New Bill To Unlock Orphan Works And Untraceable Designs

The federal government recently introduced the Copyright Amendment Bill 2025 (the Bill) to Parliament, with a view to establish Australia's first statutory 'orphan works scheme'. This would offer a way forward for organisations that conduct diligent searches for untraceable copyright owners.

Currently, anyone using unauthorised reproductions or adaptations of existing works may face significant financial consequences, even where genuine attempts have been made to identify the original creator. This affects all industries. For example, in the property development sector, alterations to a building, whether it be refreshing a façade or changing an interior, create copyright infringement risks, even in 'orphan works' where the owner of the existing design or plan cannot be initially located.

However, under proposed amendments to the Copyright Act 1968 (Cth) (the Copyright Act), there may be a pathway that minimises the consequences of an infringement claim around orphan works if the copyright owner of the original works subsequently emerges.

If enacted, the orphan works scheme (which will apply to copyrighted material where an owner is unknown or unlocatable) will limit the remedies available to those purporting to be copyright owners following an extended period of use. It will also provide legal clarity for those using such works.

Orphan works scheme

Ordinarily, a person must seek consent from the copyright owner prior to using their copyrighted work, often in exchange for compensation under a licensing arrangement. Where the copyright owner cannot be identified or located, and the user proposes to continue reproducing the works, there is an inherent risk of copyright infringement if the owner comes forward at a later stage.

The new scheme seeks to limit the remedies available for copyright infringement of orphan works, subject to satisfaction of certain conditions as explained below. The proposed section 116AAD of the Copyright Act stipulates that while the Court may order a reasonable payment to the copyright owner for infringing use (akin to a licensing fee), relief will not be granted for infringing use in the form of:

• damages or account of profits;
• additional damages; or
• other monetary relief.

In addition, the Court will not order payment where the use was solely for domestic or private purposes and the unauthorised user either ceased using the works or agrees terms for the continued use of the works with the copyright owner. The court may also fix reasonable terms for the continued use or grant an injunction if appropriate.

In order for an unauthorised user to enjoy the benefit of these limitations a number of conditions must be met:

• the user must first undertake a 'reasonably diligent search' to locate or identify the copyright owner;
• the search must be conducted within a reasonable period before the infringing use;
• a record of the search has been maintained for a reasonable period of time;
• at the time of the infringing use, the unauthorised user could not identify and locate the owner or owners of the copyright; and
• notice was given, in a clear and reasonably prominent manner before, or at the time of, the use stating that the owner or owners of the copyright could not be identified and located and the notice is being given for the purposes of the newly created division. It is intended that this notice ensures transparency in the public domain, enabling a copyright owner to assert their rights if copyrighted material is used in reliance on the orphan works scheme.

'Reasonably diligent search' and 'reasonable period'

The court will consider the particular circumstances of the use when determining whether the allegedly infringing user has conducted a 'reasonably diligent search'. More thorough searches and investigations will be required for uses and materials that present a higher level of risk to the rights holder's interests, such as commercial uses and culturally sensitive materials. Higher standards may be expected where the work in question is foreign, and the owner is likely to reside overseas. Further, the court must consider the practicality of conducting the search as close as possible to the date of use and the types of technology adopted to conduct the search.

The proposed legislation also sets out a number of factors which may be taken into account in determining whether a reasonably diligent search was conducted within a reasonable period of time:

• the nature of the copyright material;
• the nature, purpose and character of the infringing use;
• whether the owner or 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 or owners;
• the way the search was conducted;
• any relevant industry guidelines; and
• any matters determined by the Minister (Attorney General).

Implications of the orphan works scheme

The scheme proposes to protect otherwise infringing users from damages where a 'reasonably diligent search' fails to disclose a rights-holder. It recognises the cultural harm that lies in keeping works perpetually under lock and key and unable to be altered or updated. This promises to have broad application across many industries where it may be difficult to track down the original copyright owner and potentially reduces the risk of financial compensation claims down the track. Cultural institutions such as galleries, libraries and archives may benefit by being able to digitise and share historical works where they have been unable to track down the copyright owner, enhancing public access and research. Creative and media industries may uncover new opportunities to repurpose orphaned works, fostering innovation.

These IP amendments could also have significant application in the real property sector, particularly for developers who wish to redesign all or part of an existing building but are unable to locate the original designers or architects. Copyright infringement is currently a risk factor in the redevelopment or restoration of older buildings. If the Bill passes, provided a developer conducts a 'reasonably diligent search' and thoroughly documents this process, there may be an option to redevelop or restore with reduced legal and financial consequences. In the event the rights-holder comes forward at a later stage, the developer may not be liable for damages but instead be expected to negotiate reasonable terms for any continued use, or otherwise have terms set by the Court.

Importantly, users need to ensure that their search processes are robust and documented. Failure to meet the statutory expectation could expose users to the full suite of infringement remedies.

Potential impact of the orphan works scheme

The Bill is intended to improve access to collections of cultural, educational and historical materials while maintaining protection for copyright owners, even if they cannot be identified or located. Additionally, it will place a statutory onus on users of copyrighted material to conduct a 'reasonably diligent search' and in turn, foster rightful compensation to the owner. Although remedies are limited for copyright owners who come forward following the infringing use, the additional obligations placed on the user should ultimately reduce this occurrence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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