Quick Hit

On 5 November 2025, the Government introduced the Copyright Amendment Bill 2025. If enacted, the new law would introduce an ‘orphan works’ scheme, amongst other changes.

‘Orphan works’ refer to copyright material where the owner of copyright cannot be identified or found. Because a person wishing to use an ‘orphan work’ is unable ask for permission, there is a risk of copyright infringement if they proceed to use the work.

The Government’s proposed scheme limits the remedies that are available to copyright owners (if they come forward) where a person was unable to find the copyright owner after a reasonably diligent search.

The orphan works problem

Orphan works are protected by copyright, which gives the owner exclusive rights to certain acts, including to copy or communicate the work to the public. A person wishing to use an orphan work who cannot find the copyright owner is left with the difficult choice of either not using the material, or using the material without permission.

If the material is used without permission and the copyright owner emerges at a later time, the copyright owner may claim that there has been a copyright infringement. Unless another defence or exception applies, available remedies include damages or an account of profits, and an injunction.

The requirement for a ‘reasonably diligent search’

Before a person can rely on the orphan works scheme, they must conduct a “reasonably diligent search” for the copyright owner. That search must be conducted within a reasonable period before their use of the work.

The proposed scheme includes a list of factors to be taken into account in determining whether the reasonably diligent search requirements are met. These are:

  • the nature of the copyright material (e.g. is it recent, or historical?);
  • the nature, purpose and character of the use (e.g. is it commercial);
  • whether the copyright owner is likely to be overseas;
  • the actual or likely impact of the use on the copyright owner;
  • the way the search was conducted;
  • any industry guidelines; and
  • any other matters determined by the Minister.

Having conducted a reasonably diligent search, if a person is still unable to identify or locate the owner of copyright, they must:

  • maintain a record of their search for a reasonable period; and
  • display an orphan works notice.

What happens if a copyright owner comes forward?

The Government anticipates that it will be rare that a copyright owner later comes forward, because of the requirement for a reasonably diligent search.

If a copyright owner does come forward, provided that the person using the work (the defendant) has met the conditions for a reasonably diligent search, the copyright owner’s remedies are limited. They cannot claim an account of profits or damages.

However, the Court may order that the defendant make a reasonable payment for the copyright owner in respect of the infringing use. This reasonable payment is not available for private and domestic use, provided that the defendant promptly stopped using the material, or the parties reach an agreement for ongoing use.

As for the ongoing use of the copyright material, the copyright owner and the defendant can reach an agreement. However, if they do not reach an agreement for continuing use of the material, either party may apply to the Court. The Court may:

  1. fix reasonable terms for the continuing use of the material; or
  2. grant an injunction restraining the use of the material.

The Explanatory Memorandum explains that these provisions recognise that continuing use of previously orphaned materials may in some circumstances be reasonable, but that this needs to be balanced against the copyright owner’s rights.

Purpose and impact of an orphan works scheme

While the Attorney General stated that the scheme is intended to allow “more Australians to enjoy the important benefits of the large amounts of orphaned material held by Australia's cultural institutions,” the proposed legislation is not limited to libraries, archives and cultural institutions. The scheme would be available to anyone seeking to use orphan works, including individuals, publishers and film producers.

Cultural institutions themselves may be able to rely on the orphan works provisions, particularly if they intend to commercialise the material. For non-commercial uses, cultural institutions may continue to rely on the flexible dealing exception in section 200AB in certain circumstances. 

It will be interesting to see whether the orphan works scheme has real impacts, if passed in its current form. A person wishing to use an orphan work must still consider the possibility that a copyright owner may emerge and seek “reasonable payment” (which may be similar to the reasonable royalty measure for copyright damages) and the potential for a Court to grant an injunction to restrain ongoing use.

Next steps

The Copyright Amendment Bill 2025 was referred to the Senate Legal and Constitutional Affairs Legislation Committee. Its report is due on 19 December 2025. Submissions close on 28 November 2025.

We’ll be keeping an eye on the progress of the Bill.

For assistance with copyright and orphan works, please contact Adam Simpson, Ian McDonald or Anna Spies

By Anna Spies