Copyright Act 1968/Part 4

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Part IV.—Copyright in Subject-Matter other than Works.

Division 1.—Preliminary.

Definition. 84. In this Part, “qualified person” means—

(a) an Australian citizen, an Australian protected person or a person (other than a body corporate) resident in Australia; or

(b) a body corporate incorporated under a law of the Commonwealth or of a State.

Division 2.—Nature of Copyright in Subject-Matter other than Works.

Nature of copyright in sound recordings. 85. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a sound recording, is the exclusive right to do all or any of the following acts:—

(a) to make a record embodying the recording;

(b) to cause the recording to be heard in public;

(c) to broadcast the recording.

Nature of copyright in cinematograph films. 86. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:—

(a) to make a copy of the film;

(b) to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;

(c) to broadcast the film;

(d) to cause the film to be transmitted to subscribers to a diffusion service.

Nature of television copyright in broadcasts and sound broadcasts. 87. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a television broadcast or sound broadcast, is the exclusive right—

(a) in the case of a television broadcast in so far as it consists of visual images—to make a cinematograph film of the broadcast, or a copy of such a film;

(b) in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds—to make a sound recording of the broadcast, or a record embodying such a recording; and

(c) in the case of a television broadcast or of a sound broadcast—to re-broadcast it.

Nature of copyright in editions of publishing works. 88. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a published edition of a literary, dramatic, musical or artistic work or of two or more literary, dramatic, musical or artistic works, is the exclusive right to make, by a means that includes a photographic process, a reproduction of the edition.

Division 3.—Subject-Matter, other than Works, in which Copyright Subsists.

Bound recordings in which copyright subsists. 89.—(1.) Subject to this Act, copyright subsists in a sound recording of which the maker was a qualified person at the time when the recording was made.

(2.) Without prejudice to the last preceding sub-section, copyright subsists, subject to this Act, in a sound recording if the recording was made in Australia.

(3.) Without prejudice to the last two preceding sub-sections, copyright subsists, subject to this Act, in a published sound recording if the first publication of the recording took place in Australia.

Cinematograph films in which copyright subsists. 90.—(1.) Subject to this Act, copyright subsists in a cinematograph film of which the maker was a qualified person for the whole or a substantial part of the period during which the film was made.

(2.) Without prejudice to the last preceding sub-section, copyright subsists, subject to this Act, in a cinematograph film if the film was made in Australia.

(3.) Without prejudice to the last two preceding sub-sections, copyright subsists, subject to this Act, in a published cinematograph film if the first publication of the film took place in Australia.

Television broadcasts and sound broadcasts in which copyright subsists. 91. Subject to this Act, copyright subsists—

(a) in a television broadcast made from a place in Australia by―

(i) the Australian Broadcasting Commission;

(ii) the holder of a licence for a television station; or

(iii) any prescribed person, being a person who is, at the time when the broadcast is made, the holder of a wireless telegraphy licence; and

(b) in a sound broadcast made from a place in Australia by―

(i) the Australian Broadcasting Commission;

(ii) the holder of a licence for a broadcasting station; or

(iii) any prescribed person, being a person who is, at the time when the broadcast is made, the holder of a wireless telegraphy licence.

Published editions of works in which copyright subsists. 92.—(1.) Subject to this Act, copyright subsists in a published edition of a literary, dramatic, musical or artistic work, or of two or more literary, dramatic, musical or artistic works, where—

(a) the first publication of the edition took place in Australia; or

(b) the publisher of the edition was a qualified person at the date of the first publication of the edition.

(2.) The last preceding sub-section does not apply to an edition that reproduces a previous edition of the same work or works.

Division 4.—Duration of Copyright in Subject-Matter other than Works.

Duration of copyright in sound recordings. 93. Copyright subsisting in a sound recording by virtue of this Part continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the recording is first published.

Duration of copyright in cinematograph films. 94.—(1.) Copyright subsisting in a cinematograph film by virtue of sub-section (1.) or sub-section (2.) of section 90 of this Act continues to subsist until the film is published and, after the publication of the film, until the expiration of fifty years after the expiration of the calendar year in which the film was first published.

(2.) Copyright subsisting in a cinematograph film by virtue only of sub-section (3.) of section 90 of this Act continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the film was first published.

Duration of copyright in television broadcasts and sound broadcasts. 95.—(1.) Copyright subsisting in a television broadcast or sound broadcast by virtue of this Part continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the broadcast was made.

(2.) In so far as a television broadcast or sound broadcast is a repetition (whether the first or a subsequent repetition) of a previous television broadcast or sound broadcast to which section 91 of this Act applies, and is made by broadcasting visual images or sounds embodied in any article or thing—

(a) if it is made before the expiration of the period of fifty years after the expiration of the calendar year in which the previous broadcast was made any copyright subsisting in it expires at the expiration of that period; and

(b) if it is made after the expiration of that period-copyright does not subsist in it by virtue of this Part.

Duration of copyright in published editions of works. 96. Copyright subsisting in a published edition of a work or works by virtue of this Part continues to subsist until the expiration of twenty-five years after the expiration of the calendar year in which the edition was first published.

Division 5.—Ownership of Copyright in Subject-Matter other than Works.

Ownership of copyright in sound recordings. 97.—(1.) This section has effect subject to Parts VII. and X.

(2.) Subject to the next succeeding sub-section, the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of this Part.

(3.) Where—

(a) a person makes, for valuable consideration, an agreement with another person for the making of a sound recording by the other person; and

(b) the recording is made in pursuance of the agreement,

the first-mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the recording by virtue of this Part.

Ownership of copyright in cinematograph films. 98.—(1.) This section has effect subject to Parts VII. and X.

(2.) Subject to the next succeeding sub-section, the maker of a cinematograph film is the owner of any copyright subsisting in the film by virtue of this Part.

(3.) Where—

(a) a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and

(b) the film is made in pursuance of the agreement,

the first-mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.

Ownership of copyright in television broadcasts and sound broadcasts. 99. Subject to Parts VII. and X.—

(a) the Australian Broadcasting Commission is the owner of any copyright subsisting in a television broadcast or sound broadcast made by it; and

(b) a person who is or has been a holder of a licence for a television station, a holder of a licence for a broadcasting station or a prescribed person for the purposes of sub-paragraph (iii) of paragraph (a) or sub-paragraph (iii) of paragraph (b) of section 91 of this Act is the owner of any copyright subsisting in a television broadcast or sound broadcast, as the case may be, made by that person.

Ownership of copyright in published editions of works. 100. Subject to Parts VII. and X., the publisher of an edition of a work or works is the owner of any copyright subsisting in the edition by virtue of this Part.

Division 6.—Infringement of Copyright in Subject-Matter other than Works.

Infringement by doing acts comprised in copyright. 101.—(1.) Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

(2.) The next two succeeding sections do not affect the generality of the last preceding sub-section.

(3.) Sub-section (1.) of this section applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording.

(4.) Sub-section (1.) of this section applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.

Infringement by importation for sale or hire. 102. A copyright subsisting by virtue of this Part is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of—

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

(b) distributing the article—

(i) for the purpose of trade; or

(ii) for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

(c) by way of trade exhibiting the article in public,

where, to his knowledge, the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

Infringement by sale and other dealings. 103.—(1.) A copyright subsisting by virtue of this Part is infringed by a person who, in Australia, and without the licence of the owner of the copyright—

(a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or

(b) by way of trade exhibits an article in public,

where, to his knowledge, the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

(2.) For the purposes of the last preceding sub-section, the distribution of any articles—

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially the owner of the copyright concerned,

shall be taken to be the sale of those articles.

Acts done for purposes of a judicial proceeding. 104. A copyright subsisting by virtue of this Part is not infringed by anything done for the purposes of a judicial proceeding or a report of a judicial proceeding.

Copyright in certain recordings not infringed by causing recordings to be heard in public or broadcast.

105. Copyright subsisting in a sound recording by virtue only of sub-section (3.) of section 89 of this Act is not infringed by the causing of the recording to be heard in public or by the broadcasting of the recording.

Causing sound recording to be heard at guest house or club. 106.—(1.) Where a sound recording is caused to be heard in public―

(a) at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests; or

(b) as part of the activities of, or for the benefit of, a club, society or other organization that is not established or conducted for profit and the principal objects of which are charitable or are otherwise concerned with the advancement of religion, education or social welfare,

the act of causing the recording to be so heard does not constitute an infringement of the copyright in the recording.

(2.) The last preceding sub-section does not apply—

(a) in relation to premises of a kind referred to in paragraph (a) of that sub-section, if a specific charge is made for admission to the part of the premises where the recording is to be heard; or

(b) in relation to an organization of a kind referred to in paragraph (b) of that sub-section, if a charge is made for admission to the place where the recording is to be heard and any of the proceeds of the charge are applied otherwise than for the purposes of the organization.

(3.) A reference in the last preceding sub-section to a specific charge, or a charge, made for admission includes a reference to a specific charge, or a charge, made partly for admission and partly for other purposes.

Making of record embodying sound recording for purpose of broadcasting. 107.—(1.) Where the broadcasting by a person of a sound recording would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the recording but the making by the person of a record embodying the recording would, apart from this sub-section, constitute such an infringement, the copyright in the recording is not infringed by his making a record embodying the recording in association with other matter solely for the purpose of the broadcasting of the recording in association with the other matter.

(2.) The last preceding sub-section does not apply in relation to a record if the record is used for a purpose other than―

(a) the broadcasting of the recording in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the recording; or

(b) the making of further records embodying the recording for the purpose of the broadcasting of the recording in such circumstances.

(3.) Sub-section (1.) of this section does not apply in relation to a record where the record is used for the purpose of the broadcasting of the recording by a person who is not the maker of the record unless the maker has paid to the owner of the copyright in the recording such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the record.

(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

(5.) Sub-section (1.) of this section does not apply in relation to a record unless, before the expiration of the period of twelve months commencing on the day on which any of the records made in accordance with that sub-section is first used for broadcasting the recording in accordance with that sub-section, or before the expiration of such further period, if any, as is agreed between the maker of the record and the owner of the copyright in the recording, all the records made in accordance with that sub-section are destroyed or are delivered, with the consent of the National Librarian, to the National Library.

Copyright in published recording not infringed by public performance if equitable remuneration paid. 108.—(1.) The copyright in a sound recording that has been published is not infringed by a person who causes the recording to be heard in public if—

(a) the person has paid to the owner of the copyright in the recording such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the causing of the recording to be heard in public; and

(b) in the case of a recording that was first published outside Australia—the recording has been published in Australia or the prescribed period after the date of the first publication of the recording has expired.

(2.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the recording and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

(3.) Regulations prescribing a period for the purposes of paragraph (b) of sub-section (1.) of this section may prescribe different periods in relation to different classes of sound recordings.

Copyright in published sound recording not infringed by broadcast in certain circumstances. 109.—(1.) Subject to this section, the copyright in a published sound recording is not infringed by the making of a broadcast of that recording if—

(a) where there is no order of the Tribunal in force under section 152 of this Act applying to the maker of that broadcast in relation to the time when that broadcast was made the maker of that broadcast has given an undertaking in writing to the person who is the owner of the copyright in that recording to pay to him such amounts (if any) as may be specified in, or determined in accordance with, an order of the Tribunal made under that section in respect of the broadcasting by the maker, during a period within which that broadcast was made, of published sound recordings in which the copyrights are owned by that person and which include that recording; or

(b) where there is an order of the Tribunal in force under that section applying to the maker of that broadcast in relation to the time when that broadcast was made—

(i) the copyright in that recording is owned by a person who is specified in the order as one of the persons among whom the amount specified in, or determined in accordance with, the order is to be divided and the maker of the broadcast makes payments to the person in accordance with the order; or

(ii) the copyright in that recording is owned by a person who is not so specified in the order.

(2.) The last preceding sub-section does not apply in relation to a broadcast of a sound recording if the broadcast was made in accordance with an agreement between the maker of the broadcast and the owner of the copyright in the recording.

(3.) Sub-section (1.) of this section does not apply in relation to a broadcast of a sound recording that has not been published in Australia if the broadcast was made before the expiration of the prescribed period after the date of the first publication of the recording.

(4.) Regulations prescribing a period for the purposes of the last preceding sub-section may prescribe different periods in relation to different classes of sound recordings.

(5.) Sub-section (1.) of this section does not apply in relation to a broadcast of a sound recording that has not been published in Australia if—

(a) the recording consists of, or includes, a musical work in which copyright subsists;

(b) the musical work was made for the purpose of being performed, or has been performed, in association with a dramatic work or has been included in a cinematograph film; and

(c) records of the musical work have not been supplied (whether by sale or otherwise) to the public in Australia.

(6.) For the purposes of paragraph (c) of the last preceding sub-section, a supplying of records of a musical work shall be disregarded if the supplying was done otherwise than by, or with the licence of, the owner of the copyright in the work.

Provisions relating to cinematograph films. 110.—(1.) Where the visual images forming part of a cinematograph film consist wholly or principally of images that, at the time when they were first embodied in an article or thing, were means of communicating news, the copyright in the film is not infringed by the causing of the film to be seen or heard, or to be both seen and heard, in public after the expiration of fifty years after the expiration of the calendar year in which the principal events depicted in the film occurred.

(2.) Where, by virtue of this Part, copyright has subsisted in a cinematograph film, a person who, after that copyright has expired, causes the film to be seen or heard, or to be seen and heard, in public does not, by so doing, infringe any copyright subsisting by virtue of Part III. in a literary, dramatic, musical or artistic work.

(3.) Where the sounds that are embodied in a sound-track associated with the visual images forming part of a cinematograph film are also embodied in a record, other than such a sound-track or a record derived directly or indirectly from such a sound-track, the copyright in the cinematograph film is not infringed by any use made of that record.

Filming or recording broadcasts for private and domestic use. 111.—(1.) The copyright in a television broadcast in so far as it consists of visual images is not infringed by the making of a cinematograph film of the broadcast, or a copy of such a film, for the private and domestic use of the person by whom it is made.

(2.) The copyright in a sound broadcast, or in a television broadcast in so far as it consists of sounds, is not infringed by the making of a sound recording of the broadcast, or a record embodying such a recording, for the private and domestic use of the person by whom it is made.

(3.) For the purposes of this section, a cinematograph film or a copy of such a film, or a sound recording or a record embodying such a recording, shall be deemed to be made otherwise than for the private and domestic use of the person by whom it is made if it is made for the purpose of—

(a) the sale or letting for hire of a copy of the film or of a record embodying the recording, as the case may be;

(b) broadcasting the film or recording; or

(c) causing the film or recording to be seen or heard in public.

Reproductions by libraries of editions of works. 112.—(1.) Subject to this section, the copyright in a published edition of a work or works is not infringed by the making by, or on behalf of, a librarian of a reproduction of part of the edition.

(2.) The last preceding sub-section does not apply in relation to a reproduction of a part of an edition unless—

(a) the reproduction is supplied only to a person who satisfies the librarian, or a person acting on behalf of the librarian, that he requires the reproduction for the purpose of research or private study and that he will not use it for any other purpose or, if the person to whom the reproduction is supplied is a member of a Parliament and the librarian is the librarian of a library the principal purpose of which is to provide library services for members of that Parliament, that he requires the reproduction for the purpose of the performance of his duties as such a member and that he will not use it for any other purpose;

(b) the person to whom the reproduction is supplied has not previously been supplied by the librarian, or by a person acting on behalf of the librarian, with a reproduction of the same part of the edition;

(c) where the reproduction is supplied to a person other than a member of a Parliament-the person is required to pay for the reproduction an amount not less than the cost of making the reproduction; and

(d) the reproduction contains only a reasonable portion of the edition.

(3.) The regulations may exclude the application of sub-section (1.) of this section in such cases as are specified in the regulations.

Division 7.—Miscellaneous.

Copyrights to subsist independently. 113.—(1.) Subject to sub-section (2.) of section 110 of this Act, where copyright subsists in any subject-matter by virtue of this Part, nothing in this Part shall be taken to affect the operation of Part III. in relation to any literary, dramatic, musical or artistic work from which that subject-matter is wholly or partly derived, and any copyright subsisting by virtue of this Part is in addition to, and independent of, any copyright subsisting by virtue of Part III.

(2.) The subsistence of copyright under any provision of this Part does not affect the operation of any other provision of this Part under which copyright can subsist.