- (c) whether the counterparty knows or ought reasonably to know of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); and
- (d) whether at the time of the contract it is reasonable to expect that the contract is workable without the term.
(4) Subject to any contrary intention in the contract, where a contract term between a rights owner and a person excludes or restricts the application of a permitted use to that person, the benefit of that term passes to the rights owner’s successors in title.
(5) This section applies to any contract made before, on or after the appointed day.
Permitted uses that may not be excluded or restricted
187.—(1) Any contract term is void to the extent that it purports, directly or indirectly, to exclude or restrict any permitted use under any provision in—
- (a) Division 6 (public collections), but not section 234 (supplying copies of published literary, dramatic or musical works or articles between libraries and archives);
- (b) Division 7 (computer programs);
- (c) Division 8 (computational data analysis); or
- (d) Division 17 (judicial proceedings and legal advice).
(2) Without limiting subsection (1), a contract term is void to the extent that it purports, directly or indirectly, to prevent or restrict the doing of any of the following acts in circumstances that constitute a permitted use under the provisions mentioned in subsection (1):
- (a) making a copy of a work or a recording of a protected performance;
- (b) supplying (whether by communication or otherwise) a copy of a work or a recording of a performance;
- (c) performing a work or a recording of a protected performance.
