Copyright: Its History and Its Law

Penalties

50. Penalties for dealing with pirated books.– If any person —

(a) sells, or lets for hire, or exposes offers or keeps for sale or hire, any pirated book or any pirated artistic work; or

(b) distributes, or exhibits in public, any pirated book or any pirated artistic work; or

(c) imports into Australia any pirated book or any pirated artistic work,

he shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each copy of such pirated book or pirated artistic work dealt with in contravention of this section, and also to forfeit to the owner of the copyright every such copy so dealt with, and also to forfeit the plates, blocks, stone, matrix, negative, or thing, if any, from which the pirated book or pirated artistic work was printed or made.

Provided that the whole penalties inflicted on any one offender in respect of the same transaction shall not exceed Fifty pounds.

Provided also that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know, and could not with reasonable care have ascertained, that the book was a pirated book or the work was a pirated artistic work.

Liability as to theatre

51. Liability in respect of use of theatre.– Where a dramatic or musical work is performed in a theatre or other place in infringement of the performing right of the owner of that right, the proprietor tenant or occupier who permitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right and shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each such offence and the court may, in addition to the penalty, order the defendant to pay to the owner of the performing right in respect of each such infringement a sum by way of damages to the amount of Ten pounds, or to such amount as the court deems equal to the profits made by the performance of the work, whichever sum is greater.

Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know and could not with reasonable care have ascertained that the dramatic or musical work was performed in infringement of the performing right of the owner of that right.

Search warrant and seizure

52. Search warrant and seizure of pirated copies.– (1.) A justice of the peace may upon the application of the owner of the copyright in any book or in any artistic work or of the agent of such owner appointed in writing: —

(a) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are being sold, or offered for sale – issue a warrant, in accordance with the form prescribed, authorising any constable to seize the pirated books or pirated artistic works and to bring them before a court of summary jurisdiction.

(b) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are to be found in any house, shop, or other place – issue a warrant, in accordance with the form prescribed, authorising any constable to search between sunrise and sunset, the place where the pirated books are supposed to be, and to seize and bring them or any books or artistic works reasonably suspected to be pirated books or pirated artistic works before a court of summary jurisdiction.

(2.) A court of summary jurisdiction may, on proof that any books or artistic works brought before it in pursuance of this section are pirated books or pirated artistic works, order them to be destroyed or to be delivered up, subject to such conditions, if any, as the court thinks fit, to the owner of the copyright in the book or artistic work.

Delivery up of pirated works

53. Power of owner of copyright to require delivery to him of pirated books and works.—

(1.) The owner of the copyright in any book or artistic work, or the agent of such owner appointed in writing, may by notice, in accordance with the prescribed form, require any person to deliver up to him any pirated reproduction of the book or work, and every person to whom such notice has been given, and who has any pirated reproduction of the book or work in his possession or power, shall deliver up the pirated reproduction of the book or work in accordance with the notice.

Penalty: Ten Pounds.

(2.) A person shall not give any notice in accordance with this section without just cause.

Penalty: Twenty pounds.

(3.) In any prosecution under subsection (2) of this section the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the copyright in the book or artistic work or was the agent of such owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given had pirated reproductions of the book or work in his possession or power.

Power to forbid performance

54. —Power of owner of performing right to forbid performance in infringement of his right.– (1.) The owner of the performing right in a musical or dramatic work, or the agent of the owner appointed in writing, may, by notice in writing in accordance with the prescribed form, forbid the performance of the musical or dramatic work in infringement of his right, and require any person to refrain from performing or taking part in the performance of the musical or dramatic work, and every person to whom a notice has been given in accordance with this section shall refrain from performing or taking part in the performance of the musical or dramatic work specified in the notice in infringement of the performing right of such owner.

Penalty: Ten pounds.

(2.) A person shall not give any notice in pursuance of this section without just cause.

Penalty: Twenty pounds.

(3.) In any prosecution under subsection (2) of this section, the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the performing right in the musical or dramatic work, or the agent of the owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given was about to perform or take part in the performance of the musical or dramatic work in infringement of the performing right of the owner.

False representations

55. Penalty for false representations in notices.– Any person, who in any notice given in pursuance of this Act, makes a representation, which is false in fact and which he knows to be false or does not believe to be true, that he is

(a) the owner of the copyright in any book or artistic work, or

(b) the owner of the performing right in a musical or dramatic work, or

(c) the agent of any such owner,

shall be guilty of an offence against this Act.

Penalty: Two years' imprisonment.

Request to police

56. Request to police to seize pirated books and works.—

(1.) The owner of the copyright in any book or artistic work or the agent of such owner appointed in writing may, in accordance with the prescribed form, request that any pirated reproductions of the book or work be seized by the police, and may lodge the request at any police station.

(2.) Any police constable in the town or district in which the police station is situated (whether in the service of the Commonwealth or a State), may, at any time in the day time within seven days after the request was so lodged, seize all pirated reproductions of the book or work mentioned in the notice, and all reproductions of the book or work which he has reasonable ground to believe are pirated reproductions, found by him in the possession of any person other than the owner of the copyright in the book or work.

(3.) Every police constable who seizes any books or works in pursuance of this section shall forthwith bring all such books or works before a court of summary jurisdiction.

(4.) A court of summary jurisdiction may, on the application of any person interested, make such order for the disposal of the books or works as he thinks just.

(5.) A person shall not lodge any request at any police station in accordance with this section without just cause.

Penalty: Twenty pounds.

(6.) In any prosecution under subsection (5) of this section the defendant shall be deemed to have lodged the request without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of lodging the request he was the owner of the copyright in the book or artistic work, or was the agent of such owner appointed in writing and had reasonable ground to believe that pirated reproductions of the book or work were being unlawfully sold, or let for hire, or exposed or offered or kept for sale or hire, or distributed, or exhibited in public, in the town or district in which the police station is situated.

Application of penalties

57. Application of penalties.– Where proceedings for any penalty under this Act are instituted by the owner of the copyright in any book or in any artistic work or by the owner of the artistic work, the penalty shall be paid to him by way of compensation for the injury he has sustained. In any other case the penalty shall be paid to the Consolidated Revenue Fund.

Aiders and abettors

58. Aiders and abettors.– Whoever aids, abets, counsels, or procures, or by act or omission is in any way, directly or indirectly, knowingly concerned in the commission of any offence against this Act, shall be deemed to have committed that offence, and shall be punishable accordingly.

Limitation in court of summary jurisdiction

59. Limitation of actions in court of summary jurisdiction.– Proceedings may be instituted in any court of summary jurisdiction for the recovery of any penalty under this Act, but no such proceedings shall be instituted after the expiration of six months from the date of the offence in respect of which the penalty is imposed.

Appeal

60. Appeal from courts of summary jurisdiction.– An appeal shall lie from any conviction or order (including any dismissal of any information, complaint, or application) of a court of summary jurisdiction, exercising jurisdiction with respect to any offence or matter under this Act, to the court and in the manner and time provided by the law of the State in which the proceedings were instituted in the case of appeals from courts of summary jurisdiction in that State.

Importation of pirated works

61. Importation of pirated works.– (1.) The following goods are prohibited to be imported: —

(a) All pirated books in which copyright is subsisting in Australia (whether under this Act or otherwise), and

(b) All pirated artistic works in which copyright is subsisting in Australia (whether under this Act or otherwise).

(2.) All pirated books and pirated artistic works imported into Australia contrary to this section shall be forfeited and may be seized by any officer of Customs.

(3.) Subject to this Act the provisions of the Customs Act, 1901, shall apply to the seizure and forfeiture of pirated books and artistic works under this section to the same extent as if they were prohibited imports under that Act.

(4.) The provisions of this section shall not apply to any book or artistic work unless the owner of the copyright therein or his agent has given written notice to the Minister of the existence of the copyright and of its term.

(5.) A notice given to the Commissioners of Customs of the United Kingdom, by the owner of the copyright or his agent, of the existence of the copyright in a book or artistic work and of its term, and communicated by the said Commissioners to the Minister shall be deemed to have been given by the owner to the Minister.

PART VI. – INTERNATIONAL AND STATE COPYRIGHT

Protection of international and state copyrights

62. Protection in Australia of international and State copyright.– The owner of any copyright or performing right in any literary, musical, or dramatic work or artistic work entitled to protection in Australia by virtue of any Act of the Parliament of the United Kingdom or entitled to protection in any State by virtue of any State Copyright Act in force at the commencement of this Act shall on obtaining a certificate of the registration of his copyright or performing right under this part of this Act have the same protection in the Commonwealth against the infringement of his copyright or performing right as the owner of any copyright or performing right under this Act.

Registration of international copyright

63. Registration of international copyright.– (1.) The owner of any copyright or performing right who desires to obtain the benefit of this part of this Act may, in manner and in accordance with the form prescribed, make application to the Registrar for the registration of his copyright or performing right.

(2.) – The Registrar may thereupon, and on being satisfied by proof of the prescribed particulars and on payment of the prescribed fee, register the copyright or performing right and issue to the applicant a certificate of registration in accordance with the prescribed form.

PART VII. – REGISTRATION OF COPYRIGHTS

Copyright registers

64. Copyright Registers.– The following Registers of copyrights shall be kept by the Registrar at the Copyrights Office: —

The Register of Literary Copyrights.

The Register of Fine Arts Copyrights.

The Register of International and State Copyrights.

Method of registration

65. Method of registration.– The owner of any copyright performing right or lecturing right under this Act may obtain registration of his right in the manner prescribed.

Registration of assignments and transmissions

66. Registration of assignments and transmissions.– When any person becomes entitled to any copyright performing right or lecturing right under this Act by virtue of any assignment or transmission, or to any interest therein by licence, he may obtain registration of the assignment, transmission, or licence in the manner prescribed.

How registration effected

67. How registration effected.– The registration of any copyright performing right or lecturing right under this Act, or of any assignment or transmission thereof or of any interest therein by licence, shall be effected by entering in the proper register, the prescribed particulars relating to the right, assignment, transmission, or licence.

Trusts not registered

68. Trusts not registered.– (1.) No notice of any trust expressed, implied, or constructive shall be entered in any Register of Copyrights under this Act or be receivable by the Registrar.

(2.) Subject to this section, equities in respect of any copyright performing right or lecturing right under this Act may be enforced in the same manner as equities in respect of other personal property.

Register to be evidence

69. Register to be evidence.– Every Register of copyrights under this Act shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entry therein or extracts therefrom certified by the Registrar and sealed with the seal of the Copyrights Office shall be admissible in evidence in all Federal or State courts without further proof or production of the originals.

Certified copies

70. Certified copies.– Certified copies of entries in any register under this Act or of extracts therefrom shall, on payment of the prescribed fee, be given to any person applying for them.

Inspection of register

71. Inspection of register.– Each register under this Act shall be open to public inspection at all convenient times on payment of the prescribed fee.

Correction of register

72. Correction of register.– The registrar may, in prescribed cases and subject to the prescribed conditions, amend or alter any register under this Act by —

(a) correcting any error in any name, address, or particular; and

(b) entering any prescribed memorandum or particular relating to copyright or other right under this Act.

Rectification of register by the court

73. Rectification of register by the court.– (1.) Subject to this Act the Supreme Court of any State or a judge thereof may, on the application of the Registrar or of any person aggrieved, order the rectification of any register under this Act by —

(a) the making of any entry wrongly omitted to be made in the register; or

(b) the expunging of any entry wrongly made in or remaining on the register; or

(c) the correction of any error or defect in the register.

(2.) An appeal shall lie to the High Court from any order for the rectification of any register made by a Supreme Court or a Judge under this section.

No suit before registration

74. Owner cannot sue before registration.– (1.) The owner of any copyright or performing right under this Act or of any interest therein by licence shall not be entitled to bring any action or suit or institute any proceedings for any infringement of the copyright or performing right unless such right or interest has been registered in pursuance of this Act.

(2.) When such right or interest has been registered the owner thereof may, subject to this Act, bring actions or suits or institute proceedings for infringements of the copyright or performing right, whether those infringements happened before or after the registration.

(3.) This section shall not affect the right of the owner of the lecturing right in a lecture to bring actions or suits or institute proceedings for infringements of his lecturing right.

Deposit

75. Delivery of books to registrar.– (1.) Every person applying for the registration of the copyright in any book shall deliver to the Registrar two copies of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are published and bound, sewed, or stitched together, and on the best paper on which the book is printed.

(2.) Every person applying for the registration of the copyright in any work of art shall deliver to the Registrar one copy of the work of art or a photograph of it.

(3.) The Registrar shall refuse to register the copyright in any book or work of art until subsections (1) and (2) of this section have been complied with.

(4.) One copy of each book delivered to the Registrar in pursuance of this section shall be forwarded by him to the librarian of the Parliament, and the other copy shall be retained by the Registrar, until otherwise prescribed.

False representation

76. False representation to registrar. Patents Act, 1903, s. 112.– No person shall wilfully make any false statement or representation to deceive the Registrar or any officer in the execution of this part of this Act, or to procure or influence the doing or omission of any thing in relation to this part of this Act or any matter thereunder.

Penalty: Three years' imprisonment.

PART VIII. – MISCELLANEOUS

Suppression of books

77. Provision against suppression of books.– If the Governor-General is satisfied that the owner of the copyright in any book, or of the performing right in any dramatic work or musical work, or of the lecturing right in any lecture, has refused, after the death of the author, to republish or allow republication of the book, or the public performance of the dramatic or musical work, or the publication as a book of the lecture, and that by reason thereof the book, dramatic work, musical work, or lecture is withheld from the public, he may grant any person applying for it a licence to republish the book, or to perform the dramatic work, or musical work, or to publish the lecture as a book, in such manner and subject to such conditions as to the Governor-General seem fit.

Award of costs

78. Power to award costs.– In any action or proceeding taken in any court under this Act, the court shall have power to award costs at its discretion.

Regulations

79. Regulations.– The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, or for the conduct of any business relating to the Copyrights Office.

III

INTERNATIONAL COPYRIGHT UNION: CONVENTIONS

9. BERNE CONVENTION, 1886, with Paris amendments, 1896, in italics [omissions bracketed]

Article I

Union to protect literary and artistic works

The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works.

Article IV

Definition of "literary and artistic works"

The expression "literary and artistic works" comprehends books, pamphlets, and all other writings; dramatic or dramatico-musical works, musical compositions with or without words; works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction.

Paris II, 1

Works of architecture protected

(a.) In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act.

Protocol

Choreographic works protected

2. As regards Article IX, it is agreed that those countries of the Union whose legislation implicitly includes choreographic works amongst dramatico-musical works, expressly admit the former works to the benefits of the Convention concluded this day.

It is, however, understood that questions which may arise on the application of this clause shall rest within the competence of the respective tribunals to decide.

Article VI

Translations, arrangements, and adaptations protected

Authorized translations are protected as original works. They consequently enjoy the protection stipulated in Articles II and III as regards their unauthorized reproduction in the countries of the Union.

New translations by other writers

It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers.

Protocol

Photographic works protected

1. As regards Article IV, it is agreed [that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention concluded to-day, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them.

Paris II, 1

(b.) Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works.

[Protocol 1, par. 2]

Photograph of work of art protected

It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention and the additional act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights.