Proposed changes to copyright for orphan works

On 5 November 2025, the Copyright Amendment Bill 2025 (Cth)(Bill) was introduced to the Federal Parliament to amend the Copyright Act 1968 (Cth)(Copyright Act).  The media release to the Bill explained that it proposed two (2) reforms to the Copyright Act by establishing Australia’s first statutory “orphan works” scheme and clarifying the permitted use of copyright material by schools in online teaching environments.

What are “orphan works“?

While “orphan works” is not defined in the Copyright Act, it is the title of Schedule 1 of the Bill.

Orphan Works is a term used to describe copyright material for which the copyright owner cannot be identified or located.  While Orphan Works are normally associated with analogue works, digital environments such as social media make copyright material susceptible to being orphaned then ‘stripped of metadata’ and other identifying information.

In its submission to the Federal Government, the Australian Law Reform Commission (ALRC) explained that current Copyright Act is deficient as Orphan Works can only become accessible when it falls into the public domain at the end of the copyright term.  Under section 33 of the Copyright Act, where the identity of the author is not known, this term is seventy (70) years after the calendar year in which the work was made.

Orphan Works scheme

The Bill proposes to insert a new Division 2AAA, titled “Limitation on remedies when owner cannot be found“, into the Copyright Act, which will legislate a new scheme for using copyrightable material for which the owner cannot be identified or located.

Division 2AAA would enable access to, and good faith use of, orphaned copyright material while attempting to balance this with the interests of copyright holders.

Limitations on relief against infringement

Under the new Division 2AAA-proposed by the Bill, users who wish to reproduce, communicate, adapt or otherwise exploit a work will be able to rely on a defence to any claim of infringement which may arise.  This limitation-of-remedies defence will apply where otherwise-infringing use meets the five (5) threshold conditions listed in section 116AAE as follows:

• a reasonably diligent search for the owner or owners of copyright in the copyright material was conducted;
• the search was conducted within a reasonable period before the infringing use;
• a record of the search was maintained for a reasonable period;
• at the time of the infringing use, the defendant could not identify and locate the owner or owners of the copyright; and
• notice was given in relation to the infringing use, stating that the owner could not be identified and located, and that the notice is being given for the purposes of Division 2AAA.

Under section 116AAE(8) of the Bill, the factors which will inform the meaning of “threshold” will include:

• the nature of the copyright material;
• the nature, purpose and character of the infringing use;
• whether the owners of the copyright are likely to be located in a foreign country;
• the actual or likely impact of the infringing use on the copyright owner;
• the way the search was conducted;
• any relevant industry guidelines; and
• any matters determined by the Minister for the Department of Industry, Science and Resources (Minister).
• The Bill also allows the Minister to prescribe what constitutes a “reasonably diligent search”, a “reasonably prominent notice” and a “record of the search”.

Where a copyright holder alleges infringement, section 116AAF provides that the owner and user should attempt to reach an agreement with respect to the terms of any continuing use of the copyright material before seeking Court orders.  If an agreement cannot be reached, a Court may fix reasonable terms or grant an injunction.

If a copyright owner emerges after the user has undertaken an adequate search for a rightsholder, a Court must not grant infringement relief that consists of damages or an account of profits.  Instead, section 116AAG allows a Court to order a “reasonable payment” that is intended to act as an equivalent of a licensing fee that otherwise would have been payable for the past infringing use.  However, a Court cannot order payment for previous personal or household use if the use ceased once the owner was identified or an agreement was made for continuing use.

The Bill’s Explanatory Memorandum also makes it clear that the scheme is not intended to support large-scale uses of copyright materials for training generative artificial intelligence systems, as it would be prohibitively burdensome to conduct a reasonably diligent search for each Orphan Work and to provide notice for each instance of infringing use.

Clarifying the “remote learning” exemption

Schedule 2 of the Bill, titled “remote learning” clarifies the permitted use of copyright materials by schools in online teaching environments.

Under section 28 of the Copyright Act, a public performance or communication of video, audio or literary works is not infringing use where shown by a teacher to their students “in class, or otherwise in the presence of an audience” in the course of giving or receiving educational instruction.  

The use of non-traditional schooling methods, such as online and distance education, increased during the Covid-19 lockdowns and the Copyright Act is not clear in how the infringement exemptions apply in these circumstances.

By inserting subsections at the end of section 28, section 17 of the Bill would clarify that the education exemption applies in the following circumstances:

• in a virtual class environment, such as through a Microsoft Teams or Zoom meeting;
• when other individuals assisting, such as parents or teacher aides, are present for support and
• where persons who are not teachers, such as experts or guest speakers, are providing educational instruction.

Other changes under the Bill

The Bill also introduces minor amendments to the process for appointing members of the Copyright Tribunal.

Next steps

The Bill was referred to the Legal and Constitutional Affairs Legislation Committee (Committee) for inquiry.  Submissions closed on 28 November 2025, and the Committee’s report is due on 19 December 2025.

Links

Copyright Amendment Bill 2025 (Cth)

Copyright Act 1968 (Cth)

Explanatory Memorandum, Copyright Amendment Bill 2025 (Cth)

Further information

If you need advice on using or protecting your business’ copyrightable material, contact us for a confidential and obligation‑free discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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