Copyright Act 2002


Act 12 of 2002






C
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COPYRIGHT ACT 2002

Copyright Act 2002 Arrangement of Sections





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C
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COPYRIGHT ACT 2002

Arrangement of Sections
Section
1 Short title..........................................................................................................5
2 Interpretation....................................................................................................5

PART I—COPYRIGHT 9
3 Works protected...............................................................................................9
4 Derivative works..............................................................................................9
5 Subject matter not protected ..........................................................................10
6 Economic rights .............................................................................................10
7 Moral rights....................................................................................................10
8 Private reproduction for personal purposes ...................................................11
9 Temporary reproduction ................................................................................12
10 Quotation .......................................................................................................12
11 Reproduction for teaching..............................................................................12
12 Reprographic reproduction by libraries and archives ....................................13
13 Reproduction, broadcasting and other communication to the public for

information purposes. ....................................................................................13
14 Reproduction and adaptation of computer programs.....................................14
15 Importation for personal purposes .................................................................14
16 Display of works............................................................................................15
17 Ephemeral Recording.....................................................................................15
18 Duration of Copyright....................................................................................15
19 Original Ownership of economic rights.........................................................16
20 Presumption of authorship and of representation the author .........................16
21 Assignment and licence of authors’ rights.....................................................17

Arrangement of Sections Copyright Act 2002





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PART II—PROTECTION OF PERFORMERS, PRODUCERS OF
PHONOGRAMS AND BROADCASTING ORGANISATIONS 17
22 Acts requiring authorisation of performers ....................................................17
23 Acts requiring authorisation of producers of phonograms .............................18
24 Equitable remuneration for use of phonograms .............................................19
25 Acts requiring authorisation of broadcasting organisations ...........................19
26 Limitations on protection ...............................................................................19

PART III—ENFORCEMENT OF RIGHTS 20
27 Conservatory and provisional measures.........................................................20
28 Civil remedies ................................................................................................20
29 Criminal sanction ...........................................................................................21
30 Measures, remedies and sanctions against abuses in respect of

technical means of protection and rights management information...............21

PART IV—MISCELLANEOUS 22
31 Scope of application of protection of literary and artistic works ...................22
32 Scope of application of protection of performers, phonogram producers

and broadcasting organisations ......................................................................22
33 Application of international treaties ...............................................................23
34 Regulations.....................................................................................................23
35 Repeal and saving...........................................................................................23

Copyright Act 2002 Section 1





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C
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COPYRIGHT ACT 2002

Act 12 of 2002

AN ACT TO PROVIDE COMPREHENSIVE PROVISIONS WITH
RESPECT TO COPYRIGHT

I assent,
TAUFA'AHAU TUPOU IV,

4th March, 2004

[30th of July 2002]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature
of the Kingdom as follows:—

1 Short title
(1) This Act may be cited as the Copyright Act 2002.

(2) This Act shall come into force on a day proclaimed by His Majesty
in Council.

2 Interpretation
In this Act unless the contrary intention appears—

“audiovisual work” means a work that consists of a series of related
images which impart the impression of motion, with or without

Section 2 Copyright Act 2002





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accompanying sounds, susceptible of being made visible and, where
accompanied by sounds, susceptible of being made audible;

“author” means a natural person who has created the work;

“broadcasting” means the communication of a work, a performance or a
phonogram to the public by wireless transmission, including transmission
by satellite;

“collective work” means a work created by two or more natural persons
at the initiative and under the direction of a natural person or legal entity,
with the understanding that it will be disclosed by the latter person or
entity under his or its own name and that the identity of the contributing
natural persons will not be indicated;

“communication to the public” means, the transmission by wire or
without wire of the images or sounds, or both, of a work, a performance, a
phonogram or a broadcast in such a way that the images or sounds can be
perceived by persons outside the normal circle of a family and its closest
social acquaintances at a place or places so distant from the place where
the transmission originates that, without the transmission, the images or
sounds would not be perceivable and, further irrespective of whether the
persons can receive the images or sounds at the same place and time, or at
different places and times individually chosen by them;

“computer” means an electronic or similar device having information
processing capabilities;

“computer program” means a set of instructions expressed in words,
codes, schemes or in any other form, which is capable, when incorporated
in a medium that the computer can read, of causing a computer to perform
or achieve a particular task or result;

“Court” means the Supreme Court of Tonga;

“economic rights” means the rights mentioned in section 6;

“expression of folklore” means a group-oriented and tradition-based
creation of groups or individuals reflecting the expectation of the
community as an adequate expression of its cultural and social identity, its
standards and values as transmitted orally, by imitation or by other means,
including;
(a) folktales, folk poetry and folk riddles;
(b) folk songs and instrumental folk music;
(c) folk dances and folk plays;
(d) productions of folk arts in particular, drawings, paintings, carvings,

sculptures, pottery, terra-cotta, mosaic, woodwork, metal ware,
jewellery, handicrafts, costumes, and indigenous textiles;

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“fixation” means the embodiment of sounds, images or both or of the
representations thereof, from which they can be perceived, reproduced or
communicated through a device;

“moral rights” means the rights mentioned in section 7;

“owner of copyright” means:
(a) where the economic rights are vested in the author, the author;
(b) where the economic rights are originally vested in a natural person

other than the author or in a legal entity, that person or entity;
(c) where the ownership of the economic rights has been transferred to

a natural person or legal entity, that person or entity;

“performers” means any person who performs literary and artistic works
or expressions of folklore;

“phonogram” means the fixation of the sounds of a performance or of
other sounds, or of a representation of sounds, other than in the form of a
fixation incorporated in a cinematographic or other audiovisual work;

“photographic work” means a recording of light or other radiation on
any medium on which an image is produced or from which an image may
be produced, irrespective of the technique (chemical, electronic or other)
by which such recording is made but does not include a still picture
extracted from an audiovisual work;

“producer” of an audiovisual work or a phonogram means the natural
person or legal entity that undertakes the initiative and responsibility for
the making of the audiovisual work or phonogram;

“public display” means showing of the original or a copy of the work:
(a) directly;
(b) by means of a film, slide, television image or otherwise on screen;
(c) by means of any other device or process; or
(d) in the case of an audiovisual work, the showing of individual

images non-sequentially at a place or places where persons outside
the normal circle of a family and its closest social acquaintances are
or can be present, irrespective of whether they are or can be present
at the same place and time or at different places and times, and
where the work can be displayed without communication to the
public;

“public lending” means the transfer of the possession of the original or a
copy of a work or a phonogram for a limited period of time for non-profit-
making purposes, by an institution, the services of which are available to
the public, such as a public library or archive;

“public performance” means:

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(a) in the case of a work other than an audiovisual work, performing of
the work, either directly or by means of any device or process;

(b) in the case of an audiovisual work, the showing of images in
sequence and the making of accompanying sounds audible; and

(c) in the case of a phonogram, making the recording sounds audible,

in each case at a place or at places where persons outside the normal circle
of the family and its closest acquaintances are or can be present,
irrespective of whether they are or can be present at the same place and
time, or at different places and times, and where the performance can be
perceived without the need for communication to the public;

“published” refers to a work or a phonogram, tangible copies of which
have been made available to the public in a reasonable quantity for sale,
rental, public lending or for other transfer of the ownership or the
possession of the copies, provided that, in the case of a work, the making
available to the public took place with the consent of the author or other
owner of copyright and, in the case of a phonogram, with the consent of
the producer of the phonogram or his successor in title;

“rental” means the transfer of the possession of the original or a copy of a
work or phonogram for a limited period of time for profit-making
purposes;

“reproduction” means the making of one or more copies of a work or
phonogram in any manner or form, including any permanent or temporary
storage of the work or phonogram in electronic form;

“reprography” means the making of a facsimile copy of the original or a
copy of the work, including photocopying;

“rights management information” means any information which
identifies the author, the work, the performer, the performance of the
performer, the producer of the phonogram, the phonogram, the
broadcaster, the broadcast, the owner of any right under this Act, or
information about the terms and conditions of use of the work, the
performance, the phonogram or the broadcast, and any numbers or codes
that represent such information, when any of these items of information is
attached to a copy of a work, a fixed performance, a phonogram or fixed
broadcast, or appears in connection with the broadcasting, communication
to the public or making available to the public of a work, a fixed
performance, a phonogram or a broadcast;

“work” means any literary or artistic work under sections 3(1) and 4(1);

“work of applied art” means artistic creation with utilitarian functions or
incorporated in a useful article, whether made by hand or produced on an
industrial scale;

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“work of joint authorship” means a work to the creation of which two or
more authors have contributed, provided the work does not qualify as a
“collective work”.

PART I—COPYRIGHT

3 Works protected
(1) Literary and artistic works are original intellectual creations including—

(a) books, pamphlets, articles, computer programs and other writings;
(b) speeches, lectures, addresses, sermons and other oral works;
(c) dramatic, dramatico-musical works, pantomimes, choregraphic

works and other works created for stage productions;
(d) musical works, with or without accompanying words;
(e) audiovisual works;
(f) works of architecture;
(g) works of drawing, painting, sculpture, engraving, lithography,

tapestry and other works of fine art;
(h) photographic works;
(i) works of applied art;
(j) illustrations, maps, plans, sketches and three-dimensional works

relative to geography, topography, architecture or science.

(2) Works shall be protected by the sole fact of their creation and irrespective
of their mode or form of expression, or of their content, quality
and purpose.

4 Derivative works
(1) The following shall also be protected as works—

(a) translations, adaptations, arrangements, and other transformations
or modifications of works; and

(b) collections of works, collections of mere data (databases), whether
in machine readable or other form, and collections of expressions of
folklore, provided that such collections are original by reason of the
selection or arrangement of their contents.

(2) The protection of any work referred to in subsection (1) shall be without
prejudice to any protection of a pre-existing work or expression of
folklore incorporated in or utilised for the making of such a work

Section 5 Copyright Act 2002





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5 Subject matter not protected
Notwithstanding the provisions of section 3 and 4, no protection under this Act
shall extend to—

(a) any idea, procedure, system, method of operation, concept,
principle, discovery or mere data, even if expressed, described,
explained, illustrated or embodied in a work;

(b) any official text of a legislative, administrative or legal nature, or
any official translation thereof.

6 Economic rights
(1) Subject to the provisions of sections 9 to 17, the author or other owner of

copyright shall have the exclusive right to carry out or to authorise the
following acts in relation to the work—
(a) reproduction of the work;
(b) translation of the work;
(c) adaptation, arrangement or other transformation of the work;
(d) the distribution to the public by sale, rental, public lending or

otherwise of the original or a copy of the work that has not already
been subject to a sale or other transfer of ownership authorised by
the owner of copyright;

(e) rental or public lending of the original or a copy of an audiovisual
work, a work embodied in a phonogram, a computer program, a
database or a musical work in the form of notation, irrespective of
the ownership of the original or copy concerned;

(f) importation of copies of the work;
(g) public display of the original or a copy of the work;
(h) public performance of the work;
(i) broadcasting of the work;
(j) other communication to the public of the work.

(2) The rights of rental and lending under subsection (1)(e) do not apply to
rental or lending of computer programs where the program itself is not the
essential object of the rental or lending.

7 Moral rights
(1) Independently of his economic rights, and even where he is no longer the

owner of the said rights, the author of a work shall have the right—

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(a) to have his name indicated prominently on the copies and in
connection with any public use of his work, as far as practicable;

(b) not to have his name indicated on the copies and in connection with
any public use of his work, and the right to use a pseudonym;

(c) to object to any distortion, mutilation or other modification of, or
other derogatory action in relation to, his work which would be
prejudicial to his honour or reputation.

(2) None of the rights mentioned in subsection (1) shall be transmissible
during the life of the author, but the right to exercise any of those rights
shall be transmissible by testamentary disposition or by operation of law
following the death of the author.

(3) The author may waive any of the moral rights mentioned in subsection
(1), provided that such a waiver is in writing and clearly specifies the right
or rights waived and the circumstances in which the waiver applies and
provided further, that any waiver of the right under subsection (1)(c)
specifies the nature and extent of the modification or other action in
respect of which the right is waived. Following the death of the author, the
natural person or legal entity upon whom or which the moral rights have
devolved shall have the right to waive the said rights.

8 Private reproduction for personal purposes
(1) Notwithstanding the provisions of section 6(1)(a), and subject to the

provisions of subsection (2), the private reproduction of a published work
in a single copy shall be permitted without the authorisation of the author
or owner of copyright, where the reproduction is made by a person
exclusively for his own personal purposes.

(2) The permission under subsection (1) shall not extend to reproduction—
(a) of a work of architecture in the form of building or other

construction;
(b) in the form of reprography of the whole or a substantial part of a

book or of a musical work in the form of notation;
(c) of the whole or a substantial part of a database in digital form;
(d) of a computer program, except as provided in section 14; or
(e) of any work in cases where reproduction would conflict with a

normal exploitation of the work or would otherwise unreasonably
prejudice the legitimate interests of the author or other owner of
the copyright.

Section 9 Copyright Act 2002





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9 Temporary reproduction
Notwithstanding the provisions of section 6(1)(a), the temporary reproduction of
a work shall be permitted if all the following conditions are met—

(a) the reproduction is made in the process of a digital transmission of
the work or an act of making a digitally stored work perceptible;

(b) it is caused by a person or entity that, by way of authorisation by
the owner of copyright or by operation of law, is entitled to make
that digital transmission or making a digitally stored work
perceptible; and

(c) it is ancillary to that digital transmission or the making perceptible
of digitally stored work, that occurs during the normal operation of
the equipment used and entails the automatic deletion of the copy
without enabling the retrieval of the work for any other purpose
than those, referred to in paragraphs (a) and (b).

10 Quotation
Notwithstanding the provisions of section 6(1)(a), the reproduction, in the form
of quotation, of a short part of a published work shall be permitted without
authorisation of the author or other owner of copyright, provided that the
reproduction is compatible with fair practice and does not exceed the extent
justified by the purpose. The quotation shall be accompanied by an indication of
source and the name of the author, if his name appears in the work from which
the quotation is taken.

11 Reproduction for teaching
(1) Notwithstanding the provisions of section 6(1)(a), the following acts shall

be permitted without authorisation of the author, or other owner of
copyright—
(a) the reproduction of a short part of a published work for teaching

purposes by way of illustration, in writings or sound or visual
recordings, provided that such reproduction is compatible with fair
practice and does not exceed the extent justified by the purpose;

(b) the reprographic reproduction, for face-to-face teaching in
educational institutions the activities of which do not serve direct or
indirect commercial gain, of published articles, other short works or
short extracts of works, to the extent justified by the purpose,
provided that—
(i) the act of reproduction is an isolated one occurring, if

repeated, on separate and unrelated occasions; and

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(ii) there is no collective licence available (that is, offered by a
collective administration organisation of which the
educational institution is or should be aware) under which
such reproduction can be made.

(2) The source of the work reproduced and the name of the author shall be
indicated as far as practicable on all copies made under paragraph (1).

12 Reprographic reproduction by libraries and archives
Notwithstanding the provisions of section 6(1)(a), any library or archive whose
activities do not serve direct or indirect commercial gain may, without the
authorisation of the author or other owner of copyright, make a single copy of
the work by reprographic reproduction—

(a) where the work reproduced is a published article, other short work
or short extract of a work, and where the purpose of the
reproduction is to satisfy the request of a natural person,
provided that—
(i) the library or archive is satisfied that the copy will be used

solely for the purposes of study, scholarship or private
research;

(ii) the act of reproduction is an isolated case occurring, if
repeated, on separate and unrelated occasions; and

(iii) there is no collection licence available (that is, offered by a
collective administration organisation of which the library or
archive is or should be aware) under which such copies can
be made; or

(b) where the copy is made in order to preserve and, if necessary,
replace a copy or to replace a copy which has been lost, destroyed
or rendered unusable in the permanent collection of another similar
library or archive provided that it is impossible to obtain such a
copy under reasonable conditions and provided further that the act
or reprographic reproduction is an isolated case occurring, if
repeated, on separate and unrelated occasions.

13 Reproduction, broadcasting and other communication to the public
for information purposes.
Notwithstanding the provisions of section 6(1)(a), (i) and (j), the following acts
shall be permitted in respect of a work without the authorisation of the author or
other owner of copyright, subject to the obligation to indicate the source and the
name of the author as far as practicable—

Section 14 Copyright Act 2002





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(a) the reproduction in a newspaper or periodical or the broadcasting or
other communication to the public, of an article published in a
newspaper or periodical on current economic, political or religious
topics or a broadcast work of the same character, provided that this
permission shall not apply where the right to authorise
reproduction, broadcasting or other communication to the public is
expressly reserved on the copies by the author or other owner of
copyright, or is acknowledged in connection with broadcasting or
other communication to the public of the work;

(b) for the purpose of reporting current events, the reproduction and the
broadcasting or other communication to the public of short excerpts
of a work seen or heard in the course of such events, to the extent
justified by the purpose;

(c) the reproduction in a newspaper or periodical, the broadcasting or
other communication to the public of a political speech, a lecture,
address, sermon or other work of a similar nature delivered in
public, or a speech delivered during legal proceedings, to the extent
justified by the purpose of providing current information.

14 Reproduction and adaptation of computer programs
(1) Notwithstanding section 6(1)(a) and (c), the reproduction, in a single

copy, or the adaptation of a computer program by the lawful owner of a
copy of that computer program shall be permitted without the
authorisation of the author or other owner of copyright, provided that the
copy or adaptation is necessary—
(a) for use of the computer program for the purpose and extent for

which the computer program has been obtained;
(b) for archival purposes and for the replacement of the lawfully owned

copy of the computer program where the said copy is lost,
destroyed or rendered unusable.

(2) No copy or adaptation of a computer program shall be used for any
purpose other than those specified in subsection (1) and any such copy or
adaptation shall be destroyed when continued possession of the copy of
the computer program ceases to be lawful.

15 Importation for personal purposes
Notwithstanding the provisions of section 6(1)(f), the importation of a copy of a
work by a person for his own purposes shall be permitted without the
authorisation of the author or other owner of copyright.

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16 Display of works
Notwithstanding the provisions of section 6(1)(g), the public display of originals
or copies of works shall be permitted without the authorisation of the author,
provided that the display is made other than by means of a film, slide, television
image or otherwise on screen or by means of any other electronic device or
process, and provided further that the work has been published or the original or
the copy displayed has been sold, given away or otherwise transferred to another
person by the author or his successor in title.

17 Ephemeral Recording
Notwithstanding the provisions of section (6)(1)(a), any broadcasting
organisation may make, for the purpose of its own broadcasts and by means of
its own facilities, an ephemeral recording of any work which it is authorised to
broadcast. All copies of it shall be destroyed within six months of the making or
within any longer term agreed to by the author; however, where such recording
has an exceptional documentary character, one copy of it may be preserved in
official archives.

18 Duration of Copyright
(1) Subject to the provisions of subsections (2) to (5), the economic and moral

rights shall be protected during the life of the author and for fifty years
after his death.

(2) In the case of a work of joint authorship, the economic and moral rights
shall be protected during the life of the last surviving author and for fifty
years after his death.

(3) In the case of a collective work, other than a work of applied art, and in
the case of an audiovisual work, the economic and moral rights shall be
protected for fifty years from the date on which the work was either made,
first made available to the public, or first published, whichever date is the
latest.

(4) In the case of a work published anonymously or under a pseudonym, the
economic and moral rights shall be protected for fifty years from the date
on which the work was either made, first made available to the public or
first published, whichever date is the latest, provided that where the
author’s identity is revealed or is no longer in doubt before the expiration
of the said period, the provisions of subsection (1) or subsection (2) shall
apply, as the case may be.

(5) In the case of a work of applied art, the economic and moral rights shall
be protected for twenty five years the making of the work.

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(6) Every period provided for under the preceding subsections shall run to the
end of the calendar year in which it would otherwise expire.

19 Original Ownership of economic rights
(1) Subject to the provisions of subsections (2) to (5), the original owner of

economic rights is the author who has created the work.

(2) In respect of a work of joint authorship, the co-authors shall be the
original owners of the economic rights. If, however, a work of joint
authorship consists of parts that can be used separately and the author of
each part can be identified, the author of each part shall be the original
owner of the economic rights in the part that he has created.

(3) In respect of a collective work, the natural person or legal entity at the
initiative and under the direction of whom or which the work has been
created shall be the original owner of the economic rights.

(4) In respect of a work created by an author, employed by a natural person or
legal entity, in the course of his employment, the original owner of the
economic rights shall be the employer unless provided otherwise in a
contract.

(5) In respect of an audiovisual work, the original owner of the economic
rights shall be the producer, unless provided otherwise in a contract. The
co-authors of the audiovisual work and the author of the pre-existing
works included in or adapted for the making of the audiovisual work shall
maintain their economic rights in their contributions or pre-existing works
can be subject to acts covered by their economic rights separately from the
audiovisual work.

20 Presumption of authorship and of representation of the author
(1) The person whose name is indicated as the author on a work in the usual

manner shall, in the absence of proof to the contrary, be presumed to be
the author of the work. This provision shall be applicable even if the name
is a pseudonym, where the pseudonym leaves no doubt as to the identity
of the author.

(2) In the case of an anonymous or pseudonymous work, subject to the
provision of subsection (1), the publisher whose name appears on the
work shall, in the absence of proof to the contrary, be presumed to
represent the author and, in this capacity, shall be entitled to exercise and
enforce the moral and economic rights of the author. This presumption
shall cease to apply when the author reveals his identity.

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21 Assignment and licence of authors’ rights
(1) Economic rights shall be assignable in whole or in part.

(2) Any assignment of an economic right, and any licence to do an act subject
to authorisation by the author or other owner of copyright, shall be in
writing signed by the assignor and the assignee, or by the licensor and the
licensee.

(3) An assignment in whole or in part of any economic right, or a licence to
do an act subject to authorisation by the author or other owner of
copyright, shall not include or be deemed to include the assignment or
licence of any other rights not explicitly referred to therein.

PART II—PROTECTION OF PERFORMERS, PRODUCERS
OF PHONOGRAMS AND BROADCASTING

ORGANISATIONS

22 Acts requiring authorisation of performers
(1) Subject to the provisions of section 26 a performer shall have the

exclusive right to carry out or to authorise any of the following acts—
(a) the broadcasting or other communication to the public of his

performance, except where the broadcasting or the other
communication—
(i) is made from a fixation of the performance, other than a

fixation made under the terms of section 26 or otherwise
made without the authorisation of the performer; or

(ii) is a re-broadcasting made or authorised by the organisation
initially broadcasting the performance;

(b) the fixation of his unfixed performance;
(c) the direct or indirect reproduction of a fixation of his performance

in any manner or form;
(d) the distribution to the public by sale or other transfer of ownership

of a fixation of his performance, or copies thereof, that has not
already been subject to a distribution authorised by the performer;

(e) rental to the public or public lending of a fixation of his
performance, or copies thereof, irrespective of the ownership of the
copy rented or lent;

(f) the making available to the public of his fixed performance, by wire
or wireless, in such a way that members of the public may access
them from a place or at a time individually chosen by them.

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(2) Once the performer has authorised the incorporation of his performance in
an audiovisual fixation, the provisions of subsection (1) shall have no
further application.

(3) Independently of the performer’s economic rights, also after the transfer
of those rights, the performer shall, as regards his live aural performances
and performances fixed in phonograms, have the right to claim to be
identified as the performer of his performances, except where omission is
dictated by the manner of the use of the performance, and to object to any
distortion, mutilation or other modification of his performances that he
considers prejudicial to his reputation. The provisions of subsections (2)
and (3) of section 7 apply mutatis mutandis to the rights granted under
this subsection.

(4) Nothing in this section shall be construed to deprive performers of the
right to agree by contracts on terms and conditions more favourable for
them in respect of their performances.

(5) The right under this section shall be protected until the end of the fiftieth
calendar year following the year in which the performance was fixed in a
phonogram, or in the absence of such a fixation, from the end of the year
in which the performance took place.

23 Acts requiring authorisation of producers of phonograms
(1) Subject to the provisions of section 26 a producer of a phonogram shall

have the exclusive right to carry out or to authorise any of the
following acts—
(a) direct or indirect reproduction of the phonogram, in any manner or

form;
(b) importation of copies of the phonogram;
(c) the distribution to the public by sale or other transfer of ownership,

of the original or copies of the phonogram that have not already
been subject to a distribution authorised by the producer;

(d) rental to the public or public lending of the original or copies of the
phonogram, irrespective of the ownership of the copy rented or lent;

(e) the making available to the public of the phonogram, by wire or
wireless, in such a way that members of the public may access it
from a place or at a time individually chosen by them.

(2) The rights under subsection (1) shall be protected from the publication of
the phonogram until the end of the fiftieth calendar year following the
year of publication or, if the phonogram has not been published from the
fixation of the phonogram until the end of the fiftieth calendar year,
following the year of fixation.

Copyright Act 2002 Section 24





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24 Equitable remuneration for use of phonograms
(1) If a phonogram published for commercial purposes, or a reproduction of

such phonogram, is used directly for broadcasting or other communication
to the public, or is publicly performed, a single equitable remuneration for
the performer or performers and the producer of the phonogram shall be
paid by the user to the producer.

(2) Unless otherwise agreed between the performers and the producer, half of
the amount received by the producer under subsection (1) shall be paid by
the producer to the performer or performers.

(3) The right to an equitable remuneration under this section shall subsist
from the date of publication of the phonogram until the end of the fiftieth
calendar year following the year of publication or, if the phonogram has
not been published, from the date of fixation of the phonogram until the
end of the fiftieth calendar year following the year of fixation.

(4) For the purposes of this section, phonograms that have been made
available to the public by wire or wireless, in such a way that members of
the public may access them from a place and at a time individually chosen
by then shall be deemed to have been published for commercial purposes.

25 Acts requiring authorisation of broadcasting organisations
(1) Subject to the provisions of section 26 a broadcasting organisation shall

have the exclusive right to carry out or to authorise any of the
following acts—
(a) the re-broadcasting of its broadcast;
(b) the communication to the public of its broadcast;
(c) the fixation of its broadcast;
(d) the reproduction of a fixation of its broadcast.

(2) The rights under this section shall be protected from the moment when the
broadcasting takes place until the end of the fiftieth calendar year
following the year in which the broadcast takes place.

26 Limitations on protection
Sections 22, 23, 24 and 25 shall not apply where the acts referred to in those
sections are related to—

(a) using short excerpts for reporting current events to the extent
justified by the purpose of providing current information;

(b) reproduction solely for scientific research;

Section 27 Copyright Act 2002





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(c) reproduction solely for the purpose of face-to-face teaching
activities, except for performances and phonograms which have
been published as teaching or instructional materials;

(d) cases where, under Part I, a work can be used without the
authorisation of the author or other owner of copyright.

PART III—ENFORCEMENT OF RIGHTS

27 Conservatory and provisional measures
(1) The Court having jurisdiction of a civil action arising under this Act, shall

have the authority—
(a) to grant injunctions to prohibit the committing, or continuation of

committing, of infringement of any right protected under this Act;
(b) to order the impounding of copies of works or phonograms

suspected of being made or imported without the authorisation of
the owner of any right protected under this Act where the making or
importation of copies is subject to such authorisation, as well as the
impounding of the packaging of, the implements that could be used
for the making of, and the documents, accounts or business papers
referring to, such copies.

(2) The provisions of the Police Act and the Magistrates’ Courts Act relating
to search and seize shall apply as if all references to an offence in those
provisions include infringements of rights under this Act.

(3) The provisions of the Customs and Excise Act dealing with suspension of
the release of suspected illegal goods shall apply to articles and
implements protected under this Act.

28 Civil remedies
(1) The owner of any right protected under this Act whose right has been

infringed shall be entitled to payment, by the infringer, of damages for the
prejudice suffered as a consequence of the act of infringement and the
payment of expenses caused by the infringement, including legal costs. In
fixing the amount of damages the Court shall take into account the
importance of the material and moral prejudice suffered by the owner of
the right and the infringer’s profits attributable to the infringement. Where
the infringer did not know or had no reasonable cause to know that he was
engaged in infringing activity, the Court may limit damages to the profits
of the infringer attributable to the infringement.

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(2) Where infringing copies exist, the Court shall have the authority to order
the destruction or other reasonable disposition of those copies and their
packaging in such a manner as to avoid harm to the owner of the right
unless he requests otherwise. This provision shall not be applicable to
copies and their packaging which were acquired by a third party in
good faith.

(3) Where there is a danger that implements may be used to commit or
continue to commit acts of infringement, the Court shall order their
destruction or other reasonable disposition in such a manner as to
minimise the risks of further infringements or surrender to the owner
of the right.

(4) Where there is a danger that acts of infringement may continue, the Court
shall order that no such further acts be committed and fix a fine not
exceeding $20,000 which shall be due if the order is not respected.

29 Criminal sanction
(1) Any person who wilfully infringes any right protected under this Act

commits an offence and is liable on conviction to a fine not exceeding
$20,000 or imprisonment for a period not exceeding 3 years or both.

(2) Where the defendant has been convicted of a new act of infringement
within 5 years of a previous conviction for an infringement the penalty in
subsection (1) shall be double.

(3) In any criminal proceedings the Court may apply the measures and
remedies referred to in sections 27 and 28, provided that no decision has
yet been taken on such remedies in a civil proceeding.

30 Measures, remedies and sanctions against abuses in respect of
technical means of protection and rights management information
(1) The following acts shall be considered unlawful and, in the application of

sections 27 to 29, shall be deemed to be an infringement of the rights
protected under this Act—
(a) the manufacture or importation for sale or rental of any device or

means specifically designed or adapted to circumvent any device or
means intended to prevent or restrict reproduction of a work, a
phonogram or a broadcast, or to impair the quality of copies made;

(b) the manufacture or importation for sale or rental of any device or
means that is designed to adopt, enable or assist the reception of an
encrypted program, which is broadcast or otherwise communicated
to the public, including by satellite, by those who are not entitled to
receive the program;

Section 31 Copyright Act 2002





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(c) the removal or alteration of any electronic rights management
information without authority;

(d) the distributing, importing for distribution, broadcasting,
communicating to the public or making available to the public,
without authority, of works, performances, phonograms or
broadcasts, knowing or having reason to know that rights
management information has been removed or altered without
authority.

(2) In the application of sections 27 to 29, any illicit device and means
mentioned in subsection (1) and any copy from which rights management
information has been removed, or in which such information has been
altered, shall be deemed to be infringing copies of works, and any illicit
act referred to in subsection (1) shall be treated as an infringement of
copyright or related rights to which the civil remedies and criminal
sanctions provided in sections 27 to 29 are applicable.

PART IV—MISCELLANEOUS

31 Scope of application of protection of literary and artistic works
(1) The provisions of this Act concerning the protection of literary and artistic

works shall apply to—
(a) works of authors who are nationals of, or have their habitual

residence in, Tonga;
(b) works first published in Tonga and works first published in another

country and also published in Tonga within thirty days, irrespective
of the nationality of residence of their authors;

(c) audiovisual works, the producer of which has his headquarters or
habitual residence, in Tonga; and

(d) works of architecture erected in Tonga and other artistic works
incorporated in a building or other structure located in Tonga.

(2) The provisions of this Act shall also apply to works that are eligible for
protection in Tonga by virtue of and in accordance with any international
convention or other international agreement to which Tonga is a party.

32 Scope of application of protection of performers, phonogram
producers and broadcasting organisations
(1) The provisions of this Act on the protection of performers shall apply to—

(a) performers who are nationals of Tonga;

Copyright Act 2002 Section 33





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(b) performers who are not nationals of Tonga but whose
performances—
(i) take place in Tonga;
(ii) are incorporated in phonograms that are protected under this

Act; or
(iii) have not been fixed in a phonogram but are included in

broadcasts qualifying for protection under this Act.

(2) The provisions of this Act on the protection of phonograms shall apply
to—
(a) phonograms the producers of which are nationals of Tonga;
(b) phonograms first fixed in Tonga; or
(c) phonograms first published in Tonga.

(3) The provisions of this Act on the protection of broadcasts shall apply to—
(a) broadcasts of broadcasting organisations the headquarters of which

are situated in Tonga; and
(b) broadcasts transmitted from transmitters situated in Tonga.

(4) The provisions in this Act shall also apply to performers, producers of
phonograms and broadcasting organisations that are eligible for protection
by virtue of and in accordance with any international convention or other
international agreement to which Tonga is a party.

33 Application of international treaties
The provisions of any international treaty in respect of copyright and related
rights to which Tonga is a party shall apply subject to this Act.

34 Regulations
The Minister responsible for copyright may, with the consent of Cabinet, make
Regulations for the implementation of the purposes and provisions of this Act.

35 Repeal and saving
(1) The Copyright Act (Cap. 121) is repealed.

(2) The provisions of this Act shall apply also to works, performances,
phonograms and broadcasts dating back to before the coming into force of
this Act, provided that the term of protection has not expired under the
former legislation or under the legislation of the country of origin of such
works, performances, phonograms or broadcast that are to be protected

Section 35 Copyright Act 2002





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under an international convention or other international agreement to
which Tonga is a party.

(3) Contracts on works, performances, phonograms and broadcasts concluded
before the coming into force of this Act shall not be affected by this Act.



Passed by the Legislative Assembly this 30th day of July, 2002.