Document ID: chunk:federal_register_of_legislation:C2024C00854:section:5
Version: federal_register_of_legislation:C2024C00854
Segment Type: section
Provision Reference: s 5
Character Range: 355549–357980

5           Category D      1. The service provider must not receive a financial benefit that is directly attributable to the infringing activity if the service provider has the right and ability to control the activity.
                            2. The service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court.
                              2A. The service provider must act expeditiously to remove or disable access to a reference residing on its system or network if the service provider:
                            (a) becomes aware that the copyright material to which it refers is infringing; or
                            (b) becomes aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing.
                             The service provider does not, in an action relating to this Division, bear any onus of proving a matter referred to in paragraph (a) or (b).
                            3. The service provider must comply with the prescribed procedure in relation to removing or disabling a reference residing on its system or network.

 (2) Nothing in the conditions is to be taken to require a service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).
 (3) In deciding, for the purposes of condition 1 in table items 4 and 5 in the table in subsection (1), whether a financial benefit is otherwise directly attributable to the infringing activity referred to in that condition, a court must have regard to:
 (a) industry practice in relation to the charging of services by service providers, including charging based on level of activity; and
 (b) whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice.
The court may have regard to other matters it considers relevant.
 (4) An act done by a service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 in the table in subsection (1) does not constitute a failure to satisfy condition 2A in that item.