Health Legislation Amendment (eHealth) Act 2015 (157 of 2015)
Schedule 1 Healthcare identifiers and health records
Part 1 Amendments
Personally Controlled Electronic Health Records Act 2012
78 After section 45
Insert:
45A Condition of registration - handling old records that are works subject to copyright
Old works must not be uploaded if it would be an infringement of copyright to use the work for healthcare or related purposes
(1) Subsection (2) applies to works made before section 44BB of the Copyright Act 1968 commences.
Note: Section 44BB of the Copyright Act 1968 provides that there is no infringement of copyright if an act comprised in the copyright of a work is done, or authorised to be done, for healthcare or related purposes.
(2) A healthcare provider organisation must not, for the purposes of the My Health Record system, upload the work if it would be an infringement of the copyright in the work for the organisation or another person to do, or authorise to be done, an act comprised in the copyright of the work:
(a) for a purpose for which the collection, use or disclosure of health information is required or authorised under this Act; or
(b) in circumstances in which a permitted general situation exists under item 1 of the table in subsection 16A(1) of the Privacy Act 1988 (serious threat to life, health or safety), or would exist if the act were done, or authorised to be done, by an entity that is an APP entity for the purposes of that Act; or
(c) in circumstances in which a permitted health situation exists under section 16B of the Privacy Act 1988, or would exist if the act were done, or authorised to be done, by an entity that is an organisation for the purposes of that Act; or
(d) for any other purpose relating to healthcare, or the communication or management of health information, prescribed by the regulations.
(3) It is a condition of the registration of a healthcare provider organisation that the organisation complies with the obligation under subsection (2).
45B Condition of registration - handling old sound recordings and cinematograph films that are subject to copyright
(1) Subsection (2) applies to sound recordings and cinematograph films made before section 104C of the Copyright Act 1968 commences.
Note: Section 104C of the Copyright Act 1968 provides that there is no infringement of the copyright if an act comprised in the copyright of a sound recording or cinematograph film is done, or authorised to be done, for healthcare or related purposes.
(2) A healthcare provider organisation must not, for the purposes of the My Health Record system, upload the sound recording or cinematograph film if it would be an infringement of the copyright in the recording or film for the organisation or another person to do an act comprised in the copyright of the recording or film:
(a) for a purpose for which the collection, use or disclosure of health information is required or authorised under this Act; or
(b) in circumstances in which a permitted general situation exists under item 1 of the table in subsection 16A(1) of the Privacy Act 1988 (serious threat to life, health or safety), or would exist if the act were done by an entity that is an APP entity for the purposes of that Act; or
(c) in circumstances in which a permitted health situation exists under section 16B of the Privacy Act 1988, or would exist if the act were done by an entity that is an organisation for the purposes of that Act; or
(d) for any other purpose relating to healthcare, or the communication or management of health information, prescribed by the regulations.
(3) It is a condition of the registration of a healthcare provider organisation that the organisation complies with the obligation under subsection (2).
45C Liability where work uploaded in breach of section 45A or 45B
(1) If any person suffers loss or damage as a result of anything done by an entity that contravenes section 45A or 45B, the person may bring an action for the amount of the loss or damage against the entity in:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
(2) The action must be brought within 6 years after the loss or damage was suffered.
(3) In determining the damage suffered by the person, the court may include costs incurred by the person as a result of legal action relating to infringement of copyright.