US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004 Schedule 9

US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004
Schedule 9—Copyright amendments

Part 1—Performers' rights in sound recordings

Copyright Act 1968

1
Paragraph 22(3)(a)

After "sound recording", insert ", other than a sound recording of a live performance,".

Note 1: The following heading to subsection 22(1) is inserted "Literary, dramatic, musical or artistic works".
Note 2: The following heading to subsection 22(3) is inserted "Sound recordings".

2
After subsection 22(3)

Insert:

(3A): For the purposes of this Act, the makers of a sound recording of a live performance are:

(a) the person or persons who, at the time of the recording, own the record on which the recording is made; and
(b) the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Note: A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.

(3B): If:

(a) a sound recording of a live performance is made; and
(b) a performer performs in that performance under the terms of his or her employment by another person (the employer) under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken to be a maker instead of that performer.

(3C): Subsection (3B) may be excluded or modified by agreement between the performer and the employer.

Note 1: The following heading to subsection 22(4) is inserted "Cinematograph films".
Note 2: The following heading to subsection 22(5) is inserted "Broadcasts and other communications".

3
At the end of section 22

Add:

Definitions

(7): In this section:

live performance means:

(a) a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or
(b) a performance (including an improvisation) of a musical work or part of such a work; or
(c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a variety act or any similar presentation or show; or
(f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance:

(a) means each person who contributed to the sounds of the performance; and
(b) if the performance includes a performance of a musical work—includes the conductor.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

4
Section 84

Repeal the section, substitute:

84
Definitions

In this Part:

live performance means:

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance:

(a) means each person who contributed to the sounds of the performance; and
(b) if the performance includes a performance of a musical work—includes the conductor.

qualified person means:

(a) an Australian citizen, an Australian protected person or a person (other than a body corporate) resident in Australia; or
(b) a body corporate incorporated under a law of the Commonwealth or of a State.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

5
Before section 97

Insert:

Subdivision A—Ownership of copyright in subject-matter other than works
6
Subsection 97(2)

Omit "the next succeeding subsection", substitute "subsection (3)".

7
After subsection 97(2)

Insert:

(2A): If there is more than one owner of the copyright in a sound recording of a live performance, the owners own the copyright as tenants in common in equal shares.

8
At the end of Division 5 of Part IV

Add:

Subdivision B—Specific provisions relating to the ownership of copyright in pre-commencement sound recordings of live performances
100AA
Application

This Subdivision applies to a sound recording of a live performance if:

(a) copyright subsists in the recording on the day on which this section commences; and
(b) at least one person would become a maker of the recording under paragraph 100AD(1)(b) or subsection 100AD(2).

100AB
Definitions

In this Subdivision:

former owner of the copyright in a sound recording of a live performance means a person mentioned in paragraph 100AD(1)(a).

new owner of the copyright in a sound recording of a live performance means the following people:

(a) a person who becomes a maker of a sound recording under paragraph 100AD(1)(b);
(b) if subsection 100AD(2) applies—an employer who becomes a maker of a sound recording under that subsection.

Note: Other expressions used in this Subdivision are defined in section 84.

100AC
Application of sections 100AD and 100AE

Sections 100AD and 100AE have effect subject to Parts VII and X.

100AD
Makers of pre-commencement sound recordings of live
performances

(1): For the purpose of section 100AE, the makers of a sound recording of a live performance are:

(a) the person or persons who, immediately before the commencement of this section, owned the copyright subsisting in the recording; and
(b) the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Employer may be a maker of the sound recording

(2): If:

(a) a sound recording of a live performance was made; and
(b) a performer performed in that performance under the terms of his or her employment by another person (the employer) under a contract of service or apprenticeship;

then, for the purposes of paragraph (1)(b), the employer is taken to be a maker instead of that performer.

(3): Subsection (2) may be excluded or modified by an agreement (whether made before or after the live performance) between the performer and the employer.

100AE
Ownership of pre-commencement copyright in sound recordings of
live performances

Ownership of the copyright

(1): On and after the day on which this section commences, all makers of a sound recording of a live performance are owners of any copyright subsisting in the recording by virtue of this Part.

Division of the ownership of the copyright

(2): The former owners of the copyright and the new owners of the copyright each own half of the copyright as tenants in common in 2 equal shares.
(3): The former owners own their half of the copyright in the same proportions as the whole copyright was owned by them immediately before the commencement of this section.
(4): The new owners own their half of the copyright as tenants in common in equal shares.
(5): Subsections (3) and (4) do not limit section 196.
(6): Subsection (3) does not otherwise affect the terms on which the former owners own their half of the copyright.

Copyright to devolve if a new owner is not alive

(7): If a new owner is not alive on the day on which this section commences, then, for the purposes of subsections (2) and (4), that owner is replaced by the person to whom the copyright would have devolved if the new owner had owned the copyright immediately before his or her death. If the copyright would have devolved to more than one person, those persons are to be treated as a single new owner for the purposes of subsections (2) and (4).

100AF
Former owners may continue to do any act in relation to the
copyright

(1): On and after the day on which this section commences, a former owner of the copyright in a sound recording of a live performance may:

(a) do an act comprised in the copyright; or
(b) do any other act in relation to the copyright;

as if each new owner of the copyright had granted a licence or permission (however described) to the former owner to do the act.

Note: However, the former owner may still need to obtain the consent of other former owners of the copyright before doing the act.

(2): Subsection (1) applies to:

(a) the former owner's licensees and successors in title; and
(b) any persons who are authorised by the former owner; and
(c) any persons who are authorised by the former owner's licensees or successors in title;

in the same way as it applies to the former owner.

(3): Subsections (1) and (2) may be excluded or modified by an agreement (whether made before or after this section commences) between the former owner and a new owner.

100AG
Actions by new owners of copyright

If a new owner of the copyright in a sound recording of a live performance brings an action under this Act in respect of the copyright, the new owner is not entitled to the remedies listed in the table.

Actions under this Act
Item	In this case...	the new owner is not entitled to:
1	the action is for an infringement of the copyright under section 115	(a) damages (other than additional damages); or (b) an account of profits
2	the action is for conversion or detention under section 116	(a) damages (other than additional damages); or (b) an account of profits; or (c) any other pecuniary remedy (other than costs); or (d) delivery up of an infringing copy
3	the action is brought under section 116A, 116B or 116C	(a) damages (other than additional damages); or (b) an account of profits

100AH
References to the owner of the copyright in a sound
recording

A new owner of the copyright in a sound recording of a live performance is taken not to be the owner of the copyright for the purposes of the following provisions:

(a) sections 107, 108 and 109 (in Part IV);
(b) sections 119 and 133 (in Part V);
(c) the definitions of licence and licensor in subsection 136(1), and sections 150, 151, 152, 153E, 153F, 153G, 159 and 163A (in Part VI);
(d) section 183 (in Part VII).

Note: A new owner of the copyright in a sound recording of a live performance is not a relevant right holder under section 135A, nor a relevant copyright owner under section 135ZB or 135ZZI.

9
At the end of Division 7 of Part IV

Add:

113A
Agents may act on behalf of groups of performers

(1): This section applies in respect of all members of a group of performers who have an interest in the copyright in a sound recording of a live performance.
(2): All members of the group are taken to have granted a licence or permission (however described) to a person:

(a) to do an act comprised in the copyright; or
(b) to do any other act in relation to the copyright;

if an agent of the group, acting within the scope of his or her actual or apparent authority, has granted a licence or permission to the person to do the act.

Note: The person may still need to obtain the licence or permission of other owners of the copyright before doing the act.

113B
Consent to the use of a sound recording of a live
performance

A person is taken to have been granted a licence or permission (however described) by a performer to use a sound recording of a live performance if:

(a) the performer has given his or her consent to recording the performance for a particular purpose; and
(b) the recording is used for that purpose in accordance with the terms of the consent.

Note: The person may still need to obtain the consent of the other owners of the copyright in the sound recording of the live performance before using the sound recording.

113C
Use of published sound recordings when owners cannot be found
etc.

(1): An owner (the first owner) of the copyright in a sound recording of a live performance that is a published sound recording is taken to have been granted a licence or permission (however described) by another owner of the copyright to do an act comprised in the copyright, or to do any other act in relation to the copyright, if:

(a) the first owner has entered into an agreement with another person to do the act; and
(b) the first owner, after making reasonable inquiries, cannot discover the identity or location of the other owner or a person representing the other owner.

Note: The first owner may still need to obtain a licence or permission from any other owners of the copyright in the sound recording of the live performance.

(2): If the first owner does the act, then the first owner must hold the other owner's share of any amount received in respect of it on trust for 4 years after the day on which the agreement is entered into (unless the amount is distributed to, or on behalf of, the other owner before then).
(3): If during the 4 year period, the other owner is identified and located, the first owner must distribute the amount held on trust to, or on behalf of, the other owner. If at the end of the 4 year period, the other owner remains unidentified or is not located, the first owner may retain the amount.
(4): After initially making reasonable inquiries, the first owner is not required to continue making reasonable inquiries during the 4 year period.
(5): The other owner cannot prevent the first owner doing the act comprised in the copyright during the term of the agreement if the other owner is identified or located.

10
At the end of Division 2 of Part V

Add:

116AAA
Compensation for acquisition of property

(1): This section applies if, apart from this section, subsections 22(3A) and 97(2) and (2A) would result in the acquisition of property from a maker of a sound recording of a live performance by a performer in the performance otherwise than on just terms.
(2): There is payable to the maker by the performer such amount of compensation as is agreed on between those persons, or, failing agreement, as is determined by a court of competent jurisdiction.
(3): Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.
(4): Any compensation payable in a proceeding that is commenced under this section is to be taken into account in assessing any damages or compensation or other remedy to be awarded in a proceeding that is commenced otherwise than under this section and that arises out of the same event or transaction.
(5): In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

maker of a sound recording of a live performance means a person mentioned in paragraph 22(3A)(a).

performer in a live performance means the following people:

(a) a person who becomes a maker of a sound recording under paragraph 22(3A)(b);
(b) if subsection 22(3B) applies—an employer who becomes a maker of a sound recording under that subsection.

11
At the end of section 123

Add:

Note: However, not all owners of the copyright are entitled to an account of profits: see section 100AG.

12
At the end of section 124

Add:

Note: However, not all owners of the copyright are entitled to damages (other than additional damages) or an account of profits: see section 100AG.

13
Section 135ZB (at the end of the definition of relevant
copyright owner)

Add ", but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV".

14
Section 135ZZI (at the end of the definition of relevant
copyright owner)

Add ", but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV".

15
Application

The amendments made by items 1 to 7, 9 and 10 of this Part apply to a sound recording made on or after the day on which this item commences.

Note: The amendments made by the other items of this Part apply to a sound recording of a live performance in which copyright subsists on the day on which this item commences.

Part 2—Performers' moral rights

Copyright Act 1968

16
Part IX (heading)

Repeal the heading, substitute:

Part IX—Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films
17
Section 189 (definition of act of false
attribution)

Repeal the definition, substitute:

act of false attribution:

(a) in relation to an author's moral rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer's moral rights—has the meaning given by subsection 195AHA(2).

18
Section 189 (definition of attributable act)

Repeal the definition, substitute:

attributable act:

(a) in relation to an author's moral rights—has the meaning given by subsection 193(2); and
(b) in relation to a performer's moral rights—has the meaning given by subsection 195ABA(2).

19
Section 189 (definition of attributor)

Repeal the definition, substitute:

attributor:

(a) in relation to an author's moral rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer's moral rights—has the meaning given by subsection 195AHA(2).

20
Section 189

Insert:

copy record means a record so far as it embodies:

(a) a recorded performance; or
(b) a substantial part of a recorded performance;

being a record derived directly or indirectly from an original record of the performance.

21
Section 189 (definition of deal)

Omit "Division 3", substitute "Divisions 3 and 3A".

22
Section 189 (definition of derogatory
treatment)

Repeal the definition, substitute:

derogatory treatment:

(a) in relation to an author's moral rights—has the relevant meaning given by Division 4; and
(b) in relation to a performer's moral rights—has the meaning given by section 195ALB.

23
Section 189 (definition of infringing
article)

Repeal the definition, substitute:

infringing article means:

(a) in relation to an author's moral rights:
(i) an article that embodies a literary, dramatic, musical or artistic work, or a cinematograph film, whether or not the article bears or contains other material; or
(ii) a reproduction of, or of an adaptation of, a literary, dramatic or musical work; or
(iii) a reproduction of an artistic work; or
(iv) a copy of a cinematograph film;
being a work or film in respect of which a moral right of the author has been infringed, other than by derogatory treatment not involving the material distortion or alteration of, or the mutilation of, the work or film; and
(b) in relation to the moral rights of a performer in a live performance:
(i) a copy record of the live performance, where the making of the copy record has infringed the performer's right of attribution of performership; or
(ii) a record embodying the live performance, where a person's name is inserted or affixed on the record and the inserting or affixing has infringed the performer's right not to have performership falsely attributed; or
(iii) a record embodying the live performance, where the record also embodies sounds the making of which have infringed the performer's right not to have performership falsely attributed; or
(iv) a record embodying the live performance, being the live performance as affected by derogatory treatment that has infringed the performer's right of integrity of performership; and
(c) in relation to the moral rights of a performer in a recorded performance:
(i) a copy record of the recorded performance, where the making of the copy record has infringed the performer's right of attribution of performership; or
(ii) a record embodying the recorded performance, where a person's name is inserted or affixed on the record and the inserting or affixing has infringed the performer's right not to have performership falsely attributed; or
(iii) a copy record of the recorded performance, where dealings with the copy as a copy of an unaltered recorded performance have infringed the performer's right not to have performership falsely attributed; or
(iv) a record embodying the recorded performance, being a record that incorporates derogatory treatment that has infringed the performer's right of integrity of performership.

24
Section 189 (definition of moral right)

Repeal the definition, substitute:

moral right means:

(a) in relation to an author:
(i) a right of attribution of authorship; or
(ii) a right not to have authorship falsely attributed; or
(iii) a right of integrity of authorship; and
(b) in relation to a performer:
(i) a right of attribution of performership; or
(ii) a right not to have performership falsely attributed; or
(iii) a right of integrity of performership.

25
Section 189 (definition of name)

Omit "Division 3", substitute "Divisions 3 and 3A".

26
Section 189

Insert:

original record means a record produced upon the making of a sound recording of a live performance.

Note: The sound track of a cinematograph film is treated as not being a sound recording: see section 23.

27
Section 189

Insert:

performance means a performance within the meaning of Part XIA, so far as the performance consists of sounds.

28
Section 189

Insert:

performer in a performance:

(a) means each person who contributed to the sounds of the performance; and
(b) in relation to a performance that occurs outside Australia, does not include a person who is not a qualified person at the time of the performance.

Note: See also section 191B, which deals with the conductor of a musical performance.

29
Section 189

Insert:

performership means participation in a performance, as the performer or one of the performers.

30
Section 189

Insert:

person representing the performer means a person who, under subsection 195ANB(1) or (2), is entitled to exercise and enforce a performer's moral right.

31
Section 189

Insert:

qualified person has the same meaning as in Part XIA.

32
Section 189

Insert:

recorded performance means a performance embodied in a record so as to constitute a sound recording.

33
Section 189

Insert:

record embodying a performance means:

(a) an original record of a performance; or
(b) a copy record of a performance.

34
Section 189

Insert:

right not to have performership falsely attributed has the meaning given by Division 3A.

35
Section 189

Insert:

right of attribution of performership has the meaning given by Division 2A.

36
Section 189

Insert:

right of integrity of performership has the meaning given by Division 4A.

37
Section 189

Insert:

sound recording means a sound recording in which copyright subsists.

38
Section 189

Insert:

staged, in relation to a live performance, has the meaning given by section 191A.

39
After section 191

Insert:

191A
Staging a performance

For the purposes of this Part, a live performance is staged by the person who makes the arrangements necessary for the performance (including elements of the performance not consisting of sounds) to take place.

191B
Conductor to be treated as a performer

If a performance of a musical work is conducted by a conductor, then the sounds of the performance are to be treated as having been made by the conductor (as well as by the persons who actually made those sounds).

Note: As a consequence, the conductor will be able to be treated as being one of the performers. Note, however, the qualified person requirement in the definition of performer in section 189.

40
At the end of section 192

Add:

(2): The moral rights of a performer in a live performance or recorded performance are in addition to any other rights in relation to the performance that the performer or anyone else has under this Act.

41
After Division 2 of Part IX

Insert:

Division 2A—Right of attribution of performership
195ABA
Performer's right of attribution of performership

(1): A performer in a live performance or recorded performance has a right of attribution of performership in respect of the performance.
(2): The performer's right is the right to be identified in accordance with this Division as a performer in the performance if any of the acts (the attributable acts) mentioned in section 195ABB are done in respect of the performance.

Note: If there is more than one performer in a performance, then each performer has a right of attribution of performership: see subsection 195AZQ(2).

195ABB
Acts giving rise to right of attribution of
performership

(1): The attributable acts for a live performance are the following:

(a) communicating the live performance to the public;
(b) staging the live performance in public.

Note: For the definition of staged, see section 191A.

(2): The attributable acts for a recorded performance are the following:

(a) making a copy record of the recorded performance;
(b) communicating the recorded performance to the public.

195ABC
Nature of the identification of performer

(1): Subject to this section, a performer may be identified by any reasonable form of identification.
(2): If:

(a) a performer has made known, either generally or to a person who is required under this Part to identify the performer, that the performer wishes to be identified in a particular way; and
(b) the identification of the performer in that way is reasonable in the circumstances;

the identification is to be made in that way.

(3): If a performance is presented by performers who use a group name, then identification by using the group name is sufficient identification of the performers in the group.

195ABD
Identification of performer to be clear and reasonably
prominent or audible

An identification of a performer must be clear and reasonably prominent or reasonably audible.

195ABE
What is a reasonably prominent identification

When a copy record is made of a recorded performance, an identification of a performer or group of performers is taken to be reasonably prominent if it is included on each copy record of the recorded performance in such a way that a person acquiring the copy record will have notice of the identity of the performer or group.

42
After Division 3 of Part IX

Insert:

Division 3A—Right not to have performership falsely attributed
195AHA
Performer's right not to have performership falsely
attributed

(1): A performer in a live performance or recorded performance has a right not to have performership falsely attributed.
(2): A performer's right is the right not to have a person (the attributor) do, in respect of the live performance or recorded performance (as the case may be), any of the acts (the acts of false attribution) mentioned in sections 195AHB and 195AHC.

Note: If there is more than one performer in a performance, then each performer has a right not to have performership falsely attributed: see subsection 195AZQ(3).

195AHB
Acts of false attribution of performership

Acts of false attribution for live performances

(1): For a live performance, it is an act of false attribution for the stager of the performance, or a person authorised by the stager, to state falsely, or imply falsely, to the audience or intended audience immediately before the performance that:

(a) a person is, or will be, a performer in the performance; or
(b) the performance is being, or will be, presented by a particular group of performers.

Note: For the definition of staged, see section 191A.

Example 1: The stager of a live performance given by X and Y attributes the performance to A and B. This is an act of false attribution in relation to both X and Y.

Example 2: The stager of a live performance given by X and Y attributes the performance to X and A. This is an act of false attribution in relation to both X and Y (even though X is mentioned in the attribution).

(2): For a live performance, it is an act of false attribution for the stager of the performance, or a person authorised by the stager, to state falsely, or imply falsely, to the audience during the performance that:

(a) a person is, was, or will be a performer in the performance; or
(b) the performance is being, was, or will be, presented by a particular group of performers.

(3): For a live performance, it is an act of false attribution for the stager of the performance, or a person authorised by the stager, to state falsely, or imply falsely, to the audience immediately after the performance that:

(a) a person was a performer in the performance; or
(b) a particular group of performers presented the performance.

(4): However, doing an act mentioned in subsection (1), (2) or (3) is only an act of false attribution if the performance is in public or is communicated to the public. For this purpose, any unauthorised communication to the public is to be disregarded.

Acts of false attribution for recorded performances—individual performers

(5): For a recorded performance, each of the following acts is an act of false attribution:

(a) to insert or affix, or authorise the inserting or affixing of, a person's name in or on a record embodying the performance in such a way as to imply falsely that the person is a performer in the performance;
(b) to deal with a record embodying the performance if:
(i) a person's name has been inserted or affixed in or on the record as mentioned in paragraph (a); and
(ii) the attributor knows that the person is not a performer in the performance;
(c) to communicate the recorded performance to the public as being a performance in which a person is a performer, if the attributor knows that the person is not a performer in the performance.

Acts of false attribution for recorded performances—groups of performers

(6): For a recorded performance, each of the following acts is an act of false attribution:

(a) to insert or affix, or authorise the inserting or affixing of, a group name in or on a record embodying the performance in such a way as to imply falsely that the group are performers in the performance;
(b) to deal with a record embodying the performance if:
(i) a group name has been inserted or affixed in or on the record as mentioned in paragraph (a); and
(ii) the attributor knows that the group are not performers in the performance;
(c) to communicate the recorded performance to the public as being a performance in which a group are performers, if the attributor knows that the group are not performers in the performance.

Silent performers

(7): It is not an act of false attribution of performership to state that a performer who participated silently in a performance performed in the performance.

Example: X and Y together present a cabaret act in which X sings and Y dances silently. The "performance" for the purposes of this Part consists only of the sounds made by X. It is not an act of false attribution in respect of the performance to state or imply that Y was also a performer.

195AHC
Act of false attribution of performership of altered recorded
performance

(1): If the work is a recorded performance that has been altered by a person other than a performer in the performance, it is an act of false attribution of performership in relation to the performer to deal with a copy of the recorded performance as so altered, as being a copy of the unaltered recorded performance, if, to the knowledge of the attributor, the copy of the recorded performance is not a copy of the unaltered recorded performance.
(2): Subsection (1) does not apply if:

(a) the effect of the alteration is insubstantial; or
(b) the alteration was required by law to be made, or was otherwise necessary to avoid a breach of any law.

43
After Division 4 of Part IX

Insert:

Division 4A—Right of integrity of performership
195ALA
Performer's right of integrity of performership

(1): A performer in a live performance or recorded performance has a right of integrity of performership in respect of the performance.
(2): The performer's right is the right not to have the performance subjected to derogatory treatment.

Note: If there is more than one performer in a performance, then each performer has a right of integrity of performership: see subsection 195AZQ(4).

195ALB
Derogatory treatment of performance

In this Part:

derogatory treatment, in relation to a performer in a live performance or recorded performance, means the doing, in relation to the performance, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the performance that is prejudicial to the performer's reputation.

44
Before section 195AM

Insert:

Subdivision A—Duration and exercise of moral rights of authors

Note 1: The heading to section 195AM is altered by inserting "author's" after "Duration of".
Note 2: The heading to section 195AN is altered by inserting "author's" after "Exercise of".

45
At the end of Division 5 of Part IX

Add:

Subdivision B—Duration and exercise of moral rights of performers
195ANA
Duration of performer's moral rights for recorded
performances

(1): A performer's right of attribution of performership in respect of a recorded performance continues in force until copyright ceases to subsist in the recorded performance.
(2): A performer's right not to have performership falsely attributed in respect of a recorded performance continues in force until copyright ceases to subsist in the recorded performance.
(3): A performer's right of integrity of performership in respect of a recorded performance continues in force until the performer dies.

195ANB
Exercise of performer's moral rights

(1): If a performer in a live performance or recorded performance dies, the performer's moral rights in respect of the performance may be exercised and enforced by his or her legal personal representative.
(2): If the affairs of a performer in a live performance or recorded performance are lawfully administered by another person (except under a law for the relief of bankrupt or insolvent debtors), the performer's moral rights may be exercised and enforced by the person administering his or her affairs.
(3): Subject to this section, a moral right in respect of a live performance or recorded performance is not transmissible by assignment, by will, or by devolution by operation of law.
(4): If there are 2 or more performers in a live performance or recorded performance, then the performers may enter into a written co-performership agreement by which each of them agrees not to exercise his or her right of integrity of performership in respect of the live performance or recorded performance, as the case may be, except jointly with the other performer or performers.
(5): A co-performership agreement has effect according to its terms.

46
Before section 195AO

Insert:

Subdivision A—Infringement of moral rights of authors
47
Section 195AO

Omit "Division" (first occurring), substitute "Subdivision".

48
Section 195AP

Omit "Division", substitute "Subdivision".

49
Subsection 195AQ(1)

Omit "Division", substitute "Subdivision".

50
Section 195AVA

After "moral rights", insert "in respect of a work".

51
Section 195AVB

After "moral rights", insert "in respect of a work".

52
At the end of Division 6 of Part IX

Add:

Subdivision B—Infringement of moral rights of performers
195AXA
Infringement of right of attribution of
performership

Subject to this Subdivision, a person infringes a performer's right of attribution of performership in respect of a live performance or recorded performance if the person does, or authorises the doing of, an attributable act in respect of the performance without the identification of the performer in accordance with Division 2A as a performer in the performance.

195AXB
Infringement of right not to have performership falsely
attributed

Subject to this Subdivision, a person infringes a performer's right not to have performership falsely attributed if the person does an act of false attribution in respect of the performance.

195AXC
Infringement of right of integrity of performership

(1): This section has effect subject to this Subdivision.
(2): A person infringes a performer's right of integrity of performership in respect of a live performance or recorded performance if the person subjects the performance, or authorises the performance to be subjected, to derogatory treatment.
(3): If a live performance, as affected by derogatory treatment, has become a recorded performance, then a person infringes a performer's right of integrity of performership in respect of the live performance if the person does any of the following in respect of the recorded performance:

(a) makes a copy record of the recorded performance;
(b) communicates the recorded performance to the public;
(c) causes the recorded performance to be heard in public.

(4): If a recorded performance has been subjected to derogatory treatment, then a person infringes a performer's right of integrity of performership in respect of the recorded performance if the person does any of the following in respect of the recorded performance (as affected by the derogatory treatment):

(a) makes a copy record of the recorded performance;
(b) communicates the recorded performance to the public;
(c) causes the recorded performance to be heard in public.

195AXD
No infringement of right of attribution of performership if it
was reasonable not to identify the performer

(1): A person who does, or authorises the doing of, an attributable act in respect of a live performance or recorded performance does not, because a performer in the performance is not identified, infringe the performer's right of attribution of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances not to identify the performer.
(2): The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify a performer in a live performance or recorded performance include the following:

(a) the nature of the performance;
(b) the purpose for which the performance is used;
(c) the manner in which the performance is used;
(d) the context in which the performance is used;
(e) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(f) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(g) any difficulty or expense that would have been incurred as a result of identifying the performer;
(h) whether the performer participated in the performance in the course of the employment of the performer.

Note: For example, a performance may be used to attract custom in a hotel or restaurant.

195AXE
No infringement of right of integrity of performership if
derogatory treatment or other action was reasonable

(1): A person does not, by subjecting a live performance or recorded performance to derogatory treatment, or by authorising a live performance or recorded performance to be subjected to derogatory treatment, infringe a performer's right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to subject the performance to the treatment.
(2): The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances to subject a live performance or recorded performance to derogatory treatment include the following:

(a) the nature of the performance;
(b) the purpose for which the performance is used;
(c) the manner in which the performance is used;
(d) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(e) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(f) whether the performer who alleges that the treatment was derogatory participated in the performance in the course of the employment of the performer;
(g) whether the treatment was required by law or was otherwise necessary to avoid a breach of any law.

Note: For example, a performance may be used to attract custom in a hotel or restaurant.

(3): A person who:

(a) does an act referred to in subsection 195AXC(3) in respect of a live performance that has been subjected to derogatory treatment; or
(b) does an act referred to in subsection 195AXC(4) in respect of a recorded performance that has been subjected to derogatory treatment;

does not, by doing that act, infringe a performer's right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to do that act.

195AXF
Infringement by importation for sale or other
dealing

(1): A performer's moral right in respect of a live performance or recorded performance is infringed by a person who imports an article into Australia for the purpose of dealing with the article if the importer knew, or ought reasonably to have known, that, if the article had been made in Australia, it would have been an infringing article.
(2): In subsection (1):

dealing with does not include distributing except where the proposed distribution is for the purposes of sale.

195AXG
Infringement by sale and other dealings

(1): A performer's moral right in respect of a live performance or recorded performance is infringed by a person who, in Australia, deals with an article if the person knew, or ought reasonably to have known, that the article was an infringing article or, in respect of an imported article, would, if it had been made in Australia, have been an infringing article.
(2): In subsection (1):

deals with does not include:

(a) distributes, except where the distribution is for the purposes of sale; or
(b) deals with by means of a dealing covered by paragraph 195AHB(5)(b) or (6)(b).

195AXH
Matters to be taken into account

In determining whether a person has authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance, the matters that must be taken into account include the following:

(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

195AXI
Communication by use of certain facilities

A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance merely because another person uses the facilities so provided to do such an act.

195AXJ
Performer's consent to act or omission

(1): It is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do, or omit to do, something if the act or omission is within the scope of a written consent given by the performer or a person representing the performer.

Note: The consent of one performer does not affect the moral rights of any other performer: see subsection 195AZQ(5).

(2): A consent may be given in relation to all or any acts or omissions occurring before or after the consent is given.
(3): A consent may be given in relation to:

(a) a specified performance or specified performances occurring before the consent is given; or
(b) a performance or performances of a particular description:
(i) that have not yet occurred; or
(ii) that are in the course of occurring.

(4): A consent may be given by an employee for the benefit of his or her employer in relation to all performances in which the employee is to be a performer in the course of his or her employment.
(5): A consent given for the benefit of the owner or prospective owner of copyright in the recorded performance or recorded performances to which the consent relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.
(6): Subsections (2) to (5), inclusive, do not limit the operation of subsection (1).

195AXK
Consent invalidated by duress or false or misleading
statements

(1): If a person applies duress to a performer or, if a performer is represented by a person, to the person representing the performer, in connection with the giving of a consent for the purposes of section 195AXJ, the consent does not have any effect.
(2): If:

(a) a person makes a statement to another person; and
(b) the person makes the statement knowing:
(i) that the statement is false or misleading in a material particular; or
(ii) that a matter or thing has been omitted from the statement without which the statement is false or misleading in a material particular; and
(c) the person makes the statement with the intention of persuading the other person to give, or not to give, a consent for the purposes of section 195AXJ;

the consent does not have any effect.

195AXL
Acts or omissions outside Australia

It is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do, or omit to do, something outside Australia.

53
Before section 195AY

Insert:

Subdivision A—Remedies for infringement of moral rights of authors
54
Section 195AY

Omit "Division" (wherever occurring), substitute "Subdivision".

55
Sections 195AZB and 195AZC

Repeal the sections.

Note 1: The heading to section 195AZ is altered by inserting "author's" after "infringement of".
Note 2: The heading to section 195AZA is altered by inserting "author's" after "infringement of".
Note 3: The heading to section 195AZE is altered by inserting "author's" after "subsistence of".

56
At the end of Division 7 of Part IX

Add:

Subdivision B—Remedies for infringement of moral rights of performers
195AZGA
Definition etc.

(1): In this Subdivision:

action means a proceeding of a civil nature between parties, and includes a counterclaim.

(2): In the application of this Subdivision in relation to a counterclaim, references to the defendant are taken to be references to the plaintiff.

195AZGB
Actions for infringement of performer's moral
rights

If a person infringes any of the moral rights of a performer in respect of a live performance or recorded performance, then the performer or a person representing the performer may bring an action in respect of the infringement, subject to any co-performership agreement in force under section 195ANB to which the performer is a party.

195AZGC
Remedies for infringements of performer's moral
rights

(1): Subject to section 203, the relief that a court may grant in an action for an infringement of any of a performer's moral rights in respect of a live performance or recorded performance includes any one or more of the following:

(a) an injunction (subject to any terms that the court thinks fit);
(b) damages for loss resulting from the infringement;
(c) a declaration that a moral right of the performer has been infringed;
(d) an order that the defendant make a public apology for the infringement;
(e) an order that any false attribution of performership, or derogatory treatment, of the performance be removed or reversed.

(2): In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to have been aware, of the performer's moral rights;
(b) the effect on the performer's reputation resulting from any damage to the performance;
(c) the number, and categories, of people who have heard the performance;
(d) anything done by the defendant to mitigate the effects of the infringement;
(e) if the moral right that was infringed was a right of attribution of performership—any cost or difficulty that would have been associated with identifying the performer;
(f) any cost or difficulty in removing or reversing any false attribution of performership, or derogatory treatment, of the performance.

(3): In deciding whether or not to grant an injunction under subsection (1), the court must consider whether the parties have made any attempt to negotiate a settlement of the action and whether it should adjourn the hearing or further hearing of the action for the purpose of giving the parties an appropriate opportunity to negotiate a settlement, whether through a process of mediation or otherwise.
(4): If, after the death of a performer, in respect of an act done in a live performance or recorded performance, damages are recovered under this section by the legal personal representative of the performer, those damages devolve as if they formed part of the performer's estate and as if the right of action in respect of the doing of the act had subsisted, and had been vested in the performer, immediately before his or her death.

Note: Subsection (4) does not apply in relation to the right of integrity of performership, which ends on the performer's death: see section 195ANA.

195AZGD
Presumption as to subsistence of copyright

In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, copyright is presumed to subsist in the recorded performance if the defendant does not put in issue the question whether copyright subsists in the recorded performance.

195AZGE
Presumption as to subsistence of performer's moral
rights

(1): In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, if copyright is presumed or proved to have subsisted in the recorded performance when the infringement is alleged to have occurred, then the moral right is presumed to have subsisted in the recorded performance at that time.
(2): This section has effect subject to subsection 195ANA(3).

195AZGF
Presumptions in relation to performership

(1): If a name purporting to be the name of a performer appears on a record embodying a performance so as to indicate that the person was a performer in the performance, then, in an action brought under this Part, the person whose name so appeared is, if it was his or her true name or a name by which he or she was commonly known, presumed, unless the contrary is established, to be a performer in the performance.
(2): If a name purporting to be the name of a group of performers appears on a record embodying a performance so as to indicate that the group performed in the performance, then, in an action brought under this Part, the group whose name so appeared is, if it was a name by which the group was commonly known, presumed, unless the contrary is established, to have performed in the performance.

Subdivision C—Miscellaneous
195AZGG
Saving of other rights and remedies

(1): Subject to this section, this Part does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under this Part.
(2): Any damages recovered in proceedings brought under this Part are to be taken into account in assessing damages in proceedings brought otherwise than under this Part and arising out of the same event or transaction.
(3): Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction.

195AZGH
Jurisdiction of courts

(1): The jurisdiction of the Supreme Court of a State or Territory in a matter arising under this Part is to be exercised by a single Judge of the Court.
(2): Subject to subsection (3), a decision of a court of a State or Territory (however constituted) under this Part is final.
(3): An appeal lies from a decision of a court of a State or Territory under this Part:

(a) to the Federal Court of Australia; or
(b) by special leave of the High Court, to the High Court.

(4): The Federal Court of Australia has jurisdiction with respect to matters arising under this Part.
(5): The Federal Magistrates Court has jurisdiction with respect to matters arising under this Part.

57
Before section 195AZH

Insert:

Subdivision A—Miscellaneous provisions about moral rights of authors
58
At the end of Division 8 of Part IX

Add:

Subdivision B—Miscellaneous provisions about moral rights of performers
195AZP
Parts of performances

Moral rights in respect of a live performance or recorded performance apply in relation to the whole or a substantial part of the performance.

195AZQ
Performances that have more than one performer

(1): This section applies to a live performance or recorded performance that has more than one performer.
(2): A performer's right of attribution of performership in respect of the performance is a right of the performer to be identified as a performer.

Example: If X and Y are the performers in a performance, then each of them has the right to be identified. However, there is no infringement of X's moral right if Y is not identified (and vice versa).

Note: See also subsection 195ABC(3), which relates to the use of group names.

(3): An act of false attribution of performership in respect of the performance infringes each performer's right not to have performership falsely attributed.

Example: X and Y are the performers in a performance that is falsely attributed to X and Z. This false attribution infringes X's moral right and Y's moral right.

(4): The right of integrity of performership in respect of the performance is a right of each performer.

Example: X and Y are the performers in a performance. The performance is subjected to derogatory treatment that is prejudicial to X's reputation but not to Y's reputation. The result is an infringement of X's right of integrity of performership but not an infringement of Y's right of integrity of performership.

(5): The consent of one performer to any act or omission affecting his or her moral rights in respect of the performance does not affect the moral rights of any other performer in respect of the performance.

195AZR
Application

(1): Moral rights in respect of a live performance only subsist in a live performance that occurs after the commencement of this section.
(2): Moral rights in respect of a recorded performance only subsist if the live performance concerned occurs after the commencement of this section.

Part 3—Performers' protection

Copyright Act 1968

59
Subsection 10(1) (at the end of the definition of
communicate)

Add ", including a performance or live performance within the meaning of this Act".

60
Subsection 248A(1) (paragraphs (a) and (b) of the definition
of exempt recording)

Repeal the paragraphs, substitute:

(a) an indirect cinematograph film of a performance, being a film made solely for the purpose of the private and domestic use of the person who made it;
(aa) an indirect sound recording of a performance, being a recording that is a fair dealing with the performance for the purpose of research or study;
(b) an indirect cinematograph film of a performance, being a film made solely for the purpose of use in scientific research;

61
Subsection 248A(1) (paragraphs (c), (d) and (e) of the
definition of exempt recording)

Omit "an indirect sound recording or an indirect cinematograph film of a performance, being a sound recording or film", substitute "an indirect cinematograph film of a performance, being a film".

62
Subsection 248A(1) (paragraph (f) of the definition of
exempt recording)

Omit "sound recording or".

63
Subsection 248A(1) (after paragraph (f) of the definition of
exempt recording)

Insert:

(fa) a direct or indirect sound recording of a performance, being a recording that is a fair dealing with the performance:
(i) for the purpose of criticism or review, whether of that performance or another performance; or
(ii) for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical; or
(iii) for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film;

64
Subsection 248A(1) (after paragraph (j) of the definition of
exempt recording)

Insert:

(ja) a copy of a sound recording referred to in paragraph (aa), (fa) or (g), being a copy made solely for a purpose referred to in any of those paragraphs;

65
Subsection 248A(1) (paragraph (k) of the definition of
exempt recording)

Omit "sound recording or".

66
Subsection 248A(1) (after subparagraph (n)(i) of the
definition of exempt recording)

Insert:

(ia) if the copy is of a sound recording—solely for a purpose referred to in paragraph (aa), (fa) or (g); or

67
Subsection 248A(1) (subparagraph (n)(ii) of the definition of
exempt recording)

Before "solely", insert "if the copy is of a cinematograph film—".

68
Subsection 248A(1) (definition of indirect)

Omit "broadcast, or a re-broadcast,", substitute "communication".

69
Subsection 248A(1) (definition of performance)

Repeal the definition, substitute:

performance means:

being a live performance:

(g) that is given in Australia, whether in the presence of an audience or otherwise; or
(h) that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise.

70
Subsection 248A(1)

Insert:

performer, in relation to a performance that is given outside Australia, does not include a person who is not a qualified person at the time of the performance.

71
After subsection 248A(1)

Insert:

(1A): For the purposes of paragraph (aa) of the definition of exempt recording, in determining whether a recording is a fair dealing with a performance for the purpose of research or study, regard must be had to the following matters:

(a) the purpose and character of the recording;
(b) the nature of the performance;
(c) the possibility of obtaining an authorised recording of the performance within a reasonable time at an ordinary commercial price;
(d) the effect of the recording upon the potential market for, or the value of, authorised recordings of the performance;
(e) if only part of the performance is recorded—the amount and substantiality of the part recorded when compared to the whole performance.

72
Section 248B

Omit "sound recording or".

73
After subsection 248C(1)

Insert:

(1A): A sound recording, or a copy of a sound recording, that is an exempt recording because it was made for a purpose referred to in paragraph (aa) or (fa) of the definition of exempt recording in subsection 248A(1) ceases to be an exempt recording if it is used for any other purpose without the authority of the performer.

74
Subsection 248C(2)

Omit "A sound recording or cinematograph film, or a copy of such a recording or film,", substitute "A cinematograph film, or a copy of a cinematograph film,".

75
Section 248D

Repeal the section, substitute:

248D
Private and domestic use

For the purposes of this Part, a cinematograph film is taken not to have been made for the private and domestic use of the person who made it if it is made for the purpose of:

(a) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(b) distributing it, whether for the purpose of trade or otherwise; or
(c) by way of trade exhibiting it in public; or
(d) broadcasting the film; or
(e) causing the film to be seen or heard in public.

76
Paragraph 248G(1)(b)

Omit "broadcasts or re-broadcasts the performance", substitute "communicates the performance to the public".

77
Subsection 248G(3)

Omit "broadcasts or re-broadcasts an authorised recording of a performance", substitute "communicates an authorised recording of a performance to the public".

78
At the end of section 248J

Add:

(4): If:

(a) a performer brings an action under this section that relates to a recording of a performance; and
(b) the relief granted in the action consists of or includes damages; and
(c) the performer has already been granted damages in an action under another section of this Act in relation to an infringement of his or her copyright in the recording; and
(d) the action referred to in paragraph (c) arose out of the same event or transaction as the action referred to in paragraph (a);

the amount of any damages referred to in paragraph (b) that, apart from this subsection, would be awarded to the performer is to be reduced by the amount of the damages referred to in paragraph (c).

(5): If:

(a) a performer brings an action under another section of this Act that relates to an infringement of his or her copyright in a recording of a performance; and
(b) the relief granted in the action consists of or includes damages; and
(c) the performer has already been granted damages in an action under this section in relation to the performance; and
(d) the action referred to in paragraph (c) arose out of the same event or transaction as the action referred to in paragraph (a);

the amount of any damages referred to in paragraph (b) that, apart from this subsection, would be awarded to the performer is to be reduced by the amount of the damages referred to in paragraph (c).

79
Subsection 248P(3)

Omit "broadcast or re-broadcast the performance", substitute "communicate the performance to the public".

80
After subsection 248P(7A)

Insert:

(7B): A person who makes an indirect recording solely for the purpose of his or her private and domestic use without the authority of the performer does not, by doing so, contravene subsection (2).

Note: A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

81
Subsection 248P(8)

Omit "broadcasts or re-broadcasts an authorised recording of a performance", substitute "communicates an authorised recording of a performance to the public".

82
After paragraph 248U(1)(a)

Insert:

(aa) so that the provisions apply in relation to recordings, made in that country, of performances in like manner as those provisions apply in relation to recordings of performances given in Australia;
(ab) so that the provisions apply in relation to broadcasts, made in that country, of performances in like manner as those provisions apply in relation to broadcasts of performances given in Australia;
(ac) so that the provisions apply in relation to recordings, made by persons who are citizens, nationals or residents of that country, of performances in like manner as those provisions apply in relation to recordings of performances given in Australia;

83
Subsection 248V(1)

Omit "(whether the lack of protection relates to the nature of the performance or the nationality, citizenship or country of residence of its performer, or all of those matters)", substitute "(whether the lack of protection relates to all or any of the ways that the provisions may be applied by the regulations under subsection 248U(1))".

84
Application

The amendments made by this Part apply to acts done, in respect of a performance, within the protection period of the performance after the day on which this item commences (even if the performance was given before that day).

Part 4—Copying and communicating broadcasts of performances

Copyright Act 1968

85
Section 135A

Insert:

performance has the same meaning as in Part XIA.

86
Section 135A

Insert:

performer has the same meaning as in Part XIA.

87
Section 135A (definition of relevant copyright
owner)

Repeal the definition.

88
Section 135A

Insert:

relevant right holder means:

(a) the owner of the copyright in a work, a sound recording or a cinematograph film (other than a new owner of the copyright in a sound recording of a live performance as defined in section 100AB); or
(b) a performer in a performance.

89
After subsection 135E(1)

Insert:

(1A): For the purposes of Part XIA, each performer of a performance is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the following paragraphs are satisfied:

(a) a remuneration notice, given by or on behalf of the administering body to the collecting society, is in force;
(b) if the copy or communication is made by, or on behalf of, a body administering an educational institution—the copy or communication is made solely for the educational purposes of the institution or of another educational institution;
(c) if the copy or communication is made by, or on behalf of, a body administering an institution assisting persons with an intellectual disability—the copy or communication is made solely for the purposes of use in the provision of assistance to persons with an intellectual disability by the institution or by another similar institution;
(d) the administering body complies with subsection 135K(1) or (3), or section 135KA, as the case requires, in relation to the copy or communication.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the copy or communication under Part XIA (performers' protection).

90
Subsection 135E(2)

After "subsection (1)" (first occurring), insert "or (1A)".

91
Paragraph 135E(2)(a)

After "paragraph (1)(b) or (c)", insert "or (1A)(b) or (c)".

92
Subsection 135E(2)

After "subsection (1)" (second occurring), insert "or (1A)".

93
After subsection 135F(1)

Insert:

(1A): For the purposes of Part XIA, each performer of a performance is taken to have authorised the making of a preview copy of a broadcast of the performance.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the preview copy under Part XIA (performers' protection).

94
Subsection 135F(5)

After "subsection 135E(1)", insert "or (1A)".

95
Subsection 135F(5)

After "paragraph 135E(1)(b) or (c)", insert "or (1A)(b) or (c), as the case requires".

96
Subsection 135F(6)

Omit "subsection (1) does", insert "subsections (1) and (1A) do".

97
At the end of section 135F

Add:

(8): For the purposes of Part XIA, each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of the performance if:

(a) the communication is made solely to enable an administering body to decide whether or not that copy should be retained:
(i) for the educational purposes of the institution administered by it; or
(ii) for use in the provision of assistance to persons with an intellectual disability by the institution administered by it; and
(b) the communication is made only to the extent necessary for the purpose mentioned in paragraph (a); and
(c) the communication is made within the preview period.

Note: The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA (performers' protection).

98
Paragraph 135H(2)(a)

After "works,", insert "performances,".

99
Subsections 135J(5) and 135JA(7)

Omit "subsections 135E(1) and 135F(1)", substitute "sections 135E and 135F".

100
Subparagraph 135KA(a)(i)

After "copyright", insert "or performers'".

101
Subsection 135P(3)

Omit "relevant copyright owners" (wherever occurring), substitute "relevant right holders".

102
Paragraph 135Q(b)

Omit "relevant copyright owners", substitute "relevant right holders".

103
At the end of section 135Z

Add:

(2): Nothing in this Part affects the right of a performer in a performance included in a broadcast to authorise an administering body:

(a) to make, or cause to be made, a sound recording or a cinematograph film of the performance; and
(b) to communicate, or cause to be communicated, that recording or film.

Note: The heading to section 135Z is altered by omitting "Relevant copyright owner" and substituting "Relevant right holder".

104
At the end of subsection 248G(1)

Add:

Note: An educational or other institution can copy and communicate a broadcast of a performance without the authority of the performer in some circumstances: see sections 135E and 135F.

105
At the end of subsection 248P(8)

Add:

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (8) (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.

106
Application

The amendments made by this Part apply in respect of copies of broadcasts, or communications of broadcasts, made after the day on which this item commences (even if the performance concerned was given before that day).

Part 5—Duration of copyright in photographs

Copyright Act 1968

107
Subsection 33(2)

Repeal the subsection, substitute:

(2): Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 50 years after the end of the calendar year in which the author of the work died.

108
Subsection 33(6)

Repeal the subsection.

109
Subsection 34(1)

Repeal the subsection, substitute:

(1): Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 50 years after the end of the calendar year in which the work was first published.

110
Subsection 34(2)

Omit "The last preceding subsection", substitute "Subsection (1)".

111
Subsection 34(2)

Omit "the expiration", substitute "the end".

112
Subsection 51(1)

Omit "the expiration of the calendar year in which the author of a literary, dramatic or musical work, or of an artistic work being a photograph or engraving,", substitute "the end of the calendar year in which the author of a literary, dramatic, musical or artistic work".

113
Subsection 81(3)

Omit "sections 33 and 51", substitute "section 33".

Note: This item omits an incorrect reference to a section.

114
At the end of section 127

Add:

(4): However, if the owner of the material or apparatus was a body corporate, then paragraph (3)(a) only applies if the presumption is required to determine the ownership of the copyright in the photograph.

Note: For example, the presumption does not apply if it is required to determine the duration of the copyright in the photograph.

115
At the end of section 208

Add:

(2): However, if the owner of the material on which the photograph was taken was a body corporate, then subsection (1) only applies in respect of references to the author of the photograph that relate to the ownership of the copyright in the photograph.

Note: For example, subsection (1) does not apply in relation to references to the author of the photograph that relate to the duration of the copyright in the photograph.

116
Section 212

Repeal the section.

117
Application

The amendments made by this Part apply to copyright in photographs that subsists on or after the day on which this item commences.

118
Compensation scheme for certain agreements made before Royal
Assent

Application of item

(1) This item applies if:

(a) the copyright in a photograph is owned by a person (the owner); and
(b) before the day on which this Act receives the Royal Assent, another person made a written and lawful agreement with a third party; and
(c) the agreement was entered into for the purposes of doing an act at a particular time that would, apart from this item, infringe the copyright; and
(ca) that time is no later than 2 years from the US FTA commencement day; and
(d) the agreement was made in reliance on the copyright having ceased to subsist before that time; and
(e) because of the amendments made by this Part the copyright continues to subsist past that time.

Owner may notify person that owner objects to person doing the act

(2) Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.

Owner may provide reasonable compensation to person

(3) If the owner does so, then the owner and the person may agree on:

(a) an amount of reasonable compensation that the owner is to provide to the person; and
(b) the day by which the owner is to provide the compensation.

(4) If the owner and the person cannot agree, either of them may apply to the Copyright Tribunal for the Tribunal to determine:

(a) an amount of reasonable compensation that the owner is to provide to the person; and
(b) the day by which the owner is to provide the compensation.

(4A) An amount of compensation agreed on or determined under this item or item 119 of this Schedule may only include compensation in respect of:

(a) costs incurred by the person for the purposes of doing the act mentioned in paragraph (1)(c); and
(b) costs incurred, or that may be incurred, by the person as a result of not being able to do that act.

(5) When the Copyright Tribunal has determined an amount of reasonable compensation, the owner is liable to pay that amount to the person by the day determined by the Tribunal. The person may recover that amount in a court of competent jurisdiction from the owner as a debt due to the person.

Person may do act if not notified by owner or if not paid reasonable compensation

(6) If the owner does not notify the person, or pay an amount of reasonable compensation to the person, in accordance with this item, then:

(a) the person may do the act mentioned in paragraph (1)(c) at any time after the copyright would, apart from the amendments made by this Part, have ceased to subsist and before the end of 2 years from the US FTA commencement day; and
(b) for the purposes of the Copyright Act 1968:
(i) the owner is not entitled to bring an action under that Act against the person in respect of the act; and
(ii) the person does not contravene a section of, or commit an offence under, that Act by doing the act.

(7) To avoid doubt, subitem (6) is an exception that a defendant may rely on for the purposes of section 13.3 of the Criminal Code.

Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).

(8) In this item:

owner, in relation to the copyright in a photograph at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the photograph at that time in respect of that act.
US FTA commencement day means the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.

119
Applications to Copyright Tribunal for determination of
reasonable compensation payable

(1) This item applies if an application is made to the Copyright Tribunal under item 118 of this Schedule for the determination of an amount of reasonable compensation to be paid by the owner of the copyright in a photograph to a person mentioned in paragraph 118(1)(b).
(2) The parties to the application are:

(a) the owner of the copyright; and
(b) the person mentioned in that paragraph.

(3) The Tribunal must consider the application and, after giving to the parties an opportunity of presenting their cases, must make an order determining an amount of reasonable compensation.

Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 118(4A) of this Schedule.

(4) In this item:

Part 6—Duration of copyright in works and other subject-matter

Copyright Act 1968

120
Subsection 33(2)

Omit "50 years", substitute "70 years".

121
Subsections 33(3) and (5)

Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".

122
Subsection 34(1)

Omit "50 years", substitute "70 years".

123
Subsection 81(2)

Omit "50 years after the expiration", substitute "70 years after the end".

124
Section 93

Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".

125
Section 94

Omit "the expiration of 50 years after the expiration" (wherever occurring), substitute "the end of 70 years after the end".

126
Paragraph 128(a)

Omit "50 years", substitute "70 years".

127
At the end of subsection 132(1)

Add:

Note: A person who makes an agreement before the US Free Trade Agreement Implementation Act 2004 receives the Royal Assent might not commit an offence under this section: see items 118 and 132 of Schedule 9 to that Act.

128
Paragraphs 187(2)(b) and 188(2)(b)

Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".

129
Paragraph 188(3)(b)

Omit "expiration" (wherever occurring), substitute "end".

130
Subsection 220(3)

Repeal the subsection.

131
Application

The amendments made by this Part apply to copyright in works and other subject-matter that subsists on or after the day on which this item commences.

132
Compensation scheme for certain agreements made before Royal
Assent

Application of item

(1) This item applies if:

(a) the copyright in a work or other subject-matter is owned by a person (the owner); and
(b) before the day on which this Act receives the Royal Assent, another person made a written and lawful agreement with a third party; and
(c) the agreement was entered into for the purposes of doing an act at a particular time that would, apart from this item, infringe the copyright; and
(ca) that time is no later than 2 years from the US FTA commencement day; and
(d) the agreement was made in reliance on the copyright having ceased to subsist before that time; and
(e) because of the amendments made by this Part the copyright continues to subsist past that time.

Owner may notify person that owner objects to person doing the act

(2) Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.

Owner may provide reasonable compensation to person

(3) If the owner does so, then the owner and the person may agree on:

(a) an amount of reasonable compensation that the owner is to provide to the person; and
(b) the day by which the owner is to provide the compensation.

(4) If the owner and the person cannot agree, either of them may apply to the Copyright Tribunal for the Tribunal to determine:

(a) an amount of reasonable compensation that the owner is to provide to the person; and
(b) the day by which the owner is to provide the compensation.

(4A) An amount of compensation agreed on or determined under this item or item 133 of this Schedule may only include compensation in respect of:

Person may do act if not notified by owner or if not paid reasonable compensation

(6) If the owner does not notify the person, or pay an amount of reasonable compensation to the person, in accordance with this item, then:

(7) To avoid doubt, subitem (6) is an exception that a defendant may rely on for the purposes of section 13.3 of the Criminal Code.

Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).

(8) In this item:

owner, in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.
US FTA commencement day means the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.

133
Applications to Copyright Tribunal for determination of
reasonable compensation payable

(1) This item applies if an application is made to the Copyright Tribunal under item 132 of this Schedule for the determination of an amount of reasonable compensation to be paid by the owner of the copyright in a work or other subject-matter to a person mentioned in paragraph 132(1)(b).
(2) The parties to the application are:

(a) the owner of the copyright; and
(b) the person mentioned in that paragraph.

(3) The Tribunal must consider the application and, after giving to the parties an opportunity of presenting their cases, must make an order determining an amount of reasonable compensation.

Note: The amount of compensation may only include compensation in respect of certain costs: see subitem 132(4A) of this Schedule.

(4) In this item:

Part 7—Electronic rights management information

Copyright Act 1968

134
Subsection 10(1) (definition of electronic rights management
information)

Repeal the definition, substitute:

electronic rights management information, in relation to a work or other subject-matter, means information that:

(a) is electronic; and
(b) either:
(i) is or was attached to, or is or was embodied in, a copy of the work or subject-matter; or
(ii) appears or appeared in connection with a communication, or the making available, of the work or subject-matter; and
(c) either:
(i) identifies the work or subject-matter, and its author or copyright owner (including such information represented as numbers or codes); or
(ii) identifies or indicates some or all of the terms and conditions on which the work or subject-matter may be used, or indicates that the use of the work or subject-matter is subject to terms or conditions (including such information represented as numbers or codes).

135
Paragraph 116B(1)(a)

Repeal the paragraph, substitute:

(a) either:
(i) a person removes, from a copy of a work or other subject-matter in which copyright subsists, any electronic rights management information that relates to the work or other subject-matter; or
(ii) a person alters any electronic rights management information that relates to a work or other subject-matter in which copyright subsists; and

136
Subparagraph 116C(1)(a)(i)

Repeal the subparagraph, substitute:

(i) distributes a copy of the work or other subject-matter to the public;

Note: The heading to section 116C is replaced by the heading "Distribution to the public etc. of works whose electronic rights management information has been removed or altered".

137
Subparagraph 116C(1)(a)(ii)

Omit "for the purpose of trade", substitute "for distribution to the public".

138
Paragraph 116C(1)(b)

Repeal the paragraph, substitute:

(b) either:
(i) any electronic rights management information that relates to the work or other 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 other subject-matter has been altered; and

139
After section 116C

Insert:

116CA
Distribution and importation of electronic rights management
information that has been removed or altered

(1): This section applies if:

(a) a person does either of the following acts in relation to electronic rights management information that relates to a work or other subject-matter in which copyright subsists:
(i) distributes the electronic rights management information;
(ii) imports into Australia the electronic rights management information for distribution; and
(b) the person does so without the permission of the owner or exclusive licensee of the copyright; and
(c) 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
(d) the person knew that the information had been removed or altered without that permission; and
(e) the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright.

(2): If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person.
(3): In an action under subsection (2), it must be presumed that the defendant:

(a) had the knowledge referred to in paragraph (1)(d); and
(b) knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(e);

unless the defendant proves otherwise.

116CB
Exception relating to national security and law
enforcement

Sections 116B to 116CA do 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.

140
Subsections 116D(1) and (2)

Omit "or 116C", substitute ", 116C or 116CA".

Note: The heading to section 116D is altered by omitting "and 116C" and substituting ", 116C and 116CA".

141
Subsections 132(5C) and (5D)

Repeal the subsections, substitute:

Offences relating to electronic rights management information

(5C): 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 person is reckless as to whether the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.

(5D): 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 and obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject-matter into Australia with the intention of trading and 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 person is reckless as to whether the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

(5DA): 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 and obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information into Australia with the intention of trading and 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 person is reckless as to whether the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.

142
After subsection 132(5E)

Insert:

Defence for certain public institutions etc.

(5EA): Subsections (5C) to (5DB) do 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 paragraph (a) of the definition of archives or in 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: A library that is owned by a person conducting a business for profit might not itself be conducted for profit: see section 18.

143
Subsection 132(5J)

After "(5E),", insert "(5EA),".

144
Subsection 134(2)

Omit "or 116C", substitute ", 116C or 116CA".

145
Application

The amendments made by this Part apply in respect of acts done after the day on which this item commences.

Part 8—Criminal offences

Copyright Act 1968

146
Paragraphs 132(1)(b) and (c)

After "by way of trade", insert ", and with the intention of obtaining a commercial advantage or profit,".

Note: The following heading to subsection 132(1) is inserted "Offences relating to infringing copies".

147
Subparagraph 132(1)(d)(i)

After "by way of trade", insert ", and with the intention of obtaining a commercial advantage or profit,".

148
Subparagraph 132(1)(d)(ii)

After "for the purpose of trade,", insert "and with the intention of obtaining a commercial advantage or profit,".

149
Subparagraph 132(1)(d)(iii)

After "by way of trade", insert ", and with the intention of obtaining a commercial advantage or profit,".

150
Paragraph 132(2)(a)

After "for the purpose of trade", insert "and with the intention of obtaining a commercial advantage or profit".

151
Paragraph 132(2A)(a)

After "by way of trade", insert ", and with the intention of obtaining a commercial advantage or profit,".

152
Paragraph 132(2A)(b)

After "for the purpose of trade,", insert "and with the intention of obtaining a commercial advantage or profit,".

153
Paragraph 132(2A)(c)

After "by way of trade", insert ", and with the intention of obtaining a commercial advantage or profit,".

Note 1: The following heading to subsection 132(5) is inserted "Offence relating to infringing public performances of literary, dramatic or musical works".
Note 2: The following heading to subsection 132(5AA) is inserted "Offences relating to sound recordings or films heard or seen in public".
Note 3: The following heading to subsection 132(5A) is inserted "Offences relating to circumvention services and devices".

154
Before subsection 132(5E)

Insert:

Offence relating to significant infringement of copyright

(5DB): 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.

(5DC): In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (5DB)(d), the following matters are to be taken into account:

(a) the volume of any articles that are infringing copies that constitute the infringement or infringements;
(b) the value of any articles that are infringing copies that constitute the infringement or infringements;
(c) any other relevant matter.

155
Subsection 132(5E)

Omit "and (5B)", substitute "to (5DB)".

Note 1: The following heading to subsection 132(5E) is inserted "Defence relating to law enforcement and national security".
Note 2: The following heading to subsection 132(5F) is inserted "Permitted purpose exceptions".
Note 3: The following heading to subsection 132(6) is inserted "Section applies only in respect of acts done in Australia".
Note 4: The following heading to subsection 132(6AA) is inserted "Penalties".

156
Subsection 132(6A)

Omit "or (5D)", substitute ", (5D), (5DA) or (5DB)".

Note: The following heading to subsection 132(7) is inserted "Proceedings may be brought in Federal Court etc.".

157
Subsection 132(9)

Insert:

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.

Note: The following heading to subsection 132(9) is inserted "Definitions".

158
Subsection 132(9)

Insert:

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

159
At the end of section 132

Add:

Burden of proof relating to profit

(11): In a prosecution for an offence against this section, 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.

160
Application

The amendments made by this Part apply in respect of acts done after the day on which this item commences.

Part 9—Encoded broadcasts

Copyright Act 1968

161
Section 135AL

Insert:

channel provider means a person who:

(a) packages a channel (which might include programs produced by the person); and
(b) supplies a broadcaster with the channel; and
(c) carries on a business that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service.

162
Section 135AL

Insert:

copyright material means:

163
Section 135AL

Insert:

profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.

164
Subparagraph 135AN(1)(b)(iii)

After "distributes", insert "(including by exporting from Australia)".

Note 1: The following heading to subsection 135AN(1) is inserted "Actions in relation to the manufacture of and dealing with broadcast decoding devices".
Note 2: The following heading to subsection 135AN(2) is inserted "Exception relating to law enforcement and national security".

165
Subsection 135AN(3)

Repeal the subsection, substitute:

Who may bring an action

(3): Subject to subsection (8), if this section applies, the following persons may bring an action against the person mentioned in subsection (1):

(a) any person who has an interest in the copyright in the broadcast;
(b) any person who has an interest in the copyright in any content of the broadcast;
(c) the channel provider who supplies the broadcaster with the channel for the broadcast.

Note: See section 135AL for the definition of channel provider.

Note 1: The following heading to subsection 135AN(4) is inserted "Relief etc.".
Note 2: The following heading to subsection 135AN(7) is inserted "Presumption relating to defendant's knowledge".
Note 3: The following heading to subsection 135AN(8) is inserted "Limitation on bringing actions".

166
Subsection 135ANA(1)

Omit "this section", substitute "this subsection".

Note 1: The heading to section 135ANA is altered by omitting "for commercial purposes".
Note 2: The following heading to subsection 135ANA(1) is inserted "Actions in relation to the use of broadcast decoding devices".

167
Paragraph 135ANA(1)(b)

Omit "an encoded broadcast", substitute "the encoded broadcast".

168
Paragraph 135ANA(1)(c)

Repeal the paragraph.

169
After subsection 135ANA(1)

Insert:

(1A): Subject to subsection (2), this subsection applies if:

(a) a broadcaster makes an encoded broadcast; and
(b) a broadcast decoding device is used to gain access to the encoded broadcast without the authorisation of the broadcaster; and
(c) a person distributes (including by communicating), or authorises the distribution of, the broadcast that has been accessed by the device; and
(d) the distribution affects prejudicially a person who may bring an action under subsection (3); and
(e) the person knew tha