A new orphan works scheme is coming to Australia

Yesterday was a big day for copyright nerds here in Australia. The Copyright Amendment BIll 2026 was passed by Parliament, bringing with it a scheme that will enable productive and creative uses of orphan works into the Copyright Act 1968 (Cth).

Once it commences, the new scheme under the Copyright Amendment Bill 2026 wil limit remedies available to copyright owners that later come forward when an orphan work is used in good faith by a user. The idea is that doing so will incentivise productive and creative uses of orphaned materials.

The orphan works problem

Orphan works are copyright-protected material for which the copyright owner cannot be identified or located. Orphan works by their nature create barriers to use because, if a user cannot identify the copyright owner they cannot request permission and secure a licence to reuse the material. Likewise, determining how long the material is protected by copyright can be difficult where the duration is depends on the life of the creator. If you don’t know who the creator is or when they died, you may not be able to work out 70 years after their death which is the typical duration of copyright for literary, dramatic, musical and artistic works.

In the absence of a copyright exception, using orphan works before their copyright term has expired carries risks because a copyright owner may later come forward and assert copyright. Financial penalties may be awarded against the user of the orphan work for their infringing use, regardless of the fact the copyright owner was hard to find. That risk is often too great and the material is not used. Orphaned materials have long been left to languish in libraries and archives, caught behind a thicket of copyright complexity that leaves wasted their cultural, economic and historical value.

That potential value can be unlocked if financial risks for their use are taken away. That is what the new Australian orphan works scheme will do.

The orphan works scheme’s solution

To tackle the problem, the scheme in the bill limits remedies available to copyright owners when an orphan work is used in good faith by a user and the copyright owner later comes forward and asserts their rights. To be afforded protection under the scheme:

• the user of the orphan work must have undertaken a reasonably diligent search to identify the copyright owner of the orphaned material,
• the search took place within a reasonable time before using the material,
• a record of the search was maintained for a reasonable period of time,
• they were unable to identify and locate the copyright owner at the time of the infringing use, and
• notice that the material is being used for the purposes of the scheme was made in a clear and prominent manner.

There are a range of factors that a court can take into account regarding a search, including the:

• the nature of the copyright material,
• the nature, purpose and character of the infringing use,
• whether the copyright owner is 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 that may be taken into account as determined by the Attorney-General by legislative instrument.

Where the requirements outlined above are met, a court cannot grant relief against the user of the orphaned material that consists of damages or an account of profits, additional damages or other monetary relief. Although, as a protection to copyright owners who may come forward after orphaned material is used, a court can require the user of the orphan work to make reasonable payment to the copyright owner for the past use in situations that are not private and domestic uses (for more information on the requirements to avoid a court order to make reasonable payment in relation to personal uses, see the briefing on the scheme).

The orphan works scheme and the other provisions in the Copyright Amendment Bill 2026 will commence the day after the Act receives Royal Assent, which will likely be in seven to 10 working days after the Bill passed (i.e. yesterday, Tuesday 31 March 2026).

Concluding comments

While the structure of the scheme does leave open the potential that a user of orphaned materials may need to make reasonable payment to a copyright owner for the use if such an owner emerges after the use, if the release of orphan works by cultural heritage organisations under s 200AB of the Copright Act are anything to go by, we can expect that instances of a copyright owner coming forward after the initial use of the orphaned material has taken place will be rare.

There is no question that the scheme will add much needed legal certainty to the use of orphan materials and by extension will open up more cultural, historical and educational material for everyone’s benefit. This public interest outcome is balanced in a fair and proportionate way by requiring notification of the use of material under the scheme which may reconnect copyright owners with material unintentionally or unknowingly orphaned and create pathways for negotiating licensing for the ongoing use of formerly orphaned materials. Even where a user of formerly orphaned materialse opts not to continue using the material, the scheme allows courts to require reasonable payment for past use.

If you want to read more about the new orphan works scheme see the separate briefing about it.

Copyright Amendment Bill 2026

Helpful information Text of bill First reading: Text of the bill as introduced into the Parliament Third reading: Prepared if the bill is amended by the house in which it was introduced. This version of the bill is then considered by the second house. As passed by

Tell me about the orphan works scheme in the Copyright Amendment BIll 2026

Yesterday Australia passed the Copyright Amendment Bill 2026, bringing with it a long-awaited scheme to activate orphan works. Get across it with this briefing.

elliottbledsoe.wtfElliott Bledsoe

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Conflict of interest

At points of time during the development and passage of the Copyright Amendment Bill 2025 I was the Copyright Officer (part-time) at the Australian Digital Alliance (ADA) and at the Australian Libraries and Archives Copyright Coalition (ALACC). In that capacity I wrote submissions and participated in other consultative processes related to the bill on behalf of one or both of those organisations. The views expressed in this blog post are my own and do not express the views of the ADA or the ALACC.

I am the President of Wikimedia Australia (WMAU). In that capacity I wrote a submissions related to the bill. The views expressed in this blog post are my own and do not express the views of WMAU.

AI use

No part of the text of this blog post was generated using AI. The original text was not modified or improved using AI.

The banner graphic (i.e. the first image at the top of the blog post) was adapted from vector graphics generated in Adobe Illustrator using Firefly 4 with 'Subject' content type selected and the lowest level of detail set. { Text to Vector Graphic prompt: Large copyright symbol, very large simple shapes, 80s retro style, line drawing, visible layers. }

Provenance

This blog post was first published on Wednesday 1 April 2026. It has not been updated. This is version 1.0.