Copyright Amendment Act 2006 (Cth)

No. 158, 2006

An Act to amend the Copyright Act 1968, and for related purposes

Contents

No. 158, 2006

An Act to amend the Copyright Act 1968, and for related purposes

[Assented to 11 December 2006]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Copyright Amendment Act 2006.

2Commencement

(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	11 December 2006
2. Schedule 1, Part 1	1 January 2007.	1 January 2007
3. Schedule 1, Part 2	The later of: (a) immediately after the commencement of Part 1 of Schedule 1 to this Act; and (b) the time the Archives Amendment Act 2006 commences. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	Does not commence
4. Schedules 2 to 5	1 January 2007.	1 January 2007
5. Schedules 6 to 8	The day on which this Act receives the Royal Assent.	11 December 2006
6. Schedule 9	The 28th day after the day on which this Act receives the Royal Assent.	8 January 2007
7. Schedule 10	The day on which this Act receives the Royal Assent.	11 December 2006
8. Schedule 11	Immediately after the commencement of Schedule 10.	11 December 2006
9. Schedule 12, Part 1	Immediately after the commencement of the provisions covered by table item 2.	1 January 2007
10. Schedule 12, Part 2	The later of: (a) immediately after the commencement of Part 1 of Schedule 12 to this Act; and (b) immediately after the commencement of Schedule 1 to the Archives Amendment Act 2006. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	Does not commence

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Criminal lawsPart 1Main amendments

At the end of section 49

Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

At the end of section 50

Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

At the end of subsection 51A(4)

Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

At the end of subsection 110B(3)

Add:
Note: Under section 203F, it is an offence to make a false or misleading declaration for the purposes of this section. Sections 203A, 203D and 203G create offences relating to the keeping of declarations made for the purposes of this section.

Subsection 126B(8)

Repeal the subsection.

Section 132

Repeal the section, substitute:

Subdivision A—Preliminary

132AADefinitions

In this Division:
article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form.
copyright material means:
(a)
a work; or
(b)
a published edition of a work; or
(c)
a sound recording; or
(d)
a cinematograph film; or
(e)
a television or sound broadcast; or
(f)
a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.
distribute, except in Subdivision E, includes distribute by way of communication.
place of public entertainment includes 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.
profit does not include any advantage, benefit, or gain, that:
(a)
is received by a person; and
(b)
results from, or is associated with, the person’s private or domestic use of any copyright material.

132ABGeographical application

(1)
Subdivisions B, C, D, E and F apply only to acts done in Australia.
(2)
This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code.

Subdivision B—Substantial infringement on a commercial scale

132ACCommercial‑scale infringement prejudicing copyright owner

Indictable offence
(1)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and
(c)
the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d)
the infringement or infringements occur on a commercial scale.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and
(c)
the infringement or infringements have a substantial prejudicial impact on the owner of the copyright and the person is negligent as to that fact; and
(d)
the infringement or infringements occur on a commercial scale and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Determining whether infringements occur on commercial scale
(5)
In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (1)(d) or (3)(d), the following matters are to be taken into account:
(a)
the volume and value of any articles that are infringing copies that constitute the infringement or infringements;
(b)
any other relevant matter.
Defence relating to law enforcement and national security
(6)
This section does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
(a)
the Commonwealth or a State or Territory; or
(b)
an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence for certain public institutions etc.
(7)
This section does not apply in respect of anything lawfully done by the following in performing their functions:
(a)
a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b)
a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);
(c)
an educational institution;
(d)
a public non‑commercial broadcaster, including:
(i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and
(ii)
a body that holds a community broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Subdivision C—Infringing copies

132ADMaking infringing copy commercially

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes an article, with the intention of:
(i) selling it; or
(ii)
letting it for hire; or
(iii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter when the article is made.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3)
A person commits an offence if:
(a)
the person makes an article, with the intention of:
(i) selling it; or
(ii)
letting it for hire; or
(iii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter when the article is made and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person makes an article in preparation for, or in the course of:
(i) selling it; or
(ii)
letting it for hire; or
(iii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter when the article is made.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AESelling or hiring out infringing copy

Indictable offence
(1)
A person commits an offence if:
(a)
the person sells an article or lets an article for hire; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the sale or letting.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3)
A person commits an offence if:
(a)
the person sells an article or lets an article for hire; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the sale or letting and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person sells an article or lets an article for hire; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the sale or letting.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AFOffering infringing copy for sale or hire

Indictable offences
(1)
A person commits an offence if:
(a)
the person by way of trade offers or exposes an article for sale or hire; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
(2)
A person commits an offence if:
(a)
the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
(3)
An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4)
A person commits an offence if:
(a)
the person by way of trade offers or exposes an article for sale or hire; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5)
A person commits an offence if:
(a)
the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6)
An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offences
(7)
A person commits an offence if:
(a)
the person by way of trade offers or exposes an article for sale or hire; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(8)
A person commits an offence if:
(a)
the person offers or exposes an article for sale or hire, in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the offer or exposure.
Penalty: 60 penalty units.
(9)
Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AGExhibiting infringing copy in public commercially

Indictable offences
(1)
A person commits an offence if:
(a)
the person by way of trade exhibits an article in public; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition.
(2)
A person commits an offence if:
(a)
the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition.
(3)
An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4)
A person commits an offence if:
(a)
the person by way of trade exhibits an article in public; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5)
A person commits an offence if:
(a)
the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6)
An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offences
(7)
A person commits an offence if:
(a)
the person by way of trade exhibits an article in public; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(8)
A person commits an offence if:
(a)
the person exhibits an article in public in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the exhibition.
Penalty: 60 penalty units.
(9)
Subsections (7) and (8) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AHImporting infringing copy commercially

Indictable offence
(1)
A person commits an offence if:
(a)
the person imports an article into Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;
(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the import.
(2)
An offence against this section is punishable on conviction by a fine of not more than 650 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3)
A person commits an offence if:
(a)
the person imports an article into Australia, with the intention of doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;

(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the import and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person imports an article into Australia in preparation for, or in the course of, doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;
(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the import.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AIDistributing infringing copy

Indictable offences
(1)
A person commits an offence if:
(a)
the person distributes an article, with the intention of:
(i) trading; or
(ii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the distribution.
(2)
A person commits an offence if:
(a)
the person distributes an article; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the distribution; and
(d)
the extent of the distribution affects prejudicially the owner of the copyright.
(3)
An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offences
(4)
A person commits an offence if:
(a)
the person distributes an article, with the intention of:
(i) trading; or
(ii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5)
A person commits an offence if:
(a)
the person distributes an article; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact; and
(d)
the extent of the distribution affects prejudicially the owner of the copyright and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6)
An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(7)
A person commits an offence if:
(a)
the person distributes an article in preparation for, or in the course of:
(i) trading; or
(ii)
obtaining a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the distribution.
Penalty: 60 penalty units.
(9)
Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AJPossessing infringing copy for commerce

Indictable offence
(1)
A person commits an offence if:
(a)
the person possesses an article, with the intention of doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;
(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the possession.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.
Summary offence
(3)
A person commits an offence if:
(a)
the person possesses an article, with the intention of doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;
(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter and the person is negligent as to that fact; and
(c)
copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person possesses an article in preparation for, or in the course of, doing any of the following with the article:
(i) selling it;
(ii)
letting it for hire;
(iii)
by way of trade offering or exposing it for sale or hire;
(iv)
offering or exposing it for sale or hire to obtain a commercial advantage or profit;
(v)
distributing it for trade;
(vi)
distributing it to obtain a commercial advantage or profit;
(vii)
distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;
(viii)
by way of trade exhibiting it in public;
(ix)
exhibiting it in public to obtain a commercial advantage or profit; and
(b)
the article is an infringing copy of a work or other subject‑matter; and
(c)
copyright subsists in the work or other subject‑matter at the time of the possession.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132AKAggravated offence—work etc. converted to digital form

(1)
An indictable offence against a provision (the basic offence provision) of this Subdivision (except sections 132AL and 132AM) relating to an infringing copy is an aggravated offence if the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.
(2)
An aggravated offence is punishable on conviction by a fine of not more than 850 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
(3)
To prove an aggravated offence, the prosecution must prove that the defendant was reckless with respect to the circumstance that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.
Note: The prosecution must also prove all the physical and fault elements of the offence against the basic offence provision.
(4)
If the prosecution intends to prove an aggravated offence, the charge must allege that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.

132ALMaking or possessing device for making infringing copy

Indictable offences
(1)
A person commits an offence if:
(a)
the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and
(b)
copyright subsists in the work or other subject‑matter at the time of the making of the device.
(2)
A person commits an offence if:
(a)
the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and
(b)
copyright subsists in the work or other subject‑matter at the time of the possession.
(3)
An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offences
(4)
A person commits an offence if:
(a)
the person makes a device; and
(b)
the device is to be used for copying a work or other subject‑matter; and
(c)
the copy will be an infringing copy and the person is negligent as to that fact; and
(d)
copyright subsists in the work or other subject‑matter at the time of the making of the device and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(5)
A person commits an offence if:
(a)
the person possesses a device; and
(b)
the device is to be used for copying a work or other subject‑matter; and
(c)
the copy will be an infringing copy and the person is negligent as to that fact; and
(d)
copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(6)
To avoid doubt, recklessness is the fault element for the circumstance in paragraphs (4)(b) and (5)(b) that the device is to be used for copying a work or other subject‑matter.
(7)
An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(8)
A person commits an offence if:
(a)
the person makes a device; and
(b)
the device is to be used for copying a work or other subject‑matter; and
(c)
the copy will be an infringing copy; and
(d)
copyright subsists in the work or other subject‑matter at the time of the making of the device.
Penalty: 60 penalty units.
(10)
Subsection (8) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
No need to prove which work etc. is to be copied
(11)
In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device.

132AMAdvertising supply of infringing copy

Summary offence
(1)
A person commits an offence if:
(a)
the person, by any means, publishes, or causes to be published, an advertisement for the supply in Australia of a copy (whether from within or outside Australia) of a work or other subject‑matter; and
(b)
the copy is, or will be, an infringing copy.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Location of supply of copy by communication resulting in creation of copy
(2)
For the purposes of this section, a communication of a work or other subject‑matter that, when received and recorded, will result in the creation of a copy of the work or other subject‑matter is taken to constitute the supply of a copy of the work or other subject‑matter at the place where the copy will be created.

Subdivision D—Airing of works, sound recordings and films

132ANCausing work to be performed publicly

Indictable offence
(1)
A person commits an offence if:
(a)
the person causes a literary, dramatic or musical work to be performed; and
(b)
the performance is in public at a place of public entertainment; and
(c)
the performance infringes copyright in the work.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person causes a literary, dramatic or musical work to be performed; and
(b)
the performance is in public at a place of public entertainment; and
(c)
the performance infringes copyright in the work and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

132AOCausing recording or film to be heard or seen in public

Indictable offence
(1)
A person commits an offence if:
(a)
the person causes:
(i) a sound recording to be heard; or
(ii)
images from a cinematograph film to be seen; or
(iii)
sound from a cinematograph film to be heard; and
(b)
the hearing or seeing occurs in public at a place of public entertainment; and
(c)
causing the hearing or seeing infringes copyright in the recording or film.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person causes:
(i) a sound recording to be heard; or
(ii)
images from a cinematograph film to be seen; or
(iii)
sound from a cinematograph film to be heard; and
(b)
the hearing or seeing occurs in public at a place of public entertainment; and
(c)
causing the hearing or seeing infringes copyright in the recording or film and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person causes:
(ii)
images from a cinematograph film to be seen; or
(iii)
sound from a cinematograph film to be heard; and
(b)
the hearing or seeing occurs in public at a place of public entertainment; and
(c)
causing the hearing or seeing infringes copyright in the recording or film.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision F—Electronic rights management information

132AQRemoving or altering electronic rights management information

Indictable offence
(1)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii)
the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii)
the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
either:
(i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or
(ii)
the person alters any electronic rights management information that relates to the work or subject‑matter; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132ARDistributing, importing or communicating copies after removal or alteration of electronic rights management information

Indictable offence
(1)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;
(ii)
imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;
(iii)
communicates a copy of the work or subject‑matter to the public; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii)
any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e)
the person knows that the information has been removed or altered without that permission; and

(f)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;
(ii)
imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;
(iii)
communicates a copy of the work or subject‑matter to the public; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii)
any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does any of the following acts in relation to the work or subject‑matter:
(i) distributes a copy of the work or subject‑matter in preparation for, or in the course of, trading or for obtaining a commercial advantage or profit;
(ii)
imports a copy of the work or subject‑matter into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;
(iii)
communicates a copy of the work or subject‑matter to the public; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or
(ii)
any electronic rights management information that relates to the work or subject‑matter has been altered;
without the permission of the owner or exclusive licensee of the copyright; and
(e)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132ASDistributing or importing electronic rights management information

Indictable offence
(1)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;
(ii)
imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii)
the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e)
the person knows that the information has been removed or altered without that permission; and
(f)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;
(ii)
imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii)
the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
copyright subsists in a work or other subject‑matter; and
(b)
the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:
(i) distributes the electronic rights management information in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;
(ii)
imports the electronic rights management information into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit; and
(c)
the person does so without the permission of the owner or exclusive licensee of the copyright; and
(d)
either:
(i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or
(ii)
the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and
(e)
the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

132ATDefences

Law enforcement and national security
(1)
This Subdivision does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
(a)
the Commonwealth or a State or Territory; or
(b)
an authority of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code).
Certain public institutions etc.
(2)
This Subdivision does not apply in respect of anything lawfully done by the following in performing their functions:
(a)
a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b)
a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);
(c)
an educational institution;
(d)
a public non‑commercial broadcaster, including:
(i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and
(ii)
a body that holds a community broadcasting licence within the meaning of that Act.
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Subdivision G—Evidence

132AUProsecution to prove profit

(1)
This section applies if, in the prosecution of an offence against this Division, either of the following questions is relevant:
(a)
whether the defendant intended to obtain a profit;
(b)
whether the defendant did something for, in preparation for, or in the course of, obtaining a profit.
(2)
The burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.
Note: For the purposes of this Division, section 132AA defines profit as not including any advantage, benefit, or gain, that:
(a) is received by a person; and
(b) results from, or is associated with, the person’s private or domestic use of any copyright material.

Subsection 132A(1)

Omit “section 132”, substitute “this Division, except section 132AM,”.

Sections 133 and 133A

Repeal the sections, substitute:

Subdivision H—Extra court orders

133Destruction or delivery up of infringing copies etc.

(1)
This section applies if:
(a)
a person is charged before a court with an offence against this Division, except section 132AM, whether or not the person is convicted of the offence; and
(b)
the person possesses an article that appears to the court to be any of the following:
(i) a circumvention device used or intended to be used in conduct constituting an offence against Subdivision E;
(ii)
an infringing copy;
(iii)
a device or equipment used or intended to be used for making infringing copies.
(2)
The court may order that the article be destroyed, delivered up to the owner of the copyright concerned or dealt with as the court thinks fit.

Subdivision I—Procedure and jurisdiction

133ACourts in which offences may be prosecuted

(1)
Prosecutions for offences against this Division may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.
(2)
However, the Federal Court of Australia does not have jurisdiction to hear or determine prosecutions for indictable offences, despite section 15C of the Acts Interpretation Act 1901.
(3)
The Federal Court of Australia has jurisdiction to hear and determine prosecutions of the following offences against this Division:
(a)
summary offences;
(b)
offences of strict liability.

133BInfringement notices

(1)
The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to do both of the following as an alternative to prosecution:
(a)
pay a penalty to the Commonwealth;
(b)
forfeit to the Commonwealth:
(i) each article (if any) that is alleged to be an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence; and
(ii)
each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject‑matter and that is alleged to have been involved in the commission of the offence.
Note: Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).
(2)
The penalty must equal one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
9
Application of amendments of Division 5 of Part V
The amendments of Division 5 of Part V of the Copyright Act 1968 by this Part apply to things occurring after the commencement of this Part.

Subsections 135L(4) and 135ZY(4)

Omit “$500”, substitute “5 penalty units”.

Paragraph 136(2)(d)

Omit “proceedings brought in respect of an alleged contravention of subsection 132(5) or (5AA)”, substitute “a prosecution of an offence against Subdivision D of Division 5 of Part V”.

Saving

(1) Despite the amendment of paragraph 136(2)(d) of the Copyright Act 1968 by this Part, that paragraph, as in force before the amendment, applies after that amendment to proceedings brought in respect of an alleged contravention of subsection 132(5) or (5AA) of that Act as in force before that amendment.
(2) That paragraph applies in that way whether the proceedings were started before or after that amendment.

Sections 172 and 173

Repeal the sections, substitute:

172Offences by witnesses

Failing to appear
(1)
A person commits an offence if:
(a)
the person has been summoned to appear as a witness before the Tribunal; and
(b)
there has been tendered to the person an amount of money at least equal to the expenses the person could reasonably be expected to incur in connection with appearing as a witness; and
(c)
the person fails to appear in obedience to the summons.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Failing to produce document or article summoned
(2)
A person commits an offence if:
(a)
the person has been summoned to produce a document or article to the Tribunal; and
(b)
there has been tendered to the person an amount of money at least equal to the expenses the person could reasonably be expected to incur in connection with producing the document or article; and
(c)
the person fails to produce the document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Refusal to swear or affirm
(3)
A person commits an offence if:
(a)
the person appears before the Tribunal; and
(b)
the person refuses to be sworn or to make an affirmation.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Refusal to answer questions or produce documents as required
(4)
A person commits an offence if:
(a)
the person appears before the Tribunal; and
(b)
the Tribunal requires the person to answer a question or produce a document or article; and
(c)
the person refuses to answer the question or produce the document or article.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
General defence of reasonable excuse
(5)
Subsection (1), (2), (3) or (4) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

173Offences relating to the Tribunal

Insulting a member
(1)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the person’s conduct insults or disturbs a member in the exercise of his or her powers or functions as a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Interrupting proceedings of the Tribunal
(2)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the person’s conduct interrupts the proceedings of the Tribunal.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Using insulting language
(3)
A person commits an offence if:
(a)
the person uses insulting language towards another person; and
(b)
the other person is a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Creating a disturbance
(4)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the person’s conduct creates a disturbance in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Taking part in creating or continuing a disturbance
(5)
A person commits an offence if:
(a)
the person takes part in creating or continuing a disturbance; and
(b)
the disturbance is in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Contravention of direction limiting publication of evidence
(6)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct contravenes a direction of the Tribunal under paragraph 163(2)(b).
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Contempt of Tribunal
(7)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the person’s conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Definition of engage in conduct
(8)
In this section:
engage in conduct means:
(a)
do an act; or
(b)
omit to perform an act.

Application of new sections 172 and 173

Sections 172 and 173 of the Copyright Act 1968, as amended by this Part, apply to acts (including refusals) occurring after the commencement of this Part and failures first occurring after the commencement of this Part.

Subsection 195A(2)

Repeal the subsection.
16
Transitional provision—regulations for subsection 195A(2)

(1) This item applies to a regulation that:

(a)
was made for the purposes of subsection 195A(2) of the Copyright Act 1968; and
(b)
was in force immediately before the repeal of that subsection.
(2) On and after the commencement of this Part, the regulation has effect for the purposes of subsection 203A(1) and section 203G (so far as they relate to a declaration made for the purposes of section 49, 50, 51A or 110B) of the Copyright Act 1968, as amended by this Part, as if the period prescribed by the regulation were prescribed for those purposes.
(3) This item does not prevent the amendment or repeal of the regulation.
(4) This item has effect despite the repeal of subsection 195A(2) of the Copyright Act 1968 by this Part.

Sections 203A and 203D

Repeal the sections, substitute:

203AOffence—failing to keep declarations relating to copying in library or archives

(1)
A person commits an offence if:
(a)
at a time, the person is:
(i) ultimately responsible for administering a library or archives; or
(ii)
the officer in charge of a library or archives; and
(b)
that time is:
(i) after an authorized officer of a library or archives reproduced or copied all or part of a work or other subject‑matter under section 49, 50, 51A or 110B; and
(ii)
after a written declaration was made for the purpose of that section in relation to the reproduction or copying; and
(iii)
before the end of the period prescribed by the regulations for the keeping of the declaration; and
(c)
at that time, the declaration is not kept in the records of the library or archives.
Penalty: 5 penalty units.
(2)
Subsection (1) does not apply if:
(a)
the person is the officer in charge of a library or archives and proves that:
(i) the reproduction or copying took place before the day the person became the officer in charge; and
(ii)
on that day the declaration was not in the possession of the person administering the library or archives; or
(b)
the person proves that the person took all reasonable precautions, and exercised due diligence, to ensure the declaration was kept in the records of the library or archives.
Note: The person bears a legal burden in relation to a matter in subsection (2) (see section 13.4 of the Criminal Code).
(3)
Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4)
The person cannot be convicted of more than one offence under this section in relation to the one declaration.
Note: Section 203G makes early destruction or disposal of the declaration an offence.

203DOffence—not arranging declarations chronologically

(1)
A person commits an offence if:
(a)
the person is:
(i) ultimately responsible for administering a library or archives; or
(ii)
the officer in charge of a library or archives; and

(b)
the person’s records include 2 or more declarations made for the purposes of one or more of sections 49, 50, 51A or 110B in relation to reproduction or copying by an authorized officer of the library or archives; and
(c)
the declarations are not arranged in the records in the order reflecting the dates on which the declarations were made.
Penalty: 5 penalty units.
(2)
Subsection (1) does not apply if the person proves that the person took all reasonable precautions, and exercised due diligence, to ensure that the declarations were arranged in the records in the order reflecting the dates on which the declarations were made.
(3)
Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

Application of new sections 203A and 203D

Sections 203A and 203D of the Copyright Act 1968, as amended by this Part, apply to persons who are:
(a)
ultimately responsible for administering libraries or archives; or
(b)
officers in charge of libraries or archives;
on or after the commencement of this Part.

Subsection 203E(6)

Repeal the subsection, substitute:
(6)
A person commits an offence if:
(a)
the person is:
(i) ultimately responsible for administering a library or archives; or
(ii)
the officer in charge of a library or archives; and
(b)
another person (the inspector) attends at the premises of the library or archives for the purpose of exercising his or her powers under subsection (4); and
(c)
the inspector is not provided with all reasonable facilities and assistance for the effective exercise of those powers.
Penalty: 5 penalty units.

Subsection 203E(10)

Repeal the subsection, substitute:
(10)
A person (the defendant) commits an offence if:
(a)
the defendant makes a record of information, or divulges or communicates information; and
(b)
the information was acquired by the defendant either in the course of an inspection the defendant made under subsection (4) or because it was divulged or communicated to the defendant either:
(i) by another person who acquired the information in the course of an inspection he or she made under subsection (4); or
(ii)
in one of a series of divulgements or communications by different persons that started with a divulgement or communication of the information by a person who acquired it the course of an inspection he or she made under subsection (4).
Penalty: 5 penalty units.

Subsection 203E(11)

Repeal the subsection, substitute:
(11)
Subsection (10) does not apply if the defendant makes the record, divulgement or communication with the intention of:
(a)
informing the owner of the copyright in a work or other subject‑matter that a copy has been made of the work or other subject‑matter; or
(b)
enforcing a right that a person has under this Act in connection with a work or other subject‑matter in which copyright subsists; or
(c)
ensuring compliance with a provision of Division 5 of Part III or with a provision of this Part.
Note: The defendant bears an evidential burden in relation to the matter in subsection (11) (see subsection 13.3(3) of the Criminal Code).
22
Application of new subsections 203E(10) and (11)
The repeal and substitution of subsections 203E(10) and (11) of the Copyright Act 1968 by this Part apply to the recording, divulgement or communication of information by the defendant after the commencement of this Part (whether the information was acquired by the defendant before, on or after the commencement of this Part).

Sections 203F and 203G

Repeal the sections, substitute:

203FFalse and misleading declarations

A person commits an offence if:
(a)
the person makes a declaration for the purposes of section 49, 50, 51A or 110B; and
(b)
the declaration is false or misleading in a material particular.
Penalty: 5 penalty units.

203GOffence—disposing of or destroying certain declarations

A person commits an offence if:
(a)
the person disposes of, destroys, or causes the disposal or destruction of, a declaration made for the purposes of section 49, 50, 51A or 110B; and
(b)
the period prescribed by the regulations for the keeping of the declaration has not ended.
Penalty: 5 penalty units.

Application of new sections 203F and 203G

Sections 203F and 203G of the Copyright Act 1968, as amended by this Part, apply to acts done after the commencement of this Part.

Subsection 203H(4)

Repeal the subsection, substitute:
(4)
A person commits an offence if:
(a)
the person:
(i) makes a notation described in subsection (1) on a reproduction of a work or part of a work; or
(ii)
makes a notation described in subsection (2) on a copy of a sound recording or cinematograph film; or
(iii)
attaches a notation described in subsection (2) to a copy of a sound recording or cinematograph film; and
(b)
a statement in the notation is false or misleading in a material particular.
Penalty: 5 penalty units.

Application of new subsection 203H(4)

The repeal and substitution of subsection 203H(4) of the Copyright Act 1968 by this Part apply to acts done after the commencement of this Part.

Subsection 248A(1)

Insert:
20‑year protection period of a performance means the period:
(a)
beginning on the day when the performance was given; and
(b)
ending at the end of 20 calendar years after the calendar year in which the performance was given.

Subsection 248A(1)

Insert:
50‑year protection period of a performance means the period:
(a)
beginning on the day when the performance was given; and
(b)
ending at the end of 50 calendar years after the calendar year in which the performance was given.

Subsection 248CA(1)

Omit “subsections (2) and”, substitute “subsection”.

Subsection 248CA(2)

Repeal the subsection.

Paragraphs 248CA(4)(b) to (h)

Repeal the paragraphs, substitute:
(b)
section 248PA;
(c)
section 248PB;
(d)
section 248PE;
(e)
section 248PF;
(f)
section 248PG;
(g)
section 248PI;
(h)
section 248PJ;
(i) section 248PK;
(j)
section 248PL;
(k)
section 248PM.

Subsection 248F(1)

Repeal the subsection, substitute:
(1)
This Part, except Subdivisions A, B and C of Division 3, applies to acts done on or after 1 October 1989 in relation to a performance given on or after that day.
Note 1: That day was the day this Part commenced.
Note 2: Sections 248P and 248QA apply Subdivisions A and B of Division 3 to acts done at or after the time those Subdivisions commence as a result of Part 1 of Schedule 1 to the Copyright Amendment Act 2006. Subdivision C of that Division is merely ancillary to those Subdivisions.

Sections 248P, 248Q, 248QA, 248QB and 248S

Repeal the sections, substitute:

Subdivision A—General offences

248PScope of this Subdivision

(1)
This Subdivision applies to acts done in Australia on or after the commencement of this Subdivision.
Note: This Subdivision commenced when it was included in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act 2006.
(2)
This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code.

248PAUnauthorised direct recording during protection period

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes a direct recording of a performance; and
(b)
the recording is made during the protection period of the performance; and
(c)
the recording is made without the authority of the performer.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person makes a direct recording of a performance; and
(b)
the recording is made during the protection period of the performance; and
(c)
the recording is made without the authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

248PBUnauthorised indirect recording during protection period

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes an indirect recording of a performance; and
(b)
the recording is made during the protection period of the performance; and
(c)
the recording is made without the authority of the performer.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person makes an indirect recording of a performance; and
(b)
the recording is made during the protection period of the performance; and
(c)
the recording is made without the authority of the performer and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person makes an indirect recording of a performance; and
(b)
the recording is made during the protection period of the performance; and
(c)
the recording is made without the authority of the performer.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence
(7)
Subsection (1), (3) or (5) does not apply if the recording was made solely for the person’s private and domestic use.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

248PCUnauthorised communication to public during 20‑year protection period

Indictable offence
(1)
A person commits an offence if:
(a)
the person communicates a performance to the public; and
(b)
the communication is made during the 20‑year protection period of the performance; and
(c)
the communication is made without the authority of the performer; and
(d)
the communication is made either directly from the live performance or from an unauthorised recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person communicates a performance to the public; and
(b)
the communication is made during the 20‑year protection period of the performance; and
(c)
the communication is made without the authority of the performer and the person is negligent as to that fact; and
(d)
the communication is made either directly from the live performance or from an unauthorised recording of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Defence
(7)
To avoid doubt, subsections (1) and (3) do not apply to the communication to the public of an authorised recording of the performance.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
Note 2: An educational or other institution can also copy and communicate a broadcast of a performance without contravening this section in some circumstances (see sections 135E and 135F).

248PDPlaying unauthorised recording publicly during 20‑year protection period

Indictable offence
(1)
A person commits an offence if:
(a)
the person causes a recording of a performance to be heard or seen in public; and
(b)
the recording is heard or seen in public during the 20‑year protection period of the performance; and
(c)
the recording is unauthorised.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person causes a recording of a performance to be heard or seen in public; and
(b)
the recording is heard or seen in public during the 20‑year protection period of the performance; and
(c)
the recording is unauthorised and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.

248PEPossessing equipment to make or copy unauthorised recording

Indictable offence
(1)
A person commits an offence if:
(a)
the person possesses a plate or recording equipment, intending it to be used for making:
(i) an unauthorised recording of a performance; or
(ii)
a copy of an unauthorised recording of a performance; and
(b)
the possession occurs during the protection period of the performance.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person possesses a plate or recording equipment; and
(b)
the plate or equipment is to be used for making:
(i) a recording of a performance; or
(ii)
a copy of an unauthorised recording of a performance; and
(c)
either:
(i) the recording to be made using the plate or equipment will be an unauthorised recording of the performance; or
(ii)
the recording to be copied using the plate or equipment is an unauthorised recording of the performance;
and the person is negligent as to that fact; and
(d)
the possession occurs during the protection period of the performance.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
To avoid doubt, recklessness is the fault element for the circumstance that the plate or equipment is to be used for making:
(a)
a recording of a performance; or
(b)
a copy of an unauthorised recording of a performance.
(5)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
No need to prove which performance or recording is to be involved
(8)
In a prosecution for an offence against this section, it is not necessary to prove:
(a)
which particular performance is intended to be, or will be, recorded using the device; or
(b)
which particular recording is intended to be, or will be, copied using the device.

248PFCopying unauthorised recording

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the recording is an unauthorised recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the recording is an unauthorised recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the recording is an unauthorised recording.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

248PGUnauthorised copying of exempt recording

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the copy is made without the authority of the performer; and
(d)
the recording is an exempt recording; and
(e)
the copy is not an exempt recording.
Note: Under section 248CA, the protection period of a performance is:
(a) a 20‑year protection period so far as this section relates to a cinematograph film of the performance; and
(b) a 50‑year protection period so far as this section relates to a sound recording of the performance.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the copy is made without the authority of the performer and the person is negligent as to that fact; and
(d)
the recording is an exempt recording; and
(e)
the copy is not an exempt recording and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(4)
An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914.
Strict liability offence
(5)
A person commits an offence if:
(a)
the person makes a copy of a recording of a performance; and
(b)
the copy is made during the protection period of the performance; and
(c)
the copy is made without the authority of the performer; and
(d)
the recording is an exempt recording; and
(e)
the copy is not an exempt recording.
Penalty: 60 penalty units.
(6)
Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

248PHUnauthorised copying of authorised sound recording

Indictable offence
(1)
A person commits an offence if:
(a)
the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and
(b)
the copy is made during the 20‑year protection period of the performance; and
(c)
the copy is made without the authority of the performer; and
(d)
the sound recording is an authorised sound recording; and
(e)
the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track.
(2)
An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).
Summary offence
(3)
A person commits an offence if:
(a)
the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and

Exception—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable:
(i) the person; or
(ii)
if the person is a body corporate—an employee of the person;
to do an act; and
(b)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(c)
the person or employee is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(d)
the person or employee:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Exception—online privacy
(6)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and
(iv)
will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.
Exception—law enforcement and national security
(7)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Exception—libraries etc.
(8)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the person is:
(i) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); or
(ii)
a body mentioned in paragraph (a) of the definition of archives in subsection 10(1), or in subsection 10(4); or
(iii)
an educational institution; and
(c)
the act will be done for the sole purpose of making an acquisition decision in relation to the work or other subject‑matter; and
(d)
the work or other subject‑matter will not be otherwise available to the person when the act is done.
Note: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Exception—prescribed acts
(9)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act will not infringe the copyright in a work or other subject‑matter; and
(c)
the doing of the act by the person is prescribed by the regulations.
Note: For the making of regulations prescribing the doing of an act by a person, see section 249.
Burden of proof
(10)
The defendant bears the burden of establishing the matters referred to in subsections (2) to (9).

116AOManufacturing etc. a circumvention device for a technological protection measure

(1)
An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:
(a)
the person does any of the following acts with a device:
(i) manufactures it with the intention of providing it to another person;
(ii)
imports it into Australia with the intention of providing it to another person;
(iii)
distributes it to another person;
(iv)
offers it to the public;
(v)
provides it to another person;
(vi)
communicates it to another person; and
(b)
the person knows, or ought reasonably to know, that the device is a circumvention device for a technological protection measure; and
(c)
the work or other subject‑matter is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2)
Subsection (1) does not apply to the person if:
(a)
the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b)
both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii)
the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Exception—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and
(c)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d)
the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(e)
the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Exception—law enforcement and national security
(6)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Burden of proof
(7)
The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).

116APProviding etc. a circumvention service for a technological protection measure

(1)
An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:
(a)
the person:
(i) provides a service to another person; or
(ii)
offers a service to the public; and
(b)
the person knows, or ought reasonably to know, that the service is a circumvention service for a technological protection measure; and
(c)
the work or other subject‑matter is protected by the technological protection measure.
Exception ‑ no promotion, advertising etc.
(2)
Subsection (1) does not apply to the person if:
(a)
the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b)
both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii)
the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Exception—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and
(c)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d)
the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(e)
the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Exception—law enforcement and national security
(6)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Burden of proof
(7)
The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).

116AQRemedies in actions under this Subdivision

(1)
Without limiting the relief that a court may grant in an action under this Subdivision, the relief may include:
(a)
an injunction, subject to such terms, if any, as the court thinks fit; and
(b)
damages or an account of profits; and
(c)
if the doing of an act, which is the subject of the action, involved a circumvention device—an order that the circumvention device be destroyed or dealt with as specified in the order.
(2)
In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:
(a)
the flagrancy of the defendant’s acts that are the subject of the action; and
(b)
the need to deter similar acts; and
(c)
the conduct of the defendant after the acts or, if relevant, after the defendant was informed that the defendant had allegedly done an act that would be the subject of an action under this Subdivision; and
(d)
any benefit shown to have accrued to the defendant as a result of those acts; and
(e)
any other relevant matters.
(3)
If:
(a)
an action has been commenced against a person under this Subdivision; and
(b)
the doing of an act by the person, which is the subject of the action, involved a device; and
(c)
the device appears to the court to be a circumvention device;
the court may order that the device be delivered up to the court upon such conditions as the court considers appropriate.
(4)
This section does not, by implication, affect the interpretation of any other provision of this Act.

Subdivision B—Electronic rights management information

Subsections 116D(1) and (2)

Omit “section 116A, 116B, 116C or 116CA”, substitute “this Subdivision”.
Note: The heading to section 116D is altered by omitting “sections 116A, 116B, 116C and 116CA” and substituting “this Subdivision”.

After Subdivision D of Division 5 of Part V

Insert:

Subdivision E—Technological protection measures

132APADefinitions

In this Subdivision, computer program has the same meaning as in section 47AB.

132APBInteraction of this Subdivision with Part VAA

This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA).

132APCCircumventing an access control technological protection measure

(1)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct results in the circumvention of a technological protection measure; and
(c)
the technological protection measure is an access control technological protection measure; and
(d)
the person engages in the conduct with the intention of obtaining a commercial advantage or profit.
Penalty: 60 penalty units.
Defence—permission
(2)
Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Defence—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable:
(i) the person; or
(ii)
if the person is a body corporate—an employee of the person;
to do an act; and
(b)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(c)
the person or employee is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(d)
the person or employee:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Defence—online privacy
(6)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and
(iv)
will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—law enforcement and national security
(7)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(8)
Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:
(a)
a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b)
a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);
(c)
an educational institution;
(d)
a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
Defence—prescribed acts
(9)
Subsection (1) does not apply to the person if:
(a)
the person circumvents the access control technological protection measure to enable the person to do an act; and
(b)
the act will not infringe the copyright in a work or other subject‑matter; and
(c)
the doing of the act by the person is prescribed by the regulations.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
Note 2: For the making of regulations prescribing the doing of an act by a person, see section 249.

132APDManufacturing etc. a circumvention device for a technological protection measure

(1)
A person commits an offence if:
(a)
the person does any of the following acts with a device:
(i) manufactures it with the intention of providing it to another person;
(ii)
imports it into Australia with the intention of providing it to another person;
(iii)
distributes it to another person;
(iv)
offers it to the public;
(v)
provides it to another person;
(vi)
communicates it to another person; and
(b)
the person does the act with the intention of obtaining a commercial advantage or profit; and
(c)
the device is a circumvention device for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence—no promotion, advertising etc.
(2)
Subsection (1) does not apply to the person if:
(a)
the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b)
both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii)
the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Defence—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and
(c)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d)
the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(e)
the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Defence—law enforcement and national security
(6)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(7)
Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:
(a)
a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b)
a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);
(c)
an educational institution;
(d)
a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

132APEProviding etc. a circumvention service for a technological protection measure

(1)
A person commits an offence if:
(a)
the person:
(i) provides a service to another person; or
(ii)
offers a service to the public; and
(b)
the person does so with the intention of obtaining a commercial advantage or profit; and
(c)
the service is a circumvention service for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.
Defence—no promotion, advertising etc.
(2)
Subsection (1) does not apply to the person if:
(a)
the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b)
both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii)
the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Defence—interoperability
(3)
Subsection (1) does not apply to the person if:
(a)
the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and
(b)
the act:
(i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii)
will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Defence—encryption research
(4)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and
(c)
the act:
(i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and
(ii)
will not infringe the copyright in the work or other subject‑matter; and
(iii)
will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d)
the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii)
employed, trained or experienced in the field of encryption technology; and
(e)
the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii)
has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Defence—computer security testing
(5)
Subsection (1) does not apply to the person if:
(a)
the technological protection measure is an access control technological protection measure; and
(b)
the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c)
the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii)
will not infringe the copyright in the computer program; and
(iii)
will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv)
will be done with the permission of the owner of the computer, computer system or computer network.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Defence—law enforcement and national security
(6)
Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a)
law enforcement; or
(b)
national security; or
(c)
performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Defence—libraries etc.
(7)
Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:
(a)
a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);
(b)
a body mentioned in:
(i) paragraph (a) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);
(c)
an educational institution;
(d)
a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).
Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).
Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Subsection 134(2)

Omit “116A”, substitute “116AN, 116AO, 116AP”.

After section 202

Insert:

202AGroundless threats of legal proceedings in relation to technological protection measures

(1)
If a person (the first person) threatens another person with an action under Subdivision A of Division 2A of Part V, a person aggrieved may bring an action against the first person.
Note: Subdivision A of Division 2A of Part V establishes causes of action that relate to circumventing an access control technological protection measure (section 116AN), manufacturing etc. a circumvention device for a technological protection measure (section 116AO) and providing etc. a circumvention service for a technological protection measure (section 116AP).
(2)
An action may be brought under this section whether or not the first person is the owner or exclusive licensee of the copyright in the work or other subject‑matter to which the threatened action relates.
(3)
The mere notification that a work or other subject‑matter is protected by a technological protection measure does not constitute a threat of an action within the meaning of this section.
(4)
In an action under this section, the orders a court may make include the following:
(a)
an order declaring that the threat is unjustifiable;
(b)
an order granting an injunction restraining the first person from continuing to make the threat;
(c)
an order awarding such damages (if any) for loss that the person aggrieved has suffered as a result of the making of the threat.
(5)
The court must not make an order under subsection (4) if the first person satisfies the court that an action under Subdivision A of Division 2A of Part V has reasonable prospects of success.
(6)
Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.
(7)
If an action under this section is brought:
(a)
the first person may apply, by way of counterclaim, for relief to which he or she would be entitled in an action under Subdivision A of Division 2A of Part V; and
(b)
the provisions of Part V apply as if the counterclaim were an action brought by the first person under that Subdivision.
Note: The heading to section 202 is altered by adding at the end “in relation to copyright infringement”.

Section 249

Before “The Governor‑General”, insert “(1)”.
Note: The following heading to subsection 249(1) is inserted “General regulation‑making power”.

At the end of section 249

Add:
Regulations in relation to technological protection measures
(2)
Without limiting subsection (1), the Governor‑General may make regulations prescribing the doing of an act by a person for the purposes of subsections 116AN(9) and 132APC(9).
Note: For prescription of acts and persons by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(3)
However, the Governor‑General must not make a regulation prescribing the doing of an act by a person unless the Minister makes a recommendation to prescribe the doing of the act by the person.
(4)
The Minister may only make a recommendation to prescribe the doing of an act by a person if:
(a)
a submission has been made (whether before or after the commencement of this section) to prescribe the doing of the act by the person; and
(b)
the doing of the act by the person will not infringe the copyright in a work or other subject‑matter; and
(c)
the doing of the act by the person is in relation to a particular class of works or other subject‑matter; and
(d)
an actual or likely adverse impact on the doing of the act by the person has been credibly demonstrated; and
(e)
the adequacy of the protection and the effectiveness of the remedies provided by Subdivision A of Division 2A of Part V and Subdivision E of Division 5 of Part V would not be impaired if the doing of the act by the person were prescribed.
Note: For the purposes of paragraph (a), it is not necessary for the person who made the submission to be the person in relation to whom the act is prescribed.
(5)
If a submission has been made to prescribe the doing of an act by a person, the Minister must make a decision whether to recommend the prescription of the doing of the act by the person as soon as practicable after receiving the submission, but in any case, within 4 years of receiving it.
(6)
The Governor‑General may make regulations varying or revoking regulations made under subsection (2).
(7)
However, the Governor‑General must not make a regulation varying or revoking a regulation made under subsection (2) unless the Minister makes a recommendation to vary or revoke the regulation.
(8)
The Minister may make a recommendation to vary or revoke a regulation made under subsection (2) only if:
(a)
a submission has been made to vary or revoke the regulation; and
(b)
an actual or likely adverse impact on the doing of the act by the person that is the subject of the regulation can no longer be credibly demonstrated; and
(c)
the adequacy of the protection and the effectiveness of the remedies provided by Subdivision A of Division 2A of Part V and Subdivision E of Division 5 of Part V would be impaired if the regulation were not varied or revoked.
(9)
If a submission has been made to vary or revoke a regulation made under subsection (2), the Minister must make a decision whether to recommend the variation or revocation of the regulation as soon as practicable after receiving the submission, but in any case, within 4 years of receiving it.

Application of amendments

The amendments made by this Part apply to acts done on or after the commencement of this Part.

Part 2Amendments contingent on the Archives Amendment Act 2006

Subparagraph 116AN(8)(b)(ii)

Repeal the subparagraph, substitute:
(ii)
a body or person mentioned in paragraph (a) or (aa) of the definition of archives in subsection 10(1), or in subsection 10(4);
18
Paragraphs 132APC(8)(b), 132APD(7)(b) and 132APE(7)(b)
Repeal the paragraphs, substitute:
(b)
a body or person mentioned in:
(i) paragraph (a) or (aa) of the definition of archives in subsection 10(1); or
(ii)
subsection 10(4);

[Minister’s second reading speech made in—

House of Representatives on 19 October 2006

Senate on 6 November 2006]

(157/06)