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

Schedule 9 Copyright amendments

Part 11 Limitation on remedies available against carriage service providers

Copyright Act 1968

191 After Division 2 of Part V

Insert:

Division 2AA - Limitation on remedies available against carriage service providers

Subdivision A - Preliminary

116AA Purpose of this Division

(1) The purpose of this Division is to limit the remedies that are available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers. A carriage service provider must satisfy certain conditions to take advantage of the limitations.

Note 1: Subdivision B contains a description of the relevant activities.

Note 2: Subdivision C contains details of the limitations on remedies.

Note 3: Subdivision D sets out the conditions that must be satisfied for a carriage service provider to take advantage of the limitations. The limitations are automatic if a carriage service provider complies with the relevant conditions.

(2) This Division does not limit the operation of provisions of this Act outside this Division in relation to determining whether copyright has been infringed.

116AB Definitions

In this Division:

caching means the reproduction of copyright material on a system or network controlled or operated by or for a carriage service provider in response to an action by a user in order to facilitate efficient access to that material by that user or other users.

copyright material means:

(a) a work; or

(b) a published edition of a work; or

(d) a cinematograph film; or

(e) a television or sound broadcast; or

(f) a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.

financial benefit , in relation to a carriage service provider, does not include a benefit that merely results from the level of activity on the carriage service provider's system or network.

industry code means:

(a) an industry code that:

(i) meets any prescribed requirements; and

(i) is registered under Part 6 of the Telecommunications Act 1997; or

(b) an industry code developed in accordance with the regulations.

Subdivision B - Relevant activities

116AC Category A activity

A carriage service provider carries out a Category A activity by providing facilities or services for transmitting, routing or providing connections for copyright material, or the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections.

116AD Category B activity

A carriage service provider carries out a Category B activity by caching copyright material through an automatic process. The carriage service provider must not manually select the copyright material for caching.

116AE Category C activity

A carriage service provider carries out a Category C activity by storing, at the direction of a user, copyright material on a system or network controlled or operated by or for the carriage service provider.

116AF Category D activity

A carriage service provider carries out a Category D activity by referring users to an online location using information location tools or technology.

Subdivision C - Limitations on remedies

116AG Limitations on remedies

Relevant conditions must be satisfied

(1) A carriage service provider must satisfy the relevant conditions set out in Subdivision D before the limitations in this section apply.

General limitations

(2) For infringements of copyright that occur in the course of carrying out any of the categories of activities set out in Subdivision B, a court must not grant relief against a carriage service provider that consists of:

(a) damages or an account of profits; or

(b) additional damages; or

Category specific limitations

(3) For an infringement of copyright that occurs in the course of the carrying out of a Category A activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

(a) an order requiring the carriage service provider to take reasonable steps to disable access to an online location outside Australia;

(b) an order requiring the carriage service provider to terminate a specified account.

(4) For an infringement of copyright that occurs in the course of the carrying out of a Category B, C or D activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

(a) an order requiring the carriage service provider to remove or disable access to infringing copyright material, or to a reference to infringing copyright material;

(b) an order requiring the carriage service provider to terminate a specified account;

Relevant matters

(5) In deciding whether to make an order of a kind referred to in subsection (3) or (4), a court must have regard to:

(a) the harm that has been caused to the owner or exclusive licensee of the copyright; and

(b) the burden that the making of the order will place on the carriage service provider; and

(d) the effectiveness of the order; and

(e) whether some other comparably effective order would be less burdensome.

The court may have regard to other matters it considers relevant.

Subdivision D - Conditions

116AH Conditions

(1) This table sets out the conditions for each of the categories of activities.

Conditions
Item	Activity	Conditions
1	All categories	1. The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers. 2. If there is a relevant industry code in force - the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material.
2	Category A	1. Any transmission of copyright material in carrying out this activity must be initiated by or at the direction of a person other than the carriage service provider. 2. The carriage service provider must not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process.
3	Category B	1. If the copyright material that is cached is subject to conditions on user access at the originating site, the carriage service provider must ensure that access to a significant part of the cached copyright material is permitted only to users who have met those conditions. 2. If there is a relevant industry code in force - the carriage service provider must comply with the relevant provisions of that code relating to: (a) updating the cached copyright material; and (b) not interfering with technology used at the originating site to obtain information about the use of the copyright material. 3. The service provider must expeditiously remove or disable access to cached copyright material upon notification in the prescribed form that the material has been removed or access to it has been disabled at the originating site. 4. The carriage service provider must not make substantive modifications to the cached copyright material as it is transmitted to subsequent users. This does not apply to modifications made as part of a technical process.
4	Category C	1. The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity. A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved. 2. The carriage service provider must expeditiously remove or disable access to copyright material residing on its system or network upon receipt of a notice in the prescribed form that the material has been found to be infringing by a court. 3. The carriage service provider must comply with the prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network.
5	Category D	1. The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity. A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved. 2. The carriage service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court. 3. The carriage service provider must comply with the prescribed procedure in relation to removing or disabling a reference residing on its system or network.

(2) Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).

116AI Evidence of compliance with conditions

If a carriage service provider, in an action relating to this Division, points to evidence, as prescribed, that suggests that the carriage service provider has complied with a condition, the court must presume, in the absence of evidence to the contrary, that the carriage service provider has complied with the condition.

Subdivision E - Regulations

116AJ Regulations

(1) The regulations may provide that a carriage service provider is not liable for damages or any other civil remedy as a result of action taken in good faith to comply with a condition.

(2) The regulations may provide civil remedies for conduct by relevant parties in relation to conditions.

(3) The regulations may prescribe offences for conduct by persons issuing notices under the regulations, and prescribe penalties for offences against those regulations. The penalties must not exceed 50 penalty units.

Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalty stated above.

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