57CDScheme information—interaction of supply obligations and other rights and obligations

57CD Scheme information—interaction of supply obligations and other rights and obligations

Data provider must comply with supply obligations despite existence of other rights and obligations

(1) A data provider must comply with an obligation under this Part in relation to scheme information even if such compliance would constitute or result in one or more of the following:

(a) an infringement of copyright by the data provider or any other person;

(b) a breach of contract in relation to the supply of the scheme information;

(c) a breach of an equitable obligation of confidence to which the data provider is subject in relation to the supply of the scheme information.

Note 1: Division 4 of Part IVA of the Copyright Act 1968 (which provides that certain uses of material by educational institutions do not infringe copyright) does not apply in relation to scheme information supplied under this Part (see paragraph 113P(1)(b) of that Act).

Note 2: A data provider is not criminally responsible for conduct that is justified or excused by or under this Part: see section 10.5 of the Criminal Code (lawful authority).

Compensation for third party copyright holders

(2) Subsection (3) applies if:

(a) a data provider supplies scheme information to an Australian repairer or scheme RTO under this Part; and

(b) a person (the third party claimant) holds copyright in relation to some or all of the scheme information that is the subject of the supply; and

(c) the supply constitutes or results in an infringement of the copyright of the third party claimant; and

(d) apart from this section, the infringement would constitute an acquisition of property otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution).

(3) The data provider must pay to the third party claimant an amount that represents compensation on just terms (within the meaning of paragraph (xxxi) of the Constitution) for the supply of the scheme information to the Australian repairer or scheme RTO.

(4) An amount payable by the data provider under subsection (3):

(a) is a debt due by the data provider to the third party claimant; and

(b) may be recovered by action in a court of competent jurisdiction.

(5) In a civil action by a third party claimant against a data provider for infringement of copyright in relation to scheme information supplied, or offered for supply, under this Part, it is a defence if the data provider proves that:

(a) the data provider was required to supply the scheme information, or offer to supply the scheme information, under this Part; and