248MJurisdiction of Federal Court

248M  Jurisdiction of Federal Court   Jurisdiction is conferred on the Federal Court of Australia with respect to actions under section 248J. 248MA  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 section 248J. 248N  Right to bring an action not assignable   The right of a performer to bring an action under section 248J is not assignable. Subdivision A—General offences 248P  Scope of this Subdivision  (1) This Subdivision applies to acts done in Australia on or after the commencement of this Subdivision. Note: This Subdivision commenced when it was included in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act 2006.  (2) This section has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code. 248PA  Unauthorised direct recording during protection period  (a) the person makes a direct recording of a performance; and  (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 makes a direct recording of a performance; and  (c) the recording is made without the authority of the performer and the person is negligent as to that fact. 248PB  Unauthorised indirect recording during protection period  (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).  (c) the recording is made without the authority of the performer and the person is negligent as to that fact. Defence  (7) Subsection (1), (3) or (5) does not apply if the recording was made solely for the person’s private and domestic use. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code). 248PC  Unauthorised communication to public during 20‑year protection period  (a) the person communicates a performance to the public; and  (b) the communication is made during the 20‑year protection period of the performance; and  (c) the communication is made without the authority of the performer; and  (d) the communication is made either directly from the live performance or from an unauthorised recording of the performance.  (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 communicates a performance to the public; and  (b) the communication is made during the 20‑year protection period of the performance; and  (c) the communication is made without the authority of the performer and the person is negligent as to that fact; and  (d) the communication is made either directly from the live performance or from an unauthorised recording of the performance. Defence  (7) To avoid doubt, subsections (1) and (3) do not apply to the communication to the public of an authorised recording of the performance. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code). Note 2: An educational institution can also copy and communicate a broadcast of a performance without contravening this section in some circumstances (see Division 4 of Part IVA). 248PD  Playing unauthorised recording publicly during 20‑year protection period  (a) the person causes a recording of a performance to be heard or seen in public; and  (b) the recording is heard or seen in public during the 20‑year protection period of the performance; and  (c) the recording is unauthorised.  (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 recording of a performance to be heard or seen in public; and  (b) the recording is heard or seen in public during the 20‑year protection period of the performance; and  (c) the recording is unauthorised and the person is negligent as to that fact. 248PE  Possessing equipment to make or copy unauthorised recording  (a) the person possesses a plate or recording equipment, intending it to be used for making:  (i) an unauthorised recording of a performance; or  (ii) a copy of an unauthorised recording of a performance; and  (b) the possession occurs during the protection period of the performance.  (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 possesses a plate or recording equipment; and  (b) the plate or equipment is to be used for making:  (i) a recording of a performance; or  (ii) a copy of an unauthorised recording of a performance; and  (i) the recording to be made using the plate or equipment will be an unauthorised recording of the performance; or  (ii) the recording to be copied using the plate or equipment is an unauthorised recording of the performance;   and the person is negligent as to that fact; and  (d) the possession occurs during the protection period of the performance.  (4) To avoid doubt, recklessness is the fault element for the circumstance that the plate or equipment is to be used for making:  (a) a recording of a performance; or  (b) a copy of an unauthorised recording of a performance.  (5) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914. No need to prove which performance or recording is to be involved  (8) In a prosecution for an offence against this section, it is not necessary to prove:  (a) which particular performance is intended to be, or will be, recorded using the device; or  (b) which particular recording is intended to be, or will be, copied using the device. 248PF  Copying unauthorised recording  (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). 248PG  Unauthorised copying of exempt recording  (e) the copy is not an exempt recording.  (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).  (c) the copy is made without the authority of the performer and the person is negligent as to that fact; and  (e) the copy is not an exempt recording and the person is negligent as to that fact.  (e) the copy is not an exempt recording. 248PH  Unauthorised copying of authorised sound recording  (a) the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and  (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track.  (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 makes a copy of a sound recording of a performance, intending that the copy be used in a sound‑track; and  (c) the copy is made without the authority of the performer and the person is negligent as to that fact; and  (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track and the person is negligent as to that fact.  (a) the person makes a copy of a sound recording of a performance in preparation for use in a sound‑track; and  (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound‑track. 248PI  Selling etc. unauthorised recording  (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). 248PJ  Distributing unauthorised recording  (a) the person distributes a recording of a performance, with the intention of trading; and  (a) the person distributes a recording of a performance; and  (d) the recording is an unauthorised recording.  (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 distributes a recording of a performance, with the intention of trading; and  (a) the person distributes a recording of a performance; and  (d) the recording is an unauthorised recording and the person is negligent as to that fact.  (a) the person distributes a recording of a performance in preparation for, or in the course of, trade; and 248PK  Commercial possession or import of unauthorised recording  (a) the person possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following:  (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and  (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 possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following:  (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and  (a) the person possesses, or imports into Australia, a recording of a performance in preparation for, or in the course of, doing any of the following:  (iv) distributing the recording for trade; and 248PL  Exhibiting unauthorised recording in public by way of trade  (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). 248PM  Importing unauthorised recording for exhibition by way of trade  (a) the person imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and  (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 imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and  (a) the person imports into Australia a recording of a performance, in preparation for exhibiting the recording in public by way of trade; and Subdivision B—Acts relating to sound recordings of performances given before 1 July 1995 248QA  Scope of this Subdivision  (1) This Subdivision applies to an act done in Australia on or after the commencement of this Subdivision, in relation to a performance given at any time before 1 July 1995. Note 1: That day was the day on which Part 4 of the Copyright (World Trade Organization Amendments) Act 1994 commenced. Note 2: This Subdivision commenced when it was included in this Act by Part 1 of Schedule 1 to the Copyright Amendment Act 2006.  (2) This Subdivision has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code. 248QB  Possessing equipment for copying unauthorised sound recording  (a) the person possesses a plate or recording equipment, intending it to be used for making a copy of an unauthorised sound recording of a performance; and  (b) the possession occurs during the 50‑year protection period of the performance.  (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 possesses a plate or recording equipment; and  (b) the plate or recording equipment is to be used for making a copy of a sound recording of a performance; and  (c) the recording is an unauthorised recording of the performance and the person is negligent as to that fact; and  (d) the possession occurs during the 50‑year protection period of the performance.  (4) To avoid doubt, recklessness is the fault element for the circumstance that the plate or recording equipment is to be used for making a copy of a sound recording of a performance.  (5) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914. No need to prove which recording is to be copied  (8) In a prosecution for an offence against this section, it is not necessary to prove which particular recording is intended to be, or will be, copied using the device. 248QC  Copying unauthorised sound recording  (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). 248QD  Selling etc. unauthorised sound recording  (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). 248QE  Distributing unauthorised sound recording  (a) the person distributes a sound recording of a performance, with the intention of trade; and  (a) the person distributes a sound recording of a performance; and  (d) the recording is an unauthorised recording.  (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 distributes a sound recording of a performance, with the intention of trade; and  (a) the person distributes a sound recording of a performance; and  (d) the recording is an unauthorised recording and the person is negligent as to that fact.  (a) the person distributes a sound recording of a performance in preparation for, or in the course of, trade; and 248QF  Commercial possession or import of unauthorised sound recording  (a) the person possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following:  (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and  (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 possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following:  (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and  (a) the person possesses, or imports into Australia, a sound recording of a performance in preparation for, or in the course of, doing any of the following:  (iv) distributing the recording for trade; and 248QG  Exhibiting unauthorised sound recording in public by way of trade  (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). 248QH  Importing unauthorised sound recording for exhibition by way of trade  (a) the person imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and  (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 imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and  (a) the person imports into Australia a sound recording of a performance in preparation for exhibiting the recording in public by way of trade; and Subdivision C—Prosecution and infringement notices 248R  Courts in which offences may be prosecuted  (1) Prosecutions for offences against Subdivision A or B 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 the following offences against Subdivision A or B:  (a) summary offences;  (b) offences of strict liability. 248S  Protection against multiple proceedings for same act   If a single act done in relation to a performance is an offence against Subdivision A and an offence against Subdivision B, only one of the offences may be prosecuted. 248SA  Infringement notices  (1) The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against Subdivision A or B to pay a penalty to the Commonwealth as an alternative to prosecution.  (2) The penalty must equal one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence. Subdivision D—Destruction or delivery up of unauthorised recordings