116Rights of owner of copyright in respect of infringing copies

116  Rights of owner of copyright in respect of infringing copies  (1) The owner of the copyright in a work or other subject‑matter may bring an action for conversion or detention in relation to:  (a) an infringing copy; or  (b) a device (including a circumvention device) used or intended to be used for making infringing copies.  (1A) In an action for conversion or detention, a court may grant to the owner of the copyright all or any of the remedies that are available in such an action as if:  (a) the owner of the copyright had been the owner of the infringing copy since the time the copy was made; or  (b) the owner of the copyright had been the owner of the device since the time when it was used or intended to be used for making infringing copies.  (1B) Any relief granted by a court in an action for conversion or detention is in addition to any relief that the court may grant under section 115.  (1C) A court is not to grant any relief to the owner of the copyright in an action for conversion or detention if the relief that the court has granted or proposes to grant under section 115 is, in the opinion of the court, a sufficient remedy.  (1D) In deciding whether to grant relief in an action for conversion or detention and in assessing the amount of damages payable, the court may have regard to the following:  (a) the expenses incurred by the defendant, being a person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy;  (b) whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant;  (c) any other matter that the court considers relevant.  (1E) If the infringing copy is an article of which only part consists of material that infringes copyright, the court, in deciding whether to grant relief and in assessing the amount of damages payable, may also have regard to the following:  (a) the importance to the market value of the article of the material that infringes the copyright;  (b) the proportion the material that infringes copyright bears to the article;  (c) the extent to which the material that infringes copyright may be separated from the article.  (2) A plaintiff is not entitled by virtue of this section to any damages or to any other pecuniary remedy, other than costs, if it is established that, at the time of the conversion or detention:  (a) the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject‑matter to which the action relates;  (b) where the articles converted or detained were infringing copies—the defendant believed, and had reasonable grounds for believing, that they were not infringing copies; or  (c) where an article converted or detained was a device used or intended to be used for making articles—the defendant believed, and had reasonable grounds for believing, that the articles so made or intended to be made were not or would not be, as the case may be, infringing copies. 116AAA  Compensation for acquisition of property  (1) This section applies if, apart from this section, subsections 22(3A) and 97(2) and (2A) would result in the acquisition of property from a maker of a sound recording of a live performance by a performer in the performance otherwise than on just terms.  (2) There is payable to the maker by the performer such amount of compensation as is agreed on between those persons, or, failing agreement, as is determined by a court of competent jurisdiction.  (3) Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.  (4) Any compensation payable in a proceeding that is commenced under this section is to be taken into account in assessing any damages or compensation or other remedy to be awarded in a proceeding that is commenced otherwise than under this section and that arises out of the same event or transaction. acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. maker of a sound recording of a live performance means a person mentioned in paragraph 22(3A)(a). performer in a live performance means the following people:  (a) a person who becomes a maker of a sound recording under paragraph 22(3A)(b);  (b) if subsection 22(3B) applies—an employer who becomes a maker of a sound recording under that subsection. Division 2AA—Limitation on remedies available against service providers 116AA  Purpose of this Division  (1) The purpose of this Division is to limit the remedies that are available against service providers for infringements of copyright that relate to the carrying out of certain online activities by service providers. A service provider must satisfy certain conditions to take advantage of the limitations. Note 1A: For the meaning of service provider, see section 116ABA. Note 1: Subdivision B contains a description of the relevant activities. Note 2: Subdivision C contains details of the limitations on remedies. Note 3: Subdivision D sets out the conditions that must be satisfied for a service provider to take advantage of the limitations. The limitations are automatic if a service provider complies with the relevant conditions.  (2) This Division does not limit the operation of provisions of this Act outside this Division in relation to determining whether copyright has been infringed. 116AB  Definitions caching means the reproduction of copyright material on a system or network controlled or operated by or for a service provider in response to an action by a user in order to facilitate efficient access to that material by that user or other users. industry code means:  (a) an industry code that:  (i) meets any prescribed requirements; and  (ii) is registered under Part 6 of the Telecommunications Act 1997; or  (b) an industry code developed in accordance with the regulations. service provider has the meaning given by section 116ABA. 116ABA  Definition of service provider  (1) Each of the following is a service provider:  (a) a carriage service provider;  (b) an organisation assisting persons with a disability;  (c) the body administering a library, if:  (i) all or part of the collection comprising the library is accessible to members of the public directly or through interlibrary loans; or  (ii) the principal purpose of the library is to provide library services for members of a Parliament;  (d) the body administering an archives;  (e) the body administering a key cultural institution;  (f) the body administering an educational institution.  (2) If a service provider is not:  (a) a carriage service provider; or  (b) an organisation assisting persons with a disability; or  (c) the body administering an educational institution, being an educational institution that is a body corporate; this Division only applies to activities that the service provider carries out because of its relationship to the relevant library, archives, key cultural institution or educational institution mentioned in subsection (1). Subdivision B—Relevant activities 116AC  Category A activity   A service provider carries out a Category A activity by providing facilities or services for transmitting, routing or providing connections for copyright material, or the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections. 116AD  Category B activity   A service provider carries out a Category B activity by caching copyright material through an automatic process. The service provider must not manually select the copyright material for caching. 116AE  Category C activity   A service provider carries out a Category C activity by storing, at the direction of a user, copyright material on a system or network controlled or operated by or for the service provider. 116AF  Category D activity   A service provider carries out a Category D activity by referring users to an online location using information location tools or technology. Subdivision C—Limitations on remedies 116AG  Limitations on remedies Relevant conditions must be satisfied  (1) A service provider must satisfy the relevant conditions set out in Subdivision D before the limitations in this section apply. General limitations  (2) For infringements of copyright that occur in the course of carrying out any of the categories of activities set out in Subdivision B, a court must not grant relief against a service provider that consists of:  (a) damages or an account of profits; or  (b) additional damages; or  (c) other monetary relief. Category specific limitations  (3) For an infringement of copyright that occurs in the course of the carrying out of a Category A activity, the relief that a court may grant against a service provider is limited to one or more of the following orders:  (a) an order requiring the service provider to take reasonable steps to disable access to an online location outside Australia;  (b) an order requiring the service provider to terminate a specified account.  (4) For an infringement of copyright that occurs in the course of the carrying out of a Category B, C or D activity, the relief that a court may grant against a service provider is limited to one or more of the following orders:  (a) an order requiring the service provider to remove or disable access to infringing copyright material, or to a reference to infringing copyright material;  (b) an order requiring the service provider to terminate a specified account;  (c) some other less burdensome but comparably effective non‑monetary order if necessary. Relevant matters  (5) In deciding whether to make an order of a kind referred to in subsection (3) or (4), a court must have regard to:  (a) the harm that has been caused to the owner or exclusive licensee of the copyright; and  (b) the burden that the making of the order will place on the service provider; and  (c) the technical feasibility of complying with the order; and  (d) the effectiveness of the order; and  (e) whether some other comparably effective order would be less burdensome. The court may have regard to other matters it considers relevant. Subdivision D—Conditions 116AH  Conditions  (1) This table sets out the conditions for each of the categories of activities.   - Conditions - Item Activity Conditions - 1 All categories 1. The service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.2. If there is a relevant industry code in force—the service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material. - 2 Category A 1. Any transmission of copyright material in carrying out this activity must be initiated by or at the direction of a person other than the service provider.2. The service provider must not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process. - 3 Category B 1. If the copyright material that is cached is subject to conditions on user access at the originating site, the service provider must ensure that access to a significant part of the cached copyright material is permitted only to users who have met those conditions.2. If there is a relevant industry code in force—the service provider must comply with the relevant provisions of that code relating to:(a) updating the cached copyright material; and(b) not interfering with technology used at the originating site to obtain information about the use of the copyright material.3. The service provider must expeditiously remove or disable access to cached copyright material upon notification in the prescribed form that the material has been removed or access to it has been disabled at the originating site.4. The service provider must not make substantive modifications to the cached copyright material as it is transmitted to subsequent users. This does not apply to modifications made as part of a technical process. - 4 Category C 1. The service provider must not receive a financial benefit that is directly attributable to the infringing activity if the service provider has the right and ability to control the activity.2. The service provider must expeditiously remove or disable access to copyright material residing on its system or network upon receipt of a notice in the prescribed form that the material has been found to be infringing by a court.2A. The service provider must act expeditiously to remove or disable access to copyright material residing on its system or network if the service provider:(a) becomes aware that the material is infringing; or(b) becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing. The service provider does not, in an action relating to this Division, bear any onus of proving a matter referred to in paragraph (a) or (b).3. The service provider must comply with the prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network. - 5 Category D 1. The service provider must not receive a financial benefit that is directly attributable to the infringing activity if the service provider has the right and ability to control the activity.2. The service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court.2A. The service provider must act expeditiously to remove or disable access to a reference residing on its system or network if the service provider:(a) becomes aware that the copyright material to which it refers is infringing; or(b) becomes aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing. The service provider does not, in an action relating to this Division, bear any onus of proving a matter referred to in paragraph (a) or (b).3. The service provider must comply with the prescribed procedure in relation to removing or disabling a reference residing on its system or network.  (2) Nothing in the conditions is to be taken to require a service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).  (3) In deciding, for the purposes of condition 1 in table items 4 and 5 in the table in subsection (1), whether a financial benefit is otherwise directly attributable to the infringing activity referred to in that condition, a court must have regard to:  (a) industry practice in relation to the charging of services by service providers, including charging based on level of activity; and  (b) whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice. The court may have regard to other matters it considers relevant.  (4) An act done by a service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 in the table in subsection (1) does not constitute a failure to satisfy condition 2A in that item. 116AI  Evidence of compliance with conditions   If a service provider, in an action relating to this Division, points to evidence, as prescribed, that suggests that the service provider has complied with a condition, the court must presume, in the absence of evidence to the contrary, that the service provider has complied with the condition. Subdivision E—Regulations 116AJ  Regulations  (1) The regulations may provide that a service provider is not liable for damages or any other civil remedy as a result of action taken in good faith to comply with a condition.  (2) The regulations may provide civil remedies for conduct by relevant parties in relation to conditions.  (3) The regulations may prescribe offences for conduct by persons issuing notices under the regulations, and prescribe penalties for offences against those regulations. The penalties must not exceed 50 penalty units. Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalty stated above. Division 2A—Actions in relation to technological protection measures and electronic rights management information Subdivision A—Technological protection measures 116AK  Definitions   In this Subdivision, computer program has the same meaning as in section 47AB. 116AL  Interaction of this Subdivision with Part VAA   This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA). 116AM  Geographical application  (1) This Subdivision applies to acts done in Australia.  (2) This section does not, by implication, affect the interpretation of any other provision of this Act. 116AN  Circumventing an access control technological protection measure  (1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:  (a) the work or other subject‑matter is protected by an access control technological protection measure; and  (b) the person does an act that results in the circumvention of the access control technological protection measure; and  (c) the person knows, or ought reasonably to know, that the act would have that result. Exception—permission  (2) Subsection (1) does not apply to the person if the person has the permission of the copyright owner or exclusive licensee to circumvent the access control technological protection measure.  (i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and  (iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and  (iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.  (a) the person circumvents the access control technological protection measure to enable:  (i) the person; or  (ii) if the person is a body corporate—an employee of the person;   to do an act; and  (i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and  (iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and  (c) the person or employee is:  (d) the person or employee: In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.  (iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and Exception—online privacy  (6) Subsection (1) does not apply to the person if:  (i) relates to a copy of a work or other subject‑matter that is not an infringing copy; and  (iii) will be done for the sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a natural person; and  (iv) will not affect the ability of the person or any other person to gain access to the work or other subject‑matter or any other work or subject‑matter.  (7) Subsection (1) does not apply in relation to anything lawfully done for the purposes of: Exception—libraries etc.  (8) Subsection (1) does not apply to the person if:  (b) the person is:  (i) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); or  (ii) a body mentioned in paragraph (a) of the definition of archives in subsection 10(1), or in subsection 10(4); or  (iii) an educational institution; and  (c) the act will be done for the sole purpose of making an acquisition decision in relation to the work or other subject‑matter; and  (d) the work or other subject‑matter will not be otherwise available to the person when the act is done. Note: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Exception—prescribed acts  (9) Subsection (1) does not apply to the person if:  (b) the act will not infringe the copyright in a work or other subject‑matter; and  (c) the doing of the act by the person is prescribed by the regulations. Note: For the making of regulations prescribing the doing of an act by a person, see section 249.  (10) The defendant bears the burden of establishing the matters referred to in subsections (2) to (9). 116AO  Manufacturing etc. a circumvention device for a technological protection measure  (1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:  (a) the person does any of the following acts with a device:  (i) manufactures it with the intention of providing it to another person;  (ii) imports it into Australia with the intention of providing it to another person;  (iii) distributes it to another person;  (iv) offers it to the public;  (v) provides it to another person;  (vi) communicates it to another person; and  (b) the person knows, or ought reasonably to know, that the device is a circumvention device for a technological protection measure; and  (c) the work or other subject‑matter is protected by the technological protection measure. Exception ‑ no promotion, advertising etc.  (a) the device is a circumvention device for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and  (ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.  (a) the circumvention device will be used to circumvent the technological protection measure to enable the doing of an act; and  (i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and  (iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and  (iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.  (b) the circumvention device will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and  (i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and  (iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.  (b) the circumvention device will be used to circumvent the access control technological protection measure to enable the doing of an act; and  (iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and  (7) The defendant bears the burden of establishing the matters referred to in subsections (2) to (6). 116AP  Providing etc. a circumvention service for a technological protection measure  (1) An owner or exclusive licensee of the copyright in a work or other subject‑matter may bring an action against a person if:  (a) the person:  (i) provides a service to another person; or  (ii) offers a service to the public; and  (b) the person knows, or ought reasonably to know, that the service is a circumvention service for a technological protection measure; and  (c) the work or other subject‑matter is protected by the technological protection measure. Exception ‑ no promotion, advertising etc.  (a) the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and  (ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.  (a) the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and  (i) relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and  (iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and  (iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.  (b) the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and  (i) relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and  (iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.  (b) the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and  (iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and  (7) The defendant bears the burden of establishing the matters referred to in subsections (2) to (6). 116AQ  Remedies in actions under this Subdivision  (1) Without limiting the relief that a court may grant in an action under this Subdivision, the relief may include:  (a) an injunction, subject to such terms, if any, as the court thinks fit; and  (b) damages or an account of profits; and  (c) if the doing of an act, which is the subject of the action, involved a circumvention device—an order that the circumvention device be destroyed or dealt with as specified in the order.  (2) In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:  (a) the flagrancy of the defendant’s acts that are the subject of the action; and  (b) the need to deter similar acts; and  (c) the conduct of the defendant after the acts or, if relevant, after the defendant was informed that the defendant had allegedly done an act that would be the subject of an action under this Subdivision; and  (d) any benefit shown to have accrued to the defendant as a result of those acts; and  (e) any other relevant matters.  (3) If:  (a) an action has been commenced against a person under this Subdivision; and  (b) the doing of an act by the person, which is the subject of the action, involved a device; and  (c) the device appears to the court to be a circumvention device; the court may order that the device be delivered up to the court upon such conditions as the court considers appropriate.  (4) This section does not, by implication, affect the interpretation of any other provision of this Act. Subdivision B—Electronic rights management information 116B  Removal or alteration of electronic rights management information  (a) either:  (i) a person removes, from a copy of a work or other subject‑matter in which copyright subsists, any electronic rights management information that relates to the work or other subject‑matter; or  (ii) a person alters any electronic rights management information that relates to a work or other subject‑matter in which copyright subsists; and  (b) the person does so without the permission of the owner or exclusive licensee of the copyright; and  (c) the person knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter.  (3) In an action under subsection (2), it must be presumed that the defendant knew, or ought reasonably to have known, that the removal or alteration to which the action relates would have the effect referred to in paragraph (1)(c) unless the defendant proves otherwise. 116C  Distribution to the public etc. of works whose electronic rights management information has been removed or altered  (a) a person does any of the following acts in relation to a work or other subject‑matter in which copyright subsists without the permission of the owner or exclusive licensee of the copyright:  (i) distributes a copy of the work or other subject‑matter to the public;  (ii) imports into Australia a copy of the work or other subject‑matter for distribution to the public;  (iii) communicates a copy of the work or other subject‑matter to the public; and  (i) any electronic rights management information that relates to the work or other subject‑matter has been removed from the copy of the work or subject‑matter; or  (ii) any electronic rights management information that relates to the work or other subject‑matter has been altered; and  (c) the person knew that the electronic rights management information had been so removed or altered without the permission of the owner or exclusive licensee of the copyright; and  (d) the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter.  (3) In an action under subsection (2), it must be presumed that the defendant:  (a) had the knowledge referred to in paragraph (1)(c); and  (b) knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(d); unless the defendant proves otherwise. 116CA  Distribution and importation of electronic rights management information that has been removed or altered  (a) a person does either of the following acts in relation to electronic rights management information that relates to a work or other subject‑matter in which copyright subsists:  (i) distributes the electronic rights management information;  (ii) imports into Australia the electronic rights management information for distribution; and  (b) the person does so without the permission of the owner or exclusive licensee of the copyright; and  (i) the information has been removed from a copy of the work or subject‑matter without the permission of the owner or exclusive licensee of the copyright; or  (ii) the information has been removed from a copy of the work or subject‑matter with the permission of the owner or exclusive licensee of the copyright but the information has been altered without that permission; and  (d) the person knew that the information had been removed or altered without that permission; and  (e) the person knew, or ought reasonably to have known, that the act referred to in paragraph (a) that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright.  (3) In an action under subsection (2), it must be presumed that the defendant:  (a) had the knowledge referred to in paragraph (1)(d); and  (b) knew, or ought reasonably to have known, that the doing of the act to which the action relates would have the effect referred to in paragraph (1)(e); unless the defendant proves otherwise. 116CB  Exception relating to national security and law enforcement   Sections 116B to 116CA do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of: