{"id":"C2004A03776","name":"Circuit Layouts Act 1989","slug":"circuit-layouts-act-1989","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"28 of 1989","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":36764,"registerId":"commonwealth-C2004A03776-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part I","sectionType":"part","heading":"Preliminary","content":"## Part I—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title [see Note 1]","content":"#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement [see Note 1]","content":"#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Extension to external Territories","content":"#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Act binds the Crown","content":"#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Interpretation","content":"#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Residence not affected by temporary absence","content":"#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.","sortOrder":6},{"sectionNumber":"7","sectionType":"section","heading":"Application to circuit layouts made before commencement","content":"#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.","sortOrder":7},{"sectionNumber":"8","sectionType":"section","heading":"Commercial exploitation","content":"#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.","sortOrder":8},{"sectionNumber":"9","sectionType":"section","heading":"Exclusive right","content":"#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.","sortOrder":9},{"sectionNumber":"10","sectionType":"section","heading":"Making an eligible layout","content":"#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.","sortOrder":10},{"sectionNumber":"11","sectionType":"section","heading":"Originality","content":"#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.","sortOrder":11},{"sectionNumber":"12","sectionType":"section","heading":"Licence of owner of EL rights","content":"#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.","sortOrder":12},{"sectionNumber":"13","sectionType":"section","heading":"Substantial part of eligible layout","content":"#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.","sortOrder":13},{"sectionNumber":"14","sectionType":"section","heading":"References to all joint makers","content":"#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.","sortOrder":14},{"sectionNumber":"15","sectionType":"section","heading":"References to any one or more joint makers","content":"#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.","sortOrder":15},{"sectionNumber":"Part II","sectionType":"part","heading":"EL rights in eligible layouts","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":16},{"sectionNumber":"Division 1","sectionType":"division","heading":"Ownership and nature of EL rights","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":17},{"sectionNumber":"16","sectionType":"section","heading":"Ownership of EL rights","content":"#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.","sortOrder":18},{"sectionNumber":"17","sectionType":"section","heading":"Nature of EL rights","content":"#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.","sortOrder":19},{"sectionNumber":"18","sectionType":"section","heading":"EL rights to subsist without regard to makers who are not eligible persons","content":"#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.","sortOrder":20},{"sectionNumber":"Division 2","sectionType":"division","heading":"Infringement of EL rights","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":21},{"sectionNumber":"19","sectionType":"section","heading":"Infringement","content":"#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.","sortOrder":22},{"sectionNumber":"Division 3","sectionType":"division","heading":"Acts that are not infringements of EL rights","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":23},{"sectionNumber":"20","sectionType":"section","heading":"Innocent commercial exploitation","content":"#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.","sortOrder":24},{"sectionNumber":"21","sectionType":"section","heading":"Copying for private use","content":"#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.","sortOrder":25},{"sectionNumber":"22","sectionType":"section","heading":"Copying for research or teaching purposes","content":"#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.","sortOrder":26},{"sectionNumber":"23","sectionType":"section","heading":"Evaluation or analysis","content":"#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).","sortOrder":27},{"sectionNumber":"24","sectionType":"section","heading":"Commercial exploitation of eligible layouts previously exploited under licence","content":"#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.","sortOrder":28},{"sectionNumber":"25","sectionType":"section","heading":"Use for purposes of defence or security","content":"#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.","sortOrder":29},{"sectionNumber":"Part III","sectionType":"part","heading":"Remedies for infringements of El rights","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":30},{"sectionNumber":"26","sectionType":"section","heading":"Application of Part to counterclaims","content":"#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.","sortOrder":32},{"sectionNumber":"27","sectionType":"section","heading":"Actions for infringement","content":"#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.","sortOrder":34},{"sectionNumber":"28","sectionType":"section","heading":"Limitation of actions","content":"#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.","sortOrder":35},{"sectionNumber":"29","sectionType":"section","heading":"Application","content":"#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.","sortOrder":37},{"sectionNumber":"30","sectionType":"section","heading":"Rights of exclusive licensee","content":"#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.","sortOrder":38},{"sectionNumber":"31","sectionType":"section","heading":"Joinder of owner or exclusive licensee as a party","content":"#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.","sortOrder":39},{"sectionNumber":"32","sectionType":"section","heading":"Defences available against exclusive licensee","content":"#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.","sortOrder":40},{"sectionNumber":"33","sectionType":"section","heading":"Assessment of damages where exclusive licence granted","content":"#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.","sortOrder":41},{"sectionNumber":"34","sectionType":"section","heading":"Apportionment of profits between owner and exclusive licensee","content":"#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.","sortOrder":42},{"sectionNumber":"35","sectionType":"section","heading":"Separate actions in relation to the same infringement","content":"#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.","sortOrder":43},{"sectionNumber":"36","sectionType":"section","heading":"Liability for costs","content":"#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.","sortOrder":44},{"sectionNumber":"Division 4","sectionType":"division","heading":"Proof of facts in actions","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":45},{"sectionNumber":"37","sectionType":"section","heading":"Presumptions as to subsistence and ownership of EL rights","content":"#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.","sortOrder":46},{"sectionNumber":"38","sectionType":"section","heading":"Affidavit evidence","content":"#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.","sortOrder":47},{"sectionNumber":"39","sectionType":"section","heading":"Evidentiary labels","content":"#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.","sortOrder":48},{"sectionNumber":"Division 5","sectionType":"division","heading":"Jurisdiction and appeals","content":"An Act to provide for the protection of certain layouts for integrated circuits, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title \\[see Note 1\\]\n\n  This Act may be cited as the Circuit Layouts Act 1989.\n\n#### 2 Commencement \\[see Note 1\\]\n\n  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.\n  (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.\n\n#### 3 Extension to external Territories\n\n  This Act extends to every external Territory.\n\n#### 4 Act binds the Crown\n\n  Subject to section 25, this Act binds the Crown.\n\n#### 5 Interpretation\n\n  In this Act:\n\n> action means a proceeding of a civil nature between parties, and includes a counterclaim.\n\n> circuit layout means a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit.\n\n> commercially exploited has the meaning given in section 8.\n\n> eligible foreign country means a foreign country declared by the regulations to be an eligible foreign country for the purposes of this Act.\n\n> eligible layout means an original circuit layout:\n\n    (a) the maker of which was, at the time the layout was made, an eligible person; or\n    (b) that was first commercially exploited in Australia or in an eligible foreign country.\n\n> eligible person means:\n\n    (a) an Australian citizen or a person resident in Australia;\n    (b) a body corporate incorporated by or under a law in force in a State or Territory;\n    (c) a citizen, national or resident of an eligible foreign country; or\n    (d) a body corporate incorporated by or under a law of an eligible foreign country.\n\n> EL rights means the exclusive rights specified in section 17 in relation to an eligible layout.\n\n> exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of EL rights, authorising the licensee, to the exclusion of all other persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do.\n\n> exclusive right has the meaning given in section 9.\n\n> future EL rights means EL rights that will come into existence at a future time or on the happening of a future event.\n\n> integrated circuit means a circuit, whether in a final form or an intermediate form, the purpose, or one of the purposes, of which is to perform an electronic function, being a circuit in which the active and passive elements, and any of the interconnections, are integrally formed in or on a piece of material.\n\n> material form, in relation to a circuit layout, includes any form of storage (whether visible or not) from which the layout, or a substantial part of it, can be reproduced.\n\n> other party, in relation to an owner of EL rights or the exclusive licensee of those rights, means the exclusive licensee or the owner, respectively.\n\n> prospective owner means:\n\n    (a) in relation to future EL rights that are not the subject of an agreement of the kind referred to in subsection 44(1)—the person who will be the owner of those rights when they come into existence; or\n    (b) in relation to future EL rights that are the subject of such an agreement‑the person in whom those rights will vest under that subsection when they come into existence.\n\n> protection period, in relation to an eligible layout, means the period beginning on the day on which the layout was made and ending:\n\n    (a) if the layout is first commercially exploited within 10 calendar years after the calendar year in which the layout was made‑at the end of the tenth calendar year after the calendar year in which the layout was first commercially exploited; and\n    (b) in any other case‑at the end of the period of 10 calendar years after the calendar year in which the layout was made.\n\n#### 6 Residence not affected by temporary absence\n\n  For the purposes of this Act, a person who at a material time was ordinarily resident in Australia or a foreign country but was temporarily absent from that country shall be treated as if he or she had been resident in Australia or that country, as the case may be, at that time.\n\n#### 7 Application to circuit layouts made before commencement\n\n  This Act applies in relation to a circuit layout, whether made before or after the commencement of Part II, but an action does not lie under Part III in respect of any act done before that commencement in relation to the layout, a copy of the layout, or an integrated circuit made in accordance with the layout.\n\n#### 8 Commercial exploitation\n\n  (1) For the purposes of this Act, a circuit layout shall be taken to have been commercially exploited if the layout, a copy of the layout, or an integrated circuit made in accordance with the layout (whether or not the integrated circuit is incorporated in another thing) is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n  (2) For the purposes of this Act, a copy of a circuit layout or an integrated circuit made in accordance with a circuit layout shall be taken to have been commercially exploited if it is:\n    (a) sold, let for hire or otherwise distributed by way of trade;\n    (b) offered or exposed for sale or hire, or other distribution by way of trade; or\n    (c) imported for the purpose of sale, letting for hire, or other distribution by way of trade.\n\n#### 9 Exclusive right\n\n  For the purposes of this Act, the exclusive right to do an act in relation to an eligible layout, or an integrated circuit made in accordance with an eligible layout, includes the exclusive right to authorise a person to do that act in relation to that layout or integrated circuit.\n\n#### 10 Making an eligible layout\n\n  For the purposes of this Act:\n    (a) a person who used a computer to make an eligible layout shall be taken to have made the layout; and\n    (b) an eligible layout shall be taken to have been made when it was first fixed in a material form.\n\n#### 11 Originality\n\n  Without otherwise limiting the meaning of the word original in this Act, a circuit layout shall be taken not to be original if:\n    (a) its making involved no creative contribution by the maker; or\n    (b) it was commonplace at the time it was made.\n\n#### 12 Licence of owner of EL rights\n\n  For the purposes of this Act, an act shall be taken to have been done with the licence of the owner of EL rights if doing that act was authorised by a licence binding the owner.\n\n#### 13 Substantial part of eligible layout\n\n  In this Act:\n    (a) a reference to doing an act (other than making) in relation to an eligible layout includes a reference to doing that act in relation to a substantial part of the layout;\n    (b) a reference to a copy of an eligible layout includes a reference to a copy of a substantial part of the layout; and\n    (c) a reference to an integrated circuit made in accordance with an eligible layout includes a reference to an integrated circuit made in accordance with a substantial part of the layout.\n\n#### 14 References to all joint makers\n\n  Subject to this Part, a reference in this Act to the maker of an eligible layout is, in relation to a jointly made eligible layout, a reference to all the makers of the layout, unless the contrary intention appears.\n\n#### 15 References to any one or more joint makers\n\n  A reference in the definition of eligible layout in section 5 to the maker of an original circuit layout is, in relation to a jointly made eligible layout, a reference to any one or more of the makers of the layout.\n\n  \n\n## Part II—EL rights in eligible layouts\n\n### Division 1—Ownership and nature of EL rights\n\n#### 16 Ownership of EL rights\n\n  (1) Subject to this section, the person who makes an eligible layout is the first owner of the EL rights in it.\n  (2) Where a layout is made by a person under the terms of his or her employment by another person under a contract of service or apprenticeship, that other person shall be taken to be the maker of the layout.\n  (3) The application of subsection (2) to the EL rights in a particular eligible layout may be excluded or modified by agreement.\n  (4) Where, before the commencement of Part II, a design applicable to an integrated circuit, or to part of an integrated circuit, or a design applicable to a mask used to make an integrated circuit, was registered under the Designs Act 1906, the owner (within the meaning of that Act) of the design shall, for the purposes of this Act, be taken to be the maker of the circuit layout for the integrated circuit, or the part of the integrated circuit, as the case requires.\n\n#### 17 Nature of EL rights\n\n  The owner of the EL rights in an eligible layout has, during the protection period of the layout, the following exclusive rights:\n    (a) to copy the layout, directly or indirectly, in a material form;\n    (b) to make an integrated circuit in accordance with the layout or a copy of the layout;\n    (c) to exploit the layout commercially in Australia.\n\n#### 18 EL rights to subsist without regard to makers who are not eligible persons\n\n  Section 16 has effect, in relation to a jointly made eligible layout of which one or more (but not all) of the makers are not eligible persons, as if the layout had been made solely by the other maker or makers.\n\n  \n\n### Division 2—Infringement of EL rights\n\n#### 19 Infringement\n\n  (1) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(a), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, copies, or authorises the copying, of the layout in a material form.\n  (2) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(b), is infringed by a person who, during the protection period of the layout and without the licence of the owner of that right, makes, or authorises the making of, an integrated circuit made in accordance with the layout.\n  (3) Subject to this Act, the EL right in an eligible layout, being the right referred to in paragraph 17(c), is infringed by a person who, during the protection period of the layout, without the licence of the owner, commercially exploits, or authorises the commercial exploitation of, the layout in Australia if the person knows or ought reasonably to know, that he or she is not licensed by the owner of that right to do so.\n\n  \n\n### Division 3—Acts that are not infringements of EL rights\n\n#### 20 Innocent commercial exploitation\n\n  (1) The EL rights in an eligible layout are not infringed by a person who commercially exploits, or authorises the commercial exploitation of, an unauthorised integrated circuit in Australia, being a circuit made in accordance with the layout, if, at the time when the person acquired the circuit, the person did not know, and could not reasonably be expected to have known, that the circuit was unauthorised.\n  (2) Where a person referred to in subsection (1) becomes aware, or could reasonably be expected to have become aware, that the integrated circuit is unauthorised, that subsection ceases to apply to any subsequent commercial exploitation of the circuit, unless the person pays to the owner or exclusive licensee of the EL rights in the layout such equitable remuneration as is agreed, or as is determined by a method agreed, between the person and the owner or exclusive licensee or, in default of agreement, as is determined by the Federal Court of Australia on application made by either of them.\n  (3) In this section:\n\n> unauthorised, in relation to an integrated circuit made in accordance with an eligible layout, means made without the licence of the owner of the EL rights in the layout.\n\n#### 21 Copying for private use\n\n  (1) The EL rights in an eligible layout are not infringed by making:\n    (a) a copy or copies of the layout; or\n    (b) an integrated circuit in accordance with the layout or with a copy of the layout;\n  for the private use of the person who does the making.\n  (2) A copy of an eligible layout, or an integrated circuit made in accordance with an eligible layout or with a copy of such a layout, shall not be taken to have been made for the private use of a person if the copy or integrated circuit, as the case may be, is commercially exploited or distributed otherwise than by way of trade to an extent that will prejudice the interests of the owner of the EL rights in the layout.\n\n#### 22 Copying for research or teaching purposes\n\n  The EL rights in an eligible layout are not infringed by making a copy or copies of the layout, or by making an integrated circuit in accordance with the layout or with a copy of the layout, for research or teaching purposes.\n\n#### 23 Evaluation or analysis\n\n  (1) The EL rights in an eligible layout are not infringed:\n    (a) by making a copy or copies of the layout for the purpose of evaluating or analysing the layout;\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of a copy or copies referred to in paragraph (a);\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n  (2) The EL rights in an eligible layout are not infringed:\n    (a) by making an integrated circuit in accordance with the layout, or with a copy of the layout, for the purpose of evaluating or analysing the layout; or\n    (b) by making an original circuit layout based on an evaluation or analysis carried out with the use of an integrated circuit referred to in paragraph (a); or\n    (c) by making an integrated circuit in accordance with an original circuit layout referred to in paragraph (b); or\n    (d) by copying or commercially exploiting in Australia an original circuit layout referred to in paragraph (b).\n\n#### 24 Commercial exploitation of eligible layouts previously exploited under licence\n\n  (1) Where:\n    (a) an eligible layout is commercially exploited, whether in Australia or elsewhere, by, or with the licence of, the owner of the EL rights in the layout; and\n    (b) a person acquires a copy of the layout, or an integrated circuit made in accordance with the layout, as a result of that commercial exploitation;\n  it is not an infringement of the EL rights in the layout if the person commercially exploits the copy or the integrated circuit in Australia.\n  (2) In spite of section 37 of the Copyright Act 1968 and section 38 of that Act to the extent that section 38 applies to imported articles, where the commercial exploitation of an integrated circuit containing a copy or adaptation of a work (being an integrated circuit made in accordance with an eligible layout) is not, under this section, an infringement of the EL rights in the layout, that commercial exploitation is not an infringement of the copyright in that work unless the making of that copy or adaptation was an infringement of that copyright.\n  (3) Expressions used in subsection (2) that are used and defined in the Copyright Act 1968 have the same respective meanings in that subsection as they have in that Act.\n\n#### 25 Use for purposes of defence or security\n\n  (1) An act done by the Commonwealth, or by a person authorised in writing by the Commonwealth, in relation to an eligible layout is not an infringement of the EL rights in the layout if:\n    (a) the act is for the defence or security of Australia; and\n    (b) the Commonwealth, or the authorised person, as the case may be, has unsuccessfully taken all reasonable steps to obtain the licence of the owner of the EL rights, on reasonable terms, to do the act.\n  (2) An authorisation may be given before or after the acts in respect of which it is given have been done.\n  (3) Where an act has been done under subsection (1) in relation to an eligible layout, the Commonwealth shall as soon as practicable inform the owner of the EL rights in the layout that the act has been done and give the owner such information about the doing of the act as the owner from time to time requires, unless informing the owner or disclosing the information would, or might reasonably be expected to, cause damage to the defence or security of Australia.\n  (4) Where an act has been done under subsection (1) in relation to an eligible layout, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed, or determined by a method agreed, between the Commonwealth and the owner of the EL rights or, in default of agreement, as are determined by the Federal Court of Australia on the application of either of them.\n  (5) Where an article is sold and the sale is, under subsection (1), not an infringement of EL rights, the purchaser of the article, and a person claiming through the purchaser, is entitled to deal with the article as if the Commonwealth were the owner of the EL rights.\n  (6) An act done under subsection (1) in relation to an eligible layout shall not be taken into account in calculating the protection period of the layout.\n  (7) Where an exclusive licence is in force in relation to any EL right, this section has effect as if references to the owner of the EL right were references to the exclusive licensee.\n\n  \n\n## Part III—Remedies for infringements of El rights\n\n### Division 1—Preliminary\n\n#### 26 Application of Part to counterclaims\n\n  In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.\n\n  \n\n### Division 2—Actions by owner of EL rights\n\n#### 27 Actions for infringement\n\n  (1) Subject to this Act, the owner of EL rights may bring an action for an infringement of those rights.\n  (2) Subject to this Act, the relief that a court may grant in an action for infringement of EL rights includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.\n  (3) Where, in an action for an infringement of EL rights, it is established that an infringement was committed but that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement, the plaintiff is not entitled to any damages against the defendant in respect of the infringement but is entitled to an account of profits in respect of the infringement, whether any other relief is granted or not.\n  (4) Where, in an action for infringement of EL rights:\n    (a) an infringement is established; and\n    (b) the court is satisfied that it is proper to do so, having regard to:\n    (i) the flagrancy of the infringement;\n    (ii) any benefit shown to have accrued to the defendant because of the infringement; and\n    (iii) all other relevant matters;\n  the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.\n\n#### 28 Limitation of actions\n\n  An action shall not be brought for an infringement of EL rights after the end of 6 years after the day when the infringement took place.\n\n  \n\n### Division 3—Proceedings where EL rights subject to exclusive licence\n\n#### 29 Application\n\n  This Division applies to proceedings in relation to any EL right in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.\n\n#### 30 Rights of exclusive licensee\n\n  Subject to this Division, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, under section 27 if he or she were the owner of the EL rights but:\n    (a) is not entitled to exercise those rights against the owner of the EL rights; and\n    (b) those rights and remedies are concurrent with the rights and remedies of the owner of the EL rights under that section.\n\n#### 31 Joinder of owner or exclusive licensee as a party\n\n  (1) Where:\n    (a) an action is brought by the owner of the EL rights, or by the exclusive licensee, under section 27; and\n    (b) the action relates, wholly or partly, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section;\n  the owner or licensee, as the case may be, is not entitled, except with the leave of the court, to proceed with the action, in so far as it relates to that infringement, unless the licensee or owner, respectively, is joined as a plaintiff in the action or added as a defendant.\n  (2) This section does not affect the granting of an interlocutory injunction on the application of the owner of the EL rights or the exclusive licensee.\n\n#### 32 Defences available against exclusive licensee\n\n  In an action under section 27 by the exclusive licensee, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the EL rights is available to that defendant against the exclusive licensee.\n\n#### 33 Assessment of damages where exclusive licence granted\n\n  Where an action to which section 31 applies is brought and the owner of the EL rights and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall:\n    (a) if the plaintiff is the exclusive licensee‑take into account any liabilities to which the licence is subject; and\n    (b) whether the plaintiff is the owner of the EL rights or the exclusive licensee‑take into account any pecuniary remedy already awarded to the other party under section 27 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement.\n\n#### 34 Apportionment of profits between owner and exclusive licensee\n\n  Where:\n    (a) an action under section 27 relates, wholly or partly, to an infringement in respect of which the owner of the EL rights and the exclusive licensee have concurrent rights of action under that section (whether or not they are both parties); and\n    (b) an account of profits is directed to be taken in respect of that infringement in that action; the court shall, subject to any agreement of which it is aware by which the application of those profits is determined as between the owner of the EL rights and the exclusive licensee, apportion the profits between them in such manner as it considers just and shall give such directions as it considers appropriate for giving effect to that apportionment.\n\n#### 35 Separate actions in relation to the same infringement\n\n  In an action under section 27 brought by the owner of the EL rights or by the exclusive licensee:\n    (a) a judgment or order for the payment of damages in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and\n    (b) a judgment or order for an account of profits in respect of an infringement of those rights shall not be given or made if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.\n\n#### 36 Liability for costs\n\n  Where, in an action to which section 31 applies, whether brought by the owner of the EL rights or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he or she enters an appearance and takes part in the proceedings.\n\n  \n\n### Division 4—Proof of facts in actions\n\n#### 37 Presumptions as to subsistence and ownership of EL rights\n\n  In an action under section 27:\n    (a) EL rights shall be presumed to subsist in the circuit layout to which the action relates if the defendant does not put in issue the question whether those rights subsist in the layout; and\n    (b) where EL rights subsist in the layout‑the plaintiff shall be presumed to be the owner of the rights if he or she claims to be the owner of the rights and the defendant does not put in issue the question of ownership.\n\n#### 38 Affidavit evidence\n\n  (1) In an action under section 27, proof of either or both of the following matters may be given by affidavit:\n    (a) the subsistence, at a particular time, of EL rights in the circuit layout to which the action relates;\n    (b) the ownership, at a particular time, of the EL rights in that layout.\n  (2) If a party to an action requires in good faith that a person who made an affidavit referred to in subsection (1) that is proposed to be used in the action be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the action unless the person appears as a witness for such cross‑examination or the court, in its discretion, permits the affidavit to be used without the person’s so appearing.\n\n#### 39 Evidentiary labels\n\n  (1) If, at the time when an eligible layout, a copy of an eligible layout, an integrated circuit made in accordance with an eligible layout or an article in which such an integrated circuit is incorporated was first imported or distributed by way of trade, the layout, the copy, the integrated circuit or a package containing it, or the article bore a prescribed label or mark, the fact that it bore the label or mark at that time is prima facie evidence, in an action under section 27 relating to the layout, that any person dealing at or after that time with the layout, the copy or the integrated circuit, as the case may be, has been notified of the subsistence of EL rights in the layout.\n  (2) In subsection (1):\n\n> distributed by way of trade includes sold, let for hire, or offered or exposed for sale or hire or other distribution by way of trade.\n\n> imported means imported into Australia for the purpose of distribution by way of trade.\n\n> prescribed label or mark means a label or mark:\n\n    (a) that was affixed to the eligible layout, the copy of the eligible layout, the integrated circuit made in accordance with an eligible layout or the package containing it, or the article in which such an integrated circuit is incorporated so as to be reasonably apparent to a person dealing with the layout, the copy or the integrated circuit, as the case may be; and\n    (b) bearing a statement:\n    (i) to the effect that EL rights subsist in the layout;\n    (ii) specifying the country and the year in which the layout was first commercially exploited; and\n    (iii) specifying the maker of the layout.\n\n  \n\n### Division 5—Jurisdiction and appeals\n\n#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.\n\n#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.\n\n  \n\n## Part IV—Miscellaneous\n\n#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.\n\n#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.\n\n#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.\n\n#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.\n\n#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.\n\n#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.\n\n#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":49},{"sectionNumber":"40","sectionType":"section","heading":"Exercise of jurisdiction","content":"#### 40 Exercise of jurisdiction\n\n  The jurisdiction of the Supreme Court of a State or Territory in an action under this Part shall be exercised by a single judge of the Court.","sortOrder":50},{"sectionNumber":"41","sectionType":"section","heading":"Appeals","content":"#### 41 Appeals\n\n  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.\n  (2) An appeal lies from a decision of a court of a State or Territory under this Part:\n    (a) to the Federal Court of Australia; or\n    (b) by special leave of the High Court, to the High Court.","sortOrder":51},{"sectionNumber":"Part IV","sectionType":"part","heading":"Miscellaneous","content":"## Part IV—Miscellaneous","sortOrder":52},{"sectionNumber":"42","sectionType":"section","heading":"Eligible foreign countries","content":"#### 42 Eligible foreign countries\n\n  A foreign country shall not be declared to be an eligible foreign country for the purposes of this Act unless:\n    (a) it is a party to a convention relating to the protection of circuit layouts and:\n    (i) Australia is also a party to the convention; or\n    (ii) Australia, although not a party to the convention, has taken all necessary steps to become such a party; or\n    (b) the Governor‑General is satisfied that, although the foreign country is not a party to such a convention, provision is or will be made under the law of that country under which adequate protection is or will be given to circuit layouts made by persons referred to in paragraph (a) or (b) of the definition of eligible person in section 5 and to circuit layouts first commercially exploited in Australia.","sortOrder":53},{"sectionNumber":"43","sectionType":"section","heading":"Limitation on power of courts to grant relief in proceedings under this Act","content":"#### 43 Limitation on power of courts to grant relief in proceedings under this Act\n\n  Nothing in this Act authorises a court of a State or Territory to grant relief by way of injunction or account of profits if that court does not, apart from this Act, have power to grant such relief.","sortOrder":54},{"sectionNumber":"44","sectionType":"section","heading":"Prospective ownership of EL rights","content":"#### 44 Prospective ownership of EL rights\n\n  (1) Where, by an agreement made in relation to future EL rights and signed by or on behalf of the person who would, apart from this section, be the owner of the rights on their coming into existence, that person purports to assign the future EL rights (wholly or partly) to another person (in this subsection called the assignee), then the rights, on coming into existence, vest in the assignee or his or her successor in title by force of this subsection.\n  (2) Where, at the time when an EL right comes into existence, the person who would be entitled to the right is dead, the right devolves as if, immediately before the person’s death, the person had been the owner of the right.\n  (3) A licence granted in respect of future EL rights by the prospective owner of the rights binds each of his or her successors in title to the prospective interest in the right to the same extent as the licence was binding on the grantor.","sortOrder":55},{"sectionNumber":"45","sectionType":"section","heading":"Assignments and licences of EL rights","content":"#### 45 Assignments and licences of EL rights\n\n  (1) EL rights are personal property and, subject to this section, are transmissible by assignment, by will and by devolution by operation of law.\n  (2) An assignment of EL rights may be limited in any way, including any one or more of the following ways:\n    (a) so as to apply to one or more of the classes of acts that, by virtue of this Act, the owner of the EL rights has the exclusive right to do (including a class of acts that is not separately specified in this Act as being comprised in EL rights but falls within a class of acts that is so specified);\n    (b) so as to apply to a place in, or a part of, Australia;\n    (c) so as to apply to part of the protection period of the layout in which the EL rights subsist.\n  (3) An assignment of EL rights (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.\n  (4) A licence granted in respect of an EL right by the owner of the right binds every successor in title to the interest in the right of the grantor of the licence to the same extent as the licence was binding on the grantor.","sortOrder":56},{"sectionNumber":"46","sectionType":"section","heading":"Groundless threats of legal proceedings","content":"#### 46 Groundless threats of legal proceedings\n\n  (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights.\n  (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section.\n  (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.\n  (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.","sortOrder":57},{"sectionNumber":"47","sectionType":"section","heading":"Jurisdiction of Federal Court of Australia","content":"#### 47 Jurisdiction of Federal Court of Australia\n\n  Jurisdiction is conferred on the Federal Court of Australia with respect to actions under Part III and applications under sections 20 and 25.","sortOrder":58},{"sectionNumber":"48","sectionType":"section","heading":"Regulations","content":"#### 48 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed for carrying out or giving effect to this Act.","sortOrder":59}],"analysis":{"kimi_summary":{"_metrics":{"completionTokens":680},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation appears complete and consistent with its original purpose of protecting circuit layouts for integrated circuits. No significant scope expansion is evident."},"complexity_factors":["Multiple overlapping definitions in section 5 (15 defined terms)","Complex conditional logic for protection period calculation (section 5)","Nested exceptions to infringement in Division 3 of Part II (sections 20-25)","Concurrent rights between owners and exclusive licensees requiring joinder rules (sections 29-36)","Cross-references to Copyright Act 1968 in section 24","Detailed procedural rules for court actions including presumptions, affidavit evidence, and apportionment of profits","Interaction between employment relationships and ownership (section 16)","Retroactive application to pre-commencement designs with limitations (section 7)"],"plain_english_summary":"This Act protects the **designs of computer chips** (called \"circuit layouts\" or \"integrated circuits\") in Australia. Think of it as copyright for hardware rather than software.\n\n**What it does:**\n- Gives creators of original chip designs **exclusive rights** (called \"EL rights\") to:\n  - Copy the design\n  - Make chips using the design\n  - Sell or commercially exploit the design in Australia\n\n**Who it covers:**\n- Australian citizens and residents\n- Australian companies\n- Citizens and companies of \"eligible foreign countries\" (countries with reciprocal protection agreements)\n\n**How long protection lasts:**\n- **10 years** from when the design was first commercially exploited (sold, offered for sale, or imported for trade), **or**\n- **10 years** from when the design was made if never commercially exploited\n\n**Important exceptions** (things that DON'T infringe):\n- **Private use** — you can copy a design for your own personal use\n- **Research and teaching** — universities and researchers can use designs for these purposes\n- **Evaluation and analysis** — you can study a design to understand how it works and even create a new original design based on that analysis\n- **Innocent infringement** — if you bought chips not knowing they were unauthorised copies, you're protected until you become aware\n- **Defence and security** — the Australian government can use designs for national security if they can't get a licence on reasonable terms\n\n**What happens if someone infringes:**\n- The owner can sue for **damages** (money compensation) or an **account of profits** (the money the infringer made)\n- Courts can grant **injunctions** (orders to stop)\n- **Additional damages** can be awarded for flagrant (obvious and deliberate) infringement\n- Actions must be brought within **6 years**\n\n**Key features:**\n- EL rights are **personal property** that can be sold, licensed, or inherited\n- **Exclusive licensees** (those with exclusive rights to use a design) have nearly the same legal powers as owners\n- Special rules prevent **double recovery** — you can't get damages twice for the same infringement\n- **Presumptions** in court make it easier for owners to prove their rights\n- **Evidentiary labels** on products can notify buyers that EL rights exist"},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Act has remained focused on its original purpose: providing sui generis protection for circuit layouts of integrated circuits. It has not expanded beyond that core function, and its scope is defined narrowly through the definitions of 'circuit layout', 'integrated circuit', and 'eligible layout'. The inclusion of external territories and binding the Crown are standard for Commonwealth Acts and do not represent scope creep. The Act was designed to implement Australia's obligations under international conventions on layout designs, and its structure has remained consistent since enactment."},"complexity_factors":["Over 20 defined terms in section 5, many with cross-references to other sections","Protection period calculation depends on commercial exploitation timing within a 10-year window after creation","Conditional exceptions for innocent commercial exploitation involve knowledge requirements and equitable remuneration","Nested exceptions in Division 3 of Part II (private use, research, evaluation) with sub-conditions","Multiple cross-references between sections (e.g., sections 8, 9, 10, 11, 12, 13)","Interaction with the Copyright Act 1968 in section 24(2) regarding imported articles","Detailed provisions for exclusive licences and concurrent rights of action in Part III, Division 3","Several presumptions and evidentiary rules in Part III, Division 4"],"plain_english_summary":"The **Circuit Layouts Act 1989** creates a special type of intellectual property right – called 'EL rights' – for the three-dimensional layout of an integrated circuit (a computer chip). It gives the owner the exclusive right to copy the layout, make chips based on it, and commercially exploit it within Australia. The protection lasts up to 10 years from when the layout was first made or first sold, depending on timing.\n\n**Who is affected?**\n- Designers and companies that create original circuit layouts.\n- Manufacturers and importers of chips.\n- Anyone using, copying, or selling chips or layouts in Australia.\n\n**How it works mechanically:**\n- A layout is automatically protected if it is original and made by an 'eligible person' (an Australian citizen or resident, or a company incorporated in Australia, or a person from a country that Australia has declared eligible).\n- If the layout is first sold in Australia or an eligible foreign country, it also qualifies.\n- The owner can sue for infringement if someone copies the layout, makes unauthorised chips, or commercially exploits it without permission.\n- There are important exceptions: copying for private use, research, teaching, or evaluating the layout is allowed. Someone who unknowingly buys an infringing chip can keep selling it until they learn it's unauthorised, after which they must pay a fair fee.\n- The government can use the layout for defence or security without permission, but must negotiate payment.\n- EL rights can be bought, sold, or licensed like other property, but assignments must be in writing.\n\n**Why it matters:** It gives chip designers a legal monopoly over their work for a limited time, allowing them to profit from their investment. Without it, others could simply copy a chip design and undercut the original maker. However, the exceptions ensure that reverse engineering for innovation and education are not blocked. The short protection period (10 years) reflects the fast pace of technology, balancing incentives with competition."},"summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The Act remains tightly focused on its stated purpose: protecting original circuit layouts for integrated circuits. The scope is deliberately narrow and has not expanded beyond that core objective. The exceptions (private use, research, reverse engineering) and the international eligibility framework were clearly contemplated from the outset as integral parts of the scheme, not subsequent expansions."},"complexity_factors":["Highly specialised and technical subject matter (integrated circuit design) requiring understanding of both electronics concepts and legal principles","Multiple layered definitions that cross-reference each other (e.g., 'eligible layout' depends on 'eligible person', 'original', 'commercially exploited', and 'protection period')","Complex protection period calculation with two different timing triggers (date of creation vs. date of first commercial exploitation)","Intricate concurrent rights regime for owners and exclusive licensees — multiple sections govern how they must interact in litigation","The reverse engineering exemption (s.23) involves a multi-step chain of permitted acts that requires careful reading to follow","Interplay with other legislation, particularly the Copyright Act 1968, requiring understanding of how both regimes interact","International eligibility rules with conditions tied to foreign treaty participation and reciprocal protection standards","The 'innocent infringer' regime (s.20) creates a conditional safe harbour with an equitable remuneration mechanism","The document itself appears to contain significant structural repetition/duplication, making navigation confusing"],"plain_english_summary":"## Circuit Layouts Act 1989 — Plain English Summary\n\n### What is this law about?\n\nThis Act creates a special type of intellectual property protection (like copyright, but specifically for microchip designs) for the **blueprints of integrated circuits** — the tiny electronic chips found in computers, phones, and virtually all modern electronics.\n\nA **circuit layout** is essentially the design map showing where all the tiny electronic components are placed and how they connect inside a microchip. This Act gives the creators of those designs legal ownership and control over them.\n\n---\n\n### Who does it affect?\n\n- **Electronics companies and chip designers** (in Australia or from qualifying overseas countries) who create microchip layouts\n- **Manufacturers** who make chips based on those designs\n- **Businesses** that buy, sell, or import chips or products containing chips\n- **Employers** — if an employee designs a chip as part of their job, the *employer* owns the rights, not the employee (unless they agree otherwise)\n- **Researchers, teachers, and private individuals** — who get specific carve-outs allowing them to use layouts without permission\n\n---\n\n### What rights does it create?\n\nThe owner of a protected layout (called **EL rights** — Eligible Layout rights) has the exclusive right to:\n1. **Copy** the layout\n2. **Manufacture chips** based on the layout\n3. **Sell or commercially exploit** the layout in Australia\n\nThese rights last for **up to 10 years** from when the layout is first commercially sold, or 10 years from when it was created — whichever gives the shorter window if the layout is never commercialised.\n\n---\n\n### What is *not* an infringement (i.e., what you *can* do freely)?\n\n- **Private use** — copying a layout for your own personal, non-commercial use\n- **Research or teaching** — making copies for academic purposes\n- **Reverse engineering** — studying and analysing an existing chip design, and even creating a *new, original* design inspired by that analysis (this is a significant and deliberate exception to encourage innovation)\n- **Buying legitimately** — if you buy a chip that was lawfully sold by the rights owner, you can on-sell it without infringing\n- **Innocent purchasers** — if you genuinely didn't know a chip was made without authorisation, you're protected (though once you find out, you must pay fair compensation to continue selling it)\n\n---\n\n### Government override\n\nThe **Commonwealth Government** can use a protected layout for **defence or security purposes** without the owner's permission, but only after genuinely trying to get a licence first, and must pay fair compensation.\n\n---\n\n### If someone steals your design\n\nRights owners (or their exclusive licensees — companies given the sole right to use a design) can sue for:\n- **Damages** (money compensation for your loss)\n- **Account of profits** (the infringer hands over the profits they made)\n- **Injunctions** (a court order to stop the infringement)\n- **Extra (aggravated) damages** for deliberately flagrant theft\n\nYou have **6 years** to bring a legal claim.\n\n**Warning:** If you threaten someone with legal action over alleged infringement and that threat turns out to be unjustified, *you* can be sued for making groundless threats.\n\n---\n\n### International dimension\n\nThe Act extends protection to designers from **\"eligible foreign countries\"** — countries that have reciprocal arrangements with Australia to protect each other's chip designs. Australia can declare a country eligible if it's party to a relevant international convention or provides equivalent protection to Australian designers."},"issue_detection":{"absurdities":[{"type":"circular_definition","section":"Section 5 (definition of 'eligible layout') read with Section 5 (definition of 'eligible foreign country')","severity":"medium","reasoning":"The definition of 'eligible layout' under s5(b) includes layouts first commercially exploited in an 'eligible foreign country'. That term is itself defined by reference to a declaration made by regulations under s42. Until a country is declared, layouts exploited there cannot be eligible under limb (b), even if the country's protection scheme is substantively identical to one later declared eligible. Eligibility is thus contingent on an executive act occurring after the relevant commercial exploitation.","confidence":0.72,"description":"Circular dependency: a layout qualifies as 'eligible' if first commercially exploited in an 'eligible foreign country', but a country only becomes 'eligible' by ministerial declaration under regulations. This creates a bootstrapping problem — the eligibility of a layout can depend entirely on a regulatory decision that may not yet exist at the time the layout is made, making eligibility indeterminate at the moment of creation."},{"type":"impossible_compliance","section":"Section 25(1)(b) and Section 25(2)","severity":"high","reasoning":"The structure of s25(1) makes the licence-exhaustion precondition a gateway to the defence. But s25(2) decouples authorisation from the act temporally. A person acting under a retrospective authorisation cannot have complied with s25(1)(b) at the time of acting, yet s25(2) contemplates the retrospective authorisation as valid. This creates an irresolvable logical gap: the authorised person either did not comply with the precondition (making the defence unavailable) or the precondition is rendered meaningless by s25(2).","confidence":0.78,"description":"Impossible compliance sequence: s25(1)(b) requires the Commonwealth to have 'unsuccessfully taken all reasonable steps to obtain the licence' before the defence applies, yet s25(2) expressly permits authorisation to be given 'before or after the acts in respect of which it is given have been done'. If authorisation can be given after the act, the precondition of exhausting licence-seeking steps cannot logically have been satisfied before the act was done by an authorised person who was authorised retrospectively."},{"type":"self_contradicting","section":"Section 25(3) and Section 25(1)(b)","severity":"medium","reasoning":"The notification duty in s25(3) is presented as a substantive obligation but the security carve-out swallows it in most real-world cases. If the act was for defence or security (the precondition under s25(1)(a)), disclosure of that act is likely to cause the very damage the carve-out is designed to prevent. The provision thus creates an obligation that is systematically inapplicable in the core cases it is meant to govern.","confidence":0.7,"description":"Self-defeating notification obligation: s25(3) requires the Commonwealth to inform the EL rights owner that an act has been done 'as soon as practicable', yet the same subsection carves out situations where informing the owner 'would, or might reasonably be expected to, cause damage to the defence or security of Australia'. In genuine defence/security scenarios the carve-out will almost always apply, rendering the notification obligation practically nugatory — the very situations where the compulsory licence is invoked are the situations where notification is excused."},{"type":"self_contradicting","section":"Section 19(3) compared with Sections 19(1) and 19(2)","severity":"medium","reasoning":"The drafting asymmetry means that a person who unknowingly copies a layout is a strict infringer, while a person who unknowingly commercially exploits it (the downstream, more commercially impactful act) is not an infringer at all. This inverts the intuitive policy hierarchy between making/copying (upstream) and commercial exploitation (downstream).","confidence":0.82,"description":"Inconsistent mens rea requirement: infringement of the copying right (s19(1)) and the circuit-making right (s19(2)) are strict liability — no knowledge requirement. But infringement of the commercial exploitation right (s19(3)) requires that the person 'knows or ought reasonably to know' they are not licensed. This creates the anomaly that a person can innocently infringe rights (a) and (b) and face full liability, while commercial exploitation — arguably the most economically significant right — requires fault."},{"type":"retroactive_impossibility","section":"Section 7","severity":"medium","reasoning":"The protection period is calculated from the date the layout was made (s5). If a layout was made in, say, 1984, and Part II commenced in 1990, the protection period for a layout not commercially exploited would run from 1984 and expire at end of 1994 — a truncated effective protection window. The Act's retroactive application is thus substantially hollow for older pre-commencement layouts.","confidence":0.75,"description":"Retroactive impossibility for pre-commencement layouts: s7 applies the Act to layouts 'made before... the commencement of Part II', meaning the protection period definition in s5 runs from when the layout was 'made'. For a layout made years before Part II commenced, the 10-year protection period may have already expired or begun expiring before the Act ever came into force, affording no practical protection to the very layouts the Act purports to cover retroactively."},{"type":"other","section":"Section 10(a)","severity":"low","reasoning":"The deeming provision in s10(a) was presumably intended to accommodate CAD-assisted design. But as AI and automated design tools advance, the human who 'uses' the computer may contribute nothing creative, satisfying s10(a) formally while failing s11's originality threshold. The deemed maker has no rights but bears the nominal legal status of maker.","confidence":0.65,"description":"Authorship attribution anomaly for computer-made layouts: s10(a) deems a person who 'used a computer' to make a layout as the maker. Under s11, a layout is not original if 'its making involved no creative contribution by the maker'. Where a computer autonomously generates a layout with minimal human direction, the human 'user' is attributed authorship but may have made no creative contribution — the layout then cannot be original and attracts no protection, yet the person is still legally the 'maker'. The attribution of maker status is thus meaningless in the very scenario the provision is designed to address."},{"type":"other","section":"Section 8(1) and Section 8(2)","severity":"low","reasoning":"Under the presumption against surplusage, s8(2) must add something to s8(1). Yet the criteria are textually identical. This creates an interpretive puzzle courts may need to resolve unnecessarily.","confidence":0.6,"description":"Redundant duplication creating potential interpretive conflict: s8(1) already covers 'a copy of the layout' and 'an integrated circuit made in accordance with the layout' within the definition of commercial exploitation of a circuit layout. Section 8(2) then separately deems a 'copy of a circuit layout or an integrated circuit made in accordance with a circuit layout' to be commercially exploited on identical terms. The duplication creates uncertainty about whether the subsections operate differently or whether s8(2) is superfluous surplusage — a principle of statutory interpretation that courts must give effect to every provision weighs against treating s8(2) as purely repetitive."},{"type":"other","section":"Section 25(6)","severity":"medium","reasoning":"If the only commercial exploitation of a layout is by the Commonwealth under s25, that exploitation is excluded under s25(6). The layout would then fall under limb (b) of the protection period definition (never commercially exploited within 10 years), running 10 years from when it was made. But if the Commonwealth's exploitation is excluded for all purposes, it is as if no commercial exploitation occurred, which may be the intended outcome. The anomaly arises where Commonwealth exploitation is the only exploitation — the owner is denied the longer potential protection period that civilian commercial exploitation would trigger.","confidence":0.58,"description":"Protection period manipulation: s25(6) provides that acts done under the defence/security provision 'shall not be taken into account in calculating the protection period of the layout'. The protection period is defined in s5 by reference to commercial exploitation dates. If the Commonwealth's use constitutes commercial exploitation (which it may under s8), excluding it from the calculation means the protection period clock does not start running, potentially extending protection indefinitely if only Commonwealth exploitation ever occurs."}],"contradictions":[{"severity":"medium","section_a":"Section 27(3)","section_b":"Section 27(4)","confidence":0.76,"description":"Contradictory damages regime for innocent versus flagrant infringers: s27(3) provides that an innocent infringer (no awareness, no reasonable grounds for suspicion) is not liable for any damages but is liable for an account of profits. Section 27(4) allows additional damages for flagrant infringement. Read together, an innocent infringer faces mandatory account of profits (s27(3)) while a flagrant infringer may face damages plus additional damages (s27(4)) — but the innocent infringer's mandatory account of profits cannot attract the additional damages uplift under s27(4), since s27(4) operates by 'assessing damages' which s27(3) has already precluded. The innocent infringer may thus face a more certain remedy (mandatory account of profits) than the flagrant infringer who retains some judicial discretion."},{"severity":"low","section_a":"Section 21(1) (private use exception)","section_b":"Section 19(1) and 19(2) (infringement provisions)","confidence":0.62,"description":"The private use exception in s21(1) permits making a copy of an eligible layout or an integrated circuit 'for the private use of the person who does the making'. However, s19(1) and s19(2) create strict liability for copying and making integrated circuits without the owner's licence. Section 21 creates an exception but only for private use by the maker. A corporation that makes a copy for its internal R&D purposes (private in a commercial sense) may not qualify as 'private use' in the personal sense, leaving the scope of the exception genuinely ambiguous and potentially contradicting the infringement provision for a significant class of actors."},{"severity":"high","section_a":"Section 25(7)","section_b":"Section 25(1)(b)","confidence":0.71,"description":"Substitution of exclusive licensee for owner under s25(7) creates an impossible precondition: s25(7) provides that where an exclusive licence is in force, s25 operates as if references to 'the owner' were references to 'the exclusive licensee'. This means the precondition in s25(1)(b) — that the Commonwealth has 'unsuccessfully taken all reasonable steps to obtain the licence of the owner' — must be read as requiring steps to obtain a licence from the exclusive licensee. But the exclusive licensee cannot grant a licence that overrides the owner's rights; only the owner can. The substitution thus makes the precondition practically unsatisfiable or incoherent."},{"severity":"medium","section_a":"Section 30 (rights of exclusive licensee)","section_b":"Section 43 (limitation on courts of States and Territories)","confidence":0.68,"description":"Section 30 grants the exclusive licensee the same rights of action as the owner under s27, including entitlement to injunctions and account of profits. Section 43 limits State and Territory courts to granting only such relief as they already have power to grant apart from this Act. If a State Supreme Court does not independently have jurisdiction to grant an account of profits in an IP context, s43 would strip the exclusive licensee of a remedy that s30 expressly confers. This creates a class of exclusive licensees whose statutory rights are effectively unenforceable in certain courts."},{"severity":"high","section_a":"Section 23(1)(d) and 23(2)(d) (evaluation/analysis exception — commercial exploitation)","section_b":"Section 17(c) (exclusive right to commercially exploit)","confidence":0.79,"description":"Section 23 permits not only copying and making integrated circuits for evaluation purposes but also 'commercially exploiting in Australia' the resulting original circuit layout. Section 17(c) grants the owner of EL rights the exclusive right to commercially exploit the layout. Where the s23 exception permits commercial exploitation of a layout derived through reverse engineering, this entirely negates the commercial exploitation right under s17(c) for any layout that can be characterised as based on evaluation or analysis. The breadth of the s23 exception potentially swallows the s17(c) right."},{"severity":"medium","section_a":"Section 16(2) (employer as deemed maker)","section_b":"Section 16(3) (agreement can modify s16(2))","confidence":0.65,"description":"Section 16(2) deems an employer to be the maker of a layout created by an employee under a contract of service. Section 16(3) allows this to be 'excluded or modified by agreement'. However, s16(1) provides that the 'person who makes an eligible layout is the first owner'. If s16(2) is excluded by agreement, the employee becomes the maker again — but the layout was only an 'eligible layout' at the time of making, when the employer was deemed the maker. Retroactive modification of maker status by agreement may affect whether the layout was ever an 'eligible layout' if eligibility was contingent on the employer's status as an eligible person rather than the employee's."}]}},"importantCases":[],"_links":{"self":"/api/acts/circuit-layouts-act-1989","history":"/api/acts/circuit-layouts-act-1989/history","analysis":"/api/acts/circuit-layouts-act-1989/analysis","conflicts":"/api/acts/circuit-layouts-act-1989/conflicts","importantCases":"/api/acts/circuit-layouts-act-1989/important-cases","documents":"/api/acts/circuit-layouts-act-1989/documents"}}