Copyright Act 2021/Part 7

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PART 7
ADDITIONAL RIGHTS RELATING TO COPYRIGHT WORKS AND PROTECTED PERFORMANCES
Division 1—Author’s moral rights

Interpretation of this Division

369. In this Division—

“moral right” means a right under this Division;

“name” includes initials or a monogram.

Application

370. The moral rights in this Division apply only—

(a) in relation to an authorial work in which copyright subsists;

(b) for the period during which copyright subsists in the work; and

(c) in relation to the whole or any substantial part of the work.

Right to be identified

371.—(1) Subject to the provisions of this Division, the author of an authorial work has the moral right to be so identified, and that right is infringed if a person fails to identify the author—

(a) in the circumstances mentioned in section 372; or

(b) in the manner required by section 373.

(2) In the case of a work of joint authorship, the right in subsection (1)—

(a) is a right of each joint author to be identified as an author; and

(b) is not infringed in relation to a joint author if another joint author is not identified.

Illustration

A1 and A2 are the joint authors of an authorial work. The circumstances in section 372 apply. A1 is identified in the manner required by section 373; A2 is not. A1’s moral right to be identified is not infringed. A2’s moral right to be identified is infringed.

Right to be identified—when should an author be identified

372.—(1) A person must identify the author of a dramatic or literary work (other than a literary work mentioned in subsection (2)) whenever the person—

(a) publishes the work;

(b) performs the work in public;

(c) communicates the work to the public;

(d) causes to be seen in public a film that includes the work;

(e) supplies to the public copies of a film that includes the work;

(f) supplies to the public copies of a sound recording that includes the work; or

(g) does any of the acts mentioned in paragraphs (a) to (f) in relation to an adaptation of the work.

(2) A person must identify the author of a musical work, or a literary work consisting of words intended to be sung or spoken with music, whenever the person—

(a) publishes the work;

(b) causes to be seen in public a film, the sound-track of which includes the work;

(c) supplies to the public copies of a sound recording that includes the work;

(d) supplies to the public copies of a film, the sound-track of which includes the work; or

(e) does any of the acts mentioned in paragraphs (a) to (d) in relation to an adaptation of the work.

(3) A person must identify the author of an artistic work whenever the person—

(a) publishes the work;

(b) exhibits the work in public;

(c) communicates a visual image of the work to the public;

(d) causes to be seen in public a film that includes a visual image of the work;

(e) supplies to the public copies of a film that includes a visual image of the work; or

(f) in the case of the following works, supplies to the public copies of a photograph or graphic representation of the work:

(i) a work of architecture in the form of a building or a model of a building;

(ii) a sculpture;

(iii) a work of artistic craftsmanship.

(4) In addition to subsection (3), the author of an artistic work in the form of a building must be identified on the first building that embodies the work.

Right to be identified—how should an author be identified

373.—(1) Where an author has a moral right to be identified, he or she must be identified in accordance with this section.

(2) The author must be identified—

(a) in the way that the author wishes to be identified (for example, by the author’s true name or a pseudonym), but only if—

(i) the author has made his or her wishes known, either generally or to the person who is required to identify the author; and

(ii) it is reasonable in the circumstances to identify the author in that way; and

(b) in any other case, by any reasonable form of identification.

Illustration

An author may make known his or her wish to be identified in a certain way by identifying himself or herself in that way when making or publishing the authorial work.

(3) Where the joint authors of an authorial work use a group name, each of them is sufficiently identified by using the group name.

(4) In every case, the identification must be clear and reasonably prominent.

(5) An identification is reasonably prominent if—

(a) in a case where copies are supplied—

(i) the identification appears in or on each copy; or

(ii) if that is not appropriate, the identification is likely to be noticed by a person acquiring a copy;

(b) in the case of a building—the identification is visible to persons entering or approaching the building; and

(c) in any other case—the identification is likely to be noticed by a person seeing or hearing the performance, exhibition, showing or communication, as the case may be.

Right to be identified—exception where author not known

374.—(1) Section 371 does not require a person to identify the author of an authorial work if, at or during the material time, the identity of the author—

(a) is not generally known;

(b) is not known to the person; and

(c) could not reasonably be ascertained by the person.

Illustration

The identity of an author is known if the author is known by some name other than his or her true name.

(2) In subsection (1), “material time”—

(a) in relation to section 372(1), (2) and (3), means the time at or during which the relevant act in those provisions is done; and

(b) in relation to section 372(4), means the time during which the building is constructed.

Right to be identified—exception for certain authorial works

375. Section 371 does not apply in relation to the following authorial works:

(a) a computer program;

(b) any authorial work, if—

(i) the work is made by the author in the course of his or her employment; and

(ii) the author’s employer is the first owner of the copyright in the work;

(c) any authorial work, if—

(i) the Government is the first owner of the copyright in the work; and

(ii) the author has not been identified in or on any published copy of the work;

(d) any prescribed authorial work.

Right to be identified—exception for certain permitted uses

376. Section 371 does not apply—

(a) where a person does an act that is a permitted use of an authorial work under any of the following provisions:

(i) section 202 (examination purposes);

(ii) section 265 (artistic works in public places);

(iii) section 266 (incidental inclusion in film, television broadcast or cable programme);

(iv) section 290 (judicial proceedings);

(v) Division 14 of Part 5 (artistic works with corresponding designs and industrially applied artistic works);

(b) where a person does an act in relation to an authorial work that is a fair use for the purpose of reporting news under Division 2 of Part 5; or

(c) in any prescribed circumstances.

Right to be identified—transitional exceptions

377.—(1) The right in section 371—

(a) does not apply to an author who died before the appointed day;

(b) does not, despite section 523, apply to a film that is treated as a dramatic work by that section; and

(c) is not infringed by anything done or omitted to be done before the appointed day.

(2) In the case of an authorial work made before the appointed day, section 371 does not apply—

(a) if the author is the first owner of the copyright in the work—to any act that, by virtue of an assignment of that copyright made or a licence granted by the author before the appointed day, does not infringe that copyright; and

(b) if another person is the first owner of the copyright in the work—to any act that, by virtue of an assignment of that copyright made or a licence granted by that person, does not infringe that copyright.

Right against false identification

378.—(1) The author (A) of an authorial work has the moral right to not have any other person (F) identified as the author of the work, and a person (X) infringes that right in the circumstances mentioned in subsections (2), (3) and (4).

(2) X infringes the right in subsection (1) if—

(a) X affixes or inserts F’s name in, or on, the work or a copy of the work; and

(b) the affixation or insertion is done in a way that implies that—

(i) F is the author of the work; or

(ii) the work is an adaptation of a work by F.

(3) X infringes the right in subsection (1) if—

(a) X performs the work in public or communicates the work to the public;

(b) the performance or communication is done in a way that implies that—

(i) F is the author of the work; or

(ii) the work is an adaptation of a work by F; and

(c) X knows that the implication in paragraph (b)(i) or (ii) (as the case may be) is false.

(4) X infringes the right in subsection (1) if—

(a) F’s name is affixed or inserted (whether before, on or after the appointed day) in or on a copy of the work;

(b) the affixation or insertion is done in a way that implies that—

(i) F is the author of the work; or

(ii) the work is an adaptation of a work by F;

(c) X knows that the implication in paragraph (b)(i) or (ii) (as the case may be) is false; and

(d) X—

(i) publishes the copy;

(ii) deals commercially in the copy; or

(iii) distributes the copy.

(5) For the purposes of subsection (4), “copy”, in relation to a work, includes the work itself.

(6) To avoid doubt, X and F could be the same person.

(7) In the case of a work of joint authorship, an infringement of the right in subsection (1) is an infringement of each joint author’s right.

Illustration

A1 and A2 are the joint authors of an authorial work. X affixes the names of A1 and F on a copy of the work in a way that implies that A1 and F are joint authors of the work. X has infringed the rights of both A1 and A2 under subsection (1) read with subsection (2).

Right not to be falsely identified as author of copy of artistic work

379.—(1) The author of an artistic work has the moral right not to be identified as the author of a copy of the work that was not made by him or her.

(2) A person infringes the right in subsection (1) if—

(a) the person—

(i) publishes a copy of the work as being made by the author;

(ii) deals commercially in a copy of the work as being made by the author; or

(iii) distributes a copy of the work as being made by the author; and

(b) the person knows that the copy is not made by the author.

Right not to have altered copy represented as unaltered

380.—(1) The author of an authorial work has the moral right not to have an altered copy of the work represented as being unaltered.

(2) A person infringes the right in subsection (1) if—

(a) the person—

(i) publishes an altered copy of the work as being unaltered;

(ii) deals commercially in an altered copy of the work as being unaltered; or

(iii) distributes an altered copy of the work as being unaltered; and

(b) the person knows that—

(i) the copy is an altered copy; and

(ii) the alteration is not made by the author.

(3) In the case of a work of joint authorship—

(a) any infringement of the right in subsection (1) is an infringement of each joint author’s right; and

(b) the reference to the author in subsection (2)(c) is a reference to all the joint authors.

(4) In this section, “copy”, in relation to a work, includes the work itself.

Moral rights not infringed by acts, etc., outside Singapore

381. Despite any provision of this Division, the moral rights of an author are not infringed by any act done outside Singapore or any omission in relation to an act done outside Singapore.

Consent and formal waiver

382.—(1) Despite any provision of this Division, the moral rights of an author are not infringed by any act or omission to which the author consented (whether in writing or otherwise).

(2) The moral rights of an author may be formally waived by the author.

(3) A formal waiver is valid only if it is—

(a) made in writing; and

(b) signed by the author.

(4) A formal waiver may—

(a) relate to a specific authorial work, to authorial works of a specified description or to authorial works generally;

(b) relate to existing or future authorial works;

(c) relate to some or all moral rights;

(d) be conditional or unconditional; and

(e) be expressed to be revocable.

(5) Subject to any contrary intention in the waiver, a formal waiver in favour of a person who is the owner or prospective owner of the copyright in the authorial work or works to which the waiver relates is presumed to extend to the person’s licensees and successors in title.

(6) To avoid doubt, this section does not affect the operation of the general law of contract or estoppel in relation to an informal waiver or any other transaction in relation to moral rights.

Action for infringement of moral rights

383. The author of an authorial work may bring an action in the Court against any person who infringes any of the author’s moral rights.

Limitation of action

384. An action may not be brought in respect of an infringement of an author’s moral rights more than 6 years after the infringement takes place.

Remedies

385.—(1) The remedies that the Court may grant for an infringement of moral rights include—

(a) an injunction (which may be subject to terms); and

(b) damages.

(2) In deciding on the appropriate remedy, the Court must consider all relevant matters, including—

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

(b) the number and categories of people who have seen or heard the work;

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

(d) in the case of the moral right under section 371 (right to be identified)—the cost or difficulty (if any) of identifying the author;

(e) the cost or difficulty (if any) of reversing the infringement;

(f) any practice in the industry in which the work is used that is relevant to the work or the use of the work; and

(g) the damage caused to the author by the infringement, including any loss of income.

Moral rights not assignable

386. An author’s moral rights are—

(a) personal to him or her; and

(b) not assignable.

Devolution on death

387.—(1) When an author dies—

(a) the author’s moral rights devolve to his or her personal legal representative; and

(b) any damages recovered in an action under section 383 by the personal legal representative form part of the author’s estate.

(2) To avoid doubt, any consent or waiver given by an author in relation to the author’s moral rights binds his or her personal legal representative.

Other rights not affected

388.—(1) Subject to this section, this Division does not affect any right of action or other remedy (whether civil or criminal) in proceedings brought otherwise than by virtue of this Division.

(2) Any damages recovered in an action under section 383 must be considered in assessing damages in any other proceedings arising out of the same transaction (and vice versa).

Division 2—Performer’s moral rights

Interpretation of this Division

389. In this Division—

“moral right” means a right under this Division;

“name” includes initials or a monogram.

Application of moral rights

390. The moral rights in this Division apply only—

(a) in relation to a performance that is a protected performance;

(b) for the protection period of the performance; and

(c) in relation to the whole or any substantial part of the performance.

Right to be identified

391.—(1) Subject to the provisions of this Division, the performer of a protected performance has the moral right to be so identified, and that right is infringed if a person fails to identify the performer—

(a) in the circumstances mentioned in section 392; or

(b) in the manner required by section 393.

(2) In the case of a performance given by 2 or more performers, the right in subsection (1)—

(a) is a right of each performer to be identified as a performer; and

(b) is not infringed in relation to a performer if another performer is not identified.

Illustration

P1 and P2 give a performance. The circumstances in section 392 apply. P1 is identified in the manner required by section 393; P2 is not. P1’s moral right to be identified is not infringed. P2’s moral right to be identified is infringed.

Right to be identified—when should a performer be identified

392. A person (X) must identify the performer of a protected performance—

(a) if the performance is given in public and produced or put on by X;

(b) if X communicates the performance live to the public;

(c) whenever X makes available a recording of the performance to the public (on a network or otherwise) in a way that enables the recording to be accessed by any person on demand; or

(d) whenever X publishes a recording of the performance.

Right to be identified—how should a performer be identified

393.—(1) Where a performer must be identified under this Division, he or she must be identified in accordance with this section.

(2) The performer must be identified—

(a) in the way that the performer wishes to be identified (for example, by the performer’s true name or by a stage name or pseudonym), but only if—

(i) the performer has made his or her wishes known, either generally or to the person who is required to identify the performer; and

(ii) it is reasonable in the circumstances to identify the performer in that way; and

(b) in any other case, by any reasonable form of identification.

(3) Where a protected performance is given by performers who use a group name, those performers are sufficiently identified by using the group name.

(4) In every case, the identification must be clear and reasonably prominent.

(5) An identification is reasonably prominent if—

(a) in the case of copies of recordings of a performance—

(i) the identification appears in or on each copy; or

(ii) the identification is likely to be noticed by a person acquiring a copy; and

(b) in any other case—the identification is likely to be noticed by a person seeing or hearing (as the case may be) the performance or communication.

Right to be identified—exception where performer not known

394.—(1) Section 391 does not require a person to identify the performer of a performance if, at or during the material time, the identity of the performer—

(a) is not generally known;

(b) is not known to the person; and

(c) could not reasonably be ascertained by the person.

Illustration

The identity of a performer is known if the performer is known by some name other than his or her true name.

(2) In subsection (1), “material time” means the time at or during which the relevant act in section 392 is done.

Right to be identified—exception for certain performances

395. Section 391 does not apply to the following performances:

(a) a performance given for the purpose of advertising any goods or services;

(b) any prescribed performance.

Right to be identified—exception for certain permitted uses

396. Section 391 does not apply—

(a) where a person does an act that is a permitted use of a performance under any of the following provisions:

(i) section 202 (examination purposes);

(ii) section 290 (judicial proceedings);

(b) where a person does an act in relation to a performance that is a fair use of the performance for the purpose of reporting news under Division 2 of Part 5; or

(c) in any prescribed circumstances.

Right to be identified—transitional exception

397. Section 391 does not apply to a performance given before the appointed day.

Right against false identification

398.—(1) The performer (P) of a performance has the moral right not to have any other person (F) identified as the performer of the performance, and a person (X) infringes that right in the circumstances mentioned in this section.

(2) X infringes the right in subsection (1) if—

(a) X affixes or inserts F’s name in or on a recording of the performance; and

(b) the affixation or insertion is done in a way that implies that F is the performer.

(3) X infringes the right in subsection (1) if—

(a) X makes available a recording of the performance to the public as being a performance by F; and

(b) X knows that F is not the performer.

(4) X infringes the right in subsection (1) if—

(a) F’s name is affixed or inserted (whether before, on or after the appointed day) in or on a recording of the performance;

(b) the affixation or insertion is done in a way that implies F is the performer;

(c) X knows that F is not the performer; and

(d) X—

(i) publishes the recording;

(ii) deals commercially in the recording; or

(iii) distributes the recording.

(5) To avoid doubt, X and F could be the same person.

(6) In the case of a performance given by 2 or more performers, an infringement of the right in subsection (1) is an infringement of each performer’s right.

Illustration

A performance is given by P1 and P2. X affixes the names of P1 and F on a recording of the performance in a way that implies that P1 and F are the performers. X has infringed the rights of both P1 and P2 under subsection (1) read with subsection (2).

Right not to have altered recording represented as unaltered

399.—(1) The performer of a performance has the moral right not to have an altered recording of the performance represented as being unaltered.

(2) A person infringes the right in subsection (1) if—

(a) the person—

(i) publishes an altered recording of the performance as being unaltered;

(ii) deals commercially in an altered recording of the performance as being unaltered; or

(iii) distributes an altered recording of the performance as being unaltered; and

(b) the person knows that—

(i) the recording is an altered recording; and

(ii) the alteration is not made by the performer.

(3) In the case of a performance given by 2 or more performers, an infringement of the right in subsection (1) is an infringement of each performer’s right.

Moral rights not infringed by acts, etc., outside Singapore

400. Despite any provision of this Division, the moral rights of a performer are not infringed by any act done outside Singapore or any omission in relation to an act done outside Singapore.

Consent and formal waiver

401.—(1) Despite any provision of this Division, the moral rights of a performer are not infringed by any act or omission to which the performer consented (whether in writing or otherwise).

(2) The moral rights of a performer may be formally waived by the performer.

(3) A formal waiver is valid only if it is—

(a) made in writing; and

(b) signed by the performer.

(4) A formal waiver may—

(a) relate to a specific performance, to performances of a specified description or to performances generally;

(b) relate to past or future performances;

(c) relate to some or all moral rights;

(d) be conditional or unconditional; and

(e) be expressed to be revocable.

(5) Subject to any contrary intention in the waiver, a formal waiver in favour of a person (X) who is the rights owner or prospective rights owner of a performance or performances to which the waiver relates is presumed to extend to persons acting with X’s authority and X’s successors in title.

(6) To avoid doubt, this section does not affect the operation of the general law of contract or estoppel in relation to an informal waiver or any other transaction in relation to moral rights.

Action for infringement of moral rights

402. The performer of a performance may bring an action in the Court against any person who infringes any of the performer’s moral rights.

Limitation of action

403. An action may not be brought in respect of an infringement of a performer’s moral rights more than 6 years after the infringement takes place.

Remedies

404.—(1) The remedies that the Court may grant for an infringement of moral rights include—

(a) an injunction (which may be subject to terms); and

(b) damages.

(2) In deciding on the appropriate remedy, the Court must consider all relevant matters, including—

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

(b) the number and categories of people who have seen or heard the performance;

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

(d) in the case of the moral right under section 391 (right to be identified)—the cost or difficulty (if any) of identifying the performer;

(e) the cost or difficulty (if any) of reversing the infringement;

(f) any practice in the industry in which the performance is used that is relevant to the performance or the use of the performance; and

(g) the damage caused to the performer by the infringement, including any loss of income.

Moral rights not assignable

405. A performer’s moral rights are—

(a) personal to him or her; and

(b) not assignable.

Devolution on death

406.—(1) When a performer dies—

(a) the performer’s moral rights devolve to his or her personal legal representative; and

(b) any damages recovered in an action under section 402 by the personal legal representative form part of the performer’s estate.

(2) To avoid doubt, any consent or waiver given by a performer in relation to the performer’s moral rights binds his or her personal legal representative.

Other rights not affected

407.—(1) Subject to this section, this Division does not affect any right of action or other remedy (whether civil or criminal) in proceedings brought otherwise than by virtue of this Division.

(2) Any damages recovered in an action under section 402 must be considered in assessing damages in any other proceedings arising out of the same transaction (and vice versa).

Division 3—Protection of electronic rights management information

Interpretation of this Division

408. In this Division—

“protected copy” means—

(a) a copyright work or a copy of the work; or

(b) a recording of a protected performance;

“rights owner”, in relation to a copyright, includes any exclusive licensee of the copyright.

Interpretation: what is rights management information

409. In this Division, “rights management information”, in relation to a protected copy—

(a) means any of the following:

(i) information that identifies the copyright work or protected performance;

(ii) information that identifies—

(A) if the protected copy is an authorial work—the copyright owner or the author;

(B) if the protected copy is a work other than an authorial work—the copyright owner; or

(C) if the protected copy is a recording of a protected performance—the rights owner or the performer;

(iii) information about the terms and conditions of use of the copy;

(iv) any numbers or codes that represent the information mentioned in sub-paragraph (i), (ii) or (iii); but

(b) excludes any information relating to a user of the copy, including the name, account, address, or other contact information, of the user.

Application

410.—(1) This Division applies where rights management information in an electronic form—

(a) is attached to or embodied in a protected copy; or

(b) appears in connection with the communication or making available to the public of any protected copy.

(2) This Division does not apply to anything done in relation to a protected copy after the expiry of the relevant copyright or protection period, as the case may be.

(3) This Division does not apply to anything done for the service of the Government.

Prohibition on removing or altering rights management information

411. A person infringes this section if the person—

(a) knowingly removes or alters any rights management information relating to a protected copy;

(b) does so without the rights owner’s authority; and

(c) knows or ought reasonably to know that the removal or alteration of the rights management information will induce, enable, facilitate or conceal a rights infringement relating to the protected copy.

Prohibition on dealing with altered rights management information

412. A person infringes this section if the person—

(a) distributes, or imports for distribution, any rights management information that—

(i) relates to a protected copy; and

(ii) has been altered without the rights owner’s authority;

(b) does so without the rights owner’s authority;

(c) does so knowing that the rights management information has been altered without the rights owner’s authority; and

(d) knows or ought reasonably to know that doing so will induce, enable, facilitate or conceal a rights infringement relating to the protected copy.

Prohibition on dealing with protected copies after rights management information altered or removed

413. A person infringes this section if—

(a) the rights management information relating to protected copies has been removed or altered without the rights owner’s authority;

(b) the person—

(i) distributes those copies;

(ii) imports those copies for distribution;

(iii) communicates those copies to the public; or

(iv) makes those copies available to the public; and

(c) the person—

(i) does so without the rights owner’s authority;

(ii) does so knowing that the rights management information has been removed or altered without the rights owner’s authority; and

(iii) knows or ought reasonably to know that doing so will induce, enable, facilitate or conceal a rights infringement relating to the protected copies.

Action for infringement

414. The rights owner of a protected copy may bring an action in the Court against any person who infringes any provision of this Division in relation to the protected copy.

Limitation of action

415. An action may not be brought in respect of an infringement of any provision of this Division more than 6 years after the infringement takes place.

Remedies

416.—(1) Subject to this section, the remedies that the Court may grant for an infringement of any provision of this Division include—

(a) an injunction (which may be subject to terms);

(b) damages;

(c) an account of profits;

(d) if the claimant so elects, statutory damages; and

(e) an order that an offending article in the defendant’s possession or before the court be—

(i) delivered up and forfeited to the rights owner;

(ii) destroyed; or

(iii) otherwise dealt with.

(2) Subject to subsection (3), the remedies in subsection (1)(b), (c) and (d) are mutually exclusive.

(3) Where the Court orders damages (with or without additional damages) under subsection (1)(b) in respect of an infringement of a provision of this Division, the Court may also order an account of profits attributable to the infringement, but only insofar as the profits have not been taken into account in computing those damages.

(4) For the purposes of subsection (1)(d)—

(a) a claimant may only be awarded a total of $20,000 in statutory damages in a single action, even if the action involves 2 or more infringements; and

(b) in deciding the amount of statutory damages to award, the Court must consider all relevant matters, including—

(i) the nature and purpose of the act constituting the infringement, including whether the act is of a commercial nature or otherwise;

(ii) the flagrancy of the infringement;

(iii) whether the defendant acted in bad faith;

(iv) any loss that the claimant has suffered or is likely to suffer because of the infringement;

(v) any benefit gained by the defendant because of the infringement;

(vi) the conduct of the parties before and during the proceedings; and

(vii) the need to deter similar infringements.

(5) In this section, an article is an “offending article” if—

(a) the article was used, or is being used, to carry out an infringement of a provision of this Division; or

(b) an infringement of a provision of this Division was or is being carried out in relation to the article.

Offence

417.—(1) Subject to this section, a person commits an offence if the person—

(a) wilfully infringes a provision of this Division; and

(b) does so to obtain a commercial advantage or private financial gain.

(2) Subsection (1) does not apply to any act done by or on behalf of—

(a) a non-profit library or archive;

(b) an educational institution;

(c) an institution aiding persons with print disabilities;

(d) an institution aiding persons with intellectual disabilities; or

(e) a public and non-commercial broadcasting organisation that is prescribed.

(3) A person who commits an offence under subsection (1) shall be liable on conviction—

(a) for an infringement of section 411, to a fine not exceeding $20,000; and

(b) for an infringement of section 412 or 413, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both.

Power to deal with protected copies, etc., in proceedings under section 417

418.—(1) This section applies where—

(a) a person is charged for an offence under section 417 in a court (whether or not the person is convicted); and

(b) there is before the court or in the person’s possession an article that appears to be—

(i) a protected copy from which the rights management information has been removed or altered without the rights owner’s authority; or

(ii) mainly used for removing or altering the rights management information relating to a protected copy.

(2) The court may order that the article be—

(a) delivered up and forfeited to the rights owner concerned;

(b) destroyed; or

(c) otherwise dealt with.

Powers of entry, search and seizure

419.—(1) Information may be given on oath to a court that there is reasonable cause to suspect that an article or a document—

(a) is located at any premises; and

(b) is evidence that an offence under section 417 has been committed.

(2) If information is given under subsection (1), the court may issue a warrant authorising a police officer (either with or without conditions)—

(a) to enter and search the premises for articles and documents specified (either specifically or in any general category) in the warrant; and

(b) if any articles or documents so specified are found at the premises—to seize them.

(3) In this section and section 420, “document” means anything in which information of any description is recorded.

Disposal of seized evidence

420.—(1) This section applies where—

(a) an article or a document is seized under section 419; and

(b) either—

(i) no proceedings are brought for an offence under section 417 within 6 months of the seizure; or

(ii) in the case of a seized article—proceedings are brought for an offence under section 417, but no order is made under section 418 in respect of the article.

(2) The article or document must be—

(a) returned to the person who was in possession of the article or document when it was seized; or

(b) if it is not practicable to so return the article or document—disposed of in accordance with section 108 of the Police Force Act (disposal of lost or unclaimed property deposited with police).

Other rights not affected

421. This Division does not affect any provision of this Act providing for—

(a) any copyright in a work;

(b) any other right in relation to a performance or a recording of the performance;

(c) any limitation on the rights in paragraph (a) or (b); or

(d) any defence to an action for a rights infringement.

Division 4—Protection of technological measures

Interpretation of this Division

422. In this Division—

“access control measure” has the meaning given by section 423;

“circumvent” means to avoid, bypass, remove, deactivate, descramble (where the copy is scrambled), decrypt (where the copy is encrypted) or otherwise impair;

“deal”, except in section 435(2), means—

(a) in relation to a device, product or component—manufacture, import, distribute, offer to the public, provide or otherwise traffic; and

(b) in relation to a service—offer to the public or provide,

and “dealing” has a corresponding meaning;

“protected copy” means—

(a) a copyright work or a copy of the work; or

(b) a recording of a protected performance;

“protection measure” has the meaning given by section 423;

“rights owner”, in relation to a copyright, includes any exclusive licensee of the copyright;

“technological measure” has the meaning given by section 423.

Interpretation: what are technological measures, access control measures and protection measures

423. In this Division—

“access control measure”, in relation to a protected copy—

(a) means any technology, device or component that, in the normal course of its operation, effectively controls access to a protected copy; but

(b) does not include any prescribed technology, device or component;

“protection measure”, in relation to a protected copy—

(a) means any technology, device or component that, in the normal course of its operation, effectively prevents or limits the doing of any act that constitutes a rights infringement; but

(b) does not include any prescribed technology, device or component;

“technological measure” means an access control measure or a protection measure.

Application

424.—(1) This Division applies in relation to protected copies.

(2) This Division does not apply to anything done in relation to a protected copy after the expiry of the relevant copyright or protection period, as the case may be.

(3) This Division does not prohibit a person from importing or selling a device that does not render effective a technological measure, but only if—

(a) the sole purpose of the measure is to control market segmentation for access to films; and

(b) the import or sale of the device does not otherwise contravene any written law (including this Act).

Prohibition on circumventing access control measure

425.—(1) Subject to the provisions of this Division, a person infringes this section if the person circumvents an access control measure.

(2) For the purposes of this Division, a person circumvents an access control measure if—

(a) the access control measure is applied—

(i) to a protected copy;

(ii) by or with the authority of the rights owner of the protected copy; and

(iii) in connection with the exercise of the copyright or any right in the performance, as the case may be;

(b) the person does any act that the person knows or ought reasonably to know circumvents the access control measure; and

(c) the act is done without the rights owner’s authority.

Prohibition on dealing in circumventing devices

426.—(1) Subject to the provisions of this Division, a person infringes this section if the person deals (wilfully or otherwise) in a circumventing device.

(2) For the purposes of this Division, a person (X) deals in a circumventing device if—

(a) a technological measure is applied—

(i) to a protected copy;

(ii) by or with the authority of the rights owner of the protected copy; and

(iii) in connection with the exercise of the copyright or the protection of the performance, as the case may be;

(b) X deals in any device, product or component that—

(i) is promoted, advertised or marketed for the purpose of circumventing the measure;

(ii) has only a limited commercially significant purpose or use other than to circumvent the measure; or

(iii) is designed or made primarily for the purpose of circumventing the measure; and

(c) X does so without the rights owner’s authority.

(3) For the purposes of this Division, a dealing in a circumventing device is wilful if and only if—

(a) in relation to subsection (2)(b)(i)—the promotion, advertising or marketing is—

(i) done by X personally; or

(ii) personally authorised by X;

(b) in relation to subsection (2)(b)(ii)—at the time of dealing, X knows or ought reasonably to know that the device, product or component has only a limited commercially significant purpose or use other than to circumvent the technological measure; and

(c) in relation to subsection (2)(b)(iii)—at the time of dealing, X knows or ought reasonably to know that the device, product or component is designed or made primarily for the purpose of circumventing the technological measure.

Prohibition on dealing in circumventing services

427.—(1) Subject to the provisions of this Division, a person infringes this section if the person deals (wilfully or otherwise) in a circumventing service.

(2) For the purposes of this Division, a person (X) deals in a circumventing service if—

(a) a technological measure is applied—

(i) to a protected copy;

(ii) by or with the authority of the rights owner of the protected copy; and

(iii) in connection with the exercise of the copyright or the protection of the performance, as the case may be;

(b) X deals in any service that—

(i) is promoted, advertised or marketed for the purpose of circumventing the measure;

(ii) has only a limited commercially significant purpose or use other than to circumvent the measure; or

(iii) is performed primarily for the purpose of circumventing the measure; and

(c) X does so without the rights owner’s authority.

(3) For the purposes of this Division, a dealing in a circumventing service is wilful if and only if—

(a) in relation to subsection (2)(b)(i)—the promotion, advertising or marketing is—

(i) done by X personally; or

(ii) personally authorised by X;

(b) in relation to subsection (2)(b)(ii)—at the time of dealing, X knows or ought reasonably to know that the service has only a limited commercially significant purpose or use other than to circumvent the technological measure; and

(c) in relation to subsection (2)(b)(iii)—

(i) X personally performs the service primarily for the purpose of circumventing the technological measure; or

(ii) X personally authorises the performance of the service primarily for the purpose of circumventing the technological measure.

Exception—access by non-profit library, etc., for purpose of acquisition

428. A person may circumvent an access control measure by doing an act in relation to a protected copy if—

(a) the act is done to enable any of the following organisations to access the underlying work or recording of a performance:

(i) a non-profit library or archive;

(ii) an educational institution;

(iii) an institution aiding persons with print disabilities;

(iv) an institution aiding persons with intellectual disabilities;

(b) the sole purpose of accessing the work or recording is to decide whether to acquire a copy of it;

(c) the work or recording is otherwise not available to the organisation;

(d) the act does not lead to a rights infringement in relation to the protected copy; and

(e) the act does not violate any written law other than this Act.

Exception—protecting personal information of network user

429. A person may circumvent an access control measure by doing an act in relation to a protected copy if—

(a) the access control measure is capable of collecting or disseminating information about the identity of a user of a network and the manner of his or her use;

(b) there is no conspicuous notice of the collection or dissemination of that information;

(c) the act is done for the sole purpose of identifying and disabling the measure;

(d) the act does not affect any person’s ability to access any protected copy;

(e) the act is not a rights infringement in relation to the protected copy; and

(f) the act does not violate any written law other than this Act.

Exception—achieving interoperability between computer programs

430.—(1) A person may circumvent a technological measure by doing an act in relation to a protected copy that is a computer program if—

(a) the protected copy is not an infringing copy;

(b) the act is done—

(i) in good faith;

(ii) with respect to particular elements of the computer program that are not readily available to the person doing the act; and

(iii) for the sole purpose of achieving interoperability of an independently created computer program with another computer program; and

(c) the act does not infringe the copyright in the firstmentioned computer program.

(2) A person may deal in a circumventing device if—

(a) the device is used only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the device will be used in any other circumstances.

(3) A person may deal in a circumventing service if—

(a) the service is performed only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the service will be performed in any other circumstances.

Exception—research on encryption technology

431.—(1) A person may circumvent an access control measure by doing an act in relation to a protected copy if—

(a) the act is done in the course of research on any encryption technology and is needed to conduct that research;

(b) the person—

(i) is engaged in a legitimate course of study in the field of encryption technology;

(ii) is employed or appropriately trained or experienced in that field; or

(iii) is doing the act on behalf of a person so engaged, employed, trained or experienced;

(c) the act is done in good faith;

(d) the protected copy is not an infringing copy;

(e) the person doing the act has made a reasonable effort to obtain the authorisation of the rights owner;

(f) the act is not a rights infringement in relation to the protected copy; and

(g) the act does not violate any written law other than this Act.

(2) A person may deal in a circumventing device if—

(a) the device is used only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the device will be used in any other circumstances.

(3) A person may deal in a circumventing service if—

(a) the service is performed only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the service will be performed in any other circumstances.

(4) In this section, “encryption technology” means any technology for scrambling and descrambling information using mathematical formulae or algorithms.

Exception—preventing minor access to online material

432.—(1) A person may circumvent an access control measure by doing an act if—

(a) the act consists of including a component or part in any technology, product or device for the sole purpose of preventing access by minors to any online material; and

(b) the technology, product or device—

(i) is not promoted, advertised or marketed for the purpose of circumventing a technological measure;

(ii) is not one that has only a limited commercially significant purpose or use other than to circumvent a technological measure; and

(iii) is not designed or made primarily for the purpose of circumventing a technological measure.

(2) A person may deal in a circumventing device if the device is meant to be included in any technology, product or device in circumstances to which subsection (1) applies.

Exception—testing of security flaws, etc., of computer

433.—(1) A person may circumvent an access control measure by doing an act in relation to a protected copy if—

(a) the act is done for the sole purpose of testing, investigating or correcting a security flaw or vulnerability of a computer;

(b) the act is done in good faith;

(c) the act is done by or with the authority of the owner of the computer;

(d) the act is not a rights infringement in relation to the protected copy; and

(e) the act does not violate any written law other than this Act.

(2) A person may deal in a circumventing device if—

(a) the device is used only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the device will be used in any other circumstances.

(3) A person may deal in a circumventing service if—

(a) the service is performed only in circumstances to which subsection (1) applies; or

(b) at the time of dealing, the person does not know and could not reasonably have known that the service will be performed in any other circumstances.

(4) In this section, “computer” includes a computer system and a computer network.

Exception—law enforcement, national defence, etc.

434. The Government, or a person authorised by the Government, may for the purpose of law enforcement, intelligence, national defence or essential security, or for any other similar purpose—

(a) circumvent an access control measure; or

(b) deal in a circumventing device or service.

Exception—prescribed exceptions

435.—(1) A person may circumvent an access control measure if a prescribed exception applies.

(2) An exception may be prescribed if—

(a) the Minister is satisfied that the prohibition on circumventing access control measures has or is likely to impair or adversely affect a dealing in relation to a copyright work or protected performance; and

(b) the dealing is not a rights infringement in relation to the work or performance.

(3) A prescribed exception may be limited—

(a) to a specified work or performance;

(b) to a class of works or performances;

(c) to a class of persons; and

(d) by the purpose for which the otherwise circumventing act is done.

Action for infringement

436. The rights owner of a protected copy may bring an action in the Court against any person who infringes a provision of this Division in relation to the protected copy.

Limitation of action

437. An action may not be brought against an infringement of a provision of this Division under section 436 more than 6 years after the infringement takes place.

Remedies

438.—(1) Subject to this section, the remedies that the Court may grant for an infringement of a provision of this Division include—

(a) an injunction (which may be subject to terms);

(b) either—

(i) damages; or

(ii) if the claimant so elects, statutory damages; and

(c) an order that an offending article in the defendant’s possession or before the Court be—

(i) delivered up and forfeited to the rights owner;

(ii) destroyed; or

(iii) otherwise dealt with.

(2) The remedies in subsection (1)(b) are not available against a defendant who deals in a circumventing device or service if it is proved that the dealing is not wilful.

(3) Damages under subsection (1)(b)(i) may take into account any profits that are attributable to the infringement.

(4) For the purposes of subsection (1)(b)(ii)—

(a) a claimant may only be awarded a total of $20,000 in statutory damages in a single action, even if the action involves 2 or more infringements; and

(b) in deciding the amount of statutory damages to award, the Court must consider all relevant matters, including—

(i) the nature and purpose of the act constituting the infringement, including whether the act is of a commercial nature or otherwise;

(ii) the flagrancy of the infringement;

(iii) whether the defendant acted in bad faith;

(iv) any loss that the claimant has suffered or is likely to suffer because of the infringement;

(v) any benefit gained by the defendant because of the infringement;

(vi) the conduct of the parties before and during the proceedings; and

(vii) the need to deter similar infringements.

(5) In this section, an article is an “offending article” if—

(a) the article was used, or is being used, to carry out an infringement of a provision of this Division; or

(b) an infringement of a provision of this Division was or is being carried out in relation to the article.

Offence

439.—(1) Subject to this section, a person commits an offence if—

(a) the person—

(i) wilfully circumvents an access control measure; or

(ii) wilfully deals in a circumventing device or service;

(b) the person does so to obtain a commercial advantage or private financial gain; and

(c) the circumvention or dealing is an infringement of a provision of this Division.

(2) Subsection (1) does not apply to any act done by or on behalf of—

(a) a non-profit library or archive;

(b) an educational institution;

(c) an institution aiding persons with print disabilities;

(d) an institution aiding persons with intellectual disabilities; or

(e) a public and non-commercial broadcasting organisation that is prescribed.

(3) A person who commits an offence under subsection (1) shall be liable on conviction—

(a) in relation to subsection (1)(a)(i), to a fine not exceeding $20,000; and

(b) in relation to subsection (1)(a)(ii), to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both.

Power to deal with protected copies, etc., in proceedings under section 439

440.—(1) This section applies where—

(a) a person is charged for an offence under section 439 in a court (whether or not the person is convicted); and

(b) there is before the court or in the person’s possession an article that appears to be mainly used for circumventing technological measures applied to protected copies.

(2) The court may order that the article be—

(a) delivered up and forfeited to the rights owner concerned;

(b) destroyed; or

(c) otherwise dealt with.

Powers of entry, search and seizure

441.—(1) Information may be given on oath to a court that there is reasonable cause to suspect that an article or a document—

(a) is located at any premises; and

(b) is evidence that an offence under section 439 has been committed.

(2) If information is given under subsection (1), the court may issue a warrant authorising a police officer (either with or without conditions)—

(a) to enter and search the premises for articles and documents specified (either specifically or in any general category) in the warrant; and

(b) if any articles or documents so specified are found at the premises—to seize them.

(3) In this section and section 442, “document” means anything in which information of any description is recorded.

Disposal of seized evidence

442.—(1) This section applies where—

(a) an article or a document is seized under section 441; and

(b) either—

(i) no proceedings are brought for an offence under section 439 within 6 months of the seizure; or

(ii) in the case of a seized article—proceedings are brought for an offence under section 439, but no order is made under section 440 in respect of the article.

(2) The article or document must be—

(a) returned to the person who was in possession of the article or document when it was seized; or

(b) if it is not practicable to so return the article or document—disposed of in accordance with section 108 of the Police Force Act (disposal of lost or unclaimed property deposited with police).

Other rights not affected

443. This Division does not affect any provision of this Act providing for—

(a) any copyright in a work;

(b) any other right in relation to a performance or a recording of the performance;

(c) any limitation on the rights in paragraph (a) or (b); or

(d) any defence to an action for a rights infringement.