The Copyright Amendment Bill 2026 passed in the Senate yesterday. This new Act will introduce a limited liability scheme to activate productive and creative reuse of orphan works in Australia, ending a long-running failure of our copyright system.
Yesterday the Senate passed the Copyright Amendment Bill 2026 which introduces into the Copyright Act 1968 (Cth) a scheme that will enable productive and creative uses of orphan works – copyright-protected material for which the copyright owner cannot be identified or located. The law will also remove legal uncertainty surrounding online education and make other minor amendments to the Act.
Orphan works by their nature create barriers to use because, if a user cannot identify the copyright owner of material they cannot request permission 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 can’t work out 70 years after their death which is the typical duration of copyright for literary, dramatic, musical and artistic works.
The scheme 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. Without the scheme, the legal risk and potential that financial damages will be awarded against the user typically means orphan works are not used.
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What's in this briefing
This briefing of the Australian orphan works scheme includes;
- an overview of orphan works and why they are a problem in terms of copyright,
- a detailed look at the scheme, including:
- its rationale,
- its scope,
- how it will work for orphan works, and
- how it will accommodate situations where a copyright later is identified,
- answers to frequently asked questions, and
- points at which the orphan works scheme intersects with other copyright and non-copyright domains, including:
- artificial intelligence,
- the educational statutory licence,
- flexible dealing (s 200AB),
- Indigenous Cultural and Intellectual Property (ICIP),
- moral rights, and
- the publication or making public of copyright materials.
The orphan works problem
Orphan works are copyright-protected material for which the copyright owner cannot be identified or located. This creates problems for copyright. Creative content is automatically protected by copyright in Australia. Typically, if you want to use material in a way that is protected by copyright without infringing that copyright either a copyright exception needs to cover your use or you need the permission of the copyright owner. The problem for orphan works though is that the copyright owner of the material cannot be identified or located, so you can’t get permission.
