reference to the doing of the things necessary for the pro- duction of the first copy of the film; and
(b) the maker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were under- taken.
(5.) For the purposes of this Act, a television broadcast or sound broadcast shall be deemed to have been made by the person by whom, at the time when, and from the place from which, the visual images or sounds constituting the broadcast, or both, as the case may be, were broadcast.
No. 63 Copyright 1968
sound 23.-(1.) For the purposes of this Act, sounds embodied in a sound- recordings and records. track associated with visual images forming part of cinematograph film
References to sounds and visual ima(!CS embodied m an article.
Provisions relating to broadcasting.
shall be deemed not to be a sound recording.
(2.) A reference in this Act to a record of a work or other subject- matter shall, unless the contrary intention appears, be read as a reference to a record by means of which the work or other subject-matter can be performed.
24. For the purposes of this Act, sounds or visual images shall be taken to have been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article or thing.
25.-(1.) A reference in this Act to broadcasting shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television.
(2.) A reference in this Act to the doing of an act by the reception of a television broadcast or sound broadcast shall be read as a reference to the doing of that act by means of receiving a broadcast-
(a) from the transmission by which the broadcast is made; or (b) from a transmission made otherwise than by way of broadcasting,
but simultaneously with the transmission referred to in the last preceding paragraph,
whether the reception of the broadcast is directly from the transmission concerned or from a re-transmission made by any person from any place.
(3.) Where a record embodying a sound recording or a copy of a cinematograph film is used for the purpose of making a broadcast (in this sub-section referred to as " the primary broadcast "), a person who makes a broadcast (in this sub-section referred to as " the secondary broadcast ") by receiving and simultaneously making a further trans- mission of-
(a) the transmission by which the primary broadcast was made; or (b) a transmission made otherwise than by way of broadcasting but
simultaneously with the transmission referred to in the last preceding paragraph,
shall, for the purposes of this Act, be deemed not to have used the record or copy for the purpose of making the secondary broadcast.
(4.) In this Act- (a) a reference to a cinematograph film of a television broadcast shall
be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broad- cast; and
(b) a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images.
1968 Copyright No. 63
(5.) In this section, "re-transmission" means any re-transmission, whether over paths provided by a material substance or not, and includes a re-transmission made by making use of any article or thing in which the visual images or sounds constituting the broadcast, or both, as the case may be, have been embodied.
26.-{1.) A reference in this Act to the transmission of a work or other Refere"'~ to subject-matter to subscribers to a diffusion service shall be read as a ~=:~~oto reference to the transmission of the work or other subject-matter in the :e~:on course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service.
(2.) For the purposes of this Act, where a work or other subject- matter is so transmitted-
(a) the person operating the service shall be deemed to be the person causing the work or other subject-matter to be so transmitted; and
(b) no person other than the person operating the service shall be deemed to be causing the work or other subject-matter to be so transmitted, whether or not he provides any facilities for the transmission.
(3.) For the purposes of the application of this section, a service of distributing broadcast or other matter shall be disregarded where the service is only incidental to a business of keeping or letting premises at which persons reside or sleep, and is operated as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests.
(4.) A reference in this section to the person operating a service of distributing broadcast or other matter shall be read as a reference to the person who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether he is the person who transmits the broadcast or other matter or not.
(5.) Where a service of distributing matter over wires or over other paths provided by a material substance is only incidental to, or part of, a service of transmitting telegraphic or telephonic communications, a subscriber to the last-mentioned service shall be taken, for the purposes of this section, to be a subscriber to the first-mentioned service.
27.-(1.) Subject to this section, a reference in this Act to performance Performance. shaH-
(a) be read as including a reference to any mode of visual or aural presentation, whether the presentation is by the operation of wire- less telegraphy apparatus, by the exhibition of a cinematograph film, by the use of a record or by any other means; and
(b) in relation to a lecture, address, speech or sermon-be read as including a reference to delivery,
Performance of works or other subject· matter iD the course of educational instruction.
No. 63 Copyright 1968
and a reference in this Act to performing a work or an adaptation of a work has a corresponding meaning.
(2.) For the purposes of this Act, broadcasting, or the causing of a work or other subject-matter to be transmitted to subscribers to a diffusion service, shall be deemed not to constitute performance or to constitute causing visual images to be seen or sounds to be heard.
(3.) Where visual images or sounds are displayed or emitted by any receiving apparatus to which they are conveyed by the transmission of electromagnetic signals (whether over paths provided by a material sub- stance or not), the operation of any apparatus by which the signals are transmitted, directly or indirectly, to the receiving apparatus shall be deemed not to constitute performance or to constitute causing visual images to be seen or sounds to be heard but, in so far as the display or emission of the images or sounds constitutes a performance, or causes the images to be seen or the sounds to be heard, the performance, or the causing of the images to be seen or sounds to be heard, as the case may be, shall be deemed to be effected by the operation of the receiving apparatus.
(4.) Without prejudice to the last two preceding sub-sections, where a work or an adaptation of a work is performedorvisualimagesarecaused to be seen or sounds to be heard by the operation of any apparatus referred to in the last preceding sub-section or of any apparatus for reproducing sounds by the use of a record, being apparatus provided by or with the consent of the occupier of the premises where the apparatus is situated, the occupier of those premises shall, for the purposes of this Act, be deemed to be the person giving the performance or causing the images to be seen or the sounds to be heard, whether he is the person operating the apparatus or not.
28.-(1.) Where a literary, dramatic or musical work- (a) is performed in class, or otherwise in the presence of an audience;
and (b) is so performed by a teacher in the course of his giving educational
instruction, not being instruction given for profit, or by a student in the course of his receiving such instruction,
the performance shall, for the purposes of this Act, be deemed not to be a performance in public if the audience is limited to persons who are taking part in the instruction or are otherwise directly connected with the place where the instruction is given.
(2.) For the purposes of the last preceding sub-section, educational instruction given by a teacher at a place of education that is not conducted for profit shall not be taken to be given for profit by reason only that the teacher receives remuneration for giving the instruction.
(3.) For the purposes of sub-section (1.) of this section, a person shall not be taken to be directly connected with a place where instruction is given by reason only that he is a parent or guardian of a student who receives instruction at that place.
1968 Copyright No. 63
(4.) The last three preceding sub-sections apply in relation to sound recordings and cinematograph films in like manner as they apply in relation to literary, dramatic and musical works but, in the application of those sub-sections in relation to such recordings or films, any reference to performance shall be read as a reference to the act of causing the sounds concerned to be heard or the visual images concerned to be seen.
29.-(1.) Subject to this section, for the purposes of this Act- (a) a literary, dramatic, musical or artistic work, or an edition of such
a work, shall be deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public;
(b) a cinematograph film shall be deemed to have been published if, but only if, copies of the film have been sold, let on hire, or offered or exposed for sale or hire, to the public; and
(c) a sound recording shall be deemed to have been published if, but only if, records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public.
(2.) In determining, for the purposes of paragraph (a) of the last preceding sub-section, whether reproductions of a work or edition have been supplied to the public, section 14 of this Act does not apply.
(3.) For the purposes of this Act, the performance of a literary, dramatic or musical work, the supplying (whether by sale or otherwise) to the public of records of a literary, dramatic or musical work, the exhibition of an artistic work, the construction of a building or of a model of a building, or the supplying (whether by sale or otherwise) to the public of photographs or engravings of a building, of a model of a building or of a sculpture,. does not constitute publication of the work.
(4.) A publication that is merely colourable and is not intended to satisfy the reasonable requirements of the public shall be disregarded for the purposes of this Act except in so far as it may constitute an infringement of copyright or a breach of a duty under Part IX.
(5.) For the purposes of this Act, a publication in Australia or in any other country shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere, if the two publications took place within a period of not more than thirty days.
(6.) In determining, for the purposes of any provision of this Act- (a) whether a work or other subject-matter has been published; (b) whether a publication of a work or other subject-matter was the
first publication of the work or other subject-matter; or lc) whether a work or other subject-matter was published or other-
wise dealt with in the life-time of a person, any unauthorized publication or the doing of any other unauthorized act shall be disregarded.
Pnblication.
Ownership of copyright for particular purposes.
No. 63 Copyright 1968
(7.) Subject to section 52 of this Act, a publication or other act shall, for the purposes of the last preceding sub-section, be taken to have been unauthorized if, but only if-
(a) copyright subsisted in the work or other subject-matter and the act concerned was done otherwise than by, or with the licence of, the owner of the copyright; or
(b) copyright did not subsist in the work or other subject-matter and the act concerned was done otherwise than by, or with the licence of-
(i) the author or, in the case of a sound recording, cinemato- graph film or edition of a work, the maker or publisher, as the case may be; or
(ii) persons lawfully claiming under the author, maker or publisher.
(8.) Nothing in either of the last two preceding sub-sections affects any provisions of this Act relating to the acts comprised in a copyright or to acts constituting infringements of copyrights or any provisions of Part IX.
30. In the case of a copyright of which (whether as a result of a partial assignment or otherwise) different persons are the owners in respect of its application to-
(a) the doing of different acts or classes of acts; or
(b) the doing of one or more acts or classes of acts m different countries or at different times,
the owner of the copyright, for any purpose of this Act, shall be deemed to be the person who is the owner of the copyright in respect of its application to the doing of the particular act or class of acts, or to the doing of the particular act or class of acts in the particular country or at the particular time, as the case may be, that is relevant to that purpose, and a reference in this Act to the prospective owner of a future copyright of which different persons are the prospective owners has a corresponding meaning.
PART 111.-COPYRIGHT IN ORIGINAL LITERARY, DRAMATIC, MUSICAL
AND ARTISTIC WORKS.
Division I.-Nature, Duration and Ownership of Copyright in Works.
Nature or 31.-(1.) For the purposes of this Act, unless the contrary intention ~~fii~~h~;;'rks. appears, copyright, in relation to a work, is the exclusive right-
(a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:-
(i) to reproduce the work in a material form;
1968 Copyright
(ii) to publish the work; (iii) to perform the work in public; (iv) to broadcast the work;
No. 63
(v) to cause the work to be transmitted to subscribers to a dif- fusion service;
(vi) to make an adaptation of the work; (vii) to do, in relation to a work that is an adaptation of the
first-mentioned work, any of the acts specified in relation to the first-mentioned work in sub-paragraphs (i) to (v), inclusive, of this paragraph; and
(b) in the case of an artistic work, to do all or any of the following acts:-
(i) to reproduce the work in a material form; (ii) to publish the work;
(iii) to include the work in a television broadcast; (iv) to cause a television programme that includes the work: to
be transmitted to subscribers to a diffusion service.
(2.) The generality of sub-paragraph (i) of paragraph (a) of the last preceding sub-section is not affected by sub-paragraph (vi) of that para- graph.
32.-(1.) Subject to this Act, copyright subsists in an original literary, ~riai~at works dramatic, musical or artistic work that is unpublished and of which the :;iri~,
th ~-au or- (a) was a qualified person at the time when the work was made; or (b) if the making of the work extended over a period-was a qualified
person for a substantial part of that period. (2.) Subject to this Act, where an original literary, dramatic, musical
or artistic work has been published- (a) copyright subsists in the work; or (b) if copyright in the work subsisted immediately before its first
publication-copyright continues to subsist in the work:, if, but only if-
(c) the first publication of the work took place in Australia; (d) the author of the work was a qualified person at the time when the
work was first published; or (e) the author died before that time but was a qualified person im-
mediately before his death.
(3.) Notwithstanding the last preceding sub-section but subject to the remaining provisions of this Act, copyright subsists in-
(a) an original artistic work that is a building situated in Australia; or (b) an original artistic work that is attached to, or forms part of, such
a building.
No. 63 Copyright 1968
(4.) In this section, "qualified person" means an Australian citizen, an Australian protected person or a person resident in Australia.
Dw-ation of 33.-(1.) This section has effect subject to sub-section (2.) of the last copyright In oriainal works. preceding section and to the next succeeding section.
Duration of copyright In annnymou s and pseudonymous works.
(2.) Subject to this section, where, by virtue of this Part, copyright subsists in a literary, dramatic or musical work, or in an artistic work other than a photograph, that copyright continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the author of the work died.
(3.) If, before the death of the author of a literary, dramatic or musical work-
(a) the work had not been published; (b) the work had not been performed in public; (c) the work had not been broadcast; and (d) records of the work had not been offered or exposed for sale to
the public, the copyright in the work continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.
(4.) A reference in the last preceding sub-section to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.
(5.) If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the engraving is first published.
(6.) Copyright subsisting in a photograph by virtue of this Part con- tinues to subsist until the expiration of fifty years after the expiration of the calendar year in which the photograph is first published.
34.-(1.) Subject to the next succeeding sub-section, where the first publication of a literary, dramatic or musical work, or of an artistic work other than a photograph, is anonymous or pseudonymous, the last pre- ceding section does not apply in relation to the work but any copyright subsisting in the work by virtue of this Part continues to subsist until the expiration of the period of fifty years after the expiration of the calendar year in which the work was first published.
(2.) The last preceding sub-section does not apply in relation to a work if, at any time before the expiration of the period referred to in that sub- section, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.
1968 Copyright No. 63
35.-(1.) This section has effect subject to Parts VII. and X.
(2.) Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.
(3.) The operation of any of the next three succeeding sub-sections in relation to copyright in a particular work may be excluded or modified by agreement.
(4.) Where a literary, dramatic or artistic work is made by the author in pursuance of the terms of his employment by the proprietor of a news- paper, magazine or similar periodical under a contract of service or apprenticeship and is so made for the purpose of publication in a news- paper, magazine or similar periodical, the proprietor is the owner of any copyright subsisting in the work by virtue of this Part in so far as the copyright relates to-
(a) publication of the work in any newspaper, magazine or similar periodical;
(b) broadcasting the work; or
(c) reproduction of the work for the purpose of its being so published or broadcast,
but not otherwise.
(5.) Subject to the last preceding sub-section, where-
(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph, the painting or drawing of a portrait or the making of an engraving by the other person; and
(b) the work is made in pursuance of the agreement,
the first-mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was requited, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.
(6.) Where a literary, dramatic or artistic work to which neither of the last two preceding sub-sections applies, or a musical work, is made by the author in pursuance of the terms of his employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.
Ownership of copyright in ortainal worla.
Infringement by doing acts comprised in the copyriJiht.
No. 63 Copyright 1968
Division 2.-Infringement of Copyright in Works. 36.-(1.) Subject to this Act, the copyright in a literary, dramatic,
musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act com- prised in the copyright.
(2.) The next three succeeding sections do not affect the generality of the last preceding sub-section.
Infringement 37. The copyright in a literary, dramatic, musical or artistic work is f~r~fe"~~~~- infringed by a person who, without the licence of the owner of the copy-
right, imports an article into Australia for the purpose of-
(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;
(b) distributing the article- (i) for the purpose of trade; or
(ii) for any other purpose to an extent that will affect pre- judicially the owner of the copyright; or
(c) by way of trade exhibiting the article in public, where, to his knowledge, the making of the article would, if the article had been made in Australia by the importer, have constituted an infringe- ment of the copyright.
Infringement by 38.-(1.) The copyright in a literary, dramatic, musical or artistic work =n=.other is infringed by a person who, in Australia, and without the licence of the
owner of the copyright-
Infringement by permittina place of pubtic entertainment to be used for performance of work.
(a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or
(b) by way of trade exhibits an article in public, where, to his knowledge, the making of the article constituted an infringe- ment of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement.
(2.) For the purposes of the last preceding sub-section, the distribution of any articles-
(a) for the purpose of trade; or (b) for any other purpose to an extent that affects prejudicially the
owner of the copyright concerned, shall be taken to be the sale of those articles.
39.-{1.) The co-pyright in a literary, dramatic or musical work is infringed by a person who permits a place of public entertainment to be used for the performance in public of the work, where the performance constitutes an infringement of the copyright in the work.
1968 Copyright No. 63
(2.) This section does not apply where the person permitting the place to be so used establishes-
(a) that he was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright; or
(b) that he gave the permission gratuitously, or for a consideration that was only nominal or, if more than nominal, did not exceed a reasonable estimate of the expenses to be incurred by him by reason of the use of the place for the performance.
(3.) In this section, " place of public entertainment" includes any premises that are occupied principally for purposes other than public .entertainment but are from time to time made available for hire for purposes of public entertainment.
Division 3.-Acts not Constituting Infringements of Copyright in Works.
40. A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation of a literary, dramatic or musical work, for the purpose of research or private study does not constitute an infringement -of the copyright in the work.
41. A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation of a literary, dramatic or musical work, does not -constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, :and a sufficient acknowledgement ofthe work is made.
42.-(1.) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if-
(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or
(b) it is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film.
(2.) The playing of a musical work in the course of reporting news by means of broadcasting or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work -does not form part of the news being reported.
(3.) This section applies where a literary, dramatic, musical or artistic work, or an adaptation of a literary, dramatic or musical work, is caused to be transmitted to subscribers to a diffusion service in like manner as it -applies where such a work or adaptation is broadcast.
Fair dealing ror purpose of research or private study.
Fair dealing for purpose of criticism or review.
Fair dealing for purpose of reporting news.
Reproduction ror purposes of judicial proc:eedillll.
Inclusion of works in collec:tionsfor use by places of education.
ReadiDII or recitation In public or for a broadcast.
Performance at premises where persons reside or aJeep.
No. 63 Copyright 1968::
43. The copyright in a literary, dramatic, musical or artistic work is. not infringed by anything done for the purposes of a judicial proceeding: or of a report of a judicial proceeding.
44.-(1.) The copyright in a published literary, dramatic, musical or- artistic work is not infringed by the inclusion of a short extract from the· work, or, in the case of a published literary, dramatic or musical work,. from an adaptation of the work, in a collection of literary, dramatic,. musical or artistic works contained in a book, sound recording or cinema- tograph film and intended for use by places of education if-
(a) the collection is described in an appropriate place in the book,. on the label of each record embodying the recording or of its. container, or in the film, as being intended for use by places ol education;
(b) the work or adaptation was not published for the purpose of being used by places of education;
(c) the collection consists principally of matter in which copyright does not subsist; and
(d) a sufficient acknowledgement of the work or adaptation is made.
(2.) The last preceding sub-section does not apply in relation to the- copyright in a work if, in addition to the extract concerned, two or more other extracts from, or from adaptations of, works (being works in which copyright subsists at the time when the collection is published) by the author of the first-mentioned work are contained in that collection, or are contained in that collection taken together with every similar collection, if any, of works intended for use by places of education and published' by the same publisher within the period of five years immediately preceding the publication of the first-mentioned collection.
Division 4.-Acts not Constituting Infringements of Copyright in Literary, Dramatic and Musical Works.
45. The reading or recitation in public, or the inclusion in a sound: broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work, or from an adaptation of such a work, does not constitute an infringement of the- copyright in the work if a sufficient acknowledgement of the work is made.
46. Where a literary, dramatic or musical work, or an adaptation of such a work, is performed in public, by the operation of wireless t-elegraphy apparatus or by the use of a record, at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests, the performance does not constitute an infringement of the copyright in the- work.
1968 Copyright No. 63
47.-(1.) Where the broadcasting by a person of a literary, dramatic -or musical work, or of an adaptation of such a work, would not (whether by reason of an assignment or licence or of the operation of a provision
•Of this Act) constitute an infringement of the copyright in the work, but rthe making by the person of a sound recording or a cinematograph film ·Of the work or adaptation would, apart from this sub-section, constitute _such an infringement, the copyright in the work is not infringed by his making such a recording or film solely for the purpose of the broadcasting -of the work or adaptation.
(2.) The last preceding sub-section does not apply in relation to a .recording or film if a record embodying the recording or a copy of the .film is used for a purpose other than-
(a) the broadcasting of the work or adaptation in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or
(b) the making of further records embodying the recording or further copies of the film for the purpose of the broadcasting of the work or adaptation in such circumstances.
(3.) Sub-section (1.) of this section does not apply in relation to a -recording or film where a record embodying the recording or a copy of the film is used for the purpose of the broadcasting of the work or adaptation by a person who is not the maker of the recording or film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, bas given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remunera- tion to the owner for the making of the recording or film.
(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has .determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may -recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.
(5.) Sub-section (1.) of this section does not apply in relation to a recording or film unless, before the expiration of the period of twelve months commencing on the day on which any of the records embodying the recording or any of the copies of the film is first used for broadcasting .the work or adaptation in accordance with that sub-section, or before the expiration ·Of such further period, if any, as is agreed between the maker of the recording or film and the owner of the copyright in the work, all the records embodying the recording or all the copies of the film are destroyed or are delivered, with the consent of the National Librarian, to the National Library.
Reproduction for purpose of broadcasting.
Interpretation.
Copying by libraries for students and membel'll of Parliament.
No. 63 Copyright
Division 5.-Copying of Works in Libraries.
48. In this Division-
1968:
(a) a reference to an article contained in a periodical publication is a reference to anything (other than an artistic work) appearing in such a publication; and
(b) a reference to a librarian of a library includes a reference to a person in charge of a library.
49.-(1.) Subject to this section, the copyright in an article contained in a periodical publication is not infringed by the making of a copy of the- article or of part of the article by or on behalf of the librarian of a library that is not established or conducted for profit.
(2.) Subject to this section, the copyright in a published literary. dramatic or musical work other than an article contained in a periodical publication is not infringed by the making of a copy of part of the work by or on behalf of the librarian of a library that is not established or conducted for profit.
(3.) The last two preceding sub-sections do not apply in relation to a copy of an article, or of part of an article, contained in a periodical< publication or a copy of part of any other published literary, dramatic or musical work, as the case may be, unless-
(a) the copy is supplied only to a person who satisfies the librarian,. or a person acting on behalf of the librarian, that he requires the- copy for the purpose of research or private study and that he will not use it for any other purpose or, if the person is a member of a Parliament and the librarian is the librarian of a library the principal purpose of which is to provide library services for members of that Parliament, that he requires the copy for the- purpose of the performance of his duties as such a member and that he will not use it for any other purpose;
(b) the person to whom the copy is supplied has not previously been supplied by the librarian, or by a person acting on behalf of the- librarian, with a copy of the same article or part of an article- or of the same part of a work; and
(c) where the copy is supplied to a person other than a member of a Parliament-the person is required to pay for the copy an amount not less than the cost of making the copy.
(4.) Sub-section (1.) of this section does not apply in relation to a copy of, or of parts of, two or more articles contained in the same periodical publication unless the articles relate to the same subject-matter.
(5.) Sub-section (2.) of this section does not apply in relation to a copy of part of a published literary, dramatic or musical work unless the copy contains only a reasonable portion of the work.
il968 Copyright No. 63
(6.) The regulations may exclude the application of sub-section (1.) or 5ub-section (2.) of this section in such cases as are specified in the regula- tions.
50.-(1.) Subject to this section, the copyright in an article contained in a periodical publication or in any other published literary, dramatic or musical work is not infringed by the making of a copy of the article or other work, or of part of the article or other work, by or on behalf of the librarian of a library.
(2.) The last preceding sub-section does not apply in relation to a copy of an article or other work or of part of an article or other work unless-
(a) the copy is supplied only to the librarian of another library; and (b) where the work is not an article contained in a periodical publica-
tion and the copy is a copy of the whole of the work or of a part of the work that is more than a reasonable portion of the work- at the time when the copy is made, the librarian by whom or on whose behalf it is made does not know the name and address of any person entitled to authorize the making of the copy and could not by reasonable inquiry ascertain the name and address of such a person.
(3.) The regulations may exclude the application of sub-section (1.) of this section-
(a) where the copy is supplied by the librarian of the other library to a person otherwise than in accordance with the regulations; and
(b) in such other cases as are specified in the regulations.
Copying by h"biaries for other libraries.
51.-(1.) Wher~, at~ time more than fifty_ years after the _expiratio~ of ~g~~h[d the calendar year m whtch the author of a literary, dramatic or mustcal :_~:~in work, or of an artistic work being a photograph or engraving, died, and nes. more than seventy-five years after the time at which, or the expiration of the period during which, the work was made, copyright subsists in the work but-
(a) the work has not been published; and (b) a copy of the work, or, in the case of a literary, dramatic or
musical work, the manuscript of the work, is kept in a library or other place where it is, subject to any regulations governing that library or other place, open to public inspection,
the copyright in the work is not infringed- (c) by the making of a copy of the work by a person for the purpose
of research or private study or with a view to publication; or (d) by the making of a copy of the work by, or on behalf of, the person
in charge of that library or other place if the copy is supplied to a person who satisfies the person in charge that he requires the copy for the purpose of research or private study or with a view to publication and that he will not use it for any other purpose.
Pllbllcatlon or unpublished works kept ia Ubraries.
No. 63 Copyright 196S:
(2.) Where a manuscript, or a copy, of a thesis or other similar literary work that has not been published is kept in a library of a university or- other similar institution, the copyright in the thesis or other work is not infringed by the making of a copy of the thesis or other work by or on behalf of the librarian of the library if the copy is supplied to a person who satisfies the librarian, or a person acting on behalf of the librarian, that he· requires the copy for the purpose of research or private study and that he· will not use it for any other purpose.
52.-(1.) Where-
(a) a published literary, dramatic or musical work (in this section, referred to as " the new work ") incorporates the whole or a part of a work (in this section referred to as " the old work ") to· which' sub-section (1.) of the last preceding section applied immediately.· before the new work was published;
(b) before the new work was published, the prescribed notice of the· intended publication of the work had been given; and
(c) immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work,
then, for the purposes of this Act, the first publication of the new work, and any subsequent publication of the new work whether in the same or in an altered form, shall, in so far as it constitutes a publication of the old work, be deemed not to be an infringement of the copyright in the old w.or.k. or an unauthorized publication of the old work.
(2.) The last preceding sub-section 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 p-ublication of the new work unless-
(a) sub-section (1.) of the last preceding section would, but for thiS' section, have applied to that part of the old work immediately before that subsequent publication;
(b) before that subsequent publication, the prescribed notice of the- intended publication had been given; and
(c) immediately before that subsequent publication, the identity of the owner of the copyright in the old work was not known to the- publisher of that subsequent publication.
(3.) Where a work, or a part of a work, has been published and, by virtue of this section, the publication is to be deemed not to be an infringement of the copyright in the work, the copyright in the work is not infringed by a person who, after that publication took place, broadcasts, causes to be transmitted to subscribers to a diffusion service, performs in public, or makes a record of, the work or that part of the work, as the case may be.
(}968 Copyright No. 63
53. Where an article, thesis or other literary, dramatic or musical work ApJ:!Ucatioa or .is accompanied by artistic works provided for the purpose of explaining or ~=~ illustrating the article, thesis or other work (in this section referred to as ~=r'8
... the illustrations "), the preceding sections of this Division apply as if- other worb.
(a) where any of those sections provides that the copyright in the article, thesis or work is not infringed-the reference to that copyright included a reference to any copyright in the illustrations;
(b) a reference in section 49, section 50 or section 51 to a copy of the article, thesis or work included a reference to a copy of the article, thesis or work together with a copy of the illustrations;
(c) a reference in section 49 or section 50 to a copy of a part of the article or work included a reference to a copy of that part of the article or work together with a copy of the illustrations that were provided for the purpose of explaining or illustrating that part; and
•(d) a reference in section 52 to the doing of any act in relation to the work included a reference to the doing of that act in relation to the work together with the illustrations.
Division 6.-Recording of Musical Works.
:54.-(1.) For the purposes of this Division- (a) a reference to a musical work shall be read as a reference to the
work in its original form or to an adaptation of the work; {b) a reference to the owner of the copyright in a literary, dramatic
or musical work shall, unless the contrary intention appears, be read as a reference to the person who is entitled to authorize the making in, and the importation into, Australia of records of the work; and
(c) a reference to sale of a record by retail or to retail sale of a record shall be read as not including a reference to-
(i) sale for a consideration not consisting wholly of money; or (ii) sale by a person not ordinarily carrying on the business of
making or selling records.
(2.) For the purposes of this Division, where a musical work is com- prised partly in one record and partly in another record or other records, all the records shall be treated as if they constituted a single record.
(3.) A reference in this Division to a record of a musical work does not include a reference to a sound-track associated with visual images forming part of a cinematograph film.
Interpretation.
55.-(1.) Subject to this Division, the copyright in a musical work is Coaditioos upoowhich
not infringed by a person (in this section referred to as " the manu- manufacturer may make
facturer ") who makes, in Australia, a record of the work if- records or moaical work.
No. 63 Copyright 1968:
(a) a record of the work- (i) has previously been made in, or imported into, Australia·
for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the work;
(ii) has previously been made in Australia for use in making. other records for the purpose of retail sale and was so- made by, or with the licence of, the owner of the copy- right in the work;
(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a· country that, at the time of the previous making or im-· portation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work; or
(iv) has previously been made in a country other than Australia; for use in making other records for the purpose of retail sale, being a country that, at the time of the previous. making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by,. or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work;
(b) before the making of the record, the prescribed notice of the intended making of the record was given to the owner of the copyright;
(c) the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by a person other than the manufacturer, or intends to use it for making other records that are to be so sold or supplied; and
(d) where the record is so sold or supplied by the manufacturer- (i) the sale or supply is made with the licence of the owner of
the copyright; and (ii) there is paid to the owner of the copyright, as prescribed
by the regulations, a royalty ascertained in accordance with the succeeding sections of this Division.
(2.) The last preceding sub-section does not apply in relation to a record of an adaptation of a musical work if the adaptation debases. the work.
(3.) Sub-paragraph (i) of paragraph (d) of sub-section (1.) of this section does not apply in relation to a record of a work (other than a work that was made for the purpose of being performed, or has been per- formed, in association with a dramatic work or has been included in a
1968 Copyright No. 63
cinematograph film) if the sale or supply is made after the expiration of the prescribed period after the earliest of the following dates:-
(a) the date of the first making in, or the date of the first importation into, Australia of a previous record of the work in circumstances referred to in sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of sub-section (1.) of this section;
(b) the date of the first supplying (whether by sale or otherwise) to the public in a country referred to in sub-paragraph (iii) or sub- paragraph (iv) of paragraph (a) of sub-section (1.) of this section of a previous record of the work made in, or imported into, that country in circumstances referred to in that sub-paragraph.
(4.) Regulations prescribing a period for the purposes of the last preceding sub-section may prescribe different periods in relation to dif· ferent classes of records.
(5.) Without limiting the generality of paragraph (d) of sub-section (1.) of this section, regulations made for the purposes of that paragraph may provide-
(a) that payment of the royalties in respect of records, or of an amount, ascertained in accordance with the regulations, in respect of the royalties in respect of records, is, or is in such classes of cases as are specified in the regulations, to be made before the records are sold or supplied by the manufacturer; and
(b) that the doing of such acts as are specified in the regulations, being such acts as the Governor-General considers convenient for ensuring the receipt by the owner of the copyright of the royalties in respect of records or, if the owner of the copyright cannot be found by reasonable inquiry, as the Governor-General considers reasonable in the circumstances, is to be deemed to constitute payment of the royalties.
56.-(1.) Subject to this Division, the royalty payable in respect of a record is five per centum of the retail selling price of the record.
(2.) For the purposes of the last preceding sub-section- (a) if the selling price to the public of the record is marked by the
maker of the record on the label of the record-the retail selling price of the record shall be taken to be that price;
(b) if the selling price to the public of the record is not so marked but is specified in the appropriate price list issued by the maker of the record-the retail selling price of the record shall be taken to be the price so specified; or
(c) if the selling price to the public of the record is not so marked or specified but other records embodying the same sound recording as, and bearing an identical label to, the record have been sold to the public-the retail selling price of the record shall be taken to be the highest price at which those other records are ordinarily sold to the public in the capital city of a State.
Amountef royalty.
Provisions relating to royalty where two or more works are on tbo one record.
Revision of ro)'l!IIY and muumum royalty.
No. 63 Copyright 1968
(3.) A reference in the last preceding sub-section to the label of a record shall be read as including a reference to the label on the container of the record.
(4.) If the royalty payable in respect of a record under this section includes a fraction of a cent that is less than or more than one-half of a cent-
(a) where that fraction is less than one-half of a cent-that fraction shall be treated as one-half of a cent; and
(b) where that fraction is more than one-half of a cent-that fraction shall be treated as a whole cent.
(5.) If, apart from this sub-section, the royalty payable in respect of a record under this section would be less than One cent, that royalty is One cent.
57. Where a record comprises two or more ·musical works, whether or not there is any other matter comprised in the record-
(a) if the record includes a work in which copyright does not subsist or works in which copyrights do not subsist-the royalty payable in respect of the record is, subject to the next succeeding paragraph, the amount that bears to the amount that, but for this section, would be the amount of the royalty the same proportion as the number of works in the record in which copyrights subsist bears to the total number of works in the record; and
(b) if the record includes two or more works in which copyrights subsist-
(i) subject to this Division, the royalty payable in respect of the record shall not be less than One cent in respect of each work in the record in which copyright subsists; and
(ii) if the owners of the copyrights in the works in the record in which copyrights subsist are different persons-there shall be paid to the owner of the copyright in each work, in respect of that work, an amount ascertained by dividing the amount of the royalty payable in respect of the record by the number of works in the record in which copyrights subsist.
58.-(1.) If at any time after the expiration of one year after the commencement of this Act it appears to the Attorney-General that the royalty, or the minimum royalty, payable in respect of records generally or in respect of records included in a particular class of records is not equitable, he may request the Copyright Tribunal to hold an inquiry into the matter and report the result of its inquiry to the Attorney-General.
(2.) At any time after the Tribunal has made a report in relation to the royalty, or the minimum royalty, payable in respect of records generally or in respect of records included in a particular class of records,
1968 Copyright No. 63
the regulations may provide that the relevant provision of this Act, in its application in respect of records generally or in respect of records included in that class of records, as the case may be, shall have effect as if it were subject to such variations as are provided by the regulations, being such variations as the Governor-General thinks equitable.
(3.) Before making regulations for the purposes of the last preceding sub-section, the Governor-General shall take into account the report of the Tribunal.
(4.) Where the Tribunal has made a report in relation to the royalty, or the minimum royalty, payable in respect of records included in a particular class of records (whether the report related only to records included in that class or also related to other records), the Attorney- General shall not, before the expiration of five years after the report was made, request the Tribunal to hold an inquiry under this section in relation to the royalty, or the minimum royalty, as the case may be, payable in respect of records included in that class.
(5.) In this section, "the relevant provision of this Act" means- (a) in relation to the royalty payable in respect of any records-sub-
section (1.) of section 56 of this Act or, if that sub-section is affected by regulations made for the purposes of this section, that sub-section as so affected; and
(b) in relation to the minimum royalty payable in respect of any records-sub-section (5.) of section 56, and sub-paragraph (i) of paragraph (b) of section 57, of this Act or, if those provisions are affected by regulations made for the purposes of this section, those provisions as so affected.
59.-(1.) Where- Conditions upon which
(a) a person makes in Australia a record comprising the performance manufacturer may include
of a musical work in which words are sung, or are spoken inci- ~art ora d 11 . . . "hth . h h h literaryorenta y to or m associatiOn Wit e mustc, w et er or not t ere dramatic work · h · d · h d inarecordofIS any Ot er matter COmpnse Ill t e recor ; a musical work
(b) copyright does not subsist in that work or, if copyright so subsists, the requirements specified in sub-section (1.) of section 55 of this Act are complied with in relation to that copyright;
(c) the words consist or form part of a literary or dramatic work in which copyright subsists; ·
(d) a record of the musical work in which those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music-
(i) has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or im- ported by, or with the licence of, the owner of the copy- right in the literary or dramatic work;
(ii) has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the literary or dramatic work;
No. 63 Copyright 1968
(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; or
(iv) has previously been made in a country other than Aus- tralia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; and
(e) the like notice was given to the owner of the copyright in the literary or dramatic work as is required by paragraph (b) of sub- section (1.) of section 55 of this Act to be given to the owner of the copyright (if any) in the musical work and there is paid to the owner of the copyright in the literary or dramatic work such amount (if any) as is ascertained in accordance with this section,
the making of the record does not constitute an infringement of the copy- right in the literary or dramatic work.
(2.) Where copyright does not subsist in the musical work, the amount to be paid in respect of the literary or dramatic work is an amount equal to the royalty that, but for this section, would have been payable in respect of the musical work if copyright had subsisted in the musical work.
(3.) Where copyright subsists in the musical work as well as in the literary or dramatic work-
(a) if the copyrights in those works are owned by the same person- an amount is not payable in respect of the literary or dramatic work; or
(b) if the copyrights in those works are owned by different persons- the royalty that, but for this section, would have been payable in respect of the musical work shall be apportioned between them in such manner as they agree, or, in default of agreement, as is determined by the Copyright Tribunal on the application of either of them.
(4.) Where the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work do not agree on the manner in which an amount is to be apportioned between them but the
1968 Copyright No. 63
person who made the record gives an undertaking in writing to each owner to pay to him the portion of that amount that the Tribunal deter- mines to be payable to him, then-
(a) paragraph (d) of sub-section (1.) of section 55 of this Act and paragraph (e) of sub-section (I.) of this section have effect as if the payments referred to in those paragraphs had been made; and
(b) the person who made the record is liable, when the amount to which an undertaking relates is determined, to pay that amount to the owner of the copyright to whom the undertaking was given and the owner may recover that amount in a court of competent jurisdiction from that person as a debt due to the owner.
(5.) Regulations made for the purposes of paragraph (d) of sub-section (1.) of section 55 of this Act in relation to payments to the owner of the copyright in a musical work have the like effect, with any necessary modifications, for the purposes of paragraph (e) of sub-section (I.) of this section in relation to payments to the owner of the copyright in a literary or dramatic work.
60. Where a person makes, in Australia, a number of records em- bodying the same sound recording, being a recording of a musical work or of a musical work and of words consisting or forming part of a literary or dramatic work, with the intention of-
(a) selling by retail, or supplying for sale by retail by another person, a substantial proportion of the records (in this section referred to as " the records made for retail sale ''); and
(b) disposing gratuitously of the remainder of the records or supplying the remainder of the records for gratuitous disposal by another person,
this Division applies in relation to the records other than the records made for retail sale as if-
(c) those records had been made with the intention of selling them by retail or of supplying them for sale by retail by another person;
(d) the gratuitous disposal of those records by the maker of the records, or the supplying of those records by the maker of the records for gratuitous disposal by another person, were a sale of the records by retail; and
(e) the retail selling price of those records were the same as the retail selling price of the records made for retail sale.
Records made partly for retail sale and partly for gratuitous disposal.
61. Where- Making . . . . inQuiries in
(a) a person makes mqumes, as prescnbed, for the purpose of relat!on to . . prevtous
ascertammg whether a record of a musical work, or a record of records. a musical work in which words consisting or forming part of a literary or dramatic work were sung or spoken, has previously been made in, or imported into, Australia by, or with the licence of, the owner of the copyright in the musical work or in the literary or dramatic work, as the case may be, for the purpose of retail sale or for use in making other records for the purpose of retail sale; and
Application of Division in relation to record of part of a work.
Application of D1vision in relation to musical works published before 1 July 1912.
Sections SS and S9 to be disregarded in determining whether an infringement bas been committed by the importation of records.
No. 63 Copyright 1968
(b) an answer to those inquiries is not received within the prescribed period,
a record of that musical work, or a record of that work in which those words were sung or spoken, as the case may be, shall, for the purposes of the application of this Division-
(c) in relation to the person who made the inquiries; or (d) in relation to a person who makes records of the musical work,
or records of that work in which those words or substantially the same words are sung or spoken, for the purpose of supplying those records to the person who made the inquiries in pursuance of an agreement entered into between those persons for the making of the records,
be taken to have been previously made in, or imported into, Australia with the licence of the owner of that copyright for the purpose of retail sale or for use in making other records for the purpose of retail sale, as the case may be.
62.-(1.) Subject to the next succeeding sub-section, the preceding sections of this Division apply in relation to a record of a part of a musical work in like manner as they apply in relation to a recor~ of the whole of the work.
(2.) Sub-section (1.) of section 55 of this Act- (a) does not apply in relation to a record of the whole of a work
unless the previous record referred to in paragraph (a) of that sub-section was a record of the whole of the work; and
(b) does not apply in relation to a record of a part of a work unless that previous record was a record of, or comprising, that part of the work.
63.-(1.) Subject to this section, the preceding sections of this Division apply in relation to musical works published before the first day of July, One thousand nine hundred and twelve, as if paragraph (a) and sub- paragraph (i) of paragraph (d) of sub-section (1.), and sub-sections (3.) and (4.), of section 55, paragraph (d) of sub-section (1.) of section 59, section 61 and sub-section (2.) of section 62 of this Act were omitted.
(2.) This section does not extend the operation of section 59 of this Act to a record in respect of which a requirement specified in paragraph (d) of sub-section (1.) of that section has not been complied with unless the words comprised in the record, as well as the musical work, were published before the first day of July, One thousand nine hundred and twelve, and were so published as words to be sung to, or spoken incidentally to or in association with, the music.
(3.) This section ceases to have effect at the expiration of two years after the commencement of this Act.
64. For the purpose of any provision of this Act relating to imported articles, in determining whether the making of a record made outside Australia would have constituted an infringement of copyright if the record had been made in Australia by the importer, sections 55 and 59 of thii Act shall be disregarded.
1968 Copyright No. 63
Division 7.-A.cts not Constituting Infringements of Copyright in Artistic Works.
65.-(1.) This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of " artistic work " in section I0 of this Act.
(2.) The copyright in a work to which this section applies that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast.
Sculptures and certain other works in public places.
66. The copyright in a building or a model of a building is not in- Buildings and fringed by the making of a painting, drawing, engraving or photograph of l:'u':fdi~~~ the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.
67. Without prejudice to the last two preceding sections, the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion in the film or broadcast is only incidental to the principal matters represented in the film or broadcast.
68. The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph or cinematograph film if, by virtue of section 65, section 66 or section 67 of this Act, the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.
69. Sections 65, 66 and 67 of this Act apply in relation to a television programme that is caused to be transmitted to subscribers to a diffusion service in like manner as they apply in relation to a television broadcast.
70.-(1.) Where the inclusion of an artistic work in a television broad- cast made by a person would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an in- fringement of copyright in the work but the making by the person of a cinematograph film of the work would, apart from this sub-section, constitute such an infringement, the copyright in the work is not infringed by his making such a film solely for the purpose of the inclusion of the work in a television broadcast.
(2.) The last preceding sub-section does not apply in relation to a film if a copy of the film is used for a purpose other than-
(a) the inclusion of the work in a television broadcast in circum- stances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an in- fringement of the copyright in the work; or
(b) the making of further copies of the film for the purpose of the in- clusion of the work in such a broadcast.
Incidental filming or televising of artistic works.
Publication of artistic works.
Artistic works transmitted to subscribers to a diffusion aervice.
Reproduction for purpose of including work in television broadcast.
Reproduction or work io different dimension•~
Reproduction or pan or work in later work.
Reconstruction or buildings.
No. 63 Copyright 1968
(3.) Sub-section {1.) of this section does not apply in relation to a film where a copy of the film is used for the purpose of the inclusion of the work in a television broadcast made by a person who is not the maker of the film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the film.
(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has deter- mined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.
(5.) Sub-section (1.) of this section does not apply in relation to a film unless, before the expiration of the period of twelve months commencing on the day on which any of the copies of the film is first used for including the work in a television broadcast in accordance with that sub-section, or before the expiration of such further period, if any, as is agreed between the maker of the film and the owner of the copyright in the work, all the copies of the film are destroyed or are delivered, with the consent of the National Librarian, to the National Library.
71. For the purposes of this Act- (a) the making of an object of any kind that is in three dimensions
does not infringe the copyright in an artistic work that is in two dimensions; and
(b) the making of an object of any kind that is in two dimensions does not infringe the copyright in an artistic work that is in three dimensions,
if the object would not appear to persons who are not experts in relation to objects of that kind to be a reproduction of the artistic work.
72.-(1.) The copyright in an artistic work is not infringed by the making of a later artistic work by the same author if, in making the later work, the author does not repeat or imitate the main design of the earlier work.
(2.) The last preceding sub-section has effect notwithstanding that part of the earlier work is reproduced in the later work and that, in reproducing the later work, the author used a mould, cast, sketch, plan, model or study made for the purposes of the earlier work.
73.-(1.) Where copyright subsists in a building, the copyright is not infringed by a reconstruction of that building.
(2.) Where a building has been constructed in accordance with archi- tectural drawings or plans in which copyright subsists and has been so
1968 Copyright No. 63
constructed by, or with the licence of, the owner of that copyright, that copyright is not infringed by a later reconstruction of the building by reference to those drawings or plans.
Division B.-Industrial Designs.
74.-(1.) In this Division, "corresponding design", in relation to an Interpretation. artistic work, means a design that, when applied to an article, results in a reproduction of that work.
(2.) In this Division-
(a) a reference to the scope of the copyright in a registered design is a reference to the aggregate of the things that, by virtue of the Designs Act 1906-1968, the person registered as the owner of the design has the exclusive right to do;
(b) a reference to the scope of the copyright in a registered design as extended to all associated designs and articles is a reference to the aggregate of the things that, by virtue of that Act, the person registered as the owner of the design would have had the exclusive right to do if-
(i) when that design was registered, there had at the same time been registered every other possible design consisting of that design with modifications or variations not sufficient to alter the nature, or substantially to affect the identity, of that design and the person registered as the owner of that design had been registered as the owner of every such other possible design; and
(ii) that design, and every such other possible design, had each been registered in respect of all the articles to which it was capable of being applied; and
(c) a reference to the doing of an act in Australia does not include a reference to the doing of the act in a Territory of the Common- wealth to which the Designs Act 1906-1968 does not apply or has not been extended.
75. Subject to the next succeeding section, where copyright subsists in ~:'rJ~ an artistic work and a corresponding design is registered under the Designs ~o~~~ Act 1906-1968, it is not an infringement of the copyright in the work- are :thinr' thoscope o
(a) to do anything, while the copyright in the registered design sub- ~:r;~ed sists under the Designs Act 1906-1968, that is within the scope of the copyright in the design; or
(b) to do anything, after the copyright in the registered design has expired, that, if it had been done while the copyright in the design subsisted, would have been within the scope of that copyright as extended to all associated designs and articles.
76.-(1.) This section has effect where- ~~tratioa (a) copyright subsists in an artistic work and proceedings are brought ~!s~:;:tnai
under this Act in relation to that work;
Application of arlfatlc works u Industrial cleliam without realatratioo of the deaiJDS.
No....63 Copyright 1968
(b) a corresponding design has been registered under the Designs Act 1906-1968 and the copyright in the design that subsisted by virtue of that registration had not expired by effiuxion of time before the commencement of those proceedings; and
(c) it is established in those proceedings that the person registered as the owner of the design was not the owner of the design for the purposes of the Designs Act 1906-1968 and was so registered without the knowledge of the owner of the copyright in the artistic work.
(2.) Subject to the next succeeding sub-section, for the purposes of the proceedings referred to in the last preceding sub-section-
(a) the design shall be deemed never to have been registered under the Designs Act 1906-1968;
(b) the last preceding section does not apply in relation to anything done in respect of the design; and
(c) nothing in the Designs Act 1906-1968 constitutes a defence.
(3.) Notwithstanding anything in the last preceding sub-section, if in the proceedings it is established that an act to which the proceedings relate-
(a) was done by an assignee of, or under a licence granted by, the person registered as the owner of the design; and
(b) was so done in good faith in reliance upon the registration and without notice of any proceedings for the cancellation of the registration or for rectifying the entry in the Register of Designs in relation to the design,
.the last preceding section applies in relation to that act for the purposes of the first-mentioned proceedings.
77.-(1.) Where- (a) copyright subsists in an artistic work; (b) a corresponding design is applied industrially by, or with the
licence of, the owner of the copyright in the work; (c) articles to which the corresponding design has been so applied (in
this section referred to as " articles made to the corresponding design ") are sold, let for hire or offered or exposed for sale or hire in Australia; and
(d) at the time when those articles are so sold, let for hire or offered or exposed for sale or hire, they are not articles in respect of which the corresponding design has been registered under the Designs Act 1906-1968,
the succeeding sub-sections of this section have effect.
(2.) During the period of fifteen years commencing on the date on which articles made to the corresponding design were first sold, let for hire or offered or exposed for sale or hire in the circumstances referred to in paragraph (d) of the last preceding sub-section, it is not an infringement of
1968 Copyright No. 63
the copyright in the work to do anything that, at the time when it is done, would have been within the scope of the copyright in the corresponding design if the corresponding design had, immediately before that time, been registered in respect of all articles made to the corresponding design that had, before that time, been sold, let for hire or offered or exposed for sale or hire in those circumstances.
(3.) After the expiration of the period referred to in the last preceding sub-section, it is not an infringement of the copyright in the work to do anything that, at the time when it is done, would, if the corresponding design had been registered immediately before that time, have been within the scope of the copyright in that design as extended to all associated designs and articles.
(4.) For the purposes of this section, account shall not be taken of any articles in respect of which, at the time when they were sold, let for hire or offered or exposed for sale or hire, the corresponding design concerned was excluded from registration under the Designs Act 1906-1968 by regulations made under that Act for the purpose of excluding from registration designs for articles that are primarily literary or artistic in character and, for the purposes of any proceedings under this Act, a design shall be conclusively presumed to have been so excluded if-
(a) before the commencement of those proceedings, an application for the registration of the design under that Act in respect of those articles had been refused;
(b) the reason or one of the reasons given for the refusal was that the design was excluded from registration under that Actby regulations made under that Act for the purpose of excluding from registration designs for articles that are primarily literary or artistic in char- acter; and
(c) no appeal against the refusal had been allowed before the date of commencement of the proceedings or was pending on that date.
(5.) The regulations may make provision for determining the circumstances in which a design is, for the purposes of this section, to be deemed to be applied industrially.
Division 9.-Works of Joint Authorship. 78. Subject to this Division, a reference in this Act to the author of a
work shall, unless otherwise expressly provided by this Act, be read, in relation to a work of joint authorship, as a reference to all the authors of the work.
79. The references in section 32, and in sub-section (2.) of section 34, of this Act to the author of a work shall, in relation to a work of joint authorship, be read as references to any one or more of the authors of the work.
RefereocM toB aU of joint authon.
Refereacea te &DY ODe or more o(joint authon.
References to whichever of joint authors died last.
Works of joint authorship published under pseudonyms.
Copyright to subsist in joint works without regard to any author who JS an unqualified person.
Inclusion of joint works in c:oUectione for use in places of education.
No. 63 Copyright 1968
80. The references in sections 33 and 51 of this Act to the author of a work shall, in relation to a work of joint authorship other than a work to which the next succeeding section applies, be read as references to the author who died last.
81.-(1.) This section applies to a work of joint authorship thaL was first published under two or more names of which one was a pseudonym or two or more (but not all) were pseudonyms.
(2.) This section also applies to a work of joint authorship that was first published under two or more names all of which were pseudonyms if, at any time within fifty years after the expiration of the calendar year in which the work was first published, the identity of one or more (but not all) of the authors was generally known or could be ascertained by reasonable inquiry.
(3.) The references in sections 33 and 51 ofthis Act to the author of a work shall, in relation to a work to which this section applies, be read as references to the author whose identity was disclosed or, if the identity of two or more of the authors was disclosed, as references to whichever of those authors died last.
(4.) For the purposes of this section, the identity of an author shall be deemed to have been disclosed if-
(a) one of the names under which the work was published was the name of that author; or
(b) the identity of that author is generally known or can be ascertained by reasonable inquiry.
82.-(1.) Sub-section (2.) of section 35 of this Act has effect, in relation to a work ofjoint authorship of which one of the authors is an unqualified person, or two or more (but not all) of the authors are unqualified persons, as if the author or authors, other than unqualified persons, had alone been the author or authors, as the case may be, of the work.
(2.) For the purposes of the last preceding sub-section, a person is an unqualified person in relation to a work where, if he had alone been the author of the work, copyright would not have subsisted in the work by virtue of this Part.
83. The reference in sub-section (2.) of section 44 of this Act to other extracts from, or from adaptations of, works by the author of the extract concerned-
(a) shall be read as including a reference to extracts from, or from adaptations of, works by the author of the extract concerned in collaboration with any other person; or
(b) if the extract concerned is from, or from an adaptation of, a work of joint authorship-shall be read as including a reference to extracts from, or from adaptations of, works by any one or more of the authors of the extract concerned, or by any one or more of those authors in collaboration with any other person.
1968 Copyright No. 63
PART IV.-COPYRIGHT IN SUBJECT-MATTER OTHER THAN WORKS.
Division I.-Preliminary.
84. In this Part, " qualified person " means- (a) an Australian citizen, an Australian protected person or a person
(other than a body corporate) resident in Australia; or (b) a body corporate incorporated under a law of the Commonwealth
or of a State.
Division 2.-Nature of Copyright in Subject-Matter other than Works.
85. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a sound recording, is the exclusive right to do all or any of the following acts:-
(a) to make a record embodying the recording; (b) to cause the recording to be heard in public; (c) to broadcast the recording.
86. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:-
(a) to make a copy of the film; (b) to cause the film, in so far as it consists of visual images, to be
seen in public, or, in so far as it consists of sounds, to be heard in public;
(c) to broadcast the film; (d) to cause the film to be transmitted to subscribers to a diffusion
service.
87. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right-
(a) in the case of a television broadcast in so far as it consists of visual images-to make a cinematograph film of the broadcast, or a copy of such a film;
(b) in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds-to make a sound recording of the broadcast, or a record embodying such a recording; and
(c) in the case of a television broadcast or of a sound broadcast- to re-broadcast it.
Dotl.ahlon.
Nature of copyrisht in sound recordinp.
Naturo of copyriaht In cinematograph films.
Nature of copyri!Jht In televiston broadcast& and sound broadcasts.
88. For the purposes of this Act, unless the contrary intention appears, Nature or I d
. . copyright in copyright, in re ation to a publishe edition of a literary, dramatic, publishing
editions of musical or artistic work or of two or more literary, dramatic, musical or works. artistic works, is the exclusive right to make, by a means that includes a photographic process, a reproduction of the edition.
No. 63 Copyright
Division 3.-Subject-Matter, other than Works, in which Copyright Subsists.
1968
89.-(1.) Subject to this Act, copyright subsists in a sound recording of which the maker was a qualified person at the time when the recording was made.
(2.) Without prejudice to the last preceding sub-section, copyright subsists, subject to this Act, in a sound recording if the recording was made in Australia.
(3.) Without prejudice to the last two preceding sub-sections, copy- right subsists, subject to this Act, in a published sound recording if the first publication of the recording took place in Australia.
g:"'i!•:t~~h 90.-(1.) Subject to this Act, copyright subsists in a cinematograph ~ film of which the maker was a qualified person for the whole or a sub-
stantial part of the period during which the film was made.
Television broadcasts and IOIIDd broadcuta in which copyright anbsista.
Publllhcd ~011aof works in which
~·
(2.) Without prejudice to the last preceding sub-section, copyright subsists, subject to this Act, in a cinematograph film if the film was made in Australia.
(3.) Without prejudice to the last two preceding sub-sections, copy- right subsists, subject to this Act, in a published cinematograph film if the first publication of the film took place in Australia.
91. Subject to this Act, copyright subsists-
(a) in a television broadcast made from a place in Australia by- (i) the Australian Broadcasting Corrunission;
(ii) the holder of a licence for a television station; or (iii) any prescribed person, being a person who is, at the time
when the broadcast is made, the holder of a wireless telegraphy licence; and
(b) in a sound broadcast made from a place in Australia by- (i) the Australian Broadcasting Corrunission;
(ii) the holder of a licence for a broadcasting station; or (iii) any prescribed person, being a person who is, at the time
when the broadcast is made, the holder of a wireless telegraphy licence.
92.-(1.) Subject to this Act, copyright subsists in a published edition of a literary, dramatic, musical or artistic work, or of two or more literary, dramatic, musical or artistic works, where-
(a) the first publication of the edition took place in Australia; or (b) the publisher of the edition was a qualified person at the date of
the first publication of the edition.
(2.) The last preceding sub-section does not apply to an edition that reproduces a previous edition of the same work or works.
1968 Copyright No. 63
Dil'ision 4.-Duration of Copyright in Subject-Matter other than Works.
93. Copyright subsisting in a sound recording by virtue of this Part ~":::f:t ':! continues to subsist until the expiration of fifty years after the expiration ::inP. of the calendar year in which the recording is first published.
94.~(1.) Copyright su~sisting in a ci~ematograp~ film by v_irtue of ~=~1! sub-sectiOn (1.) or sub-sectiOn (2.) of sectiOn 90 of th1s Act contmues to ~\':~toiRP subsist until the film is published and, after the publication of the film, until the expiration of fifty years after the expiration of the calendar year in which the film was first published.
(2.) Copyright subsisting in a cinematograph film by virtue only of sub-section (3.) of section 90 of this Act continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the film was first published.
95.-(1.) Copyright subsisting in a television broadcast or sound ourat;ioaot broadcast by virtue of this Part continues to subsist until the expiration of :i~1• fifty years after the expiration of the calendar year in which the broadcast ~'d"!'"::
broadcasts. was made.
(2.) In so far as a television broadcast or sound broadcast is a repetition (whether the first or a subsequent repetition)· of a previous television broadcast or sound broadcast to which section 91 of this Act applies, and is made by broadcasting visual images or sounds embodied in any article or thing-
(a) if it is made before the expiration of the period of fifty years after the expiration of the calendar year in which the previous broadcast was made-any copyright subsisting in it expires at the expiration of that period; and
(b) if it is made after the expiration of that period-copyright does not subsist in it by virtue of this Part.
96. Copyright subsisting in a published edition of a work or works by ouratioa o~ virtue of this Part continues to subsist until the expiration of twenty-five :~rr::=i• years after the expiration of the calendar year in which the edition was ~~~or first published.
Division 5.-0wnership of Copyright in Subject-Matter other than Works.
97.-(1.) This section has effect subject to Parts VII. and X. OwlleRbip el copyriabt in soUDd(2.) Subject to the next succeeding sub-section, the maker of a sound rccordinsl.
recording is the owner ofany copyright subsisting in the recording by virtue of this Part.
Ownership of copyright in cinematograph films.
Owncllihip of copyri!P't in televisiOn broadcasts and sound broadcasts.
Owllcrship of copyright in published editions of works.
Infrin!!ement by domg acts comprised in copyright.
No. 63 Copyright 1968
(3.) Where-
(a) a person makes, for valuable consideration, an agreement with another person for the making of a sound recording by the other person; and
(b) the recording is made in pursuance of the agreement. the first-mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the recording by virtue of this Part.
98.-(l.) This section has effect subject to Parts VII. and X.
(2.) Subject to the next succeeding sub-section, the maker of a cinematograph film is the owner of any copyright subsisting in the film by virtue of this Part.
(3.) Where- (a) a person makes, for valuable consideration, an agreement with
another person for the making of ~ cinematograph film by the other person; and
(b) the film is made in pursuance of the agreement, the first-mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.
99. Subject to Parts VII. and X.- (a) the Australian Broadcasting Commission is the owner of any
copyright subsisting in a television broadcast or sound broadcast made by it; and
(b) a person who is or has been a holder of a licence for a television station, a holder of a licence for a broadcasting station or a prescribed person for the purposes of sub-paragraph (iii) of para- graph (a) or sub-paragraph (iii) of paragraph (b) of section 91 of this Act is the owner of any copyright subsisting in a television broadcast or sound broadcast, as the case may be, made by that person.
100. Subject to Parts VII. and X., the publisher of an edition of a work or works is the owner of any copyright subsisting in the edition by virtue of this Part.
Division 6.-Infringement ofCopyright in Subject-Matter other than Works.
101.-(1.) Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
(2.) The next two succeeding sections do not affect the generality of the last preceding sub-section.
1968 Copyright No. 63
(3.) Sub-section (1.) of this section applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording.
(4.) Sub-section (1.) of this section applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.
102. A copyright subsisting by virtue of this Part is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of-
(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;
(b) distributing the article~ (i) for the purpose of trade; or
(ii) for any other purpose to an extent that will affect prejudic- ially the owner of the copyright; or
(c) by way of trade exhibiting the article in public,
where, to his knowledge, the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.
Infringement by importation for sale or hire.
103.-(1.) A copyright subsisting by virtue of this Part is infringed Infringement by a person who, in Australia, and without the licence of the owner of ~ih~~~~!3~as. the copyright-
(a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or
(b) by way of trade exhibits an article in public,
where, to his knowledge, the making of the article constituted an infringe~ ment of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.
(2.) For the purposes of the last preceding sub-section, the distribution of any articles-
(a) for the purpose of trade; or
(b) for any other purpose to an extent that affects prejudicially the owner of the copyright concerned,
shall be taken to be the sale of those articles.
104. A copyright subsisting by virtue of this Part is not infringed by anything done for the purposes of a judicial proceeding or a report of a judicial proceeding.
Acts done for purposes of a judicial proeeedina.
Copyright in certain recordings not infringed by causin11 recordlDgs to be beard in public or broadcast.
Causing sound recording to be beard at guest bouse or club.
Makin& of re- cord embodyina sound recording for purpose of broadcasting.
No. 63 Copyrighi 1968
105. Copyright subsisting in a sound recording by virtue only of sub- section l3.) of section 89 of this Act is not infringed by the causing of the recording to be heard in public or by the broadcasting of the recording.
106.-(1.) Where a sound recording is caused to be heard in public- (a) at premises where persons reside or sleep, as part of the amenities
provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests; or
(b) as part of the activities of, or for the benefit of, a club, society or other organization that is not established or conducted for profit and the principal objects of which are charitable or are otherwise concerned with the advancement of religion, education or social welfare,
the act of causing the recording to be so heard does not constitute an infringement of the copyright in the recording.
(2.) The last preceding sub-section does not apply- (a) in relation to premises of a kind referred to in paragraph (a) of
that sub-section, if a specific charge is made for admission to the part of the premises where the recording is to be heard; or
(b) in relation to an organization of a kind referred to in paragraph (b) of that sub-section, if a charge is made for admission to the place where the recording is to be heard and any of the proceeds of the charge are applied otherwise than for the purposes of the organization.
(3.) A reference in the last preceding sub-section to a specific charge, or a charge, made for admission includes a reference to a specific charge, or a charge, made partly for admission and partly for other purposes.
107.-(1.) Where the broadcasting by a person of a sound recording would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the recording but the making by the person of a record embodying the recording would, apart from this sub-section, constitute such an infringement, the copyright in the recording is not infringed by his making a record embodying the recording in association with other matter solely for the purpose of the broadcasting of the recording in association with the other matter.
(2.) The last preceding sub-section does not apply in relation to a record if the record is used for a purpose other than-
(a) the broadcasting of the recording in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copy- right in the recording; or
(b) the making of further records embodying the recording for the purpose of the broadcasting of the recording in such circum- stances.
1968 Copyright No. 63
(3.) Sub-section (1.) of this section does not apply in relation to a record where the record is used for the purpose of the broadcasting of the recording by a person who is not the maker of the record unless the maker has paid to the owner of the copyright in the recording such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copy- right Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the record.
(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has deter- mined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.
(5.) Sub-section (1.) of this section does not apply in relation to a record unless, before the expiration of the period of twelve months commencing on the day on which any of the records made in accordance with that sub-section is first used for broadcasting the recording in accordance with that sub-section, or before the expiration of such further period, if any, as is agreed between the maker of the record and the owner of the copyright in the recording, all the records made in accordance with that sub-section are destroyed or are delivered, with the consent of the National Librarian, to the National Library.
108.-(1.) The copyright in a sound recording that has been published is not infringed by a person who causes the recording to be heard in public if-
Copyright in published recording not infringed by public performance if
(a) the person has paid to the owner of the copyright in the recording ~~~~~tion such amount as they agree or, in default of agreement, has given paid. an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the causing of the recording to be heard in public; and
(b) in the case of a recording that was first published outside Aus- tralia-the recording has been published in Australia or the prescribed period after the date of the first publication of the recording has expired.
(2.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has deter- mined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.
(3.) Regulations prescribing a period for the purposes of paragraph (b) of sub-section (1.) of this section may prescribe different periods in relation to different classes of sound recordings.
Copyright In published aound recording not infringed by broadcast in certain circumstances.
No. 63 Copyright 1968
109.-(1.) Subject to this section, the copyright in a published sound recording is not infringed by the making of a broadcast of that recording if-
(a) where there is no order of the Tribunal in force under section 152 of this Act applying to the maker of that broadcast in relation to the time when that broadcast was made-the maker of that broad- cast has given an undertaking in writing to the person who is the owner of the copyright in that recording to pay to him such amounts (if any) as may be specified in, or determined in accord- ance with, an order of the Tribunal made under that section in respect of the broadcasting by the maker, during a period within which that broadcast was made, of published sound recordings in which the copyrights are owned by that person and which include that recording; or
(b) where there is an order of the Tribunal in force under that section applying to the maker of that broadcast in relation to the time when that broadcast was made-
(i) the copyright in that recording is owned by a person who is specified in the order as one of the persom among whom the amount specified in, or determined in accordance with, the order is to be divided and the maker of the broadcast makes payments to the person in accordance with the order; or
(ii) the copyright in that recording is owned by a person who is not so specified in the order.
(2.) The last preceding sub-section does not apply in relation to a broadcast of a sound recording if the broadcast was made in accordance with an agreement between the maker of the broadcast and the owner of the copyright in the recording.
(3.) Sub-section (1.) of this section does not apply in relation to a broadcast of a sound recording that has not been published in Australia if the broadcast was made before the expiration of the prescribed period after the date of the first publication of the recording.
(4.) Regulations prescribing a period for the purposes of the last preceding sub-section may prescribe different periods in relation to different classes of sound recordings.
(5.) Sub-section (1.) of this section does not apply in relation to a broadcast of a sound recording that has not been published in Australia if-
(a) the recording consists of, or includes, a musical work in which copyright subsists;
(b) the musical work was made for the purpose of being performed, or has been performed, in association with a dramatic work or bas been included in a cinematograph film; and
(c) records of the musical work have not been supplied (whether by sale or otherwise) to the public in Australia.
1968 Copyright No. 63
(6.) For the purposes of paragraph (c) of the last preceding sub-section, a supplying of records of a musical work shall be disregarded if the sup- plying was done otherwise than by, or with the licence of, the owner of the copyright in the work.
110.-(1.) Where the visual images forming part of a cinematograph Provisions film consist wholly or principally of images that, at the time when they ci!::!:'a~C::raph were first embodied in an article or thing, were means of communicating films, news, the copyright in the film is not infringed by the causing of the film to be seen or heard, or to be both seen and heard, in public after the expiration of fifty years after the expiration of the calendar year in which the principal events depicted in the film occurred.
(2.) Where, by virtue of this Part, copyright has subsisted in a cine- matograph film, a person who, after that copyright has expired, causes the film to be seen or heard, or to be seen and heard, in public does not, by so doing, infringe any copyright subsisting by virtue of Part III. in a literary, dramatic, musical or artistic work.
(3.) Where the sounds that are embodied in a sound-track associated with the visual images forming part of a cinematograph film are also em- bodied in a record, other than such a sound-track or a record derived directly or indirectly from such a sound-track, the copyright in the cinematograph film is not infringed by any use made of that record.
111.-(1.) The copyright in a television broadcast in so far as it consists of visual images is not infringed by the making of a cinematograph film of the broadcast, or a copy of such a film, for the private and domestic use of the person by whom it is made.
(2.) The copyright in a sound broadcas,t, or in a television broadcast in so far as it consists of sounds, is not infringed by the making of a sound recording of the broadcast, or a record embodying such a recording, for the private and domestic use of the person by whom it is made.
(3.) For the purposes of this section, a cinematograph film or a copy of such a film, or a sound recording or a record embodying such a recording, shall be deemed to be made otherwise than for the private and domestic use of the person by whom it is made if it is made for the purpose of-
(a) the sale or letting for hire of a copy of the film or of a record embodying the recording, as the case may be;
(b) broadcasting the film or recording; or (c) causing the film or recording to be seen or heard in public.
112.-(1.) Subject to this section, the copyright in a published edition of a work or works is not infringed by the making by, or on behalf of, a librarian of a reproduction of part of the edition.
Filming or recording broadcasts for private and domestic use,
Reproductions by libraries or editions of worts.
Copyri~ta tc> SUbSISt independently.
Interpretation.
Actions for infrinsemeut.
No. 63 Copyright 1968
(2.) The last preceding sub-section does not apply in relation to a reproduction of a part of an edition unless-
(a) the reproduction is supplied only to a person who satisfies the librarian, or a person acting on behalf of the librarian, that he requires the reproduction for the purpose of research or private study and that he will not use it for any other purpose or, if the person to whom the reproduction is supplied is a member of a Parliament and the librarian is the librarian of a library the principal purpose of which is to provide library services for members of that Parliament, that he requires the reproduction for the purpose of the performance of his duties as such a member and that he will not use it for any other purpose;
(b) the person to whom the reproduction is supplied has not previously been supplied by the librarian, or by a person acting on behalf of the librarian, with a reproduction of the same part of the edition;
(c) where the reproduction is supplied to a person other than a member of a Parliament-the person is required to pay for the reproduction an amount not less than the cost of making the reproduction; and
(d) the reproduction contains only a reasonable portion of the edition.
(3.) The regulations may exclude the application of sub-section (1.) of this section in such cases as are specified in the regulations.
Division 1.-Misce/laneous. 113.-(l.) Subject to sub-section (2.) of section 110 of this Act, where
copyright subsists in any subject-matter by virtue of this Part, nothing in this Part shall be taken to affect the operation of Part III. in relation to any literary, dramatic, musical or artistic work from which that subject- matter is wholly or partly derived, and any copyright subsisting by virtue of this Part is in addition to, and independent of, any copyright subsisting by virtue of Part III.
(2.) The subsistence of copyright under any provision of this Part does not affect the operation of any other provision of this Part under which copyright can subsist.
PART V.-REMEDIES FOR INFRINGEMENTS OF COPYRIGHT. Division I.-Preliminary.
114.-(1.) In this Part, " action " means a proceeding of a civil nature between parties, and includes a counterclaim.
(2.) 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.
Division 2.-Actions by Owner of Copyright. 115.-{1.) Subject to this Act, the owner of a copyright may bring an
action for an infringement of the copyright.
1968 Copyright No. 63
(2.) Subject to this Act, the relief that a court may grant in an action for an infringement of copyright 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 infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringe- ment was an infringement of the copyright, the plaintiff is not entitled under this section 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 under this section or not.
(4.) Where, in an action under this section-
(a) an infringement of copyright 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 by
reason 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.
116.-(1.) Subject to this Act, the owner of the copyright in a work Rights of owner or other subject-matter is entitled in respect of any infringing copy, or of f,[~~} any plate used or intended to be used for making infringing copies, to the :;:;:,r::ns rights and remedies, by way of an action for conversion or detention, to which he would be entitled if he were the owner of the copy or plate and had been the owner of the copy or plate since the time when it was made.
(2.) A plaintiff is not entitled by virtue of this section to any damages or to any other pecuniary remedy, other than costs, if it is established that, at the time of the conversion or detention-
(a) the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject- matter to which the action relates;
(b) where the articles converted or detained were infringing copies- the defendant believed, and had reasonable grounds for believing, that they were not infringing copies; or
(c) where an article converted or detained was a plate used or in- tended to be used for making articles-the defendant believed, and had reasonable grounds for believing, that the articles so made or intended to be made were not or would not be, as the case may be, infringing copies.
Definitions.
Application.
Rights or exclusive licensee.
Joinder of owner or exclusive licensee as a party.
No. 63 Copyright
Division 3.-Proceedings where Copyright is subject to Exclusive Licence.
1968
117. In this Division- " if the licence had been an assignment " means if, instead of the
licence, there had been granted (subject to conditions correspond- ing as nearly as practicable with those subject to which the licence was granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorized by the licence, of the acts so authorized;
" the other party " means- (a) in relation to the owner of the copyright-the exclusive
licensee; and (b) in relation to the exclusive licensee-the owner of the
copyright.
118. This Division applies to proceedings in relation to a copyright 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.
119. Subject to the succeeding sections of this Division- (a) except against the owner of the copyright, the exclusive licensee
has the same rights of action as he would have, and is entitled to the same remedies as he would be entitled to, by virtue of section 115 of this Act if the licence had been an assignment, and those rights and remedies are concurrent with the rights and remedies of the owner of the copyright under that section;
(b) except against the owner of the copyright, the exclusive licensee has the same rights of action as he would have, and is entitled to the same remedies as he would be entitled to, by virtue of section 116 of this Act if the licence had been an assignment; and
(c) the owner of the copyright does not have any rights of action that he would not have, and is not entitled to any remedies that he would not be entitled to, by virtue of section 116 of this Act if the licence had been an assignment.
120.-(1.) Where- (a) an action is brought by the owner of the copyright or by the
exclusive licensee; and (b) the action, in so far as it is brought under section 115 of this Act,
relates, in whole or in part, 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 is brought under that section and relates to that infringement, unless the other party is joined as a plaintiff in the action or added as a defendant.
1968 Copyright No. 63
(2.) This section does not affect the granting of an interlocutory in- junction on the application of the owner of the copyright or of the exclusive licensee.
121. In an action brought by the exclusive licensee by virtue of this Division, 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 copyright is available to that defendant as against the exclusive licensee.
Defences available aaainst exclusive licensoe.
122. Where an action to which section 120 of this Act applies is Assessment of b gh d h f h "gh d h l . 1. damages whererou t an t e owner o t e copyn t an t e exc us1ve 1censee are not e.xciusive both plaintiffs in the action, the court, in assessing damages in respect of ~~;~:;d. an infringement of a kind referred to in that section, shall-
(a) if the plaintiff is the exclusive licensee-take into account any liabilities, in respect of royalties or otherwise, to which the licence is subject; and
(b) whether the plaintiff is the owner of the copyright or the exclusive licensee-take into account any pecuniary remedy already awarded to the other party under section 115 of this Act in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement, as the case requires.
123. Where- (a) an action, in so far as it is brought under section 115 of this Act,
relates, in whole or in part, to an infringement in respect of which the owner of the copyright and the exclusive licensee have concur- rent rights of action under that section; and
(b) in that action, whether the owner of the copyright and the exclusive licensee are both parties or not, an account of profits is directed to be taken in respect of that infringement,
then, subject to any agreement of which the court is aware by which the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them in such manner as the court considers just and shall give such directions as the court considers appropriate for giving effect to that apportionment.
124. In an action brought by the owner of the copyright or by the .exclusive licensee-
(a) a judgment or order for the payment of damages in respect of an infringement of copyright shall not be given or made under section 115 of this Act 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 copyright shall not be given or made under that section if a final judgment or order has been given or made in
Apportionment of profits between owner and exclusive licensee.
Separate actions in relation to the same infringement.
Liability for costs.
Presumptions as to subsistence and ownership of copyright.
Presumptions in relation to authorship or work.
No. 63 Copyright 1968
favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.
125. Where, in an action to which section 120 of this Act applies, whether brought by the owner of the copyright 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 enters an appearance and takes part in the proceedings.
Division 4.-Proofof Facts in Copyright Proceedings.
126. In an action brought by virtue of this Part-
(a) copyright shaH be presumed to subsist in the work or other subject· matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject·matter; and
(b) where the subsistence of the copyright is established-the plaintiff shall be presumed to be the owner of the copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership.
127.-(1.) Where a name purporting to be that of the author of a literary, dramatic, musical or artistic work appeared on copies of the work as published or a name purporting to be that of the author of an artistic work appeared on the work when it was made, the person whose name so appeared, if it was his true name or a name by which he was commonly known, shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the author of the work and to have made the work in circumstances to which sub-sections (4.}, (5.) and (6.) of section 35 of this Act do not apply.
(2.) Where a work is alleged to be a work of joint authorship, the last preceding sub-section applies in relation to each person aHeged to be one of the authors of the work as if references in that sub-section to the author were references to one of the authors.
(3.) Where, in an action brought by virtue of this Part in relation to a photograph-
(a) it is established that, at the time when the photograph was taken, a person was the owner of the material on which the photograph was taken or, if the ownership of that material as at that time is not established, that a person was the owner of the apparatus by which the photograph was taken ; or
(b) neither the ownership as at the time when the photograph was taken of the material on which it was taken nor the ownership as at that time of the apparatus by which it was taken is established but it is established that, at the time of the death of a person, the
1968 CopyrighT No. 63
photograph was owned by the person or, if the ownership of the photograph as at that time is not established, was in the possession or custody of the person,
the person shall be presumed, unless the contrary is established, to have been the person who took the photograph.
128. Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, the last preceding section does not apply, but it is established-
(a) that the work was first published in Australia and was so published during the period of fifty years that ended immediately before the commencement of the calendar year in which the action was brought; and
(b) that a name purporting to be that of the publisher appeared on copies of the work as first published,
then, unless the contrary is established, copyright shall be presumed to subsist in· the work and the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication.
129.-(l.) Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, it is established that the author is dead-
(a) the work shall be presumed to be an original work unless the contrary is established; and
(b) if it is alleged by the plaintiff that a publication specified in the allegation was the first publication of the work, and that it took place in a country and on a date so specified-that publication shall be presumed, unless the contrary is established, to have been the first publication of the work, and to have taken place in that country and on that date.
(2.) Where- (a) a literary, dramatic, musical or artistic work has been published;
(b) the publication was anonymous or is alleged by the plaiPtiff to have been pseudonymous; and
(c) it is not established that the work has ever been published under the true name of the author, or under a name by which he was commonly known, or that the identity of the author is generally known or can be ascertained by reasonable inquiry,
paragraphs (a) and (b) of the last preceding sub-section apply, in an action brought by virtue of this Part in relation to the work, in like manner as those paragraphs apply where it is established that the author is dead.
Presumptions in relation to publisher of work.
Presumptions where author has died.
130. In an action brought by virtue of this Part in relation to copyright Evidence in in a sound recording, if records embodying the recording or a part of the ~~:,:. recording have been supplied (whether by sale or otherwise) to the public
No. 63 Copyright 1968
and, at the time when records embodying the recording or part of the recording were first so supplied, the records or their containers bore a label or other mark containing a statement-
(a) that a person specified on the label or mark was the maker of the recording;
(b) that the recording was first published in a year specified on the label or mark; or
(c) that the recording was first published in a country specified on the label or mark,
that label or mark is sufficient evidP-nce of the facts so stated except in so far as the contrary is established.
Presumption 131. Where the name of a person appeared on copies of a cinema- in relation to d · bl h maker or film. tograph film as ma e avada e to the public in sue a way as to imply
that the person was the maker of the film and, in the case of a person other than a body corporate, that name was his true name or a name by which he was commonly known, that person shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the maker of the film and to have made the film in circumstances to which sub-section (3.) of section 98 of this Act does not apply.
Division 5.-0.ffences and Summary Proceedings.
offences. 132.-(1.) A person shall not, at a time when copyright subsists in a work-
(a) make an article for sale or hire; (b) sell or let for hire, or by way of trade offer or expose for sale or
hire, an article; (c) by way of trade exhibit an article in public; or (d) import an article into Australia for the purpose of-
(i) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;
(ii) distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or
(iii) by way of trade exhibiting the article in public, if he knows the article to be an infringing copy of the work.
(2.) A person shall not, at a time when copyright subsists in a work, distribute-
(a) for the purpose of trade; or (b) for any other purpose to an extent that affects prejudicially the
owner of the copyright,
an article that he knows to be an infringing copy of the work.
(3.) A person shall not, at a time when copyright subsists in a work, make or have in his possession a plate knowing that it is to be used for making infringing copies of the work.
l968 Copyright No. 63
(4.) The last three preceding sub-sections apply in relation to copyright subsisting in any subject-matter by virtue of Part IV. in like manner as they apply in relation to copyright subsisting in a work by virtue of Part III.
(5.) A person shall not cause a literary, dramatic or musical work to be performed in public, knowing that copyright subsists in the work and that the performance constitutes an infringement of the copyright.
(6.) This section applies only in respect of acts done in Australia.
133.-(1.) A contravention by a person of sub-section (1.) or sub- Penalties. section (2.) of the last preceding section is an offence punishable upon summary conviction-
(a) if it is his first conviction of an offence by reason of a contravention of that section-by a fine not exceeding Ten dollars for each article to which the offence relates; and
(b) in any other case-by a fine not exceeding Ten dollars for each article to which the offence relates or by imprisonment for a period not exceeding two months.
(2.) A fine imposed by virtue of the last preceding sub-section shall not exceed Two hundred dollars in respect of articles comprised in the same operation or transaction.
(3.) A contravention by a person of sub-section (3.) or sub-section (5.) of the last preceding section is an offence punishable upon summary conviction-
(a) if it is his first conviction of an offence by reason of a contravention of that section-by a fine not exceeding Two hundred dollars; and
(b) in any other case-by a fine not exceeding Two hundred dollars or by imprisonment for a period not exceeding two months.
(4.) The court before which a person is charged with an offence by reason of a contravention of the last preceding section may, whether he is convicted of the offence or not, order that any article in his possession that appears to the court to be an infringing copy, or to be a plate used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright concerned or otherwise dealt with in such manner as the court thinks fit.
Division 6.-Miscel/aneous. 134. An action shall not be brought for an infringement of copyright Limit~tion.
or in respect of the conversion or detention of an infringing copy, or of ~~~o~~ m a plate used or intended to be used for making infringing copies, after the ::'f~:::rs"bt~ expiration of six years from the time when the infringement took place or the infringing copy or plate was made, as the case may be.
135.-(1.) In this section- (a) a reference to Australia does not include a reference to the
Territories of the Commonwealth not forming part of the Com- monwealth; and
Restriction of importation of printed copies of works.
No. 63 Copyright 1968
(b) a reference to importation into Australia does not include a reference to importation from such a Territory.
(2.) The owner of the copyright in a published literary, dramatic or musical work may give notice in writing to the Comptroller-General of Customs (in this section referred to as " the Comptroller-General ") stating-
(a) that he is the owner of the copyright in the work; and
(b) that he objects to the importation into Australia, during a period specified in the notice, of copies of the work to which this section applies.
(3.) A notice under the last preceding sub-section is of no effect unless the period specified in the notice does not exceed five years and does not extend beyond the end of the period for which the copyright in the work to which the notice relates is to subsist.
(4.) This section applies, in relation to a work, to any printed copy of the work made outside Australia and the Territories of the Common- wealth not forming part of the Commonwealth the making of which would, if it had been made in Australia by the person who imported it into Australia, have constituted an infringement of the copyright in the work.
(5.) Where a notice has been given under this section in respect of a work and has not been withdrawn, the importation of copies of the work to which this section applies into Australia for the purpose of-
(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the copies;
(b) distributing the copies- (i) for the purpose of trade; or
(ii) for any other purpose to an extent that will affect prejudic- ially the owner of the copyright in the work; or
(c) by way of trade exhibiting the copies in public,
is prohibited and any such copies, if imported into Australia for any such purpose, may be seized as forfeited to the Commonwealth.
(6.) Subject to the regulations, the Comptroller-General, or on appeal from him the Minister of State for Customs and Excise, may permit copies of a work that are liable to be or have been seized as forfeited under this section to be delivered to the owner or importer upon security being given to the satisfaction of the Comptroller-General that the copies will be forthwith exported from Australia.
(7.) The provisions of the Customs Act 1901-1968 apply to the seizure and forfeiture under this section of copies of a work to which this section applies as if the copies were prohibited imports for the purposes of that Act.
1968 Copyright No. 63
(8.) The regulations may make provision for or in relation to- (a) the forms of notices under this section; (h) the times at which, and the manner in which, notices are to be
given: (c) the giving of information and evidence to the Comptroller-
General; (d) the payment of fees and the giving of security to the Comptroller-
General in respect of any liability or expense that may be incurred by him as a result of the seizure of any copy of a work to which a notice under this section relates; and
(e) indemnifying the Comptroller-General against any such liability or expense.
(9.) The regulations may contain provisions similar to the provisions of this section in relation to the importation into a Territory of the Com- monwealth not forming part of the Commonwealth (other than importa- tion from Australia or from another such Territory) of printed copies of published literary, dramatic or musical works.
PART Vl.-THE COPYRIGHT TRIBUNAL.
Division I.-Preliminary. 136.-(1.) In this Part, unless the contrary intention appears- Interpretation. " licence " means a licence granted by or on behalf of the owner or
prospective owner of the copyright in a literary, dramatic or musical work, or of the copyright in a sound recording, being-
(a) in the case of a literary, dramatic or musical work-a licence to perform the work or an adaptation of the work in public, to broadcast the work or an adaptation of the work, to make a sound recording or cinematograph film of the work or of an adaptation of the work for the purpose of broadcasting the work or adaptation or to cause the work or an adaptation of the work to be trans- mitted to subscribers to a diffusion service; or
(b) in the case of a sound recording-a licence to cause the recording to be heard in public or to make a record embodying the recording for the purpose of broadcasting the recording;
" licence scheme " means a scheme (including anything in the nature of a scheme, whether called a scheme or tariff or called by any other name) formulated by a licensor or licensors and setting out the classes of cases in which the licensor or each of the licensors is willing, or the persons on whose behalf the licensor or each of the licensors acts are willing, to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases;
•• licensor " means- (a) in relation to licences in respect of a literary, dramatic or
musical work-the owner or prospective owner of the
No. 63 Cupyright 1968
copyright in the work or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences; and
(b) in relation to licences in respect of a sound recording-the owner or prospective owner of the copyright in the recording or any body of persons {whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences;
" member " means a member of the Tribunal; '' order " includes an interim order; " organization " means an organization or association of persons
whether corporate or unincorporate; " party " includes a person making representations to the Tribunal at
an inquiry under section 148 of this Act; " proceeding ", in relation to the Tribunal, includes an inquiry by the
Tribunal under section 148 of this Act; "the Deputy President" means the Deputy President of the Tribunal; " the President " means the President of the Tribunal.
(2.) In this Part-
(a) a reference to conditions is a reference to any conditions other than conditions relating to the payment of a charge;
(b) a reference to giving an opportunity to a person or organization of presenting a case is a reference to giving the person or organization an opportunity, at the option of the person or organization, of submitting representations in writing, or of being heard, or of submitting representations in writing and being heard;
(c) a reference to a person who requires a licence of a particular kind includes a reference to a person who holds a licence of that kind if the person will, at the expiration of the period for which the licence was granted, require a renewal of that licence or a grant of a further licence of the same kind; and ·
(d) a reference to proceedings for infringement of copyright includes a reference to proceedings brought in respect of an alleged con- travention of sub-section (5.) of section 132 of this Act.
(3.) For the purposes of this Part, a person shall not be taken not to require a licence to cause a sound recording to be heard in public by reason only of the operation of section 108 of this Act.
eases to 137.-(1.) For the purposes of this Part, a case shall, subject to the :.;~~!~!C:~~y. next succeeding sub-section, be deemed to be a case to which a licence
scheme applies if, in accordance with a licence scheme for the time being in operation, a licence would be granted in that case.
1968 Copyright No. 63
(2.) For the purposes of this Part, where, in accordance with a licence scheme-
(a) the licences that would be granted would be subject to conditions by virtue of which particular matters would be excepted from the licences; and
(b) a case relates to one or more matters falling within such an exception,
that case shall be deemed not to be a case to which the scheme applies.
Division 2.-Constitution of the Tribunal. 138. There is hereby established a Copyright Tribunal, which shall
consist of five members.
139. A member of the Tribunal shall be appointed by the Governor- General.
140. A person shall not be appointed as a member unless he is or has been-
(a) a justice or judge of a federal court or of the Supreme Court of a State; or
(b) a barrister or solicitor of the High Court, or of the Supreme Court of a State or of a Territory of the Commonwealth, of not less than five years' standing.
141. A member holds office for such period, not exceeding seven years, as is specified in the instrument of his appointment, but is eligible for re-appointment.
Constitution of Tribunal.
Appointment ofmemben of Tribunal.
Qualifications of members.
Tenure of office.
142.-(l.) The Governor-General shall appoint one of the members of President and the Tribunal to be the President of the Tribunal and another of ~r~iJ:nt of the members of the Tribunal to be the Deputy President of the Tribunal. the Tribunal.
(2.) The Deputy President shall act as President of the Tribunal during any vacancy in the office, or suspension, illness or absence, of the President.
143.-(1.) A member shall be paid remuneration at such rate (if any) as the Governor-General determines, but the rate shall not be diminished during a term of office.
(2.) A member shall be paid such allowances (if any) in respect of travelling expenses as the Attorney-General determines.
144.-(l.) A member shall, before proceeding to discharge the duties of his office, take an oath or make an affirmation in accordance with the form of oath or affirmation in the Schedule to this Act.
(2.) An oath or affirmation shall be taken or made before a justice or judge of a federal court or of the Supreme Court of a State.
Remuneration and allowances.
Oath or affinnation of office.
145. A member may resign his office by writing signed by him and Resignat•on. delivered to the Governor-General.
Sittings of tbo Tribunal.
President 10 o.rranp business of Tribunal.
No. 63 Copyright 1968
146.-(1.) Sittings of the Tribunal shall be held at such places and times as the President determines.
(2.) Subject tQ the next succeeding sub-section, the Tribunal shall be constituted by a single member.
(3.) Where- (a) the Tribunal holds an inquiry under section 148 of this Act; or (b) any party to an application or reference requests that the
Tribunal be constituted by more than one member for the purposes of that application or reference,
the Tribunal shall, for the purposes of the inquiry, application or reference, be constituted by not less than two members of whom one shall be the President or the Deputy President, but nothing in this sub-section prevents a single member exercising the powers of the Tribunal in relation to matters of procedure.
(4.) At a proceeding before the Tribunal constituted by more than one member-
(a) if the President is one of the members constituting the Tribunal- he shall preside; and
(b) in any other case-the Deputy President shall preside.
(5.) Where the Tribunal constituted by more than one member is divided in opinion on a question, the question shall be decided according to the decision of the majority, if there is a majority, but if the Tribunal as so constituted is equally divided in opinion, the question shall be decided according to the opinion of the President or, ifhe is not one of the members constituting the Tribunal, according to the opinion of the Deputy President.
(6.) The Tribunal constituted by a member or members may sit and exercise the powers of the Tribunal notwithstanding that the Tribunal constituted by another member or other members is at the same time sitting and exercising those powers.
(7.) The exercise of the powers of the Tribunal is not affected by a vacancy or vacancies in the membership of the Tribunal.
(8.) Where a proceeding is commenced before the Tribunal constituted by two or more members and one of those members has become unable to continue to sit or has ceased to be a member, whether by death or other- wise, the remaining member or members may continue the hearing of the proceeding.
147. The President may give directions as to the arrangement of the business of the Tribunal and, subject to sub-section (3.) of the last pre- ceding section, as to the constitution of the Tribunal for the purposes of particular proceedings.
1968 Copyright No. 63
Division 3.-Inquiries by, and Applications and References to, the Tribunal.
148.-(1.) This section applies where the Attorney-General requests Inquiries into royalty payable
the Tribunal in pursuance of section 58 of this Act to hold an inquiry in respect of in relation to the royalty, or the minimum royalty, payable in respect of ~:r~~ ~orks. records generally, or in respect of records included in a particular class of records.
(2.) Where such a request is made, the Tribunal shall hold the inquiry and shall give every person or organization that the Tribunal is satisfied has a substantial interest in the matter to which the inquiry relates an opportunity of presenting a case to the Tribunal.
(3.) As soon as practicable after the completion of the inquiry, the Tribunal shall make a report in writing to the Attorney-General setting out the result of the inquiry.
149.-(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (3.) of section 47, or sub-section (3.) ofsection 70, of this Act for the determination ofan equitable remuneration to be paid to the owner of the copyright in a work for the making of a sound recording or cinematograph film of the work or of an adaptation of the work.
(2.) The parties to an application in relation to which this section applies are-
(a) the owner of the copyright in the work; and (b) the maker of the recording or film.
(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the recording or film.
150.-(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (3.) of section 107 of this Act for the determination of an equitable remuneration to be paid to the owner of the copyright in a sound recording for the making of a record embodying the recording.
(2.) The parties to an application in relation to which this section applies are-
(a) the owner of the copyright in the recording; and (b) the maker of the record.
(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the record.
Applications to Tribunal for determination of remuneration payable for making recording or film of a work.
Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of record embodying the recording.
Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording.
Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings.
No. 63 Copyright 1968
151.-(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (1.) of section 108 of this Act for the determination of an equitable remuneration to be paid to the owner of the copyright in a sound recording for the causing of the recording to be heard in public.
(2.) The parties to an application in relation to which this section applies are-
(a) the owner of the copyright in the recording; and (b) the person who caused the recording to be heard in public.
(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the causing of the recording to be heard in public.
152.-(1.) In this section, unless the contrary intention appears- " Australia " does not include the Territories of the Commonwealth
not forming part of the Commonwealth;
" broadcaster " means- (a) the Australian Broadcasting Commission; (b) the holder of a licence for a broadcasting station; (c) the holder of a licence for a television station; or (d) a person prescribed for the purposes of sub-paragraph (iii)
of paragraph (a) or sub-paragraph (iii) of paragraph (b) of section 91 of this Act.
(2.) Subject to this section, 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 period specified in the application, of those recordings by that broadcaster.
(3.) An application under the last preceding sub-section may be made by the broadcaster or by the owner of a copyright in a published sound recording.
(4.) The parties to an application under sub-section (2.) of this section are-
(a) the person making the application; and (b) such organizations or persons as apply to the Tribunal to be
made parties to the application and, in accordance with the next succeeding sub-section, are made parties to the application.
(5.) Where an organization (whether claiming to be representative of broadcasters or of the owners of copyrights in published sound recordings or not) or a person (whether a broadcaster or the owner of a copyright in a published sound recording or not) applies to the Tribunal to be made
1968 Copyright No. 63
a party to an application under this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter that is the subject of the application, the Tribunal may, if it thinks fit, make that organization or person a party to the application.
(6.) The Tribunal shall consider an application under sub-section (2.) of this section and, after giving the parties to the application an opportunity of presenting their cases, shall make an order-
(a) determining, or making provision for determining, the amount payable by the broadcaster to the owners of copyrights in pub- lished sound recordings in respect of the broadcasting, during the period to which the order applies, by the broadcaster of those recordings;
(b) specifying as the persons among whom that amount is to be divided such of the persons who were, or were represented by, parties to the application as the Tribunal is satisfied are the owners of copyrights in published sound recordings; and
(c) specifying as the respective shares in that amount of the persons among whom that amount is to be divided and as the times at which those shares are to be paid such shares and times as those persons agree or, in default of agreement, as the Tribunal thinks equitable.
(7.) In so making an order in relation to a broadcaster, the Tribunal shall take into account all relevant matters, including the extent to which the broadcaster uses, for the purposes of broadcasting, records embodying sound recordings (other than recordings in relation to which section 105 of this Act applies) in which copyrights subsist, being copyrights owned by persons who are, or are represented by, parties to the application.
(8.) The Tribunal shall not make an order that would require -a broadcaster being the holder of a licence for a broadcasting station to pay, in respect of the broadcasting of published sound recordings during the period in relation to which the order applies, an amount exceeding one per centum of the amount determined by the Tribunal to be the gross earnings of the broadcaster during the period equal to the period in relation to which the order applies that ended on the thirtieth day of June last preceding the date of commencement of the period in relation to which the order applies.
(9.) Where a broadcaster being the holder of a licence for a broad- casting station has, with the leave of the Australian Broadcasting Control Board under section 106 of the Broadcasting and Television Act 1942-1967, adopted an accounting period ending on a day other than the thirtieth day of June, the reference in the last preceding sub-section to the thirtieth day of June shall, in relation to that broadcaster, be read as a reference to that other day.
No. 63 Copyright 1968
(10.) Sub-section (8.) of this section does not apply to an order in relation to a broadcaster unless-
(a) the broadcaster establishes to the satisfaction of the Tribunal the amount of the gross earnings of the broadcaster during the period in respect of which those earnings are to be determined; and
(b) the broadcaster carried on the transmission of programmes by way of sound broadcasting throughout the whole of that period.
(11.) Where an application is made to the Tribunal under sub-section (2.) of this section in relation to the Australian Broadcasting Commission, the Tribunal-
(a) shall make separate orders in respect of sound broadcasts by the Commission of published sound recordings and in respect of television broadcasts by the Commission of such recordings; and
(b) shall not make an order that would require the Commission to pay, in respect of sound broadcasts of published sound recordings during the period in relation to which the order applies, an amount exceeding the sum of-
(i) in respect of each complete year included in that period- the amount ascertained by multiplying one-half of One cent by the number equal to the number of persons com- prised in the estimated population of Australia as last set out in statistics published by the Commonwealth Statis- tician before the making of the order; and
(ii) in respect of each part of a year included in that period- the amount that bears to the amount ascertained in accord- ance with the last preceding sub-paragraph in relation to a complete year the same proportion as that part of a year bears to a complete year.
(12.) A person who is not specified in an order in force under sub- section (6.) of this section 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 as one of those persons.
(13.) The parties to an application under the last preceding sub-section for an amendment of an order are-
(a) the person making the application; (b) the broadcaster in relation to whom the order applies; (c) the persons specified in the order as the persons among whom the
amount specified in, or determined in accordance with, the order is to be divided; and
(d) such organizations or persons as apply to the Tribunal to be made parties to the application and, in accordance with sub-section (5.) of this section, are made parties to the application.
1968 Copyright No. 63
(14.) The Tribunal shall consider an application under sub-section (12.) of this section for an amendment of an order in force under sub-section (6.) of this section (in this sub-section referred to as "the principal order") and, after giving the parties to the application an opportunity ofpresenting their cases, shall, if it is satisfied that the applicant is the owner of the copyright or copyrights in one or more published sound recordings, make an order amending the principal order so as to-
(a) specify the applicant as one of the persons among whom the amount specified in, or determined in accordance with, the prin- cipal order is to be divided; and
(b) specify as the share of the applicant in that amount and as the times at which that share is to be paid such share and times as the applicant and the other persons among whom that amount is to be divided agree or, in default of agreement, as the Tribunal thinks equitable and make any consequential alterations in respect of the shares of those other persons.
(15.) An order of the Tribunal made under sub-section (6.) of this section in relation to a broadcaster applies in relation to the period com- mencing on the date specified in the order and ending on the thirtieth day of June next succeeding the date of making of the order.
(16.) The date that may be so specified in an order of the Tribunal made under sub-section (6.) of this section in relation to a broadcaster may be a date before the date of making of the order or before the date of making of the application but shall not be a date before the date of expiration of the period in relation to which the last preceding order (if any) of the Tribunal made under that sub-section in relation to that broad- caster applied or before the date of commencement of this Act.
(17.) An order of the Tribunal made under sub-section (14.) of this section amending an order of the Tribunal made under sub-section (6.) of this section applies in relation to the period commencing on the date of making of the amending order and ending on the date of expiration of the period in relation to which the order that is being amended applies.
(18.) Where an order of the Tribunal is in force under this section, the broadcaster in relation to whom the order applies is liable to pay to each of the persons specified in the order as the persons among whom the amount specified in, or determined in accordance with, the order is to be divided the share so specified in relation to that person and is so liable to pay that share at the times so specified and that person may recover any amount that is not paid in accordance with the order in a court of com- petent jurisdiction from the broadcaster as a debt due to the person.
(19.) For the purposes of this section, the gross earnings of a broad- caster in respect of a period are the gross earnings of the broadcaster during that period in respect of the broadcasting by him of advertisements or other matter, including the gross earnings of the broadcaster during that period in respect of the provision by him of, or otherwise in respect of, matter broadcast by him.
Applications to Tribunal for apportionment of royalty
~~c~e:s.ect of a
Referen"" of proposed licence schemes to Tribunal.
No. 63 Copyright 1968
(20.) Where, in connexion with a transaction, any consideration is paid or given otherwise than in cash, the money value of that consideration shall, for the purposes of the last preceding sub-section, be deemed to have been paid or given.
(21.) Where the Tribunal is of the opinion that- (a) an amount, or part of an amount, earned during any period by a
person other than a broadcaster would, if the broadcaster and that person were the same person, form part of the gross earnings of the broadcaster in respect of that period for the purposes of this section; and
(b) a relationship exists between the broadcaster and the other person (whether by reason of any shareholding or of any agreement or arrangement, or for any other reason) of such a kind that the amount or the part of the amount, as the case may be, should, for the purposes of this section, be treated as part of the gross earnings of the broadcaster in respect of that period,
the Tribunal may so treat the amount or the part of the amount, as the case may be.
153.-(1.) This section applies where an application is made to the Tribunal in pursuance of paragraph (b) of sub-section (3.) of section 59 of this Act for an apportionment of an amount payable in respect of a record between the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work.
(2.) The parties to an application in relation to which this section applies are-
(a) the owner of the copyright in the musical work; and (b) the owner of the copyright in the literary or dramatic work.
(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order apportioning the amount to which the application relates between the parties in such manner as it thinks equitable.
154.-(1.) Where a licensor proposes to bring a lice11ce scheme into operation, he may refer the scheme to the Tribunal.
(2.) The parties to a reference under this section are- (a) the licensor referring the scheme; and (b) such organizations or persons (if any) as apply to the Tribunal
to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference.
(3.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organization or person has a substantial
1968 Copyright No. 63
interest in the operation of the scheme to which the reference relates, the Tribunal may, if it thinks fit, make that organization or person a party to the reference.
(4.) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity ofpresenting their cases, shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.
(5.) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(6.) Where a licence scheme has been referred to the Tribunal under this section, the licensor may do either or both of the following things:-
(a) bring the scheme into operation before the Tribunal makes an order in pursuance of the reference;
(b) 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.
(7.) If the scheme is not brought into operation before an order is made in pursuance of the reference, the scheme as confirmed or varied by the order comes into operation, notwithstanding anything contained in the scheme, forthwith upon the making of the order.
(8.) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order remains in operation, not- withstanding anything contained in the scheme, so long as the order remains in force.
155.-(1.) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the terms of the scheme between the licensor operating the scheme and-
(a) an organization claiming to be representative of persons requiring licences in cases included in a class of cases to which the scheme applies; or
(b) any person claiming that he requires a licence in a case included in a class of cases to which the scheme applies,
the licensor, organization or person concerned may refer the scheme to the Tribunal in so far as the scheme relates to cases included in that class.
(2.) The parties to a reference under this section are- (a) the licensor, organization or person referring the scheme; (b) if the reference is not made by the licensor operating the scheme
-that licensor; and (c) such other organizations or persons (if any) as apply to the
Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference.
Reference of existing Ucenco schemes to Tribunal.
Further reference of licence schemes to Tribunal.
No. 63 Copyright 1968
(3.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organization or person a party to the reference.
(4.) The Tribunal shall not begin to consider a reference under this section by an organization unless the Tribunal is satisfied that the organ- ization is reasonably representative of the class of persons that it claims to represent.
(5.) Subject to the last preceding sub-section, where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, in so far as it relates to cases included in the class of cases to which the reference relates, as the Tribunal considers reasonable in the circumstances.
(6.) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(7.) A reference of a licence scheme to the Tribunal under this section may be withdrawn at any time before an order is made in pursuance of the reference.
(8.) 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.
(9.) The last preceding sub-section does not apply in relation to a reference with respect to any period after the reference has been withdrawn or after the Tribunal has refused to begin to consider the reference in pursuance of sub-section (4.) of this section.
(10.) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order remains in operation, notwith- standing anything contained in the scheme, so long as the order remains in force.
156.-(1.) Where the Tribunal has made an order (other than an interim order) under either of the last two preceding sections with respect to a licence scheme, then, subject to the next succeeding sub-section, at any time while the order remains in force-
(a) the licensor operating the scheme; (b) any organization claiming to be representative of persons requiring
licences in cases included in the dass of cases to which the order applies; or
(c) any person claiming that he requires a licence in a case included in that class,
1968 Copyright No. 63
may refer the scheme again to the Tribunal in so far as it relates to cases included in that class.
(2.) A licence scheme shall not, except with the leave of the Tribunal, be referred again to the Tribunal under the last preceding sub-section at a time earlier than-
(a) where the order concerned was made so as to be in force indefinitely or for a period exceeding fifteen months-the expiration of the period of twelve months commencing on the date on which the order was made; or
(b) where the order concerned was made so as to be in force for a period not exceeding fifteen months-the commencement of the period of three months ending on the date of expiration of the order.
(3.) The parties to a reference under this section are- (a) the licensor, organization or person referring the scheme; (b) if the reference is not made by the licensor operating the scheme-
that licensor; and (c) such other organizations or persons (ifany) as apply to the Tribunal
to be made parties to the reference and, in accordance with the provisions applicable in that behalf by virtue of sub-section (5.) of this section, are made parties to the reference.
(4.) Subject to the next succeeding sub-section, where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order in relation to the scheme as previously confirmed or varied, in so far as it relates to cases included in the class of cases to which the reference relates, whether by way of confirming, varying or further varying the scheme, as the Tribunal considers reasonable in the circumstances.
(5.) Sub-sections (3.), (4.) and (6.) to (10.), inclusive, of the last preceding section apply for the purposes of this section.
(6.) The preceding sub-sections of this section have effect in relation to orders made under this section in like manner as they have effect in relation to orders made under either of the last two preceding sections.
(7.) 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-
(a) 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
(b) in so far as the scheme relates to cases inc1uded in the class of cases to which the order applied while it was in force-after the expiration of the order.
157.-(1.) A person who claims, in a case to which a licence scheme applies, that the licensor operating the scheme has refused or failed to grant him a licence in accordance with the scheme, or to procure the grant to him of such a licence, may apply to the Tribunal under this section.
Applicarion• to Tribunal in relation to licences.
No. 63 Copyright 1968
(2.) A person who claims, in a case to which a licence scheme applies, that he requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case may apply to the Tribunal under this section.
(3.) A person who claims that he 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-
(a) 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
(b) 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.
(4.) 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-
(a) 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
(b) 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 under this section.
(5.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to an application under any of the preceding sub-sections of this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organization or person a party to the application.
(6.) Where an application is made to the Tribunal under sub-section (1.), (2.), (3.) or (4.) of this section, the Tribunal shall give to the applicant, to the licensor concerned and to every other party (if any) to the application an opportunity of presenting their cases and, if the Tribunal is satisfied that the claim of the applicant is well-founded, the Tribunal shall make an order specifying, in respect of the matters specified in the order-
(a) in the case of an application under sub-section (1.) of this section- the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant;
(b) in the case of an application under sub-section (2.) or sub-section (3.) of this section-the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or
1968 Copyright No. 63
(c) in the case ofan application under sub-section (4.) of this section- the charges, if any, and the conditions, that the Tribunal con- siders reasonable in the circumstances in relation to persons, or to persons included in classes of persons, specified in the order, being persons who were represented by the applicant or were parties to the application.
(7.) A reference in this section to a failure to grant a licence, or to procure the grant of a licence, shall be read as a reference to a failure to grant the licence, or to procure the grant of the licence, as the case may be, within a reasonable time after a request to do so.
158.-(1.) Where a licence scheme is in operation by virtue of this Effect or Part pending the making of an order on a reference under this Part and ~co~::S a person, in a case to which the scheme applies, does anything that, ~~~~
c. hi b 0 ld b onf o f ogh b ofthoTribunaJ.apart 1rom t s su -sectwn, wou e an 1 nngement o a copyn t ut would not be such an infringement if he were the holder of a licence granted in accordance with the scheme in so far as the scheme relates to cases to which the reference relates, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2.) For the purposes of the last preceding sub-section, the relevant requirements are-
(a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme, would be applicable to a licence in respect of the case concerned; and
(b) where, in accordance with the scheme, any cbarges are payabl. in respect of such a licence-that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
0
(3o) A person who does anything in relation to which sub-section (1.) of this section applies is liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme in so far as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
159.-(1.) Where an order made on a reference under this Part with respect to a licence scheme is for the time being in force and a person, in a case to which the scheme as confirmed or varied by the order applies, does anything that, apart from this sub-section, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to cases to which the order
Efreet of order of Tribunal in relation to licences.
No. 63 Copyright 1968
applies, that person shall, if he has complied with the relevant require- ments, be in the like position, in any proceedingc; for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2.) For the purposes of the last preceding sub-section, the relevant requirements are-
(a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme as confirmed or varied by the order, would be applicable to a licence in respect of the case concerned; and
(b) where, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence-that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
(3.) A person who does anything in relation to which sub-section (1.) of this section applies is liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
(4.) Where the Tribunal has made an order on an application under sub-section (1.), sub-section (2.) or sub-section (3.) of section 157 of this Act specifying charges, if any, and conditions, in relation to the applicant, in respect of the matters specified in the order, then if-
(a) the applicant has complied with the conditions specified in the order; and
(b) in a case where the order specifies any charges-he has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
the applicant shall be in the like position, in any proceedings for in- fringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(5.) Where the Tribunal has made an order on an application under sub-section (4.) of section 157 of this Act specifying charges (if any) and conditions, in relation to the persons, or to persons included in the classes of persons, specified in the order, in respect of matters specified in the order, then, if-
(a) any such person has complied with the conditions specified in the order; and
1968 Copyright No. 63
(b) in a case where the order specifies any charges-the person has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
that person shall be in the like position, in any proceedings for infringe- ment of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(6.) Where a person in relation to whom an order referred to in sub- section (4.) or sub-section (5.) of this section applies does, in relation to any of the matters specified in that order, anything that, apart from that sub-section, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence in respect of the doing of that thing granted by the owner of the copyright concerned on the conditions and subject to payment of the charges (if any) specified in the order, that person is liable to pay to the owner of the copyright the amount of any charges that would be payable if he were the holder of such a licence and the owner of the copyright may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner of the copyright.
160. Where an application or reference is made to the Tribunal under Interim orders. this Act, the Tribunal may make an interim order having effect until the final decision of the Tribunal on the application or reference.
161.-(1.) The Tribunal may, of its own motion or at the request of Refer~nccior a party, refer a question of law arising in proceedings before it for deter- l'a'!:stt~om::
. b h H" h C Court.mination y t e tg ourt. (2.) A question shall not be referred to the High Court by virtue of the
last preceding sub-section 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.
(3.) If the Tribunal, after giving its decision in any proceedings, refuses a request to refer a question to the High Court, the party by whom the request was made may, within such period as is prescribed, apply to the High Court for an order directing the Tribunal to refer the question to the High Court.
(4.) Where a reference is made to the High Court under this section with respect to any proceedings before the Tribunal, and where an application is made under the last preceding sub-section with respect to any such proceedings, every party to the proceedings before the Tribunal is entitled to appear and to be heard.
(5.) Where, after the Tribunal has given its decision in any proceedings, the Tribunal refers to the High Court under this section a question of law that arose in the course of the proceedings, and the High Court decides that the question was erroneously determined by the Tribunal-
Agreements or awards not affected.
Proceed~ to be in public except in special cuc:urnstances.
Procedure.
No. 63 Copyright 1968
(a) the Tribunal shall reconsider the matter in dispute and, if it considers it necessary to do so for the purpose of giving effect to the decision of the High Court, shall give to the parties to the proceedings a further opportunity of presenting their cases; and
(b) if it appears to the Tribunal to be appropriate, and in conformity with the decision of the High Court, to do so, the Tribunal shall make such order revoking or modifying any order previously made by it in the proceedings, or, in the case of proceedings under section 157 of this Act where the Tribunal refused to make an order, shall make such order under that section, as the Tribunal considers to be appropriate.
(6.) A reference of a question by the Tribunal to the High Court under this section shall be by way of stating a case for the opinion of the High Court.
(7.) Jurisdiction is conferred on the High Court to hear and determine a question of law referred to it under this section.
(8.) For the purposes of this section, a question oflaw does not include a question whether there is sufficient evidence to justify a finding of fact by the Tribunal.
(9.) This section does not apply in relation to an inquiry by the Tri- bunal under section 148 of this Act.
162. Nothing in this Part affects the operation of any agreement or of any award made by an arbitrator, whether the agreement or award was made before, or is made after, the commencement of this Act.
Division 4.-Procedure and Evidence.
163.-(1.) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.
(2.) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may-
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal (whether in public or in private) or ofmatters contained in documents produced to the Tribunal.
164. In proceedings before the Tribunal- (a) the procedure of the Tribunal is, subject to this Act and the
regulations, within the discretion of the Tribunal; (b) the Tribunal is not bound by the rules of evidence; and (c) the proceedings shall be conducted with as little formality, and
with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.
1968 Copyright No. 63
165. The Tribunal may correct, in any order of the Tribunal, a clerical mistake or an error arising from an accidental slip or omission.
166.-(1.) 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 applica- tions and the fees and expenses of witnesses in those proceedings.
(2.) The regulations may include provision- (a) for requiring notice of an intended inquiry by the Tribunal under
section 148 of this Act or an intended reference to the Tribunal under section 154, section 155 or section 156 of this Act to be advertised in accordance with the regulations;
(b) for requiring notice of an intended application to the High Court under sub-section (3.) of section 161 of this Act to be given to the Tribunal and to the other parties to the proceedings, and for limiting the time within which any such notice is to be given;
(c) for suspending, or authorizing or requiring the Tribunal to sus- pend, the operation of orders of the Tribunal in cases where, after giving its decision, the Tribunal refers a question of law to the High Court;
(d) for modifying, in relation to orders of the Tribunal the operation of which is suspended, the operation of any provisions of this Part as to the effect of orders made under this Part;
(e) for the publication of notices, or the doing of any other things, to ensure that persons affected by the suspension of an order of the Tribunal will be informed of its suspension; and
(f) for regulating or prescribing any other matters incidental to or consequential upon any request, application, order or decision under section 161 of this Act.
167.-(1.) The Tribunal may take evidence on oath or affirmation, and for that purpose a member may administer an oath or affirmation.
(2.) A member may summon a person to appear before the Tribunal to give evidence and to produce such documents and articles (if any) as are referred to in the summons.
168. The Tribunal may, if it thinks fit, permit a person appearing as a witness before the Tribunal to give evidence by tendering, and verifying by oath or affirmation, a written statement, which shall be filed with the Secretary to the Tribunal.
169. In proceedings before the Tribunal- (a) a party other than a body corporate or an unincorporated body of
persons may appear in person or be represented by an employee of the party approved by the Tribunal;
Mistakes or erron in orden of the Tribunal.
Regulations as to procedure.
Power to take evidonco on oath.
Evidence in form of written statement.
Representation.
Secrer&ry and other ataff.
Protection of tnembera, barristers and witnesses.
Disobedience to summons, &c.,
Contempt of Tribunal. Ac.
No. 63 Copyright 1968
(b) a party being a body corporate may be represented by a director or other officer, or by an employee, of the party approved by the Tribunal;
(c) a party being an unincorporated body of persons or a member of such a body may be represented by a member, or by an officer or employee, of the body approved by the Tribunal; and
(d) any party may be represented by a barrister or solicitor of the High Court or of the Supreme Court of a State or of a Territory of the Commonwealth.
Division 5.-Misce//aneous.
170.-(1.) There shall be a Secretary to the Tribunal, who shall be appointed by the Attorney-General.
(2.) The Secretary, and any other staff necessary to assist the Tribunal, shall be persons employed under, or whose services are made available in accordance with arrangements made under, the Public Service Act 1922-1968.
171.-(1.) A member has, in the performance of his duty as a member, the same protection and immunity as a Justice of the High Court.
(2.) A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3.) A person summoned to appear before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.
172.-(1.) A person who has been summoned to appear as a witness before the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to appear in obedience to the summons.
(2.) A person who has been summoned to produce a document or article to the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to produce the document or article.
(3.) A person who appears before the Tribunal shall not, without lawful excuse, refuse to be sworn or to make an affirmation, or to produce documents or articles, or to answer questions, that he is required by the Tribunal to produce or answer.
Penalty: One thousand dollars or imprisonment for three months.
173. A person shall not- (a) insult or disturb a member in the exercise of his powers or
functions as a member; (b) interrupt the proceedings of the Tribunal; (c) use insulting language towards a member; (d) create a disturbance or take part in creating or continuing a
disturbance in or near a place where the Tribunal is sitting;
1968 Copyright No. 63
(e) contravene or fail to comply with a direction of the Tribunal given under paragraph (b) of sub-section (2.) of section 163 of this Act; or
(f) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: One thousand dollars or imprisonment for three months.
174.-(1.) The Tribunal may order that the costs of any proceedings before it incurred by any party, or a part of those costs, shall be paid by any other party and may tax or settle the amount of the costs to be so paid, or specify the manner in which they are to be taxed.
(2.) Costs directed by the Tribunal to be paid to a party may be recovered by that party in any court of competent jurisdiction.
(3.) This section does not apply in relation to an inquiry by the Tri- bunal under section 148 of this Act.
Cost of proceedings.
175. Without prejudice to any other method available by law for the Prooror proof of orders of the Tribunal, a document purporting to be a copy of ~?:~~{. such an order, and to be certified by the Secretary to the Tribunal to be a true copy of the order, is, in any proceeding, evidence of the order.
PART VII.-THE CROWN. 176.-(1.) Where, apart from this section, copyright would not subsist
in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Commonwealth or a State, copy- right subsists in the work by virtue of this sub-section.
(2.) The Commonwealth or a State is, subject to this Part and to Part X., the owner of the copyright in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Com- monwealth or the State, as the case may be.
177. Subject to this Part and to Part X., the Commonwealth or a State is the owner of the copyright in an original literary, dramatic, musical or artistic work first published in Australia if first published by, or under the direction or control of, the Commonwealth or the State, as the case may be.
178.-(1.) Where, apart from this section, copyright would not subsist in a sound recording or cinematograph film made by, or under the direction or control of, the Commonwealth or a State, copyright subsists in the recording or film by virtue of this sub-section.
(2.) The Commonwealth or a State is, subject to this Part and to Part X., the owner of the copyright in a sound recording or cinematograph film made by, or under the direction or control of, the Commonwealth or the State, as the case may be.
179. The last three preceding sections have effect subject to any agreement made by, or on behalf of, the Commonwealth or a State with the author of the work or with the maker of the sound recording or
Crown copyright in original works made under direction of Crown.
Crown copyright in original works flrst published in Australia under direction of Crown.
Crown copyright in recordings and fllms made under direction of Crown.
Provisions relating to ownership of copyright mav be modified by agreement.
Duration of Crown copyright in or~llinal works.
Duration of Crown copyright in recordings and films.
Application of Parts Ill. and IV. to copyright subsisting by virtue of this Part.
Usc of copyright material for the services of rhe Crown.
No. 63 Copyright 1968
cinematograph film, as the case may be, by which it is agreed that the copyright in the work, recording or film is to vest in the author or maker, or in another person specified in the agreement.
180.-(1.) Copyright in a literary, dramatic or musical work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner-
(a) where the work is unpublished-continues to subsist so long as the work remains unpublished; and
(b) where the work is published-subsists, or, if copyright in the work subsisted immediately before its first publication, continues to subsist, until the expiration of fifty years after the expiration of the calendar year in which the work was first published.
(2.) Subject to the next succeeding sub-section, copyright in an artistic work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the work was made.
(3.) Copyright in an engraving or photograph of which the Common- wealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the engraving or photograph is first published.
181. Copyright in a sound recording or cinematograph film of which the Commonwealth or a State is the owner, or would, but for the operation of an agreement to which section 179 of this Act applies, be the owner, subsists until the expiration of fifty years after the expiration of the calendar year in which the recording or film is first published.
182.-(1.) Part III. (other than the provisions of that Part relating to the subsistence, duration or ownership of copyright) applies in relation to copyright subsisting by virtue of this Part in a literary, dramatic, musical or artistic work in like manner as it applies in relation to copyright subsisting in such a work by virtue of that Part.
(2.) Part IV. (other than the provisions of that Part relating to the subsistence, duration or ownership of copyright) applies in relation to copyright subsisting by virtue of this Part in a sound recording or cinemat- ograph film in like manner as it applies in relation to copyright subsisting in such a recording or film by virtue of that Part.
183.-(1.) 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 by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.
1968 Copyright No. 63
(2.) Where the Government of the Commonwealth has made an agreement or arrangement with the Government of some other country for the supply to that country of goods required for the defence of that country-
(a) the doing of any act in connexion with the supply of those goods in pursuance of the agreement or arrangement; and
(b) the sale to any person of such of those goods as are not required for the purposes of the agreement or arrangement,
shall, for the purposes of the last preceding sub-section, be each deemed to be for the services of the Commonwealth.
(3.) Authority may be given under sub-section (1.) of this section before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he has a licence granted by, or binding on, the owner of the copyright to do the acts.
(4.) Where an act comprised in a copyright has been done under sub-section (1.) of this section, the Commonwealth or State shall, as soon as possible, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so, inform the owner of the copy- right, as prescribed, of the doing of the act and shall furnish him with such information as to the doing of the act as be from time to time reasonably requires.
(5.) Where an act comprised in a copyright has been done under sub-section (1.) of this section, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Conunonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the High Court.
(6.) An agreement or licence (whether made or granted before or after the commencement of this Act) fixing the terms upon which a person other than the Commonwealth or a State may do acts comprised in a copyright is inoperative with respect to the doing of those acts, after the commencement of this Act, under sub-section (1.) of this section, unless the agreement or licence has been approved by the Attorney-General of the Commonwealth or the Attorney-General of the State.
(7.) Where an article is sold and the sale is not, by virtue of sub-section (1.) of this section, an infringement of a copyright, the purchaser of the article, and a person claiming through him, is entitled to deal with the article as if the Commonwealth or State were the owner of that copyright.
(8.) An act done under sub-section (1.) of this section does not constitute publication of a work or other subject-matter and shall not be taken into account in the application of any provision of this Act relating to the duration of any copyright.
(9.) Where an exclusive licence is in force in relation to any copyright, the preceding sub-sections of this section have effect as if any reference in those sub-sections to the owner of the copyright were a reference to the exclusive licensee.
~n~~~OD countries other than Australia.
No. 63 Copyright 1968
(10.) Jurisdiction is conferred on the High Court to the extent necessary for the purposes of this section.
PART VIII.-EXTENSION OR RESTRICTION OF OPERATION OF ACT.
184.-(1.) Subject to this section, the regulations may make provision applying any of the provisions of this Act specified in the regulations, in relation to a country (other than Australia) so specified, in any one or more of the following ways:-
(a) so that the provisions apply in relation to literary, dramatic, musical or artistic works or editions first published, or sound recordings or cinematograph films made or first published, in that country in like manner as those provisions apply in relation to literary, dramatic, musical or artistic works or editions first published, or sound recordings or cinematograph films made or first published, in Australia;
(b) so that the provisions apply in relation to artistic works that are buildings situated in that country or are attached to, or form part of, buildings situated in that country in like manner as those provisions apply in relation to artistic works that are buildings situated in Australia or are attached to, or form part of, buildings situated in Australia;
(c) so that the provisions apply in relation to persons who, at a material time, are citizens or nationals of that country in like manner as those provisions apply in relation to persons who, at such a time, are Australian citizens;
(d) so that the provisions apply in relation to persons who, at a material time, are resident in that country in like manner as those provisions apply in relation to persons who, at such a time, are resident in Australia;
(e) so that the provisions apply in relation to bodies incorporated under the law of that country in like manner as those provisions apply in relation to bodies incorporated under a Jaw nf the Commonwealth or of a State;
(/) so that the provisions apply in relation to television broadcasts and sound broadcasts made from places in that country by persons entitled under the law of that country to make such broadcasts in like manner as those provisions apply in relation to television broadcasts and sound broadcasts made from places in Australia by the Australian Broadcasting Commission, by a holder of a licence for a television station, by a holder of a licence for a broadcasting station or by a person prescribed for the purposes of sub-paragraph (iii) of paragraph (a) or sub-paragraph (iii) of naragraph (b) of section 91 of this Act.
1968 Copyright No. 63
(2.) Regulations applying a provisiOn of this Act in relation to a country other than Australia in accordance with the last preceding sub- section-
(a) may apply the provision without exception or modification or subject to such exceptions or modifications as are specified in the regulations; and
(b) may apply the provision either generally or in relation to such classes of works or other subject-matter, or other classes of cases, as are specified in the regulations.
(3.) Regulations applying any of the provisions of this Act in relation to a country, not being a country that is a party to a Convention relating to copyright to which Australia is also a party, shall not be made unless the Governor-General is satisfied that, in respect of the class of works or other subject-matter to which those provisions relate, provision has been or will be made under the law of that country by virtue of which adequate protection is or will be given to owners of copyright under this Act.
(4.) Where-
(a) the identity of the author of an unpublished work is unknown but there are reasonable grounds for believing that the author of the work was, at the time when, or for a substantial part of the period during which, the work was made, a citizen or national of a country other than Australia;
(b) under the law of that country, a person is authorized to represent the author, or to protect and enforce the rights of the author, in relation to that work; and
(c) provision is made by the regulations applying any of the provisions of this Act in relation to works made by citizens or nationals of that country,
that person shall, for the purposes of those provisions as so applying, be treated as if he were the author of the work.
185.-(1.) If it appears to the Governor-General that the law of a country does not give adequate protection to Australian works, or does not give adequate protection in relation to a class or classes of such works (whether the lack of protection relates to the nature of the work or the nationality, citizenship or country of residence of its author, or all of those matters), the regulations may make provision in relation to that country in accordance with the next succeeding sub-section.
(2.) Regulations made for the purposes of this section may provide, either generally or in such classes of cases as are specified in the regulations, that copyright under this Act does not subsist in works first published after a date specified in the regulations (which may be a date before the
Denial of copyright to .:itizens of countries not giving adequato pro!.cction to Australian liVorks.
Application ofActtoh International organizatloos.
No. 63 Copyright 1968
commencement of the regulations or before the commencement of this Act) if, at the time of the first publication of those works, the authors of the works were or are-
(a) citizens or nationals of a country specified in the regulations, not being at that time persons resident in Australia; or
(b) in the case of works being sound recordings or cinematograph films-bodies incorporated under the law of a country specified in the regulations.
(3.) In making regulations for the purposes of this section, the Governor-General shall have regard to the nature and extent of the lack of protection for Australian works by reason of which the regulations are made.
(4·.) In this section-
" Australian work " means a work the author of which was, at the time when the work was made, a qualified person for the purposes of the relevant provision of this Act;
" author ", in relation to a sound recording or a cinematograph film, means the maker of the recording or film;
" the relevant provision of this Act " means-
(a) in relation to a literary, dramatic, musical or artistic work- section 32 of this Act; and
(b) in relation to a sound recording or a cinematograph film- Part IV.;
"work" means a literary, dramatic, musical or artistic work, a sound recording or a cinematograph film.
186.-(1.) Where it appears to the Governor-General that it is desir- able that this Act should apply in relation to an organization-
(a) of which two or more countries, or the Governments of two or more countries, are members; or
(b) that is constituted by persons representing two or more countries, or representing the Governments of two or more countries,
the regulations may declare that organization to be an international organization to which this Act applies.
(2.) An international organization to which this Act applies that other- wise does not have, or at some material time otherwise did not have, the legal capacities of a body corporate has, and shall be deemed at all material times to have had, the legal capacities of a body corporate for the purpose of holding, dealing with and enforcing copyright and for the purposes of all legal proceedings relating to copyright.
1968 Copyright No. 63
187.-(1.) Where an original literary, dramatic, musical or artistic work is made by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copy- right would not, apart from this sub-section, subsist in the work-
(a) copyright subsists in the work;
(b) that copyright subsists so long as the work remains unpublished; and
(c) the organization is, subject to Part X., the owner of that copy- right.
(2.) Where an original literary, dramatic, musical or artistic work is first published by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copy- right would not, apart from this sub-section, subsist in the work immedi- ately after the first publication of the work-
(a) copyright subsists in the work, or, if copyright in the work subsisted immediately before its first publication, continues to subsist in the work;
(b) that copyright subsists until the expiration of fifty years after the expiration of the calendar year in which the work was first published; and
(c) the organization is, subject to Part X., the owner of that copy- right.
(3.) Part III., other than the provisions of that Part relating to the subsistence, duration or ownership of copyright, applies in relation to copyright subsisting by virtue of this section in like manner as it applies in relation to copyright subsisting by virtue of that Part.
188.-(1.) Where a sound recording or a cinematograph film is made by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copyright would not, apart from this sub-section, subsist in the recording or film-
(a) copyright subsists in the recording or film;
(b) that copyright subsists so long as the recording or film remains unpublished; and
(c) the organization is, subject to Part X., the owner of that copy- right.
(2.) Where a sound recording or a cinematograph film is first published by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copyright would not,
Original works madeorflm published by mternational oraanizations.
Subject-matter, other than original works, made or first pubUshcd by International orpnizations.
Definition.
Duty not to attribute falsely the authorship"of a work.
No. 63 Copyright 1968
apart from this sub-section, subsist in the recording or film immediately after the first publication of the recording or film-
(a) copyright subsists in the recording or film, or, if copyright in the recording or film subsisted immediately before its first publication, continues to subsist in the recording or film;
(b) that copyright subsists until the expiration of fifty years after the expiration of the calendar year in which the recording or film was first published; and
(c) the organization is, subject to Part X., the owner of that copy- right.
(3.) Where an edition of a literary, dramatic, musical or artistic work or of two or more literary, dramatic, musical or artistic works, other than an edition that reproduces a previous edition of the same work or works, is published by, or under the direction or control of, an international organization to which this Act applies in such circumstances that copyright would not, apart from this sub-section, subsist in the edition immediately after the first publication of the edition-
(a) copyright subsists in the edition;
(b) that copyright subsists until the expiration of twenty-five years after the expiration of the calendar year in which the edition was first published; and
(c) the organization is, subject to Part X., the owner of that copy- right.
(4.) Part IV., other than the provisions of that Part relating to the subsistence, duration or ownership of copyright, applies in relation to copyright subsisting by virtue of this section in like manner as it applies in relation to copyright subsisting by virtue of that Part.
PART IX.-FALSE ATTRIBUTION OF AUTHORSHIP.
189. In this Part, " name " includes initials or a monogram.
190.-(1.) A person (in this sub-section referred to as " the offender ") is, by virtue of this section, under a duty to the author of a work not to-
(a) insert or affix another person's name in or on the work, or in or on a reproduction of the work, in such a way as to imply that the other person is the author of the work;
(b) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or by way of trade exhibit in public, the work with another person's name so inserted or affixed, if the offender Irnows that the other person is not the author of the work;
(c) do any of the acts mentioned in the last preceding paragraph in relation to, or distribute, reproductions of the work, being repro- ductions in or on which another person's name has been so
1968 Copyright No. 63
inserted or affixed, if the offender knows that the other person is not the author of the work; or
(d) perform in public or broadcast the work as being a work of which another person is the author, if the offender knows that the other person is not the author of the work.
(2.) The last preceding sub-section applies where, contrary to the fact, a work is represented as being an adaptation of the work of another person in like manner as it applies where a work is represented as being the work of another person.
(3.) After the death of the author of a work, a person is, by virtue of this section, under a duty to the legal personal representative of the author not to do in relation to, or to a reproduction of, the work or an adaptation of the work any act that, but for the death of the author, the person would, by reason of either of the last two preceding sub-sections, have been under a duty to the author not to do.
(4.) In this section," work" means a work in which copyright subsists.
191. Where a work in which copyright subsists has been altered by a person other than the author of the work, a person is, by virtue of this section, under a duty to the author of the work not to-
(a) publish, sell or let for hire, or by way of trade offer or expose for sale or hire, the work as so altered, as being the unaltered work of the author; or
(b) publish, sell or let for hire, or by way of trade offer or expose for sale or hire, a reproduction of the work as so altered, as being a reproduction of the unaltered work of the author,
if, to his knowledge, it is not the unaltered work or a reproduction of the unaltered work, as the case may be, of the author.
192. A person is, by virtue of this section, under a duty to the author of an artistic work in which copyright subsists not to-
(a) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or by way of trade exhibit in public, a reproduction of the work, as being a reproduction made by the author of the work; or
(b) distribute reproductions of the work as being reproductions made by the author of the work,
where the reproduction was, or the reproductions were, to his knowledge, not made by the author.
193. The doing of an act by a person is not a breach of a duty owed by that person to another person by virtue of this Part if the act was done outside Australia or was done with the permission, whether express or implied, of that other person.
Duty not to attribute falsely the authorship of altered work.
Duty not to attribute falsely the authorshil' of reproducuon of artistic work.
Breach of duty not committed if act done outside Australia or done with pennission.
Action for breach of cl&ny.
No. 63 Copyright 1968
194.-(1.) Where a person commits a breach of a duty owed by him to another person by virtue of this Part, the breach is not an offence against this Part but the other person may bring an action in respect of the breach.
(2.) Subject to section 203 of this Act, the relief that a court may grant in an action under the last preceding sub-section includes an injunction (subject to such terms, if any, as the court thinks fit) and damages.
(3.) Where, in respect of an act done in relation to, or to a repro- duction of, a work or an adaptation of a work after the death of the author of the work, damages are recovered under this section by the legal personal representative of the author, those damages devolve as if they formed part of the estate of the author and as if the right of action in respect of the doing of that act had subsisted, and had been vested in the author, immediately before his death.
Savina or 195.-(1.) Subject to this section, this Part does not affect any right of ~~e~~'fes. action or other remedy, whether civil or criminal, in proceedings instituted
otherwise than by virtue of this Part.
Asalgnment.a and licences in~of eopyriaht.
(2.) Any damages recovered in proceedings instituted by virtue of this Part shall be taken into account in assessing damages in proceedings instituted otherwise than by virtue of this Part and arising out of the same operation or transaction.
(3.) Any damages recovered in proceedings instituted otherwise than by virtue of this Part shall be taken into account in assessing damages in proceedings instituted by virtue of this Part and arising out of the same operation or transaction.
PART X-MISCELLANEOUS.
196.-(1.) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law.
(2.) An assignment of copyright 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 copyright has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in the copyright but falls within a class of acts that is so specified);
(b) so as to apply to a place in or part of Australia; (c) so as to apply to part of the period for which the copyright is to
subsist.
(3.) An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalfof the assignor.
1968 Copyright No. 63
(4.) A licence granted in respect of a copyright by the owner of the copyright binds every successor in title to the interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor.
197.-(1.) Where, by an agreement made in relation to a future copy- right and signed by or on behalf of the person who would, apart from this section, be the owner of the copyright on its coming into existence, that person purports to assign the future copyright (wholly or partially) to another person (in this sub-section referred to as " the assignee "), then if, on the coming into existence of the copyright, the assignee or a person claiming under him would, apart from this sub-section, be entitled as against all other persons to have the copyright vested in him (wholly or partially, as the case may be), the copyright, on its coming into exist- ence, vests in the assignee or his successor in title by force of this sub- section.
(2.) Where, at the time when a copyright comes into existence, the person who, if he were then living, would be entitled to the copyright is dead, the copyright devolves as if it had subsisted immediately before his death and he had then been the owner of the copyright.
(3.) A licence granted in respect of a future copyright by the pro- spective owner of the copyright binds every successor in title to the pro- spective interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor.
198. Where under a bequest, whether specific or general, a person is entitled, beneficially or otherwise, to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless a contrary in- tention appears in the testator's will, be read as including the copyright in the work in so far as the testator was the owner of the copyright im- mediately before his death.
199.-(1.) Where the inclusion in a television broadcast or sound broadcast of a reading or recitation of an extract from a published literary or dramatic work, or from an adaptation of such a work, does not con- stitute an infringement of the copyright in the work, a person who, by the reception of the broadcast, causes the work or adaptation to be performed in public does not, by doing so, infringe the copyright in the work.
(2.) A person who, by the reception of a television broadcast or sound broadcast, causes a sound recording to be heard in public does not, by doing so, infringe the copyright, if any, in that recording under Part IV.
(3.) A person who, by the reception of an authorized television broadcast, causes a cinematograph film to be seen or heard in public shall be treated, in any proceedings for infringement of the copyright, if any, in the film under Part IV., as if he had been the holder of a licence granted by the owner of that copyright to cause the film to be seen or heard in public by the reception of the broadcast.
Proapec:tlvo ownership of copyriaht.
Copyright to pass under will with unpublished work.
Rec:eplioo or broadcaata.
Use of works and broadcasts for educational purposes.
No. 63 Copyright 1968
(4.) A person who, by the reception of an authorized television broadcast or sound broadcast, causes a literary, dramatic or musical work or an adaptation of such a work, an artistic work or a cinemato- graph film to be transmitted to subscribers to a diffusion service shall be treated, in any proceedings for infringement of the copyright, if any, in the work or film, as if he had been the holder of a licence granted by the owner of that copyright to cause the work, adaptation or film to be transmitted by him to subscribers to that service by the reception of the broadcast.
(5.) If, in the circumstances mentioned in either of the last two pre- ceding sub-sections, the person causing the cinematograph film to be seen or heard, or the work, adaptation or cinematograph film to be trans- mitted, as the case may be, infringed the copyright concerned by reason that the broadcast was not an authorized broadcast, proceedings shall not be brought against that person under this Act in respect of his infringe- ment of that copyright but the infringement shall be taken into account in assessing damages in any proceedings against the maker of the broadcast
· in respect of that copyright, in so far as that copyright was infringed by the making of the broadcast.
(6.) For the purposes of this section, a broadcast, in relation to. a work, an adaptation of a work or a cinematograph film, is an authorized broadcast if, but only if, it is made by, or with the licence of, the owner of the copyright in the work or film.
(7.) A reference in this section to a broadcast shall- (a) in the case of a television broadcast-be read as a reference to
such a broadcast made by the Australian Broadcasting Com- mission, by the holder of a licence for a television station or by a person prescribed for the purposes of sub-paragraph (iii) of paragraph (a) of section 91 of this Act; and
(b) in the case of a sound broadcast-be read as a reference to such a broadcast made by the Australian Broadcasting Commission, by the holder of a licence for a broadcasting station or by a person prescribed for the purposes of sub-paragraph (iii) of paragraph (b) of section 91 of this Act.
200.-(1.) The copyright in a literary, dramatic, musical or artistic work is not infringed by reason only that the work is reproduced or, in the case of a literary, dramatic or musical work, an adaptation of the work is made or reproduced-
(a) in the course of educational instruction, where the work is repro- duced or the adaptation is made or reproduced by a teacher or student otherwise than by the use of an appliance adapted for the production of multiple copies; or
(b) as part of the questions to be answered in an examination, or in an answer to such a question.
1968 Copyright No. 63
(2.) The making of a record of a sound broadcast or of a television broadcast, being a broadcast that was intended to be used for educational purposes, does not constitute an infringement of copyright in a work or -sound recording included in the broadcast, or an infringement of copyright in the broadcast, if-
(a) the record is made by, or on behalf of, the person or authority in charge of a place of education that is not conducted for profit; and
(b) the record is not used except in the course of instruction at that place.
(3.) For the purposes of sections 38 and 103 of this Act, in determining whether the making of an article constituted an infringement of copyright, the last two preceding sub-sections shall be disregarded.
(4.) For the purposes of any provision of this Act relating to imported articles, in determining whether the making of an article made outside Australia would, if the article had been made in Australia by the importer -of the article, have constituted an infringement of copyright, sub-sections (1.) and (2.) of this section shall be disregarded.
201.-(1.) The publisher of any library material that is published in Australia and in which copyright subsists under this Act shall, within -one month after the publication, cause a copy of the material to be .delivered at his own expense to the National Library.
Penalty: One hundred dollars. (2.) The copy of any library material delivered to the National Library
in accordance with this section shall be a copy of the whole material (including any illustrations), be finished and coloured, and bound, sewed, -stitched or otherwise fastened together, in the same manner as the best -copies of that material are published and be on the best paper on which that material is printed.
(3.) When any library material is delivered to the National Library in .accordance with this section, the National Librarian shall cause a written receipt for the material to be given to the publisher of the material.
(4.) This section is not intended to exclude or limit the operation of any law of a State or Territory of the Commonwealth (whether made before or after the commencement of this Act) that makes provision for or in relation to the delivery to a specified public or other library in or of the State or Territory of copies of library material published in the State or Territory.
(5.) In this section- " illustrations "includes drawings, engravings and photographs; "library material" means a book, periodical, newspaper, pamphlet,
sheet of letter-press, sheet of music, map, plan, chart or table, being a literary, dramatic, musical or artistic work or an edition of such a work, but does not include a second or later edition of any material unless that edition contains additions or alterations in the letter-press or in the illustrations.
Delivery of library material to the National Library.
Groundlea threats of Jopl prOceedhiP.
No. 63 Copyright 1968
202.-(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 copyright, then, whether the person making the threats is or is not the owner of the copyright 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 threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he 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, if done, would constitute, an infringement of copyright.
(2.) The mere notification of the existence of a copyright 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 of the Commonwealth, liable to an action under this section in respect of an act done by him in his 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 he would be entitled in a separate action in respect of an infringement by the plaintiff of the copyright to which the threats relate and, in any such case, the provisions of this Act with respect to an action for infringement of a copyright are, mutatis mutandis, applicable in relation to the action.
(5.) A reference in this section to an action in respect ofan infringement of copyright shall be read as including a reference to an action in respect of the conversion or detention of an infringing copy or of a plate used or intended to be used for making infringing copies.
Limitation on 203. Nothing in this Act authorizes a State court or a court of a power of courta to arant relief in Territory to grant relief by way of injunction or account of profits if that proceedinp under this Act. court would not, apart from this Act, have power to grant such relief.
Definitiona.
PART XI.-TRANSITIONAL. Division I.-Preliminary.
204.-(1.) In this Part, the expression "photograph" has, in lieu of the meaning given to that expression by section 10 of this Act, the meaning given by the next succeeding sub-section.
(2.) For the purposes of any provision of this Part that provides that an expression is to have the meaning given to that expression by this section or that refers to an expression as defined by this section-
" collective work " means- (a) an encyclopaedia, dictionary, year book or similar work;
1968 Copyright No. 63
(b) a newspaper, review, magazine or similar periodical; or (c) a work written in distinct parts by different authors, or in
which works or parts of works of different authors are incorporated;
" deliver ", in relation to a lecture, includes deliver by means of a mechanical instrument;
" dramatic work " includes a piece for recitation, a choreographic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, and a cinematograph production where the arrangement, the acting form or the combination of incidents represented gives the work an original character;
" lecture " includes an address, speech and sermon; "literary work" includes a map, chart, plan, table and compilation; "perform", in relation to a dramatic work as defined by this section
or a musical work, means make an acoustic representation of the work or a visual representation of a dramatic action in the work, and includes make such a representation by means of a mechanical instrument;
" photograph " includes photo-lithograph and a work produced by a process similar to photography.
205. For the purposes of any reference in this Part to works, sound recordings or cinematograph films made before the commencement of this Act, a work, sound recording or cinematograph film the making of which extended over a period shall be deemed not to have been made before the commencement of this Act unless the making of it was completed before the commencement of this Act.
References to makina of works, recordinl!ll and films.
206.-(1.) Without prejudice to the operation of the succeeding References in other laws or
sections of this Part- instruments to (a) a reference in any other law of the Commonwealth or in any
contract, agreement or other instrument to a provision of the Copyright Act, 1911 shall be read as a reference, or as including a reference, to the corresponding provision of this Act;
(b) a reference in any other law of the Commonwealth or in any contract, agreement or other instrument to copyright or to works in which copyright subsists shall, if apart from this Act it would be read as a reference to copyright under the Copyright Act, 1911 or to works in which copyright subsisted under that Act, be read as a reference, or as including a reference, to copyright under this Act or to works or any other subject-matter in which copyright subsists under this Act, as the case may be; and
(c) a reference in any other law of the Commonwealth or in any contract, agreement or other instrument to the grant of an interest in copyright by licence shall be read, in relation to copyright
copyright.
No. 63 Copyright 1968
under this Act, as a reference to the grant of a licence in respect of that copyright.
(2.) This section bas effect unless the contrary intention appears in the other law of the Commonwealth or in the contract, agreement or other instrument, as the case may be.
(3.) In this section, "law of the Commonwealth" means- (a) an Act; (b) an instrument (including regulations or rules) having effect by
virtue of an Act; (c) an Ordinance of a Territory of the Commonwealth and any other
law in force in a Territory of the Commonwealth; (d) an instrument (including regulations or rules) having effect by
virtue of such an Ordinance or law; and (e) an instrument having effect by virtue of any such regulations or
rules as are mentioned in paragraph (b) or paragraph (d) of this sub-section.
ApplicatiOll. 207. Except in so far as this Part otherwise expressly provides, this Act applies in relation to things existing at the commencement of this Act in like manner as it applies in relation to things coming into existence after the commencement of this Act.
Authorship 208. A reference in this Act to the author of a photograph shall, in of photographs. relation to a photograph taken before the commencement of this Act, be
read as a reference to the person who, at the time when the photograph was taken, was the owner of the material on which the photograph was taken.
Publication. 209.-(1.) For the purposes of the application of sub-section (5.) of section 29 of this Act in determining whether a publication that took place before the commencement of this Act was the first publication, the reference in that sub-section to a period of not more than thirty days shall be read as a reference to a period of not more than fourteen days.
(2.) For the purposes of the application of sub-section (7.) of section 29 of this Act in relation to an act done before the commencement of this Act-
(a) a reference in that sub-section to copyright includes a reference to copyright under the Copyright Act 1905 and to copyright under the Copyright Act, 1911 ; and
(b) a reference in that sub-section to the licence of the owner of copyright shall-
(i) in relation to copyright under the Copyright Act 1905-be read as a reference to the privity of the owner; and
(ii) in relation to copyright under the Copyright Act, 1911- be read as a reference to the consent or acquiescence of the owner.
1968 Copyright No. 63
Division 2.-0rigina/ Works.
210.-(1.) Notwithstanding anything in Part III., copyright does not Exp¥ subsist by virtue of that Part in a work first published before the com- ::~not mencement of this Act unless copyright subsisted in the work under the Copyright Act, 1911 immediately before the commencement of this Act.
(2.) The last preceding sub-section does not apply in relation to a work to which Division 5 of this Part applies.
211.-(1.) Sub-section (1.) of section 32 of this Act applies to works !)rl~ wow made before the commencement of this Act as if each reference in that :;:r:~, sub-section to a qualified person included a reference to a British subject subsists. and to a person domiciled in any part of the Queen's dominions to which the Copyright Act, 1911 extended.
(2.) Sub-section (2.) of section 32 of this Act applies to works first published before the commencement of this Act as if paragraphs (d) and (e) of that sub-section were omitted.
(3.) Sub-section (2.) of section 32 of this Act applies to works that are first published after the commencement of this Act and the author of which died before the commencement of the Nationality and Citizenship Act 1948 as if the reference in paragraph (e) of that sub-section to a qualified person included a reference to a person who would have been an Australian citizen if that Act had been in force immediately before his death.
(4.) Sub-section (3.) of section 32 of this Act does not apply to or in relation to a building that was constructed before the commencement of this Act.
(~.) This section has effect subject to the last preceding section.
212. Sub-section (6.) of section 33 of this Act does not apply in relation to a photograph taken before the commencement of this Act but, subject to sub-section (2.) of section 32 of this Act as affected by the last preceding section, copyright subsisting in such a photograph by virtue of Part III. continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the photograph was taken.
Duration of copyright in photographs.
213.-(1.) Sub-sections (4.) and (6.) of section 35 of this Act do not owne~shipof I • } . k d b t" h f h" A copynght.app y m re atiOn to wor s rna e e1ore t e commencement o t ts ct. (2.) Sub-section (5.) of section 35 of this Act does not apply in relation
to a work that was or is made in pursuance of an agreement made before the commencement of this Act.
(3.) Where a work is excluded from the application of sub-section (4.), sub-section (5.) or sub-section (6.) of section 35 of this Act by reason of either of the last two preceding sub-sections, sub-section (2.) of section 35 of this Act has effect in relation to the work subject to the succeeding sub- sections of this section.
lnfr~Paemcot by importation. sale and other dealings.
Recording of musical worka.
No. 63 Copyright 1968
(4.) The operation of any of the next three succeeding sub-sections in relation to a particular work may be excluded or modified by agreement.
(5.) Where, in the case of a work being a photograph, portrait or engraving-
(a) a person made, for valuable consideration, an agreement with another person for the taking of the photograph, the painting or drawing of the portrait or the making of the engraving by the other person; and
(b) the work was made in pursuance of the agreement, the first-mentioned person is the owner of any copyright subsisting in the work by virtue of Part III.
(6.) Where the work was made by the author in pursuance of tho terms of his employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of Part III.
(7.) Where the work is a literary, dramatic or artistic work that was made by the author in pursuance of the terms of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship and was so made for the purpose of publication in a newspaper, magazine or similar periodical, the author is entitled to restrain the publication of the work otherwise than in a newspaper, magazine or similar periodical.
(8.) In the last three preceding sub-sections, expressions that are defined by section 204 of this Act have the meanings respectively given to those expressions by that section and do not have the meanings, if any, respectively given to those expressions by Part II.
214. For the purposes of sections 37 and 38 of this Act, the fact that, to the knowledge of a person, the making of an article constituted, or, in the case of an imported article, would, if the article had been made in Australia by the importer of the article, have constituted, an infringement of copyright under the Copyright Act, 1911 has the like effect as if, to the knowledge of that person, the making of the article had constituted, or would, if the article had been made in Australia by the importer, have constituted, as the case may be, an infringement of copyright under this Act.
215.-(1.) Where a record of a work has, before the commencement of this Act, been made by, or with the consent or acquiescence of, the owner of the copyright in the work under the Copyright Act, 1911, Division 6 of Part III. has the like effect as if the record had been made in Aus- tralia for the purpose of retail sale and had been so made by, or with the licence of, the person who is entitled, by virtue of this Act, to authorize the making in Australia of records of the work.
(2.) Notwithstanding sub-section (1.) of section 5 of this Act, sub- sections (2) to (7), inclusive, of section 19 of the Copyright Act, 1911 as in force immediately before the commencement of this Act continue to apply in relation to records made before the commencement of this Act
1968 Copyright No. 63
and, 5ubject to those subsections, any regulations made for the purposes of those subsections and in force immediately before the commencement of this Act continue to apply in relation to those records.
216. Section 68 of this Act does not apply in relation to a painting, J>u!llication or drawing, engraving, photograph or cinematograph film made before the artiatic workl. date of commencement of this Act, but the copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photo- graph or cinematograph film made before that date if, by virtue of section 65 or section 66 of this Act, the making of the painting, drawing, engraving, photograph or film would not have constituted an infringement of the copyright under this Act if this Act had been in operation at the time when it was made.
217. The reference in sub-section (2.) of section 73 of this Act to construction of a building by, or with the licence of, the owner of the copyright in architectural drawings or plans shall be read as including a reference to construction by, or with the licence of, the person who, at the time of the construction, was the owner of the copyright in the drawings or plans under the law relating to copyright that was in force at that time in the State or Territory of the Commonwealth in which the building was constructed.
218.-(1.) Division 8 of Part Ill. does not apply to artistic works made before the commencement of this Act.
(2.) Copyright does not subsist by virtue of this Act in an artistic work made before the commencement of this Act which, at the time when the work was made, constituted a design capable of being registered under the Designs Act 1906, or under that Act as amended and in force at that time, and was used, or intended to be used, as a model or pattern to be multiplied by any industrial process.
Reconstruction of buildings,
Industrial designs.
219.-(1.) The copyright in a literary, dramatic, musical or artistic Reproduction h h b bli h r h f h' A . of work uponwork t at as een pu s ed betore t e commencement o t IS ct IS payment or
not infringed by the reproduction of the work for sale if- royalties.
(a) the reproduction takes place at a time after the expiration of twenty-five years, or, in the case of a work in which copyright subsisted at the commencement of the Copyright Act, 1911, after the expiration of thirty years, after the date of the death of the author; and
(b) the person reproducing the work establishes- (i) that, before the commencement of this Act, he gave the
notice in writing of his intention to reproduce the work that was prescribed for the purposes of the proviso to section 3 of the Copyright Act, 1911; and
(ii) that he has paid, in the manner that was prescribed for the purposes of that proviso, or is prescribed for the purposes of this section, as the case may be, to, or for the benefit of, the owner of the copyright royalties in respect
No. 63 Copyright 1968
of all copies of the work sold by him calculated at the rate of ten per centum of the price at which he published the reproduction.
(2.) The regulations may make provision for or in relation to the manner in which, and the times at which, payment of royalties is to be made for the purposes of sub-paragraph (ii) of paragraph (b) of the last preceding sub-section and may include provision requiring payment in advance, or otherwise securing the payment of the royalties.
(3.) Regulations 38 to 42, inclusive, of the Copyright Regulations as in force under the Copyright Act 1912-1966 immediately before the com- mencement of this Act continue in force for the purposes of this section as if they had been made under this Act, but may be amended or repealed by regulations made under this Act.
(4.) A reference in paragraph (a) of sub-section (1.) of this section to a time after the expiration of a specified number of years from the date of the death of the author of a work shall, in the case of a work of joint authorship, be read as a reference to a time after-
(a) the expiration of the same number of years from the date of the death of the author who died first; or
(b) the date of the death of the author who died last,
whichever is the later.
(5.) Where a literary, dramatic or musical work, or an engraving, in which copyright subsisted at the date of the death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who died last-
(a) had not been published; (b) in the case of a dramatic or musical work-had not been per-
formed in public; and (c) in the case of a lecture-had not been delivered in public,
before that date, sub-section (I.) of this section applies as if the author had died on the date on which-
(d) in the case of a literary work (other than a lecture) or an en- graving-the work was first published;
(e) in the case of a dramatic or musical work-the work was first published or first performed in public, whichever first happened; or
(f) in the case of a lecture-the lecture was first published or first delivered in public, whichever first happened.
(6.) In this section, expressions that are defined by section 204 of this Act have the meanings respectively given to those expressions by that section and do not have the meanings, if any, respectively given to those expressions by Part II.
1968 Copyright No. 63
Division 3.-Subject-Matter other than Works.
220.-(1.) Sub-section (1.) of section 89 of this Act applies in relation to sound recordings made before the commencement of this Act as if the reference in that sub-section to a qualified person included a reference to a British subject and to a person domiciled in any part of the Queen's dominions to which the Copyright Act, 1911 extended.
(2.) Sub-section (2.) of section 89 of this Act does not apply in relation to a sound recording made before the commencement of this Act.
(3.) Section 93 of this Act does not apply in relation to a sound recording made before the commencement of this Act but copyright subsisting in such a recording by virtue of sub-section (1.) or sub-section (3.) of section 89 of this Act continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the recording was made.
221. Copyright does not subsist by virtue of section 90 of this Act in a cinematograph film made before the commencement of this Act.
222.-(1.) Where a cinematograph film made before the commence- ment of this Act was an original dramatic work as defined by section 204 of this Act, this Act (other than this sub-section) has effect in relation to the film as if the film had been an original dramatic work as defined by section 10 of this Act and the person who was the author of the work for the purposes of the Copyright Act, 1911 shall be deemed to be the author of the work for the purposes of this Act as having effect by virtue of this sub-section.
(2.) This Act has effect in relation to photographs forming part of a cinematograph film made before the commencement of this Act in like manner as it has effect in relation to photographs not forming part of a cinematograph film.
223. Copyright does not subsist by virtue of section 91 of this Act in- (a) a television broadcast or a sound broadcast made before the
commencement of this Act; or (b) a television broadcast or a sound broadcast made after the com-
mencement of this Act that is a repetition of a television broad- cast or a sound broadcast made before the commencement of this Act.
224. Copyright does not subsist by virtue of section 92 of this Act in a published edition of a work or works where the first publication of the edition took place before the commencement of this Act.
225. For the purposes of sections 102 and 103 of this Act, the fact that, to the knowledge of a person, the making of an article constituted, or, in the case of an imported article, would, if the article had been made in Australia by the importer of the article, have constituted, an infringement of copyright under the Copyright Act, 1911 has the like effect as if, to the
Sound rccordiop.
Cinematograph 61ros.
A.ppUcation of Act to dramatic works and photographs comprised In cinematograph ftlms.
Television broadcasts and sound broadcast..
Published editions or worka.
Infringement by importation, "'le and other dcaliop.
Actions for infringement.
Jnfrins!n11 copies.
Actions where COJ11rigbt snbjeet to exclll5lve licence.
Otrences and summary proceedings.
Limitation of actions.
Restriction of importation of printed copies ofworb.
References and apP.lications to Tnbunal in relation to licence schemes.
No. 63 Copyright 1968
knowledge of that person, the making of the article had constituted, or would, if the article had been made in Australia by the importer, have constituted, as the case may be, an infringement of copyright under this Act.
Division 4.-Misce//aneous.
226. Section 115 of this Act does not apply to an infringement of copyright under the Copyright Act, 1911 and does not affect any proceed- ings under that Act, whether instituted before or after the commence- ment of this Act.
227. Section 116 of this Act does not apply in relation to an article made, or imported into Australia, before the commencement of this Act, but, notwithstanding sub-section (1.) of section 5 of this Act, proceedings may, subject to the Copyright Act, 1911, be brought or continued by virtue of section 7 of that Act in relation to such an article and may be so brought or continued although the proceedings relate to the conversion or deten- tion of the article after the commencement of this Act.
228. Division 3 of Part V. does not apply in relation to a licence granted before the commencement of this Act and does not affect any proceedings under the Copyright Act, 1911, whether instituted before or after the commencement of this Act.
229. For the purposes of Division 5 of Part V., the definition of " infringing copy " in section 10 of this Act applies as if any reference in that definition to copyright included a reference to copyright under the Copyright Act, 1911.
230. Section 134 of this Act does not apply in relation to an infringe- ment of copyright under the Copyright Act, 1911 or to an article made, or imported into Australia, before the commencement of this Act.
231. Where- (a) before the date of commencement of this Act, a notice had been
given in respect of a work under section 10 of the Copyright Act 1912 or of that Act as amended; and
(b) that notice had not been withdrawn, and had not otherwise ceased to have effect, before that date,
the notice has, during the period of six months commencing on that date, such effect (if any) as it would have if it had been duly given in accordance with section 135 of this Act.
232.-(1.) Part VI. applies in relation to licence schemes formulated before the date of commencement of this Act in like manner as it applies in relation to licence schemes formulated on or after that date, but, for
1968 Copyright No.63
the purposes of the application of that Part in relation to licence schemes formulated before that date, any reference in that Part to copyright includes a reference to copyright under the Copyright Act, 1911.
(2.) Any reference in section 157 of this Act to a refusal or failure to grant or procure the grant ofa licence, or to a proposal that a licence should be granted, does not include a reference to a refusal or failure that occurred, or a proposal that was made, before the commencement of this Act.
233. Sub-section (2.) of section 180 of this Act applies in relation to Duration or Crown copy-
photographs taken before the commencement of this Act as if sub- risht 1n photo· section (3.) of that section were omitted. graphs.
234. Section 181 of this Act applies in relation to sound recordings Duration made before the commencement of this Act as if the reference in that ~=in section to the expiration of the calendar :year in which the recording is recordmss. first published were a reference to the expiration of the calendar year in which the recording was made.
235.-(1.) Sections 178 and 181 of this Act do not apply in relation to cinematograph films made before the commencement of this Act.
(2.) Where sections 178 and 181 of this Act do not apply in relation to a cinematograph film by reason of the last preceding sub-section-
(a) if the film was an original dramatic work as defined by section 204 of this Act-sections 176 and 177, and sub-section (1.) of section 180, of this Act apply in relation to that work in accord- ance with sub-section (1.) of section 222 of this Act; and
(b) sections 176 and 177, and sub-section (2.) of section 180 of this Act as modified by section 233 of this Act, apply in relation to photographs forming part of the film in like manner as they apply in relation to photographs not forming part of a cinematograph film.
Crown copyright in films.
236.-(1.) Sub-section (1.) of section 187 of this Act does not apply works !"•de in relation to works made before the commencement of this Act. t:;fo:~aal
(2.) Sub-section (2.) of section 187 of this Act does not apply in relation to works first published before the commencement of this Act.
organizations.
237.-(1.) Sub-section (1.) of section 188 of this Act does not apply Subiect-mattor, in relation to sound recordings or cinematograph films made before the ~~~orka,
f h. A madcorcommencement o t IS ct. published by (2.) Sub-section (2.) of section 188 of this Act does not apply in relation ::!-~~:!~~~~
to sound recordings or cinematograph films first published before the commencement of this Act.
(3.) Sub-section (3.) of section 188 of this Act does not apply in relation to an edition published before the commencement of this Act.
False attribution or authorship of work.
Assignments and licences.
No. 63 Copyright 1968
238.-(1.) It is a breach of the duty imposed on a person by section 190 of this Act if the person does, on or after the date of commencement of this Act, any of the acts mentioned in paragraphs (b) and (c) of sub-section (1.) of that section notwithstanding that the name concerned was inserted or affixed before that date.
(2.) Subject to the last preceding sub-section, Part IX. does not apply in relation to acts done before the commencement of this Act.
(3.) In this section, " name " includes initials or a monogram.
239.-(1.) Subject to this section, where copyright subsists in a work by virtue of this Act, any document that was made, or event that occurred, before the commencement of this Act, being a document or event that had any operation affecting the ownership of, or creating, transferring or terminating an interest, right or licence in respect of, copyright in the work under the Copyright Act, 1911 or would have had such an operation if that Act had continued in force, has the like operation in relation to the copyright in the work under this Act.
(2.) If the operation of a document to which the last preceding sub- section applies was or would have been limited to a period specified in the document, the document does not have any operation in relation to the copyright under this Act, except in so far as that period extends after the commencement of this Act.
(3.) For the purposes of the operation of a document in accordance with this section-
(a) expressions used in the document have the same respective meanings as they had immediately before the commencement of this Act, whether or not those expressions have different meanings for the purposes of this Act; and
(b) sub-section (1.) of section 197 of this Act does not apply. (4.) Without prejudice to the generality of sub-section (1.) of this
section, where the author of a work that was made before the commence- ment of this Act was the first owner of the copyright in the work-
(a) any assignment of the copyright, or any grant of an interest in the copyright, made by the author (otherwise than by will) after the commencement of the Copyright Act, 1911 and before the commencement of this Act, being an assignment or grant that has effect in relation to copyright in the work under this Act by virtue of sub-section (1.) of this section, does not operate to vest in the assignee or grantee any rights with respect to the copyright in the work after the expiration of twenty-five years after the date of the death of the author;
(b) on the death of the author, the reversionary interest in the copy- right expectant on the termination of that period devolves, notwithstanding any agreement to the contrary, on his legal personal representative as part of his estate; and
(c) any agreement entered into by the author as to the disposition of that reversionary interest is of no force or effect,
1968 Copyright No.63
but nothing in tbis sub-section shall be taken to apply to the assignment of the copyright in a collective work or a licence to publish a work or a part of a work as part of a collective work.
(5.) In the last preceding sub-section, expressions that are defined by section 204 of this Act have the meanings respectively given to those expressions by that section and do not have the meanings, if any, respec- tively given to those expressions by Part II.
(6.) The preceding sub-sections of this section apply in relation to copyright under this Act in a sound recording or in a cinematograph film in like manner as they apply in relation to copyright in a work but a reference in those sub-sections to the copyright under the Copyright Act, 1911 shall-
(a) in the application of those sub-sections in relation to a sound recording-be read as a reference to the copyright under that Act in records embodying the recording; and
(b) in the application of those sub-sections in relation to a cinemat- ograph film-be read as a reference to any copyright under that Act in the film (in so far as it constituted a dramatic work for the purposes of that Act) or in photographs forming part of the film.
240.-(1.) Section 198 of this Act does not apply in relation to a bequest contained in the will of a testator who died before the commence- ment of this Act.
(2.) Where- (a) an author has died before the commencement of this Act; (b) a person has acquired, under the will of the author, the ownership
of a manuscript of a work by the author; and (c) the work-
(i) bas not been published; (ii) in the case of a dramatic or musical work-has not been
performed in public; and (iii) in the case of a lecture-has not been delivered in public,
the ownership by that person of the manuscript is evidence that that person is the owner of the copyright in the work.
(3.) In the last preceding sub-section, expressions that are defined by section 204 of this Act have the meanings respectively given to those expressions by that section and do not have the meanings, if any, respec- tively given to those expressions by Part II.
241. Section 201 of this Act does not apply in relation to library material published before the commencement of this Act.
Bequests.
Delivery of library material to National Library.
242. Section 202 of this Act does not apply in relation to threats made Groundless • • threats or lepl
after the commencement of th1s Act m respect of acts that took place proceediu1111. before the commencement of this Act and, notwithstanding section 6 of tbis Act, section 41A of the Copyright Act 1912-1966 continues to apply in relation to any such threats in like manner as it continues to apply in relation to threats made before the commencement of this Act.
Definition.
Application.
Ri&hta conferred by Copyright Act, 1911.
Performing rights.
Contributious to periodicals.
No. 63 Copyright 1968
Division 5.-Works Made before 1 July, 1912.
243. In this Division, "right conferred by the Copyright Act, 1911 ", in relation to a work, means a right that, by virtue of section 24 of the Copyright Act, 1911, was conferred in place of a right that subsisted immediately before the commencement of that Act.
244. This Division applies to works made before the first day of July, One thousand nine hundred and twelve.
245. Notwithstanding anything in Division 2 of this Part, section 32 of this Act does not apply to a work to which this Division applies unless a right conferred by the Copyright Act, 1911 subsisted in the work im- mediately before the commencement of this Act.
246.-(1.) Where the right conferred by the Copyright Act, 1911 in relation to a dramatic or musical work to which this Division applies did not include the sole right to perform the work in public, then, copyright, in so far as it subsists in the work by virtue of this Act, does not include the performing rights in relation to the work.
(2.) Where the right conferred by the Copyright Act, 1911 in relation to a dramatic or musical work to which this Division applies consisted only of the sole right to perform the work in public, then, copyright, in so far as it subsists in the work by virtue of this Act, consists only of the performing rights in relation to the work.
(3.) For the purposes of this section, the performing rights, in relation to a work, are-
(a) the exclusive right to perform the work, or an adaptation of the work, in public;
(b) the exclusive right to broadcast the work or an adaptation of the work; and
(c) the exclusive right to cause the work, or an adaptation of the work, to be transmitted to subscribers to a diffusion service.
247. Where- (a) a work to which this Division applies (in this section referred to
as "the relevant work") consists of an essay, article or item forming part of, and first published in, a review, magazine or other periodical or work of a like nature; and
(b) immediately before the commencement of this Act, a right of publishing the relevant work in a separate form subsisted by virtue ofthe note to the First Schedule to the Copyright Act, 1911,
copyright subsisting in the relevant work by virtue of this Act is subject to that right of publishing the relevant work in a separate form.
1968 Copyright No. 63
248.-(1.) Without prejudice to the generality of sub-section (1.) of AasiCts section 239 of this Act, where- and lcenc:es.
(a) the author of a work to which this Division applies had, before the commencement of the Copyright Act, 1911, made an assign- ment or grant of a kind referred to in paragraph (a) of the proviso to subsection (1) of section 24 of that Act (in this section referred to as " the proviso ") ; and
(b) copyright subsists in the work by virtue of this Act, the succeeding sub-sections of this section have effect.
(2.) If, before the commencement of this Act, an event occurred or a notice was given, being an event or notice that, in accordance with paragraph (a) of the proviso, had any operation affecting the ownership of the right conferred by the Copyright Act, 1911 in relation to the work or creating, transferring or terminating an interest, right or licence in respect of that right, that event or notice has the like operation in relation to the copyright in the work under this Act.
(3.) Any right that, at a time after the commencement of this Act, would, by virtue of paragraph (a) of the proviso, have been exercisable in relation to the work or in relation to the right conferred by the Copyright Act, 1911, if this Act had not been enacted, is exercisable in relation to the work or in relation to the copyright subsisting in the work under this Act, as the case may be.
(4.) If, in accordance with paragraph (a) of the proviso, the right conferred by the Copyright Act, 1911 would have reverted to the author or his personal representatives on the date referred to in that paragraph, and that date occurs after the commencement of this Act, then on that date-
(a) the copyright in the work under this Act reverts to the author or his personal representatives, as the case may be; and
(b) any interest of any other person in that copyright that subsists on that date byvirtue ofany document made before the commencement of the Copyright Act, 1911 ceases.
PART XII.-R.EGULATIONS.
249. The Governor-General may make regulations, not inconsistent R•111Iations. with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing penalties not exceeding a fine of One hundred dollars for offences against the regulations.
No. 63 Copyright 1968
THE SCHEDULE Section 144.
OATH
I, , do swear that I will be faithful and bear true allegiance to
Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will
well and truly serve Her in the office of and that I will faithfully and impartially perform the duties of that office.
So HELP ME GoD!
AFFIRMATION
I, , do solemnly and sincerely promise and declare that I will
be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and
Successors according to law, that I will well and truly serve Her in the office of and that I will faithfully and impartially perform the duties of that office.