Document ID: chunk:federal_register_of_legislation:C2006A00158:clause:12_132apd:p1
Version: federal_register_of_legislation:C2006A00158
Segment Type: clause
Provision Reference: sch 12 cl 132APD (pt 1/3)
Character Range: 299192–302024

132APD  Manufacturing etc. a circumvention device for a technological protection measure

 (1) A person commits an offence if:
 (a) the person does any of the following acts with a device:
 (i) manufactures it with the intention of providing it to another person;
 (ii) imports it into Australia with the intention of providing it to another person;
 (iii) distributes it to another person;
 (iv) offers it to the public;
 (v) provides it to another person;
 (vi) communicates it to another person; and
 (b) the person does the act with the intention of obtaining a commercial advantage or profit; and
 (c) the device is a circumvention device 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 device is a circumvention device 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 device will be used to circumvent the 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 device 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