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

79   After section 50

Insert:

50A Condition of registration - handling old records that are works subject to copyright

(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 registered repository operator must not make the work available for the purposes of the My Health Record system, if it would be an infringement of the copyright in the work for the operator 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 registered repository operator that the operator complies with subsection (2).

50B 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 registered repository operator must not, for the purposes of the My Health Record system, make the sound recording or cinematograph film available if it would be an infringement of the copyright in the recording or film for the operator or another person to do any act comprised in the copyright in 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 registered repository operator that the operator complies with subsection (2).

50C Liability where work uploaded in breach of section 50A or 50B

(1) If any person suffers loss or damage as a result of anything done by an entity that contravenes section 50A or 50B, 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.

50D Authorisation to make health information available to the System Operator

A registered repository operator (other than the Chief Executive Medicare) is authorised to make health information about a registered healthcare recipient that is held by the operator available to the System Operator.