Copyright Amendment Act (No. 2) 1998

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No. 105, 1998

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

Contents

1 Short title..................................1

2 Commencement..............................1

3 Schedule(s).................................2

Schedule 1—Parallel importation of records 3

Schedule 2—Amendment of penalties 9

No. 105, 1998

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

[Assented to 30 July 1998]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Copyright Amendment Act (No. 2) 1998.

2 Commencement

(1) This Act commences on the day on which it receives the Royal Assent.

(2) However, this Act commences immediately after the commencement of item 1 of Schedule 3 to the Copyright Amendment Act (No. 1) 1998 if that Act receives the Royal Assent on a day that is the same as, or later than, the day on which this Act receives the Royal Assent.

3 Schedule(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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1—Parallel importation of records

1 Subsection 10(1) (at the end of the definition of infringing copy)

Add:

; or (h) a non‑infringing copy of a sound recording whose importation does not infringe that copyright.

2 Subsection 10(1)

Insert:

non-infringing copy of a sound recording has the meaning given by section 10AA.

3 After section 10

Insert:

10AA Non‑infringing copy of a sound recording

Minimum requirements

(1) A copy of a sound recording is a non‑infringing copy only if it is made by or with the consent of:

(a) the owner of the copyright or related right in the sound recording in the country (the copy country) in which the copy was made; or

(b) the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the copy country did not provide for copyright or a related right in sound recordings when the sound recording was made; or

(c) the maker of the sound recording, if neither the law of the copy country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when the sound recording was made.

Extra requirements for copies of recordings of works subject to Australian copyright

(2) If the sound recording is of a work that is a literary, dramatic or musical work in which copyright subsists in Australia, the copy is a non‑infringing copy only if:

(a) copyright subsists in the work under the law of the copy country; and

(b) the making of the copy does not infringe the copyright in the work under the law of the copy country; and

To avoid doubt, the requirements of this subsection are additional to those of subsection (1).

Requirements for copy country

(3) The copy country mentioned in subsection (2) must:

(a) be a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or

(b) be a member of the World Trade Organization and have a law that provides consistently with the TRIPS Agreement for:

(i) the ownership and duration of copyright in literary, dramatic and musical works; and

(ii) the owner of the copyright in the work to have rights relating to the reproduction of the work.

Australian copyright may result from Act or regulations

(4) For the purposes of subsection (2) it does not matter whether the copyright in the work subsists in Australia as a result of this Act or as a result of the regulations made for the purposes of section 184.

4 At the end of Division 3 of Part III

Add:

44D Import of non‑infringing copy of sound recording does not infringe copyright in works recorded

(1) The copyright in a literary, dramatic or musical work is not infringed by a person who:

(a) imports into Australia a non‑infringing copy of a sound recording of the work; or

(b) does an act described in section 38 involving an article that is a non‑infringing copy of a sound recording of the work and has been imported into Australia by anyone.

Note: In a civil action for infringement of copyright, a copy of a sound recording is presumed not to be a non‑infringing copy of the sound recording unless the defendant proves it is. See section 130A.

(2) This section applies to a copy of a sound recording only if, when the copy is imported into Australia, the sound recording has been published:

(a) in Australia; or

(b) in another country (the publication country) by or with the consent of:

(i) the owner of the copyright or related right in the sound recording in the publication country; or

(ii) the owner of the copyright or related right in the sound recording in the country (the original recording country) in which the sound recording was made, if the law of the publication country did not provide for copyright or a related right in sound recordings when publication occurred; or

(iii) the maker of the sound recording, if neither the law of the publication country nor the law of the original recording country (whether those countries are different or not) provided for copyright or a related right in sound recordings when publication occurred.

Note: Subsection 29(6) deals with unauthorised publication.

(3) In subsection (2):

owner of the copyright or related right in the sound recording means the owner at the time publication of the sound recording occurred.

(4) The copyright in a work a copy of which is on, or embodied in, a non‑infringing accessory to a non‑infringing copy of a sound recording is not infringed by importing the accessory with the copy.

(5) Section 38 does not apply to a copy of a work, being a copy that is on, or embodied in, a non‑infringing accessory to a non‑infringing copy of a sound recording, if the importation of the accessory is not an infringement of copyright in the work.

5 Subsections 102(1) and 103(1)

Omit “and 112C”, substitute “, 112C and 112D”.

6 At the end of Division 6 of Part IV

Add:

112D Import of non‑infringing copy of a sound recording does not infringe copyright in the sound recording

(1) The copyright in a sound recording is not infringed by a person who:

(a) imports into Australia a non‑infringing copy of the sound recording; or

(b) does an act described in section 103 involving an article that is a non‑infringing copy of the sound recording and has been imported into Australia by anyone.

(2) This section applies to a copy of a sound recording only if, when the copy is imported into Australia, the sound recording has been published:

(a) in Australia; or

(b) in another country (the publication country) by or with the consent of:

(i) the owner of the copyright or related right in the sound recording in the publication country; or

Note: Subsection 29(6) deals with unauthorised publication.

(3) In subsection (2):

owner of the copyright or related right in the sound recording means the owner at the time publication of the sound recording occurred.

7 After section 130

Insert:

130A Acts relating to imported copies of sound recordings

In an action for infringement of copyright described in section 37, 38, 102 or 103 by an act involving an article that is a copy of a sound recording, it must be presumed that the copy is not a non‑infringing copy unless the defendant proves that the copy is a non‑infringing copy.

Note 1: Sections 37 and 38 deal with infringement of copyright in literary, dramatic and musical works (among other things) by commercial importation and dealings involving articles.

Note 2: Sections 102 and 103 deal with infringement of copyright in sound recordings (among other things) by commercial importation and dealings involving articles.

8 Subsection 135(10)

Omit “44A or 112A”, substitute “44A, 44D, 112A or 112D”.

9 Application

The amendments made by this Schedule apply in relation to copies of sound recordings imported into Australia after the commencement of this Act.

Schedule 2—Amendment of penalties

1 After subsection 132(6)

Insert:

(6A) A person who contravenes subsection (1), (2), (2A), (3), (5) or (5AA) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

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.

2 Subsections 133(1), (2) and (3)

Repeal the subsections.

Note: The heading to section 133 is replaced by the heading “Destruction or delivery up of infringing copies etc.”.

3 Paragraphs 133A(1)(c) and (d)

Repeal the paragraphs, substitute:

(c) a fine not exceeding 15 penalty units and/or imprisonment for not more than 6 months, if the person is an individual; or

(d) a fine not exceeding 150 penalty units, if the person is a body corporate.

4 After subsection 248P(7)

Insert:

(7A) A person who contravenes subsection (1), (2), (3), (4), (5) or (6) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

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.

5 At the end of section 248Q

Add:

(8) A person who contravenes subsection (1), (2), (3), (4) or (6) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

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.

6 At the end of section 248QA

Add:

(6) A person who contravenes subsection (2), (3), (4) or (5) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

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.

7 Sections 248QB and 248R

Repeal the sections, substitute:

248QB Protection against multiple prosecutions for same act

If a single act done in relation to a performance is an offence against either section 248P or 248Q and an offence against section 248QA, only one of the offences may be prosecuted.

[Minister's second reading speech made in—

House of Representatives on 20 November 1997

Senate on 27 November 1997]

(211/97)

Overview

The Copyright Amendment Act (No. 2) 1998 was enacted by the Parliament of Australia to address issues surrounding the importation of sound recordings and the enforcement of copyright in the digital age. This Act amends the Copyright Act 1968 to clarify the conditions under which the importation of sound recordings does not constitute copyright infringement. Specifically, it introduces provisions to define what constitutes a non-infringing copy of a sound recording and under what circumstances such imports are permissible. The policy objective of this legislation is to balance the rights of copyright holders with the interests of consumers, ensuring that legitimate copies of sound recordings can be imported without infringing copyright laws while still protecting the rights of creators and producers. The Act also revises penalties for copyright infringement to reflect contemporary standards and to provide a more proportionate response to violations. By updating the penalties and clarifying the conditions under which certain importations are not considered infringing, the Copyright Amendment Act (No. 2) 1998 aims to align Australian copyright law with international obligations and modern market realities, thereby fostering a fair and balanced environment for both copyright holders and consumers.

Scope and Application

The Copyright Amendment Act (No. 2) 1998 applies to persons and entities that import sound recordings into Australia and is an amendment to the Copyright Act 1968, thereby affecting the industries involved in the production and distribution of sound recordings. The Act aims to address the issue of parallel importation of sound recordings, which involves the importation of copies of sound recordings that are legally produced and distributed in other countries but not in Australia. The Act's provisions apply to copies of sound recordings imported into Australia after the commencement of the Act. The Act's reach is national, as it is a Commonwealth Act. The Act includes specific exclusions and conditions for what constitutes a non-infringing copy of a sound recording, particularly concerning the rights of the copyright owner in the country of origin and the requirements for the country of importation. The Act also modifies penalties for copyright infringements involving sound recordings, providing specific fines and imprisonment terms for contraventions. The application of the Act may be extended or restricted through subordinate instruments, such as regulations, which may provide further detail or clarification on the provisions outlined in the primary Act.

Key Provisions

The Copyright Amendment Act (No. 2) 1998 amends the Copyright Act 1968 by introducing provisions related to the importation of sound recordings. Specifically, section 10AA of the Act defines what constitutes a non-infringing copy of a sound recording, which is a key concept for determining whether the importation of such copies infringes copyright. Section 44D and 112D further clarify that importing a non-infringing copy of a sound recording into Australia does not infringe the copyright in the literary, dramatic or musical works, or the sound recording itself, provided certain conditions are met. The Act also includes provisions that affect the burden of proof in civil actions involving imported copies of sound recordings (section 130A). The obligations imposed by the Act on parties or entities include ensuring that any imported copies of sound recordings meet the criteria for being non-infringing copies, as defined in section 10AA. This involves verifying the consent of the copyright owner or related rights holder in the relevant countries, and ensuring that the sound recording has been published with the appropriate consents. For entities dealing with imported sound recordings, it is crucial to understand these obligations to avoid potential copyright infringement claims. Breaching the provisions of the Copyright Amendment Act (No. 2) 1998 can result in significant legal consequences. The Act introduces specific offences for various copyright infringement activities, with penalties including fines and imprisonment. For example, subsection 132(6A) imposes a fine of up to 550 penalty units and/or imprisonment for up to 5 years for contraventions related to copyright infringement. Corporations may face higher fines, up to five times the maximum fine for individuals. The Act also includes provisions to prevent multiple prosecutions for the same act, ensuring that offenders are not unfairly penalized multiple times for a single infringement. These penalties underscore the importance of compliance with the Act’s provisions to avoid severe legal repercussions.

Area of Law: Intellectual Property Law
Instrument: Act
Concepts: Commencement Provisions; Reporting & Disclosure Obligations; Prohibited Conduct; Regulatory Standards

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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