US Free Trade Agreement Implementation Act 2004 (120 of 2004)

Schedule 9   Copyright amendments

Part 6   Duration of copyright in works and other subject-matter

Copyright Act 1968

132   Compensation scheme for agreements made before Royal Assent

Application of item

 

(1) This item applies if:

(a) the copyright in a work or other subject-matter is owned by a person (the owner ); and

(b) before the day on which this Act receives the Royal Assent, another person made a written and lawful agreement with a third party; and

(c) the agreement was entered into for the purposes of doing an act at a particular time that would, apart from this item, infringe the copyright; and

(d) the agreement was made in reliance on the copyright having ceased to subsist before that time; and

(e) because of the amendments made by this Part the copyright continues to subsist past that time.

Owner may notify person that owner objects to person doing the act

      

(2) Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.

Owner may provide reasonable compensation to person

      

(3) If the owner does so, then the owner and the person may agree on:

(a) compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

(b) the day by which the owner is to provide the compensation.

      

(4) If the owner and the person cannot agree, either of them may apply to the Copyright Tribunal for the Tribunal to determine:

(a) compensation that is reasonable in all of the circumstances that the owner is to provide to the person; and

(b) the day by which the owner is to provide the compensation.

      

(5) When the Copyright Tribunal has determined an amount of reasonable compensation, the owner is liable to pay that amount to the person by the day determined by the Tribunal. The person may recover that amount in a court of competent jurisdiction from the owner as a debt due to the person.

Person may do act if not notified by owner or if not paid reasonable compensation

      

(6) If the owner does not notify the person, or pay reasonable compensation to the person, in accordance with this item, then:

(a) the person may do the act mentioned in paragraph (1)(c) at any time after the copyright would, apart from the amendments made by this Part, have ceased to subsist; and

(b) for the purposes of the Copyright Act 1968:

(i) the owner is not entitled to bring an action under that Act against the person in respect of the act; and

(ii) the person does not contravene a section of, or commit an offence under, that Act by doing the act.

      

(7) To avoid doubt, subitem (6) is an exception that a defendant may rely on for the purposes of section 13.3 of the Criminal Code.

Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).

      

(8) In this item:

owner , in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.