Clause 53

by inserting, immediately after subsection (1), the following subsection:“(1A) An action shall not be brought for an unauthorised use of a performance after the expiration of 6 years from the time when the unauthorised use took place.”;

by deleting subsection (2) and substituting the following subsections:“(2) Subject to the provisions of this Act, in an action for unauthorised use of a performance, the types of relief that the court may grant include the following:

an injunction (subject to such terms, if any, as the court thinks fit);

damages;

an account of profits;

where the plaintiff has elected for an award of statutory damages in lieu of damages or an account of profits, statutory damages of —

not more than $10,000 for each performance in respect of which there has been an unauthorised use; but(ii)not more than $200,000 in the aggregate, unless the plaintiff proves that his actual loss from such infringement exceeds $200,000.(2A) When the court awards any damages under subsection (2)(b), the court may also make an order under subsection (2)(c) for an account of any profits attributable to the unauthorised use that have not been taken into account in computing the damages.(2B) Except as provided for in subsection (2A), the types of relief referred to in subsection (2)(b), (c) and (d) are mutually exclusive.”.(c)by inserting, immediately after the words “assessing damages” in the penultimate line of subsection (3), the words “under subsection (2)(b)”;

by inserting, immediately after subsection (3), the following subsection:“(3A) In awarding statutory damages under subsection (2)(d), the court shall have regard to —

the nature and purpose of the unauthorised use, including whether the unauthorised use was of a commercial nature or otherwise;

the flagrancy of the unauthorised use;

whether the defendant acted in bad faith;

any loss that the plaintiff has suffered or is likely to suffer by reason of the unauthorised use;

any benefit shown to have accrued to the defendant by reason of the unauthorised use;

the conduct of the parties before and during the proceedings;

the need to deter other similar instances of unauthorised use; and

all other relevant matters.”; and

by deleting the word “predominantly” in subsection (4).