In November 2025, the Federal Government introduced the Copyright Amendment Bill 2025 (Cth) (Bill) which proposed an orphan works scheme for Australia. On 1 April 2026, the Bill received royal assent, as the Copyright Amendment Act 2026 (Cth) (Act). This article outlines the key features of Australia’s new orphan works scheme, highlights the principal amendments made to the Act before its passage, and discusses likely implications for stakeholders.
What are ‘orphan works’?
Generally, using copyright material requires the permission of the relevant copyright owner. However, an ‘orphan work’ is material in respect of which the copyright owner, after a reasonably diligent search, cannot be identified or located, so their permission cannot be sought. As the Copyright Act 1968 (Cth) does not provide an exception to copyright infringement for using an orphan work, exercising rights comprised in the copyright in orphan works prior to the commencement of the Act posed the risk of potential infringement action if the owner later came forward.
Outline of the Act
The Act facilitates the use of orphan works by limiting the remedies available against a user who would otherwise be liable for copyright infringement, provided that certain conditions are met. In short, users of orphan works must:
- conduct a reasonably diligent search for the owner
- do so within a reasonable time before use
- keep a record of the search for a reasonable period
- be unable to identify or locate the owner at the time of use and
- give clear and reasonably prominent notice of the use in line with the legislation.
The Act sets out non-exhaustive factors to assess whether a search was reasonably diligent and timely, and whether the search record was kept for a reasonable period. To balance interests, the Act also protects the rights of copyright owners who are later identified – those owners can seek reasonable payment for past use. If ongoing use is sought by the user, the parties may negotiate terms or a court may fix reasonable terms or grant injunctive relief.
Amendments to the Act prior to its assent
The only substantive amendments made to the Bill between its first reading and assent was the introduction of Schedule 1, items 1A and 1B.[1] These items amend the definition of ‘licensed copying or communicating’ and insert new subsections 113Q(2A)–(2D) to make clear that, where copying or communicating by, or in connection with, an educational institution would otherwise be covered by the statutory education licence, the user may instead elect to proceed under the orphan works scheme by giving the required orphan works notice. If that election is made, the relevant act of copying or communicating is carved out of the statutory education licence. The user therefore cannot later rely on the statutory education licence for that use if the copyright owner comes forward and alleges infringement, but must instead satisfy the conditions of the orphan works scheme in order to obtain the benefit of the limitation on remedies. The amendments also empower the Minister, by legislative instrument, to prescribe when, to whom and how a copy of the orphan works notice must be given, and clarify that non‑compliance with these notice requirements does not affect the carve‑out from the statutory education licence. Apart from these amendments, and a minor technical correction,[2] the Bill passed in substantially the same form as originally introduced.
Likely implications
In the Attorney-General’s media release issued after the Bill was passed, the Government emphasised that the scheme would provide ‘Australians greater legal certainty when using “orphan works’’’ and enable access to ‘a broader collection of creative, historical and educational works held by the nation’s … libraries and museums.’[3] Orphan works currently represent a large proportion of materials managed by these institutions: up to 70% of library collections in Australia are unpublished orphan works,[4] and about 20% of the national audio-visual collection is orphaned or abandoned.[5] By expanding access to orphan works, the scheme will reduce friction for institutions that have long grappled with how to use these materials and, in turn, benefit the wider Australian community. Additionally, the scheme’s search requirements may also help copyright owners rediscover their works that have become orphaned unintentionally. Once identified, owners can resume exercising their exclusive rights and may receive reasonable payment for past use.
Ultimately, the scheme aims ‘to be balanced, proportionate and fair to users and rights holders, and deliver benefits to all’.[6] Australia joins jurisdictions such as the UK, the EU, and Canada that already operate similar orphan works schemes, which likewise require diligent searches or reasonable efforts to locate the copyright owner.
Featured image by Bruno from Pixabay.
[1] Copyright Amendment Bill 2026 (Cth) sch 1 items 1A–1B; Supplementary Explanatory Memorandum, Copyright Amendment Bill 2025 (Cth).
[2] Supplementary Explanatory Memorandum, Copyright Amendment Bill 2025 (Cth).
[3] Attorney-General’s Department (1 April 2026) ‘Important reforms to Australia’s copyright framework pass the Parliament’ [media release], Attorney-General’s Department website, accessed 28 April 2026.
[4] National and State Libraries Australasia, Position statement: Reasonably diligent search for orphan works (June 2023).
[5] National Film and Sound Archive of Australia, Statement on Orphan Works (October 2017).
[6] Explanatory Memorandum for the Copyright Amendment Bill 2025, General Outline.
