Document ID: chunk:federal_register_of_legislation:C2024C00854:section:132ape:p1
Version: federal_register_of_legislation:C2024C00854
Segment Type: section
Provision Reference: s 132APE (pt 1/3)
Character Range: 452335–455153

132APE  Providing etc. a circumvention service for a technological protection measure
 (1) A person commits an offence if:
 (a) the person:
 (i) provides a service to another person; or
 (ii) offers a service to the public; and
 (b) the person does so with the intention of obtaining a commercial advantage or profit; and
 (c) the service is a circumvention service for a technological protection measure.
Penalty: 550 penalty units or imprisonment for 5 years, or both.

Defence—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.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Defence—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.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Defence—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