Copyright unclaimed: Australia unveils an “orphan works” scheme – what it means for businesses, creators and media

Copyright reforms which propose a new scheme for using “orphan works” (material for which a copyright owner cannot be identified or located) were introduced before the Federal Parliament on 5 November 2025.

The Copyright Amendment Bill 2025 (Cth) (Bill) inserts a new Division 2AAA into the Copyright Act 1968 (Cth) (Copyright Act) to enable access to, and good faith use of, orphaned copyright material while attempting to balance this with the interests of copyright holders.

How the scheme will work

Under the proposed model, users who wish to reproduce, communicate, adapt or otherwise exploit a work will be able to invoke a limitation-of-remedies defence if five threshold conditions are met:^[1]

1. a “reasonably diligent search” for the owner has been conducted (the court will scrutinise the nature of the material, the purpose of the use and any industry guidelines);
2. the search occurred within a reasonable period before use;
3. a record of that search is retained for a reasonable period;
4. at the time of use, the owner was not identifiable or locatable; and
5. a clear and “reasonably prominent” notice is provided stating the owner(s) of copyright could not be located and work is being used under the orphan works scheme. 

The Bill proposes that the Minister will be able to prescribe what will constitute a “reasonably diligent search”, a “reasonably prominent notice” and a “record of the search” by legislative instrument.

The Bill’s Explanatory Memorandum indicates that a higher standard will be expected for what constitutes a “reasonably diligent search” where:^[2]

• the user intends to commercially exploit the material;
• the copyright owner is likely to be located in a foreign country;
• the user intends to use material that contains Indigenous Cultural and Intellectual Property (ICIP), in such cases the Explanatory Memorandum also sets out that the user should seek the free, prior and informed consent from the cultural groups to whom the ICIP relates; and
• the infringing use is likely to have an actual impact on a copyright owner (e.g. if it interferes with the owner’s intention to exploit the material themselves).

If, despite those steps, a rightsholder later emerges, the court must not grant relief against the defendant in respect of the infringing use that consists of damages, an account of profits or additional damages.^[3] Instead, a court may order only a “reasonable payment” that is intended to act as an equivalent of a licensing fee that otherwise would have been payable (however, there is an exception for private and domestic use).^[4]

Court orders to fix licensing terms for continuing use

If the limitation-of-remedies defence applies and the user and owner cannot negotiate terms to continue exploiting the owner’s work, the Bill proposes that a court may fix “reasonable terms” for the continued use or to grant an injunction as the court considers appropriate.^[5]

Implications

Publishers, filmmakers and broadcasters stand to gain a viable route to resurrect orphan works (such as out-of-print books, archival footage or legacy recordings). The orphan works scheme lowers litigation risk, but editors will need internal policies to document searches and manage notices (a footer or pop-up notice on a website are cited examples). Failure to follow the statutory requirements will leave organisations exposed to the full suite of infringement remedies. As there is no requirement for users to carry out the search condition of the scheme themselves, businesses may wish to outsource this requirement to third-party experts to ensure the expectations for a “reasonably diligent search” are met. 

The Explanatory Memorandum specifically cautions that the orphan works scheme is unlikely to be able to permit the bulk use of copyright materials, including for the training of generative AI, as diligent searches and notices would be required in respect of each specific use.^[6] This approach broadly aligns with the position announced by the Federal Government on 26 October 2025, that it would not introduce a text and data mining (TDM) exception under the Copyright Act.

For copyright holders, the upside of the scheme is that it provides a potential to earn new income from their works that may have unintentionally or unknowingly become “orphaned”. If and when they surface, copyright holders can demand a reasonable royalty and negotiate future terms. Conversely, the limitation on damages removes the leverage of statutory additional damages, so the commercial upside will be capped at what a court deems “reasonable”. Moreover, by permitting ongoing exploitation in exchange for court determined compensation, the Bill arguably erodes the deterrent effect of copyright and weakens copyright holders’ control and bargaining power over their work. 

Next steps

Businesses should keep an eye on the progress of the Bill and may wish to start mapping search methodologies, template notices and record-keeping systems. Creators, meanwhile, may wish to review their contracts and metadata practices to ensure they remain contactable, seeking to avoid orphan status altogether. 

^{[1] Copyright Amendment Bill 2025 (Cth) (the Bill) s 116AAE. 
[2] Explanatory Memorandum (EM) [25] to [27].
[3] The Bill s 116AAD.
[4] The Bill s 116AAD(3)-(4).
[5] The Bill s 116AAF.
[6] EM [31].}