This Act shall come into operation on a date to be fixed by Proclamation.
4-
Extension to external Territories
This Act extends to every external Territory.
5-
Exclusion of Imperial Copyright Act, 1911
(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1901‑1966, the Copyright Act, 1911 shall be deemed to be an Act passed by the Parliament of the Commonwealth and to be repealed by this Act, and the enactment of Part XI shall not be taken to affect the operation of section 8 of the Acts Interpretation Act 1901‑1966 as it operates by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 subsection in relation to matters to which that Part does not apply.
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-
Copyright not to subsist except by virtue of this Act
Subject to section 8A, copyright does not subsist otherwise than by virtue of this Act.
8A
Prerogative rights of the Crown in the nature of copyright
(1)
Subject to subsection (2), this Act does not affect any prerogative right or privilege of the Crown.
(2)
Where a right or privilege of the Crown by way of copyright subsists in a work or published edition of a work, a person does not infringe that right or privilege by doing, or authorizing the doing of, an act in relation to the work or edition without the licence of the Crown if, assuming that that right or privilege of the Crown did not subsist in the work or edition, but copyright subsisted under this Act in the work or edition and was owned by a person other than the Crown, the person would not infringe the copyright of that owner in the work or edition by doing, or by authorizing the doing of, that act without the licence of the owner.
(3)
Nothing in subsection (2) shall be taken to limit the duration of the right or privilege of the Crown by way of copyright in a work or published edition of a work.
9-
Operation of other laws
(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 law of the Commonwealth or of the State.
(3)
This Act does not affect the operation of the law relating to breaches of trust or confidence.
9A
Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
In this Act, unless the contrary intention appears:
access control technological protection measure means a device, product, technology or component (including a computer program) that:
(a)
is used in Australia or a qualifying country:
(i)
by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and
(ii)
in connection with the exercise of the copyright; and
(b)
in the normal course of its operation, controls access to the work or other subject‑matter;
but does not include such a device, product, technology or component to the extent that it:
(c)
if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)—controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or
(d)
if the work is a computer program that is embodied in a machine or device—restricts the use of goods (other than the work) or services in relation to the machine or device.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
accessory, in relation to an article, means one or more of the following:
(a)
a label affixed to, displayed on, incorporated into the surface of, or accompanying, the article;
(b)
the packaging or container in which the article is packaged or contained;
(c)
a label affixed to, displayed on, incorporated into the surface of, or accompanying, the packaging or container in which the article is packaged or contained;
(d)
a written instruction, warranty or other information provided with the article;
(e)
a record embodying an instructional sound recording, or a copy of an instructional cinematograph film, provided with the article;
but does not include any label, packaging or container on which the olympic symbol (within the meaning of the Olympic Insignia Protection Act 1987) is reproduced.
Note:
See also section 10AD for an expanded meaning of accessory in relation to certain imported articles.
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;
(ba)
in relation to a literary work being a computer program—a version of the work (whether or not in the language, code or notation in which the work was originally expressed) not being a reproduction of the work;
(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 transcription of the work.
alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:
(a)
conferencing; and
(b)
mediation; and
(c)
neutral evaluation; and
(d)
case appraisal; and
(e)
conciliation; and
(f)
procedures or services specified in the regulations;
but does not include:
(g)
arbitration; or
(h)
court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.
approved label means a label approved under:
(a)
Part 2 of the Agvet Code of a State or of the Northern Territory; or
(b)
Part 2 of the Agvet Code of the participating Territories within the meaning of the Agricultural and Veterinary Chemicals Act 1994.
archives means:
(a)
archival material in the custody of:
(i)
the Australian Archives;
(ii)
the Archives Office of New South Wales established by the Archives Act 1960 of the State of New South Wales;
(iii)
the Public Record Office established by the Public Records Act 1973 of the State of Victoria; or
(iv)
the Archives Office of Tasmania established by the Archives Act 1965 of the State of Tasmania; or
(b)
a collection of documents or other material to which this paragraph applies by virtue of subsection (4).
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 whether or not mentioned in paragraph (a) or (b);
but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.
Australia includes the external Territories.
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.
authorized officer, in relation to a library or archives, means the officer in charge of that library or archives or a person authorized by that officer to act on his or her behalf.
broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.
Note:
A broadcasting service does not include the following:
(a)
a service (including a teletext service) that provides only data or only text (with or without associated images); or
(b)
a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service.
building includes a structure of any kind.
calendar year means a period of 12 months commencing on 1 January.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
chemical product has the same meaning as in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.
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.
circumvention device for a technological protection measure means a device, component or product (including a computer program) that:
(a)
is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b)
has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c)
is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
circumvention service for a technological protection measure means a service that:
(a)
is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b)
has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c)
is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.
communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject‑matter, including a performance or live performance within the meaning of this Act.
computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
construction includes erection, and reconstruction has a corresponding meaning.
controls access: a device, product, technology or component (including a computer program) controls access to a work or other subject‑matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the copyright in the work or other subject‑matter, to gain access to the work or other subject‑matter.
copy, in relation to a cinematograph film, means any article or thing in which the visual images or sounds comprising the film are embodied.
device includes a plate.
dramatic work includes:
(a)
a choreographic show or other dumb show; 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.
educational institution means:
(aa)
an institution at which education is provided at pre‑school or kindergarten standard;
(a)
a school or similar institution at which full‑time primary education or full‑time secondary education is provided or both full‑time primary education and full‑time secondary education are provided;
(b)
a university, a college of advanced education or a technical and further education institution;
(c)
an institution that conducts courses of primary, secondary or tertiary education by correspondence or on an external study basis;
(d)
a school of nursing in relation to which a notice published under subsection 10A(4) is in force;
(e)
an undertaking within a hospital, being an undertaking:
(i)
that conducts courses of study or training in the provision of medical services, or in the provision of services incidental to the provision of medical services; and
(ii)
in relation to which a notice published under subsection 10A(4) is in force;
(f)
a teacher education centre in relation to which a notice published under subsection 10A(4) is in force;
(g)
an institution in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function of the institution is the provision of courses of study or training for one of the following purposes:
(i)
general education;
(ii)
the preparation of people for a particular occupation or profession;
(iii)
the continuing education of people engaged in a particular occupation or profession;
(iv)
the teaching of English to people whose first language is not English;
(h)
an undertaking within a body administering an educational institution of a kind referred to in a preceding paragraph of this definition in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function, or one of the principal functions, of the undertaking is the provision of teacher training to people engaged as instructors in educational institutions of a kind referred to in a preceding paragraph of this definition, or of 2 or more such kinds; or
(i)
an institution, or an undertaking within a body administering an educational institution of a kind referred to in a preceding paragraph of this definition, in relation to which there is in force a notice published under subsection 10A(4) that includes a declaration that the principal function, or one of the principal functions, of the institution, or undertaking, is the providing of material to educational institutions of a kind referred to in a preceding paragraph of this definition, or to educational institutions of 2 or more such kinds, and that that activity is undertaken for the purpose of helping those institutions in their teaching purposes.
electronic literary or music item means:
(a)
a book in electronic form; or
(b)
a periodical publication in electronic form; or
(c)
sheet music in electronic form;
regardless of whether there is a printed form.
electronic rights management information, in relation to a work or other subject‑matter, means information that:
(a)
is electronic; and
(b)
either:
(i)
is or was attached to, or is or was embodied in, a copy of the work or subject‑matter; or
(ii)
appears or appeared in connection with a communication, or the making available, of the work or subject‑matter; and
(c)
either:
(i)
identifies the work or subject‑matter, and its author or copyright owner (including such information represented as numbers or codes); or
(ii)
identifies or indicates some or all of the terms and conditions on which the work or subject‑matter may be used, or indicates that the use of the work or subject‑matter is subject to terms or conditions (including such information represented as numbers or codes).
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.
free‑to‑air broadcast means a broadcast delivered by a national broadcasting service, commercial broadcasting service or community broadcasting service within the meaning of the Broadcasting Services Act 1992.
future copyright means copyright to come into existence at a future time or upon the happening of a future event.
infringing copy means:
(a)
in relation to a work—a reproduction of the work, or of an adaptation of the work, not being a copy of a cinematograph film of the work or adaptation;
(b)
in relation to a sound recording—a copy of the sound 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 broadcast—a copy of a cinematograph film of the broadcast or a record embodying a sound recording of the broadcast; and
(e)
in relation to a published edition of a work—a facsimile copy of the edition;
being an article (which may be an electronic reproduction or copy of the work, recording, film, broadcast or edition) the making of which constituted an infringement of the copyright in the work, recording, film, broadcast or edition or, in the case of an article imported without the licence of the owner of the copyright, would have constituted an infringement of that copyright if the article had been made in Australia by the importer, but does not include:
(f)
a non‑infringing book whose importation does not constitute an infringement of that copyright; or
(g)
a non‑infringing accessory whose importation does not constitute an infringement of that copyright; or
(h)
a non‑infringing copy of a sound recording whose importation does not infringe that copyright; or
(i)
a non‑infringing copy of a computer program whose importation does not infringe that copyright; or
(j)
a non‑infringing copy of an electronic literary or music item whose importation does not infringe that copyright.
institution includes an educational institution.
institution assisting persons with an intellectual disability means:
(a)
an educational institution; or
(b)
any other institution which has as its principal function, or one or its principal functions, the provision of assistance to persons with an intellectual disability and in relation to which a declaration under paragraph 10A(1)(d) is in force.
institution assisting persons with a print disability means:
(a)
an educational institution; or
(b)
any other institution which has as its principal function, or one of its principal functions, the provision of literary or dramatic works to persons with a print disability and in relation to which a declaration under paragraph 10A(1)(c) is in force.
international organization to which this Act applies means an organization that is declared by regulations made for the purposes of section 186 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.
literary work includes:
(a)
a table, or compilation, expressed in words, figures or symbols; and
(b)
a computer program or compilation of computer programs.
manuscript, in relation to a literary, dramatic or musical work, means the document embodying the work as initially prepared by the author, whether the document is in hardcopy form, electronic form or any other form.
material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).
non‑infringing accessory means an accessory made in:
(a)
a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or
(b)
a country that is a member of the World Trade Organization and has a law that provides consistently with the TRIPS Agreement for:
(i)
the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and
(ii)
the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film;
where:
(a)
the making of any copy of a work, or any reproduction of a published edition of a work, that is, or is on, or is embodied in, the accessory; or
(b)
the making of any record embodying a sound recording, or any copy of a cinematograph film, that is the accessory;
was authorised by the owner of the copyright in that country in the work, edition, recording or film, as the case may be.
non‑infringing book means a book made (otherwise than under a compulsory licence) in a country specified in regulations made for the purposes of subsection 184(1), being a book whose making did not constitute an infringement of any copyright subsisting in a work, or in a published edition of a work, under a law of that country.
non‑infringing copy:
(a)
in relation to a sound recording, has the meaning given by section 10AA; and
(b)
in relation to a computer program, has the meaning given by section 10AB; and
(c)
in relation to an electronic literary or music item, has the meaning given by section 10AC.
officer in charge means:
(a)
in relation to archives—the archivist or other person having, for the time being, immediate care and control of the collection comprising the archives; and
(b)
in relation to a library—the librarian or other person having, for the time being, immediate care and control of the collection comprising the library.
person with a print disability means:
(a)
a person without sight; or
(b)
a person whose sight is severely impaired; or
(c)
a person unable to hold or manipulate books or to focus or move his or her eyes; or
(d)
a person with a perceptual disability.
photograph means a product of photography 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.
plate includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance.
private and domestic use means private and domestic use on or off domestic premises.
prospective owner means:
(a)
in relation to a future copyright that is not the subject of an agreement of a kind referred to in subsection 19(1)—the person who will be the owner of the copyright on its coming 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 subsection, the copyright will vest on its coming into existence.
qualifying country means:
(a)
a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or
(b)
a country that is a member of the World Trade Organization and has a law that provides consistently with the TRIPS Agreement for:
(i)
the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and
(ii)
the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film.
reception equipment means equipment whose operation, either alone or together with other equipment, enables people to hear or see a work or other subject‑matter that is communicated.
record includes a disc, tape, paper, electronic file or other device in which sounds are embodied.
Registrar means the Registrar of the Tribunal provided for by section 170.
retransmission, in relation to a broadcast, means a retransmission of the broadcast, where:
(a)
the content of the broadcast is unaltered (even if the technique used to achieve retransmission is different to the technique used to achieve the original transmission); and
(b)
either:
(i)
in any case—the retransmission is simultaneous with the original transmission; or
(ii)
if the retransmission is in an area that has, wholly or partly, different local time to the area of the original transmission—the retransmission is delayed until no later than the equivalent local time.
sculpture includes a cast or model made for purposes of sculpture.
simulcasting means simultaneously broadcasting a broadcasting service in both analog and digital form in accordance with the requirements of the Broadcasting Services Act 1992 or of any prescribed legislative provisions relating to digital broadcasting.
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 cinematograph 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 acknowledgement of his or her name is not to be made, also identifying the author.
technological protection measure means:
(a)
an access control technological protection measure; or
(b)
a device, product, technology or component (including a computer program) that:
(i)
is used in Australia or a qualifying country by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject‑matter; and
(ii)
in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the copyright;
but does not include such a device, product, technology or component to the extent that it:
(iii)
if the work or other subject‑matter is a cinematograph film or computer program (including a computer game)—controls geographic market segmentation by preventing the playback in Australia of a non‑infringing copy of the work or other subject‑matter acquired outside Australia; or
(iv)
if the work is a computer program that is embodied in a machine or device—restricts the use of goods (other than the work) or services in relation to the machine or device.
For the purposes of this definition, computer program has the same meaning as in section 47AB.
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 that was established under the Broadcasting and Television Act 1942.
the Australian Broadcasting Corporation means the Australian Broadcasting Corporation established under the Australian Broadcasting Corporation Act 1983.
the Commonwealth includes the Administration of a Territory.
the Copyright Act, 1911 means the Imperial Act known as the Copyright Act, 1911.
the Copyright Tribunal or theTribunal means the Copyright Tribunal of Australia provided for by Part VI, and includes a member of that Tribunal exercising powers of that Tribunal.
the Crown includes the Crown in right of a State, the Crown in right of the Northern Territory and the Crown in right of Norfolk Island and also includes the Administration of a Territory other than the Northern Territory or Norfolk Island.
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 Special Broadcasting Service means the Special Broadcasting Service that was referred to in section 5 of the Special Broadcasting Service Act 1991.
the Special Broadcasting Service Corporation means the body corporate preserved and continued in existence as the Special Broadcasting Service Corporation under section 5 of the Special Broadcasting Service Act 1991.
to the public means to the public within or outside Australia.
TRIPS Agreement means the Agreement on Trade‑Related Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Note:
The English text of the Marrakesh Agreement establishing the World Trade Organization is set out in Australian Treaty Series 1995 No. 8.
will includes a codicil.
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.
