Document ID: chunk:federal_register_of_legislation:C2006A00158:clause:12_116ao:p1
Version: federal_register_of_legislation:C2006A00158
Segment Type: clause
Provision Reference: sch 12 cl 116AO (pt 1/2)
Character Range: 281392–284227

116AO  Manufacturing etc. a circumvention device for a technological protection measure

 (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 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 knows, or ought reasonably to know, that the device is a circumvention device 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 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.

Exception—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.

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 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 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)