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

Schedule 9   Copyright amendments

Part 2   Performers' moral rights

Copyright Act 1968

56   At the end of Division 7 of Part IX

Add:

Subdivision B - Remedies for infringement of moral rights of performers

195AZGA Definition etc.

(1) In this Subdivision:

action means a proceeding of a civil nature between parties, and includes a counterclaim.

(2) In the application of this Subdivision in relation to a counterclaim, references to the defendant are taken to be references to the plaintiff.

195AZGB Actions for infringement of performer's moral rights

If a person infringes any of the moral rights of a performer in respect of a live performance or recorded performance, then the performer or a person representing the performer may bring an action in respect of the infringement, subject to any co-performership agreement in force under section 195ANB to which the performer is a party.

195AZGC Remedies for infringements of performer's moral rights

(1) Subject to section 203, the relief that a court may grant in an action for an infringement of any of a performer's moral rights in respect of a live performance or recorded performance includes any one or more of the following:

(a) an injunction (subject to any terms that the court thinks fit);

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the performer has been infringed;

(d) an order that the defendant make a public apology for the infringement;

(e) an order that any false attribution of performership, or derogatory treatment, of the performance be removed or reversed.

(2) In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to have been aware, of the performer's moral rights;

(b) the effect on the performer's reputation resulting from any damage to the performance;

(c) the number, and categories, of people who have heard the performance;

(d) anything done by the defendant to mitigate the effects of the infringement;

(e) if the moral right that was infringed was a right of attribution of performership - any cost or difficulty that would have been associated with identifying the performer;

(f) any cost or difficulty in removing or reversing any false attribution of performership, or derogatory treatment, of the performance.

(3) In deciding whether or not to grant an injunction under subsection (1), the court must consider whether the parties have made any attempt to negotiate a settlement of the action and whether it should adjourn the hearing or further hearing of the action for the purpose of giving the parties an appropriate opportunity to negotiate a settlement, whether through a process of mediation or otherwise.

(4) If, after the death of a performer, in respect of an act done in a live performance or recorded performance, damages are recovered under this section by the legal personal representative of the performer, those damages devolve as if they formed part of the performer's estate and as if the right of action in respect of the doing of the act had subsisted, and had been vested in the performer, immediately before his or her death.

Note: Subsection (4) does not apply in relation to the right of integrity of performership, which ends on the performer's death: see section 195ANA.

195AZGD Presumption as to subsistence of copyright

In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, copyright is presumed to subsist in the recorded performance if the defendant does not put in issue the question whether copyright subsists in the recorded performance.

195AZGE Presumption as to subsistence of performer's moral rights

(1) In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, if copyright is presumed or proved to have subsisted in the recorded performance when the infringement is alleged to have occurred, then the moral right is presumed to have subsisted in the recorded performance at that time.

(2) This section has effect subject to subsection 195ANA(3).

195AZGF Presumptions in relation to performership

(1) If a name purporting to be the name of a performer appears on a record embodying a performance so as to indicate that the person was a performer in the performance, then, in an action brought under this Part, the person whose name so appeared is, if it was his or her true name or a name by which he or she was commonly known, presumed, unless the contrary is established, to be a performer in the performance.

(2) If a name purporting to be the name of a group of performers appears on a record embodying a performance so as to indicate that the group performed in the performance, then, in an action brought under this Part, the group whose name so appeared is, if it was a name by which the group was commonly known, presumed, unless the contrary is established, to have performed in the performance.

Subdivision C - Miscellaneous

195AZGG Saving of other rights and remedies

(1) Subject to this section, this Part does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under this Part.

(2) Any damages recovered in proceedings brought under this Part are to be taken into account in assessing damages in proceedings brought otherwise than under this Part and arising out of the same event or transaction.

(3) Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction.

195AZGH Jurisdiction of courts

(1) The jurisdiction of the Supreme Court of a State or Territory in a matter arising under this Part is to be exercised by a single Judge of the Court.

(2) Subject to subsection (3), a decision of a court of a State or Territory (however constituted) under this Part is final.

(3) An appeal lies from a decision of a court of a State or Territory under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

(4) The Federal Court of Australia has jurisdiction with respect to matters arising under this Part.

(5) The Federal Magistrates Court has jurisdiction with respect to matters arising under this Part.