131DJurisdiction of Federal Circuit and Family Court of Australia (Division 2)

131D  Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)   Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) with respect to civil actions under this Part (other than section 115A). Division 5—Offences and summary proceedings 132AA  Definitions article includes a reproduction or copy of a work or other subject‑matter, being a reproduction or copy in electronic form. distribute, except in Subdivision E, includes distribute by way of communication. place of public entertainment includes premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment. profit does not include any advantage, benefit, or gain, that:  (a) is received by a person; and  (b) results from, or is associated with, the person’s private or domestic use of any copyright material. 132AB  Geographical application  (1) Subdivisions B, C, D, E and F apply only to acts done in Australia.  (2) This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code. Subdivision B—Substantial infringement on a commercial scale 132AC  Commercial‑scale infringement prejudicing copyright owner  (b) the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and  (c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and  (d) the infringement or infringements occur on a commercial scale.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (b) the conduct results in one or more infringements of the copyright in a work or other subject‑matter; and  (c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright and the person is negligent as to that fact; and  (d) the infringement or infringements occur on a commercial scale and the person is negligent as to that fact. Determining whether infringements occur on commercial scale  (5) In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (1)(d) or (3)(d), the following matters are to be taken into account:  (a) the volume and value of any articles that are infringing copies that constitute the infringement or infringements;  (b) any other relevant matter. Defence relating to law enforcement and national security  (6) This section does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of: Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). Defence for certain public institutions etc.  (7) This section does not apply in respect of anything lawfully done by the following in performing their functions:  (a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);  (d) a public non‑commercial broadcaster, including:  (i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and  (ii) a body that holds a community broadcasting licence within the meaning of that Act. Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).  (8) This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:  (a) the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code). Subdivision C—Infringing copies 132AD  Making infringing copy commercially  (a) the person makes an article, with the intention of:  (c) copyright subsists in the work or other subject‑matter when the article is made.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (a) the person makes an article, with the intention of:  (c) copyright subsists in the work or other subject‑matter when the article is made and the person is negligent as to that fact.  (a) the person makes an article in preparation for, or in the course of:  (c) copyright subsists in the work or other subject‑matter when the article is made. 132AE  Selling or hiring out infringing copy  (c) copyright subsists in the work or other subject‑matter at the time of the sale or letting.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (c) copyright subsists in the work or other subject‑matter at the time of the sale or letting and the person is negligent as to that fact.  (c) copyright subsists in the work or other subject‑matter at the time of the sale or letting. 132AF  Offering infringing copy for sale or hire  (a) the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and  (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact.  (a) the person offers or exposes an article for sale or hire, with the intention of obtaining a commercial advantage or profit; and  (c) copyright subsists in the work or other subject‑matter at the time of the offer or exposure and the person is negligent as to that fact. Strict liability offences  (a) the person offers or exposes an article for sale or hire, in preparation for, or in the course of, obtaining a commercial advantage or profit; and  (9) Subsections (7) and (8) are offences of strict liability. 132AG  Exhibiting infringing copy in public commercially  (a) the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and  (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (c) copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact.  (a) the person exhibits an article in public, with the intention of obtaining a commercial advantage or profit; and  (c) copyright subsists in the work or other subject‑matter at the time of the exhibition and the person is negligent as to that fact. Strict liability offences  (a) the person exhibits an article in public in preparation for, or in the course of, obtaining a commercial advantage or profit; and  (9) Subsections (7) and (8) are offences of strict liability. 132AH  Importing infringing copy commercially  (a) the person imports an article into Australia, with the intention of doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the import.  (2) An offence against this section is punishable on conviction by a fine of not more than 650 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (a) the person imports an article into Australia, with the intention of doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the import and the person is negligent as to that fact.  (a) the person imports an article into Australia in preparation for, or in the course of, doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the import. 132AI  Distributing infringing copy  (a) the person distributes an article, with the intention of:  (c) copyright subsists in the work or other subject‑matter at the time of the distribution.  (a) the person distributes an article; and  (c) copyright subsists in the work or other subject‑matter at the time of the distribution; and  (d) the extent of the distribution affects prejudicially the owner of the copyright.  (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (a) the person distributes an article, with the intention of:  (c) copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact.  (a) the person distributes an article; and  (c) copyright subsists in the work or other subject‑matter at the time of the distribution and the person is negligent as to that fact; and  (d) the extent of the distribution affects prejudicially the owner of the copyright and the person is negligent as to that fact.  (a) the person distributes an article in preparation for, or in the course of:  (c) copyright subsists in the work or other subject‑matter at the time of the distribution. 132AJ  Possessing infringing copy for commerce  (a) the person possesses an article, with the intention of doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the possession.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note 1: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914). Note 2: If the infringing copy was made by converting the work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form, there is an aggravated offence with a higher maximum penalty under section 132AK.  (a) the person possesses an article, with the intention of doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.  (a) the person possesses an article in preparation for, or in the course of, doing any of the following with the article:  (vii) distributing it to an extent that will affect prejudicially the owner of the copyright in the work or other subject‑matter of which the article is an infringing copy;  (c) copyright subsists in the work or other subject‑matter at the time of the possession. 132AK  Aggravated offence—work etc. converted to digital form  (1) An indictable offence against a provision (the basic offence provision) of this Subdivision (except sections 132AL and 132AM) relating to an infringing copy is an aggravated offence if the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form.  (2) An aggravated offence is punishable on conviction by a fine of not more than 850 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (3) To prove an aggravated offence, the prosecution must prove that the defendant was reckless with respect to the circumstance that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form. Note: The prosecution must also prove all the physical and fault elements of the offence against the basic offence provision.  (4) If the prosecution intends to prove an aggravated offence, the charge must allege that the infringing copy was made by converting a work or other subject‑matter from a hard copy or analog form into a digital or other electronic machine‑readable form. 132AL  Making or possessing device for making infringing copy  (a) the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and  (b) copyright subsists in the work or other subject‑matter at the time of the making of the device.  (a) the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and  (b) copyright subsists in the work or other subject‑matter at the time of the possession.  (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (a) the person makes a device; and  (c) the copy will be an infringing copy and the person is negligent as to that fact; and  (d) copyright subsists in the work or other subject‑matter at the time of the making of the device and the person is negligent as to that fact.  (a) the person possesses a device; and  (c) the copy will be an infringing copy and the person is negligent as to that fact; and  (d) copyright subsists in the work or other subject‑matter at the time of the possession and the person is negligent as to that fact.  (6) To avoid doubt, recklessness is the fault element for the circumstance in paragraphs (4)(b) and (5)(b) that the device is to be used for copying a work or other subject‑matter.  (7) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914.  (a) the person makes a device; and  (c) the copy will be an infringing copy; and  (d) copyright subsists in the work or other subject‑matter at the time of the making of the device.  (10) Subsection (8) is an offence of strict liability. No need to prove which work etc. is to be copied  (11) In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device. 132AM  Advertising supply of infringing copy  (a) the person, by any means, publishes, or causes to be published, an advertisement for the supply in Australia of a copy (whether from within or outside Australia) of a work or other subject‑matter; and  (b) the copy is, or will be, an infringing copy. Location of supply of copy by communication resulting in creation of copy  (2) For the purposes of this section, a communication of a work or other subject‑matter that, when received and recorded, will result in the creation of a copy of the work or other subject‑matter is taken to constitute the supply of a copy of the work or other subject‑matter at the place where the copy will be created. Subdivision D—Airing of works, sound recordings and films 132AN  Causing work to be performed publicly  (a) the person causes a literary, dramatic or musical work to be performed; and  (b) the performance is in public at a place of public entertainment; and  (c) the performance infringes copyright in the work.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (a) the person causes a literary, dramatic or musical work to be performed; and  (b) the performance is in public at a place of public entertainment; and  (c) the performance infringes copyright in the work and the person is negligent as to that fact. 132AO  Causing recording or film to be heard or seen in public  (i) a sound recording to be heard; or  (c) causing the hearing or seeing infringes copyright in the recording or film.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (i) a sound recording to be heard; or  (c) causing the hearing or seeing infringes copyright in the recording or film and the person is negligent as to that fact.  (c) causing the hearing or seeing infringes copyright in the recording or film. Subdivision E—Technological protection measures 132APA  Definitions   In this Subdivision, computer program has the same meaning as in section 47AB. 132APB  Interaction of this Subdivision with Part VAA   This Subdivision does not apply to encoded broadcasts (within the meaning of Part VAA). 132APC  Circumventing an access control technological protection measure  (b) the conduct results in the circumvention of a technological protection measure; and  (c) the technological protection measure is an access control technological protection measure; and  (d) the person engages in the conduct with the intention of obtaining a commercial advantage or profit. Defence—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. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).  (iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code). Defence—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. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).  (7) Subsection (1) does not apply in relation to anything lawfully done for the purposes of: Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).  (8) Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:  (a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);  (d) a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act). Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Note 2: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).  (8A) This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:  (a) the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and  (b) under subsection (8), it would be lawful for the National Archives of Australia to do that thing. Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code). Defence—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 1: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code). Note 2: For the making of regulations prescribing the doing of an act by a person, see section 249. 132APD  Manufacturing etc. a circumvention device for a technological protection measure  (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 does the act with the intention of obtaining a commercial advantage or profit; and  (c) the device is a circumvention device for a technological protection measure. Penalty: 550 penalty units or imprisonment for 5 years, or both. Defence—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. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).  (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 Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code). Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).  (7) Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:  (a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);  (d) a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act). Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).  (8) This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:  (a) the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code). 132APE  Providing etc. a circumvention service for a technological protection measure  (a) the person:  (i) provides a service to another person; or  (ii) offers a service to the public; and  (b) the person does so with the intention of obtaining a commercial advantage or profit; and  (c) the service is a circumvention service for a technological protection measure. Penalty: 550 penalty units or imprisonment for 5 years, or both. Defence—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. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).  (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. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).  (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 Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code). Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).  (7) Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:  (a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);  (d) a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act). Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Note 2: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).  (8) This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:  (a) the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code). Subdivision F—Electronic rights management information 132AQ  Removing or altering electronic rights management information  (i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or  (d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or  (d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.  (i) the person removes, from a copy of the work or subject‑matter, any electronic rights management information that relates to the work or subject‑matter; or  (d) the removal or alteration will induce, enable, facilitate or conceal an infringement of the copyright. 132AR  Distributing, importing or communicating copies after removal or alteration of electronic rights management information  (i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;  (ii) imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;  (i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or  (e) the person knows that the information has been removed or altered without that permission; and  (f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (i) distributes a copy of the work or subject‑matter with the intention of trading or obtaining a commercial advantage or profit;  (ii) imports a copy of the work or subject‑matter into Australia with the intention of trading or obtaining a commercial advantage or profit;  (i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or  (e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.  (i) distributes a copy of the work or subject‑matter in preparation for, or in the course of, trading or for obtaining a commercial advantage or profit;  (ii) imports a copy of the work or subject‑matter into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;  (i) any electronic rights management information that relates to the work or subject‑matter has been removed from the copy of the work or subject‑matter; or  (e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright. 132AS  Distributing or importing electronic rights management information  (b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:  (i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;  (ii) imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; 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  (e) the person knows that the information has been removed or altered without that permission; and  (f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.  (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. Note: A corporation may be fined up to 5 times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914).  (b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:  (i) distributes the electronic rights management information with the intention of trading or obtaining a commercial advantage or profit;  (ii) imports the electronic rights management information into Australia with the intention of trading or obtaining a commercial advantage or profit; 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  (e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright and the person is negligent as to that result.  (b) the person does either of the following acts in relation to electronic rights management information that relates to the work or subject‑matter:  (i) distributes the electronic rights management information in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit;  (ii) imports the electronic rights management information into Australia in preparation for, or in the course of, trading or in preparation for, or in the course of, obtaining a commercial advantage or profit; 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  (e) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright. 132AT  Defences Law enforcement and national security  (1) This Subdivision does not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of: Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code). Certain public institutions etc.  (2) This Subdivision does not apply in respect of anything lawfully done by the following in performing their functions:  (a) a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);  (d) a public non‑commercial broadcaster, including:  (i) a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and  (ii) a body that holds a community broadcasting licence within the meaning of that Act. Note 1: A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18). Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (3) This Subdivision does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:  (a) the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and  (b) under subsection (2), it would be lawful for the National Archives of Australia to do that thing. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). Subdivision G—Evidence 132AU  Prosecution to prove profit  (1) This section applies if, in the prosecution of an offence against this Division, either of the following questions is relevant:  (a) whether the defendant intended to obtain a profit;  (b) whether the defendant did something for, in preparation for, or in the course of, obtaining a profit.  (2) The burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution. Note: For the purposes of this Division, section 132AA defines profit as not including any advantage, benefit, or gain, that: (a) is received by a person; and (b) results from, or is associated with, the person’s private or domestic use of any copyright material. 132A  Presumptions in relation to subsistence and ownership of copyright  (1) This section applies to a prosecution for an offence against this Division, except section 132AM, in relation to a work or other subject matter.  (2) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then that year and place are presumed to be as stated on the label or mark, unless the contrary is established.  (3) If a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the person is presumed to have been the owner of the copyright at the time, unless the contrary is established.  (4) If a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then that year and place are presumed to be as stated in the certificate or document, unless the contrary is established.  (5) If a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the person is presumed to have been the owner of the copyright at the time, unless the contrary is established.  (6) For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (4) or (5) is, unless the contrary intention is established, taken to be such a certificate or document. 132AAA  Presumptions relating to computer programs  (1) This section applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a literary work that is a computer program if:  (a) articles or things embodying all or part of the program have been supplied (by sale or otherwise) to the public; and  (b) at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.  (a) the computer program is an original literary work; and  (b) the computer program was first published in the year; and  (c) the person was the owner of copyright in the program when and where the articles, things or containers were labelled or marked;  (3) A presumption about a person under subsection (2) does not imply that the person was the only owner of copyright in the program when and where the articles, things or containers were labelled or marked. 132B  Presumptions relating to sound recordings  (1) This section applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a sound recording if:  (a) records embodying all or part of the recording have been supplied (by sale or otherwise) to the public; and  (b) at the time of the supply, the records or their containers bore a label or other mark.  (2) If the label or other mark contained a statement described in an item of the table, the matter described in the item is presumed, unless the contrary is established.   - Statements and matters to be presumed unless the contrary is established - Item Statement Matter presumed - 1 A specified person was the maker of the recording The person was the maker of the recording - 2 The recording was first published in a specified year The recording was first published in the year - 3 The recording was first published in a specified country The recording was first published in the country  (3) If the label or mark consisted of the letter “P” in a circle accompanied by a specified year and the name of a person, it is presumed that:  (a) the recording was first published in the year; and  (b) the person was the owner of copyright in the recording when and where the records or containers were labelled or marked;  (4) A presumption about a person under this section does not imply that the person was:  (a) the only maker of the recording; or  (b) the only owner of copyright in the recording when and where the records or containers were labelled or marked. 132C  Presumptions relating to films Presumption about film maker  (1) Subsection (2) applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a cinematograph film if:  (a) copies of the film were made available to the public; and  (b) a person’s name appeared on the copies in such a way as to imply that the person was the maker of the film; and  (c) if the person is not a body corporate—the name is his or her true name or a name by which he or she is commonly known.  (a) the person is the maker of the film; and  (b) the person made the film in circumstances to which subsection 98(3) does not apply; Presumption about time of making and owner of copyright  (3) Subsection (4) applies to a prosecution for an offence against this Division, except section 132AM, relating to copyright in a cinematograph film, if:  (a) articles or things embodying the film have been supplied commercially; and  (b) at the time of the supply, the articles or things, or their containers, bore a label or other mark consisting of the letter “C” in a circle accompanied by a specified year and the name of a person.  (4) It is presumed that:  (a) the film was first made in the year; and  (b) the person was the owner of copyright in the film when and where the articles, things or containers were labelled or marked;  (5) A presumption about a person under subsection (4) does not imply that the person was the only owner of copyright in the film when and where the articles, things or containers were labelled or marked. Subdivision H—Extra court orders 133  Destruction or delivery up of infringing copies etc.  (a) a person is charged before a court with an offence against this Division, except section 132AM, whether or not the person is convicted of the offence; and  (b) the person possesses an article that appears to the court to be any of the following:  (i) a circumvention device used or intended to be used in conduct constituting an offence against Subdivision E;  (ii) an infringing copy;  (iii) a device or equipment used or intended to be used for making infringing copies.  (2) The court may order that the article be destroyed, delivered up to the owner of the copyright concerned or dealt with as the court thinks fit. Subdivision I—Procedure and jurisdiction