Copyright Act 1968

This section applies if section 116AAD applies, or has previously applied, in an action for infringement of copyright in copyright material.

The defendant to the action and the owner or owners of the copyright may agree to terms for the continuing use of the copyright material by the defendant.

If agreement cannot be reached, the defendant or the owner or owners of the copyright may apply to the court for an order under subsection (4).

The court may make an order:

fixing reasonable terms for the continuing use of the copyright material by the defendant; or

granting an injunction in such terms as the court considers appropriate.

For the purposes of paragraph (4)(a), the court must take into account the following matters in determining what constitutes reasonable terms for the continuing use:

the nature of the copyright material;

the nature, purpose and character of the continuing use by the defendant;

the actual or likely impact of the continuing use on the copyright owner or owners;

whether there was a break between the infringing use that was the subject of the action and the continuing use;

any costs incurred by the defendant in connection with the continuing use.

The matters mentioned in subsection (5) do not limit the matters that may be taken into account.

Copyright in the copyright material is not infringed where:

terms for the continuing use of the copyright material are agreed or fixed under subsection (2) or (4); and

those terms are complied with.

In this section, continuing use of copyright material is use by the defendant that continues beyond the infringing use that was the subject of an action for infringement of copyright mentioned in subsection (1).