Copyright Act 1968/Part 2

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Part II.—Interpretation.

Definitions. 10. In this Act, unless the contrary intention appears—

“adaption” means—

(a) in relation to a literary work in a non-dramatic form—a version of the work (whether in its original language or in a different language) in a dramatic form;

(b) in relation to a literary work in a dramatic form—a version of the work (whether in its original language or in a different language) in a non-dramatic form;

(c) in relation to a literary work (whether in a non-dramatic form or in a dramatic form)—

(i) a translation of the work; or

(ii) a version of the work in which a story or action is conveyed solely or principally by means of pictures; and

(d) in relation to a musical work—an arrangement or transcription of the work;

“artistic work” means—

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies;

“Australia” includes the Territories of the Commonwealth not forming part of the Commonwealth;

“Australian protected person” means a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948–1967, is, for the purposes of that Act, under the protection of the Australian Government;

“author”, in relation to a photograph, means the person who took the photograph;

“broadcast” means broadcast by wireless telegraphy, and “broadcasting” has a corresponding meaning;

“building” includes a structure of any kind;

“calendar year” means a period of twelve months commencing on the first day of January;

“cinematograph film” means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing—

(a) of being shown as a moving picture; or

(b) of being embodied in another article or thing by the use of which it can be so shown,

and includes the aggregate of the sounds embodied in a soundtrack associated with such visual images;

“construction” includes erection, and “reconstruction” has a corresponding meaning;

“copy”, in relation to a cinematograph film, means any article or thing in which the visual images or sounds comprising the film are embodied;

“dramatic work” includes—

(a) a choreographic show or other dumb show if described in writing in the form in which the show is to be presented; and

(b) a scenario or script for a cinematograph film,

but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film;

“drawing” includes a diagram, map, chart or plan;

“engraving” includes an etching, lithograph, product of photogravure, woodcut, print or similar work, not being a photograph;

“exclusive licence” means a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorizing the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the copyright would, but for the licence, have the exclusive right to do, and “exclusive licensee” has a corresponding meaning;

“future copyright” means copyright to come into existence at a future time or upon the happening of a future event;

“holder of a licence for a broadcasting station” means a holder of a subsisting licence for a commercial broadcasting station under the Broadcasting and Television Act 1942–1967;

“holder of a licence for a television station” means a holder of a subsisting licence for a commercial television station under the Broadcasting and Television Act 1942–1967;

“holder of a wireless telegraphy licence” means a holder of a subsisting licence under the Wireless Telegraphy Act 1905–1967 to establish, erect, maintain or use a station or appliance for the purpose of transmitting messages by means of wireless telegraphy;

“infringing copy” means—

(a) in relation to a literary, dramatic, musical or artistic work—a reproduction of the work not being a copy of a cinematograph film of the work;

(b) in relation to a sound recording—a record embodying the recording not being a sound-track associated with visual images forming part of a cinematograph film;

(c) in relation to a cinematograph film—a copy of the film;

(d) in relation to a television broadcast or a sound broadcast—a copy of a cinematograph film of the broadcast or a record embodying a sound recording of the broadcast; and

(e) in relation to a published edition of a literary, dramatic, musical or artistic work—a reproduction of the edition,

being an article the making of which constituted an infringement of the copyright in the work, recording, film, broadcast or edition or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in Australia by the importer;

“international organization to which this Act applies” means an organization that is declared by regulations made for the purposes of section 186 of this Act to be an international organization to which this Act applies, and includes—

(a) an organ of, or office within, an organization that is so declared; and

(b) a commission, council or other body established by such an organization or organ;

“judicial proceeding” means a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath;

“law of the Commonwealth” includes a law of a Territory of the Commonwealth;

“literary work” includes a written table or compilation;

“manuscript”, in relation to a work, means an original document embodying the work, whether written by hand or not;

“photograph” means a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography, and "photographic" has a corresponding meaning;

“plate” includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance;

“prospective owner” means—

(a) in relation to a future copyright that is not the subject of an agreement of a kind referred to in sub-section (1.) of section 197 of this Act—the person who will be the owner of the copyright on its coming into existence; or

(b) in relation to a future copyright that is the subject of such an agreement—the person in whom, by virtue of that subsection, the copyright will vest on its coming into existence;

“record” means a disc, tape, paper or other device in which sounds are embodied;

“sculpture” includes a cast or model made for purposes of sculpture;

“sound broadcast” means sounds broadcast otherwise than as part of a television broadcast;

“sound recording” means the aggregate of the sounds embodied in a record;

“sound-track”, in relation to visual images forming part of a cinematograph film, means—

(a) the part of any article or thing, being an article or thing in which those visual images are embodied, in which sounds are embodied; or

(b) a disc, tape or other device in which sounds are embodied and which is made available by the maker of the film for use in conjunction with the article or thing in which those visual images are embodied;

“sufficient acknowledgement”, in relation to a work, means an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknowledgement of his name is not to be made, also identifying the author;

“television broadcast” means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images;

“the Australian Broadcasting Commission” means the Australian Broadcasting Commission constituted under the Broadcasting and Television Act 1942–1967;

“the Commonwealth” includes the Administration of a Territory of the Commonwealth;

“the Copyright Act, 1911” means the Imperial Act known as the Copyright Act, 1911;

“the Copyright Tribunal” or “the Tribunal” means the Copyright Tribunal established by Part VI., and includes a member of that Tribunal exercising powers of that Tribunal;

“the Crown” includes the Crown in right of a State and also includes the Administration of a Territory of the Commonwealth;

“the minimum royalty”, in relation to a record, means the amounts applicable in respect of the record under sub-section (5.) of section 56, and sub-paragraph (i) of paragraph (b) of section 57, of this Act or, if those provisions are affected by regulations made for the purposes of section 58 of this Act, under those provisions as so affected;

“the National Librarian” has the same meaning as in the National Library Act 1960–1967;

“the National Library” means the National Library established under the National Library Act 1960–1967;

“the royalty", in relation to a record, means the amount applicable in respect of the record under sub-section (1.) of section 56 of this Act or, if that sub-section is affected by regulations made for the purposes of section 58 of this Act, under that sub-section as so affected;

“will" includes a codicil;

“wireless telegraphy" means the emitting or receiving, otherwise than over a path that is provided by a material substance, of electromagnetic energy;

“wireless telegraphy apparatus" means an appliance or apparatus for the purpose of transmitting or receiving sounds or visual images by means of wireless telegraphy;

“work" means a literary, dramatic, musical or artistic work;

“work of joint authorship" means a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors;

“writing" means a mode of representing or reproducing words, figures or symbols in a visible form, and "written" has a corresponding meaning.

Residence in a country not affected by temporary absence. 11. For the purposes of this Act, a person who, at a material time, was ordinarily resident in a country (including Australia) but was temporary absent from that country shall be treated as if he had been resident in that country at that time.

References to Parliament. 12. A reference in this Act to a Parliament shall be read as a reference to the Parliament of the Commonwealth or of a State or of a Territory of the Commonwealth.

Acts comprised in copyright. 13.—(1.) A reference in this Act to an act comprised in the copyright in a work or other subject-matter shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do.

(2.) For the purposes of this Act, the exclusive right to do an act in relation to a work, an adaptation of a work or any other subject-matter includes the exclusive right to authorize a person to do that act in relation to that work, adaptation or other subject-matter.

Acts done in relation to substantial part of work or other subject-matter deemed to be done in relation to the whole. 14.—(1.) In this Act, unless the contrary intention appears—

(a) a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and

('b') a reference to a reproduction, adaptation or copy of a work, or to a record embodying a sound recording, shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, or to a record embodying a substantial part of the sound recording, as the case may be.

(2.) This section does not affect the interpretation of any reference in sections 32, 177, 180, 187 and 198 of this Act to the publication, or absence of publication, of a work.

References to acts done with licence of owner of copyright. 15. For the purposes of this Act, an act shall be deemed to have been done with the licence of the owner of a copyright if the doing of the act was authorized by a licence binding the owner of the copyright.

References to partial assignment of copyright. 16. A reference in this Act to a partial assignment of copyright shall be read as a reference to an assignment of copyright that is limited in any way.

Statutory employment. 17. For the purposes of this Act, the employment of a person, or the employment of a person as an apprentice, under a law of the Commonwealth or of a State but otherwise than under a contract of service or contract of apprenticeship shall be treated as if that employment were employment under a contract of service or employment under a contract of apprenticeship, as the case may be.

Libraries established or conducted for profit. 18. For the purposes of this Act, a library shall not be taken to be established or conducted for profit by reason only that the library is owned by a person carrying on business for profit.

References to Copyright Act, 1911. 19. A reference in a provision of this Act to the Copyright Act, 1911, in relation to any time before the commencement of this Act, shall, for the purposes of the application of that provision in relation to a State or a Territory of the Commonwealth, be read as a reference to the Copyright Act, 1911 as it applied in that State or Territory at that time.

Names under which work is published. 20.—(1.) A reference in this Act to the name or names under which a work was published shall be read as a reference to the name or names specified in the work as the name of the author or the names of the authors of the work.

(2.) For the purposes of this Act, a publication of a work under two or more names shall not be taken to be pseudonymous unless all those names are pseudonyms.

Reproduction of works. 21.—(1.) For the purposes of this Act, a literary, dramatic or musical work shall be deemed to have been reproduced in a material form if a sound recording or cinematograph film is made of the work, and any record embodying such a recording and any copy of such a film shall be deemed to be a reproduction of the work.

(2.) The last preceding sub-section applies in relation to an adaptation of a work in like manner as it applies in relation to a work.

(3.) For the purposes of this Act, an artistic work shall be deemed to have been reproduced—

(a) in the case of a work in a two-dimensional form—if a version of the work is produced in a three-dimensional form; or

(b) in the case of a work in a three-dimensional form—if a version of the work is produced in a two-dimensional form,

and the version of the work so produced shall be deemed to be a reproduction of the work.

(4.) The last preceding sub-section has effect subject to Division 7 of Part III.

Provisions relating to the making of a work or other subject-matter. 22.—(1.) A reference in this Act to the time when, or the period during which, a literary, dramatic or musical work was made shall be read as a reference to the time when, or the period during which, as the case may be, the work was first reduced to writing or to some other material form.

(2.) For the purposes of this Act, a literary, dramatic or musical work that exists in the form of sounds embodied in an article or thing shall be deemed to have been reduced to a material form and to have been so reduced at the time when those sounds were embodied in that article or thing.

(3.) For the purposes of this Act—

(a) a sound recording shall be deemed to have been made at the time when the first record embodying the recording was produced; and

(b) the maker of the sound recording is the person who owned that record at that time.

(4.) For the purposes of this Act—

(a) a reference to the making of a cinematograph film shall be read as a reference to the doing of the things necessary for the production of the first copy of the film; and

(b) the maker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken.

(5.) For the purposes of this Act, a television broadcast or sound broadcast shall be deemed to have been made by the person by whom, at the time when, and from the place from which, the visual images or sounds constituting the broadcast, or both, as the case may be, were broadcast.

Sound recordings and records. 23.—(1.) For the purposes of this Act, sounds embodied in a sound-track associated with visual images forming part of cinematograph film shall be deemed not to be a sound recording.

(2.) A reference in this Act to a record of a work or other subject-matter shall, unless the contrary intention appears, be read as a reference to a record by means of which the work or other subject-matter can be performed.

References to sounds and visual images embodied in an article. 24. For the purposes of this Act, sounds or visual images shall be taken to have been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article or thing.

Provisions relating to broadcasting. 25.—(1.) A reference in this Act to broadcasting shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television.

(2.) A reference in this Act to the doing of an act by the reception of a television broadcast or sound broadcast shall be read as a reference to the doing of that act by means of receiving a broadcast—

(a) from the transmission by which the broadcast is made; or

(b) from a transmission made otherwise than by way of broadcasting, but simultaneously with the transmission referred to in the last preceding paragraph,

whether the reception of the broadcast is directly from the transmission concerned or from a re-transmission made by any person from any place.

(3.) Where a record embodying a sound recording or a copy of a cinematograph film is used for the purpose of making a broadcast (in this sub-section referred to as “the primary broadcast”), a person who makes a broadcast (in this sub-section referred to as “the secondary broadcast”) by receiving and simultaneously making a further transmission of—

(a) the transmission by which the primary broadcast was made; or

(b) a transmission made otherwise than by way of broadcasting but simultaneously with the transmission referred to in the last preceding paragraph,

shall, for the purposes of this Act, be deemed not to have used the record or copy for the purpose of making the secondary broadcast.

(4.) In this Act―

(a) a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast; and

(b) a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images.

(5.) In this section, “re-transmission” means any re-transmission, whether over paths provided by a material substance or not, and includes a re-transmission made by making use of any article or thing in which the visual images or sounds constituting the broadcast, or both, as the case may be, have been embodied.

References to transmission to subscribers to a diffusion service. 26.—(1.) A reference in this Act to the transmission of a work or other subject-matter to subscribers to a diffusion service shall be read as a reference to the transmission of the work or other subject-matter in the course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service.

(2.) For the purposes of this Act, where a work or other subject-matter is so transmitted—

(a) the person operating the service shall be deemed to be the person causing the work or other subject-matter to be so transmitted; and

(b) no person other than the person operating the service shall be deemed to be causing the work or other subject-matter to be so transmitted, whether or not he provides any facilities for the transmission.

(3.) For the purposes of the application of this section, a service of distributing broadcast or other matter shall be disregarded where the service is only incidental to a business of keeping or letting premises at which persons reside or sleep, and is operated as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests.

(4.) A reference in this section to the person operating a service of distributing broadcast or other matter shall be read as a reference to the person who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether he is the person who transmits the broadcast or other matter or not.

(5.) Where a service of distributing matter over wires or over other paths provided by a material substance is only incidental to, or part of, a service of transmitting telegraphic or telephonic communications, a subscriber to the last-mentioned service shall be taken, for the purposes of this section, to be a subscriber to the first-mentioned service.

Performance. 27.—(1.) Subject to this section, a reference in this Act to performance shall—

(a) be read as including a reference to any mode of visual or aural presentation, whether the presentation is by the operation of wireless telegraphy apparatus, by the exhibition of a cinematograph film, by the use of a record or by any other means; and

(b) in relation to a lecture, address, speech or sermon-be read as including a reference to delivery,

and a reference in this Act to performing a work or an adaptation of a work has a corresponding meaning.

(2.) For the purposes of this Act, broadcasting, or the causing of a work or other subject-matter to be transmitted to subscribers to a diffusion service, shall be deemed not to constitute performance or to constitute causing visual images to be seen or sounds to be heard.

(3.) Where visual images or sounds are displayed or emitted by any receiving apparatus to which they are conveyed by the transmission of electromagnetic signals (whether over paths provided by a material substance or not), the operation of any apparatus by which the signals are transmitted, directly or indirectly, to the receiving apparatus shall be deemed not to constitute performance or to constitute causing visual images to be seen or sounds to be heard but, in so far as the display or emission of the images or sounds constitutes a performance, or causes the images to be seen or the sounds to be heard, the performance, or the causing of the images to be seen or sounds to be heard, as the case may be, shall be deemed to be effected by the operation of the receiving apparatus.

(4.) Without prejudice to the last two preceding sub-sections, where a work or an adaptation of a work is performed or visual images are caused to be seen or sounds to be heard by the operation of any apparatus referred to in the last preceding sub-section or of any apparatus for reproducing sounds by the use of a record, being apparatus provided by or with the consent of the occupier of the premises where the apparatus is situated, the occupier of those premises shall, for the purposes of this Act, be deemed to be the person giving the performance or causing the images to be seen or the sounds to be heard, whether he is the person operating the apparatus or not.

Performance of works or other subject-matter in the course of educational instruction. 28.—(1.) Where a literary, dramatic or musical work—

(a) is performed in class, or otherwise in the presence of an audience; and

(b) is so performed by a teacher in the course of his giving educational instruction, not being instruction given for profit, or by a student in the course of his receiving such instruction, the performance shall, for the purposes of this Act, be deemed not to be a performance in public if the audience is limited to persons who are taking part in the instruction or are otherwise directly connected with the place where the instruction is given.

(2.) For the purposes of the last preceding sub-section, educational instruction given by a teacher at a place of education that is not conducted for profit shall not be taken to be given for profit by reason only that the teacher receives remuneration for giving the instruction.

(3.) For the purposes of sub-section (1.) of this section, a person shall not be taken to be directly connected with a place where instruction is given by reason only that he is a parent or guardian of a student who receives instruction at that place.

(4.) The last three preceding sub-sections apply in relation to sound recordings and cinematograph films in like manner as they apply in relation to literary, dramatic and musical works but, in the application of those sub-sections in relation to such recordings or films, any reference to performance shall be read as a reference to the act of causing the sounds concerned to be heard or the visual images concerned to be seen.

Publication. 29.—(1.) Subject to this section, for the purposes of this Act—

(a) a literary, dramatic, musical or artistic work, or an edition of such a work, shall be deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public;

(b) a cinematograph film shall be deemed to have been published if, but only if, copies of the film have been sold, let on hire, or offered or exposed for sale or hire, to the public; and

(c) a sound recording shall be deemed to have been published if, but only if, records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public.

(2.) In determining, for the purposes of paragraph (a) of the last preceding sub-section, whether reproductions of a work or edition have been supplied to the public, section 14 of this Act does not apply.

(3.) For the purposes of this Act, the performance of a literary, dramatic or musical work, the supplying (whether by sale or otherwise) to the public of records of a literary, dramatic or musical work, the exhibition of an artistic work, the construction of a building or of a model of a building, or the supplying (whether by sale or otherwise) to the public of photographs or engravings of a building, of a model of a building or of a sculpture, does not constitute publication of the work.

(4.) A publication that is merely colourable and is not intended to satisfy the reasonable requirements of the public shall be disregarded for the purposes of this Act except in so far as it may constitute an infringement of copyright or a breach of a duty under Part IX.

(5.) For the purposes of this Act, a publication in Australia or in any other country shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere, if the two publications took place within a period of not more than thirty days.

(6.) In determining, for the purposes of any provision of this Act—

(a) whether a work or other subject-matter has been published;

(b) whether a publication of a work or other subject-matter was the first publication of the work or other subject-matter; or

(c) whether a work or other subject-matter was published or otherwise dealt with in the life-time of a person,

any unauthorized publication or the doing of any other unauthorized act shall be disregarded.

(7.) Subject to section 52 of this Act, a publication or other act shall, for the purposes of the last preceding sub-section, be taken to have been unauthorized if, but only if—

(a) copyright subsisted in the work or other subject-matter and the act concerned was done otherwise than by, or with the licence of, the owner of the copyright; or

(b) copyright did not subsist in the work or other subject-matter and the act concerned was done otherwise than by, or with the licence of—

(i) the author or, in the case of a sound recording, cinematograph film or edition of a work, the maker or publisher, as the case may be; or

(ii) persons lawfully claiming under the author, maker or publisher.

(8.) Nothing in either of the last two preceding sub-sections affects any provisions of this Act relating to the acts comprised in a copyright or to acts constituting infringements of copyrights or any provisions of Part IX.

Ownership of copyright for particular purposes. 30. In the case of a copyright of which (whether as a result of a partial assignment or otherwise) different persons are the owners in respect of its application to—

(a) the doing of different acts or classes of acts; or

(b) the doing of one or more acts or classes of acts in different countries or at different times,

the owner of the copyright, for any purpose of this Act, shall be deemed to be the person who is the owner of the copyright in respect of its application to the doing of the particular act or class of acts, or to the doing of the particular act or class of acts in the particular country or at the particular time, as the case may be, that is relevant to that purpose, and a reference in this Act to the prospective owner of a future copyright of which different persons are the prospective owners has a corresponding meaning.