Copyright Legislation Amendment Act 2004

The Copyright Legislation Amendment Act 2004 is a Commonwealth amending Act. Its stated purpose is to amend the law relating to copyright, and for related purposes. It received Royal Assent on 15 December 2004. Under the commencement table in the Act, sections 1 to 3 commenced on Royal Assent, and Schedule 1 commenced on 1 January 2005 after the linked commencement event in the US Free Trade Agreement Implementation Act 2004 occurred.

For business readers, the most important point is structural. This Act changed existing legislation rather than creating a complete new code. If you are trying to work out your current obligations, the practical rules are now found in the consolidated Copyright Act 1968 and, for the transitional matters discussed below, the consolidated US Free Trade Agreement Implementation Act 2004. This page explains what this 2004 Act changed, who is most likely to be affected, and what checks a business should make when checking the current position.

These amendments are most relevant to businesses that deal with digital content, communications systems, user-uploaded material or commercial use of broadcast content. The Act directly touches temporary copies made in technical processes, conditions for carriage service providers, commercial offence wording and encoded broadcasts. That means the page is especially relevant to internet and hosting businesses, online platforms, media and entertainment operators, and businesses whose systems automatically create copies through buffering, caching, indexing, streaming or similar technical steps.

It can also matter to more traditional businesses. A venue, gym, bar, club, hotel or other commercial premises using subscription or encoded broadcasts should pay attention to the encoded broadcast offence. A business buying or licensing recorded audio should note the evidentiary amendments about sound recordings. A trader dealing in copyright material should not assume risk only arises where conduct fits a narrow sale or hire model, because the amended wording refers in places to commercial advantage or profit.

A central change in the Act is the move from broader wording about the making of a reproduction to narrower wording about the making of a temporary reproduction or temporary copy. The amendments to sections 43B and 111B of the Copyright Act 1968 replace references to a reproduction with references to a temporary reproduction or temporary copy, and they also change the wording from copies made as part of a technical process to copies made as a necessary part of a technical process.

That narrowing matters in practice. The Act points to incidental technical copying that occurs because a system needs it to function, not to any broader business use of copied material. The amendments also set clear limits. The relevant subsection does not apply if the temporary reproduction or temporary copy is made from an infringing copy, or from a copy made in another country that would have been an infringing copy if made in Australia. It also does not apply where the technical process is being used to make an infringing use of the work or other subject matter. Finally, the Act says the subsection does not apply to any subsequent use of the temporary reproduction or temporary copy other than as part of the technical process in which it was made.

The application provision says these amendments apply in respect of acts done after the day the item commenced. For businesses, the practical question is not just whether a copy is short-lived. It is whether the copy is genuinely temporary, whether it is necessary for the technical process, whether the source is lawful, and whether the business later uses that copy for some other purpose such as storage, analytics, training, resale, archiving or redistribution.

The Act also amends section 116AH of the Copyright Act 1968 in ways that matter to carriage service providers. The text removes wording in table items 4 and 5 that had said a financial benefit is to be regarded as directly attributable to infringing activity only if the carriage service provider knew or ought reasonably to have known that infringement was involved. In its place, the Act adds new condition 2A requirements.

For table item 4, the carriage service provider must act expeditiously to remove or disable access to copyright material residing on its system or network if it becomes aware that the material is infringing, or becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing. For table item 5, the provider must act expeditiously to remove or disable access to a reference residing on its system or network if it becomes aware that the copyright material to which it refers is infringing, or becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing.

The Act also states that, in an action relating to that Division, the carriage service provider does not bear any onus of proving the awareness matters referred to in those paragraphs. It then adds subsection 116AH(3), which says that when deciding whether a financial benefit is otherwise directly attributable to infringing activity for condition 1 in table items 4 and 5, a court must have regard to industry practice in relation to charging for services by carriage service providers, including charging based on level of activity, and whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice. The court may also consider other relevant matters. Subsection 116AH(4) further says that an act done by a carriage service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 does not constitute a failure to satisfy condition 2A in that item.

For businesses, the practical trigger point is awareness. You should have a process for receiving complaints, escalating them, assessing whether the material or reference is likely infringing, and acting quickly where the threshold is met. The Act does not set a fixed number of hours or days, so businesses should avoid assuming there is a safe delay period.

The Act makes a series of amendments to offence wording in the Copyright Act 1968. In section 132 and section 135AS, several connectors are changed from “and” to “or”. The Act also inserts wording in paragraph 132(1)(a) after “or hire” to add “or with the intention of obtaining a commercial advantage or profit”. The application provision says the amendments made by items 17 to 28 apply in respect of acts done after the day the item commenced.

The text supports a practical caution for businesses: do not assume copyright-related criminal risk only arises where conduct fits a narrow sale or hire model. Commercial advantage or profit can be relevant under the amended wording. This page should not be read as a complete criminal law guide, but the amendments clearly broaden the business contexts that may need attention.

The Act also inserts a specific offence in section 135AS(1C) in relation to use of an encoded broadcast that has been accessed without authorisation. The elements listed in the Act are that a broadcaster makes an encoded broadcast, a broadcast decoding device is used to gain access to it, the access is gained without the broadcaster's authorisation, the person receives the broadcast accessed by the device, the person knows the broadcaster had not authorised the access, and the person uses or authorises the use of the broadcast by way of trade or with the intention of obtaining a commercial advantage or profit. The application provision says these amendments apply in respect of encoded broadcasts made after the day the item commenced.

This is particularly relevant for venues and service businesses using broadcast content as part of their customer offering. If a business uses subscription television, pay TV, encrypted feeds or other encoded broadcasts in trade, it should confirm both the access method and the commercial use are properly authorised.

The Act adds wording to sections 130 and 132B of the Copyright Act 1968 dealing with evidence in respect of sound recordings. In each case, the text says that acceptance of evidence admitted under the section does not imply that another person was not also a maker of the recording or an owner of copyright in the recording in the relevant place and time. The application provisions say these amendments apply in respect of sound recordings embodied wholly or partly in records supplied either before or after commencement.

For many businesses, this is not a daily operational rule. It is more relevant when there is a dispute about ownership, chain of title or proof. Still, it is a useful practical reminder. A business should not assume that one label credit, one invoice or one broad warranty settles all ownership questions for a sound recording. Multiple parties may have relevant interests, and accepted evidence under these sections does not automatically exclude that possibility.

If your business commissions recordings, buys catalogues, licenses music for apps or advertising, or acquires recorded content from intermediaries, keep clear documents showing who made the recording, who owns the relevant rights, and what has been assigned or licensed.

The Act also amends parts of Schedule 9 to the US Free Trade Agreement Implementation Act 2004. The text changes headings so they refer to certain agreements, inserts a requirement that the relevant time be no later than 2 years from the US FTA commencement day, and replaces wording about “compensation that is reasonable in all of the circumstances” with wording about “an amount of reasonable compensation”.

The Act also inserts limits on what compensation may include. Under the new subitems 118(4A) and 132(4A), the amount may only include compensation for costs incurred by the person for the purposes of doing the relevant act, and costs incurred, or that may be incurred, as a result of not being able to do that act. It also inserts definitions of US FTA commencement day and makes corresponding changes to related determination provisions in items 119 and 133.

These are technical transitional amendments. For many current businesses, they are unlikely to be the main day-to-day compliance issue. Their practical significance is more likely to arise in historical or legacy rights questions, older exploitation arrangements or compensation disputes tied to the transition period. If your business is dealing with older rights transitions, do not rely on a summary alone. Check the current consolidated legislation and the specific dates and arrangements that apply.

This Act is best read as a signpost to systems, contracts and workflows that may need review. It is not enough to know that the Act exists. A business should identify where content enters its systems, what copies are made automatically, whether those copies are genuinely temporary and technically necessary, who can remove or disable access to material, what licences support its use of content, and whether any encoded or subscription broadcasts are used in trade.

The text also shows that some trigger points are practical rather than abstract. For example, carriage service provider obligations turn on awareness of infringing material or facts making likely infringement apparent. Temporary copy protection turns on necessity, source and later use. Broadcast risk turns on unauthorised access, knowledge and use by way of trade or for commercial advantage or profit. Sound recording disputes turn on evidence and ownership records.

For many businesses, the real risk is not a single dramatic infringement event. It is the absence of a documented process. A business that cannot show where content came from, what its systems copied, when it became aware of a complaint, or what licence covered a broadcast is in a weaker position than a business with clear records and escalation steps.

The Act is in force. It was assented to on 15 December 2004. Under the commencement table, sections 1 to 3 and anything not otherwise covered commenced on 15 December 2004. Schedule 1 commenced on 1 January 2005, with the commencement note stating that paragraph (b) applied. The Act itself also contains application provisions for particular amendment groups, including acts done after commencement, sound recordings supplied before or after commencement, and encoded broadcasts made after commencement.

Because this is an amending Act, the safest current-law check is to read the consolidated principal legislation as it now stands. This page gives a practical overview of what the 2004 amendments did, but businesses should confirm the current operative text before making compliance decisions.

This page is based on the Federal Register of Legislation entry for the Copyright Legislation Amendment Act 2004, No. 154, 2004, identified as C2004A01389. The Act amends the Copyright Act 1968 and the US Free Trade Agreement Implementation Act 2004. It should be read together with the current consolidated versions of those Acts.

This page is general information only and is not legal advice. If your business is dealing with platform takedowns, digital delivery systems, encoded broadcasts, or disputed ownership of recordings, get advice on the current legislation and your specific facts.