Copyright Act 1968 (Cth), Circumvention of Access Control Technological Protection Measures (sections 10(1), 116AN to 116AQ and 132APC)

Section 116AN of the Copyright Act 1968 (Cth) allows an owner or exclusive licensee of the copyright in a work or other subject-matter to bring an action against a person if the work or other subject-matter is protected by an access control technological protection measure, the person does an act that results in the circumvention of that measure, and the person knows, or ought reasonably to know, that the act would have that result.

Section 10(1) defines an access control technological protection measure as a device, product, technology or component, including a computer program, that is used in Australia or a qualifying country by, with the permission of, or on behalf of, the owner or exclusive licensee of the copyright, in connection with the exercise of the copyright, and that in the normal course of its operation controls access to the work or other subject-matter.

The definition excludes such a measure to the extent that, for a cinematograph film or computer program, it controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy acquired outside Australia, or, for a computer program embodied in a machine or device, it restricts the use of goods other than the work or services in relation to the machine or device.

Section 116AN(1) does not apply to a person who has the permission of the copyright owner or exclusive licensee to circumvent the measure.

Further exceptions in section 116AN(3) to (9) cover interoperability of computer programs, encryption research, computer security testing, online privacy, law enforcement and national security, acquisition decisions by libraries, archives and educational institutions, and acts prescribed by the regulations, and the defendant bears the burden of establishing the exceptions in subsections (2) to (9).

Section 116AO gives the owner or exclusive licensee a further action against a person who manufactures a device with the intention of providing it to another person, imports it into Australia with that intention, distributes it, offers it to the public, provides it or communicates it to another person, knowing or ought reasonably to know that the device is a circumvention device for a technological protection measure protecting the work.

Section 116AP gives the owner or exclusive licensee an action against a person who provides a service to another person or offers a service to the public, knowing or ought reasonably to know that it is a circumvention service for a technological protection measure protecting the work. In these actions the relief may include an injunction, subject to such terms as the court thinks fit, and damages or an account of profits.

In assessing damages the court may award additional damages as it considers appropriate, having regard to the flagrancy of the defendant's acts, the need to deter similar acts, the defendant's conduct after the acts, any benefit that accrued to the defendant and any other relevant matters.

Section 132APC makes it an offence, punishable by 60 penalty units, to engage in conduct that results in the circumvention of an access control technological protection measure with the intention of obtaining a commercial advantage or profit. The definition of access control technological protection measure and sections 116AN to 116AQ were inserted by Schedule 12 to the Copyright Amendment Act 2006, Part 1 of which commenced on 1 January 2007.