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[5.8] Section 135ASJ: Causing unauthorised access to encoded broadcast

[5.8] Section 135ASJ: Causing unauthorised access to encoded broadcast

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Chapter 6
Subsection 135ASJ(1) requires the act to be done by way of trade. Subsection 135ASJ(2) requires the
act to be done with the intention of obtaining a commercial advantage or profit. Subsection
135ASJ(3) is identical to the s 135ASI offence except that the result of the act requires that another
person gains access to the encoded broadcast. All three are indictable offences.

[6] Conclusion
In common with the offences for dealing in infringing copies, most of the offences discussed above
will be effective against commercial infringement, provided it can be detected and the risk of
apprehension is perceived as significant enough. However, the threshold for criminal liability in some
of the offences is set at a very low level and conduct that is not substantially harmful to copyright
owners is nonetheless subject to the operation of the offences.
The offences in Subdivision D for causing sound recordings or cinematographic films to be aired in
public are most likely to be committed by licensees who have not obtained permission to air those
works. The existence of a strict liability offence is of concern, since individuals who have
inadvertently allowed their licence to lapse will need to rely on a defence of mistake of fact in order
to escape criminal liability. The offences for causing a work to be performed are of greater concern,
since there is a greater risk of performers attracting liability if the licensee has neglected to obtain or
renew the appropriate licences for the performance.
Efforts to curtail copyright infringement through the use of TPMs and ERMs, are likely to meet the
same resistance by file sharers as the offences in Subdivisions B and C. The tools for unlocking TPMs
and stripping ERMs can be shared illicitly as easily as infringing copies of works, and there is no
documented social norm in the general population that sanctions the use of such tools. This is likely
to be aggravated by the fact that many of the people who will use these tools will have paid for a
legal copy of the work. The strict liability offences are yet again a cause for concern, particularly the
ERM offences for distributing a work after the ERM information has been removed. While the
equivalent non-commercial offence in s 132AI is qualified by a result element, this is absent in the
ERM offence. This has the potential to criminalise quite innocent behaviour, and is therefore unlikely
to be effective in all circumstances.
The offences for unauthorised decoders and unauthorised access to broadcasts are unlikely to have
very much application to domestic users. Possible exceptions would be making a decoder under
s 132ASA and making an unauthorised decoder available online under s 132ASG. Software that can
decode encrypted broadcasts may be made available online for non-commercial purposes, and it is

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
likely that the act of downloading such a decoder would constitute the making of a decoder under
s 132ASA.

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Chapter 7

Performers’ Protection
[1] Introduction

Part XIA of the Copyright Act 1968 contains a large number of offences for infringing the rights of
performers to authorise the recording of their performances. These offences are primarily designed
to prevent unauthorised recordings of concerts from being commercially exploited by “bootleggers”.
Before the advent of digital technology and the internet, there was a significant trade in vinyl
records consisting of unauthorised recording of live performances by popular musicians. Performers’
rights were implemented to prevent the exploitation of these performances by individuals
unconnected to the performer.
This chapter examines the various offences related to performers’ protection. While the performers’
protection offences contain many similarities to the offences to those previously discussed in
Chapters 5 and 6, there are significant peculiarities to the regime of performers’ protection that
requires detailed discussion.

[2] Preliminaries
There are a substantial number of preliminary sections that apply to the offences in Part XIA Division
3. It is essential to understand the definitions of certain words and phrases that apply to Part XIA as
reading the offences by simply interpreting them according to their ordinary meaning can result in
considerable error.

[2.1] Protection periods
The Copyright Act 1968 (Cth) makes reference to two protection periods: a 20-year protection
period and a 50-year protection period. 917 Both protection periods begin on the day when the
performance was given and end at the end of either 20 or 50 years after the calendar year in which
the performance was given. Thus, the protection periods for performance given on 1 January 2000
would commence at 12am on 1 January 2000 and end at 12am on 2 January 2020 and 12am on 2
January 2050.

917

Copyright Act 1968 (Cth) s 248(1)

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
The 20-year protection period applies to both sound recordings and cinematographic films, which
includes the sound-track associated with the film. Under certain offence sections 918 of Part XIA
however, sound recordings alone are given the benefit of the 50-year protection period. 919

[2.2] Recordings and exempt recordings
All of the offences in Division 3 make reference to “recordings”. A “recording” is defined as “a sound
recording or cinematograph film, other than an exempt recording.” 920 Exempt recordings are given
an extensive definition in s 248(1) detailing circumstances which recordings are classified as exempt
recordings. Some of the more broadly applicable exempt recordings include: indirect
cinematographic film of performances made solely for the purpose of private and domestic use by
the person who made it; 921 indirect cinematographic films or sound recordings made in a domestic
premises from a broadcast for the purpose of time shifting; 922 various forms of fair dealing; 923
research, 924 limited to scientific research in the case of indirect cinematographic films; 925 and
recordings made by a person who reasonably believe authority has been given, through fraud or
innocent misrepresentation. 926
Under certain circumstances almost all exempt recordings may cease to be exempt recordings, 927 so
further dealing with them without authority may cause an offence to be committed. An exemption
for judicial proceedings or giving professional legal advice 928 does not lose its status through
subsequent dealings.

[2.3] Direct and indirect recordings
A direct recording of a performance means a recording made directly from a live performance. An
indirect recording means a recording made from a communication of a performance.
Communication is not defined for the purposes of Part XIA, but would certainly include a broadcast

918

Copyright Act 1968 (Cth) ss 248PA, 248PB, 248PE, 248PF, 248PG, 248PI, 248PJ, 248PK, 248PL and 248PM
Copyright Act 1968 (Cth) s 248CA
920
Copyright Act 1968 (Cth) s 248(1)
921
Copyright Act 1968 (Cth) s 248(1)(a)
922
Copyright Act 1968 (Cth) s 248(1)(aaa)
923
Copyright Act 1968 (Cth) s 248(1)(fa)
924
Copyright Act 1968 (Cth) ss 248(1)(aa) and (b)
925
Copyright Act 1968 (Cth) s 248(1)(b)
926
Copyright Act 1968 (Cth) s 248(1)(j)
927
Copyright Act 1968 (Cth) s 248C
928
Copyright Act 1968 (Cth) s 248(1)(g)
919

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Chapter 7
which is defined in s 10(1) as “a communication to the public delivered by a broadcasting service
within the meaning of the Broadcasting Services Act 1992.” 929

[2.4] Part XIA performances and qualifying persons
A performance is given a limited definition for the purposes of Part IXA. The performance must be a
live performance given in Australia or one given overseas by one or more qualified persons, but the
presence of an audience is not required. 930 This would mean a live performance given in a television
studio for broadcast would be included. “Live performance” is not defined and it will be a matter of
judicial interpretation to render its ordinary meaning. Improvised performances are included as
performance of dramatic and musical works.
The performance must have been given by one or more qualified persons, which is defined as “an
Australian citizen or a person resident in Australia”. 931 “Resident” is not defined and its meaning can
vary according to context.
Participation in a performance as a member of the public is not taken to be a performance 932 under
Part XIA (“a Part XIA performance”). For example, a performance of a magic act by a non-resident
foreign magician which is performed overseas will not be a Part XIA performance simply because the
audience member he saws in half is an Australian citizen.
Performances of sporting activities are not taken to be Part XIA performances. The line drawn
between sport and dance can sometimes be blurred in the case of shows consisting of martial arts
performances, ice skating, and synchronised swimming. Cases where these are held out as
performances are likely to be contentious.
Performances of literary, dramatic or musical works which are given as instruction by a teacher to
students, or otherwise meeting the requirements of s 28(1) of the Copyright Act 1968 (Cth), 933 are

929

Copyright Act 1968 (Cth) s 10(1)
Copyright Act 1968 (Cth) s 248(1)
931
Copyright Act 1968 (Cth) s 248(1)
932
Copyright Act 1968 (Cth) s 248(2)(c)
933
Copyright Act 1968 (Cth) s 28(1) (“(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 giving
educational instruction, not being instruction given for profit, or by a student in the course of 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.”)
930

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