Page:Australian Copyright Act 1968 (63 of 1968).pdf/52

 1968 (2.) This section does not affect the granting of an interlocutory injunction on the application of the owner of the copyright or of the exclusive licensee.

121. In an action brought by the exclusive licensee by virtue of this Division, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of copyright is available to that defendant as against the exclusive licensee.

122. Where an action to which section 120 of this Act applies is brought and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall—
 * (a) if the plaintiff is the exclusive licensee-take into account any liabilities, in respect of royalties or otherwise, to which the licence is subject; and
 * (b) whether the plaintiff is the owner of the copyright or the exclusive licensee take into account any pecuniary remedy already awarded to the other party under section 115 of this Act in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement, as the case requires.

123. Where—
 * (a) an action, in so far as it is brought under section 115 of this Act, relates, in whole or in part, to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section; and
 * (b) in that action, whether the owner of the copyright and the exclusive licensee are both parties or not, an account of profits is directed to be taken in respect of that infringement,

then, subject to any agreement of which the court is aware by which the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them in such manner as the court considers just and shall give such directions as the court considers appropriate for giving effect to that apportionment.

124. In an action brought by the owner of the copyright or by the exclusive licensee—
 * (a) a judgment or order for the payment of damages in respect of an infringement of copyright shall not be given or made under section 115 of this Act if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and
 * (b) a judgment or order for an account of profits in respect of an infringement. of copyright shall not be given or made under that section if a final judgment or order has been given or made in