135Restriction of importation of copies of works etc.

135  Restriction of importation of copies of works etc.  (a) a reference to Australia does not include a reference to the external Territories; and  (b) a reference to importation into Australia does not include a reference to importation from such a Territory.  (2) A person may give the Comptroller‑General of Customs a written notice stating:  (a) that the person is the owner of the copyright in copyright material; and  (b) that the person objects to the importation into Australia of copies of the copyright material to which this section applies.  (3) A notice under subsection (2):  (a) is to be given together with any prescribed document; and  (b) is to be accompanied by the prescribed fee (if any).  (4) This section applies to a copy of copyright material if the making of the copy would, if it had been carried out in Australia by the person importing the copy, have constituted an infringement of the copyright in the copyright material.  (5) Unless it is revoked under subsection (6) or declared to be ineffective under subsection (6A), a notice under subsection (2) remains in force until:  (a) the end of the period of 4 years commencing on the day on which the notice was given; or  (b) the end of the period for which the copyright in the copyright material to which the notice relates is to subsist; whichever is the earlier.  (6) A notice under subsection (2) may be revoked by written notice given to the Comptroller‑General of Customs by the person who gave the first‑mentioned notice or by a subsequent owner of the copyright in the copyright material to which the notice relates.  (6A) If the Comptroller‑General of Customs believes, on reasonable grounds, that it is no longer appropriate to give effect to a notice given under subsection (2), the Comptroller‑General of Customs may, by writing, declare the notice to be ineffective. Note: Subsection 195B(3) requires the Comptroller‑General of Customs to notify the person who gave the notice of the decision declaring the notice to be ineffective.  (a) a notice has been given under subsection (2) in respect of copyright material; and  (b) the notice has not been declared to be ineffective or revoked; and  (c) a person imports copies of the copyright material to which this section applies into Australia for the purpose of:  (i) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the copies; or  (ii) distributing the copies for the purpose of trade; or  (iii) distributing the copies for any other purpose to an extent that will affect prejudicially the owner of the copyright in the copyright material; or  (iv) by way of trade exhibiting the copies in public; and  (d) the copies are subject to customs control under the Customs Act 1901; the Comptroller‑General of Customs may seize the copies.  (8) The regulations may make provision for or in relation to:  (a) the forms of notices under this section; and  (b) the times at which, and the manner in which, notices are to be given; and  (c) the giving of information and evidence to the Comptroller‑General of Customs.  (9) The regulations may contain provisions similar to the provisions of this Division in relation to the importation into external Territories (other than importation from Australia or from another such Territory) of copies of copyright material.  (10) This Division does not apply to the importation into Australia of copies of copyright material whose importation does not constitute an infringement of copyright because of section 44A, 44D, 44E, 44F, 112A, 112D or 112DA.  (10A) This Division does not apply to the importation into Australia of copies of copyright material whose importation does not constitute an infringement of copyright because of section 44C or 112C. 135AA  Decision not to seize unless expenses are covered  (1) Subject to subsection (2), the Comptroller‑General of Customs may decide not to seize the copies under subsection 135(7) unless he or she has been given by the objector (or by one or more of the objectors) a written undertaking acceptable to the Comptroller‑General of Customs to repay to the Commonwealth the expenses of seizing the copies.  (2) The Comptroller‑General of Customs may decide not to seize the copies under subsection 135(7) unless he or she has been given by the objector (or one or more of the objectors), instead of an undertaking, security in an amount that the Comptroller‑General of Customs considers sufficient to repay to the Commonwealth the expenses of seizing the copies if:  (a) an amount payable under an undertaking given by the objector (or one or more of the objectors) in relation to other copies has not been paid in accordance with the undertaking; and  (b) the Comptroller‑General of Customs considers it reasonable in all the circumstances to require the security.  (3) An undertaking may be withdrawn or varied if the Comptroller‑General of Customs consents in writing to a written request from the objector or objectors to do so. expenses of seizing the copies means the expenses that may be incurred by the Commonwealth if the copies were seized. 135AB  Secure storage of seized copies   Seized copies must be taken to such secure place as the Comptroller‑General of Customs directs. 135AC  Notice of seizure  (1) As soon as is practicable after copies are seized under subsection 135(7), the Comptroller‑General of Customs must give to the importer and the objector, by any means of communication (including by electronic means), a notice (the seizure notice) identifying the copies and stating that the identified copies have been seized.  (2) The seizure notice must state that the copies will be released to the importer if:  (a) the importer makes a claim for the release of the copies within the claim period; and  (b) the objector has not, by the end of the action period:  (i) instituted an action for infringement of copyright in relation to the copies; and  (ii) given the Comptroller‑General of Customs written notice of that action.  (3) The seizure notice must also:  (a) set out the claim period for the copies; and  (b) set out the action period for the copies and state that the action period will begin only if the importer makes a claim for the release of the copies; and  (c) if the notice is given to the objector—state the name and the address of the place of business or residence of the importer (if known), unless the Comptroller‑General of Customs is satisfied, for reasons of confidentiality, that it is not desirable to do so; and  (d) if the notice is given to the importer—state the name and the address of the place of business or residence of:  (i) the objector; or  (ii) if the objector has nominated a person to be the objector’s agent or representative for the purposes of this Division—that person;   unless the Comptroller‑General of Customs is satisfied, for reasons of confidentiality, that it is not desirable to do so.  (8) The Comptroller‑General of Customs may, at any time after the copies are seized, give to the objector:  (a) the name, and the address of the place of business or residence, of any person or body (whether in or outside Australia) that made arrangements, on behalf of the importer, for the copies to be brought to Australia or any information that the Comptroller‑General of Customs has, and believes on reasonable grounds may help in identifying and locating such a person or body; and  (b) any information (including personal information) that the Comptroller‑General of Customs has, and believes on reasonable grounds may be relevant for the purpose of identifying and locating the importer. 135AD  Inspection, release etc. of seized copies  (1) The Comptroller‑General of Customs may permit the objector or the importer to inspect the seized copies.  (2) If the objector gives the Comptroller‑General of Customs the requisite undertakings, the Comptroller‑General of Customs may permit the objector to remove one or more samples of the seized copies from the custody of the Comptroller‑General of Customs for inspection by the objector.  (3) If the importer gives the Comptroller‑General of Customs the requisite undertakings, the Comptroller‑General of Customs may permit the importer to remove one or more samples of the seized copies from the custody of the Comptroller‑General of Customs for inspection by the importer.  (4) The requisite undertakings are undertakings in writing that the person giving the undertaking will:  (a) return the sample copies to the Comptroller‑General of Customs at a specified time that is satisfactory to the Comptroller‑General of Customs; and  (b) take reasonable care to prevent damage to the sample copies.  (5) If the Comptroller‑General of Customs permits inspection of the seized copies, or the removal of sample copies, by the objector in accordance with this section, the Commonwealth is not liable to the importer for any loss or damage suffered by the importer arising out of:  (a) damage to any of the seized copies incurred during that inspection; or  (b) anything done by the objector or any other person to, or in relation to, sample copies removed from the custody of the Comptroller‑General of Customs or any use made by the objector of such sample copies. 135AE  Forfeiture of seized copies by consent  (1) Subject to subsection (2), the importer may, by written notice to the Comptroller‑General of Customs, consent to the seized copies being forfeited to the Commonwealth.  (2) The notice must be given before any action for infringement of copyright in relation to the copies is instituted.  (3) If the importer gives such a notice, the copies are forfeited to the Commonwealth. 135AEA  Claim for release of seized copies  (1) The importer may make a claim to the Comptroller‑General of Customs for the release of seized copies.  (2) The claim must be made before the end of the claim period for the copies.  (3) The claim must contain the information prescribed by the regulations. Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. 135AEB  Seized copies not claimed are forfeited  (1) Seized copies are forfeited to the Commonwealth if a claim for the release of the goods is not made within the claim period for the copies.  (2) However, if the Comptroller‑General of Customs allows a late claim for the copies (see section 135AEC), the copies are taken not to have been forfeited. 135AEC  Late claim for release of seized copies  (1) The Comptroller‑General of Customs may allow the importer to make a claim (the late claim) to the Comptroller‑General of Customs for the release of seized copies after the end of the claim period for the copies.  (2) The Comptroller‑General of Customs may allow the late claim only if:  (a) an action for infringement of copyright in relation to the copies has not been instituted; and  (b) the Comptroller‑General of Customs considers it reasonable in the circumstances; and  (c) the copies have not been disposed of under section 135AI. 135AED  Objector to be notified of claim  (1) If the importer makes a claim for the release of seized copies, the Comptroller‑General of Customs must, as soon as practicable, give notice of the claim to the objector.  (2) The notice:  (a) must be in writing; and  (b) may include any information that the Comptroller‑General of Customs has, and believes on reasonable grounds may be relevant, for the purpose of identifying and locating either or both of the following:  (i) the importer of the copies;  (ii) any other person or body (whether in or outside Australia) that made arrangements for the copies to be brought to Australia. 135AF  Release of seized copies to importer  (1) The Comptroller‑General of Customs must release seized copies to the importer if:  (a) the objector gives written notice to the Comptroller‑General of Customs stating that the objector consents to the release of the seized copies; and  (b) the copies have not been disposed of under section 135AI.  (2) The Comptroller‑General of Customs may release seized copies to the importer at any time if:  (a) the Comptroller‑General of Customs, having regard to information that has come to his or her knowledge after the copies were seized, is satisfied that there are no reasonable grounds for believing that copyright has been infringed by the importation of the copies; and  (b) the objector has not brought an action for infringement of copyright in relation to the copies.  (3) The Comptroller‑General of Customs must release seized copies to the importer if:  (a) the importer has made a claim for the release of the copies; and  (b) the objector has not, by the end of the action period:  (i) instituted an action for infringement of copyright in relation to the copies; and  (ii) given the Comptroller‑General of Customs written notice of that action.  (4) The Comptroller‑General of Customs must release seized copies to the importer if:  (a) the importer has made a claim for the release of the copies; and  (b) an action for infringement of copyright has been instituted in relation to the copies; and  (c) at the end of a period of 20 working days commencing on the day on which the action was instituted, there is not in force an order of the court in which the action was instituted preventing the release of the copies.  (5) This section has effect subject to section 135AH. 135AFA  Copies released but not collected are forfeited   Seized copies are forfeited to the Commonwealth if:  (a) the copies are released by the Comptroller‑General of Customs to the importer; and  (b) the importer does not take possession of the copies within 90 days of the release. 135AG  Provision relating to actions for infringement of copyright  (1) In this section, infringement action means an action for an infringement of copyright constituted by the importation of seized copies.  (2) The court in which an infringement action is pending may, on the application of a person having a sufficient interest in the subject‑matter of the action, allow the person to be joined as a defendant to the action.  (3) The Comptroller‑General of Customs is entitled to be heard on the hearing of an infringement action.  (4) In addition to any relief that may be granted apart from this section, the court may:  (a) at any time, order that the seized copies be released to the importer subject to such conditions (if any) as the court thinks fit; or  (b) order that the seized copies not be released to the importer before the end of a specified period; or  (c) order that the goods be forfeited to the Commonwealth.  (5) A court may not make an order under paragraph (4)(a) if it is satisfied that the Comptroller‑General of Customs is required or permitted, under any other law of the Commonwealth, to retain control of the seized copies.  (6) The Comptroller‑General of Customs must comply with an order made under subsection (4).  (a) the court decides that the relevant copyright was not infringed by the importation of the seized copies; and  (b) a defendant to the infringement action satisfies the court that he or she has suffered loss or damage as a result of the seizure of the copies; the court may order the objector to pay to that defendant such amount as the court determines as compensation for any part of that loss or damage that is attributable to a period beginning on or after the day on which the action was commenced. 135AH  Retention of control of seized copies   In spite of section 135AF, in a case in which no order has been made under subsection 135AG(4) in relation to seized copies, the Comptroller‑General of Customs is not obliged to release or dispose of the copies if the Comptroller‑General of Customs is required or permitted, under any other law of the Commonwealth, to retain control of the copies. 135AI  Disposal of seized copies forfeited to the Commonwealth  (1) Seized copies forfeited to the Commonwealth must be disposed of:  (a) in the manner prescribed by the regulations; or  (b) if no manner of disposal is so prescribed—as the Comptroller‑General of Customs directs.  (2) However, copies forfeited under section 135AEB must not be disposed of until 30 days after their forfeiture.  (3) Subsection (1) does not require the disposal of copies that are required in relation to an action for infringement of copyright. Right of compensation in certain circumstances  (4) Despite the forfeiture of seized copies to the Commonwealth, a person may apply to a court of competent jurisdiction under this section for compensation for the disposal of the copies.  (5) A right to compensation exists if:  (a) the copies did not infringe the objector’s copyright; and  (b) the person establishes, to the satisfaction of the court:  (i) that he or she was the owner of the copies immediately before they were forfeited; and  (ii) that there were circumstances providing a reasonable excuse for the failure to make a claim for the release of the copies.  (6) If a right to compensation exists under subsection (4), the court must order the payment by the Commonwealth to the person of an amount equal to the market value of the copies at the time of their disposal. 135AJ  Failure to meet Commonwealth’s expenses of seizure  (1) If an amount payable under an undertaking in relation to copies covered by a notice given under section 135 is not paid in accordance with the undertaking, the Comptroller‑General of Customs may decide not to seize copies covered by the notice until the amount owing is paid.  (2) An amount not paid under an undertaking:  (3) If the amount paid under an undertaking in relation to copies covered by a notice given under section 135 is in accordance with the undertaking but is not sufficient to meet the expenses incurred by the Commonwealth as a result of the action taken by the Comptroller‑General of Customs under this Division because of the notice, the amount of the difference between those expenses and the amount paid:  (4) If security given under subsection 135AA(2) by the objector or objectors who gave notice under section 135 is not sufficient to meet the expenses incurred by the Commonwealth as a result of the action taken by the Comptroller‑General of Customs under this Division because of the notice, the amount of the difference between those expenses and the amount of security: 135AK  Immunity of the Commonwealth   The Commonwealth is not liable for any loss or damage suffered by a person:  (a) because of the seizure of copies, or the failure of the Comptroller‑General of Customs to seize copies, under this Division; or  (b) because of the release of any seized copies. Part VAA—Unauthorised access to encoded broadcasts 135AL  Definitions action means a proceeding of a civil nature between parties, including a counterclaim. broadcaster means a person licensed under the Broadcasting Services Act 1992 to provide a broadcasting service (as defined in that Act) by which an encoded broadcast is delivered. channel provider means a person who:  (a) packages a channel (which might include programs produced by the person); and  (b) supplies a broadcaster with the channel; and  (c) carries on a business that involves the supply of the channel; where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service. decoder means a device (including a computer program) designed or adapted to decrypt, or facilitate the decryption of, an encoded broadcast. encoded broadcast means:  (a) a subscription broadcast; or  (b) a broadcast (except a radio broadcast or subscription broadcast) that is encrypted and is delivered by a commercial broadcasting service, or a national broadcasting service, within the meaning of the Broadcasting Services Act 1992. subscription broadcast means a broadcast that is encrypted and is made available by the broadcaster only to persons authorised by the broadcaster to access the broadcast in intelligible form. unauthorised decoder means a device (including a computer program) designed or adapted to decrypt, or facilitate the decryption of, an encoded broadcast without the authorisation of the broadcaster. 135AM  Counterclaim   In the application of this Part in relation to a counterclaim, references to the defendant are to be read as references to the plaintiff. 135AN  This Part does not apply to law enforcement activity etc.   This Part does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of: Note: A defendant in proceedings for an offence against this Part bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code). Division 2—Actions Subdivision A—Actions relating to unauthorised decoders 135AOA  Making or dealing with unauthorised decoder  (1) A channel provider, or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast, may bring an action against a person if:  (a) the person does any of the acts described in subsection (2) with an unauthorised decoder; and  (b) the person knows, or ought reasonably to know, that the unauthorised decoder will be used to enable someone to gain access to an encoded broadcast without the authorisation of the broadcaster.  (2) The acts with the unauthorised decoder are as follows:  (a) making the unauthorised decoder;  (b) selling the unauthorised decoder or letting it for hire;  (c) by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing the unauthorised decoder for sale or hire;  (d) exhibiting the unauthorised decoder in public by way of trade or with the intention of obtaining a commercial advantage or profit;  (e) distributing the unauthorised decoder (including by exporting it from Australia) for the purpose of trade, or for a purpose that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast;  (f) importing the unauthorised decoder into Australia for the purpose of:  (i) selling the unauthorised decoder or letting it for hire; or  (ii) by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing the unauthorised decoder for sale or hire; or  (iii) exhibiting the unauthorised decoder in public by way of trade or with the intention of obtaining a commercial advantage or profit; or  (iv) distributing the unauthorised decoder for the purpose of trade, or for a purpose that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast;  (g) making the unauthorised decoder available online to an extent that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast.  (3) The action may be brought only within 6 years of the act.  (4) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the unauthorised decoder would be used as described in paragraph (1)(b), unless the defendant proves otherwise. Subdivision B—Actions relating to decoders for subscription broadcasts 135AOB  Making decoder available online  (a) a decoder was supplied (to the person or someone else) by, or with the authorisation of, the broadcaster (the supplying broadcaster) of a subscription broadcast; and  (b) the person makes the decoder available online to an extent that will prejudicially affect any of the following persons (the affected parties):  (i) anyone with an interest in the copyright in a subscription broadcast by the supplying broadcaster;  (ii) anyone with an interest in the copyright in the content of a subscription broadcast by the supplying broadcaster;  (iii) a channel provider who supplies the supplying broadcaster with a channel for a subscription broadcast; and  (c) the person knows, or ought reasonably to know, that the decoder will be used to enable someone to gain access to a subscription broadcast without the authorisation of the broadcaster.  (2) The action may be brought by any of the affected parties but only within 6 years of the person first making the decoder available online as described in paragraph (1)(b).  (3) In an action under this section it must be presumed that the defendant knew, or ought reasonably to have known, that the decoder would be used as described in paragraph (1)(c), unless the defendant proves otherwise. Subdivision C—Actions for unauthorised access to encoded broadcasts 135AOC  Causing unauthorised access  (a) without the authorisation of the broadcaster of an encoded broadcast, the person does an act causing the person or anyone else to gain access in intelligible form to the broadcast or sounds or images from the broadcast; and  (b) the access will prejudicially affect any of the following persons (the affected parties):  (i) anyone with an interest in the copyright in an encoded broadcast by the broadcaster;  (ii) anyone with an interest in the copyright in the content of an encoded broadcast by the broadcaster;  (iii) a channel provider who supplies the broadcaster with a channel for an encoded broadcast; and  (c) the person knows, or ought reasonably to know, that the access is not authorised by the broadcaster. Note: Paragraph (a)—examples of causing a person to gain access to the broadcast or sounds or images from the broadcast include: (a) using, or authorising the use of, a decoder so the person gains access to the broadcast, sounds or images; and (b) distributing, or authorising the distribution of, the sounds or images to the person after they are obtained from the broadcast using a decoder.  (2) The action may be brought by any of the affected parties but only within 6 years of the act.  (3) Subsection (1) does not apply to:  (a) an act consisting merely of one or more of the following:  (i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);  (ii) listening to sounds in or from the broadcast and/or seeing images in or from the broadcast;  (iii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; or  (b) access to the sounds or images gained from: Note: Paragraph (b)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101. 135AOD  Unauthorised commercial use of subscription broadcast  (a) without the authorisation of the broadcaster of a subscription broadcast, the person uses the broadcast, or sounds or images from the broadcast, by way of trade or with the intention of obtaining a commercial advantage or profit; and  (b) the use prejudicially affects any of the following persons (the affected parties):  (i) anyone with an interest in the copyright in the broadcast;  (ii) anyone with an interest in the copyright in any content of the broadcast;  (iii) the channel provider who supplied the broadcaster with the channel for the broadcast; and  (c) the person knows, or ought reasonably to know, that the use is not authorised by the broadcaster.  (2) The action may be brought by any of the affected parties but only within 6 years of the use. Subdivision D—Court orders 135AOE  Relief  (1) The relief that a court may grant in an action under this Division includes an injunction (subject to the terms, if any, the court thinks fit) and either damages or an account of profits.  (2) In assessing damages, the court may award such additional damages as it considers appropriate, having regard to:  (a) the flagrancy with which the defendant did any of the relevant acts; and  (b) the need to deter acts similar to the relevant acts; and  (c) any benefit shown in an action under Subdivision A or B to have accrued to the defendant as a result of making or dealing with the decoder; and  (d) any benefit shown in an action under Subdivision C to have accrued to the defendant or any trade or business carried on by, or in association with, the defendant; and  (e) all other relevant matters. 135AOF  Destruction of decoder   In an action under this Division, the court may order that the relevant decoder (if any) be destroyed or dealt with as specified in the order. Subdivision E—Jurisdiction and appeals 135AP  Exercise of jurisdiction   The jurisdiction of the Supreme Court of a State or Territory in an action under the Part is to be exercised by a single Judge of the Court. 135AQ  Appeals  (1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive.  (2) An appeal lies from a decision of a court of a State or Territory under this Part: 135AR  Jurisdiction of Federal Court of Australia   Jurisdiction is conferred on the Federal Court of Australia with respect to actions under this Part. 135AS  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 actions under this Part. Subdivision A—Offences 135ASA  Making unauthorised decoder  (a) the person makes an unauthorised decoder; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASB  Selling or hiring unauthorised decoder  (a) the person sells or lets for hire an unauthorised decoder; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASC  Offering unauthorised decoder for sale or hire  (a) with the intention of obtaining a commercial advantage or profit, the person offers or exposes an unauthorised decoder for sale or hire; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (a) the person offers or exposes an unauthorised decoder for sale or hire; and  (b) the offer or exposure is by way of trade; and  (c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASD  Commercially exhibiting unauthorised decoder in public  (a) the person exhibits an unauthorised decoder in public with the intention of obtaining a commercial advantage or profit; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (a) the person exhibits an unauthorised decoder in public; and  (b) the exhibition is by way of trade; and  (c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASE  Importing unauthorised decoder commercially  (a) the person imports an unauthorised decoder into Australia with the intention of doing any of the following with the unauthorised decoder:  (i) selling the unauthorised decoder;  (ii) letting the unauthorised decoder for hire;  (iii) offering or exposing the unauthorised decoder for sale or hire, by way of trade or to obtain a commercial advantage or profit;  (iv) exhibiting the unauthorised decoder in public by way of trade or to obtain a commercial advantage or profit;  (v) distributing the unauthorised decoder for trade;  (vi) distributing the unauthorised decoder to obtain a commercial advantage or profit;  (vii) distributing the unauthorised decoder in preparation for, or in the course of, engaging in an activity that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASF  Distributing unauthorised decoder  (a) the person distributes (including by exporting from Australia) an unauthorised decoder with the intention of:  (ii) obtaining a commercial advantage or profit; or  (iii) engaging in any other activity that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and  (b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASG  Making unauthorised decoder available online  (a) the person makes an unauthorised decoder available online; and  (b) the unauthorised decoder is made available online to an extent that will prejudicially affect a channel provider or anyone with an interest in the copyright in either an encoded broadcast or the content of an encoded broadcast; and  (c) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  (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). 135ASH  Making decoder available online for subscription broadcast  (a) a decoder was supplied (to the person or anyone else) by, or with the authorisation of, the broadcaster of a subscription broadcast; and  (b) the person makes the decoder available online; and  (c) the decoder is made available online without the authorisation of the broadcaster; and  (d) the decoder will be used to enable a person to gain access to a subscription broadcast without the authorisation of the broadcaster; and  (e) the decoder is made available online to an extent that will prejudicially affect any of the following:  (i) anyone with an interest in the copyright in a subscription broadcast by the broadcaster;  (ii) anyone with an interest in the copyright in the content of a subscription broadcast by the broadcaster;  (iii) a channel provider who supplies the broadcaster with a channel for a subscription broadcast.  (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). 135ASI  Unauthorised access to subscription broadcast etc.  (b) the act (either alone or in conjunction with other acts) results in the person gaining access in intelligible form to a subscription broadcast or sounds or images from a subscription broadcast; and  (c) the access is not authorised by the broadcaster and the person knows that; and  (d) the act does not consist merely of one or more of the following:  (i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);  (ii) listening to sounds in or from the broadcast and/or seeing images in or from the broadcast;  (iii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; and Note: The making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101. 135ASJ  Causing unauthorised access to encoded broadcast etc.  (b) the act is done by way of trade; and  (c) the act results in the person or anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and  (d) the access is not authorised by the broadcaster; and Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.  (a) the person does an act with the intention of obtaining a commercial advantage or profit; and  (b) the act results in the person or anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and  (c) the access is not authorised by the broadcaster; and  (d) the access to the sounds or images is not gained from: Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.  (b) the act results in anyone else gaining access in intelligible form to an encoded broadcast or sounds or images from an encoded broadcast; and  (c) the access is not authorised by the broadcaster and the person knows that; and  (d) the act does not consist merely of one or more of the following:  (i) starting the playing of sounds or images in or from the broadcast on a device (for example by switching the device on);  (ii) distributing the sounds or images within a single dwelling that is occupied by a single household and is the subject of an arrangement involving a member of the household and the broadcaster about authorisation of private access to the broadcast; and Note: Paragraph (e)—the making of such a film, recording or copy may be an infringement of copyright: see paragraphs 87(a) and (b) and section 101.  (4) An offence against subsection (1), (2) or (3) 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). Subdivision B—Prosecutions 135ATA  Courts in which offences may be prosecuted  (1) Prosecutions for offences against this Division may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.  (2) However, the Federal Court of Australia does not have jurisdiction to hear or determine prosecutions for indictable offences, despite section 15C of the Acts Interpretation Act 1901.  (3) The Federal Court of Australia has jurisdiction to hear and determine prosecutions of summary offences against this Division.  (4) Also, section 4J (except subsection 4J(2)) of the Crimes Act 1914 applies in relation to the Federal Court of Australia and an indictable offence against this Division in the way in which that section would apply if that court were a court of summary jurisdiction. Note: Section 4J of the Crimes Act 1914 lets a court of summary jurisdiction try indictable offences in certain circumstances and subject to limits on the penalties the court can impose. Subdivision C—Further orders by court 135AU  Destruction etc. of unauthorised decoders  (1) The court trying a person for an offence against this Division may order that any article in the person’s possession that appears to the court to be an unauthorised decoder be destroyed or otherwise dealt with as specified in the order.  (2) The court may make the order whether the person is convicted of the offence or not. Part VC—Retransmission of free‑to‑air broadcasts 135ZZI  Definitions collecting society means a body that is, for the time being, declared to be a collecting society under section 135ZZT. delayed retransmission, in relation to a free‑to‑air broadcast, means a retransmission of the broadcast in an area that has, wholly or partly, different local time to the area of the original transmission and that is delayed until no later than the equivalent local time. notice holder means the person who is, for the time being, appointed to be the notice holder under section 135ZZX. relevant collecting society, in relation to a remuneration notice, means a collecting society for owners of copyright in the same kind of work or other subject‑matter as that to which the remuneration notice relates. relevant copyright owner means the owner of the copyright in a work, a sound recording or a cinematograph film, but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV. remuneration notice means a notice referred to in section 135ZZL. retransmitter means a person who makes a retransmission of a free‑to‑air broadcast. 135ZZJ  Operation of collecting society rules   This Part applies to a collecting society despite anything in the rules of the society, but nothing in this Part affects those rules so far as they can operate together with this Part. 135ZZJA  Application of Part  (1) This Part does not apply in relation to a retransmission of a free‑to‑air broadcast if the retransmission takes place over the internet.  (2) This Part does not apply in relation to a retransmission if:  (a) the retransmission is a re‑broadcast by a satellite BSA licensee; and  (b) subsection 135ZZZI(1) or (2) applies to the re‑broadcast. Division 2—Retransmission of free‑to‑air broadcasts 135ZZK  Retransmission of free‑to‑air broadcasts  (1) The copyright in a work, sound recording or cinematograph film included in a free‑to‑air broadcast is not infringed by the retransmission of the broadcast if:  (a) a remuneration notice given by, or on behalf of, the retransmitter to the relevant collecting society is in force; and  (b) the free‑to‑air broadcast was made by a broadcaster specified in the remuneration notice; and  (c) the retransmitter complies with section 135ZZN.  (2) The copyright in a work, sound recording or cinematograph film included in a free‑to‑air broadcast is not infringed by the making of a copy of the broadcast for the sole purpose of enabling a delayed retransmission of the broadcast to be made.  (3) Subsection (2) does not apply if the retransmission of the broadcast would infringe the copyright in the broadcast.  (4) If a copy of a broadcast made for the purpose referred to in subsection (2) is not destroyed within 7 days after it is made, subsection (2) does not apply, and is taken never to have applied, in relation to the making of the copy.  (5) In this section, a reference to the making of a copy of a free‑to‑air broadcast is a reference to making a cinematograph film or sound recording of the broadcast, or a copy of such a film or sound recording. 135ZZL  Remuneration notices  (1) A retransmitter may, by notice in writing given to the relevant collecting society by, or on behalf of, the retransmitter, undertake to pay equitable remuneration to the society for retransmissions of free‑to‑air broadcasts by specified broadcasters, being retransmissions made by, or on behalf of, the retransmitter while the notice is in force.  (2) A remuneration notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records to be kept by the retransmitter under section 135ZZN.  (3) A remuneration notice comes into force on the day on which it is given to the collecting society, or on such earlier day as is specified in the notice, and remains in force until it is revoked. 135ZZM  Amount of equitable remuneration  (1) If a retransmitter gives a remuneration notice to a collecting society, the amount of equitable remuneration payable to the collecting society for each retransmission made by, or on behalf of, the retransmitter while the notice is in force is the amount determined by agreement between the retransmitter and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.  (2) If a determination has been made by the Copyright Tribunal under subsection (1), either the retransmitter or the collecting society may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination payable to the collecting society by the retransmitter for retransmissions made by, or on behalf of, the retransmitter.  (3) For the purposes of subsection (1), different amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different classes of works, sound recordings or cinematograph films included in retransmissions. 135ZZN  Record system  (1) If a remuneration notice is given to a collecting society by, or on behalf of, a retransmitter, the retransmitter must establish and maintain a record system.  (2) The record system must provide for a record to be kept of the title of each program included in each retransmission made by, or on behalf of, the retransmitter of each broadcast made by each broadcaster specified in the remuneration notice.  (3) Subject to subsection (2), the record system must be determined by agreement between the retransmitter and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them. 135ZZP  Inspection of records etc.  (1) If a remuneration notice is or has been in force, the collecting society to which it was given may, in writing, notify the relevant retransmitter that the society wishes, on a day specified in the notice, being an ordinary working day of the retransmitter specified in the notice, not earlier than 7 days after the day on which the notice is given, to do such of the following things as are specified in the notice:  (a) assess the number of retransmissions carried out at the premises of the retransmitter;  (b) inspect all the relevant records held at those premises that relate to the making of retransmissions in reliance on section 135ZZK;  (c) inspect such other records held at those premises as are relevant to the assessment of the amount of equitable remuneration payable by the retransmitter to the society.  (2) Subject to section 135ZZQ, if a collecting society gives a notice, a person authorised in writing by the society may, during the ordinary working hours of the retransmitter on the day specified in the notice (but not before 10 am or after 3 pm), carry out the assessment, or inspect the records, to which the notice relates and, for that purpose, may enter the premises of the retransmitter.  (3) A retransmitter must take all reasonable precautions, and exercise reasonable diligence, to ensure that a person referred to in subsection (2) who attends the premises of the retransmitter for the purpose of exercising the powers conferred by that subsection is provided with all reasonable and necessary facilities and assistance for the effective exercise of those powers.  (4) A retransmitter who contravenes subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 10 penalty units. 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. 135ZZQ  Identity cards  (1) The chief executive officer (however described) of a collecting society must issue an identity card to each person authorised by the society for the purposes of subsection 135ZZP(2). The identity card must satisfy the requirements prescribed by the regulations and must contain a recent photograph of the authorised person.  (2) If an authorised person who attends or enters premises for the purpose of exercising powers conferred by subsection 135ZZP(2) fails to produce his or her identity card when asked to do so by a person apparently in charge of the premises, the authorised person must not enter or remain on the premises or exercise any other powers under subsection 135ZZP(2) at the premises.  (3) A person commits an offence punishable on conviction by a fine not exceeding 1 penalty unit if:  (a) the person has been issued with an identity card; and  (b) the person stops being an authorised person; and  (c) the person does not, immediately after he or she stops being an authorised person, return the identity card to the relevant collecting society.  (4) An authorised person must carry his or her identity card at all times when exercising powers under subsection 135ZZP(2). 135ZZR  Revocation of remuneration notice   A remuneration notice may be revoked at any time by the relevant retransmitter by notice in writing given to the collecting society to which the remuneration notice was given, and the revocation takes effect at the end of 3 months after the date of the notice, or on such later day as is specified in it. 135ZZS  Request for payment of equitable remuneration  (1) Subject to this section, where a remuneration notice is or has been in force, the collecting society to which the notice was given may, by notice in writing given to the relevant retransmitter, request the retransmitter to pay to the society, within a reasonable time after the date of the notice, the amount of equitable remuneration specified in the notice, being an amount payable under section 135ZZM for retransmissions made by, or on behalf of, the retransmitter while the remuneration notice is or was in force.  (2) If an amount specified in a request under subsection (1) is not paid in accordance with the request, it may be recovered from the retransmitter by the collecting society in the Federal Court of Australia or any other court of competent jurisdiction as a debt due to the society. 135ZZT  Collecting societies  (1) A body may apply to the Minister to be declared as a collecting society for all relevant copyright owners or for specified classes of relevant copyright owners.  (1A) After receiving the application, the Minister must do one of the following:  (a) declare the body to be a collecting society, by notice in the Gazette;  (c) refer the application to the Copyright Tribunal in the way prescribed by the regulations and notify the body of the referral.  (1B) A declaration made under paragraph (1A)(a) is not a legislative instrument.  (1C) If the Minister refers the application to the Copyright Tribunal, the Tribunal may declare the body to be a collecting society. Note: Section 153P sets out the procedure of the Copyright Tribunal in dealing with the reference.  (1D) A declaration of the body as a collecting society must declare the body to be:  (a) the collecting society for all relevant copyright owners; or  (b) the collecting society for classes of relevant copyright owners specified in the declaration.  (2) If a body is declared to be the collecting society for a specified class of copyright owners and another body is subsequently declared to be the collecting society for that class of copyright owners:  (a) the first‑mentioned collecting society ceases to be the collecting society for that class of copyright owners on the day on which the subsequent declaration is made; and  (b) any remuneration notice given to that collecting society ceases to be in force to the extent to which it relates to relevant copyright owners included in that class of copyright owners.  (3) The Minister and the Copyright Tribunal must not declare a body to be a collecting society unless:  (a) it is a company limited by guarantee and incorporated under a law in force in a State or Territory relating to companies; and  (b) all persons who are included in a class of relevant copyright owners to be specified in the declaration, or their agents, are entitled to become its members; and  (d) its rules contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of members of the collecting society who are relevant copyright owners, or their agents, are protected adequately, including, in particular, provisions about:  (i) the collection of amounts of equitable remuneration payable under section 135ZZM; and  (ii) the payment of the administrative costs of the collecting society out of amounts collected by it; and  (iii) the distribution of amounts collected by the collecting society; and  (iv) the holding on trust by the collecting society of amounts for relevant copyright owners who are not its members; and  (v) access to records of the collecting society by its members.  (4) If the Minister or the Copyright Tribunal has declared a body to be the collecting society for a specified class of copyright owners, the Minister and the Copyright Tribunal may refuse to declare another body to be the collecting society for that class of copyright owners unless satisfied that to do so would be in the interests of those copyright owners, having regard to the number of members of the first‑mentioned society, the scope of its activities and such other considerations as are relevant. 135ZZU  Revocation of declaration  (1) This section applies if the Minister is satisfied that a body declared as a collecting society:  (a) is not functioning adequately as a collecting society; or  (b) is not acting in accordance with its rules or in the best interests of those of its members who are relevant copyright owners, or their agents; or  (c) has altered its rules so that they no longer comply with paragraphs 135ZZT(3)(c) and (d); or  (d) has refused or failed, without reasonable excuse, to comply with section 135ZZV or 135ZZW.  (a) by notice in the Gazette, revoke the declaration; or  (b) refer the question whether the declaration should be revoked to the Copyright Tribunal in the way prescribed by the regulations.  (3) If the Minister refers the question to the Copyright Tribunal, the Tribunal may revoke the declaration if it is satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the body. Note: Section 153Q sets out the procedure of the Copyright Tribunal in dealing with the reference. 135ZZV  Annual report and accounts  (1) A collecting society must, as soon as practicable after the end of each financial year, prepare a report of its operations during that financial year and send a copy of the report to the Minister.  (2) The Minister must cause a copy of the report sent to the Minister under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.  (3) A collecting society must keep accounting records correctly recording and explaining the transactions of the society (including any transactions as trustee) and the financial position of the society.  (4) The accounting records must be kept in such a manner as will enable true and fair accounts of the society to be prepared from time to time and those accounts to be conveniently and properly audited.  (5) A collecting society must, as soon as practicable after the end of each financial year, cause its accounts to be audited by an auditor who is not a member of the society, and must send to the Minister a copy of its accounts as so audited.  (6) A collecting society must give its members reasonable access to copies of all reports and audited accounts prepared by it under this section.  (7) This section does not affect any obligations of a collecting society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated. 135ZZW  Amendment of rules   A collecting society must, within 21 days after it alters its rules, send a copy of the rules as so altered to the Minister, together with a statement setting out the effect of the alteration and the reasons why it was made. 135ZZWA  Applying to Tribunal for review of distribution arrangement  (1) A collecting society or a member of a collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.  (2) If the Tribunal makes an order under section 153R varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal’s order has effect as if it had been adopted in accordance with the collecting society’s rules, but does not affect a distribution started before the order was made. Division 4—Interim retransmissions 135ZZX  Appointment of notice holder   The Minister may, by notice in the Gazette, appoint a person to be the notice holder for the purposes of this Division. 135ZZY  Retransmitting before declaration of collecting society   The copyright in any work, sound recording or cinematograph film included in a retransmission of a free‑to‑air broadcast is not infringed by the making of the retransmission if:  (a) at the time the retransmission is made, a collecting society has not been declared; and  (b) a notice given by the retransmitter by whom, or on whose behalf, the retransmission was made to the notice holder under subsection 135ZZZ(1) is in force; and  (c) the retransmitter complies with section 135ZZN. 135ZZZ  Notices by retransmitters  (1) A retransmitter may at any time before the declaration of the first collecting society, by notice in writing given to the notice holder by, or on behalf of, the retransmitter, undertake to pay equitable remuneration to a collecting society, when it is declared, for retransmissions made by, or on behalf of, the retransmitter while the notice is in force.  (2) A notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records to be kept by the retransmitter under section 135ZZN.  (3) A notice comes into force on the day on which it is given to the notice holder, or on such later day as is specified in the notice, and remains in force until it is revoked.  (4) A notice may be revoked at any time by the retransmitter by notice in writing given to the notice holder, and the revocation takes effect on the date of the notice of revocation or on such later date as is specified in it. 135ZZZA  Record keeping requirements   If a retransmitter gives a notice to the notice holder under section 135ZZZ, sections 135ZZM and 135ZZN apply as if:  (a) references to a collecting society were references to the notice holder; and  (b) references to a remuneration notice were references to a notice under section 135ZZZ. 135ZZZB  Effect of declaration of collecting society  (a) as a result of the declaration of one or more collecting societies, there is a society for all relevant copyright owners; and  (b) a notice under section 135ZZZ was in force immediately before the day on which the declaration came into force; then, on and after that day, the notice ceases to have effect as such a notice, but is taken, for the purposes of this Part, to be a remuneration notice that:  (c) was given by the relevant retransmitter to the collecting society, or to each of the collecting societies, as the case may be; and  (d) came into force on the same day as the notice came into force.  (a) one or more collecting societies are declared for one or more, but not for all, classes of relevant copyright owners; and  (b) a notice was in force immediately before the day on which the declaration came into force; then, on and after that day:  (c) the notice ceases to have effect as such a notice in relation to the relevant copyright owners in the class or classes of copyright owners for whom a collecting society is declared, but is taken, for the purposes of this Part, to be a remuneration notice that:  (i) was given by the relevant retransmitter to the collecting society or to each of the collecting societies, as the case may be; and  (ii) came into force on the same day as the notice came into force; and  (d) the notice continues to have effect as such a notice in relation to all other relevant copyright owners.  (3) When a notice is, under this section, taken to be a remuneration notice, the relevant retransmitter must cause copies of all records made under section 135ZZN on or after the day on which the notice is taken to have come into force to be sent to the relevant collecting society within 21 days after the declaration of the collecting society. 135ZZZC  Relevant copyright owner may authorise retransmitting   Nothing in this Part affects the right of the owner of the copyright in a work, sound recording or cinematograph film included in a free‑to‑air broadcast to grant a licence authorising a retransmitter to make, or cause to be made, a retransmission of the free‑to‑air broadcast without infringing that copyright. 135ZZZD  Copyright not to vest under this Part   Despite any other provision of this Act, the retransmission of a free‑to‑air broadcast by, or on behalf of, a retransmitter that is not an infringement of copyright under this Part, does not vest copyright in any work or other subject‑matter in any person. 135ZZZE  Licence to retransmit does not authorise copyright infringements   The owner of the copyright in a free‑to‑air broadcast is not taken, for the purpose of this Act, to have authorised the infringement of copyright in any work, sound recording or cinematograph film included in the broadcast merely because the owner licences the retransmission of the broadcast. Part VD—Re‑broadcasts by satellite BSA licensees 135ZZZF  Definitions collecting society means a body that is, for the time being, declared to be a collecting society under section 135ZZZO. commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992. eligible program has the meaning given by section 135ZZZG. engage in conduct means:  (a) do an act; or  (b) omit to perform an act. notice holder means the person who is, for the time being, appointed to be the notice holder under section 135ZZZT. original broadcaster has the meaning given by section 135ZZZG. relevant collecting society, in relation to a remuneration notice, means a collecting society for owners of copyright in the same kind of work or other subject‑matter as that to which the remuneration notice relates. relevant copyright owner means the owner of the copyright in a work, a sound recording or a cinematograph film, but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV. remuneration notice means a notice referred to in section 135ZZZJ. 135ZZZG  Eligible program and original broadcaster  (2) For the purposes of this Part, if the following conditions are satisfied in relation to a program:  (a) the program is broadcast by the licensee of a commercial television broadcasting licence for a regional licence area (within the meaning of section 43AA of the Broadcasting Services Act 1992);  (b) the licensee is required to provide the program to a satellite BSA licensee under section 43AA of that Act;  (c) the program is an eligible program; and  (d) the licensee mentioned in paragraph (a) is the original broadcaster of the eligible program.  (3) For the purposes of this Part, if the following conditions are satisfied in relation to a program:  (a) the program is broadcast by the licensee of a commercial television broadcasting licence;  (b) the licensee is required to provide the program to a satellite BSA licensee under section 43AB or 43AC of the Broadcasting Services Act 1992;  (c) the program is an eligible program; and  (d) the licensee mentioned in paragraph (a) is the original broadcaster of the eligible program. 135ZZZH  Operation of collecting society rules   This Part applies to a collecting society despite anything in the rules of the society, but nothing in this Part affects those rules so far as they can operate together with this Part. Division 2—Re‑broadcasts by satellite BSA licensees 135ZZZI  Re‑broadcasts by satellite BSA licensees Copyright in a work, sound recording or cinematograph film included in an eligible program  (1) The copyright in a work, sound recording or cinematograph film included in a broadcast of an eligible program is not infringed by the re‑broadcast of the eligible program if:  (b) the eligible program is re‑broadcast on a service authorised by the satellite BSA licensee’s satellite BSA licence; and  (c) the re‑broadcast of the eligible program complies with the conditions of the satellite BSA licensee’s satellite BSA licence that are set out in clause 7A of Schedule 2 to the Broadcasting Services Act 1992; and  (d) a remuneration notice given by the satellite BSA licensee to the relevant collecting society is in force; and  (e) the original broadcaster of the eligible program was specified in the remuneration notice; and  (f) the satellite BSA licensee complies with section 135ZZZL. Copyright in a broadcast of an eligible program  (2) The copyright in a broadcast of an eligible program is not infringed by the re‑broadcast of the eligible program if:  (b) the eligible program is re‑broadcast on a service authorised by the satellite BSA licensee’s satellite BSA licence; and  (c) the re‑broadcast of the eligible program complies with the conditions of the satellite BSA licensee’s satellite BSA licence that are set out in clause 7A of Schedule 2 to the Broadcasting Services Act 1992; and  (d) any of the following conditions is satisfied:  (i) there is an agreement in force between the satellite BSA licensee and the owner of the copyright in the broadcast of the eligible program as to the amount payable by the satellite BSA licensee to the owner of the copyright for the re‑broadcast of eligible programs during a particular period;  (ii) if there is no agreement—there is in force a determination of the Copyright Tribunal under section 153RA of the amount payable by the satellite BSA licensee to the owner of the copyright in the broadcast of the eligible program for the re‑broadcast of eligible programs during a particular period;  (iii) if there is no agreement or determination—the satellite BSA licensee has given the owner of the copyright in the broadcast of the eligible program a written undertaking to pay to the owner of the copyright such amount as is determined by the Copyright Tribunal under section 153RA for the re‑broadcast of eligible programs during a particular period; and  (e) the eligible program is re‑broadcast by the satellite BSA licensee during the period mentioned in whichever of subparagraphs (d)(i), (ii) or (iii) applies. Making a copy for the purpose of a re‑broadcast  (3) The copyright in a work, sound recording or cinematograph film included in a broadcast of an eligible program is not infringed by the making of a copy of the eligible program if:  (a) the sole purpose of making the copy is to enable a re‑broadcast of the eligible program at a later time; and  (b) subsection (1) would apply to the re‑broadcast of the eligible program at the later time.  (4) The copyright in a broadcast of an eligible program is not infringed by the making of a copy of the eligible program if:  (a) the sole purpose of making the copy is to enable a re‑broadcast of the eligible program at a later time; and  (b) subsection (2) would apply to the re‑broadcast of the eligible program at the later time.  (a) a copy of an eligible program is made for a purpose referred to in subsection (3) or (4); and  (b) under a law of the Commonwealth, the satellite BSA licensee is required to retain the copy for a period longer than 7 days after the copy is made; and  (c) the copy is not destroyed as soon as practicable after the end of that period; subsection (3) or (4), as the case requires, does not apply, and is taken never to have applied, in relation to the making of the copy.  (5A) If:  (a) a copy of an eligible program is made for a purpose referred to in subsection (3) or (4); and  (b) subsection (5) does not apply; and  (c) the copy is not destroyed within 7 days after it is made; subsection (3) or (4), as the case requires, does not apply, and is taken never to have applied, in relation to the making of the copy.  (6) In this section, a reference to the making of a copy of an eligible program is a reference to making a cinematograph film or sound recording of the broadcast of the eligible program, or a copy of such a film or sound recording. 135ZZZJ  Remuneration notices  (1) A satellite BSA licensee may, by written notice given to the relevant collecting society, undertake to pay equitable remuneration to the society for re‑broadcasts of eligible programs broadcast by specified original broadcasters, where the eligible programs are re‑broadcast by the satellite BSA licensee while the notice is in force.  (2) A remuneration notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records to be kept by the satellite BSA licensee under section 135ZZZL.  (3) A remuneration notice comes into force on:  (a) the day on which it is given to the collecting society; or  (b) such earlier day as is specified in the notice; and remains in force until it is revoked. 135ZZZK  Amount of equitable remuneration  (1) If a satellite BSA licensee gives a remuneration notice to a collecting society, the amount of equitable remuneration payable to the collecting society for re‑broadcasts of eligible programs by the satellite BSA licensee while the notice is in force is the amount:  (a) determined by agreement between the satellite BSA licensee and the collecting society; or  (b) failing such agreement—determined by the Copyright Tribunal on application made by either of them.  (2) If a determination has been made by the Copyright Tribunal under subsection (1), either:  (a) the satellite BSA licensee; or  (b) the collecting society; may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination of amounts payable to the collecting society by the satellite BSA licensee for re‑broadcasts of eligible programs by the satellite BSA licensee.  (3) For the purposes of subsection (1), different amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different classes of:  (a) works; or  (b) sound recordings; or  (c) cinematograph films; included in re‑broadcasts. 135ZZZL  Record system  (1) If a remuneration notice is given to a collecting society by a satellite BSA licensee, the satellite BSA licensee must establish and maintain a record system.  (2) The record system must provide:  (a) for a record to be kept of the title of each eligible program that is:  (i) broadcast by an original broadcaster specified in the remuneration notice; and  (ii) re‑broadcast by the satellite BSA licensee; and  (b) for the collecting society to have access to such a record.  (3) The record system must be:  (a) determined by agreement between the satellite BSA licensee and the collecting society; or  (b) failing such agreement—determined by the Copyright Tribunal on application made by either of them.  (4) Subsection (3) has effect subject to subsection (2). 135ZZZM  Revocation of remuneration notice  (1) A remuneration notice may be revoked at any time by the relevant satellite BSA licensee by written notice given to the collecting society to which the remuneration notice was given.  (2)  The revocation takes effect:  (a) at the end of 3 months after the date of the notice; or  (b) on such later day as is specified in the notice. 135ZZZN  Request for payment of equitable remuneration  (1) If a remuneration notice is or has been in force, the collecting society to which the notice was given may, by written notice given to the relevant satellite BSA licensee, request the satellite BSA licensee to pay to the society, within a reasonable time after the date of the notice, the amount of equitable remuneration specified in the notice.  (2) The amount specified in the notice must be an amount payable under section 135ZZZK for re‑broadcasts made by the satellite BSA licensee while the remuneration notice is or was in force.  (3) Subsection (1) has effect subject to subsection (4).  (4) If an amount specified in a request under subsection (1) is not paid in accordance with the request, it may be recovered from the satellite BSA licensee by the collecting society in:  (a) the Federal Court of Australia; or  (b) any other court of competent jurisdiction; as a debt due to the society. 135ZZZO  Collecting societies  (1) A body may apply to the Minister to be declared as a collecting society for:  (a) all relevant copyright owners; or  (b) specified classes of relevant copyright owners.  (2) After receiving the application, the Minister must do one of the following:  (a) by notice published in the Gazette, declare the body to be a collecting society;  (c) both:  (i) refer the application to the Copyright Tribunal in the way prescribed by the regulations; and  (ii)  notify the body of the referral.  (3) A declaration made under paragraph (2)(a) is not a legislative instrument.  (4) If the Minister refers the application to the Copyright Tribunal, the Tribunal may declare the body to be a collecting society. Note: Section 153U sets out the procedure of the Copyright Tribunal in dealing with the reference.  (5) A declaration of the body as a collecting society must declare the body to be:  (a) the collecting society for all relevant copyright owners; or  (b) the collecting society for classes of relevant copyright owners specified in the declaration.  (a) a body is declared to be the collecting society for a specified class of copyright owners; and  (b) another body is subsequently declared to be the collecting society for that class of copyright owners:  (c) the first‑mentioned collecting society ceases to be the collecting society for that class of copyright owners on the day on which the subsequent declaration is made; and  (d) any remuneration notice given to that collecting society ceases to be in force to the extent to which it relates to relevant copyright owners included in that class of copyright owners.  (7) The Minister and the Copyright Tribunal must not declare a body to be a collecting society unless:  (a) it is:  (i) registered as a company under Part 2A.2 of the Corporations Act 2001; and  (ii) a company limited by guarantee; and  (b) all persons who are included in a class of relevant copyright owners to be specified in the declaration, or their agents, are entitled to become its members; and  (d) its rules contain such other provisions as are prescribed, where the provisions are necessary to ensure that the interests of members of the collecting society who are relevant copyright owners, or their agents, are protected adequately, including, in particular, provisions about:  (i) the collection of amounts of equitable remuneration payable under section 135ZZZK; and  (ii) the payment of the administrative costs of the collecting society out of amounts collected by it; and  (iii) the distribution of amounts collected by the collecting society; and  (iv) the holding on trust by the collecting society of amounts for relevant copyright owners who are not its members; and  (v) access to records of the collecting society by its members.  (8) If the Minister or the Copyright Tribunal has declared a body to be the collecting society for a specified class of copyright owners, the Minister and the Copyright Tribunal may refuse to declare another body to be the collecting society for that class of copyright owners unless satisfied that to do so would be in the interests of those copyright owners, having regard to:  (a) the number of members of the first‑mentioned society; and  (b) the scope of its activities; and  (c) such other considerations as are relevant. 135ZZZP  Revocation of declaration  (1) This section applies if the Minister is satisfied that a body declared as a collecting society:  (a) is not functioning adequately as a collecting society; or  (b) is not acting in accordance with its rules or in the best interests of those of its members who are relevant copyright owners, or their agents; or  (c) has altered its rules so that they no longer comply with paragraphs 135ZZZO(7)(c) and (d); or  (d) has refused or failed, without reasonable excuse, to comply with section 135ZZZQ or 135ZZZR.  (a) by notice published in the Gazette, revoke the declaration; or  (b) refer the question whether the declaration should be revoked to the Copyright Tribunal in the way prescribed by the regulations.  (3) If the Minister refers the question to the Copyright Tribunal, the Tribunal may revoke the declaration if it is satisfied that any of paragraphs (1)(a), (b), (c) and (d) applies to the body. Note: Section 153V sets out the procedure of the Copyright Tribunal in dealing with the reference. 135ZZZQ  Annual report and accounts  (1) A collecting society must, as soon as practicable after the end of each financial year, prepare a report of its operations during that financial year and send a copy of the report to the Minister.  (2) The Minister must cause a copy of the report sent to the Minister under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.  (3) A collecting society must keep accounting records correctly recording and explaining:  (a) the transactions of the society (including any transactions as trustee); and  (b) the financial position of the society.  (4) The accounting records must be kept in such a manner as will enable:  (a) true and fair accounts of the society to be prepared from time to time; and  (b) those accounts to be conveniently and properly audited.  (5) A collecting society must, as soon as practicable after the end of each financial year:  (a) cause its accounts to be audited by an auditor who is not a member of the society; and  (b) send to the Minister a copy of its accounts as so audited.  (6) A collecting society must give its members reasonable access to copies of all reports and audited accounts prepared by it under this section.  (7) This section does not affect any obligations of a collecting society relating to the preparation and lodging of annual returns or accounts under the Corporations Act 2001.  (8) For the purposes of this section, the period:  (a) beginning at the commencement of this section; and  (b) ending at the end of 30 June 2010; is taken to be a financial year. 135ZZZR  Amendment of rules   A collecting society must, within 21 days after it alters its rules, send a copy of the rules as so altered to the Minister, together with a statement setting out:  (a) the effect of the alteration; and  (b) the reasons why it was made. 135ZZZS  Applying to Tribunal for review of distribution arrangement  (1) A collecting society or a member of a collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.  (2) If the Tribunal makes an order under section 153W varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal’s order has effect as if it had been adopted in accordance with the collecting society’s rules, but does not affect a distribution started before the order was made. Division 4—Interim re‑broadcasts 135ZZZT  Appointment of notice holder   The Minister may, by notice published in the Gazette, appoint a person to be the notice holder for the purposes of this Division. 135ZZZU  Re‑broadcast before declaration of collecting society   The copyright in a work, sound recording or cinematograph film included in a broadcast of an eligible program is not infringed by the re‑broadcast of the eligible program if:  (b) the eligible program is re‑broadcast on a service authorised by the satellite BSA licensee’s satellite BSA licence; and  (c) the re‑broadcast of the eligible program complies with the conditions of the satellite BSA licensee’s satellite BSA licence that are set out in clause 7A of Schedule 2 to the Broadcasting Services Act 1992; and  (d) at the time the re‑broadcast is made, a collecting society has not been declared; and  (e) a notice given by the satellite BSA licensee to the notice holder under subsection 135ZZZV(1) is in force; and  (f) the satellite BSA licensee complies with section 135ZZZL. 135ZZZV  Notices by satellite BSA licensees  (1) A satellite BSA licensee may, at any time before the declaration of the first collecting society, by written notice given to the notice holder by the satellite BSA licensee, undertake to pay equitable remuneration to a collecting society, when it is declared, for re‑broadcasts of eligible programs by the satellite BSA licensee while the notice is in force.  (2) A notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records to be kept by the satellite BSA licensee under section 135ZZZL.  (3) A notice comes into force on:  (a) the day on which it is given to the notice holder; or  (b) such later day as is specified in the notice; and remains in force until it is revoked.  (4) A notice may be revoked at any time by the satellite BSA licensee by written notice given to the notice holder.  (5) The revocation takes effect:  (a) on the date of the notice of revocation; or  (b) on such later date as is specified in the notice of revocation. 135ZZZW  Record keeping requirements   If a satellite BSA licensee gives a notice to the notice holder under section 135ZZZV, sections 135ZZZK and 135ZZZL apply as if:  (a) references to a collecting society were references to the notice holder; and  (b) references to a remuneration notice were references to a notice under section 135ZZZV. 135ZZZX  Effect of declaration of collecting society  (a) as a result of the declaration of one or more collecting societies, there is a society for all relevant copyright owners; and  (b) a notice under section 135ZZZV was in force immediately before the day on which the declaration came into force; then, on and after that day, the notice ceases to have effect as such a notice, but is taken, for the purposes of this Part, to be a remuneration notice that:  (c) was given by the relevant satellite BSA licensee to the collecting society, or to each of the collecting societies, as the case may be; and  (d) came into force on the same day as the notice came into force.  (a) one or more collecting societies are declared for one or more, but not for all, classes of relevant copyright owners; and  (b) a notice was in force immediately before the day on which the declaration came into force; then, on and after that day:  (c) the notice ceases to have effect as such a notice in relation to the relevant copyright owners in the class or classes of copyright owners for whom a collecting society is declared, but is taken, for the purposes of this Part, to be a remuneration notice that:  (i) was given by the relevant satellite BSA licensee to the collecting society or to each of the collecting societies, as the case may be; and  (ii) came into force on the same day as the notice came into force; and  (d) the notice continues to have effect as such a notice in relation to all other relevant copyright owners.  (3) When a notice is, under this section, taken to be a remuneration notice, the relevant satellite BSA licensee must cause copies of all records made under section 135ZZZL on or after the day on which the notice is taken to have come into force to be sent to the relevant collecting society within 21 days after the declaration of the collecting society. 135ZZZY  Relevant copyright owner may authorise re‑broadcast  (1) Nothing in this Part affects the right of the owner of the copyright in a broadcast of an eligible program to grant a licence authorising a satellite BSA licensee to re‑broadcast the eligible program without infringing that copyright.  (2) Nothing in this Part affects the right of the owner of the copyright in a work, sound recording or cinematograph film included in a broadcast of an eligible program to grant a licence authorising a satellite BSA licensee to re‑broadcast the eligible program without infringing that copyright. 135ZZZZ  Copyright not to vest under this Part   Despite any other provision of this Act, the re‑broadcast of an eligible program that is not an infringement of copyright under this Part does not vest copyright in any work or other subject‑matter in any person. 135ZZZZA  Licence to re‑broadcast does not authorise copyright infringements   The owner of the copyright in a broadcast of an eligible program is not taken, for the purposes of this Act, to have authorised the infringement of copyright in any work, sound recording or cinematograph film included in the broadcast of the eligible program merely because the owner licenses the re‑broadcast of the eligible program. Part VI—Copyright Tribunal of Australia