Document ID: chunk:federal_register_of_legislation:C2004C01235:clause:1_135ana
Version: federal_register_of_legislation:C2004C01235
Segment Type: clause
Provision Reference: sch 1 cl 135ANA
Character Range: 63351–65726

135ANA  Actions in relation to the use of broadcast decoding devices for commercial purposes

 (1) Subject to subsection (2), this section applies if:
 (a) a broadcaster makes an encoded broadcast; and
 (b) a person uses, or authorises the use of, a broadcast decoding device to gain access to an encoded broadcast without the authorisation of the broadcaster; and
 (c) the person so uses, or authorises the use of, the device for the purposes of, or in connection with, a trade or business carried on by, or in association with, the person; and
 (d) the person knew, or ought reasonably to have known, that the broadcaster had not authorised the person to gain access to the broadcast by so using, or authorising the use of, the device.

 (2) This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
 (a) the Commonwealth or a State or Territory; or
 (b) an authority of the Commonwealth or of a State or Territory.

 (3) Subject to subsection (7), if this section applies, the broadcaster may bring an action against the person.

 (4) The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

 (5) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to:
 (a) the flagrancy with which the defendant did an act described in paragraph (1)(b); and
 (b) any benefit shown to have accrued to the defendant, or to the trade or business carried on by, or in association with, the defendant, as a result of the use of the broadcast decoding device; and
 (c) all other relevant matters;
the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.

 (6) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order.

 (7) An action cannot be brought against a person under this section in respect of an act described in paragraph (1)(b) after the expiration of 6 years from the time when the person did the act.

Division 3—Jurisdiction and appeals