Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) An owner or exclusive licensee of the copyright in a work or other subject - matter may bring an action against a person if:
(a) the person:
(i) provides a service to another person; or
(ii) offers a service to the public; and
(b) the person knows, or ought reasonably to know, that the service is a circumvention service for a technological protection measure; and
(c) the work or other subject - matter is protected by the technological protection measure.
Exception - no promotion, advertising etc.
(2) Subsection (1) does not apply to the person if:
(a) the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and
(b) both of the following apply:
(i) the person did not do such promoting, advertising or marketing;
(ii) the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.
Exception--interoperability
(3) Subsection (1) does not apply to the person if:
(a) the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and
(b) the act:
(i) relates to a copy of a computer program (the original program ) that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the original program; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iii) will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.
Exception--encryption research
(4) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher ) to do an act; and
(c) the act:
(i) relates to a copy of a work or other subject - matter that is not an infringing copy and that was lawfully obtained; and
(ii) will not infringe the copyright in the work or other subject - matter; and
(iii) will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and
(d) the researcher is:
(i) engaged in a course of study at an educational institution in the field of encryption technology; or
(ii) employed, trained or experienced in the field of encryption technology; and
(e) the researcher:
(i) has obtained permission from the owner or exclusive licensee of the copyright to do the act; or
(ii) has made, or will make, a good faith effort to obtain such permission.
In this subsection, encryption technology means the scrambling and descrambling of information using mathematical formulas or algorithms.
Exception--computer security testing
(5) Subsection (1) does not apply to the person if:
(a) the technological protection measure is an access control technological protection measure; and
(b) the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and
(c) the act:
(i) relates to a copy of a computer program that is not an infringing copy; and
(ii) will not infringe the copyright in the computer program; and
(iii) will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and
(iv) will be done with the permission of the owner of the computer, computer system or computer network.
Exception--law enforcement and national security
(6) Subsection (1) does not apply in relation to anything lawfully done for the purposes of:
(a) law enforcement; or
(b) national security; or
(c) performing a statutory function, power or duty;
by or on behalf of the Commonwealth, a State or a Territory, or an authority of one of those bodies.
Burden of proof
(7) The defendant bears the burden of establishing the matters referred to in subsections (2) to (6).