Copyright Act 1968

A person commits an offence if:

the person:

provides a service to another person; or

offers a service to the public; and

the person does so with the intention of obtaining a commercial advantage or profit; and

the service is a circumvention service for a technological protection measure.

Subsection (1) does not apply to the person if:

the service is a circumvention service for the technological protection measure only because it was promoted, advertised or marketed as having the purpose of circumventing the technological protection measure; and

both of the following apply:

the person did not do such promoting, advertising or marketing;

the person did not direct or request (expressly or impliedly) another person to do such promoting, advertising or marketing.

A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) does not apply to the person if:

the circumvention service will be used to circumvent a technological protection measure to enable the doing of an act; and

the act:

relates to a copy of a computer program (the original program) that is not an infringing copy and that was lawfully obtained; and

will not infringe the copyright in the original program; and

relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

will be done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.

A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) does not apply to the person if:

the technological protection measure is an access control technological protection measure; and

the circumvention service will be used to circumvent the access control technological protection measure to enable a person (the researcher) to do an act; and

the act:

relates to a copy of a work or other subject‑matter that is not an infringing copy and that was lawfully obtained; and

will not infringe the copyright in the work or other subject‑matter; and

will be done for the sole purpose of identifying and analysing flaws and vulnerabilities of encryption technology; and

the researcher is:

engaged in a course of study at an educational institution in the field of encryption technology; or

employed, trained or experienced in the field of encryption technology; and

the researcher:

has obtained permission from the owner or exclusive licensee of the copyright to do the act; or

has made, or will make, a good faith effort to obtain such permission.

A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) does not apply to the person if:

the technological protection measure is an access control technological protection measure; and

the circumvention service will be used to circumvent the access control technological protection measure to enable the doing of an act; and

the act:

relates to a copy of a computer program that is not an infringing copy; and

will not infringe the copyright in the computer program; and

will be done for the sole purpose of testing, investigating or correcting the security of a computer, computer system or computer network; and

will be done with the permission of the owner of the computer, computer system or computer network.

A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) does not apply in relation to anything lawfully done for the purposes of:

law enforcement; or

national security; or

performing a statutory function, power or duty;

A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) does not apply in respect of anything lawfully done by the following bodies in performing their functions:

a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals);

a body mentioned in:

paragraph (a) of the definition of archives in subsection 10(1); or

subsection 10(4);

an educational institution;

a public non‑commercial broadcaster (including a body that provides a national broadcasting service, within the meaning of the Broadcasting Services Act 1992, and a body that holds a community broadcasting licence within the meaning of that Act).

A library that is owned by a person conducting a business for profit might not itself be conducted for profit (see section 18).

A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

This section does not apply in respect of anything lawfully done by a person in connection with a work or other subject‑matter if:

the person has custody of the work or other subject‑matter under an arrangement referred to in section 64 of the Archives Act 1983; and

under subsection (7), it would be lawful for the National Archives of Australia to do that thing.

A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).