US Free Trade Agreement Implementation Act 2004 (120 of 2004)
Schedule 9 Copyright amendments
Part 2 Performers' moral rights
Copyright Act 1968
52 At the end of Division 6 of Part IX
Add:
Subdivision B - Infringement of moral rights of performers
195AXA Infringement of right of attribution of performership
Subject to this Subdivision, a person infringes a performer's right of attribution of performership in respect of a live performance or recorded performance if the person does, or authorises the doing of, an attributable act in respect of the performance without the identification of the performer in accordance with Division 2A as a performer in the performance.
195AXB Infringement of right not to have performership falsely attributed
Subject to this Subdivision, a person infringes a performer's right not to have performership falsely attributed if the person does an act of false attribution in respect of the performance.
195AXC Infringement of right of integrity of performership
(1) This section has effect subject to this Subdivision.
(2) A person infringes a performer's right of integrity of performership in respect of a live performance or recorded performance if the person subjects the performance, or authorises the performance to be subjected, to derogatory treatment.
(3) If a live performance, as affected by derogatory treatment, has become a recorded performance, then a person infringes a performer's right of integrity of performership in respect of the live performance if the person does any of the following in respect of the recorded performance:
(a) makes a copy record of the recorded performance;
(b) communicates the recorded performance to the public;
(c) causes the recorded performance to be heard in public.
(4) If a recorded performance has been subjected to derogatory treatment, then a person infringes a performer's right of integrity of performership in respect of the recorded performance if the person does any of the following in respect of the recorded performance (as affected by the derogatory treatment):
(a) makes a copy record of the recorded performance;
(b) communicates the recorded performance to the public;
(c) causes the recorded performance to be heard in public.
195AXD No infringement of right of attribution of performership if it was reasonable not to identify the performer
(1) A person who does, or authorises the doing of, an attributable act in respect of a live performance or recorded performance does not, because a performer in the performance is not identified, infringe the performer's right of attribution of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances not to identify the performer.
(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify a performer in a live performance or recorded performance include the following:
(a) the nature of the performance;
(b) the purpose for which the performance is used;
(c) the manner in which the performance is used;
(d) the context in which the performance is used;
(e) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(f) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(g) any difficulty or expense that would have been incurred as a result of identifying the performer;
(h) whether the performer participated in the performance in the course of the employment of the performer.
Note: For example, a performance may be used to attract custom in a hotel or restaurant.
195AXE No infringement of right of integrity of performership if derogatory treatment or other action was reasonable
(1) A person does not, by subjecting a live performance or recorded performance to derogatory treatment, or by authorising a live performance or recorded performance to be subjected to derogatory treatment, infringe a performer's right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to subject the performance to the treatment.
(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances to subject a live performance or recorded performance to derogatory treatment include the following:
(a) the nature of the performance;
(b) the purpose for which the performance is used;
(c) the manner in which the performance is used;
(d) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(e) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;
(f) whether the performer who alleges that the treatment was derogatory participated in the performance in the course of the employment of the performer;
(g) whether the treatment was required by law or was otherwise necessary to avoid a breach of any law.
Note: For example, a performance may be used to attract custom in a hotel or restaurant.
(3) A person who:
(a) does an act referred to in subsection 195AXC(3) in respect of a live performance that has been subjected to derogatory treatment; or
(b) does an act referred to in subsection 195AXC(4) in respect of a recorded performance that has been subjected to derogatory treatment;
does not, by doing that act, infringe a performer's right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to do that act.
195AXF Infringement by importation for sale or other dealing
(1) A performer's moral right in respect of a live performance or recorded performance is infringed by a person who imports an article into Australia for the purpose of dealing with the article if the importer knew, or ought reasonably to have known, that, if the article had been made in Australia, it would have been an infringing article.
(2) In subsection (1):
dealing with does not include distributing except where the proposed distribution is for the purposes of sale.
195AXG Infringement by sale and other dealings
(1) A performer's moral right in respect of a live performance or recorded performance is infringed by a person who, in Australia, deals with an article if the person knew, or ought reasonably to have known, that the article was an infringing article or, in respect of an imported article, would, if it had been made in Australia, have been an infringing article.
(2) In subsection (1):
deals with does not include:
(a) distributes, except where the distribution is for the purposes of sale; or
(b) deals with by means of a dealing covered by paragraph 195AHB(5)(b) or (6)(b).
195AXH Matters to be taken into account
In determining whether a person has authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance, the matters that must be taken into account include the following:
(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
195AXI Communication by use of certain facilities
A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance merely because another person uses the facilities so provided to do such an act.
195AXJ Performer's consent to act or omission
(1) It is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do, or omit to do, something if the act or omission is within the scope of a written consent given by the performer or a person representing the performer.
Note: The consent of one performer does not affect the moral rights of any other performer: see subsection 195AZQ(5).
(2) A consent may be given in relation to all or any acts or omissions occurring before or after the consent is given.
(3) A consent may be given in relation to:
(a) a specified performance or specified performances occurring before the consent is given; or
(b) a performance or performances of a particular description:
(i) that have not yet occurred; or
(ii) that are in the course of occurring.
(4) A consent may be given by an employee for the benefit of his or her employer in relation to all performances in which the employee is to be a performer in the course of his or her employment.
(5) A consent given for the benefit of the owner or prospective owner of copyright in the recorded performance or recorded performances to which the consent relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.
(6) Subsections (2) to (5), inclusive, do not limit the operation of subsection (1).
195AXK Consent invalidated by duress or false or misleading statements
(1) If a person applies duress to a performer or, if a performer is represented by a person, to the person representing the performer, in connection with the giving of a consent for the purposes of section 195AXJ, the consent does not have any effect.
(2) If:
(a) a person makes a statement to another person; and
(b) the person makes the statement knowing:
(i) that the statement is false or misleading in a material particular; or
(ii) that a matter or thing has been omitted from the statement without which the statement is false or misleading in a material particular; and
(c) the person makes the statement with the intention of persuading the other person to give, or not to give, a consent for the purposes of section 195AXJ;
the consent does not have any effect.
195AXL Acts or omissions outside Australia
It is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do, or omit to do, something outside Australia.